U.S. Supreme Court backs Government Spying of Citizens

AP | FEBRUARY 26, 2013

A sharply-divided Supreme Court on Tuesday threw out an attempt by U.S. citizens to challenge the expansion of a surveillance law used to monitor conversations of foreign spies and terrorist suspects.

With a 5-4 vote, the high court ruled that a group of American lawyers, journalists and organizations can’t sue to challenge the 2008 expansion of the Foreign Intelligence Surveillance Act (FISA) because they can’t prove that the government will monitor their conversations along with those of potential foreign terrorist and intelligence targets.

The outcome was the first in the current Supreme Court term to divide along ideological lines, with the conservative justices prevailing.

Justices “have been reluctant to endorse standing theories that require guesswork,” said Justice Samuel Alito, who wrote for the court’s majority.

The Foreign Intelligence Surveillance Act, or FISA, was enacted in 1978. It allows the government to monitor conversations of foreign spies and terrorist suspects abroad for intelligence purposes. The 2008 FISA amendments allow the government to obtain from a secret court broad, yearlong intercept orders, raising the prospect that phone calls and emails between those foreign targets and innocent Americans in this country would be swept under the umbrella of surveillance.

Without proof that the law would directly affect them, Americans can’t sue, Alito said in the ruling.

Despite their documented fears and the expense of activities that some Americans have taken to be sure they don’t get caught up in government monitoring, they “have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted,” he added.

Alito also said the FISA expansion merely authorizes, but does not mandate or direct, the government monitoring. Because of that, he said, “respondents’ allegations are necessarily conjectural. Simply put, respondents can only speculate as to how the attorney general and the Director of National Intelligence will exercise their discretion in determining which communications to target.”

Alito was joined in his decision by Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas.

Justice Stephen Breyer, writing in dissent, said that he would have allowed the lawsuit to move forward because he thinks “the government has a strong motive to listen to conversations of the kind described.”

“We need only assume that the government is doing its job (to find out about, and combat terrorism) in order to conclude that there is a high probability that the government will intercept at least some electronic communication to which at least some of the plaintiffs are party,” Breyer said. “The majority is wrong when it describes the harm threatened plaintiffs as “speculative,” Breyer said.

He was joined in his dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Jonathan Hafetz, an expert on national security and privacy issues who teaches at Seton Hall University’s law school, said, “The decision effectively insulates the government’s increasingly broad surveillance powers from meaningful court review, threatening constitutional liberties in the name of secrecy and security.” Hafetz used to work for the American Civil Liberties Union, which represented the plaintiffs in the lawsuit.

A federal judge originally threw out the lawsuit, saying the plaintiffs lacked standing to sue. But the 2nd U.S. Circuit Court of Appeals reinstated the lawsuit. The Supreme Court was not considering the constitutionality of the expansion, only whether lawyers could file a lawsuit to challenge it in federal court.

Alito re-emphasized that point, saying the decision did not insulate the FISA expansion from judicial review, and he suggested a couple of ways a challenge could be brought to court, including a scenario in which an American lawyer actually did get swept up in FISA monitoring.

“It is possible that the monitoring of the target’s conversations with his or her attorney would provide grounds for a claim of standing on the part of the attorney,” Alito said. “Such an attorney would certainly have a stronger evidentiary basis for establishing standing than do respondents in the present case.”

 

Advertisement

U.S. Law Enforcement asks Congress for Permission to Spy on citizens years after doing so illegally

State and local law enforcement groups want wireless providers to store detailed information about your SMS messages for at least two years — in case they’re needed for future criminal investigations.

By DECLAN McCULLAGH | CNET.com | DECEMBER 4, 2012

AT&T, Verizon Wireless, Sprint, and other wireless providers would be required to record and store information about Americans’ private text messages for at least two years, according to a proposal that police have submitted to the U.S. Congress.

CNET has learned a constellation of law enforcement groups has asked the U.S. Senate to require that wireless companies retain that information, warning that the lack of a current federal requirement “can hinder law enforcement investigations.”

They want an SMS retention requirement to be “considered” during congressional discussions over updating a 1986 privacy law for the cloud computing era — a move that could complicate debate over the measure and erode support for it among civil libertarians.

As the popularity of text messages has exploded in recent years, so has their use in criminal investigations and civil lawsuits. They have been introduced as evidence in armed robbery, cocaine distribution, and wire fraud prosecutions. In one 2009 case in Michigan, wireless provider SkyTel turned over the contents of 626,638 SMS messages, a figure described by a federal judge as “staggering.”

