Category Archives: NSA Spying

Does Cell-Phone Case Imperil NSA Spying?

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Though the Republican-controlled U.S. Supreme Court often splits 5-4 on partisan and ideological issues, a consensus is emerging against the governments electronic intrusion on personal privacy, which could portend trouble for NSA spying, says Marjorie Cohn.

By Marjorie Cohn

In one of the most significant Fourth Amendment rulings ever handed down by the Supreme Court, all nine justices agreed in an opinion involving two companion cases, Riley v. California and United States v. Wurie, that police generally need a warrant before reading data on the cell phone of an arrestee.

This decision may well presage how the Court will rule on the constitutionality of the National Security Agency (NSA) metadata collection program when that issue inevitably comes before it.

U.S. Supreme Court

There has always been a preference for search warrants when the police conduct a Fourth Amendment search or seizure. But, over the years, the Court has carved out certain exceptions to the warrant requirement, including the search incident to a lawful arrest.

The 1969 case of Chimel v. California defined the parameters of this exception. Upon a lawful arrest, police can search the person of the arrestee and areas within his immediate control from which he could secure a weapon or destroy evidence.

Four years later, in United States v. Robinson, the Court confirmed that the search incident to a lawful arrest is a bright-line rule. These types of searches will not be analyzed on a case-by-case basis. If the arrest is lawful, a search incident to it needs no further justification. It does not matter whether the officer is concerned in a given case that the arrestee might be armed or destroy evidence.

In Riley/Wurie, the Court declined to apply the search incident to a lawful arrest exception to searches of data contained on an arrestees cell phone. Chief Justice John Roberts wrote for the Court that the dual rationales for applying the exception to the search of physical objects protecting officers and preventing destruction of evidence do not apply to the digital content on cell phones: There are no comparable risks when the search is of digital data.

Moreover, [m]odern cell phones, as a category, Roberts noted, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. Responding to the governments assertion that a search of cell phone data is materially indistinguishable from searches of physical items, Roberts quipped, That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.

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Does Cell-Phone Case Imperil NSA Spying?

NSA spying is a bigger diplomatic strain than Iraq invasion

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As US and German officials meet this week to discuss privacy and security in the cyber realm, a German official is calling recent revelations of NSA spying on his country the "biggest strain in bilateral relations with the US" since the controversy surrounding the 2003 invasion of Iraq.

Actually, he said, it's "bigger than Iraq".

"Iraq was a disagreement of a foreign policy," the official, who requested anonymity, told Wired. "This is a disagreement of a relationship between two allies."

The US State Department did not respond to a request for comment.

Last year, the German news weeklyDer Spiegelreported that the NSA had been eavesdropping on German Chancellor Angela Merkel's mobile phone. The CIA and NSA reportedly maintained a listening station at the US embassyin Berlin that it used to monitor German government communications.

The German government, outraged by the spying, has reportedly ended a contract with the US-based telecom Verizonout of concern that the company might be cooperating with the NSA in its eavesdropping activities. The government has also sent lists of questions to the US government inquiring about its surveillance against German citizens. But, according toDer Spiegel, although the NSA promised to send "relevant documents" in response -- in an effort "to re-establish transparency between the two governments" -- it failed to do so.

The spying scandal has come at a particularly delicate time, as the US is faced with mobilising support to address issues like the Russian invasion of Ukraine and the rise of the militant group ISIS in Iraq. But the German official says the scandal has caused some to call into question existing perceptions about the legitimacy of US interests in such matters. "Even if governments agree with the US position, it's more difficult [for them] to defend that position to their electorates now," he says.

The German official notes that not all European governments share a dim view of the US in the aftermath of the revelations. Countries like Germany with a recent history of authoritarianism are more sensitive to the surveillance issue than those with a longer history of democracy, he says, because they have a greater wariness of state institutions and control.

"They distrust the state [in general] and they want to make sure that they control the state and not that the state controls them," he says. "In all of Europe, with the exception of Belarus, you have solid democracies. But in some of those, you have relatively recent authoritarianism."

Another European official told Wired the spying is likely to affect international commerce, particularly trade agreements, going forward. European countries that have other issues with regard to trade negotiations with the United States likely will use the spying as leverage to gain an upper hand in those negotiations, he says.

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NSA spying is a bigger diplomatic strain than Iraq invasion

NSA spying protest takes to the skies in Utah – CNET

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Greenpeace

A team of anti-surveillance activists from Greenpeace, the Electronic Frontier Foundation, and the Tenth Amendment Center came together to protest the US government's mass surveillance programs on Friday by flying an airship over a National Security Agency data center in Utah.

