The Senate Committee on Commerce, Science, and Transportation called in some of the honchos in the Transportation Security Administration to ask a few pointed questions about the “Quiet Skies” program, under which the TSA dispatches teams of air marshals to surveil people who fidget too much in airports or get glassy-eyed waiting for their flights to be called. The witnesses boasted that they had monitored five thousand suspicious-looking passengers and confirmed that not one of them posed a threat to anyone's safety.
Given this perfect track record, the TSA plans to continue the program and to re-educate the air marshals who have complained about its pointlessness. It's not really pointless if it contributes to the oppressive atmosphere of modern American airports and helps to assure passengers that every move they make is monitored by armed law-enforcement officers. That sense of living in a police state is America's strongest defense against terrorism.
“TSA Says ‘Quiet Skies’ Surveillance Snared Zero Threats”
Jana Winter, The Boston Globe, August 3, 2018
Federal air marshals have closely monitored about 5,000 US citizens on domestic flights in recent months under the controversial “Quiet Skies” program, but none were deemed so suspicious that they required further scrutiny …
The TSA defended the program, said it would continue, and announced plans to better educate and communicate with members of the Federal Air Marshal Service …
“TSA Admits ‘Quiet Skies’ Surveillance Program Is Useless, Promises to Continue Engaging in Useless Surveillance”
Tim Cushing, Techdirt, August 10, 2018
CARTS, HORSES IN EMBARRASSING MIXUP, SAY TSA OFFICIALS
Cart-horse confusion expected to continue for the foreseeable future
So few terrorists now travel by air in the United States that the Transportation Security Administration has taken to placing teams of air marshals on flights to monitor the behavior of entirely innocuous persons. Judging from the name of the program (“Quiet Skies”), I imagine it's make-work or perhaps practice.
“TSA Is Tracking Regular Travelers Like Terrorists in Secret Surveillance Program”
Jana Winter, The Boston Globe, July 28, 2018
Federal air marshals have begun following ordinary US citizens not suspected of a crime or on any terrorist watch list and collecting extensive information about their movements and behavior under a new domestic surveillance program that is drawing criticism from within the agency.
The previously undisclosed program, called “Quiet Skies,” specifically targets travelers who “are not under investigation by any agency and are not in the Terrorist Screening Data Base,” according to a Transportation Security Administration bulletin in March. …
TSA officials, in a written statement to the Globe, broadly defended the agency's efforts to deter potential acts of terror. But the agency declined to discuss whether Quiet Skies has intercepted any threats, or even to confirm that the program exists.
Release of such information “would make passengers less safe,” spokesman James Gregory said in the statement.
Already under Quiet Skies, thousands of unsuspecting Americans have been subjected to targeted airport and inflight surveillance, carried out by small teams of armed, undercover air marshals, government documents show. The teams document whether passengers fidget, use a computer, have a “jump” in their Adam's apple or a “cold penetrating stare,” among other behaviors, according to the record.
Having long established the privilege of forcing air travellers to submit to unconstitutional searches and seizures, the TSA has apparently decided to extend its exemption from the rule of law to spy on people who use their phones in airports, study their reflections in store windows, wait to the end of the boarding process to get on the plane, or previously travelled on an international flight. Better watch your step.
When the Department of Homeland Security or the Federal Bureau of Investigation wants access to some information that was originally obtained by an intelligence service using some unconstitutional mass-surveillance technique, it sometimes seeks a veneer of legal protection for its actions by making a “collection request” to the Foreign Intelligence Surveillance Court, acting as a “Court of Review.”
Usually the FISC rubber-stamps these applications. (This is hardly surprising, since the proceedings of the FISC are not adversarial — no one is present to represent the interests of the victims of surveillance or to point out violations of the Fourth Amendment or of international law.) Sometimes the court makes a few comments, asks the applicant to rewrite the request, and then rubber-stamps the results.
Since last year, however, when Congress renewed and revised the law authorizing these ludicrous procedures, it created an arrangement under which the court can, if it chooses, invite a “friend of the court” to comment on the proposals it is reviewing, and in particular to deal with any novel or significant question of law that those proposals raise. Typically the job is given to former Department of Justice officials who can be relied on not to introduce undesirable innovations into the cozy arrangements between the FISC and the state-security apparatus.
