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 aloneoffer 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.

obamaspyingwideTwo and a half years after Edward Snowden provided definitive proof that the US government and its allies are illegally spying on their own populations en masse, and a week before the first presidential primary in Iowa, it is troubling to me that the issue hasn’t received more lasting concern and attention, both from the public and leading presidential candidates.

One of the major roadblocks to generating the widespread and ongoing outrage that mass surveillance deserves (and that I’ve spent much of my time since June 2013 trying to generate) is the simple fact that a large part of the population has a difficult time seeing why the issue is so important. This indifference is often summed up with the phrase “If you have nothing to hide, you have nothing to fear.”

So, allow me to reach out to those in the English-speaking world who believe mass surveillance is not a problem, and explain as comprehensively as I can in a single article why you definitely have something to fear from the NSA and similar agencies, even if you think you have nothing to hide.

1. It is your right to hide parts of your life you consider private, even if they aren’t considered nefarious.

When I talk to people who don’t consider mass surveillance a problem, I like to ask if they’ll give me access to their Facebook account, as well as all of their text messages and emails. Unsurprisingly, they never want to. Many don’t even want their spouses to have that kind of access to their private information.

What this demonstrates is that having “something to hide” isn’t a sign of some severe transgression that threatens others, which the government needs to be aware of. We all want to keep intimate or embarrassing or easily misinterpreted or otherwise private aspects of our life hidden, both from strangers and those close to us.

As Glenn Greenwald explained in his book No Place to Hidescientific studies on surveillance demonstrate that it “turns insignificant actions into a source of self-judgment and anxiety.”

Children begin to seek privacy from their parents at a young age, and this desire continues for the rest of their lives, because privacy is an important part of growing up and becoming independent. As Snowden himself said in an interview, “A child born today will grow up with no conception of privacy at all. They’ll never know what it means to have a private moment to themselves, an unrecorded, unanalyzed thought. And that’s a problem because privacy matters, privacy is what allows us to determine who we are and who we want to be.”

This is very relevant to mass surveillance, given that NSA officers “on several occasions have channeled their agency’s enormous eavesdropping power to spy on love interests” and “members of the United States military working at the spy agency” like to share “sexually explicit photos” that they intercept.

The number of citizens whose highly sensitive information the NSA (and its thousands of employees and contractors) has access to is surely increasing rapidly, in an era when more and more children are having their early romantic and sexual explorations through their computers or phones.

Ask yourself whether you want the things you hide from your own parents—or that your own children hide from you—to be easily accessible by thousands of people you don’t know, working for the government.

2. Privacy is a necessary component of political activism, and society at large isn’t always right about what should be considered nefarious.

I recall reading a comment in 2013 that joked that “the US government is definitely spying on grocery baggers from Texas,” mocking users on reddit and elsewhere for their outrage towards the NSA.

Aside from the fact that average people are having their privacy violated, the argument that “I’m not important enough to be spied on, so who cares?” ignores the fact that the privacy of non-average people matters a whole lot as well.

Imagine we were talking about the First Amendment instead of the Fourth Amendment. Imagine the Obama administration decided that Bill O’Reilly’s punditry on Fox News were a threat to national economic security because it spreads unfounded doubt about the Affordable Care Act, and arrested him. Or, imagine that the Bush administration had done the same to Rachel Maddow or someone else on MSNBC, for spreading unfounded doubt about his foreign policy. I am certain that there would be widespread outrage, not just from O’Reilly’s or Maddow’s fans or ideological allies but from all parts of the population, over this flagrant and indefensible violation of their civil rights and free speech.

But an equally flagrant violation of the Bill of Rights, with equally negative effects on free speech, is taking place every day and has since the moment the Patriot Act was signed. It is simply happening in a form that is more thinly spread across the population, through the Fourth Amendment instead of the First Amendment, via the chilling effect of mass surveillance.

Every political activist, or controversial figure in any field, feels the need to hide some of what they are doing from the government or public at large, and are faced with attempts by the powers that be to access that information and use it to blackmail and/or intimidate them out of continuing their work.

History provides countless examples of this principle. The government of the time would have enjoyed access to all of Galileo’s private work and communications. It would not have been a good thing if they had it. The British government would have enjoyed more access to the founders’ private work and communications, including before the war started. It would not have been a good thing if they had it.

