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.

• 1/8, Glen Johnson, Boston Globe, White House taking more control of national security team
• 1/8, Nick Baumann, Mother Jones, Obama Administration Interrogating Terror Suspects Locked Up Abroad (Again)
• 1/8, Deepa Iyer, Huffington Post, Safe Communities Start With Each of Us
• 1/7, Editorial, New York Times Opinion Pages, Nominations for Defense and the C.I.A.

This is the first part in a series examining opportunities for the Obama administration to return, in the wake of the 2012 election, to the president’s promises from the 2008 campaign to restore liberty and security. Part II and part III are also available.

President Obama’s reelection has sparked an onslaught of analysis attempting to define the agenda for his second term. Will it reflect the vision of restoring liberty and security on which the president ran in 2008, or the disappointing passivity towards the national security state that characterized his first term?

More to the point, will President Obama’s legacy include emerging American authoritarianism, or instead the recovery of constitutional freedoms lost over the past decade? While machinations in Washington will of course influence the answer, We the People will play a crucial role, well beyond the 2012 election, in determining the outcome.

Obama’s legacy of constitutional violations

With the broad strokes that history affords the past, any president’s legacy usually shrinks within a decade to two or three elements. For instance, Clinton is remembered for presiding over the tech boom and resulting federal surplus, dismantling welfare and escalating mass incarceration, and surviving a partisan impeachment effort prompted by sophomoric sexual indiscretion.

George H. W. Bush’s legacy includes the first Iraq war, failing to energize the economy, and a premature pledge not to raise taxes. We remember Ronald Reagan for overcoming the Soviet Union and its satellites (even if his methods ensured the contemporary budget crisis, created al-Qaeda, and emboldened Iran), heralding “morning in America” to end a recession, and after surviving an assassination attempt, conveniently growing unable to recall more or less anything about compounding scandals that stained his second term.

In these broad strokes, President Obama’s legacy will likely include memories of the historic debate over healthcare policy in 2009, and the recurring budget crises that, combined with GOP intransigence, have periodically brought Washington to a standstill under his administration. The most enduring part of his legacy, however, will be the entrenchment of the national security state on his watch.

Beyond merely failing to reverse the trajectory of the Bush-Cheney administration, Obama’s first term extended it, pioneering new abuses while entrenching old ones.

Unlike Obama, Bush & Cheney never asserted the authority to kill US citizens based on their speech.

Unlike Obama, Bush & Cheney never signed into a law a statute granting the military the power to detain any American without evidence or proof of crime.

While Bush & Cheney violated international law by authorizing torture, it took the Obama administration to decide  that such criminal acts would go unpunished (or even investigated), ensuring their recurrence and nailing the coffin of international human rights.

The Obama administration’s prosecution of whistleblowers who sacrifice their jobs to defend the public interest has reached unprecedented levels, as have deportations of undocumented workers, their families, and occasionally, even US citizens. Rather than repudiate the Bush & Cheney paradigm, Obama has unfortunately perpetuated it.

A former President’s warning

50 years ago, a president with the deepest military roots among any who has held office since then–no mere General, but the Supreme Allied Commander during World War II, Dwight “Ike” Eisenhower — issued a disturbing warning about a threat to our democracy posed by “an immense military establishment and a large arms industry” that, together, he described as “the military-industrial complex.” President Eisenhower said, in no uncertain terms, that:

“[W]e must guard against the acquisition of unwarranted influence…by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

Ike observed the larval stages of a dynamic that has grown only more pernicious since he left office. In the decade since 9/11, under Presidents Bush and Obama alike, our military-industrial complex has initiated not only various military conflicts abroad, but also a domestic war on the constitutional rights of the American people.

Secret and increasingly immune to public accountability, if not above the law altogether, and insulated from accountability by elected leaders from each of the major political parties, an alphabet soup of federal agencies has emerged to pursue a duplicative, wasteful, and constitutionally abusive national security agenda.

(more…)

When it comes to the inner-workings of and decisions made by our government, many Americans feel out of the loop. Whether one believes that Washington should disclose more information given the difficult aftermath of an economic recession and an ever-developing conflict in the Middle East, or that the lack of transparency is crucial to our national security, one question would be wise to ask: Is our government excessively secretive?

The 2012 Secrecy Report, a document authored collaboratively by Patrice McDermott, Amy Bennett and Abby Paulson of Open the Government.org, discusses the federal government’s expensive and suspicious preoccupation with keeping information classified.

In maintaining secrecy surrounding matters of national security, the government has been remarkably diligent. The report specifically speaks of National Security Letters (NSLs), which are FBI requests for private information about persons (of entire groups) of interest. Expanded by the USA PATRIOT Act, NSLs can demand the disclosure of private information about anyone at any given time, with or without probable cause, even from third parties.