Evidently the possibility of exposing their requests to the skeptical gaze of these third parties has succeeded in spooking the applicants. Last year, there were three occasions on which the FISC saw fit to invite in a friend of the court, and in each case the government agency that made the application chose to withdraw it instead of allowing anyone else to see it.
Marcy Wheeler speculates on the motives for these withdrawals:
“In 2017, the Government Withdrew Three FISA Collection Requests Rather Than Face an Amicus Review”
“emptywheel”, emptywheel, April 26, 2017
That the government has been withdrawing requests rather than submitting them to the scrutiny of an amicus suggests several things.
First, it may be withdrawing such applications out of reluctance to share details of such techniques even with a cleared amicus, not even one of the three who served as very senior DOJ officials in the past. If that's right, that would reflect some pretty exotic requests …
Second, … past history has shown that the government often finds another way to get information denied by the FISC, and that may have happened with these three requests.
Finally, remember that as part of 702 reauthorization last year, [Senator] Ron Wyden warned that reauthorization should include language preventing the government from demanding that companies provide technical assistance. … Some of these withdrawn requests … may reflect such onerous technical requests.
The Canadian province of Nova Scotia maintains a public database of government documents that have been released in response to freedom-of-information requests and have provided a Web interface to it. A nineteen-year-old Canadian student who was interested in learning about a labor dispute involving teachers in the province found some relevant files in that database but had difficulty searching for the ones he wanted. Since the Web pages for all of the documents had easily predictable URLs, he wrote a script to run through the URLs and download all of the documents, intending to go through them off line with better search tools.
It turns out that about two hundred fifty of the seven thousand documents in the database contained personally identifiable information that the provincial government had failed to remove before putting the documents on line.
Naturally, it's not the government that is in trouble as a result of this blunder. When the authorities discovered that the student had downloaded these published documents, they charged him with “unauthorized use of a computer.” He now faces up to ten years in prison.
He lives at home with his parents and younger siblings. The police staged a home invasion, tore up the house, confiscated the student's computers and gear, his father's work computers and cell phone, and his brother's computer, arrested his brother on the street, and detained and questioned his thirteen-year-old sister in a police car.
“Teen Charged in Nova Scotia Government Breach Says He Had ‘No Malicious Intent’”
Jack Julian, CBC News, April 16, 2018
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
“H.R.4943 – CLOUD Act”
Library of Congress, February 6, 2018
“Tech Companies' Letter of Support for Senate CLOUD Act”
Apple, Facebook, Google, Microsoft, and Oath, Data Law, February 6, 2018
“CLOUD Act Coalition Letter”
CLOUD Act Coalition, American Civil Liberties Union, March 12, 2018
“A New Backdoor around the Fourth Amendment: The CLOUD Act”
David Ruiz, Deeplinks, Electronic Frontier Foundation, March 13, 2018
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
“House Stables Extraterritorial Search Permissions onto 2,232-Page Budget Bill; Passes It”
Tim Cushing, Techdirt, March 22, 2018
It is now common practice for anyone who has a government job and claims to be enforcing the law to use whatever surveillance technology is available to collect data about anyone and everyone. A new bill in Congress would institutionalize this practice (and legitimize it, if it were constitutional, which it is not).
“The CLOUD Act: A Dangerous Expansion of Police Snooping on Cross-Border Data”
Camille Fischer, Deeplinks, Electronic Frontier Foundation, February 8, 2018
The bill creates an explicit provision for U.S. law enforcement … to access “the contents of a wire or electronic communication and any record or any other information” about a person regardless of where they live or where that information is located on the globe. In other words, U.S. police could compel a service provider — like Google, Facebook, or Snapchat — to hand over a user's content and metadata, even if it is stored in a foreign country, without following that foreign country's privacy laws.
Second, the bill would allow the President to enter into “executive agreements” with foreign governments that would allow each government to acquire user's data stored in the other country, without following each other's privacy laws.