NSA surveillance opponents take to courts and Congress in push for change

A federal judge has ordered the NSA to cease collecting phone records on the plaintiffs of an anti-surveillance suit, reaffirming an earlier ruling. Judge Richard Leon found that so-called bulk collection likely violates the Fourth Amendment, calling it "a sweeping and truly astounding program that targets millions of Americans arbitrarily and indiscriminately." It's a definitive legal victory for privacy advocates, albeit one that won't have much direct effect on the program.

Leon's order revisited Klayman v. Obama, a civil liberties case filed after Edward Snowden released evidence of mass phone surveillance. Leon ruled on the case in late 2013, saying that the program was probably unconstitutional. He issued a temporary injunction against collecting metadata on the case's plaintiffs, but he stayed it until the government could appeal the decision. The ruling, however, didn't hold. Like several similar lawsuits, Klayman couldn't conclusively say that the people involved were actually under surveillance, because the scope of the program remains unknown. Nearly two years after Leon's decision, DC appeals court overturned it and sent the case back.

The Court of Appeals for the District of Columbia has overturned an injunction against the US government's phone surveillance program. Today, the court handed down a decision in Klayman v. Obama, a lawsuit arguing that the NSA's mass collection of phone records is unconstitutional. It found that there was not enough evidence that the lawsuit's subjects were actually under surveillance, reversing a decision made in late 2013.

The court didn't address whether the surveillance program was legal or constitutional. Instead, it concluded that the case's subjects lacked standing to bring a complaint at all, because they were unable to demonstrate that they'd suffered harm. The secrecy of US surveillance programs has made it almost impossible to prove that a specific person or organization was subject to them, so Klayman and other recent cases have relied on leaked documents from Edward Snowden, particularly a court order requiring Verizon Business Services to hand over metadata on all its customers' calls.

The Senate has passed the USA Freedom Act, which would resurrect a more restrained version of government surveillance powers. The USA Freedom Act was created to rein in Section 215 of the Patriot Act, which had allowed the government to (among other things) collect huge swathes of phone records from companies like Verizon. A version of the USA Freedom Act was passed by the House of Representatives in May, but the Senate has been unable to pass it until now, one day after Section 215 expired. This time, the bill passed with a vote of 67 for to 32 against.

The USA Freedom Act, proposed after Edward Snowden revealed the phone records program in a series of leaked documents, has had a difficult time making it through Congress. An earlier version passed the House, but not the Senate, and the latest iteration faced stiff opposition as Section 215's expiration approached. In fact, the Senate voted it down again last week. It was brought back after a simple extension of the Patriot Act provisions, proposed by Senate Majority Leader Mitch McConnell (R-KY), failed.

After a late Senate vote after midnight on Friday, the NSA is starting to take moves to shut down its bulk surveillance programs. With the legal foundation of those programs, the Patriot Act, set to expire at the end of the month, lawmakers have been working to agree on which parts of the mass surveillance systems should stay and which should go. The Senate failed to pass a replacement bill, the USA Freedom Act, and another measure proposed by Senate Majority Leader McConnell (R-KY) to extend the program as-is also did not pass.

In response to the news, officials said that the NSA would have to start taking action to prepare to shut down its bulk surveillance programs, like those that controversially collect "metadata" on millions of phone calls. According to The Los Angeles Times, an official now says that "that process has begun." If Congress can't agree to either limit or renew the Patriot Act, the NSA will have to end its programs that rely on the broad language of that bill, which was originally passed in the aftermath of the September 11th attacks.

In a midnight session, the Senate has voted down the USA Freedom Act, putting one of the legal bedrocks of the NSA's bulk surveillance programs into jeopardy. The Patriot Act is set to expire at the end of the month, and the USA Freedom Act would have extended large portions of the act in modified form. Tonight's failure to arrive at a vote makes it likely that many of those powers will automatically expire, although Senate Majority Leader McConnell (R-KY) scheduled a last-minute session on May 31st for one last shot at passing the bill.

In particular, the USA Freedom Act would have modified the Section 215 of the Patriot Act, a clause that allows the FBI to secretly order the collection of "tangible things" that could help in a national security investigation. Since its passage, Section 215 has been interpreted loosely — and likely illegally — by intelligence agencies. As whistleblower Edward Snowden revealed in 2013, the definition of both "tangible things" and "investigation" was broad enough to let NSA build a large database of American phone records for an ongoing, expansive national security effort.

