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On the legality of the NSA’s alleged snooping

Posted by James Hammerton @ 7:29 pm on 26 July, 2013.
Categories privacy and surveillance, the database state, accountability, US politics.
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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.

Manchester police ordered drivers with previous convictions to turn around.

Posted by James Hammerton @ 6:28 pm on 14 August, 2011.
Categories democracy and the rule of law, British politics, accountability.
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The Manchester Evening News reported:

Officers stationed on key routes into the city have been instantly checking registration plates of vehicles against a string of national databases. Known criminals have been intercepted and ordered to turn around.

On Wednesday evening alone, 50 vehicles were turned away from Manchester by officers determined to keep the streets trouble-free.

Chief Constable Peter Fahy told the M.E.N: “We were instructing anyone with a previous conviction that they had to leave the city. Quite a number of them had serious previous convictions.”

The policy will be repeated if trouble flares again.

Numerous points and questions can be raised over this:

  • What legal power do police have to tell someone to leave a city when there’s no evidence they are doing anything illegal or intend to do so?
  • Did they do this for any person with any conviction? Trivial or otherwise? Violent or otherwise? Spent or otherwise?
  • Surely anyone intent on riot would simply have gone to another venue, got a friend to give them a lift or returned in a different vehicle?
  • What about drivers using their spouse’s, parent’s or relative’s car? Would they have been turned away due to the owner of the car having a decade old conviction for petty theft?
  • Having a previous conviction does not mean one is intent on riot.
  • What if someoe turned away actually lived in the city and was trying to get home? What do the police expect them to do?

Constituents threatened with their children being taken away if they speak to their MPs!

[Hat tip: Anna Racoon via abelard]

See House of Commons Hansard Debates for 17 Mar 2011 (pt 0001):

John Hemming: …I will now look in more detail at Andrew France’s case. I have some of the documentation with me, including a county court order-for proceedings that have now completely ended, so it is a public document, and there is no issue of privilege. The document is there in the courts. In the recitals, it states:

“upon the first and second Respondents agreeing that they will make no further disclosure in respect of this matter to any third party, including in particular the media and John Hemmings MP.”

It is somewhat surprising that I am such a threat to the system that so much effort will go into stopping one of my constituents speaking to me. He was wrongly imprisoned on a made-up allegation of rape, so he went through a serious process. He won his criminal appeal but he complained about a social worker in the process, so the authorities decided to start proceedings in the family courts. Luckily, an excellent judge junked it in the bin, because it was transparently such nonsense, and everything ran smoothly for the family. However, my constituent was under no illusion that had he not agreed to those recitals in the court order, the council would have taken action-he was told-which would have been to apply for a care order taking his four-year-old daughter into care.

Mr Bacon: For the benefit of the House, can my hon. Friend clarify, in case anyone did not notice? Is he saying that a court order was made prohibiting a constituent from talking to him as a Member of Parliament?

John Hemming: Exactly.

Note: The family courts in England and Wales operate largely in secret, though some inroads have been made in recent years allowing some reporting to occur.

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.

Britons to be spied on, without judicial supervision, by foreign police

Posted by James Hammerton @ 2:12 pm on 26 July, 2010.
Categories privacy and surveillance, British politics, accountability, European Union politics.
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The Telegraph reports:

Theresa May, the Home Secretary, will today announce she plans to sign up to the so-called European Investigation Order (EIO), The Daily Telegraph understands.

It comes despite concerns by fair trial campaigners and has angered backbench Tories.

It raises the prospect of personal details of individuals being passed on without their knowledge in the most minor of cases, such as leaving a restaurant without paying.

Foreign police officers would also be able to come to the UK and work alongside police here in investigating individuals, although they would not have any powers of arrest.

The EIO is designed to help law enforcement agencies in EU states share information and be more effective in combating cross border crime.

But Fair Trials International (FTI) said it could result in disproportionate requests, such as demands for the DNA of plane loads of British holidaymakers following a murder in a resort they had visited.

A report by FTI said: “This could include requests to interview suspects or witnesses or obtain information in real time, by intercepting and monitoring telephone or email communications or by monitoring activity in bank accounts.

“States could also be required to obtain or analyse DNA samples or fingerprints and send the information to the issuing state within fixed deadlines.”

Police would not be able to argue that the request or alleged offence being investigated is disproportionate.

Previous examples of minor criminal offences already pursued around Europe include a carpenter who fitted wardrobe doors and then removed them when the client refused to pay him and the Polish authorities requesting the extradition of a suspect for theft of a dessert.

Big Brother Watch have also covered this issue. Note that there will be no judicial oversight and such surveillance may be performed for “crimes” which are not recognised in Britain.

Don’t leave your car window open…

Posted by James Hammerton @ 5:18 pm on 6 June, 2010.
Categories democracy and the rule of law, British politics, accountability.
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…in case it gets removed by the police and they demand £150 for its return.

If I tried to do what the police did here, it’d be regarded as theft now matter how insecure the car was. Which begs the question: Why should it not be regarded as theft when the police do it?

Interesting article on stop and search

Our Kingdom have written an excellent overview of the use of and legal battles over the stop and search powers from Section 44 of the Terrorism Act 2000.

Tory Peer in bid to limit officials’ right to entry homes « James Hammerton’s Blog

Tory Peer, Lord Selsdon, has launched a bill to limit the right of officials to enter homes. See my personal blog for more details.

New guidelines issued in using stop and search against photographers

Posted by James Hammerton @ 6:43 pm on 5 December, 2009.
Categories democracy and the rule of law, British politics, accountability, culture of suspicion.
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Is Britain’s war on photography going to ease? The Independent reports:

Police forces across the country have been warned to stop using anti-terror laws to question and search innocent photographers after The Independent forced senior officers to admit that the controversial legislation is being widely misused.

The strongly worded warning was circulated by the Association of Chief Police Officers (Acpo) last night. In an email sent to the chief constables of England and Wales’s 43 police forces, officers were advised that Section 44 powers should not be used unnecessarily against photographers. The message says: “Officers and community support officers are reminded that we should not be stopping and searching people for taking photos. Unnecessarily restricting photography, whether from the casual tourist or professional, is unacceptable.”

Total internet surveillance in Britain

Hat Tip: Samizdata

Britain’s slide into total surveillance will take another step soon as the Telegraph reports:

All telecoms companies and internet service providers will be required by law to keep a record of every customer’s personal communications, showing who they are contacting, when, where and which websites they are visiting.

Despite widespread opposition over Britain’s growing surveillance society, 653 public bodies will be given access to the confidential information, including police, local councils, the Financial Services Authority, the Ambulance Service, fire authorities and even prison governors.

They will not require the permission of a judge or a magistrate to access the information, but simply the authorisation of a senior police officer or the equivalent of a deputy head of department at a local authority.

Ministers had originally wanted to store the information on a massive Government-run database, but chose not to because of privacy concerns.

However the Government announced yesterday it was pressing ahead with privately-held “Big Brother” databases which opposition leaders said amount to “state-spying” and a form of “covert surveillance” on the public.

It is doing so despite its own consultation showing there is little public support for the plans.

Yet again, the government sets up a scheme of mass indiscriminate surveillance, yet again access to the information is given to numerous public bodies, with officials able to use them on their own authority and without any need for a warrant.

The Stasi would be proud of this sort of thing. Britain is becoming increasingly like a hi-tech version of East Germany.

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