These information “requests” are not like search warrants issued by local law enforcement agencies. A recent article in the ABA Journal shines a light on how significantly the two differ and the response NSLs are garnering. According to the 2012 Secrecy Report, the Justice Department says the government issued 16,511 NSLs on 7201 Americans in 2011, requesting data from internet service providers, telecommunications companies, etc. In 2010, there were a staggering 24,287 requests. Examples like March 2012 Patriot award winner Nick Merrill from the Calyx Institute are especially worth emulating at a time like this.

The report also points out that the Obama Admininstration “urged Congress to renew provisions of the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA) that are set to expire at the end of this year.” Even beyond the unchecked intrusion of NSLs, the current administration is pushing for a provision that would make court orders unnecessary for surveillance of “entire categories of non-U.S. persons who are located abroad.”

While extending its own secrecy, our federal government has taken steps to ensure that, soon, you won’t be able to have secrets of your own.

The latest threat to the constitutionally guaranteed privacy of Americans and blatant affront to our deductive reasoning is the construction of a 1million sq. ft. facility known as the Utah Data Center. This facility will be among the largest of its kind and will effectively serve as a primary source of data collection for the federal government, specifically the National Security Agency, as early as September 2013. Like other intrusions, the development of the UDC is being presented as a defensive measure, yet another necessary increase of national security. However, there is cause for concern and has been much warranted criticism that this data retrieval epicentre will further violate the privacy of millions of people, domestically and abroad.

James Bamford, investigative journalist and author of The Shadow Factory: the Ultra-Secret NSA from 9/11 to the Eavesdropping on America, recently appeared on The Young Turks to discuss the project. In the interview, Bamford said, “This will be an enormous center to store all of the surveillance that NSA is doing, all the eavesdropping on email, telephone calls, tweets, internet searches, [etc].”

When questioned by The Young Turks about the widespread fears of government intrusion and what their surveillance actually entails, the National Security Agency responded by saying, “…one of the biggest misconceptions about NSA is that we are unlawfully listening in on , or reading emails of, U.S. citizens. This is simply not the case. ”

Bamford, however, claims that email eavesdropping is merely the tip of the iceberg.

(more…)

This week, Congress prepares to abuse the Constitution again, by extending its 2008 amendments to the Foreign Intelligence Surveillance Act (FISA). With the House of Representatives poised to vote today on a premature five year extension, will members remember what they heard when theatrically reading the Constitution on the House floor, or instead entrench the Bush-Cheney legacy beyond even the next administration?

When Congress first voted back in 2008 to give the National Security Agency the power to eavesdrop on any—in other words, every–American without any reason for individual suspicion, it did so without a full picture of what it allowed. Indeed, the full contours of the program remain secret even today.

The only reason the NSA’s spying powers have survived this long is because courts have refused to consider claims that they are unconstitutionally invasive. The Supreme Court will consider one such case this fall — which, if successful, will merely allow the several year process of a litigation challenge to finally begin.

Even though much of it remains shrouded in secrecy, we do know a few things about the NSA’s warrantless spying program authorized by FISA.

We know that it began illegally, without any authorization by Congress and in clear violation of the FISA law crafted by Congress in the 1970s to stop our government from spying on Americans.

We know it is so vast and unchecked that, nearly ten years ago, Attorney General John Ashcroft refused to authorize it, even despite coercion from the Bush White House.

We know that an architect of the program, alarmed at how his work was co-opted to abuse the rights of Americans, blew a whistle about fraud and waste, only to face prosecution by the Obama Administration for espionage–until a federal court ultimately told the government to stop chasing a loyal servant of the American people.

We know that the NSA has violated even this incredibly permissive law, abusing its own powers and the rights of untold numbers of Americans. Our government has admitted to that much, without offering any way to know how widespread those violations have been — or remain.

We know that the executive branch currently interprets parts of other surveillance laws in secret, allowing government activities even beyond the intentions of their authors.

We know that congressional Democrats–including then Senator Obama–joined their Republican colleagues in 2008 to approve FISA, even while both parties paid lip service about defending constitutional values in Washington. Despite the partisan rancor apparent on many issues, Congress marches in lockstep on national security, elevating government power well beyond constitutional limits.

We know that, despite Washington’s wrangling over the budget crisis, the NSA has never justified its massive costs to the American people. In fact, Congress knows neither what the program costs, nor when the NSA’s program has actually helped national security, let alone whether those costs are justified!

We know that FISA has enabled the most pervasive state surveillance system ever known to humankind. The only settings in which powers like it have ever existed are dystopian science fiction novels.

Even the former Soviet Union and contemporary China, for all their efforts to control their people, lacked the resources to conduct the kind of monitoring that the NSA does every day — not only on terror suspects, but on you and your family.

We also know that the Obama administration has supported the Bush-Cheney NSA policy, extending it once before — even though Senator Obama, before winning the White House, promised at one point to vote against it. Until President Obama signed a 2011 law granting our military the potential power to detain any American indefinitely without proof of crime, FISA was the high water mark of the post 9-11 national security state.

