Federal investigators’ use of Stingrays to hunt for an undocumented immigration marks “the latest sign of mission creep in domestic deployment of battlefield-strength surveillance technology,” said EFF’s Adam Schwartz. (Photo: Håkan Dahlström/flickr/cc)
As the Trump administration and Congressional Republicans continue to push for a harsher immigration crackdown, new reporting reveals that FBI and Immigration and Customs Enforcement (ICE) agents employed a controversial surveillance technology known as Stingrays to hunt down undocumented immigrants.
According to Electronic Frontier Foundation’s Adam Schwartz, the The Detroit News report, based on a federal search warrant affidavit, marks “the latest sign of mission creep in domestic deployment of battlefield-strength surveillance technology.” Continue reading →
Former Acting Attorney General Sally Yates has been invited to testify publicly before Congress on the investigation into alleged Russian election meddling.
The hearing is expected to take place after May 2. Former CIA director John Brennan and former director of national intelligence James Clapper are also scheduled to testify.
Yates was originally set to appear before the House Intelligence Committee in March, but the hearing was canceled by then-lead investigator Rep. Devin Nunes (R-Calif.), who has since stepped down amid accusations of ethics violations. Continue reading →
Washington, D.C. — In a case that’s drawn criticism from multiple angles, last week federal prosecutors in Washington state dropped all charges against a man who allegedly downloaded child pornography from a website that was infiltrated, taken over, and allegedly even improved by the FBI.
The site, Playpen, operated on a platform designed to mask the real identities of its users, as Gizmodo explained Monday:
“The site in question operated on the Tor network, a system used to anonymize web activity. The network makes use of a special web browser that conceals people’s identities and location by routing their internet connections through a complex series of computers and encrypting data in the process.”Continue reading →
Dust off your fax machine. The FBI is planning to take a big step backward for government transparency.
As of March 1, the Bureau will no longer accept Freedom of Information Act (FOIA) requests via email. Anyone seeking public records from the FBI will have to use a new online portal — or send requests via fax or snail mail.
Online FOIA portals may seem like a good idea in theory, but government agencies make them difficult to use — with way too many burdensome requirements.
Tom Hayden at the LBJ Library 2016. Photo: Godwin [Public domain], via Wikimedia Commons
Progressive icon and anti-war activist turned California lawmaker Tom Hayden passed on Sunday at the age of 76.
Hayden dedicated his life to peace, social justice, and activism: from the 1960s, when he helped found the New Left and worked to organize black southern sharecroppers, to building—alongside his former wife, actress Jane Fonda—a California political machine that for decades advanced progressive candidates and measures. Continue reading →
Fear of hackers reading private emails in cloud-based systems like Microsoft Outlook, Gmail or Yahoo has recently sent regular people and public officials scrambling to delete entire accounts full of messages dating back years. What we don’t expect is our own government to hack our email – but it’s happening. Federal court cases going on right now are revealing that federal officials can read all your email without your knowledge.
The federal government is getting access to the contents of entire email accounts by using an ancient procedure – the search warrant – with a new, sinister twist: secret court proceedings.
The earliest search warrants had a very limited purpose – authorizing entry to private premises to find and recover stolen goods. During the era of the American Revolution, British authorities abused this power to conduct dragnet searches of colonial homes and to seize people’s private papers looking for evidence of political resistance.
To prevent the new federal government from engaging in that sort of tyranny, special controls over search warrants were written into the Fourth Amendment to the Constitution. But these constitutional provisions are failing to protect our personal documents if they are stored in the cloud or on our smartphones.
Fortunately, the government’s efforts are finally being made public, thanks to legal battles taken up by Apple, Microsoft and other major companies. But the feds are fighting back, using even more subversive legal tactics.
Searching in secret
To get these warrants in the first place, the feds are using the Electronic Communications Privacy Act, passed in 1986 – long before widespread use of cloud-based email and smartphones. That law allows the government to use a warrant to get electronic communications from the company providing the service – rather than the true owner of the email account, the person who uses it.
But relatively little notice has come to a similar Microsoft effort on behalf of customers that began in April 2016. The company’s suit argued that search warrants delivered to Microsoft for customers’ emails are violating regular people’s constitutional rights. (It also argued that being gagged violates Microsoft’s own First Amendment rights.)
It’s very difficult to get a copy of one of these search warrants, thanks to orders sealing files and gagging companies. But in another Microsoft lawsuit against the government a redacted warrant was made part of the court record. It shows how the government asks for – and receives – the power to look at all of a person’s email.
