Where would you draw the line between liberty and security?
Stephen Green writes: Here’s the setup.
San Bernardino killer Syed Rizwan Farook owned an iPhone 5c, which may have been used — probably was used — in planning and perhaps even executing the holiday party terror attack with his wife, Tashfeen Malik.
That iPhone 5c, just like any other up-to-do-date iOS or Android smartphone, has disc-level encryption baked into the OS for users who want that level of privacy, for good or for ill.
Yesterday,U.S. Magistrate Judge Sheri Pym ordered Apple to bypass the phone’s security functions, and furthermore “to provide related technical assistance and to build special software that would essentially act as a skeleton key capable of unlocking the phone.”
Here’s what happened next:
Hours later, in a statement by its chief executive, Timothy D. Cook, Apple announced its refusal to comply. The move sets up a legal showdown between the company, which says it is eager to protect the privacy of its customers, and the law enforcement authorities, who assert that new encryption technologies hamper their ability to prevent and solve crime.In his statement, Mr. Cook called the court order an “unprecedented step” by the federal government. “We oppose this order, which has implications far beyond the legal case at hand,” he wrote.
The Justice Department did not immediately respond publicly to Apple’s resistance.
The F.B.I. said its experts had been unable to access data on the iPhone 5c and that only Apple could bypass its security features. F.B.I. experts have said they risk losing the data permanently after 10 failed attempts to enter the password because of the phone’s security features.
The Justice Department had secured a search warrant for the phone, owned by Mr. Farook’s former employer, the San Bernardino County Department of Public Health, which consented to the search.
Because Apple declined to voluntarily provide, in essence, the “keys” to its encryption technology, federal prosecutors said they saw little choice but to get a judge to compel Apple’s assistance.
Mr. Cook said the order amounted to creating a “back door” to bypass Apple’s strong encryption standards — “something we simply do not have, and something we consider too dangerous to create.”
Security hawks are on solid ground when they worry (as I do) that Farook’s encrypted iPhone might contain data valuable to government efforts to stop future terror attacks on U.S. soil, or to aid intel efforts to locate, track, and kill Farook’s ISIS contacts overseas.
But that’s not the only worry, as Doug Mataconis explains:
From Apple’s point of view, there seem to be a myriad of issues motivating the decision to take what has the potential to be an unpopular decision given the circumstances of this case. First of all, there is the fact that ever since the company made the decision to strengthen security on its phones in a manner that essentially allows customers to encrypt data in a manner that makes it nearly impossible to access without the appropriate pass code, the concerns about data security have only become more prominent and that providing a backdoor that does not exist right now would only serve to make the data itself less secure overall. Second, as the Post article notes the use of the All Writs Act in this manner appears to be unprecedented and, if upheld, would essentially allow the government to do almost anything in the name of law enforcement and intelligence gathering. Finally, and perhaps most strongly, it’s important to note that law enforcement isn’t asking Apple to provide information that it already has, which is what an ordinary search warrant does. It is essentially asking a Federal Court to compel Apple to do something, in this case create a backdoor that does not exist. This arguably falls well outside the scope of the Fourth Amendment and, if upheld, would give law enforcement authority to compel technology companies to do almost anything conceivable in the name of a purported investigation or surveillance of a target. That seems to go well beyond what the Constitution and existing law permits law enforcement to do.
The FBI did not respond to a request for comment Monday.
WASHINGTON (Reuters) – Dustin Volz reports: The Federal Bureau of Investigation has used a secretive authority to compel Internet and telecommunications firms to hand over customer data including an individual’s complete web browsing history and records of all online purchases, a court filing released Monday shows.
The documents are believed to be the first time the government has provided details of its so-called national security letters, which are used by the FBI to conduct electronic surveillance without the need for court approval.
The filing made public Monday was the result of an 11-year-old legal battle waged by Nicholas Merrill, founder of Calyx Internet Access, a hosted service provider, who refused to comply with a national security letter (NSL) he received in 2004.
Merrill told Reuters the release was significant “because the public deserves to know how the government is gathering information without warrants on Americans who are not even suspected of a crime.”
