Rep. Mike Thompson helped introduce a bipartisan bill today that he and his co-authors say would strengthen congressional oversight and improve accountability from the nation’s intelligence community, which has been accused of overstepping its bounds in surveillance of U.S. citizens.
The Intelligence Oversight and Accountability Act of 2013, H.R. 3103, requires that any Foreign Intelligence Surveillance Court decision, order or opinion that includes a denial or modification of an intelligence community request, or that results in a change to any legal interpretation of the Foreign Intelligence Surveillance Act, be shared with Congress.
“Our government has a responsibility to both protect American lives and our citizens’ civil liberties,” Thompson, D-Napa, said in a news release. “This bill helps us meet that responsibility by strengthening Congress’ aggressive oversight of our Intelligence Community. Through the oversight and accountability provided by this bill, we can help make sure our Intelligence Community operates within legal and constitutional boundaries while they continue their brave work to keep Americans safe.”
Under current law, when the FISC or the Foreign Intelligence Surveillance Court of Review issues a decision, order, or opinion, the attorney general must determine if the issue considered by the FISC includes a “significant construction or interpretation of the law.” If the attorney general determines that the decision is significant, that information must be shared with Congress. But if the attorney general determines that the decision is not “significant,” the information doesn’t have to be shared with Congress.
The bill also requires the Justice Department to include enhanced summaries of the FISC’s decisions, orders, and opinions to make the facts, issues, and legal reasoning involved in these matters more accessible to Congress.
Capitol Hill and the American public are going bananas today over a Washington Post report that National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008.
“Press reports that the National Security Agency broke privacy rules thousands of times per year and reportedly sought to shield required disclosure of privacy violations are extremely disturbing.
“Current laws governing NSA’s collection activities contain safeguards to ensure the protection of privacy and civil liberties including provisions that require that incidents of non-compliance be reported to Congress and the FISA Court. Congress must conduct rigorous oversight to ensure that all incidents of non-compliance are reported to the oversight committees and the FISA court in a timely and comprehensive manner, and that appropriate steps are taken to ensure violations are not repeated.”
“Reports that the NSA repeatedly overstepped its legal boundaries, broke privacy regulations, and attempted to shield required disclosure of violations are outrageous, inappropriate and must be addressed. These reports, if accurate, highlight the need for aggressive oversight of the NSA’s intelligence gathering activities. This is exactly why I worked to establish an independent Inspector General for the intelligence community that will detect and deter abuse and misconduct within intelligence programs. Now we must act to make sure the abuses are not repeated.
“Congress and the Intelligence Committees can and should do more to ensure the NSA’s operations respect Americans’ civil liberties, that all incidents of non-compliance, if substantiated, are reported in a timely and comprehensive manner, and that appropriate steps are taken to make sure the incidents are not repeated.
“I do not believe protecting our citizens’ lives and civil liberties are mutually exclusive pursuits. Through aggressive oversight we can ensure our intelligence community can continue working to keep our country safe while respecting our citizens’ constitutional rights.”
Among those who voted for the Amash amendment was Rep. Jackie Speier, D-San Mateo, who today said:
“It’s clear that oversight of the NSA and the broader intelligence community is failing. I fear the NSA has abused its power and lost the trust of many Americans. Congress needs to re-examine its relationship to the intelligence community if we are going to restore confidence that privacy rights are protected in this country.
“First, the internal audit released today needs to be held as a model practice for transparency. Audits such as this one should be done more frequently and comprehensively. The findings of these audits must be delivered to Congress. Second, the Foreign Intelligence Surveillance Court must be privy to the NSA’s actions and no longer reliant on the NSA’s self-reporting. Third, there need to be stronger protections for whistleblowers. Intelligence community employees and contractors must feel safe to report wrongdoing and be protected from retribution.
“Congress cannot allow such sweeping violations of privacy to continue.”
We’ve posted an article about President Obama’s press conference today, in which he unveiled proposals to address the federal government’s ability to spy on Americans, but if you’d like to hear it straight from the source:
“The Public Safety Committee has been called upon this session to evaluate some bills involving the use of drones,” committee chairman Tom Ammiano, D-San Francisco, said in a news release. “However, it’s such a new subject; we need to develop a base of knowledge and a context for making decisions on these important bills.”
