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This page provides occasional items, linked to the original articles, as we attempt to keep up with the rapidly changing situation on civil liberties.
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Prophetic words from 2009’s Convention on Modern Liberty regarding the recent revelations about surveillance (and other civil liberties issues)

Posted by James Hammerton @ 7:24 pm on 27 July, 2013.
Categories privacy and surveillance, British politics, the database state, US politics.
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This article on Open Democracy summarises some comments made in 2009’s Convention on Modern Liberty (I took part in the Glasgow based sessions) that sound quite prophetic in light of recent revelations concerning the extent of surveillance of the internet and telephony systems.

Bulk metadata harvesting in US renewed

Posted by James Hammerton @ 8:08 pm on 26 July, 2013.
Categories privacy and surveillance, the database state, US politics.
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The bulk metadata harvesting by the NSA referred to in earlier articles, and due to expire on 19 July, was renewed by the FISA court, presumably for a further 3 months.

On the legality of the NSA’s alleged snooping

One question regarding the allegations that the NSA has been engaged in mass surveillance of people’s communications is to what extent is the alleged snooping legal?

With regards to the order requiring Verizon to hand over the metadata for millions of calls to the NSA, the US government has actively defended the policy (including President Obama himself), thus confirming the alleged snooping was occurring.

The Register reports:

A senior White House official has said that the US National Security Agency is perfectly correct to be downloading the mobile metadata every US caller, and politicians on both sides of the political divide have rallied to defend the practice.

The NSA’s policy – revealed on Wednesday in a leaked court order that the anonymous (no, not that Anonymous) source declined to confirm was real – was described as “a critical tool in protecting the nation from terrorist threats to the United States.”

“It allows counter-terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities,” the source said, “particularly people located inside the United States.”

Verizon’s general counsel Randy Milch said his company “continually takes steps to safeguard customer privacy,” but that it must comply with government regulations. In a blog post he pointed out that the leaked document shows the order forbids it to discuss the issue and safeguards the content of messages.

The article goes on to state:

The legality of the NSA actions is provided by Section 215 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act). The 363-page document was introduced on October 21 2001 and enacted into law three days later.

This allows such monitoring while not allowing the content of communications to be monitored in the same way – that kind of spying currently needs a court order.

Note that the USA PATRIOT Act amended the Foreign Intelligence Surveillance Act. Also the Register articles reports that the Verizon case is part of an ongoing operation running for 7 years, lending credence to the allegation of ongoing harvesting of metadata:

The actions of the NSA were “lawful,” said Senator Dianne Feinstein (D-CA), chair of the Senate Select Committee on Intelligence, the Washington Post reports. She said the leaked court order appears to be “the exact three-month renewal” of a seven-year operation.

However, that deals with the collection of metadata, whereas PRISM allegedly includes the content of communications. Again the US government response confirms the NSA has access to data from these companies.

Regarding the legality of PRISM, the Guardian published an article explaining how the Foreign Intelligence Surveillance Act (FISA), as amended in 2008, ends up permitting such surveillance. To summarise:

  • Originally, to listen in on someone’s phone calls or intercept emails, FISA required an individualised warrant with evidence showing probable cause that the target was an agent of a foreign power or terrorist organisation.
  • FISA was amended in 2008 to legalise the earlier warrantless surveillance that had been conducted in secret by the Bush administration. An individualised warrant is now only required if the target is a US citizen or the communications occur entirely within the US.
  • The amended FISA enables warrantless surveillance of the communications of anyone reasonably believed to be outside the US, with no requirement for there to be suspicion of their involvement on terrorism or any other criminal activity. Thus US citizens/residents communicating with people believed to be outside the US could find their communications under surveillance via this system.
  • Thus the claims from US government representatives that the NSA is not listening in on US citizens’ phone calls or reading US citizens’ emails are misleading if not outright false. Also it appears that those of us who are not US citizens and live elsewhere than the US can be surveilled at will by the NSA under this law.
  • The main oversight mechanism is this: The NSA draws up its general guidelines each year for deciding how to do this surveillance, which the FISA Court then has to approve, but thereafter the NSA is left to carry out it surveillance under those guidelines at its own discretion. Note that the FISA Court carries out its activities mostly in secret.
  • The only other oversight comes in the form of periodic reviews by the Dept Of Justice and Director of National Intelligence.

This leaves the question of whether the amended FISA is itself lawful/constitutional. However every attempt to contest the lawfulness of the amended FISA in light of the US constitution has been thwarted by the DOJ via claims of lack of standing, secrecy or immunity from prosecution.

In short this system seems to allow a lot of discretion, with a cover of secrecy more than sufficient to allow the levels of surveillance claimed in the Guardian’s leaks. Further the US govt has confirmed that they get surveillance data from the companies involved.

So what is the NSA’s net snooping alleged to entail?

Anyone with an interest in privacy who’s following the news will have noticed the recent furore over the US National Security Administration (NSA)’s snooping on people’s communications, especially under its PRISM programme and/or authorisations from the US Foreign Intelligence Service Court (FISC). As a prelude to more in-depth coverage of the issues involved, this article overviews the allegations that have been made about the NSA’s collection of data and the PRISM programme.

If true, the allegations suggest that the NSA has been engaged in mass surveillance of, at least, the communications between US residents and those located elsewhere in the world, including the content of communications going via major internet companies such as Facebook or Google and that this informaton has been shared with Britain’s GCHQ, possibly allowing them to circumvent the restrictions of British law (other revelations regarding GCHQ’s own activities are beyond the scope of this article). Also it is suggested the US may have been spying on its allies in Europe. The details of the allegations are below.