Finally, we know that the American people can still defend our rights when aroused. Earlier this year, a grassroots firestorm stopped SOPA and PIPA before they transformed the Internet.

Congress already gave our government the power to conduct mass domestic spying by approving FISA four years ago, but a grassroots clamor this fall could stop that power from being renewed in the Senate — or at least force Congress to finally do its job and ask tough questions that should have been answered long ago, before writing the NSA yet another blank check.

On Tuesday, August 14, a federal judge issued a disturbing ruling allowing the Federal Bureau of Investigation (FBI) to evade public accountability for infiltrating faith institutions, monitoring law-abiding people, recording sexual encounters, and then lying about all of it. Carney’s decision erodes democracy in two dimensions at once, enabling ongoing constitutional violations by the executive branch while, at the same time, eroding judicial independence.

The ruling is especially surprising given the judge’s previous criticism of the FBI for lying to him in court.

Fazaga v. FBI addressed claims by a series of southern Californians challenging a long running secret infiltration of their faith institutions by an ex-convict and undercover FBI informant named Craig Monteilh. After being promised a six figure payment to infiltrate mosques across southern California—and even to record sexual encounters with women in those communities to enable subsequent blackmail—Monteilh blew a whistle and joined a case brought by the Council on American-Islamic Relations; Hadsell, Stormer, Richardson & Renick LLP; and the ACLU of Southern California.

US District Judge Cormac J. Carney of the Southern District of California dismissed much of the case this week (leaving intact claims against individual FBI officers under the Foreign Intelligence Surveillance Act), holding that the state secrets privilege and sovereign immunity essentially preclude the suit from moving forward against the government.

News outlets such as The Los Angeles Times have featured analysis from ACLU attorney Ahilan Arulanantham, who correctly noted that Judge Carney’s ruling is “contrary to the basic notion that the judiciary determines what the law is and holds the government to it,” and that the ruling essentially “exempt[s] huge swaths of government activity [from] judicial oversight.”

Missing from most reports, however, are a recognition of the multiple ways in which Carney’s decision erodes democracy.

(more…)

• 7/30, MyFoxNY, NYPD to launch surveillance software system
• 7/30, Morris Davis, Los Angeles Times, Consign Bush’s ‘torture memos’ to history
• 7/30, Mark Jaycox, Lee Tien, Trevor Timm, Electronic Frontier Foundation, Why The NSA Can’t Be Trusted to Run U.S. Cybersecurity Programs
• 7/30, ACLU, ACLU Seeks Details on Automatic License Plate Readers in Massive Nationwide Request
• 7/29, Greg Guma, VTDigger.org, FBI agents try to interview activists about Burlington protests
• 7/27, Editorial, Washington Post, Is the U.S. classification system dysfunctional?

When the United States championed democracy, freedom, and opportunity, it made sense to celebrate the Fourth of July.  But are we still promoting those values? If we are paragons of neither opportunity nor freedom, what exactly do we celebrate today?

Our Statue of Liberty bears an inscription welcoming the world’s “tired and poor…huddled masses yearning to breathe free.”  Our open arms which once greeted strangers (on whose backs our country was built), however, have been replaced by laws like Arizona’s SB 1070, copycat laws around the country, and the recent Supreme Court decision upholding provisions that encourage racial profiling. 

Liberty itself is a fading memory, a lyric in an anthem that few Americans today understand, even as millions sing it at sporting events and during today’s holiday.

Robert Samuelson’s Is the U.S. a land of liberty or equality? reviews a duality within America’s political culture.  Samuelson writes that “Americans’ self-identity springs from the beliefs on which this country was founded,” including values of equality and liberty that often stand in tension.  He correctly notes that “in today’s politically poisoned climate, righteousness is at a premium and historical reality at a discount,” which in turns helps “explain[] why love of country has become a double-edged sword, dividing us when it might unite.”

While Samuelson’s observation of political dysfunction is compelling, his analysis is flawed. It examines a conflict between two values, neither of which is visible in today’s United States.

(more…)

• 7/3, Raven Clabough, New American, Senate Working on Cybersecurity Bills
• 7/3, Dr. Wilmer J. Leon III, Politic365, Decline of Civil Liberties: SCOTUS, Stand Your Ground and Stop-and-Frisk
• 7/3, Walter Bird Jr., GoLocal Worcester, Activist Groups Want More Rights For Immigrants
• 7/3, David Kravets, Wired, Wiretap Stats Decrease, But Don’t Go Celebrating Yet
• 7/3, Jennifer Banks & Rebekka Schramm, CBS Atlanta, Georgia implements new driver’s license requirements
• 7/3, Maria Dinzeo, Courthouse News Service, Partial Judgment Sought in Federal Wiretap Case
• 7/3, Kansas City (MO) InfoZine, National Security Agency Whistleblowers Back EFF’s Lawsuit Over Gov’s Spying Program