The Obama Administration white paper argues NSA domestic surveillance is lawful

The Obama administration released a white paper outlining its legal argument for why the Patriot Act Section 215 authorizes the NSA to collect all Americans' telephone records.

"This white paper explains the Government’s legal basis for an intelligence collection program under which the Federal Bureau of Investigation (FBI) obtains court orders directing certain telecommunications service providers to produce telephony metadata in bulk. The bulk metadata is stored, queried and analyzed by the National Security Agency (NSA) for counterterrorism purposes.

The Foreign Intelligence Surveillance Court (“the FISC” or “the Court”) authorizes this program under the “business records” provision of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1861, enacted as section 215 of the USA PATRIOT Act (Section 215). The Court first authorized the program in 2006, and it has since been renewed thirty-four times under orders issued by fourteen different FISC judges.

This paper explains why the telephony metadata collection program, subject to the restrictions imposed by the Court, is consistent with the Constitution and the standards set forth by Congress in Section 215. Because aspects of this program remain classified, there are limits to what can be said publicly about the facts underlying its legal authorization. This paper is an effort to provide as much information as possible to the public concerning the legal authority for this program, consistent with the need to protect national security, including intelligence sources and methods."

The government also released a NSA memo discussing the agency's program.

Privacy law scholars have filed a series of amicus briefs challenging the NSA domestic surveillance program:

The nation's leading privacy law scholars have filed a series of amici briefs with the U.S. Supreme Court supporting EPIC's challenge to the NSA domestic surveillance program. A brief by privacy and surveillance law professors argues that the bulk collection of telephone metadata is unlawful under the Patriot Act.

Their brief explains that the program violates the Foreign Intelligence Surveillance Act and the Executive Order governing intelligence operations. A brief by former Church Committee members and twenty-eight law professors, submitted by constitutional expert Erwin Chemerinsky, outlines the history of domestic surveillance abuses and explains that the FISA was enacted specifically to limit such collection.

Another brief by Fourth Amendment experts at the Cato Institute argues that the Verizon Order is equivalent to a "general warrant" issued in violation of the Fourth Amendment, and that the Supreme Court's recent decision in United States v. Jones shows that "EPIC has a legal and constitutional interest in data about its telephone calls." Finally, a brief filed by Professors James Pfander and Stephen Vladeck, leading experts in federal courts, argues that the Supreme Court has jurisdiction to grant EPIC's petition and that the legal question is properly before the Court.

The lies aren't what makes Obama's NSA stance so awful:

The key paragraph in the 22 page white paper occurs in a discussion of what Congress meant in section 215 of the Patriot Act, which authorizes the Foreign Intelligence Surveillance Court to issue an order for the "production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism.” The Government’s application for an order must include “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” In its white paper, the administration cites a series of cases involving the discovery of documents in “ordinary civil discovery and criminal and administrative investigations” and says the standard of relevance under Section 215 should be “at least as broad.” Then comes the crucial hedging paragraph:

To be sure, the cases that have been decided in these contexts do not involve collection of data on the scale at issue in the telephony metadata collection program, and the purpose for which information was sought in these cases was not as expansive in scope as a nationwide intelligence collection effort designed to identify terrorist threats. While these cases do not demonstrate that bulk collection of the type at issue here would routinely be permitted in civil discovery or a criminal or administrative investigation, they do show that the “relevance” standard affords considerable latitude, where necessary, and depending on the context, to collect a large volume of data in order to find the key bits of information contained within.

Far from authorizing the warrantless fishing expeditions into millions of records, Congress in amending Section 215 meant explicitly to forbid what the Justice Department now seeks to justify. As the Electronic Privacy Information Center notes in a brief filed last week with the Supreme Court, both Congressional supporters and opponents of Section 215 explicitly interpreted the “relevance” language to limit bulk collection of data, not to permit it. On July 17, during a House judiciary committee hearing, Representative James Sensenbrenner, the author of section 215, said that Congress amended the law in 2006 to impose the relevance requirement in “an attempt to limit what the intelligence community could be able to get pursuant to Section 215.” And during the debate over the 2006 amendments, Sen. Ron Wyden and others stressed that the relevance standard would address “concerns about government ‘fishing expeditions."