Using an example from the 20th century, the FBI spied on Martin Luther King, who was not an especially well-liked figure while he was alive, as part of a systemic attempt to harass and intimidate him in order to deter him from continuing his activism. Do you think the world would be a better place if they had more tools at their disposal to do so, and had been more successful?

More recently, it has been alleged that the IRS under the Obama administration unfairly targeted Tea Party groups for political reasons, and that Obama’s justice apartment arrested a controversial filmmaker in order to influence the 2012 election.

Is it hard to imagine someone in the US federal government using data collected by the NSA to blackmail or otherwise harass a Tea Party organization? Or Occupy Wall Street or Black Lives Matter protestors? How about members of Congress?

Regardless of whether you think the US government needs to go harder in its fight against ISIS, or distance itself from Israel, or repeal Obamacare, or transition from Obamacare to single-payer, ask yourself how it must affect the activists making that case to know the administration is spying on them and all of their private communications.

3. Those employing mass surveillance are doing so irresponsibly, and illegally.

Suppose you weren’t convinced by the arguments I’ve made so far, and the idea that the US federal government can access anyone’s private information isn’t itself troubling to you. I want you to think about how it got that power, and who is wielding it.

The Patriot Act was signed into law by George W. Bush, whose administration was mired in scandal and law-breaking, as even Republicans today can admit. Since 2009, those powers have been wielded by the equally controversial Obama administration, which couldn’t even competently launch a website for people to find health insurance on. I don’t know many people who consider either of those administrations to be full of competent, trustworthy people, let alone both.

Looking at the NSA specifically, consider that in the 12 years between the signing of the Patriot Act and Snowden’s leaks, those running it consistently lied both to the American people and Congress about what they were doing. Shortly before Snowden’s leaks in 2013, Director of National Intelligence Jim Clapper testified that the government does not “wittingly” collect “any type of data at all on millions or hundreds of millions of Americans.” The year before, NSA director Keith Alexander told Congress, under oath, that “We’re not authorized to do it [data collection on US citizens], nor do we do it.”

Also consider that the very person who wrote the Patriot Act doesn’t consider the NSA’s activities to be a justified application of it, and that those activities are a flagrant violation of the Fourth Amendment, as written. I welcome those who believe mass surveillance is justified to advocate amending the constitution to allow for it.

Consider that backdoors put into technology so that that government can access it has already created security issues that makes our information vulnerable to foreign hackers.

Even if you think what the NSA is doing could be justified, ask yourself whether you trust the people actually doing it to wield that kind of power, or whether you mind that they’re violating the constitution and committing perjury by doing so.

Also ask yourself whether you think it’s sensible to trust Barack Obama (or Hillary Clinton, or Bernie Sanders, or Donald Trump, or Ted Cruz, or Marco Rubio, or all the people each of them choose to appoint) full access to the data you enter into your phone, tablet, or computer, as well as that of every political commentator or activist that you support, and that of everyone in the United States or allied countries, or who communicates with those who are. I am going to guess that you would not trust a majority of those six people, if any of them, with that kind of power.

So isn’t it extremely troubling that it was secretly and illegally given to the office that Obama holds, and that one of those five other people will most likely hold a year from now?

4. Mass surveillance does not make us safe.

In December 2013, a member of the White House’s own review panel on the NSA admitted to a “lack of evidence that the bulk collection of telephone call records had thwarted any terrorist attacks.” In a report published in May last year, the Justice Department failed to find any instances of surveillance under the Patriot Act preventing an attack or making any meaningful strides to fight terrorist organizations. And Alexander himself has admitted that claims the NSA has stopped a large number of terrorist attacks were fabrications.

If there is any good evidence that the NSA is doing anything at all helpful to fighting ISIS, it certainly hasn’t been made public.

When the men responsible for the Boston Bombing were apprehended in April 2013, it was due to footage from a security camera filming a public area, and a massive ground search of the area by the Boston Police Department, not the NSA reading their emails or tracking their phone calls without a warrant. Osama Bin Laden’s compound in Abbottabad was located based on reports of people living in Pakistan, and these claims were confirmed based on video surveillance of that particular location. Bin Laden did not, not as far as I know, have a Facebook account.

In fact, the Russian government had warned the FBI about the Tsarnaevs two years earlier, and the US government failed to do anything with this easily and legally obtained intelligence, just as the Bush administration failed to act on intelligence warning it about Osama Bin Laden’s plans to attack the US by hijacking airplanes. What good does adding expensive, elaborate intelligence-gathering methods do when the US government has repeatedly failed to process and utilize the much more valuable intelligence provided to it elsewhere?