National security letters have been available as a law enforcement tool since the 1970s, but their frequency and breadth expanded dramatically under the USA Patriot Act, which was passed shortly after the Sept. 11, 2001 attacks. They are almost always accompanied by an open-ended gag order barring companies from disclosing the contents of the demand for customer data. Read the rest of this entry »
The final vote divided Senate Republicans, with 23 voting ‘yes’ and 30 voting ‘no,’ and senators seeking re-election in 2016 split on the issue
WASHINGTON (AP) — Congress approved sweeping changes Tuesday to surveillance laws enacted after the Sept. 11 attacks, eliminating the National Security Agency’s disputed bulk phone-records collection program and replacing it with a more restrictive measure to keep the records in phone companies’ hands.
“This is a step in the wrong direction…does not enhance the privacy protections of American citizens. And it surely undermines American security by taking one more tool form our warfighters at exactly the wrong time.”
— Senate Majority Leader Mitch McConnell
Two days after Congress let the phone-records and several other anti-terror programs expire, the Senate’s 67-32 vote sent the legislation to President Barack Obama, who said he would sign it promptly.
“This legislation will strengthen civil liberty safeguards and provide greater public confidence in these programs,” Obama said in a statement. The bill signing could happen late Tuesday or early Wednesday, but officials said it could take at least several days to restart the collection.
The legislation will revive most of the programs the Senate had allowed to lapse in a dizzying collision of presidential politics and national security policy. But the authorization will undergo major changes, the legacy of agency contractor Edward Snowden‘s explosive revelations two years ago about domestic spying by the government.
“I applaud the Senate for renewing our nation’s foreign intelligence capabilities, and I’m pleased this measure will now head to the president’s desk for his signature.”
— House Speaker John Boehner
In an unusual shifting of alliances, the legislation passed with the support of Obama and House Speaker John Boehner, R-Ohio, but over the strong opposition of Senate Majority Leader Mitch McConnell. McConnell failed to persuade the Senate to extend the current law unchanged, and came up short in a last-ditch effort Tuesday to amend the House version, as nearly a dozen of his own Republicans abandoned him in a series of votes.
“This is a step in the wrong direction,” a frustrated McConnell said on the Senate floor ahead of the Senate’s final vote to approve the House version, dubbed the USA Freedom Act. He said the legislation “does not enhance the privacy protections of American citizens. And it surely undermines American security by taking one more tool form our warfighters at exactly the wrong time.”
“Power is not a means, it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship.”
— George Orwell
The legislation remakes the most controversial aspect of the USA Patriot Act — the once-secret bulk collection program that allows the National Security Agency to sweep up Americans’ phone records and comb through them for ties to international terrorists. Over six months the NSA would lose the power to collect and store those records, but the government still could gain court orders to obtain data connected to specific numbers from the phone companies, which typically store them for 18 months.
It would also continue other post-9/11 surveillance provisions that lapsed Sunday night, and which are considered more effective than the phone-data collection program. These include the FBI’s authority to gather business records in terrorism and espionage investigations and to more easily eavesdrop on suspects who are discarding cellphones to avoid surveillance.
In order to restart collection of phone records, the Justice Department will need to obtain a new order from the Foreign Intelligence Surveillance Court. Read the rest of this entry »
Forget the White House’s doomsday talk about American intelligence going blind. Thanks to backdoor provisions and alternate collection schemes, U.S. spies will keep on snooping.
“I don’t want us to be in a situation in which for a certain period of time those authorities go away and suddenly we’re dark, and heaven forbid we’ve got a problem where we could’ve prevented a terrorist attack or apprehended someone who was engaged in dangerous activity.”
— President Obama, to reporters on Friday
That argument is highly debatable—at least, in the short term. Not only does the U.S. government have all sorts of other ways to collect the same kind of intelligence outlined in the Patriot Act, but there’s also a little-noticed back door in the act that allows U.S. spy agencies to gather information in pretty much the same ways they did before.
“It does seem to me at least reckless to not allow at least a temporary continuation of the bill while we have this debate. But that’s not the way it’s working, and unfortunately I think it’s part of the presidential campaign, and I think people have to judge it for themselves.”
— Sen. John Cornyn (R-TX)
In other words, there’s a zombie Patriot Act—one that lives on, though the existing version is dead.