On the first page of the warrant, the cloud-based email account is clearly treated as “premises” controlled by Microsoft, not by the email account’s owner:
“An application by a federal law enforcement officer or an attorney for the government requests the search of the following … property located in the Western District of Washington, the premises known and described as the email account [REDACTED]@MSN.COM, which is controlled by Microsoft Corporation.”
The Fourth Amendment requires that a search warrant must “particularly describe the things to be seized” and there must be “probable cause” based on sworn testimony that those particular things are evidence of a crime. But this warrant orders Microsoft to turn over “the contents of all e-mails stored in the account, including copies of e-mails sent from the account.” From the day the account was opened to the date of the warrant, everything must be handed over to the feds.
Reading all of it
In warrants like this, the government is deliberately not limiting itself to the constitutionally required “particular description” of the messages it’s looking for. To get away with this, it tells judges that incriminating emails can be hard to find – maybe even hidden with misleading names, dates and file attachments – so their computer forensic experts need access to the whole data base to work their magic.
If the government were serious about obeying the Constitution, when it asks for an entire email account, at least it would write into the warrant limits on its forensic analysis so only emails that are evidence of a crime could be viewed. But this Microsoft warrant says an unspecified “variety of techniques may be employed to search the seized emails,“ including “email by email review.”
If Microsoft wins, then citizens will have the chance to see these search warrants and challenge the ways they violate the Constitution. But the government has come up with a clever – and sinister – argument for throwing the case out of court before it even gets started.
The government has asked the judge in the case to rule that Microsoft has no legal right to raise the Constitutional rights of its customers. Anticipating this move, the American Civil Liberties Union asked to join the lawsuit, saying it uses Outlook and wants notice if Microsoft were served with a warrant for its email.
The government’s response? The ACLU has no right to sue because it can’t prove that there has been or will be a search warrant for its email. Of course the point of the lawsuit is to protect citizens who can’t prove they are subject to a search warrant because of the secrecy of the whole process. The government’s position is that no one in America has the legal right to challenge the way prosecutors are using this law.
Far from the only risk
The government is taking a similar approch to smartphone data.
Where does this all leave us now? The judge in Ravelo is expected to issue a preliminary ruling on the feds’ arguments sometime in October. The government will be filing a final brief on its motion to dismiss the Microsoft case September 23. All Americans should be watching carefully to what happens next in these cases – the government may be already watching you without your knowledge.
Leaked document shows the FBI does not have to jump through a lot of hoops to get access to journalists’ call data. (Photo: Roger H. Goun/flickr/cc)
Newly leaked documents published by The Intercept expose just how easy it is for the FBI to spy on journalists using so-called National Security Letters (NSLs).
The classified rules, which had previously been released only in heavily redacted form, “show that the FBI imposes few constraints on itself when it bypasses the requirement to go to court and obtain subpoenas or search warrants before accessing journalists’ information,” The Intercept‘s Cora Currier wrote on Thursday. Continue reading →
The rule would allow a federal judge to issue a warrant for any target using anonymity software like Tor to browse the internet. (Photo: Ben Watkin/flickr/cc)
The U.S. Supreme Court on Thursday quietly approved a rule change that would allow a federal magistrate judge to issue a search and seizure warrant for any target using anonymity software like Tor to browse the internet.
Absent action by U.S. Congress, the rule change (pdf) will go into effect in December. The FBI would then be able to search computers remotely—even if the bureau doesn’t know where that computer is located—if a user has anonymity software installed on it. Continue reading →
What is privacy and what is an individual’s right to it?
That is the question that renowned linguist and MIT professor Noam Chomsky, National Security Agency (NSA) whistleblower Edward Snowden, and Intercept co-founding editor Glenn Greenwald sought to answer on Friday evening as the three (virtually) shared a stage for a panel discussion at the University of Arizona in Tuscon.
Coming amid the FBI’s public battle against Apple as well as days after the bombings in Brussels last week, which have spurred another round of calls for heightened security and surveillance, the conversation challenged the rhetoric that national security requires that governments can access individual communications. Continue reading →
Photo: Tony Webster from Portland, Oregon (FBI FOIA) [CC BY 2.0], via Wikimedia Commonshoto
Two years ago last month, I filed a public-records request to the Federal Emergency Management Agency as part of my reporting into the flawed response to Hurricane Sandy. Then, I waited.