Adding unnecessary intelligence can actually make it harder to identify threats, because it makes it harder to determine what is useful and relevant. Additionally, violating the constitution and spying on allies reduces the US’s credibility and trustworthiness, making international cooperation in fighting terrorism more difficult.

Yet, the NSA’s annual budget is over $10 billion. That’s about $100 for every family in the United States, or the annual salary of about 250 000 US soldiers, or 180 000 high school teachers.

That’s how much every American is paying the NSA to violate our privacy and the Bill of Rights, while stifling free speech and completely failing to make you and your family any safer.

Ask yourself if you think you’re getting your money’s worth. I think you’ll agree with me that you aren’t. I think you’ll agree that the NSA is doing a whole lot more damage than good.

Whether you are a liberal, socialist, conservative, libertarian, moderate, or any other political ideology besides an admitted supporter of totalitarianism, you should be able to understand that illegal mass surveillance gives you a whole lot to fear. I hope that this article has made that easier, and that you will now join me in fighting it.

shocked-goldfish

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.

Continue reading →

by Alex Marthews, National Chair

Mass Surveillance of Muslims Won’t Work, So Why Do It?

A former Middle East advisor to President Obama, Steven Simon, suggested in Saturday’s New York Times that the administration’s response to the Paris attacks was likely to include “Tighter border controls, more intensive surveillance in the U.S. and more outreach to local communities in the hope that extremists will be fingered by their friends and family. And a tightening of already intimate cooperation with European intelligence agencies.” These proposals, if adopted, would be immensely counterproductive, and here’s why.

First, tighter border controls are irrelevant to this attack. It appears that all of the attackers so far identified were EU citizens.

Second, France already had a draconian mass surveillance law, which came into effect at the beginning of October. It didn’t work to thwart these attacks. The reason is the “false positives” problem. Any system employing demographics, metadata, or past behavior, inevitably sweeps up a vast majority of innocent people, and diverts police and intelligence resources towards ruling them out. This LA Times study of “pre-crime” efforts to prevent violent crimes by US Army soldiers added every variable they could, and still, for every 15 people who did in fact commit violence in a given year in their set of suspects, 985 did not. Similarly, before the Boston Marathon attacks, the FBI had flagged Tamarlen Tsarnaev for interview; but they interview hundreds of flagged people every week, and have no way of knowing which among them will actually commit an attack. So, it appears that six weeks before the attacks, France’s intelligence agencies snowed themselves under with an ocean of false positives, and weren’t able to detect among that traffic the communications that were suspicious. They can’t be faulted for not being able to do so; it’s mathematically impossible. All mass surveillance allows is what’s happening now, which is to be able to go back into the system and see what you missed.

Third, Muslim and black communities were already under very heavy pressure in France, and are already under very heavy pressure here from the FBI, through its “Countering Violent Extremism” program, to “finger friends and family”. CVE uses models of radicalization with no solid academic basis to identify people as potentially radical simply because they have changed their dietary habits or become more devout about their religion. To make their numbers, the FBI has even resorted, in case after case, to creating their own terrorists out of young, poor, and mentally unstable young men, using confidential informants to lead them through every stage of devising a plot till they do something the FBI can arrest them for. We don’t need more of that either.

Fourth, when it comes to “more intimate cooperation” with European intelligence agencies, the fact is that such cooperation is already “intimate” – so intimate that the British systematically tap Internet traffic and hand us the contents; so intimate that we share “raw take” intelligence with Israeli security services; so intimate that the German intelligence agency helped the NSA spy on Europe’s top politicians in exchange for access to the latest in surveillance wizardry. Short of actually being in bed with one another, there’s no more “intimacy” to be had – and it still isn’t working.

This kind of mass surveillance is not working to thwart attacks. But in four important ways, it does work. Mass surveillance intimidates ordinary citizens in their conversations and ordinary activities of life. It allows bigoted politicians to curry favor with their base, and coast on a wave of suspicion about Muslims. It brings great profits to the private security firms smart enough to fill their cup at the never-failing spigot of federal counterterrorism funding. And it makes the general public feel that Something Is Being Done, convincing them to trade more of their rights away for the pretense of a little temporary safety.