The government’s practice of collecting data on hundreds of billions of calls each year and then later, unilaterally, deciding what is actually relevant (fewer than 300 last year) is not permitted by section 215.  Moreover, given the scope of material covered by section 215, if it were permitted, it would allow the government to sweep up almost any data on the basis that some of it might prove relevant later. For example, the argument, if accepted, would allow the government to seize billions of medical records or book or library records without a warrant—the textbook definition of an unconstitutional fishing expedition. The White Paper’s attempt to disavow this possibility boils down to: trust us. Here is the legalese: “This conclusion does not mean that the scope of Section 215 is boundless and authorizes the FISC to order the production of every type of business record in bulk—including medical records or library or book sale records, for example,” the White Paper notes.

“Although there could be individual contexts in which the Government has an interest in obtaining medical records or library records for counterterrorism purposes, these categories of data are not in general comparable to communications metadata as a means of identifying previously unknown terrorist operatives or networks.” In other words, we don’t think bulk collection of medical records is necessary to stop terrorism, but if we did, we could collect it.
http://www.newrepublic.com/article/114276/obama-surveillance-comments-dishonesty-isnt-only-problem

Obama's appointment of James Clapper to independently review the NSA's spying is Bu**sh*t:

Obama appointed James Clapper to head the “independent group” of “outside experts”.

Clapper is the same guy who lied to Congress about spying … falsely claiming that the government wasn’t spying on the American people. He subsequently apologized to Congress for lying.

And – as the Director of National Intelligence – Clapper is the U.S. spy-in-chief.
EmptyWheel notes:

Neither Obama nor the Intelligence Committees get to hear from this Group themselves. It all goes through James Clapper.

When the government announced the Clapper 'review,' it offered us this quote from the perjurer himself, describing what his 'review group' sets out to do:
The review group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust.

Read that sentence very carefully. Completely absent from the passage is any reference to the legality, democratic compatibility, or constitutionality of the surveillance programs.

Not only is the fox set to investigate the incident at the hen house. He has told us up front that the programs' impact on civil liberties is not even up for discussion. Instead, the review will assess whether US surveillance programs are thorough enough, and whether they'll continue ‘advanc[ing] our foreign policy’ interests amidst 'the risk of unauthorized disclosure.' (This, I imagine, is code for: How can we keep these programs secret so as not to thoroughly piss off our allies?) 

Instead of looking at the ways in which his spy programs kill democracy and obliterate any possibility for political freedom, Clapper admits at the outset that his 'review group' will seek to determine whether and how the intelligence agencies can keep a tighter lid on their global surveillance operations.

TechDirt notes:

[Obama] asking Clapper to first create and set up this “outside” and “independent” review group… and then to have the group report its findings back to Clapper. The same strong defender of the program who flat out lied to Congress about it. If this was about “restoring the trust” of the American people that the government isn’t pulling a fast one over on them, President Obama sure has a funny way of trying to rebuild that trust. This seems a lot more like giving the concerns of the American public a giant middle finger.

Will Wheaton tweets: 

President Obama putting Clapper in charge of the NSA commission *that reports back to Clapper* is a giant Fuck You to America.

The government does the same thing every time it gets caught with its pants down: appoints a commission comprised of insiders the government can trust to implement damage control and deflect political pressure.

It happened with the attacks at Pearl Harbor, the Iran-Contra scandal, the financial crisis, 9/11, and many other political scandals.

For example – as explored in the book The Commission by respected journalist Philip Shenon – the Executive Director of the 9/11 Commission was an administration insider whose area of expertise is the creation and maintenance of “public myths” thought to be true, even if not actually true. He wrote an outline of what he wanted the report to say very early in the process, controlled what the Commission did and did not analyze, then limited the scope of the Commission’s inquiry so that the overwhelming majority of questions about 9/11 remained unasked (see this article and this article).
http://www.washingtonsblog.com/2013/08/obama-appoints-fox-to-investigate-spying-henhouse.html 
http://privacysos.org/node/1144

Senate Intelligence Committee won't declassify NSA documents to the public:

Washington, D.C. -  Outspoken members of the Senate Intelligence Committee have said frequently that they wanted to warn the public about the National Security Agency’s sweeping collection of telephone records but the program’s highly classified nature prevented them from making public reference to the programs. 

