An updated version of the Electronic Communications Privacy Act (ECPA) of 1986 has been approved by the Senate Judiciary Committee. The ECPA governs  privacy regulations for nearly everything on the internet, and has not been updated in 27 years, despite significantly evolved technology. Other reforms for the ECPA were passed by the committee November 2012, but not voted on by the whole Senate before the end of their session.

The current ECPA requires a warrant for emails less than six months old. Other information stored online or older emails can be accessed by government officials with only a subpoena. The current version of the law has led to many confused and contradictory legal rulings on what counts as “electronic storage,” a term defined before cloud computing. The updated version passed by the Judiciary Committee, would require officials to get a search warrant from a judge before searching for any online data.

The Bill of Rights Defense Committee, as part of the Digital Due Process Coalition, joined over eighty other organizations and companies to send a letter to the Chairman of the Senate committee, Patrick Leahy, endorsing the amendments to the law. The letter states that the updates, “would provide clarity and certainty to law enforcement agencies at all levels and to American businesses developing innovative new services and competing in a global marketplace.” Other cosigners included Microsoft, Facebook, Mozilla, Twitter, Google, and Yahoo.

The BORDC’s Shahid Buttar said that:

Laws protecting our privacy online have been obsolete for decades, leaving all Americans at risk of arbitrary electronic seizures. The proposed reforms to ECPA are not enough by a long shot, but  it is long past time for Congress to fix the digital exception to the 4^th amendment.

These updates to ECPA must be passed in the Senate and the House before they are approved, but according to Politico, Congress is not expected to oppose the bipartisan amendments. It is important to remember that just a week ago the House of Representatives passed the Cyber Intelligence Sharing and Protection Act (CISPA). The Senate has not seemed eager to approve CISPA and is making small steps towards protecting our online information by updating ECPA, but more regulation is needed to bring constitutional protection into the digital age.

On Thursday, April 18, despite unresolved  and integral privacy issues, the House of Representatives voted against privacy and approved the Cyber Intelligence Sharing and Protection Act (CISPA). The legislation passed with 288 votes in favor and 127 against. While the majority of yes votes were Republican, nearly half of the Democrats in the House voted yes.

The vote comes on the heels of the CISPA Week of Action, in which corporations and Americans made their opposition to the bill clear. Companies such as Craigslist and Firefox took part and thousands of people contacted their representatives in Congress to express their concern around CISPA. Earlier this week, the White House also issued a veto threat, stating:

[T]he administration still seeks additional improvements and if the bill, as currently crafted, were presented to the president, his senior advisers would recommend that he veto the bill.

CISPA passed out of the House Intelligence Committee last week by a vote of 18-2. The bill was marked up in a closed session on Thursday, April 10, despite urgings from the privacy and civil liberties community to the contrary. BORDC, along with 40 other organizations, signed a letter urging an open and transparent markup. The closed markup begs the question: if the bill presents no privacy concerns, why not move it forward in a transparent and open way?

Unsurprisingly, the markup did not yield a significantly improved version of the bill. The committee voted down four amendments that would have significantly increased privacy protections. On the floor, the House voted down further privacy amendments, including one amendment that:

would have ensured companies’ privacy promises — including their terms of use and privacy policies — remained valid and legally enforceable in the future. Another would have curbed police ability to conduct warrantless searches of CISPA-shared data.

The sponsors of the bill, Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD), have maintained that there is no reason for concern, making inaccurate and misleading claims about the bill. They have argued that the bill does not contain overbroad provisions or definitions, brushing over the legal protections from liability for negligent actions by corporations that the bill creates. This is hardly surprising, consider the corporate interests behind the bill, and the dollars they have spent on lobbying. In fact, CISPA supporters spent 140 times as much lobbying as CISPA opponents. Similarly, CISPA supporters have donated 13 times more money in campaign contributions as CISPA.

However, it appears that the Senate has not been convinced. The bill still has to be approved in the Senate, and it appears that they are not eager to move.  Senate reticence and the White House veto threat are good news, but anyone concerned about online privacy should continue to check out Electronic Frontier Foundation’s CISPA action page.

The Cyber Intelligence Sharing and Protection Act (CISPA) is continuing to move through Congress despite major, unresolved privacy issues.

