The Cyber Information and Sharing Act (CISPA) was first introduced last year by Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD). It received widespread opposition, including a veto threat from President Obama, in addition to a petition with over 800,000 signatures, and a widespread online campaign dubbed “Stop Cyber Spying week.”

Support for the bill came mainly from big corporations such as Facebook, whose VP for Public Policy, Joel Kaplan, stated in a letter to the House Intelligence Committee and the bill’s sponsors:

Your legislation removes burdensome rules that currently can inhibit protection of the cyber ecosystem.

The rules that Facebook interprets as burdensome are some of the few civil liberties firewalls remaining between government surveillance and private companies. Under CISPA, these “burdensome rules” even include the company’s already weak terms of service. Concerns about the civil liberties implications ultimately led to the rejection of the bill.

It was clear after the bill’s defeat, however, that it would be back. CISPA was reintroduced in the House on February 13th, by the same sponsors as last year. Currently, there are letters of support from companies like AT&T and IBM, but opposition among civil liberties advocates remains strong.

In a press release, Rep. Rogers claims that the bill is needed because:

This is clearly not a theoretical threat – the recent spike in advanced cyber attacks against the banks and newspapers makes that crystal clear.  American businesses are under siege. We need to provide American companies the information they need to better protect their networks from these dangerous cyber threats.

The bills’ sponsors argue that CISPA contains strong civil liberties and privacy protections while streamlining response to the threat of “cybercrime,” but it is this very streamlining that leads to civil liberties concerns. The bill would create an unprecedented information sharing regime between private corporations and government agencies, such as the Department of Homeland Security or National Security Agency, all under the authority of the Director of National Intelligence.

Specifically, the bill allows “elements of the intelligence community to share cyber threat information with private-sector entities and to encourage the sharing of such intelligence.” Private entities can be “certified” and receive privacy clearance to allow them to receive such information. They can also share that information with other certified entities. One particularly concerning facet of the bill is that it:

allows companies to choose which government agency to share the information with, including the National Security Agency or other element of the Department of Defense.

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Kathryn Bigelow and Mark Boal’s Zero Dark Thirty opens with a title that declares “The following motion picture is based on first hand accounts of actual events.” With this title and relentless publicity Biegwlow  has suggested “What we were attempting is almost a journalistic approach to film.’’ However at the same time, Boal has attempted to shirk being held to a journalistic approach to facts, declaring “It’s a movie, not a documentary.” It’s clear from Senators with knowledge of the classified intelligence and Leon Panetta that in fact torture did not produce the information that identified Osama Bin Laden’s courier and led to his capture.  However, the information will not become public until the Senate Intelligence Committee declassifies its extensive investigation into the United State’s use of torture after September 11th. You can demand the release of the report through BORDC’s petition.

Reacting to the swelling controversy set off by the film’s depiction of torture prompting  a key disclosure leading to the capture of Bin Laden, Bigelow has attempted to set up a straw man.  At the New York Film Critics Awards she said:

I’m standing in a room with people who understand that depiction is not endorsement, and if it was, no artist could portray inhumane practices. No author could write about them. And no filmmaker could ever delve into the knotty subjects of our time.

However, Zero Dark Thirty not only misrepresents the facts surrounding the role of torture in Osama Bin Laden’s capture, it also uses film technique to align the audience with the torturers. The film opens with harrowing audio of the 911 calls of those trapped in world trade center, and then immediately cuts to the brutal interrogation of a prisoner at a CIA black site. This juxtaposition positions the torture program as a reaction the attacks of September 11th. The films’ heroine, Maya a CIA analyst, is present at the interrogation and watches as the prisoner is waterboarded by another CIA interrogator.

During the scene Bigelow employs objective shots (those which don’t come from the point of the view of any of the characters) to show the CIA interrogator threatening assaulting and then water boarding the prisoner. Notably however, the audience is never left alone with the prisoner, the camera comes and goes with Maya’s visits. Bigelow aligns us with Maya but cutting to a reaction shot showing her face in distress as the prisoner is water boarded. The audience is meant to identify with her unease with the brutal tactics being employed. However, this changes.

In the following scenes, Maya is present in almost every one, the consistent point of contact for the audience.  She questions the same prisoner and another, obtaining information based on the prisoner’s fear that they will be again subjected to torture. She then reviews videotaped interrogations of other prisoners (many of whom are being tortured) and instead of now cringing at the torture, she simply nods her head as the information she wants is given. Finally in another interrogation, Maya directs a military officer to assault and then waterboard the prisoner she is interrogating. Initially disturbed at the presence of torture, Maya and the audience begin to see its benefits.

All the while, none of the characters object to torture, though we know that in reality many did so. The only voice in the film declaring opposition to torture, is President Obama’s.  A few seconds of an interview where he declares that America doesn’t torture play on TV in a meeting of CIA analysts, but one simply shakes her head and then then they go back to operational planning.

Demand the full picture on torture by signing BORDC’s petition to declassify and release the Senate Intelligence Committee’s report on torture.