A federal court has made a limited ruling against the NSA's mass collection of phone records. In a filing posted today, the Second Circuit Court of Appeals writes that the phone records program "exceeds the scope of what Congress has authorized," overturning a decision from 2013.

The court took issue with the program's secrecy — it's reviewed only internally, by a court whose decisions are secret — and with the administration's claim that Congress didn't intend to let its targets bring complaints. If a huge number of lawsuits could disrupt national security operations, it's only because of "the existence of orders authorizing the collection of data from millions of people," the ruling says. And it brings up one of the biggest criticisms of the program: that it's too vague and sweeping to be justified by Section 215. "Such an expansive concept of 'relevance' is unprecedented and unwarranted," writes Lynch. "The sheer volume of information sought is staggering."

Britain's GCHQ violated human rights by accessing intelligence from the NSA's mass surveillance programs, a UK court ruled today, though the agency is now considered compliant after disclosing details of the arrangement late last year. In a ruling handed down Friday morning, the Investigatory Powers Tribunal (IPT) said the GCHQ, Britain's NSA-equivalent, violated rights to privacy and free speech under an intelligence sharing arrangement that allowed it to access data from the NSA's PRISM and upstream surveillance programs.

The IPT is the only court with the authority to oversee the GCHQ and Britain's other intelligence services. This marks the first time in its 15-year history that the tribunal has ruled against an intelligence and security agency.

The Electronic Frontier Foundation (EFF) has been campaigning for years to get the US government to disclose vague, secretive details of how it's using the controversial USA PATRIOT Act, a sweeping package of surveillance laws first passed in 2001. Last year's waterfall of leaks brought to light many of those details against the government's will, but many specifics remain tightly under wraps — despite the public outcry that has swelled in the months since and concerted efforts from public interest groups, backed by FOIA requests.

A new development in the EFF's lawsuit against the Department of Justice gives new hope, though: the federal judge overseeing the case has asked for an in camera (private) review of secret FISA court opinions that have been responsible for authorizing some of the NSA's most controversial surveillance programs in order to determine whether they were improperly withheld in FOIA requests.

Reform Government Surveillance, a coalition of major tech companies that has pushed for greater transparency and stronger limits on the intelligence community, is frustrated with the House of Representatives' recently passed surveillance compromise bill. In an open letter on the anniversary of the first Edward Snowden leak, the CEOs of Apple, Google, Yahoo, Twitter, Microsoft, Facebook, Dropbox, AOL, and LinkedIn have urged the Senate to pass a stronger version of the USA Freedom Act, restoring provisions that were removed under pressure from the White House and intelligence community.

The USA Freedom Act, a bill meant to end NSA surveillance of phone records, has passed the House of Representatives. After several rounds of amendment and debate over the past weeks, the House passed it by a margin of 303 to 121, putting the ball in the Senate's court. The first anti-NSA surveillance bill to be passed since the first classified documents leaked last year, the USA Freedom Act requires the NSA to leave phone records in the hands of telephone companies for 18 months, making searches for specific terms only after getting court approval, instead of collecting them in bulk and storing them for years. It's also meant to limit how the agency collects online communications and make it easier for companies to report the orders they receive. Many former supporters, however, now see it as more of a paper tiger than a real solution.

The USA Freedom Act saw fresh movement in Congress today, providing new hope to NSA reformers. The bill, first introduced in October, would target mass surveillance by rewriting section 215 of the Patriot Act and section 702 of FISA, the two sections of law that have been most important to legal justifications of NSA surveillance programs. The bill had been stalled since its introduction more than six months ago, but this morning the House judiciary committee announced plans to move the Freedom Act into markup on Wednesday, setting it up for a vote on the House floor if the bill is able to clear the committee.

Mike Taylor, who lives in Dublin, Georgia, says the National Security Agency has been watching him since 2006. He knows because they communicate with him. "They talk to me on a daily basis," he explains evenly over the phone. "They insult my looks. They insult my intelligence. They use racial slurs against me."

He didn’t know why he was being surveilled, however, so he filed a Freedom of Information Act request to find out. When the NSA blew him off with its infamous boilerplate "neither confirm or deny" letter, he filed a lawsuit. Last month, a judge ruled against him.