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Does Obama want to execute citizens secretly without judicial oversight?

Posted by James Hammerton @ 10:19 pm on 28 September, 2010.
Categories democracy and the rule of law, accountability, US politics.
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Glenn Greenwald writes:

At this point, I didn’t believe it was possible, but the Obama administration has just reached an all-new low in its abysmal civil liberties record. In response to the lawsuit filed by Anwar Awlaki’s father asking a court to enjoin the President from assassinating his son, a U.S. citizen, without any due process, the administration late last night, according to The Washington Post, filed a brief asking the court to dismiss the lawsuit without hearing the merits of the claims. That’s not surprising: both the Bush and Obama administrations have repeatedly insisted that their secret conduct is legal but nonetheless urge courts not to even rule on its legality. But what’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”: in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

The executive power to secretly execute citizens without any judicial oversight is surely the power of a tyranny rather than a constitutional republic. There would be no way of holding the POTUS accountable for his exercising of such power. It negates the rule of law.

Is the bill to rescind AIG bonuses a bill of attainder?

Posted by James Hammerton @ 12:29 pm on 21 March, 2009.
Categories democracy and the rule of law, US politics.
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According to Bloomberg.com:

Senator Judd Gregg, a New Hampshire Republican, predicted Congress’s efforts to rescind American International Group Inc.’s bonuses through higher taxes would be thrown out by the courts. He said the legislation before lawmakers violates the constitutional ban on bills of attainder, which restricts lawmakers’ ability to punish individual Americans.

“It’s basically targeted on a small group of people, which is technically a bill of attainder,” Gregg said.

See also: Wikipedia on “Bill of attainder”.

US media reports that Bush plans to make permanent some temporary erosions of US civil liberties

Posted by James Hammerton @ 9:28 pm on 21 August, 2008.
Categories privacy and surveillance, democracy and the rule of law, US politics.
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The Register reports:

US citizens could be investigated without just cause under a new plan from the Justice Department, while those who choose to leave the country will have their records kept for 15 years and available to any litigious attorney.

The Justice Department plan won’t be unveiled in detail until next month, but the New York Times is reporting that the plan will to allow the FBI to open an investigation into anyone without clear suspicion, and that’s got civil liberty groups understandably concerned.

Meanwhile the Department of Homeland Security has been quietly building a database of every border crossing by a US citizen, claims the Washington Post, and intends to hang onto the data for 15 years - foreigners will have their data stored for 75 years. All this information sits in a database which will be exempted from the 1974 Privacy Act, which would require individuals to be informed if lawmen request the data.

Both these moves are about solidifying temporary powers that were put into place following the terrorist attack in New York in September 2001, and doing so before Bush leaves office and is replaced by someone who may be less hard-line.

Freedom of speech roundup

There have been a number of freedom of speech related stories recently that I’ve only just got round to covering, ranging from the UN Human Rights Council’s recent decision to gather information about “abuses” of freedom of speech to a prominent British blog being sued by an individual connected to Hamas. All over the world it seems to me that freedom of speech is being attacked. The details of these recent stories can be found below:

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Loss of liberties in the US since 9/11

One of the things I’d like to do with this blog is to shift it towards being less UK-centric. This is difficult given the sheer volume of anti-civil liberties legislation being generated in the UK, but occasionally I do get a chance to cover some non-UK material. For example, this website is dedicated to documenting the loss of civil liberties in the USA since 9/11. I’ve not yet read it in detail but it may be of interest to readers wishing to catch up on the US situation and/or compare it to the UK or elsewhere.

Roundup: Freedom of speech

Posted by James Hammerton @ 10:23 pm on 9 February, 2008.
Categories political liberties, freedom of speech, British politics, US politics.
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Now for another round-up, this time on freedom of speech related stories of which there have been a fair number in recent months.

  • Back in October, the Pub Philosopher pointed out how Britain’s new religious hatred law is beginning to bite:

    A number of people have already posted about Father John Hayes, the priest who was interviewed by police on suspicion of inciting racial hatred, after he expressed views about religious dress and radical Muslims in his parish newsletter. Esmerelda wondered whether, given that Father Hayes’s comments were made over a year ago, someone was taking advantage of the new Religious Hatred Act to make their complaint.

    This may give a clue to the response of the police. Usually, the police would look at the evidence in a complaint and then decide whether they thought a crime might have been committed before taking any further action. The problem is, you can’t do that with the Religious Hatred Act.

    Read Section 29B. It says:

    A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.

    And you can’t work out what someone’s intention was without talking to them.

    To establish whether Father Hayes had broken the law, the police had to judge whether he was a rabid Muslim-hater, hell bent on stirring up a religious war, or a harmless parish priest engaging in theological debate. Presumably, the senior officer who picked up this case decided that the only way this could be done was by sending two coppers to interview Father Hayes.

    As I said last year, this is one of the most worrying aspects of the new law. It is up to the authorities to decide what they think you meant. They can, if they choose, infer meanings from your words that had never occurred to you when you wrote or said them.

    The letter which led to Father Hayes being interviewed can be found here.

    This shows how laws that restrict what people can say can be used to intimidate someone via the mere threat of a prosecution, by someone who might simply dislike what the person said. This can have just as big an effect on free speech as any actual convictions brought under the such laws and such threats can be used without the speech concerned necessarily being proscribed by such laws.

  • Apparently, it is illegal for pub landlords to put up signs saying “FAGGOTS & MINCE NOT ON THE MENU”.
  • (more…)

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