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writing for godot

NSA Maintains Surveillance Power

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Written by Arturo Tha Cuban   
Friday, 05 June 2015 10:26
Once it was signed in to law the three most controversial parts of the Patriot Act, including Section 215, comes back into play. While also enacting some big changes being touted as restrictions on the NSA by every major news outlet. But is it?

With direct and unabated access to our information via Service Providers, the NSA now has access to even more detailed information about us. Although they were monitoring your online activity previously, the original version of the Patriot Act didn’t allow it, because it wasn’t clearly specified. With the new current powers enacted, they can just as easily access your information, still without a warrant, from your Service Providers. As long as they provide a warrant within 7-days thereafter. Sound familiar? That’s because Section 215 of the Patriot Act was written in the exact same way. They still retain and will continue business as usual, with even more clearly defined power.

Whereas the Patriot Act was purposely vague in most areas, without the proper details they inadvertently limited their power right out of the gate. Now that the lines have been clearly drawn about what data they collect. The very nature of being vague in just the right areas is prevalent. Bear with me through this as I try to clarify some of the more important aspects of what just happened to the NSA, in regards to the USA Freedom Act.

So it starts with this, Section 101. To give you the warm and fuzzy feeling of accomplishment:

USA Freedom Act Section 101
(Sec. 101) Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to establish a new process to be followed when the Federal Bureau of Investigation (FBI) submits an application to a FISA court for an order requiring the production of business records or other tangible things for an investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities. (The FBI currently uses such authority to request FISA orders requiring telephone companies to produce telephone call records to the National Security Agency.)

Much like the Patriot Act, it states “to obtain information not concerning a U.S. person” yet they were still doing it (and will continue to do so). Section 101 merely changes the “application process” and is an amendment to Section 501(b)(2) (50 U.S.C. 1861(b)(2)) — Application for order; conduct of investigation generally. And reads as follows:

“The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”

Based on the previous law, this leaves the door wide open to collect information on whomever they please, so long as there is the illusion of justification. We already know that’s the same way they began the bulk-collection of data in the first place. Now the bulk collection program is coming back online today after briefly being shut down by congress. What we are going to see is the NSA reacting to a provision in the USA Freedom Act, that allows them to operate the bulk collection program for 6 months. This wording was originally put in there so that they can wind down the bulk-collection and adjust to the new Act. However the new act gives them access to even more information than before, along with some extra time to collect as much as possible.

Apparently, winding the program down was never really going to happen. They knew it and it hasn’t even stopped. While many are talking about this bulk collection as if it were some type of machine with a kill-switch. It is not. It is a very large, very intricate network of worldwide servers, involving many governments. So intricate, that when it was deemed the NSA could not track our online activity, the NSA turned to our friends across the pond to do it for us. Now they can just pick from your service providers instead.

In fact, while The USA Freedom Act supposedly disallows the government from collecting and storing your meta-data, such as information like your phone number, the other caller’s phone number, the length of the call, etc. Section 107(k)(3)(B) of the USA Freedom Act states that ‘call detail records’ do NOT include — “the contents of any communication, the name, address, or financial information of a subscriber or customer, or cell site location information.” Instead of collecting basic information about your devices, they can now collect the detailed information they have been after this whole time. Information about you individually. This actually fixes a hole they had in the previous program.

In layman’s terms, they can no longer collect your phone numbers, but they can now collect the finer details about you. The rest can be had by accessing your Service Provider’s databases. Especially with the new powers granted to the Attorney General, giving them an avenue to bypass the FISA court whenever it’s convenient. All they must do is simply assign their motive as exercising their “emergency powers”. Additionally, the surveillance powers of the “Lone-Wolf” and “Roving Wiretaps” are still in full effect as well. Todd Hinnen from the Justice Department, testified in 2011 that only a “small but steady number of national security investigations each year” used roving wiretaps.

USA Freedom Act Section 102:
(Sec. 102) Authorizes the Attorney General to require the emergency production of tangible things without first obtaining a court order if the Attorney General: (1) reasonably determines that an emergency situation requires the production of tangible things before an order authorizing production can be obtained with due diligence, (2) reasonably determines that a factual basis exists for the issuance of such a production order, (3) informs a FISA judge of the decision to require such production at the time the emergency decision is made, and (4) makes an application to a FISA judge within seven days after the Attorney General requires such emergency production.