Facebook CEO Mark Zuckerberg published a harshly worded blog post today criticizing US government surveillance and calling its activities a threat to the internet. Zuckerberg says that most people and companies have worked together to make the internet a secure space, and that "this is why," he writes, "I've been so confused and frustrated by the repeated reports of the behavior of the US government. When our engineers work tirelessly to improve security, we imagine we're protecting you against criminals, not our own government."

Zuckerberg has said on multiple occasions that he believes the government "blew it" on surveillance, and he reiterates that sentiment here, arguing that without more transparency, "people will believe the worst." Zuckerberg says that he has called President Obama to discuss the matter, using the opportunity to express his "frustration over the damage the government is creating for all of our future." Zuckerberg believes that it will be a "very long time" before there is full reform here, and that it's up to individuals to see that the internet remains safe.

NSA leaker Edward Snowden will be calling into SXSW Interactive for an interview later today, and you'll be able to watch the conversation live as it happens. The interview will be streaming over at The Texas Tribune's website, and those who miss it will be able to watch the replay afterward courtesy of the American Civil Liberties Union (ACLU). It's an ACLU representative who will be conducting the discussion today, with Snowden's legal advisor and another ACLU member moderating the chat — members of the audience in Austin will be able to ask questions too. The interview will begin at 11AM local time (12PM ET / 9 AM PT).

While this is a rare opportunity to hear thoughts directly from Snowden, who has been staying in Russia since shortly after leaking the trove of secret government documents exposing broad surveillance programs to the press, not everyone is interested in his presence. Representative Mike Pompeo (R-KS), a member of the House Intelligence Committee, has written a lengthy open letter to SXSW's organizers asking that they call off his appearance. "Certainly an organization of your caliber can attract experts on these topics with knowledge superior to a man who was hired as a systems administrator and whose only apparent qualification is his willingness to steal from his own government and then flee to that beacon of First Amendment freedoms, the Russia of Vladimir Putin," he writes.

If you were casually browsing the internet on Tuesday, you may have noticed a big black bar. "Today we fight back," it read. It's more likely, though, that you saw an unobtrusive Ben Franklin image macro in a Reddit sidebar. Or nothing at all. As many have pointed out, organizers for the Day We Fight Back set a high bar by comparing it to the SOPA blackout of 2012, and the protest didn't come close to reaching that bar. TechCrunch collected a series of screenshots contrasting the two: Google and Wikipedia didn't mention the event on their home pages, and participating sites like Reddit and Boing Boing were relatively muted in their protest. About 6,000 sites participated in the Day We Fight Back, compared to an estimated 75,000 or more for SOPA. If you didn't know what to look for, you'd have been forgiven for not knowing we were supposed to be fighting back at all.

The anti-surveillance protest was always going to have a difficult time gaining traction. It attempted to focus general outrage into support for Senator Patrick Leahy (D-VT) and Rep. Jim Sensenbrenner's (R-WI) USA Freedom Act and opposition to Dianne Feinstein's (D-CA) FISA Improvements Act, a much more complicated task than just opposing a single piece of legislation. "We're pushing for something, not against something," said Matt Simons of ThoughtWorks before the protest. "I think often it's a lot easier to rally support against a bad bill than it is to build acceptance around a better one." And the Day We Fight Back was also supposed to address problems like weakened encryption standards and protection for non-Americans.

Legislators in Maryland want to turn the lights out on the NSA — literally. A bill introduced last Thursday to its House of Delegates would bar state agencies, utilities, and pretty much anything that receives state funds from providing assistance to federal agencies that collect electronic data or metadata without a specific warrant to do so. Namely, the delegates are thinking of the National Security Agency, which is headquartered just outside their state's capital.

The legislation is nearly identical to bills introduced elsewhere across the country, such as California, and would result in state water and electrical utilities being unable to serve the NSA — a major headache, if there ever was one. "It does pretty much say we're going to cut off water and electricity to the NSA," Maryland Delegate Mike Smigiel, the bill's primary sponsor, tells The Verge. Though cutting off water and electricity would have the most immediate impact, the legislation would also stop the NSA from using state universities for research, make any evidence the NSA gathers inadmissible in state courts, and effectively fire any state employee who helps the NSA.