Also, Reuters reports today that a secretive U.S. Drug Enforcement Administration unit – operating in tandem with the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security – is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
And, I was on KQED Channel 9’s “This Week in Northern California” on Friday night to discuss Oakland’s controversial decision to expand its public video surveillance:
It was a lively discussion, but I wish I’d had a chance to delve into other topics such as how Oakland and other cities share the intelligence they gather with a regional “fusion center” located in a federal building in San Francisco; varying policies on how long such video footage is retained; and how easy it is for cities with extensive video surveillance networks to later add in software such as facial-recognition programs. I touched on some of these topics in a story I co-authored in June.
Berkeley’s John Yoo, the Cal law professor who previously was the George W. Bush administration’s architect of legal policies supporting the war on terror and “enhanced interrogation techniques,” wrote a piece in the National Review urging the prosecution of NSA/PRISM leaker Edward Snowden – and perhaps some other folks, too:
Recall that the Obama Justice Department claimed that Fox News reporter James Rosen was a co-conspirator in the alleged leak of classified intelligence. If the Justice Department truly believed what it told the courts when seeking a wiretap on Rosen, then it should indict the reporters and editors for the Washington Post and the Guardian newspapers who published information on PRISM.
Except, of course, that Rosen wasn’t indicted. I guess we should just be glad Yoo isn’t offering a legal justification for waterboarding reporters.
Actually, Yoo goes on to say he believes “the Post is protected by the First Amendment, but Holder’s Justice Department clearly doesn’t think so.” Wonkette offers a (rather profane) smackdown of what it says is Yoo’s hypocrisy on such things. What do you think?
Perhaps the most famed whistleblower in U.S. history will take part in a panel discussion tonight in Berkeley about new revelations of government surveillance.
Daniel Ellsberg, who in 1971 leaked the “Pentagon Papers” exposing U.S. policy on the Vietnam war, will participate in the panel at 7:30 p.m. tonight in St. John’s Church, 2727 College Ave. in Berkeley. The event is free and open to the public.
Other panelists include Nadia Kayyali, is a legal fellow and organizer with the Bill of Rights Defense Committee; Norman Solomon, an activist and media critic who ran in the 2nd Congressional District last year; and Birgitta Jónsdóttir, a member of Iceland’s parliament and director of the International Modern Media Institute.
The panelists posit that Americans’ civil liberties are vanishing at an alarming rate, jeopardizing democracy and the rule of law. They’ll discuss dragnet warrantless spying and domestic surveillance, indefinite detention without trial, and secrecy and the war on whistleblowers.
“In my estimation, there has not been in American history a more important leak than Edward Snowden’s release of NSA material – and that definitely includes the Pentagon Papers 40 years ago,” Ellsberg wrote for the Guardian yesterday. “Snowden’s whistleblowing gives us the possibility to roll back a key part of what has amounted to an ‘executive coup’ against the U.S. constitution.”
At issue were lethal drones operations abroad, questions of due process, implications for executive and congressional war-making authority, and the precedent being set as other nations rapidly adopt drone technology.
“I’m proud to stand with my colleagues in the Progressive Caucus on this issue, and am especially grateful for their efforts in calling this hearing,” Lee said in a news release. “We need to ensure that both chambers publically debate the implications of drones and drone warfare. We cannot retreat from our Congressional duties of oversight and accountability, especially on issues like this where the stakes are so high.”
Caucus members heard testimony from former House Armed Services Committee Chairman Ron Dellums, D-Oakland; Zeke Johnson, director of Amnesty International USA’s Security with Human Rights Campaign; international human rights lawyer and New York University Professor Sarah Knuckey; Chris Rogers, program officer of the Regional Policy Initiative at the Open Society Foundation; counterterrorism and human rights lawyer Professor Naureen Shah; and journalist Adam Baron. The hearing also includied video testimony from Baraa Shiban, a youth representative in Yemen’s National Dialogue and Reprieve Project.