In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to protect the privacy of electronic communications. In the quarter of a century since then, technology has evolved tremendously; while few households had computers in 1986, today practically everyone uses smartphones and cloud-based services to exchange private information. Despite these changes, the ECPA has not been updated to carry out its purpose.

The Senate Judiciary recently approved an amendment introduced by Senator Leahy requiring the government to produce a warrant before spying on our emails. We recently addressed whether moving this amendment out of committee was enough to protect privacy.

Currently, the most controversial part of the ECPA, the Stored Communications Act (SCA), provides little protection vis à vis the government. It generally prohibits service providers from disclosing to third parties the content of electronic communications that are placed in storage. For law enforcement purposes, however, it makes it relatively easy for the government to bypass this prohibition and gain access to personal emails maintained on the servers of companies like Google and Yahoo. The SCA says the government needs a search warrant to obtain communications held in storage for less than 180 days but only a subpoena or a court order based on “reasonable grounds” when they are held in storage for more than 180 days. What’s more, the person whose communication is disclosed may not even be notified if a court determines that notice might have an adverse impact on a criminal investigation.

Senator Leahy explained that the 180-day distinction is now anachronistic; in the past, users downloaded emails onto hard drives then deleted them, which meant they became physical property that is subject to the Fourth Amendment.

Grover Norquist of Americans for Tax Reforms and Laura Murphy of the ACLU, two unlikely bedfellows, have voiced their support to Senator Leahy’s amendment. Writing for The Hill, they point out what everyone expects: “email and information stored in the cloud should have the same legal protection as letters or information held by an individual in their home.”

Nadia Kayyali, legal fellow, explains how electronic privacy is still threatened without action by Congress:

The lack of response to privacy and civil liberties concerns from Congress in other areas, such as the Foreign Intelligence Surveillance Act Amendments of 2008(FAA), reinforces this impression. Even worse, regardless of whether these changes to ECPA pass, they are completely inapplicable in the national security context. If the government cannot simply seize old emails under ECPA, the National Security Agency can still engage in warrantless wiretapping under the FAA, and the FBI has access to a vast surveillance state that has continued to grow exponentially since 9-11.

Take a moment and contact your Senators and demand they vote against the proposed extension of FISA. 

With Senators about to pack up and head home for the holidays, we have one last chance to tell them not to extend the Foreign Intelligence Surveillance Act (FISA)  for another 5 years without providing Congress and the public long sought after answers about this dragnet, secret, and unchecked, surveillance program.

Senator Wyden (D-OR) has previously called for a deeper look into warrantless wiretapping authorized by the 2008 FISA Amendments, saying that “the government refuses to say how often the spy powers are being used.”

The National Security Agency (NSA) has refused, despite these demands, to reveal how many Americans it has spied on through effectively unlimited powers granted in the 2008 FISA amendments.

Congress has failed to protect the privacy of email and phone conversations, and is slated to vote on the re-authorization of FISA any day, leaving a limited window to call on Congress to allow for the necessary debate on the NSA’s implementation of FISA. We still have many questions, but
the NSA intercepts 1.7 billion emails, phone calls and other communications every single day (Washington Post, 7/19/2010)what little we do know is alarming:

• the NSA says it cannot even give a rough estimate of the number of Americans whose communications have been swept up (Wired.com, 6/18/2012)
• the NSA has reportedly overstepped the bounds of this very lax law, intercepting private emails and phone calls of Americans illegally (New York Times, 4/16/2009)
• all those communications are stored on a searchable database, allowing the government to get information on specific Americans without any suspicion that they have committed a crime (Huffington Post, 9/6/2012)

The JUSTICE Act, which would amend FISA to prevent the government from collecting phone calls and emails originating within or directed to the United States, will likely not be reintroduced in the Senate this session, let stand the decision in Holder v. Humanitarian Law Project, eroding first Amendment rights. Holder authorized guilt by association, allowing prosecutors to secure terror convictions without establishing—or even alleging—a defendant’s intent to support violence.

With no Senators willing to stand by the JUSTICE Act, and the NSA refusing to answer Senator Wyden’s tough questions, we must act now.

Take a moment and contact your Senators and demand they vote against the proposed extension of FISA until the NSA finally answers congressional questions about how many Americans have been impacted by the agency’s admitted violations.

This year’s post-election “lame duck” congressional session presents several disturbing threats—alongside exciting opportunities—for fundamental civil liberties. [See below for updates since this post was originally written.]

Measures extending government authority to conduct dragnet warrantless wiretapping, and arbitrarily detain Americans in domestic military detention without trial, have passed the House and now loom before the Senate. Yet members of Congress willing to do their jobs could support alternative measures to protect privacy and dissent.

Will our government’s assault on privacy and due process continue, or instead recede in the face of long overdue checks and balances?  The answer turns largely on whether your federal representatives hear from you. BORDC launched an online petition last week to help raise your voice as part of a grassroots transpartisan chorus.