It’s been over two years since the death of SOPA. But as attention has turned instead to NSA surveillance, the 2012 protests have provided assurance that online action can create real results. This is the idea behind The Day We Fight Back, an anti-surveillance web protest being held Tuesday, February 11th, in memory of hacktivist and anti-SOPA organizer Aaron Swartz. "In January 2012 we defeated the SOPA and PIPA censorship legislation with the largest Internet protest in history," says the site. "Today we face another critical threat." If anything, though, the reference doesn’t inspire confidence so much as it underscores just how much more complex — and difficult to confront — that new threat really is.

After recent NSA leaks, the German is now facing a new threat on the legal front. The German hacker group Chaos Computer Club has joined forces with the International League for Human Rights to file a criminal complaint against the government, based on recent revelations of mass electronic surveillance. "We accuse US, British, and German secret agents, their supervisors, the German minister of the interior as well as the German chancellor of illegal and prohibited covert intelligence activities," the complaint reads," of violation of the right to privacy and obstruction of justice in office by bearing and cooperating with the electronic surveillance of German citizens by NSA and GCHQ."

In a hearing called to assess current and future national security threats, some of the most prominent members of the US intelligence committee were grilled on how to handle the ongoing leaks from Edward Snowden and criticism of its surveillance efforts. This morning's remarkably hostile Senate hearing pitted Director of National Intelligence James Clapper, FBI head James Comey, and their Congressional supporters against senators who wanted hard, public answers to questions whose answers have been kept ambiguous or under wraps to all but a few officials.

In a series of curt questions, Senator Ron Wyden (D-OR), a longtime surveillance critic, extracted hard promises of information from the NSA, CIA, and FBI. Within 30 days, Clapper has agreed to reveal whether intelligence agencies have ever searched through records for information about specific US citizens. CIA director John Brennan will answer within a week whether the limits of the Computer Fraud and Abuse Act apply to his agency. Comey will lay out what burden of proof FBI agents must meet before tracking cellphone location data from either apps or cell towers.

Ever since leaked NSA documents first started popping up this summer, the battle against NSA surveillance has proceeded on multiple fronts: legislators pushing for new laws, journalists pushing for new stories, and tech companies fighting to regain users’ trust. Yesterday, one of the major fronts closed down. Since July, tech companies had been putting pressure on the Department of Justice, fighting for the right to say more about their interactions with law enforcement. Yesterday they made peace, reaching a settlement and withdrawing a class action suit that had drawn in some of the most powerful companies in America. On this front at least, reformers have likely gotten all they’re going to get.

The Department of Justice has announced a new deal with major tech companies that would allow unprecedented levels of disclosure about government data requests. Among other breakthroughs, the deal would allow each company to publicly announce the number of FISA requests and national security letters it has received in a given year, as well as the total number of users affected. Both numbers will still have to be reported in bands of 250 or 1000. The new order also institutes a two-year buffer for any new company receiving FISA orders or existing companies receiving a new kind of order, which would give law enforcement a crucial window in which agencies can employ new capabilities before they are revealed to the public. The deal will also apply to phone companies, many of which have recently begun reporting law enforcement requests.

It's time for a change at the NSA. But will President Obama deliver it? After former National Security Agency contractor Edward Snowden leaked documents showing the agency was engaged in widespread and often unchecked surveillance of phone and internet activity, calls to reform America's top spy organization have come from all corners.

This week, we find out whether those calls will be answered — but unfortunately, early reports from Washington insiders suggest that the president won't be making big changes.

The NSA has released a statement sidestepping questions about whether it spies on members of Congress. On Friday, Senator Bernie Sanders (I-VT) asked NSA head Keith Alexander if the agency was "spying," or had ever spied, on American Congress members or other elected officials. Today, the NSA provided an equivocal answer, promising that Congress has "the same privacy protections as all US persons. "NSA's authorities to collect signals intelligence data include procedures that protect the privacy of US persons," reads the statement, provided to The Guardian. "Such protections are built into and cut across the entire process. Members of Congress have the same privacy protections as all US persons. NSA is fully committed to transparency with Congress."

Sanders' letter said that his definition of spying "would include gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business." The NSA said that it was "reviewing" the letter and would work to give Sanders and other members of Congress more information, but it didn't deny using any of the above surveillance techniques. If anything, saying that Congress members receive the same protections as other citizens implies that their information is indeed being collected and could theoretically be queried as part of an investigation. Previously, US intelligence agencies have been found to have monitored the phones of national leaders abroad, including German chancellor Angela Merkel.