Drawing a Line on Mass Surveillance: How Congress Must Reform Section 702

1_OIJL0b49BMVMerWJidGy1A.jpegOn Monday, members of the House Intelligence Committee held an open hearing into Russian involvement in the 2016 presidential election that included a discussion of whether the U.S. government improperly surveilled officials or associates of any campaign. During that hearing, members of both parties favorably referred to Section 702 of the FISA Amendments Act, a sweeping piece of intelligence legislation that is up for reauthorization later this year and, in our view, permits significant offenses against Americans’ civil liberties. Section 702 authorizes two truly alarming efforts that must be reformed or ended. Continue reading “Drawing a Line on Mass Surveillance: How Congress Must Reform Section 702”

Lessons from 9/11

Select Recommendations from the 9/11 Commission Report

On the fourteen anniversary of 9/11, we must remember not just the day, but the lessons we must — but still have failed — to learn. Here are select recommendations from the 9/11 Commission Report.

Limited, Transparent Government

The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.

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As the President determines the guidelines for information sharing among government agencies and by those agencies with the private sector, he should safeguard the privacy of individuals about whom information is shared.

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Finally, to combat the secrecy and complexity we have described, the overall amounts of money being appropriated for national intelligence and to its component agencies should no longer be kept secret. Congress should pass a separate appropriations act for intelligence, defending the broad allocation of how these tens of billions of dollars have been assigned among the varieties of intelligence work.

Just Policies

The U.S. government must define what the message is, what it stands for. We should offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors.

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A comprehensive U.S. strategy to counter terrorism should include economic policies that encourage development, more open societies, and opportunities for people to improve the lives of their families and to enhance prospects for their children’s future.

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The United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists. New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict.

System of Checks and Balances

Congressional oversight for intelligence — and counterterrorism — is now dysfunctional. Congress should address this problem.

{ Like this? You may also like Sunsetting the Politics of Terror and What Our Mass Surveillance Debate Gets Wrong}

— Written by Daniel Schuman

The Grassroots and the Battle Over Encryption

Remarks delivered at the #CryptoSummit on July 15, 2015.

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Good morning. Thank you for inviting me.

Congratulations to ACCESS for holding such a successful summit on the vital issue of encryption. Encryption is part of a suite of technology and privacy issues that have kept things interesting up on Capitol Hill. As we saw recently, the grassroots energy and activism around surveillance and net neutrality provided an educational opportunity for members of Congress.

Right now, policymakers are in the process of mangling encryption. A senator, who I won’t name, recently compared encryption to poisonous waste dumped into our rivers and streams. He argued that companies pushing for encryption are harming the public.

It’s not entirely surprising that some members of Congress are getting this issue wrong, at least right now. Congress has seriously diminished its ability to understand complex policy issues. The number of committee staff in the House has been cut in half over the last 3 decades. Expert agencies inside the legislative branch have been cut to the bone. Congress is at the mercy of special interests for information and guidance. And no interest is more special than the defense establishment, which literally has offices on Capitol Hill and places staff in member offices.

This is why grassroots pressure is so important. It forces members of Congress to move away from simplistic narratives. It drives them out of the bubble. It forces them to engage with the people most expert on encryption — the people in this room — and with the millions behind us. Grassroots pressure also helps change the narrative about encryption and widen the range of policy options.

For example, last year’s ResetTheNet campaign encouraged developers to make their websites more secure from prying … and encouraged Internet users to use NSA-resistant privacy tools. By getting more people to use encryption, the ResetTheNet campaign worked towards three important goals:

First, it made the use of encryption more commonplace, showing that is not scary or complicated.

Second, it taught how the widespread use of encryption can protect everyone from surveillance, like mass inoculation against virulent diseases.

Third, it encouraged policymakers to find a solution that is proportionate and appropriate to the problem it is trying to address.

A campaign raising awareness around encryption, no matter how clever, is only half the battle. People must connect encryption to bigger fights and broader organizing efforts. To win on encryption, it must be seen as a brick in the wall against an overly-intrusive government and other hackers.

