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
FBI’s Interactive ‘Anti-Extremism’ Website Stigmatizes Youth of Color and Deters Expression of First Amendment Protected Views
By Danielle Kerem
Restore the Fourth has joined a coalition of civil rights organizations in calling on the FBI to dismantle the agency’s “Don’t Be a Puppet” website and more broadly re-evaluate the FBI’s strategy for countering violent extremism. In a letter addressed to FBI director James Comey, Restore the Fourth – in conjunction with the Arab-American Anti-Discrimination Committee, American Civil Liberties Union, Bill of Rights Defense Committee, and ten other advocacy groups – expressed opposition to the “Don’t Be a Puppet” program’s promotion of ethnic, religious, and ideological profiling.
“Don’t Be a Puppet” is an interactive website that, according the FBI, aims to “open the eyes of teens to the devastating reality and deceptive messaging of violent extremism and to help strengthen their resistance to radicalization and possible recruitment. However, instead of effectively preventing extremist violence, the website “perpetuates profiling and negative stereotypes that Arabs, Sikhs, South Asians, Muslims and those perceived to be Muslim are prone to engage in extremist violence and encourages the policing of thoughts, ideas, and beliefs.”
The video game advises students to report acquaintances or friends who may be “traveling to places that sound suspicious.” As our letter notes, “this warning is extremely troublesome because of the subjective and vague concept of a ‘place that sounds suspicious’…there should be nothing inherently suspicious about traveling either to Saudi Arabia or Iraq, where some Muslim holy sites are located, bias could lead individuals to report innocent, constitutionally protected activity to law enforcement.” The website employs similarly ambiguous language in warning online visitors that the use of “code words or unusual language” may be a warning sign of someone planning to commit violent extremism.
Moreover, by deputizing teachers to look for “warning signs” in the classroom, the program risks undermining trust between students and instructors as well as hinders the “free exchange of speech, ideas, and debate on controversial topics because students are afraid of being labeled suspect and being reported to the police.” As Georgetown University Law Professor Arjun S. Sethi explains:
Teachers in classrooms should not become an extension of law enforcement. The program is based on flawed theories of radicalization, namely that individuals radicalize in the exact same way and it’s entirely discernible. But it’s not, and the FBI is basically asking teachers and students to suss these things out.
The website’s messaging is particularly troublesome given the chilling rise of Islamophobia in American schools. According to a California State University analysis, “hate crimes against Muslim Americans and mosques across the United States have tripled in the wake of the terrorist attacks in Paris and San Bernardino.” Sadly, children and adolescents have not been untouched by this spike in anti-Muslim bigotry. Last November, “a sixth-grade girl in the Bronx was reportedly attacked by three boys who tried to take off the hijab she was wearing, punched her and called her ‘ISIS’.”
In light of this intensifying climate of fear and suspicion, Restore the Fourth asks that Federal law enforcement not exacerbate religious and ethnic discrimination by perpetuating negative stereotypes of Arab and Muslim Americans. In addition to taking down the “Don’t Be a Puppet” website, Restore the Fourth urges the FBI to take into consideration the recommendations of a May 2015 9/11 Review Commission report that found that the FBI’s Countering Violent Extremism Office’s “current limited budget and fundamental law enforcement and intelligence responsibilities do not make it an appropriate vehicle for the social and prevention role in the CVE mission…such initiatives are best undertaken by other government agencies.” Accordingly, Restore the Fourth asks that the FBI instead invest in evidence-based investigations that protect public safety and don’t unjustly stigmatize communities of color.
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.