You’ve probably seen the buzz around #ReleaseTheMemo on social and other media. But perhaps you found it hard to follow from a privacy advocate’s point of view.
The House Intelligence Committee in Congress agreed to share a document that allegedly described abuses of FISA surveillance, pending the president’s approval.
Now that it’s finally been released, let’s take a look if it lived up to the hype…
- It would describe political surveillance, conducted with the knowledge of President Obama, of people involved in the Trump campaign
- It would show the bias inherent in the Mueller investigation of President Trump
- It would vastly misrepresent the underlying intelligence reports
- It would be unprecedented to release to the public reports of such a highly classified nature, potentially compromising national security
- It would provide substantial evidence for the need of greater oversight of FISA surveillance
- President Nixon used his access to the federal intelligence apparatus to engage in political surveillance, leading to his impeachment
- Testimony from former US Air Force analyst Russell Tice suggests that the NSA has engaged in political surveillance before
- Classified information is often classified simply because it is embarrassing or reveals unconstitutional activity by an agency
- Its main point is that the FBI failed to disclose bias by former British intelligence officer Christopher Steele against Trump as part of its application for a FISA warrant; But it was already well-known that Steele’s firm received payment from Democrats, that he was vehemently opposed to Trump’s election, and that his dossier constituted opposition research
- It doesn’t lessen any suspicion of collaboration between the Trump campaign and Russian operatives, because that has been shown from other sources than the Steele dossier
- Perhaps the FBI should have caveated better on the FISA application as to Steele’s motivations.
- However, the memo doesn’t seem to substantively reveal improper political surveillance by the FBI motivated by political animus against Trump
- From our standpoint, the memo seems to have been released as a parry in the knife fight of partisan struggles; it doesn’t reveal material relevant to Restore the Fourth’s mission
- Suggestions of the memo compromising national security seem to be overblown; the memo could easily have been part of a public discussion prior to this, and the fact that it wasn’t suggests that our system vastly overclassifies information, and is reluctant to let the public know about things we’re in fact fully capable of understanding.
October 5, 2017 – USA Liberty Act Allows FBI’s End-Run Around The Constitution To Continue
On Thursday, the House Judiciary Committee will be filing the so-called “USA
Liberty Act”, an attempt to deal with the fact that the main statutory authority for the
government’s mass surveillance programs is due to expire December 31.
The product of lengthy negotiations between ranking minority member Rep. John Conyers (DMI),
committee chair Bob Goodlatte (R-VA) and others, it unfortunately showcases that a
bipartisan solution is not always a good one.
“The least the bill could have done,” says Restore The Fourth National Chair Alex Marthews, “would have been to fix the backdoor searches problem.”1
An unknown, but probably very large, number of Americans’ communications are being collected by the NSA’s systems without a warrant ‘for foreign intelligence purposes’, and then exploited by domestic agencies like the FBI for use in ordinary criminal investigations of all kinds. It’s common for the FBI to claim a connection of an investigation to foreign intelligence or counterterrorism, even when the `connection’ is nothing more than `the suspect read something on the Internet or traveled abroad.’2
The USA Liberty Act would still allow the FBI to warrantlessly search the NSA’s stored communications based on such a claim. It says a warrant is needed if the FBI already has a domestic crime it’s investigating, and wants to find more evidence among the content of Americans’ communications held by the NSA; but (a) it requires no warrant for metadata hits anyway, and (b) those aren’t the really worrying situations.
Instead, we’re worried about the stage where the FBI doesn’t really have a crime in mind yet, but is trying to find dirt on people. It has been historically very easy for them to claim a “foreign intelligence” connection in the case of any immigrant, or a “counterterrorism” connection in the case of any Muslim; effectively, if this is codified into law, the Fourth Amendment might as well be a dead letter for such people’s online communications. Under the practice of “parallel construction”, the FBI actually starts with a person of interest, uses NSA data to find the initial evidence of a crime, and then “backfills” a plausible chain of non-NSA evidence so that their use of intelligence-derived information is not challengeable in court.3 This bill won’t fix that. Most
Americans brought up on charges based on NSA-derived information are never told where that evidence came from. We don’t even know in aggregate or in general an estimate of how many Americans NSA’s “PRISM” and “UPSTREAM” programs, governed by Section 702, have had their data warrantlessly seized; Congressmembers have been asking for six years for an estimate, and the intelligence community has stolidly refused to give one.4
This bill does some good things. For example, it extends whistleblower protections to
intelligence community contractors. It codifies a ban on so-called “about collection.” But given all we have learned as a nation about mass surveillance on us since December 2012, when this law last came up for renewal, it should at the very least require a warrant for all domestic agencies’ searches of intelligence databases.
1 For more on Restore The Fourth, see www.restorethe4th.com.
2 See, among many others, the case of Tarek Mehanna of Sudbury, MA
3 See a fuller explanation at https://en.wikipedia.org/wiki/Parallel_construction.
4 This sorry history is detailed at https://www.emptywheel.net/2017/03/17/ron-wydens-history-of-bogus-excuses-for-not-counting-702-us-person-collection.
National Chair, Restore the Fourth
Restore the Fourth
Please join our partners at Demand Progress and sign their petition to let Section 702 of the Foreign Intelligence Surveillance Act expire at the end of this year.
Restore the Fourth has been a strong critic of the secretive practices this section allows, due to the potential to allow end-runs around restrictions prohibiting targeting domestic communications of American citizens. We need to close this remaining loophole that still provides an avenue for warrantless dragnets. Let your representatives know that they need to let this clearly unconstitutional practice end.
We thank our allies at Demand Progress for providing this channel to our representatives.