Last, if we react in this particular way, it serves the ends of the violent criminals who committed this attack. Lacking resources themselves to wage war, they seek to build their support among more moderate people. IRA terrorists posed as the defenders of the rights of peaceful Northern Irish Catholics against foreign oppression; the Islamic State poses as the defenders of the rights of peaceful Muslims against foreign oppression. A governmental backlash against Muslims in general will merely bolster their propaganda: See? We told you they’re out to get you! Come join us!

Instead, we should use the Constitution to solve the false positives problem. The Fourth Amendment bars mass surveillance, requiring, before surveillance is conducted, a warrant based on individualized probable cause of involvement in actual criminal activity. Imagine that, instead of having a “TIDE” terrorist database with 750,000+ names on it, it were limited to a maximum of one thousand, but that the one thousand were each investigated thoroughly on the basis of actual evidence. The surveillance agencies would waste a lot less time chasing fruitless leads, building data centers, or shoveling money to software vendors to try to solve this insoluble problem.

Foreign policy and economic solutions are outside our remit, but it should be obvious that in order to drain the Islamic State of support, we have to provide those fleeing its rule with a credible chance at a better life. Letting them know that if they come to our country, they will be constantly under watch even if innocent of any crime, is not a good way to showcase our ways.

by Alex Marthews, National Chair and Derick Bellamy, Communications Chair

Over two years on from Edward Snowden’s leaks, the government’s mass surveillance of our private communications continues to increase, but it’s hard for most people to take the time to figure out the bills, policies and programs involved, and where their elected representatives stand.

In partnership with Fight for the Future, we have done the work for you. With the battle over CISA next up in Congress and the next election one year away, we need to know who is on our side, and who’s on Team Surveillance.

Our new surveillance scorecard launched today at www.decidethefuture.org, and grades lawmakers on their commitment to surveillance reform. An extension and update of a similar tool released last year, Decide The Future adds data from the current Congress, including the PATRIOT Act renewal fight, the USA FREEDOM Act of 2015 and much more.

The site is simple and easy to use, and will allow you to quickly see which politicians oppose mass surveillance, and which are working to expand the surveillance state. Just input your state and find your legislators’ voting records.
All 535 members of Congress are graded. 24 Senators got A grades, and 35 got Fs. In the House, 173 Representatives (40%) got A grades, and 10 (2.3%) got Fs. Looking at the states, legislators from Colorado, Hawaii, Massachusetts, Tennessee, Utah and Wisconsin are most supportive of surveillance reform, while legislators from Alabama, Arkansas, Illinois and Mississippi tend to oppose reform more.

We encourage you to use the site to call, email or tweet lawmakers to demand stronger surveillance reform, during the ongoing fight against CISA, during future legislative battles, and through the 2016 election.

As Congress prepares to make decisions affecting the nation’s privacy and safety, we should all be aware who is and isn’t fighting for our Fourth Amendment rights.

Stay updated on, discuss, and join our fight for the Fourth Amendment. Check out our pages on Facebook and Twitter (if you’re still there getting spied on).

by Alex Marthews, National Chair

Restore The Fourth is turning its hand to something new: Filing its own legal amicus curiae (“friend of the court”) brief in federal appeals court.

The key remedy for Fourth Amendment violations is the ability of defendants to exclude evidence that was seized through an unconstitutional search. However, since 1984, the Supreme Court has narrowed this remedy, finding that exclusion is not required when the officer is relying in good faith on “binding appellate precedent” or on mistakes made by others. In US v. Ganias, a case now being reviewed en banc by the 2nd Circuit, there is a serious risk that this “exclusionary rule” will be narrowed even further.

U. S. v. Ganias involves an investigation of Stavros Ganias, a Connecticut CPA. His hard drive was imaged by Army investigators looking for evidence of contracting fraud by two of the his clients. It took thirteen months for the Army to separate out the Quickbooks files of the two clients. Then, because the Army by now viewed the image of Ganias’s hard drive as “government property”, they never gave the rest of his imaged hard drive’s content back; they felt it might come in useful someday. Two years later, in 2006, the IRS was investigating Mr. Ganias for suspected tax evasion. They asked the Army for the hard drive image from 2003. They got a new warrant, searched the old hard drive, and found evidence of tax evasion. The 2nd Circuit Court of Appeals ruled in Ganias’s favor, declaring that there had been a violation of the Fourth Amendment’s prohibition on unconstitutional searches and seizures, and that the hard drive, as a product of that unconstitutional search, should be excluded. But now, the ruling is being reviewed en banc and may be overturned.