Chuck DeWitt, a spokesman for the Major Cities Chiefs Police Association, which represents the 63 largest U.S. police forces including New York City, Los Angeles, Miami, and Chicago, said “all such records should be retained for two years.” Some providers, like Verizon, retain the contents of SMS messages for a brief period of time, while others like T-Mobile do not store them at all.

Along with the police association, other law enforcement groups making the request to the Senate include the National District Attorneys’ Association, the National Sheriffs’ Association, and the Association of State Criminal Investigative Agencies, DeWitt said.

“This issue is not addressed in the current proposal before the committee and yet it will become even more important in the future,” the groups warn.

That’s a reference to the Senate Judiciary committee, which approved sweeping amendments to the Electronic Communications Privacy Act last week. Unlike earlier drafts, the latest one veers in a very privacy-protective direction by requiring police to obtain a warrant to read the contents of e-mail messages; the SMS push by law enforcement appears to be a way to make sure it includes one of their priorities too.

Read Full Article →

New Zealand Apologizes for Illegal Domestic Spying

Meanwhile the United States continues to snoop on everyone and doesn’t even admit it.

By TREVOR TIMM | EFF | OCTOBER 9, 2012

Imagine this: A government, faced with public evidence that its foreign spy service was conducting domestic surveillance on its residents—instead of claiming the information is somehow secret and the people responsible are above the reach of the law—admits in public and in the courtroom that it violated basic rights.

That is exactly what happened last week in New Zealand in the controversial copyright infringement case surrounding Megaupload and its founder Kim Dotcom. At the same time in the US, the government is faced a very similar scenario: overwhelming evidence the National Security Agency (NSA) has illegally spied on Americans. However, not only has the government refused to admit any wrongdoing, it is actively trying to prevent courts from coming to any conclusions.

As EFF has previously reported, the case against Megaupload and Dotcom has been controversial from the start. Dotcom was arrested in New Zealand, while the U.S. government seized Megaupload’s property and executed search warrants on its leased servers based on claims of alleged copyright infringement the day after SOPA was declared dead by Congress. The military-style raid by the New Zealand police was criticized as over-excessive. And the loss of access to the servers has left many innocent users without access to their lawful data.

Then in June, the High Court in New Zealand ruled the warrants executed for the raid in New Zealand were invalid, making the resulting searches and seizures “illegal.” Now add that to the recent news that the Government Communications Security Bureau (GCSB)—New Zealand’s equivalent to the NSA—was illegally spying on Dotcom by monitoring all Internet traffic coming to and from his home.  (The GCSB is legally barred some spying on residents of New Zealand, and a cursory check of government records shown Dotcom has been an official resident since 2010.)

Read Full Article →

Google Warning Users against State-sponsored Cyber attacks

This move by the technology giant shouldn’t be understood as an attempt to keep user information safe. Google, a government-sponsored data mining operation is perhaps the largest violator of privacy on the Internet.

By JOHN ROGIN | FOREIGN POLICY | JUNE 6, 2012

A senior Senate aide confirmed that this evening he received a warning on his Gmail account that Google suspected he had been the target of a state-sponsored cyber attack.

Web giant Google is about to announce a new warning informing Gmail users when a specific type of attacker is trying to hijack their accounts — governments and their proxies.

Later today, the company will announce a new warning system that will alert Gmail users when Google believes their accounts are being targeted by state-sponsored attacks. The new system isn’t a response to a specific event or directed at any one country, but is part and parcel of Google’s recent set of policy changes meant to allow users to protect themselves from malicious activity brought on by state actors. It also has the effect of making it more difficult for authoritarian regimes to target political and social activists by hacking their private communications.

“We are constantly on the lookout for malicious activity on our systems, in particular attempts by third parties to log into users’ accounts unauthorized. When we have specific intelligence-either directly from users or from our own monitoring efforts-we show clear warning signs and put in place extra roadblocks to thwart these bad actors,” reads a note to users by Eric Grosse, Google’s vice president for security engineering, to be posted later today on Google’s Online Security blog, obtained in advance by The Cable. “Today, we’re taking that a step further for a subset of our users, who we believe may be the target of state-sponsored attacks.”