And that wall must be built upon opposition to the USA PATRIOT Act, to skepticism around the Communications Assistance for Law Enforcement Act, to deep concern on the Computer Fraud and Abuse Act, to dread around Executive Order 12333, and so on.

We have won unprecedented victories lately by educating and organizing around these issues. Hundreds of thousands of people weighed in on mass surveillance. We must apply those lessons to encryption, and help people connect the dots. They must come to understand the fight is about the future of privacy, about the future of technology, and about the future of democracy.

We have made good headway, but there is so much more to do. Thank you.

{ Like this? You may also like Sunsetting the Politics of TerrorWhat Our Mass Surveillance Debate Gets Wrong, & Senate Torture Report: The Senate Speaks }

— Written by Daniel Schuman

Sunsetting the Politics of Terror

Last sunday night’s sunset of the 9/11-era USA PATRIOT Act is an example of the Congress working properly and a repudiation of the politics of terror. After the 9/11 attacks, national security hardliners stampeded the Congress into enacting broad surveillance legislation without much opportunity for our elected officials to think through the legislation or to address competing interests of privacy, programmatic effectiveness, transparency, return on investment, and so on. The only saving grace was that legislators tacked on a sunset — a legislative expiration date — that would force future congresses to reconsider some provisions of the legislation when passions had cooled.

The purpose of a sunset is twofold. First, it puts the burden on proponents of legislation to justify the need for its existence. Second, it uses the structure of Congress itself as a procedural protection to make sure there is broad agreement that controversial legislation is necessary.

As it turns out, Congress re-upped provisions of the USA PATRIOT Act every four years, under great pressure from hardliners and in contrived circumstances that undermined reform. In the meantime, evidence piled up that expiring provisions of the USA PATRIOT Act were ineffective, counterproductive, and implemented by the administration in ways that violated the law.

This time around, proponents of reauthorization had no credibility when they made their case for an extension. Passions had cooled, and many members of Congress had not voted on the original legislation in 2001. But proponents included members of leadership in the House and in the Senate, and they tried to ram legislation through anyway. That is where the structure of Congress itself came into play. When surveillance hardliners overplayed their hand, Congress’s system of checks and balances provided just enough procedural protections that the rank-and-file from both parties were able to capitalize on their longstanding reform efforts, join together, and prevent a power play.

There’s no doubt that when the shoe is on the other foot and privacy advocates wish to enact legislative reforms, they will have a tremendous uphill fight. But last week’s filibuster, the refusal of pro-privacy senators to acquiesce to legislation that extends the USA PATRIOT Act, and the House’s strong actions in favor of reform all served to box in surveillance hardliners. They were prevented from reaching their goal of a straight reauthorization or enacting faux-reform legislation.

The fight is not over. Surveillance hardliners still have many opportunities to use Congress’ arcane procedural mechanisms to sneak or push through surveillance legislation. But now that several provisions of the USA PATRIOT Act have sunset, the landscape has shifted and Congress will be even more reluctant to go along. In addition, with this defeat, the aura of legislative invincibility enjoyed by hardliners has dissipated. It is now possible for many members of Congress to envision a path towards real reform.

{ Like this? You may also like The Grassroots and the Battle Over EncryptionWhat Our Mass Surveillance Debate Gets Wrong, and Senate Torture Report: The Senate Speaks }

— Written by Daniel Schuman

What Our Mass Surveillance Debate Gets Wrong

Debate is swirling in Washington about the sunset of the USA PATRIOT Act’s section 215, which the administration has twisted to support mass surveillance, but the focus of the conversation reinforces the narrative of national security hardliners. The question should not be whether to reauthorize section 215, which even its author says was never intended to allow mass surveillance. That’s a no-brainer. The question is whether to investigate and root out the pro-surveillance agenda that sprouted after 9/11 and has borne the strange fruit of mass surveillance, secret law, secret courts, and unchecked executive power.

In some ways, this is a tale of seduction and corruption. The Intelligence Community has long held out the allure of secret knowledge and quick fixes to national security problems that has entranced presidents and members of the House and Senate intelligence committees. On the other hand, they claim increased power is the only way to reduce danger to Americans. The record shows, however, that the intelligence community often cannot deliver what it promises and its actions can create the dangers policymakers seek to minimize.