Several weeks ago, privacy advocates, consumers associations, and technology companies all worked together during the Cyber Intelligence Sharing and Protection Act (CISPA) Week of Action to address the major privacy flaws in CISPA, H.B. 624. The week of action was a major success, with companies such as Craigslist and Firefox taking part and thousands of people contacting their representatives in Congress to express their concern around CISPA. However, the fight over CISPA is just beginning. Last week, CISPA passed out of the House Intelligence Committee by a vote of 18-2.

The sponsors of the bill, Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD), have maintained that there is no reason for concern, making inaccurate and misleading claims about the bill. They have argued that the bill does not contain overbroad provisions or definitions. Yet as EFF’s Mark Jaycox correctly notes:

The best example of a dangerous undefined term in the bill is found within the overly broad legal immunity for companies. The clause grants a company who acts in ‘good faith’ immunity for ‘any decisions made’ based off of the information it learns from the government or other companies. . . Companies should not be given carte blanche immunity to violate long-standing computer crime and privacy law. And it is notoriously hard to prove that a company acted in bad faith, in the few circumstances where you would actually find out your privacy had been violated.

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This week, BORDC participated in the week of action against CISPA,the Cyber Intelligence Sharing and Protection Act. Participants ranged from civil liberties advocates to major companies. Craigslist, Firefox, and Reddit all displayed anti-CISPA messages that allowed users to connect with online action opportunities. Since the week of action began, the list of supporters has continued to grow daily.

As we wrote several weeks ago, CISPA is back in front of Congress after it elicited significant opposition from the privacy and civil liberties world last year. Even those who argue that some form of cybersecurity is needed acknowledge that there are serious flaws in CISPA as written. The bill is riddled with problematic provisions, including immunity from civil or criminal liability for companies who share users’ private information with the government, the ability to use intelligence information information they receive from the government for reasons completely unrelated to cybersecurity, including  commercial purposes, and authorization to share information directly with the National Security Agency.

While many of the major corporations that supported the bill last year have maintained that support, there is one noteable absence: Facebook. While the company has not come out in vocal opposition, Facebook reps did tell Cnet that the company: “prefer[s] a legislative ‘balance’ that ensures ‘the privacy of our users.’” Microsoft is also absent from the list of CISPA supporters this year, while other big corporations like AT&T and IBM continue to support the legislation.

That support has not only taken the form of letters sent to the House Intelligence Committee. One of the sponsors of the bill, Rep. Mike Rogers (MI-08-R) made a major gaffe this week. He retweeted a a story that revealed that members of the House Intelligence Committee “have received, on average, 15 times more money in campaign contributions from pro-CISPA organizations than from anti-CISPA organizations.” He deleted his tweet 23 minutes later, but not before the Sunlight Foundation got a screen shot of it. His tweet is a prime example of why CISPA is so concerning; it is being driven by the lobbying of corporations with horrible privacy track records that will be shielded from liability and potentially make millions off shared information.

At this point, it is likely that a vote on CISPA will take place in mid-April, which means there is still plenty of time to contact your representative to tell them what you know about the bill. Be sure to watch our blog, as well as BORDC ally EFF’s homepage for continuing updates.

March 2013, Vol. 12 No. 03

View this newsletter as a webpage: http://www.bordc.org/newsletter/2013/03/

March 2013, Vol. 12 No. 03

View this newsletter as a webpage: http://www.bordc.org/newsletter/2013/03/

Paul leads filibuster of Brennan nomination to lead CIA

On March 6, Senator Rand Paul (R-KY) forced a long overdue conversation in Washington about checks and balances on executive power by leading a bipartisan filibuster of John Brennan’s nomination to lead the CIA.

BORDC News

BORDC in the news

In the last month, BORDC and coalitions we support across the nation have appeared in various press outlets to promote concerns about constitutional rights and the powers of police and intelligence agencies that abuse them.

Read the latest news & analysis from the People’s Blog for the Constitution

Have you read BORDC’s blog lately? The People’s Blog for the Constitution has attracted a growing audience that has tripled over the past year. Featuring news & analysis beyond the headlines on a daily basis, it offers a great way to stay up-to-date and informed.