We wanted to do our part in preserving the ability of people targeted by the US government to gain meaningful redress, so we have filed our first ever amicus curiae (=”friend of the court”) brief. With assistance from Mahesha Subbaraman, a brilliant attorney who recently resigned from the Institute for Justice to start his own private practice in Minneapolis, MN, we were able to articulate a compelling argument for why the government cannot simply sit on an ever-increasing pile of seized records for them to rootle through at will when they become useful. The case will be ruled on in September.

by Alex Marthews, National Chair

In the runup to last night’s sunset of three PATRIOT Act authorities, TV-watchers were barraged with lurid threats of “horrific terrorist attacks and violence” that would be our lot if we dared to let go of any of them. And then the authorities did sunset, and we all woke up this morning, still alive, and mysteriously unmassacred.

Look around you. What you see outside is that apocalypse’s first day, and … we’re OK. A small part of the surveillance state has stopped collecting new data. In the full daylight, cops are still stopping suspects. In the shadows, PRISM collection continues, unreformed. But this morning proves that Section 215 was never needed. The dragnets enabled under it didn’t do a blind bit of good.

This is hard to swallow, but it’s true. There never was, on this topic, any “tradeoff between privacy and security”. There never was any well-intentioned desire to Keep Us Safe™. The NSA felt able to launch mass metadata dragnets, and they did. That’s it. No-one really bothered analyzing whether the dragnets really worked. It wasn’t about effectiveness, or about safety. It was about fostering a culture of submission to authority.

In the same way, more locally, for twenty years and more, the NYPD wasted millions of dollars in staff time, conducting suspicionless “stop and frisks” of millions of people who had done nothing wrong. When questioned, they argued that without stop and frisk, lawlessness would run rampant. And then, when they were forced to stop last year, what happened? Crime fell.

In the same way, after 9/11, we took the Fourth Amendment, and broke it. We chose to torture people, run secret prisons, and launch illegal wars, all, again, to Keep Us Safe. It was, and is, for nothing. The bombs we dropped, the pain we caused, the lives we took, were all in vain.

We should be under no illusions now. The claim that Section 215 was needed, like the claim that the Iraq War was needed, were always nonsense. In all likelihood, the claims we need the other mass surveillance systems are nonsense too. Don’t go telling us that we can’t do without, say, mass internet surveillance under Section 702 of the FISA Amendments Act, or without full take of entire countries’ audio and Internet communications under Executive Order 12,333. We’ve done without such things before. We can do without them again. We gain no safety from submission, and it should not have taken fourteen years to learn that lesson, stop submitting and start standing up straight again.

Here’s the bad news. Not only the sunset happened last night. The Senate also voted for cloture on the USA FREEDOM Act, which would put these three expired provisions back into law, by a margin of 77 to 17. On Tuesday, they’ll vote on the bill itself, and it looks likely, based on the cloture vote, to pass. Even if there are no amendments, the President will sign it. So on the third day after sunset, Section 215 will rise again, like a new-bitten zombie, and start looking for prey. Undead Section 215 will be a little different – for example, instead of holding the dragnet data itself, the NSA will pay Internet and phone companies to hold onto it, and it’s likely that when it passes it will allow the NSA to instruct companies to format the data in such a way that the NSA can query it almost frictionlessly. Permanent sunset will mean the NSA actually has to collect less, and that’s so unimaginable to Senators – well, to all but a very few Senators – that they are racing to restore the lapsed parts of the PATRIOT Act and deprive you and me once again of the liberties we have so improbably won back.

So I say to our more servile Senators: Don’t you dare restore the PATRIOT Act. You aren’t here above all to Keep Us Safe™; you’re here above all to protect the Constitution. Endorsing the USA FREEDOM Act breaks that oath. Look at the side the fearmongers have taken, and the profits they stand to make, and vote the other way. Vote No on the USA FREEDOM Act tomorrow, and then let’s discuss, deeply, seriously, openly and fearlessly, what kinds of surveillance the Constitution will allow. The American people are ready to breathe more freely and live their lives less watched. It’s time to move forward.

Stay updated on, discuss, and join our fight for the Fourth Amendment. Check out our pages on Facebook and Twitter (if you’re still there getting spied on).