When discussing the “Lone Wolf” portion of the Act he stated although we have not used this authority to date, it is designed to fill an important gap in our collection capabilities by allowing us to collect on an individual foreign terrorist who is inspired by — but not a member of — a terrorist group. For example, it might allow surveillance when an individual acts based upon international terrorist recruitment and training on the internet without establishing a connection to any terrorist group. According to data from U.S. courts, in 2013, the most recent year for which figures are available, 11 federal wiretaps were designated as roving.

By making the NSA and FISA court more transparent all they are doing is confirming the revelations of Edward Snowden, and what we all suspected before that. Okay, so now you know about it. See, they’re being transparent. That is the basic level of transparency they’re offering. It’s the same old dance, ‘we’re going to remove this because we understand you don’t like it. But you have to let us implement this plan.’ I understand we have to make compromises to move forward. But this was a compromise that was made forgetting one key component, the whole point of it. The American people’s civil liberties.

So what exactly is the compromise when the NSA gets to go about their business, and collect ALL of our information. Well now it means we have to re-think our personal security. We have to now hide our information from those that provide our services. The same people we pay our bill to, so that we may access these services. How do you protect yourself from that? In short, you don’t. In fact, we never have been able to. But what was once a tactic used by local police in investigations, is now a tactic used by the federal government on a monolithic scale. For whatever nefarious reason.

According to Cindy Cohn and Mark Jaycox of the Electronic Frontier Foundation in a recent article on Reader Supported News:

“We’ve also been speaking out publicly against Executive Order 12333, an executive order that the NSA relies on for most of its digital surveillance of people worldwide. We’ll be launching a big campaign to attack this Executive Order, putting pressure on President Obama. Our goal is to get the president to address the biggest problems with EO 12333 with a new executive order before he leaves office.”

“Above all, we’re taking aim at the problem of over-classification. The government has used secrecy and the claim of national security interests to ward off public oversight. No reform can be effective unless we bring more sunlight into how the government is interpreting the law and the surveillance programs it is turning against law-abiding citizens. This necessitates an overhauling of the classification system, reforms to the security clearance process, strong protections for whistle-blowers, even more transparency to the FISA Court, and addressing the abuses of the state secrets privilege”

They also state later in the article that, “It will also hopefully embolden Congress to feel that they can bring a sensible balance to surveillance policy and practice”. This is what we fought for? To bring about a conclusion that relies on “hopefully” emboldening Congress to bring “sensible policy” for the people? (nothing against you Cindy and Mark). Sensible policy, privacy rights, and protecting ourselves from mass surveillance is what we were fighting for this whole time! At least everyone I know was. All of the people I have discussed this issue with, are not satisfied with this new implementation, citing its weakness in providing much protection or change at all.

The USA Freedom Act is an oxymoron in itself. How can the title include “Freedom” when in fact it is designed to remove freedoms? Their goal is to know everything there is to know about us, to potentially be used against us when THEY need to use it. A simple use-case would be to silence, censor, and control the information we consume. Which will dictate the future of our country in favor of special interests, corporations, and crippling our human rights. We are allowing ourselves to become slaves to the system. A system based on the all knowing and constant watching by our big brother.

They have also thrown in some useless provisions like having the Inspector General review and report if any violations of civil liberties have occurred previously. They have also stated that they will assign a panel of advocates to oversee certain court requests, that may infringe on civil liberties. We may never know if any panel should be implemented, or who they may be. But in the end, all these people and the Inspector General have the power to do, is generate reports. Reports that have always fallen on deaf ears. I personally can not recall anyone in Washington making a stink about a report from the Inspector General. Ever. The USA Freedom Act, appears to provide some privacy from the government on the surface. But in reality, it seems to have given the Patriot Act even more authority.

Meanwhile the country celebrates a victory. Most admitting it is a “small victory, but at least it’s a step in the right direction”, with little regard to the fact that we should not be the victims of surveillance at all. The American people have simply been duped into accepting and claiming victory over what we were protesting. Under the guise of a new name and a few bogus rules. In the same way we relinquished our rights under the guise of a false enemy from some unknown place, with countless faces. An enemy that will never go away, and our surveillance laws have done nothing to thwart this enemy.

In fact every plot that has been thwarted has done so using the same basic tactics of local law-enforcement, many times by local law-enforcement themselves. The Patriot Act has done nothing and produces consistently negative results in the war on terror. The same negative results that led us to demanding action, while also reinforcing the major distrust most people have in the government.