Highlights from the past month include:

• Strict immigration enforcement both wasteful and harmful by Munazza Fairooz Khan
• Virginia joins growing list of states to stand against drones by Michael Figura
• Berkeley community groups protest Kayla Moore’s death by Emily Walsh
• February 2013 Patriot Award: Peggy Littleton by Imad Khan
• Massachusetts legislature to consider drone privacy bills by Yiqian Wang
• Brown liars and the rise of ‘Warrior Academics’ by Kyla Kuvach
• San Francisco says no to indefinite military detention by Nadia Kayyali
• A promising step against domestic drones by Dave Mitchell
• Supreme Court ruling goes to the dogs by Rebecca Palermo
• BORDC in the News: March 4-11, 2013 by Alok Bhatt
• Killing us softly by Shahid Buttar

BORDC’s Shahid Buttar speaks in Austin, TX

On Tuesday, March 5, BORDC’s Shahid Buttar spoke at the University of Texas School of Law in Austin. Hosted by the American Constitution Society, his talk, which was videotaped and is available online, addressed “Power and Accountability in the Post-9/11 era: torture, targeted killing, and domestic drone surveillance.”

BORDC hosts reception to celebrate recent Bay Area organizing victories

On Sunday, May 5, BORDC will host a reception in San Francisco celebrating the organization’s first decade of grassroots organizing to restore civil liberties, and several recent policy victories across the San Francisco Bay Area.

Grassroots News

March 2013 Patriot Award: Mary Madden

Every month, BORDC honors an individual who has made an outstanding contribution in his or her community to the movement to restore civil liberties and the rule of law. This month, the Patriot Award goes to Mary Madden for her extraordinary and committed activism and organizing.

Grassroots updates

To view campaigns supported by BORDC at a glance, visit our interactive campaign maps for local coalitions addressing surveillance and profiling by local law enforcement, or military detention under the NDAA. To get involved in any of these efforts, please email the BORDC Organizing Team at organizing (at) bordc (dot) org. We’re eager to hear from you and help support your activism!

• Nationwide: Campaigns emerge to address domestic surveillance drones
• Boston and Cambridge, MA: Diverse coalition takes action in several ways
• Hartford, CT: Public education on how immigration enforcement could undermine civil liberties
• New York City, NY: Residents gather to challenge drones and detention, while lawsuit proceeds vs. NYPD stop-and-frisk profiling
• Annapolis, MD: Statewide coalition challenges NDAA, plans upcoming discussion event
• Asheville, NC: Coalition mobilizes to support proposed Civil Liberties Ordinance
• Cleveland, OH: Coalition launches monthly vigils, bus tour, and petitions
• Chicago, IL: Coalition mobilizes to challenge suppression of dissent, anti-immigrant profiling
• Madison, WI: New coalition initiates public education campaign
• Helena, MT: House votes unanimously to approve bill vs. NDAA
• Los Angeles, CA: Coalition plans community mobilization for upcoming Police Commission meeting
• San Francisco, CA: The 18th city to say “No!” to indefinite detention under the NDAA
• Seattle, WA: Community considers racial profiling and drones
• Friday Harbor, WA: Coalition organizes educational forum

Law and Policy

Bipartisan legislation introduced to curtail domestic surveillance drones

Earlier this month, Representatives Ted Poe (R-TX) and Zoe Lofgren (D-CA) introduced the Preserving American Privacy Act of 2013 (HR 637), a bipartisan bill that would establish basic legal ground rules for the domestic use of unmanned drone aircraft. The principles now governing searches by this new technology are vague, and the clarity of this bill would greatly benefit both police and the public.

CISPA threatens military control of domestic cybersecurity

The Cyber Information and Sharing Act (CISPA) was first introduced last year by Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD). It prompted 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.” Nonetheless, CISPA is back.

Immigration enforcement: a Trojan horse?

Calls for comprehensive reform of federal immigration law have prompted a bipartisan debate on Capitol Hill. Most observers, however, have overlooked how stronger immigration enforcement could undermine the rights of not only immigrants, but also US citizens.

DC Circuit Court forces CIA to at least acknowledge documents about drones

On March 15, the US Court of Appeals for the DC Circuit ruled that the CIA must respond to a FOIA request by the ACLU seeking information about the targeted killing program using drone aircraft. While the decision does not require the actual disclosure of the documents, which the lawsuit will now move on to address, it does represent a rare example of the federal judiciary standing up to government secrecy and asserting an independent check and balance.

National Security Letters held unconstitutional

On March 15, a federal judge in California struck down National Security Letters (NSLs) as unconstitutional violations of free speech. US District Judge Susan Illston ordered the Justice Department and FBI to stop issuing NSLs, which are unilateral demands for private information unsupported by a judicial warrant, and also ordered them to stop enforcing gag orders attached to NSLs in other cases.