That, however, is not the full story. Buried in the pages of Senate Resolution 400, which established the Senate Select Committee on Intelligence in 1976, is a provision that allows them to try. Across those nearly 40 years, it’s never been used.

The committee’s failure to make use of the provision even once, critics say, underscores a problem with congressional oversight: Congress has proved unwilling to openly question the intelligence agencies’ claims that something must remain secret. 

“Clearly, there are some secrets that the government should protect. So it’s serious business,” said former Democratic U.S. Rep. Lee Hamilton, a former chairman of the House Intelligence Committee who co-chaired the government’s investigation of 9/11. “But . . . Congress has been, I think, far too deferential to the president in letting him control the classification system.”

The irony of that deference has been on display for the past two months as Congress debates whether the NSA’s collection of domestic telephone metadata goes beyond what Congress intended when it passed the USA Patriot Act in the wake of the Sept. 11, 2001, terrorist attacks: The debate became possible only because a former NSA contractor, Edward Snowden, who now faces criminal charges, leaked a secret order from the Foreign Intelligence Surveillance Court authorizing the program.

Read more here: http://www.mcclatchydc.com/2013/08/12/199122/senate-intelligence-panel-could.html#.UgoxYpTD-Uk#storylink=cpy
Steven Aftergood, the director of the Federation of American Scientists’ Project on Government Secrecy, calls the committee’s failure to take the initiative to declassify records "frustrating and disappointing."“It is an authority that Congress could exercise and take responsibility for,” he said. But he said it wasn’t part of what he called "their conscious tool kit."
http://www.mcclatchydc.com/2013/08/12/199122/senate-intelligence-panel-could.html#.UgoxYpTD-Uk

Why every company should oppose government spying:

Google, Yahoo, Microsoft and others are pleading with the government to allow them to explain details of what information they provided in response to National Security Letters and other government demands. They've lost the trust of their customers, and explaining what they do -- and don't do -- is how to get it back. The government has refused; they don't care.

It will be the same with you. There are lots more high-tech companies who have cooperated with the government. Most of those company names are somewhere in the thousands of documents that Edward Snowden took with him, and sooner or later they'll be released to the public. The NSA probably told you that your cooperation would forever remain secret, but they're sloppy. They'll put your company name on presentations delivered to thousands of people: government employees, contractors, probably even foreign nationals. If Snowden doesn't have a copy, the next whistleblower will.

This is why you have to fight. When it becomes public that the NSA has been hoovering up all of your users' communications and personal files, what's going to save you in the eyes of those users is whether or not you fought. Fighting will cost you money in the short term, but capitulating will cost you more in the long term.

Already companies are taking their data and communications out of the US.

The extreme case of fighting is shutting down entirely. The secure e-mail service Lavabit did that last week, abruptly. Ladar Levison, that site's owner, wrote on his homepage: "I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision."

The same day, Silent Circle followed suit, shutting down their email service in advance of any government strong-arm tactics: "We see the writing the wall, and we have decided that it is best for us to shut down Silent Mail now. We have not received subpoenas, warrants, security letters, or anything else by any government, and this is why we are acting now." I realize that this is extreme. Both of those companies can do it because they're small. Google or Facebook couldn't possibly shut themselves off rather than cooperate with the government. They're too large; they're public. They have to do what's economically rational, not what's moral.

Journalism professor Jeff Jarvis recently wrote in The Guardian: "Technology companies: now is the moment when you must answer for us, your users, whether you are collaborators in the US government's efforts to 'collect it all' -- our every move on the internet or whether you, too, are victims of its overreach."

So while I'm sure it's cool to have a secret White House meeting with President Obama -- I'm talking to you, Google, Apple, AT&T, and whoever else was in the room -- resist. Attend the meeting, but fight the secrecy.
http://www.theatlantic.com/technology/archive/2013/08/the-nsa-is-commandeering-the-internet/278572/