When Google’s internal systems monitoring suspicious internet activity, such as suspicious log-in attempts, conclude that such activities include the involvement of states or state-backed initiatives, the user will now receive the specialized, more prominent warning pictured above. The warning doesn’t necessarily mean that a user’s account has been hijacked, but is meant to alert users that Google believes a state sponsored attack has been attempted so they can increase their security vigilance.

Google wants to be clear they are not singling out any one government for criticism and that the effort is about giving users transparency about what is going on with their accounts, not about highlighting the malicious actions of foreign states.

“If you see this warning it does not necessarily mean that your account has been hijacked. It just means that we believe you may be a target, of phishing or malware for example, and that you should take immediate steps to secure your account,” Grosse writes. “You might ask how we know this activity is state-sponsored. We can’t go into the details without giving away information that would be helpful to these bad actors, but our detailed analysis-as well as victim reports-strongly suggest the involvement of states or groups that are state-sponsored.”

Google insiders told The Cable that Google will not be giving out information on which governments it sees as the most egregious violators of web privacy.  For Google, the new initiative is not an effort against governments but a way to help its users help defend and protect themselves.

Users who click through the new warning message will be directed to a page that outlines commonly seen security threats and suggests ways users can immediately raise their level of security on Gmail.

“We’re constantly working to prevent harmful activity on our services, especially attempts to compromise our users’ information,” the insider said. “The primary message is: we believe that you’re a target so you should take immediate steps to protect your account.”

The new announcement comes only days after the company said they would alert users in mainland China when they use search terms that are likely to be censored by the Chinese government. According to another of Google’s official blogs, that move was meant to improve the search experience for Chinese users by allowing them to avoid terms that would result in stalls or breaks in their search experience due to government filters.

For example, Google said that Chinese users searching the character for “river,” which is “jiang” in Chinese, causes technical problems. The same character is also used in the search for former Chinese President Jiang Zemin.

Google didn’t specifically mention Chinese censorship in its notice about Chinese search terms, apparently in an effort not to antagonize the Chinese government any more than necessary. Google and Beijing have been at odds since 2010, when the company announced it would no longer censor search terms on the Google.cn and moved the bulk of its Chinese operations to Hong Kong.

That move followed a series of Gmail attacks in 2010, directed at Chinese human rights activists, which were widely suspected to be linked to the Chinese government. Following those attacks, the government-controlled People’s Daily publicly accused Google of being an agent for U.S. intelligence agencies.

While last week’s announcement and this week’s announcement are both being presented by Google as user based initiatives not directed at foreign governments, Google CEO Eric Schmidt has been speaking out publicly and forcefully in recent months about the potential negative role governments can play in circumventing internet freedom.

“While threats come from individuals and even groups of people, the biggest problem will be activities stemming from nations that seek to do harm,” he said in London last month.

US Police can Search Cell Phones without Warrant

by Jay Gormley
CBS
March 7, 2012

Think about all the personal information we keep in our cell phones: It’s something to consider after the U.S. Court of Appeals for the 7th Circuit ruled it is now legal for police to search cell phones without a warrant.

Former Dallas FBI Agent Danny Defenbaugh said the ruling gives law enforcement a leg up. “I think not only will it help them, but it could be life saving,” said the former Special Agent, who was based in Dallas.

The decision stems from an Indiana case where police arrested a man for dealing drugs. An officer searched the suspect’s cell phone without warrant.

The judge in the appeal case, Judge Richard Posner, agreed that the officer had to search the phone immediately or risk losing valuable evidence. Judge Posner ruled it was a matter of urgency, arguing it was possible for an accomplice to wipe the phone clean using a computer or other remote device.

Defenbaugh says the ruling takes into account exigent or time-sensitive circumstances that could be life saving in more urgent cases, such as child abduction. ”If the child is alive and you’re only minutes behind, that could be critical to recovering that child alive,” added Defenbaugh.

Paul Coggins is the former U.S. Attorney for the Northern District of Texas. Coggins says the court’s ruling pushes the envelope on privacy issues. Judge Posner ruled that the search was legal because the officer conducted a limited search and only looked for a phone number associated with the alleged drug deal.

However, Coggins wonders if it opens the door to more extensive searches down the road. “Does that mean officers now have the right to search through your phone, search through your search history, your photographs, your e-mails and the rest, because it could all be wiped clean,” Coggins asked.

Many critics are asking the same question. They call the ruling an invasion of privacy that far outweighs the needs of law enforcement.

Both Defenbaugh and Coggins agree that the case is likely to go to the U.S. Supreme court.