By Alex Marthews and Danielle Kerem
Late Monday night, surveillance activists learned that the FBI was asking for a two-week postponement in the Apple v. FBI case — vacating a highly-anticipated hearing scheduled for the next day. According to the government, the FBI needed time to explore a newly discovered method for unlocking the iPhone given to San Bernardino killer Syed Rizwan Farook by his employer. Early signs suggest that this “new” technique will work, and the FBI seems likely to drop the case.
So, did we win?
The short answer is, sort of; but the dispute has “been deferred, not resolved” and this latest chapter has provided valuable insights into the trajectory of the encryption debate.
The FBI has been searching for a case that would enshrine into law their expansive and specious interpretation of the All Writs Act — an interpretation that would force companies to ensure the readability of data on devices sold to criminal suspects. The agency seemed confident that the San Bernardino attacks offered a suitable pretext and that the climate of mourning and fear that emerged in the wake of the shootings could be effectively exploited to advance these spurious legal claims — evidenced, in part, by the government’s solicitation of amicus briefs from relatives of the San Bernardino victims.
Events obviously didn’t unfold exactly how the FBI anticipated. Instead of recoiling in patriotic horror at Apple’s contumacious stance, other technology firms and cryptography experts largely went to bat for Apple. These critics voiced arguments that managed to persuade some members of Congress, like Senator Lindsay Graham. Crucially, even prominent surveillance backers publicly questioned the wisdom of the FBI’s legal battle with Apple.
In addition, this week’s developments strongly indicate that the FBI’s declarations — under oath — that an Apple-created software degrade was the only possible solution to the San Bernardino predicament may have amounted to perjury. This allegation is further buttressed by the FBI’s apparent reluctance to seriously consult with the NSA and other intelligence community officials as well as statements by several security experts — and NSA whistleblower Edward Snowden — casting doubt on the veracity of the FBI’s claims that Apple had the exclusive technical means of unlocking the phone.
None of these developments are directly attributable to the awareness-raising efforts of activists, or to compelling commentary from public figures like John Oliver. However, the legal battle has provided civil liberties advocates with an opportunity to encourage the broader public to learn more about the privacy and security of their devices, and to make the case for greater skepticism of law enforcement claims. Yet, despite meaningful scrutiny of the FBI’s narrative in this case as well as the agency’s decision to temporarily withdraw from the Apple dispute, federal law enforcement has issued at least 12 similar, active All Writs Act orders involving iPhones and iPads running iOS 6 to iOS 9.
Moreover, in light of the greater than expected resistance to the FBI’s courtroom strategy, the agency may choose to gain traction by instead lobbying for Feinstein and Burr’s pro-backdoors bill in Congress. The lesson for the American public and our elected representatives is: Beware of the FBI’s claims, especially when those claims may be leveraged to set a troubling precedent with potentially wide-reaching, adverse consequences for consumer protection and the global privacy landscape.
By Danielle Kerem
On Tuesday, the Senate unanimously approved the FOIA Improvement Act, legislation that seeks to strengthen the open records law by limiting exemptions, digitizing documents, and expanding public access. In particular, the proposed statute would require that agencies prove specific, identifiable harm when justifying refusal to disclose documents.
The Senate voted in favor of the bill despite strong opposition from the Department of Justice. In a secret six-page memorandum released earlier this month, the Administration denounced the bill’s efforts to codify a foreseeable-harm standard, contending that attempts to legislate greater transparency and accountability would impose a “crushing burden on agencies” and irreparably damage “proper administration of FOIA.”
The Justice Department additionally lamented the ‘chilling effect’ that increased public scrutiny and agency answerability would have on government activity, writing:
By removing agency discretion to determine when a document covered by an exemption should be released, it would create massive uncertainty and would chill intragovernmental communication.
To be fair, the First Amendment does indeed recognize legitimate limitations to the public’s right to access governmental records. However, given the extensive evidence of agency abuse of FOIA exemptions, the Justice Department’s claim that the introduction of measures to restrict discretionary power constitutes a burdensome intrusion on governmental processes lacks credibility.
In 2011, New York’s Southern District Court rejected efforts by the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), Federal Bureau of Investigation (FBI), and the Executive Office of Immigration Review (EOIR) to withhold documents that would reveal that the agencies “went out of their way to mislead the public” about a controversial immigration enforcement system. Judge Shira A. Scheindlin, in her strongly worded order, stated that FOIA exemptions “are not concerned with chilling agency efforts to obfuscate, which are anathema to the operation of democratic government.” The reform bill, despite having room for improvement, would facilitate meaningful progress towards constraining these excuses and obfuscations.
In recognition of Sunshine Week and the FOIA Improvement Act’s commendable contributions to government transparency, Restore the Fourth has added our name to a letter asking President Obama to “repudiate the positions taken by the Justice Department and instead publicly and unequivocally endorse the bipartisan FOIA Improvement Act.” The President’s support would be consistent with the promise he made on his first full day in office — a promise to renew the “commitment to the principles embodied in the FOIA” and usher in a new era of open government.
By Danielle Kerem
Over the past year, documents released under the Freedom of Information Act have revealed new details about the Federal Bureau of Investigation and Department of Homeland Security’s suspicionless surveillance of domestic advocacy groups. Significantly, the FOIA documents suggest that Black Lives Matter, Occupy Wall Street, School of the Americas Watch, and the anti-Keystone XL Pipeline movement were targeted based on these organizations’ First Amendment protected views rather than for valid law enforcement purposes. In light of the growing evidence of federal agency interference in constitutionally protected political activity, Restore the Fourth has joined with sixty seven other civil society organizations in calling on Congress to launch an investigation into the nature of, and justification for, F.B.I. and D.H.S. monitoring of non-violent activists and organizers.