Caucus co-chairs Raúl Grijalva, D-Ariz., and Keith Ellison, D-Minn., recently wrote a letter to President Barack Obama asking the administration to explain the legal basis for drone strikes. “It is far past time that the White House openly discuss the drones program,” the letter said. “The President has full reign to protect the United States as Commander in Chief, but Congress has a vital oversight role in this issue, and we cannot shy away from those responsibilities.”
A Bay Area lawmaker’s new bill would require California law enforcement agencies to get a search warrant before asking service providers to hand over a private citizen’s emails.
SB 467 by state Sen. Mark Leno, D-San Francisco, is sponsored by the Electronic Frontier Foundation, a San Francisco-based civil liberties group. Leno introduced a place-holder version of the bill last month, but rolled out its operative language today.
“No law enforcement agency could obtain someone’s mail or letters that were delivered to their home without first securing a search warrant, but that same protection is surprisingly not extended to our digital life,” Leno said in a news release.
“Both state and federal privacy laws have failed to keep up with the modern electronic age, and government agencies are frequently able to access sensitive and personal information, including email, without adequate oversight,” he said. “SB 467 repairs the existing holes in California’s digital protection laws, ensuring that electronic communications can only be accessed by law enforcement with a warrant.”
Some law enforcement agencies have claimed investigators don’t need a warrant to obtain any email that has been opened or has been stored on a server for 180 days. The U.S. Department of Justice’s Office of Legal Policy recently announced it would support changes to federal law that would require a warrant in such cases.
“California, the home of many technology companies, should be a leader in protecting the privacy of people’s electronic communications,” EFF staff attorney Hanni Fakhoury said in Leno’s release. “Many of the state’s technology companies have already indicated that they require a search warrant before disclosing the contents of communications. With SB 467, the warrant requirement becomes the status quo for all electronic communication providers and all law enforcement agencies across the state.”
The American Civil Liberties Union also supports the bill, which “would ensure that content stored in the cloud receives the same level of protection as content stored on a laptop or in a desk drawer,” said Nicole Ozer, the Northern California ACLU’s technology and civil liberty policy director.
A new bill coauthored by a Bay Area congresswoman would establish due process protections for Americans against government-operated unmanned aerial drones in U.S. airspace.
H.R. 637, the Preserving American Privacy Act by Rep. Zoe Lofgren, D-San Jose, and Rep. Ted Poe, R-Texas, would also forbid law enforcement and private drones from being armed with firearms or explosives while operating within U.S. airspace.
“The expanded use of drones on U.S. soil raises serious Constitutional and civil liberties issues that Congress needs to address,” Lofgren said in a news release. “These devices should be used in a safe, open, and responsible manner. This bill would ensure that drones follow strict guidelines to protect Americans’ privacy while still realizing their practical applications for science, border security, public safety, and commercial development.”
Said Poe: “Just because Big Brother can look into someone’s backyard doesn’t mean it should. Technology may change, but the Constitution does not.”
The bill would require that government agencies must obtain a warrant to use drones to collect information that can identify individuals in a private area, and get a court order and provide public notice beforehand to collect information that can identify individuals in defined public areas. Those requirements would be subject to exceptions for emergencies, border security and consent, however.
The bill also would forbid privately-operated drones from being used to capture images or sound recordings of people engaging in personal activities in certain circumstances in which the individual has a reasonable expectation of privacy.
The state Legislature in 1998 enacted a law requiring DNA sampling from people convicted of certain offenses. But in 2004, 62 percent of California voters approved Proposition 69, which expanded the law to require DNA collection from “any adult person arrested or charged with any felony offense … immediately following arrest or during the booking.”
A three-judge panel of the 9th Circuit appellate court had upheld that law in February, finding “that the government’s compelling interests far outweigh arrestees’ privacy concerns” because “DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects.”
The Electronic Frontier Foundation in March joined with the ACLU in calling for an en-banc rehearing, arguing that the warrantless seizure and repeated search of DNA taken from people who’ve merely been arrested – not convicted – is unconstitutional.
But in a brief filed in April arguing a rehearing, the state attorney general’s office noted that “(v)irtually every federal court to have considered the question agrees that the collection of a DNA sample for forensic identification, pursuant to a
lawful arrest and subject to statutory restrictions on collection, use and confidentiality, comports with the Fourth Amendment.”