It includes four requests of federal representatives, relating to FISA, the NDAA, the JUSTCE Act, and ECPA. (If any of those acronyms are unfamiliar, this post is for you.)

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As news media gossips on a sex scandal that transformed Pentagon corridors into high school hallways, their chatter belies a critical discourse surrounding the investigation of former CIA director David Petraeus.  Besides gratifying a cultural fixation with the salacious, the Petraeus scandal invokes inquiry into how the FBI could observe his correspondence with Paula Broadwell.

It also illustrates the necessity for broader protections from state surveillance: if the nation’s top intelligence official can so whimsically come under the federal government’s watchful eye, what security do “We, the people” have against government intrusion?

While the Electronic Communications Privacy Act of 1986 (ECPA) once furnished such insulation, its outmoded provisions and obsolete restrictions fail to address contemporary threats to privacy and free speech. Reforming ECPA to require a judicial warrant to justify searches and seizures of the content of electronic communications will minimize civil liberties violations in the course of federal investigations.

The circumstances of Petraeus’ well-publicized scandal demonstrate how our government may casually obtain private information under the current legislative framework.  As reported by various news outlets, the FBI investigation of Petraeus began after socialite Jill Kelly complained to an acquaintance at the FBI about receiving anonymous, harassing emails.  Jill Kelly’s federal friend suggested an investigation to his superiors, and a superfluous cyber-stalking investigation revealed that Paula Broadwell, Petraeus’ biographer and mistress, had sent Kelly incendiary emails to discourage her friendship with Petraeus.

The FBI subsequently achieved access to Broadwell’s Gmail account and discovered her relationship with Petraeus through unsent messages in a drafts folder.  Though the saga continues on, these details alone suggest a lack of privacy in one of our most prominent means of personal communication.

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The American Legislative Exchange Council (ALEC) is an organization that describes itself as the “largest membership association of state legislators.” However, this group of legislatures came under scrutiny when the public learned that 98% of their revenue was provided by sources outside of the state, mainly corporations and corporate foundations. The heavy financial involvement of corporations in ALEC allows, essentially, for big business interests to have much more sway on the passage of legislation than is constitutionally appropriate. When laws are made for the benefit of business at the expense of the public, there are clearly problems in the law-making process.

These problems don’t stop with ALEC. There is a whole range of non-profit organizations dedicated to codifying the “corporate playbook” into US law. The Council of State Governments (CSG), the State Legislative Leaders Foundation (SLLF), and the National Conference of State Legislatures (NCSL) are a few examples of corporate-sponsored groups that encourage “business-friendly” legislation at the expense of citizens’ rights.

Steve Horn and Sarah Blaskey of Truthout write that one of the key ways big business interests have trumped real justice is in terms of the preservation of civil liberty. Businesses have been using the “danger to society” approach to target individuals who might threaten their profits for the past 20 years. BORDC’s Shahid Buttar elaborates:

I think a lot of people believe the false trope that liberty started getting attacked in the name of security after 9/11 and that’s when the constitutional crisis started. It actually started well before that. . . In the counter-terrorism context, the particular arena in which First Amendment rights were first under attack was not prosecution of Muslims post-9/11, but rather environmentalists in the late 1990s – who were serially not just criminalized, but designated as terrorists.

Loosely defining terrorism as a means of protecting business interests is a method still regularly utilized by corporate-minded lobbyists. A model bill proposed by CSG demands it be made “a felony offense under state law for people, charitable organization, professional fundraisers or professional solicitors to solicit or provide material support or resources in support of international terrorism.” Of course, “international terrorism” is a loaded term with a seemingly infinite number of interpretations, as is “material support” for that matter.

Under such terminology, corporations are free to point the finger at meddlesome, business-blocking “terrorists” and see them prosecuted under the law. This must be stopped. Ultimately, The United States needs to have a legislative body run independent of bias and unjust minority influence. . . or risk sacrificing the majority of its citizens’ constitutionally-established rights.

“I want you to leave. I want you to go back to your desert sandpit where women are treated like rats and dogs. I want you to take your religion, your friends, and your family back to your Islamic extremists, and STAY THERE!” These words are from an essay penned by Pilot John Maniscalco and dedicated to his “Arab-Muslim neighbors.” They are also among the words included in an email forward sent from the most senior Immigration and Customs Enforcement (ICE) officer in Montana to one of the state’s top immigration lawyers, Pakistani-American Shahid Haque-Hausrath. “Good Read” was the email’s subject line.

It is still unknown whether the ICE official, Bruce Norum, purposefully forwarded the electronic letter to Haque-Hausrath or simply added his name to the email’s sender list by accident. What is known, however, is that Norum got to keep his job as a high-ranking immigration enforcer even after Haque-Hausrath filed a formal complaint with the Department of Homeland Security (DHS). This raises frightening questions about DHS’ ability to secure remedies or resolve cases brought before the Department’s Office for Civil Rights and Civil Liberties (CRCL), an issue that BORDC first raised in the summer of 2009. It also raises concerns about the level of bias with which our nation lets immigration officials operate.

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