Julian Assange from WikiLeaks stated in an interview with Democracy Now, when asked about Rand Paul’s statement, “Why should the telecommunications companies, why should private enterprise have this information, holding it to be sought by the government?”, he responded with:

“That’s right. So the alternative proposal, which is something that was in the USA Freedom Act, which is pretty misnamed — it is a sort of milder version of the USA Patriot Act, in some ways. Instead, Verizon and the other — AT&T and other big telcos will hold the information, ready for the National Security Agency. But, you know, it doesn’t make much of a difference if that’s an automated system. It’s just — you know, 80 percent of the National Security Agency is outsourced anyway, in terms of the management of its data. In this case, if it has automatic connections to AT&T and Verizon, there’s no difference in terms of its searching ability. Now, in terms of whether there’s warrants that are used for searches, it is perhaps an aid, because the companies could be made legally liable — that’s up to Congress — for not insisting on a warrant to access that information. I rather suspect that Congress won’t mandate that the companies can’t hand over information unless there’s a warrant.”

At the end of the day, this is not the solution we were all looking for when I signed up for this battle. I will continue the fight. If everyone else decides that this is good enough for them, great. However, it’s not enough for me and most of the populace. We have many surveillance programs in place that have been there for decades. We don’t need anymore, and we certainly don’t need to continue to spy on Americans. We have a right to freedom of expression, we have a right to have our own opinions, and we certainly have the right to speak-up and speak-out. Historically speaking, it’s those inalienable rights that have brought about historic change in America.

Do not forget that the bulk collection of even more detailed data has resumed, there is also one other factor that plays into all of this. Bulk collection will continue until December 31st, whereas they are required under the USA Freedom Act to stop. However we are looking at an attack on the Freedom of Information Act as well, that will allow any operations to continue unabated. Here are the Proposed Changes To The Freedom Of Information Act -National Defense Authorization Act for Fiscal Year 2016.0

SEC. 1046. REVISION OF FREEDOM OF INFORMATION ACT TO REINSTATE EXEMPTIONS UNDER THAT ACT AS IN EFFECT BEFORE THE SUPREME COURT DECISION IN MILNER V. DEPARTMENT OF THE NAVY.

Paragraph (2) of section 552 (b) of title 5, United States Code is amended — 
(1) by inserting “(A)” before “related”;
(2) by inserting “or” after “an agency;”; and
(3) by adding at the end the following new subparagraph:
“(B) predominantly internal to an agency, but only to the extent that disclosure could reasonably be expected to risk impairment of the effective operation of an agency or circumvention of statute or regulation;”.

SEC. 1047. EXEMPTION OF INFORMATION ON MILITARY TACTICS,TECHNIQUES, AND PROCEDURES FROM RELEASE UNDER FREEDOM OF INFORMATION ACT.

(a) EXEMPTION. — Chapter 3 of title 10, United States Code, is amended by adding at the end the following new section:
Ҥ 130g. Nondisclosure of information: military tactics, techniques, and procedures
“(a) AUTHORITY FOR NONDISCLOSURE. — The Secretary of Defense may withhold from public disclosure otherwise required by law information on military tactics, techniques, and procedures in accordance with this section.
“(b) STANDARD FOR EXEMPTION FROM DISCLOSURE. — For the purposes of this section, information on a military tactic, technique, or procedure may be withheld from public disclosure only if the Secretary makes each of the following determinations with respect to the information:
“(1) That the public disclosure of the information could reasonably be expected to risk impairment of the effective operation of the armed forces. “(2) That either of the following condition is met:
“(A) The military tactic, technique, or procedure has not been publicly disclosed.
“(B) The use of the military tactic, technique, or procedure in connection with a specific military operation, either planned or executed, or its effectiveness, has not been publicly disclosed.
“(c) CITATION TO FOIA PARAGRAPH. — This section is a statute that specifically exempts certain matters from disclosure under section 552 of title 5 within the meaning of paragraph (3) of subsection (b) of that section”.

Let’s not get tricked into believing we have won anything. Because on this issue alone, we have so much more to fight for. We are being ruled and controlled by the elitists in this country, and that is no secret. The question still remains. Are we going to continue to be complacent and just be drawn to the conclusion the we are a slave to this political oligarchy? Or are we going to get up and put up a meaningful fight? They will not give us our freedom, we must fight to get it back.

Let the commonality in our voices, for the solutions we seek be heard. Loud and Clear. It is time to mobilize the masses, and create the changes we all seek. The rebirth of the freedom and civil liberties that were granted to us upon implementation of the Constitution of these United States.


UPDATE: While Edward Snowden makes some valid points (see article: http://readersupportednews.org/opinion2/277-75/30565-focus-the-world-says-no-to-surveillance). We still believe the system is in place to continue what they have been doing all along. Only now with ‘new and improved’ detailed information.

The vague language in key places allows for additional powers, and limited scrutiny. Especially true in the transparency and accountability wording.
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