US Supreme Court places NSA above the law in Clapper v. Amnesty

On February 26, 2013, the US Supreme Court ruled 5-4 to allow warrantless wiretapping to continue. The controversial decision places the National Security Agency (NSA) above the law and insulates it from judicial review.

New Resources and Opportunities

Join the struggle for Due Process vs. domestic military detention under NDAA

The transpartisan grassroots movement against the domestic detention provisions of the National Defense Authorization Act (NDAA) is growing. Nearly 20 cities have passed resolutions supporting Due Process, and organizers are using Facebook to help build statewide campaigns in several states.

BORDC to host spring convenings in the Northeast and Bay Area

BORDC supports grassroots organizers as they build diverse coalitions seeking local protections and civil rights and civil liberties. A pair of upcoming convenings offer opportunities for organizers to travel to the Northeast in April, or Bay Area in May, to share skills and case studies with allies from other cities.

Micro-grants offer opportunities for grassroots action

To help encourage outreach, public education, and grassroots mobilization, BORDC has provided micro-grants to coalitions that have participated in one of BORDC’s anchor convenings, such as the May 2012 convening in Chicago. Grants of $300 to $500 are available to help active coalitions expand their local visibility, host events, or build capacity.

This past month, Representatives Ted Poe (R-TX) and Zoe Lofgren (D-CA) introduced the Preserving American Privacy Act of 2013 (HR 637), a bipartisan bill that would establish basic legal ground rules for the domestic use of drones (aka “unmanned aircraft systems”). The principles now governing searches by this new technology are vague, and the clarity of this bill would greatly benefit both police and the public. It represents a promising and crucial step in reigning in overbroad domestic surveillance. The following is a brief summary of its provisions and some suggestions for improvement.

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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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In Attorney General Eric Holder’s recent contentious appearance before the Senate Judiciary Committee, he hinted that President Obama would soon make a speech on the topic of drone usage for targeted killing. Holder alluded to President Obama’s promise for more openness on the issue in his State of the Union address:

“We have talked about a need for greater transparency in what we share, what we talk about,” said Holder, who added that with the release of more information, “there would be a greater degree of comfort that this government does these things reluctantly but also in conformity with international law, with domestic law and with our values.”

Transparency

The executive’s track record on this has been dismal. The administration first denied the existence of any sort of drone or targeted killing program, continued to use the denial as a shield against liability for its killings in court, while beginning to announce its reasoning informally in speeches by various executive officials.

Any actual documentation of the administration’s logic for assassinating  both citizens and non-citizens was unseen until a “white paper“ summarizing a portion of the goverment’s logic was leaked to the press.

Finally, the administration has begun to show some of the actual (still classified legal) memos outlining the criteria for extra judicial killing to selected members of congress.  However, the public still doesn’t know under what circumstances the President and his lawyers think would justify their murder from the sky.

Transparency would be a good first step. Senator Rand Paul (R-KY) staked out a courageous position on in his recent filibuster, finally forcing Eric Holder to declare:

Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

However, this representation (which begs the question: how does Holder define combat?), disclosure of all of the legal memos around drones, and a clear speech from President Obama explaining his necessity for keeping a “kill list” (or “disposition matrix,” if you prefer the administration’s sanitized euphemism) are only the beginning.

Accountability

Ultimately, the people of the United States and their all too often cowed representatives in Washington need to demand a stop to murder, killing and assassination by drones in contravention of the Constitution, international law and human rights law. The broad claims staked out in the leaked white paper make clear that the administration is currently operating under a rubric that violates all three.

While some constitutional issues are esoteric, the protections of due process under the Fifth Amendment are not.  The government does not have the right to deprive you of your life, after review of your perceived sins by government officials on “Terror Tuesdays.”

Some in Congress and the punditocracy have suggested that the due process problem be solved by so called “drone courts” where the government would secretly present the evidence against you to a judge who would then sign a death warrant. While paying some lip service to the idea that an independent judiciary can constrain executive power, a secret court authorizing murder is not a check or balance in any meaningful way.

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A bipartisan filibuster of John Brennan’s nomination to lead the CIA riveted Washington on Wednesday. Senators from both sides of the partisan aisle, led by Sen. Rand Paul (R-KY), took to the Senate floor to force further debate on a nomination that should not proceed.