On Sunday night, senators voted overwhelmingly to end debate on a measure passed in the House, the USA Freedom Act, which will leave most surveillance authorities in the Patriot Act intact. But some of those powers won’t expire at least until Tuesday and possibly Wednesday. Administration officials had warned that even a momentary interruption posed a grave risk.
“I don’t want us to be in a situation in which for a certain period of time those authorities go away and suddenly we’re dark, and heaven forbid we’ve got a problem where we could’ve prevented a terrorist attack or apprehended someone who was engaged in dangerous activity,” Obama told reporters at the White House on Friday. On Sunday, CIA Director John Brennan said on CBS’s Face the Nation that there’d “been a little too much political grandstanding and crusading for ideological causes that have skewed the debate on this issue,” an apparent reference to Sen. Rand Paul, a Republican presidential candidate, and his promise to force the law to expire, “but these tools are important to American lives.”
They may be. But they are far from the only tools in the counterterrorism arsenal, and though they are no longer law as of Monday, the United States still has plenty of authority to collect intelligence on jihadis and foreign spies.
For starters, there will be what’s left of the Patriot Act itself. Read the rest of this entry »
Key Patriot Act provisions will expire at midnight
In addition to the bulk phone collections provision, the two lesser-known Patriot Act provisions that also lapse at midnight were one, so far unused, to helps track “lone wolf” terrorism suspects unconnected to a foreign power; the second allows the government to eavesdrop on suspects who continually discard their cellphones.
The Senate failed Sunday to strike a deal to extend the NSA’s phone surveillance program before the midnight deadline.
Members of the GOP-controlled chamber returned Sunday to Capitol Hill in a last-ditch effort to extend the National Security Agency’s authority to collect Americans’ phone records in bulk to search for terror connections and to authorize two other programs under the post-9/11 Patriot Act.
“Heaven forbid we’ve got a problem where we could have prevented a terrorist attack or apprehended someone who is engaged in dangerous activity, but we didn’t do so simply because of inaction in the Senate.”
— President Obama
The Senate attempted to either pass a House bill that would have altered the collections of the so-called phone call metadata or simply extend the program.
The 100-member chamber passed the first of two procedure hurdles, known as cloture, to proceed with the House bill. The vote was 77 to 17.
“The sky is not going to fall.”
— Anthony Romero, American Civil Liberties Union executive director
But no final action was expected before Sunday’s midnight deadline after Kentucky GOP Sen. Rand Paul served notice that he would assert his prerogatives under Senate rules to delay a final vote for several days.
“The people who argue that the world will come to an end and we will be over by jihadists (by not passing the bill) are using fear,” Paul, a 2016 presidential candidate, said on the Senate floor.
Still, the program is all but certain to be revived in a matter of days, although it also looks certain to be completely overhauled under the House-passed legislation that Senate Majority Leader Mitch McConnell reluctantly blessed in an about-face Sunday evening.
With most senators opposed to extending current law unchanged, even for a short time, McConnell said the House bill was the only option left other than letting the program die off entirely. The Kentucky Republican preferred extending the current law. Read the rest of this entry »
BREAKING NEWS – The Republican-led Senate blocked a House bill early Saturday that would have ended the National Security Agency’s bulk of collection on domestic phone records.
The vote was 57-42, short of the 60-vote threshold to move ahead. It leaves the fate of the key provisions in the Patriot Act in doubt with a June 1 deadline less than two weeks away.
The Senate also failed to advance a two-month extension of NSA programs as well. The vote also needed 60 votes to get to the Senate floor. The vote was defeated 54-45…(read more)
The Kentucky Republican’s speech, which began at 1:18 p.m., is not technically holding up any legislation because the Senate is actually currently debating a trade bill, but Mr. Paul said his move was a filibuster nonetheless, as he vowed to hold the floor until he couldn’t go any longer.
“It’s time to end the NSA spying,” his official Twitter account said in a post at 1:36 p.m., as he was on the floor.
In a ruling certain to profoundly shape the ongoing debate over surveillance reform in Congress, the U.S. Court of Appeals for the Second Circuit has ruled that the National Security Agency’s indiscriminate collection of Americans’ telephone calling records exceeds the legal authority granted by the Patriot Act’s controversial section 215, which is set to expire at the end of this month.
