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Topic: #Fourth-Amendment

An Uninterrupted Chain of FISA Violations

2018-06-28⊺22:33:08-05:00

In its surveillance of American citizens, the National Security Agency is supposed to be constrained by the Foreign Intelligence Surveillance Act, which specifies exactly which violations of the Fourth Amendment are notionally permitted and which ones are doubly and explicitly prohibited by Congress.

The NSA, being above the law, ignores all such constraints whenever it is convenient for them to do so. But the Foreign Intelligence Surveillance Act stipulates that the NSA is subject to a feeble kind of judicial oversight and review, by a body called the Foreign Intelligence Surveillance Court, which has managed to detect a few of the NSA's numerous modes of violation and issued carefully phrased reprimands.

This article attempts to enumerate the known violations and points out that, taken together, they demonstrate that the NSA operated illegally from 2004 through 2018, without interruption.

“NSA — Continually Violating FISA Since 2004”
Marcy Wheeler, emptywheel, June 28, 2018
https://www.emptywheel.net/2018/06/28/nsa-continually-violating-fisa-since-2004

#National-Security-Agency #Foreign-Intelligence-Surveillance-Act #Fourth-Amendment

The CLOUD Act Is About to Become Law

2018-03-22⊺15:18:39-05:00

The House of Representatives has now passed, and the Senate is on the verge of passing, the Clarifiying Overseas Use of Data Act, institutionalizing and giving notional legal cover to warrantless surveillance programs, both inside the United States and in other countries, both by American national-security and law-enforcement agencies and, if the governments agree, by their counterparts in dozens of other countries. It explicitly grants such agencies access “the contents of a wire or electronic communication and any record or any other information” about a target of investigation.

Congress is working this week on a massive budget bill. The CLOUD Act was embedded in the House version of that bill so as to ensure its passage. Microsoft, Facebook, Google, and Apple are on record as supporting the it, apparently because it would save them the cost of repeatedly litigating government demands for their users' information. Under the CLOUD Act, the grounds for such litigation would be removed, and those companies could simply yield up that information as soon as the government(s) requested it.

A coalition of advocates for privacy, civil liberties, and human rights, headed by the American Civil Liberties Union, is opposing the bill, but is unlikely to be able to block it.

“S.2383 – CLOUD Act”
Library of Congress, February 6, 2018
https://www.congress.gov/bill/115th-congress/senate-bill/2383/text

“H.R.4943 – CLOUD Act”
Library of Congress, February 6, 2018
https://www.congress.gov/bill/115th-congress/house-bill/4943/text

“Tech Companies' Letter of Support for Senate CLOUD Act”
Apple, Facebook, Google, Microsoft, and Oath, Data Law, February 6, 2018
https://blogs.microsoft.com/datalaw/wp-content/uploads/sites/149/2018/02/Tech-Companies-Letter-of-Support-for-Senate-CLOUD-Act-020618.pdf

“CLOUD Act Coalition Letter”
CLOUD Act Coalition, American Civil Liberties Union, March 12, 2018
https://www.aclu.org/sites/default/files/field_document/cloud_act_coalition_letter_3-8_clean.pdf

“A New Backdoor around the Fourth Amendment: The CLOUD Act”
David Ruiz, Deeplinks, Electronic Frontier Foundation, March 13, 2018
https://www.eff.org/deeplinks/2018/03/new-backdoor-around-fourth-amendment-cloud-act

The CLOUD Act allows the president to enter an executive agreement with a foreign nation known for human rights abuses. Using its CLOUD Act powers, police from that nation inevitably will collect Americans' communications. They can share the content of those communications with the U.S. government under the flawed “significant harm” test. The U.S. governemnt can use that content against these Americans. A judge need not approve the data collection before it is carried out. At no point need probably cause be shown. At no point need a search warrant be obtained.

This is wrong. … The backdoor proposed in the CLOUD Act violates our Fourth Amendment right to privacy by granting unconstitutional access to our private lives online.

“Congress Could Sneak a Bill Threatening Global Privacy into Law”
Rhett Jones, Gizmodo, March 15, 2018
https://gizmodo.com/congress-could-sneak-a-bill-threatening-global-privacy-1823793207

“House Stables Extraterritorial Search Permissions onto 2,232-Page Budget Bill; Passes It”
Tim Cushing, Techdirt, March 22, 2018
https://www.techdirt.com/articles/20180322/11435839481/house-staples-extraterritorial-search-permissions-onto-2232-page-budget-bill-passes-it.shtml

#Clarifying-Overseas-Use-of-Data-Act #law-enforcement #Fourth-Amendment

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John David Stone (havgl@unity.homelinux.net)

created June 1, 2014 · last revised December 10, 2018