Soon, you will start seeing SSL encryption implemented site-wide. We do this in solidarity with Reset the Net and because it’s the right thing to do. We’re working through the process of allocating funds and acquiring the certs, and expect to have it implemented by month’s end!

We encourage everyone to use encryption and secure technologies, not just when necessary, but all the time.

Last night, the Senate delivered a stunning rebuke to the NSA and the other surveillance agencies. By refusing to act, they in effect voted to allow parts of the PATRIOT Act to expire, on which the FBI and NSA (illegally) rely to conduct mass metadata dragnets on Americans. This is an abhorrent outcome to national-security authoritarians, but they played their part in making it more likely to happen. This is a partial story of how it came about.

Section 215 of the PATRIOT Act, the so-called “business records” provision, dates from immediately after 9/11. It has been used since then, without the knowledge or consent of most of Congress, to justify mass metadata dragnets, including a phone metadata dragnet proven to exist by documents leaked by Edward Snowden in 2013. These metadata dragnets under Section 215 are a small part of the NSA’s overall surveillance activities; Internet and other content dragnets, which take in all the communications of whole countries and also “incidentally” include the communications of millions of Americans, were justified under other provisions of law, and so will continue.

Last fall, the USA FREEDOM Act of 2014 failed to pass in the Senate, which was deeply disappointing many surveillance activists who had worked hard for it. The reaction of some – notably CDT, OTI and Access – was to roll up their sleeves, try again in the new Congress, and work out a text that they and interested legislators and the intelligence community and the administration could come to agreement on. They reintroduced the USA FREEDOM Act of 2015 in March. It was on balance a weaker reform than the 2014 bill, reflecting a Congressional leadership that was more sympathetic to the NSA. It included, among other new measures, increased sentences for material support for terrorism. It passed the House on May 13, by 338 votes to 88. The 88 who voted against it were almost all surveillance reformers, and the more authoritarian members voted for it.

Why was that? Well, the USA FREEDOM Act, despite being touted in the press as reform, was never especially popular in the surveillance reform community. It would have reformed Section 215, but in a token way whose practical effects on actual NSA data-gathering on the ground were likely to be minimal. It would also have reauthorized it for several years, which made long-time principled opponents of the PATRIOT Act very uncomfortable. For that reason, after the bill failed in fall 2014, some organizations coalesced around a different strategy called “Sunset215.” The core groups – X-Labs, the Sunlight Foundation and Restore The Fourth, BORDC, PCCC, FreedomWorks, the Cato Institute and the Campaign for Liberty – adopted a name, the “Civil Liberties Coalition”, and our coalition steadily expanded to include a huge array of organizations from both left and right. Our strategy was to get reintroduced, with bipartisan support, the much stronger Surveillance State Repeal Act, which would show what reforms were needed; and to focus not on reforming Section 215, but on having it lapse on schedule at midnight on May 31.

Remarkably, despite the conventional wisdom six months ago that a sunset would never happen, that looks now to be by far the most likely outcome.

Part of what happened here was that the 2nd Circuit Court of Appeals ruled on May 14 that Section 215 had never authorized mass metadata dragnets. If reauthorized unchanged, the unanimous opinion said, the programs would end; if Congress wanted the programs to continue, they would have to change Section 215 to authorize them explicitly. This ruling changed the calculus for the administration and the intelligence community. It now looked as if the best option was not Senator McConnell’s preferred strategy of straight reauthorization without change or reform. Instead, they started to advocate adoption of the USA FREEDOM Act – with, in the end, even the CIA weighing in in support of it. There would be token reforms, but USA FREEDOM would provide stronger Congressional authorization for mass surveillance than the existing text of Section 215. It appears that this pressure had an effect, reducing support in the Senate for straight reauthorization, and nearly unifying the Democratic caucus in the Senate around the USA FREEDOM Act.

At the same time, our Civil Liberties Coalition was working hard generating hundreds of thousands of calls to Congress, and building the credibility of the argument for letting Section 215 lapse. We tapped into a deep sense of unease in the country with the whole project of mass surveillance – a sense that after 9/11 we had, as a country, gone off track, and needed to get right with the Constitution. That in turn gave anti-surveillance legislators – like Mark Pocan and Thomas Massie in the House, and Rand Paul in the Senate – the support they needed for a strong stand on this issue.