Early this morning, the 135-foot-long thermal airship emblazoned with the words "NSA illegal spying below" flew above the massive data center. The pilots of the airship tweeted from the @EFF account, "Best place on earth to watch a sunrise: from an airship over the Utah NSA data center, with a big banner demanding an end to mass spying."

A link to StandAgainstSpying.org was also displayed on the side of the airship. The website was launched Friday by the three participating groups in conjunction with a broader coalition of grassroots organizations and Internet companies. According to Greenpeace, the site will grade members of Congress on their performance in privacy and security issues in relation to the sweeping powers of the NSA.

The EFF is representing 22 organizations, including Greenpeace, in a lawsuit against the NSA for violating the their First Amendment rights by illegally collecting call records. At the heart of the case, First Unitarian Church of Los Angeles v. NSA, is the NSA's bulk collection of phone records, a program the government legally justified under section 215 of the Patriot Act.

The NSA's bulk collection of phone "metadata," which includes numbers dialed and call duration, was revealed by former NSA contractor Edward Snowden last summer. In March, President Obama proposed legislation to reform the program, which would see phone companies hold onto records and require the NSA and other government agencies to obtain a court order to access records.

The House last month passed the Freedom Act to end the program, but the reform legislation continues to work its way through the Senate. In the meantime, the Foreign Intelligence Surveillance Court last Thursday renewed an order allowing the NSA to continue its collection of phone records.

"Given that legislation has not yet been enacted, and given the importance of maintaining the capabilities of the Section 215 telephony metadata program, the government has sought a 90-day reauthorization of the existing program, as modified by the changes the President announced earlier this year," the Office of the Director of National Intelligence and the Department of Justice said in a joint statement. "Consistent with prior declassification decisions, in light of the significant and continuing public interest in the telephony metadata collection program, the Director of National Intelligence, James Clapper, has declassified the fact that the government's application to renew the program was approved yesterday by the FISC ."

The court order, which must be renewed every 90 days, expires on September 12.

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NSA spying protest takes to the skies in Utah - CNET

Privacy Groups Release Congressional Scorecard on NSA Spying

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Dianne Feinstein gets an "F." So does John Boehner.

Patrick Leahy, Ron Wyden, and Justin Amash each earned an "A."

At least that's according to a new congressional scorecard from privacy and civil-liberties groups measuring how lawmakers stand on government spying, an issue that continues to slowly gain traction more than a year after Edward Snowden's leaks exposed classified bulk-data surveillance programs at the National Security Agency.

The scorecard, developed by reddit, the Sunlight Foundation, Demand Progress and others,grades lawmakers from "A" to "F," depending on their votes or sponsorship of certain pieces of recent surveillance legislation. Its release coincides with the liftoff of a Greenpeace blimp this morning that hovered above the NSA's data center in Utah and displayed the message "Illegal spying below."

The letter grades are meant to add clarity to a muddled reform process concerning the proper scope of government surveillance of phone and Internet data, said Rainey Reitman, activist director with the Electronic Frontier Foundation, one of the organizing groups.

"Congress has been struggling with what they're going to do about surveillance reform, and for the general public, this has been a very confusing debate," Reitman said. "Because, often there are going to be bills that imply they are going to help with surveillance issues when, in fact, they are fake reforms that would merely entrench the spying."

In the House, points were awarded for support of the Surveillance State Repeal Act, introduced last year by Rep. Rush Holt (who gets an "A"), and the original USA Freedom Act, which was authored by Rep. Jim Sensenbrenner (also an "A") and sought to end the NSA's bulk collection of U.S. phone metadata.

But points were subtracted if a House member voted for the "watered-down" version of the Freedom Act, which passed the chamber 303-121 in May. Powerful tech companies such as Google and Facebook and privacy advocates dropped their support of that bill as eleventh-hour negotiations among House leadership, intelligence officials, and the White House altered the language of key sections of the bill.

In the Senate, points were awarded for sponsorship of the original USA Freedom Act, introduced by Sen. Patrick Leahy, and points were deducted for cosponsorship of Sen. Dianne Feinstein's FISA Improvements Act, which civil-liberties groups have routinely lambasted as codifying the current powers of the NSA and other intelligence agencies. Even Feinstein has acknowledged that her bill likely does not have a path forward, however.

Several high-profile senators remain unranked in the scorecard for not being "significantly involved" in the debate on NSA spying. Senate Majority Leader Harry Reid, Senate Minority Leader Mitch McConnell, and Republican Sens. Rand Paul, Ted Cruz, and Marco Rubioa trio of potential GOP presidential candidates in 2016are all listed with a question mark.