These dangers have only been exacerbated by the blank check given to them by the Bush administration and endorsed by the Obama administration that allows them to operate at and beyond the edge of the law. For example, opinions issued by the Department of Justice’s Office of Legal Counsel have blessed all sorts of illegal behavior, including torture, only by twisting the law and Constitution out of shape and making sure anyone who could complain about the opinions—even Congress—was out of the loop or kept out of court. Similarly the Foreign Intelligence Surveillance Court, originally charged with deciding whether to approve wiretap warrants, created an expansive body of secret law that approved mass surveillance and sharing of personal information among members of the Intelligence Community. In a democracy, the law is not supposed to be a secret and these decisions should be up for public debate.

The greatest check on unlawful executive branch behavior, Congress, is out of the loop. Often times, the Executive branch fails to share (or selectively shares) crucial information about—or even the existence of—its activities with its Congressional overseers. Sometimes members of the Executive branch flat out lie. For its part, Congress has weakened its ability to get at the truth and its Intelligence committees largely have abdicated their oversight roles. In fact, some members of Congress who are supposed to hold the Intelligence Community to account have an odd version of Stockholm syndrome where they sympathize more with the eavesdroppers than ordinary Americans. Congress must rethink how it does oversight.

The Executive branch has even taken it upon itself to assert and interpret its Constitutional powers to preclude a check by the other branches in national security matters. Many, including a whistleblower who made his concerns public, believe Executive Order 12333 is used by the administration to engage in mass surveillance. Breathtakingly, the administration in turn says EO 12333 actually is a voluntary limit on the Executive Branch’s constitutional powers, which may be broader, and Executive Order limits can be waived at will by the president. Where does it say this? In a secret Office of Legal Counsel opinion, of course.

We have a troubling set of circumstances. Secrecy is used to buttress secrecy; the constitutional checks-and-balances have become unraveled. And yet we spend time debating how much to pack into legislation addressing section 215, the elimination of which would not even end mass surveillance. Even worse, some members of Congress, such as Senate Majority Leader Mitch McConnell, have introduced legislation to leave section 215 alone for the next half decade. We do not impugn the hard work of many members of Congress and congressional staff who have worked feverishly to fix section 215, even the national security die-hards, but the unnaturally narrow debate says volumes about the blinders Congress has placed on itself.

This is why we endorsed a letter, signed by a bipartisan array of 60 non-profit organizations, businesses, and whistleblowers, that calls for comprehensivereform. We need to know what has been done in our names. We must empower Congress to perform its oversight responsibilities and protect whistleblowers when they expose illegality. We must end secret law and open up secret courts. We must end domestic mass surveillance, no matter under what authority it takes place. These are the crucial issues. This is the debate worth having.

{ Liked this? You may also like The Grassroots and the Battle Over EncryptionSunsetting the Politics of Torture, and Senate Torture Report: The Senate Speaks }

— Written by Daniel Schuman

Senate Torture Report: The Senate Speaks

On December 9, 2014, the Senate Intelligence Committee published a report severely criticizing CIA interrogation practices as brutal and ineffective. The committee released to the public a redacted version of the report’s executive summary — nearly 500 pages long — the culmination of seven years’ work. It includes the views of the majority of committee members, an additional statement by Senator Jay Rockefeller, and the views of dissenting committee members.

The full report is classified and runs nearly 6,700 pages. In announcing the release of the report, several senators, including the Intelligence Committee Chair, gave speeches on the Senate floor explaining their views and findings.

These speeches are a helpful, succinct introduction to what is now being called the Torture Report. Their remarks, with only minor edits and captions, are included in my new ebook, “Senate Torture Report: the Senate Speaks.”

In addition, I also include remarks made on December 10th by departing Senator Mark Udall, in which he calls for the resignation of the CIA Director and discusses flaws in congressional oversight.

(Update: the ebook is available through archive.org as ePub, PDF, full text, etc. Thanks Creeping Nounism.)

{ Liked this? You may also like The Grassroots and the Battle Over EncryptionSunsetting the Politics of Torture, and What Our Mass Surveillance Debate Gets Wrong }

— Written by Daniel Schuman