The letter and petition, addressed to the House and Senate Judiciary Committees, offer an outline of the F.B.I. and D.H.S.’s surveillance activities in relation to the four abovementioned advocacy groups. Evidence gleaned from the recently released documents indicates that in the aftermath of the police shooting death of unarmed African-American teenager Michael Brown in Ferguson, Missouri, both the F.B.I. and D.H.S. routinely tracked the physical movements and social media accounts of Black Lives Matter protesters – even soliciting intelligence on a planned, peaceful demonstration at the Mall of the Americas from a confidential informant. In recent years, New York City’s discriminatory stop-and-frisk program as well as expansive surveillance of Arab and Muslim Americans (whereby the NYPD spied on at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools, and two Muslim Student Associations in New Jersey alone) offer additional examples of communities of color disproportionately shouldering the burden of arbitrary law enforcement surveillance.
As the FOIA documents further detail, the F.B.I. – leveraging the agency’s counterterrorism authority despite acknowledging School of the Americas Watch’s peaceful organizational mission – actively monitored and infiltrated the human rights group. Similarly, in the absence of any suspicion of criminal activity, the FBI also surveilled and interrogated climate change activists coordinating efforts to oppose the construction of the Keystone XL pipeline.
The federal government does, of course, have a lengthy history of targeting racial justice advocates and political dissidents, a history that extends back to the F.B.I.’s Counter Intelligence Program (COINTELPRO). Established in 1956, COINTELPRO instituted a destructive regime of government surveillance, infiltration, and covert action aimed at obstructing and discrediting diverse expressions of domestic dissent. Martin Luther King Jr., in addition to other prominent civil rights leaders, was relentlessly surveilled and harassed by government agents in an effort to silence critiques of racial and economic inequality. Reverend Jesse Jackson, commenting on COINTELPRO’s onerous impact on civil rights advocacy at the time, remarked:
“When you have this feeling that the government really is watching you, you know, taps your telephone, maybe in your text files, it has a chilling effect. It takes away your freedom. And often for leaders, none of us are perfect, it neutralizes people.”
In spite of the renewed commitment to the protection of citizens’ First and Fourth Amendment rights that emerged out of the landmark findings of the Church Committee’s 1975 investigation, the F.B.I. and D.H.S.’s persisting surveillance of citizens engaged in lawful political expression highlights the continued need for greater transparency and oversight to mitigate the chilling effect that surveillance overreach has on political participation and counter the erosion of Americans’ civil liberties. A congressional inquiry into the revelations of government spying on Black Lives Matter, Occupy Wall Street, School of the Americas Watch, the anti-Keystone XL Pipeline movement, and other non-violent political activists is a key step towards ushering in the legal and institutional reforms needed to prevent the misuse and abuse of law enforcement power.
The Wall Street Journal, not having the benefit of a near-pathological obsession with all things surveillance-related, has done some goldfish reporting on how shocked, shocked they are that the NSA may have “inadvertently” and “incidentally” gathered up some communications of US elected representatives, during the course of closely scrutinizing the communications of Binyamin Netanyahu.
It’s goldfish reporting because it exhibits no long-term memory of the history of political surveillance; and more particularly, of recent domestic political surveillance stories.
In 2009, liberal Congresswoman Jane Harman was caught in an almost identical scandal, having likewise been a vehement defender of the NSA, and reacted in the same way, denouncing mass surveillance only when it was turned her way.
From 2009 to 2012, the CIA spied on staffers for Senator Dianne Feinstein and other Democratic Intelligence Committee senators, in order to monitor, and to attempt to discredit, their efforts to hold the CIA accountable for horrific and repeated acts of torture; leading Senator Rand Paul to describe the CIA as “drunk with power” and to talk about the “real fear in Senators’ eyes”.
After the Snowden revelations, speculation ran rampant that Supreme Court Justice John Roberts’s last-minute and unexpected change of his key vote on the constitutionality of Obamacare, had been influenced by the NSA’s possession of information on him derived from its mass surveillance systems.
In April 2015, Congressman Jason Chaffetz had personal information from his past leaked by the Secret Service in order to discredit his efforts to investigate the Secret Service for a series of scandals involving drunk driving, hiring sex workers, and failing to protect the White House from trespassers.
The testimony of NSA whistleblower Russell Tice suggests that these are not just isolated cases that happen to have come to light. Instead, they are likely to be the visible portions of an active practice of surveillance of elected officials and jurists with decision-making authority over the budgets and activities of the surveillance state. It’s not an accident that Congress keeps voting in favor of substantive NSA reforms in public, that then mysteriously get stripped in committee. Surveillance power is blackmail power; it’s been used before in the US, is being used now, and will be used in the future, until we stop it.
Saying this is not paranoia; it’s only to be expected. Set up a mass surveillance system, and it will inevitably be turned against its own overseers. That’s a major reason to adhere to the Fourth Amendment and refuse to set one up.
Of course the NSA will spy on their alleged political overseers. Who the hell would stop them? The FISC? Congress itself, which just gleefully expanded surveillance because somebody said “ISIS, ISIS, ISIS, Boo!”? The President?
I think not.