Comments Cato scholar Julian Sanchez, “While the court didn’t reach the crucial question of whether the program violates the Fourth Amendment, the ruling gives civil libertarians good reason to hope that a massive and egregious violation of every American’s privacy will finally come to an end.”
- “Second Circuit Declares NSA’s Telephone Dragnet Unlawful,” by Julian Sanchez
- “In Holding NSA Spying Illegal, the Second Circuit Treats Data as Property,” by Jim Harper
For NRO, A.J. Kritikos writes: On Friday afternoon, Kentucky senator Rand Paul spoke at Harvard’s Institute of Politics. Despite the libertarian and conservative arguments he put forth to the Cambridge audience, he was received warmly, though his more detailed legal arguments on national-security issues need some fine-tuning.
Senator Paul’s prepared remarks primarily addressed privacy and national-security issues, beginning, appropriately enough, by alluding to the Boston Tea Party. After describing how the British used general warrants to harass colonists, and the subsequent writings of James Otis on the topic that helped catalyze opposition to the Crown, Senator Paul addressed privacy concerns that have arisen since 9/11. The checks and balances required by the Constitution, in his view, have been partially abandoned in response to the threat of terrorism, highlighting the Patriot Act as an example.
That law was part of counterterrorism efforts responding to 9/11 that Paul characterized as being marked by “hysteria.” While the law certainly was enacted rapidly, suggesting that America has been hysterical in its pursuit of al-Qaeda and its associates seems more reminiscent of his father than the more mainstream image Senator Paul has sought to cultivate. Read the rest of this entry »
What happens when a secret U.S. court allows the National Security Agency access to a massive pipeline of U.S. phone call metadata, along with strict rules on how the spy agency can use the information?
The NSA promptly violated those rules — “since the earliest days” of the program’s 2006 inception — carrying out thousands of inquiries on phone numbers without any of the court-ordered screening designed to protect Americans from illegal government surveillance. Read the rest of this entry »
According to a breaking report from the UK Guardian, Barack Obama’s National Security Agency has been collecting phone records of millions of domestic customers of Verizon under a court order obtained in April. The order requires Verizon to turn over phone records on an “ongoing, daily basis” to the NSA, both within the US and between the US and international sources.
Update: The Electronic Frontier Foundation, which has long accused the government of this type of surveillance, says this action is being undertaken under a section of the Patriot Act, but is a clear overstep of the law’s requirement that it be targeted at individuals under some sort of suspicion in specific investigations:
“This confirms what we had long suspected,” says Cindy Cohn, an attorney at the Electronic Frontier Foundation (EFF), a civil liberties organization that has long accused the government of operating a secret dragnet surveillance program. “We’ve been suing over this since 2006.”
The order is based on Section 215 of the Patriot Act, which allows law enforcement to obtain a wide variety of “business records,” including calling records. EFF has long criticized Section 215, which sets a threshold for obtaining records much lower than the “probable cause” standard required to get a search warrant.
But Cohn argues that the kind of dragnet surveillance suggested by the Verizon order exceeds even the authority granted by the Patriot Act. “Section 215 is written as if they’re going after individual people based on individual investigations,” she says. In contrast, the order leaked to the Guardian affects “millions and millions of innocent people. There’s no way all of our calling records are relevant to a terrorism investigation.”
“I don’t think Congress thought it was authorizing dragnet surveillance” when it passed the Patriot Act, Cohn says. “I don’t think Americans think that’s OK. I would be shocked if the majority of congressmen thought it’s okay.”
Update: Obligatory flashback with soaring, beautifully worded hypocrisy.
Update: The other obligatory flashback to USA Today‘s reporting on what was presumably the same program, under the Bush administration, in 2006. This is separate from the warrantless wiretapping story, which got much more press. Greenwald’s court order is the first documentation of the practice continuing under Obama, despite the fact he was elected on promises to do pretty much the opposite:
The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.
The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.
“It’s the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA’s activities, declined to be identified by name or affiliation. The agency’s goal is “to create a database of every call ever made” within the nation’s borders, this person added.
For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.