The Senate has been headed for a recess that would last until June 1, after the PATRIOT Act provisions expire. Last night, after midnight, these provisions finally came up for a Senate vote. McConnell placed the USA FREEDOM Act first on the agenda. 42 Senators voted against cloture. That 42 represented the more authoritarian Republicans in their 55-strong caucus, for whom even token reform was intolerable – and also Senator Paul, who, like the 88 in the House, felt that USA FREEDOM didn’t go far enough. 12 reformist Republicans voted for cloture, but that wasn’t enough; the final vote count was 57 in favor, and they needed 60.

So far, McConnell’s plan was working; his idea was that with USA FREEDOM out of the way, the Senate would agree to a two-month reauthorization of Section 215 in order to get home to their districts for the recess, and then he could lean on the House to ensure that any reforms were as empty as possible. But then his reauthorization vote also failed, by the substantial margin of 45 votes for to 54 votes against. The Democrats and several reformist Republicans voted No.

That’s when things went awry for the surveillance defenders.
Desperately, McConnell offered shorter and shorter renewals, only to have them blocked by objections from Senator Rand Paul and others. In the end, the only thing he could control was the Senate calendar, so he called for the Senate to reconvene at 5pm on May 31, to give them another chance to prevent the sunset of these PATRIOT Act authorities.

There is only one, remote possibility that will prevent sunset now. If McConnell throws his support behind the USA FREEDOM Act, and finds a few surveillance opponents willing to hold their noses to vote for it, then the Senate and House and White House will have all come to agreement before a sunset occurs. There would be a technical lapse of less than a day, owing to procedural limitations, but the legislative avenues to prevent lapse would have been successfully closed off. However, McConnell has spent months arguing that the USA FREEDOM Act is dangerous and unpatriotic. So we will see next week how unscrupulous, exactly, he is prepared to be.

Even now, some press outlets are misunderstanding what happened last night as a failure for surveillance reformers. It was nothing of the sort. The lapse of Section 215 is far more reform than most people could imagine happening six months ago. But last night, the billion-dollar three-letter agencies got a whipping from a few motivated legislators and a raggle-taggle band of civil liberties true believers. It’s an incredible story.

—10:00pm EST: UPDATED to more clearly explain what happens if USA FREEDOM passes.

by Alex Marthews, National Chair

The House just voted to pass the USA FREEDOM Act, which reauthorizes and alters Section 215 of the PATRIOT Act, with a vote of 338 to 88. It’s being depicted as a landslide in favor of reform. It is, sadly, anything but. This is why.

Last week’s ruling by the 2nd Circuit fundamentally changed the Congressional debate. Senator McConnell, the Majority Leader, had been pushing for a straight reauthorization of Section 215 of the PATRIOT Act. But the 2nd Circuit ruling said, among much else, that if Congress did a straight reauthorization of the same language, then their ruling that mass metadata surveillance was unlawful would still stand. In other words, straight reauthorization will no longer get surveillance defenders what they want. So, as the next best thing, the administration and the intelligence committees swung behind the USA FREEDOM Act. This Act would impose token limits on how much they can collect with a single request, but would modernize intelligence collection for a world where much communication is not an actual phone call. As a compromise between moderate surveillance reformers and the intelligence community, it actually offers a lot that the intelligence community likes. So it looks much better to them at this point than straight reauthorization (=no mass metadata surveillance under Section 215) or straight sunset (=no mass metadata surveillance under Section 215).

How do we know this happened? We can measure it.

EFF came out last year with a congressional scorecard, grading Representatives on their approach to mass surveillance. Looking at how those Reps voted this time, we can see that the mean grade of those voting for USA FREEDOM was a C. The mean grade of those voting against USA FREEDOM was an A- (full data here). Probably 115 reform-minded Congressmembers felt that USA FREEDOM was enough of a positive step that they voted for it. But the pattern is clear:

Most Yes votes were from surveillance supporters, and the vast majority of No votes were from reformers.

It’s therefore inaccurate for the New York Times and other outlets to depict this as an enthusiastic repudiation of mass surveillance, when in practice USA FREEDOM is emerging as the least-worst alternative for mass surveillance supporters.

Does this mean that Sens. McConnell and Burr, last seen desperately pushing for a straight short-term reauthorization of Section 215, would actually see their agenda advanced better if the USA FREEDOM Act passed? It’s quite possible that they don’t fully grasp the ramifications of a straight reauthorization in the context of the 2nd Circuit ruling. But if they don’t grasp it, the administration and the intelligence community do seem to, and, it appears, pressured Reps to vote accordingly.

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