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Privacy Groups Release Congressional Scorecard on NSA Spying

German Official: U.S. Spying ‘Biggest Strain’ in Relations Since Iraq War

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As U.S. and German officials meet this week to discuss privacy and security in the cyber realm, a German official is calling recent revelations of NSA spying on his country the biggest strain in bilateral relations with the U.S. since the controversy surrounding the 2003 invasion of Iraq.

Actually, he said, its bigger than Iraq.

Iraq was a disagreement of a foreign policy, the official, who requested anonymity, told WIRED. This is a disagreement of a relationship between two allies.

The U.S. State Department did not respond to a request for comment.

Last year, the German news weekly Der Spiegel reported that the NSA had been eavesdropping on German Chancellor Angela Merkels mobile phone. The CIA and NSA reportedly maintained a listening station at the U.S. embassy in Berlin that it used to monitor German government communications.

The German government, outraged by the spying, has reportedly ended a contract with the U.S.-based telecom Verizon out of concern that the company might be cooperating with the NSA in its eavesdropping activities. The government has also sent lists of questions to the U.S. government inquiring about its surveillance against German citizens. But, according to Der Spiegel, although the NSA promised to send relevant documents in responsein an effort to re-establish transparency between the two governmentsit failed to do so.

The spying scandal has come at a particularly delicate time, as the U.S. is faced with mobilizing support to address issues like the Russian invasion of Ukraine and the rise of the militant group ISIS in Iraq. But the German official says the scandal has caused some to call into question existing perceptions about the legitimacy of U.S. interests in such matters. Even if governments agree with the U.S. position, its more difficult [for them] to defend that position to their electorates now, he says.

The German official notes that not all European governments share a dim view of the U.S. in the aftermath of the revelations. Countries like Germany with a recent history of authoritarianism are more sensitive to the surveillance issue than those with a longer history of democracy, he says, because they have a greater wariness of state institutions and control.

They distrust the state [in general] and they want to make sure that they control the state and not that the state controls them, he says. In all of Europe, with the exception of Belarus, you have solid democracies. But in some of those, you have relatively recent authoritarianism.

Another European official told WIRED the spying is likely to affect international commerce, particularly trade agreements, going forward. European countries that have other issues with regard to trade negotiations with the United States likely will use the spying as leverage to gain an upper hand in those negotiations, he says.

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German Official: U.S. Spying ‘Biggest Strain’ in Relations Since Iraq War

NSA spying protest takes to the skies in Utah

Posted on by

Greenpeace

A team of anti-surveillance activists from Greenpeace, the Electronic Frontier Foundation, and the Tenth Amendment Center came together to protest the US government's mass surveillance programs on Friday by flying an airship over a National Security Agency data center in Utah.

Early this morning, the 135-foot-long thermal airship emblazoned with the words "NSA illegal spying below" flew above the massive data center. The pilots of the airship tweeted from the @EFF account, "Best place on earth to watch a sunrise: from an airship over the Utah NSA data center, with a big banner demanding an end to mass spying."

A link to StandAgainstSpying.org was also displayed on the side of the airship. The website was launched Friday by the three participating groups in conjunction with a broader coalition of grassroots organizations and Internet companies. According to Greenpeace, the site will grade members of Congress on their performance in privacy and security issues in relation to the sweeping powers of the NSA.

The EFF is representing 22 organizations, including Greenpeace, in a lawsuit against the NSA for violating the their First Amendment rights by illegally collecting call records. At the heart of the case, First Unitarian Church of Los Angeles v. NSA, is the NSA's bulk collection of phone records, a program the government legally justified under section 215 of the Patriot Act.

The NSA's bulk collection of phone "metadata," which includes numbers dialed and call duration, was revealed by former NSA contractor Edward Snowden last summer. In March, President Obama proposed legislation to reform the program, which would see phone companies hold onto records and require the NSA and other government agencies to obtain a court order to access records.

The House last month passed the Freedom Act to end the program, but the reform legislation continues to work its way through the Senate. In the meantime, the Foreign Intelligence Surveillance Court last Thursday renewed an order allowing the NSA to continue its collection of phone records.

"Given that legislation has not yet been enacted, and given the importance of maintaining the capabilities of the Section 215 telephony metadata program, the government has sought a 90-day reauthorization of the existing program, as modified by the changes the President announced earlier this year," the Office of the Director of National Intelligence and the Department of Justice said in a joint statement. "Consistent with prior declassification decisions, in light of the significant and continuing public interest in the telephony metadata collection program, the Director of National Intelligence, James Clapper, has declassified the fact that the government's application to renew the program was approved yesterday by the FISC ."

The court order, which must be renewed every 90 days, expires on September 12.

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NSA spying protest takes to the skies in Utah