Sen. Paul’s 12 hours of comments included a succinct and clear expression of his concerns:

I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.

Brennan’s nomination presents a rare window of accountability, and Senators are right to use it as an occasion to challenge an administration prone to self-congratulation about transparency, even while extending government secrecy and executive fiat to unprecedented levels.

How we got here

Brennan was deemed unfit to lead the CIA four years ago, because of his record at an agency whose institutional hands remain stained by human rights abuses for which it has never faced (and indeed actively obstructed) justice.

Even worse than the CIA’s human rights abuses, or its self-serving destruction of evidence of international crimes, is an expanding set of disturbing claims by executive branch officials that must be rejected for our Constitution to survive.

Attorney General Eric Holder testified about the power to kill Americans without trial before the Senate Judiciary Committee on Wednesday, after sending a related letter to Sen. Paul the day before. His letter asserted the authoritarian power to kill Americans without trial, even within the United States, followed by congressional testimony arguing that Congress’ Authorization to Use Military Force (AUMF) in Afghanistan could also justify military action within the US.

Those conclusions, put simply, render our country unfit to be considered part of the free world, let alone its leader.

In 2001, Congress enacted the AUMF to enable the invasion of Afghanistan, not authorize domestic warfare. Moreover, it has already been stretched well beyond the limits of plausible interpretation: even before President Obama came to the White House, the AUMF was cited to justify the detention of US citizens in military custody without proof of crime.

Senators from both parties had previously raised concerns about assassination without trial, which is absolutely illegal under not only the US Constitution, but even the Magna Carta. The administration’s responses to their inquiries unfortunately make matters only worse.

This week’s developments

On the one hand, Holder claims that the authority to arbitrarily kill Americans within the US could be triggered only by an extraordinary event on par with Pearl Harbor or the 9/11 attacks. On the other hand, the few legal limits that executive officials have previously acknowledged are themselves routinely violated in practice. In other words, nothing would prevent this extreme power from being used abusively.

Until this week, the battle over Brennan’s nomination had focused on disclosure: whether the Holder Justice Department (and, in particular, its Office of Legal Counsel infamous for authorizing torture under the Bush demonstration) would give Congress key documents that members have long sought to identify the legal standards under which the administration conducts drone strikes targeting American citizens.

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Comprehensive immigration reform, along with the fiscal cliff and sequester, has recently dominated Washington. But observers have overlooked how calls for stronger immigration enforcement could undermine the rights of not only immigrants, but also US citizens.

Conservative members of Congress have demanded tighter enforcement as a condition of considering meaningful reform of federal immigration policy. But enforcement-first immigration reform could wreak havoc with the fundamental liberties of citizens. If libertarians recognized how conservative policy proposals threaten their interests, the debate could shift dramatically.

What enhanced immigration enforcement could look like

Immigration enforcement takes primarily two forms: border security and interior enforcement. Each poses a threat to Americans who value their own freedom. The border security debate hides the most severe potential pitfalls, only because the privacy implications of interior enforcement have at least been discussed in public.

Many conservatives want to lock down our borders even more than our federal agencies already have. Yet American’s borders have never been more secure. In 2012, our government spent $18 billion on civil immigration enforcement, more than combined spending on all agencies that enforce criminal laws.

Proposals to further tighten border security have included increasing the deployment of domestic surveillance drones, expanding immigration checkpoints, building a fence, and adding more agents to the already bloated rosters of CBP and ICE.

Beyond border security is interior enforcement, which Bush and Obama both escalated, reflected in record numbers of deportations. Recent proposals emphasize technology: the controversial E-verify program to force employers to enforce federal immigration law, or similar programs like 287(g), Secure Communities, or the Next Generation Initiative, which co-opt local police and undermine public safety.

Confused premises

Whether at the border or within the US, the demand for tighter enforcement ignores reality: net migration across the southern border has already turned negative, driven by harsh profiling, alongside continuing stagnation in job growth, which has made immigration less economically attractive.

In other words, tighter border security and enhanced interior enforcement are unnecessary, at best. According to Marc Rosenblum from the Congressional Research Service, “additional investments at the border may be met with diminishing returns.”

Beyond diminishing returns, enhanced border security could prove nightmarish — not just for undocumented families, but also US citizens. Border security could diminish our own freedom to travel, while interior enforcement poses a covert threat to privacy.

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