The Freedom of Information Act requires a response within 20 business days, but agencies routinely blow that deadline. Eight months later, ProPublica and NPR published our investigation into the Sandy response, but it did not include any documents from FEMA. The agency had simply never gotten back to me.
Finally, this Feb. 10 2014 492 business days past the law’s 20-day deadline 2014 I got a curious phone call from FEMA. The agency was starting a “clean search” for the documents I asked for, because the original search “was not done properly.”
“I wish I had the answer,” the staffer told me. “There are quite a few cases that this happened to.”
Documents are the lifeblood of investigative journalism, but these problems aren’t of interest only to reporters. The Freedom of Information Act is supposed to deliver on the idea of a government “for and by the people,” whose documents are our documents. The ability to get information from the government is essential to holding the people in power accountable. This summer will mark the 50th anniversary of the law, which has been essential in disclosing the torture of detainees after 9/11, decades of misdeeds by the CIA, FBI informants who were allowed to break the law and hundreds of other stories.
President Obama himself waxed poetic about FOIA on his first full day in office in 2009, issuing a statement calling it “the most prominent expression of a profound national commitment to ensuring an open Government.” He promised that his would be “the most transparent administration in history.”
Newly uncovered documents (made public only through a FOIA lawsuit) show the Obama administration aggressively lobbying against reforms proposed in Congress. The Associated Press found last year that the administration had set a record for censoring or denying access to information requested under FOIA, and that the backlog of unanswered requests across the government had risen by 55 percent, to more than 200,000.
The Republican-led House Oversight and Government Reform Committee looked into the state of the public-records law and in January issued a report with a simple, devastating title: “FOIA Is Broken.”
Incredibly, it took my ProPublica colleague Michael Grabell more than seven years to get records about air marshal misconduct from the Transportation Security Administration. As he pointed out, his latest contact in the FOIA office was still in high school when Grabell filed his initial request.
After a reporter at NBC4 in Washington sought files related to the 2013 Navy Yard shooting, Navy officials actively strategized about how to thwart the request. The Navy only apologized after it mistakenly forwarded its internal email traffic to the reporter.
When a Mexican journalist asked the Drug Enforcement Administration in 2014 for files related to its role in the capture of drug lord Joaquín “El Chapo” Guzmán, the agency sent a letter back demanding $1.4 million in fees to search its records.
“There’s a leadership void that has gotten worse,” veteran FOIA lawyer Scott Hodes told me. “It’s not treated as an important thing within the administration.”
Why is the law failing so badly after all the promises about transparency? My experience and the experience of other journalists suggests the reason is twofold: incompetence and neglect.
When I probed a bit more into what had gone wrong at FEMA, the agency’s entire FOIA apparatus started to look like a Potemkin village of open government. The FOIA staff was never trained properly, a FEMA spokesman told me. Of 16 positions in the office, eight have long been vacant for reasons that are not entirely clear. The backlog of requests at FEMA has ballooned to 1,500. That’s more than double what it was less than two years ago.
Spokesman Rafael Lemaitre promised that the backlog was “frankly unacceptable to senior leadership here at FEMA, who have been aware of the problems and are taking actions to correct it.”
“Obviously the Freedom of Information Act is a very vital resource for taxpayers,” Lemaitre said. “Frankly, we haven’t done a very good job of fulfilling that promise.”
Over the past two years, whenever I periodically called or emailed for updates, agency staffers either ignored me, said their systems weren’t working or told me they didn’t have any new information.
My request outlasted the tenure of my original contact in the FOIA office. When I called 14 months into the process, I was told she had left the agency 2014 fair enough, as people change jobs all the time. But my request had apparently not been handed off to anyone else. No one seemed to know what was going on.
Last year, the federal FOIA ombudsman found that FEMA took an average of 214 days to process complex FOIA requests, the third-worst in the Department of Homeland Security. (That compares to an average processing time for complex requests of 119 days across the rest of the government.) “A lack of responsiveness prompted lawsuits that cost the agency a bunch of money,” said James Holzer, the head of the ombudsman’s office, who praised FEMA officials for at least recognizing the problem.
A hiring freeze at the agency after sequestration didn’t help matters. But officials told Holzer’s investigators last year that the eight long-vacant positions in the public records office would be filled as early as last fall. Today, those jobs remain empty. The FEMA spokesman didn’t have an explanation for what’s taking so long.
When I tried to find out whether anyone had been held responsible for the fiasco, I didn’t find much more transparency. “I cannot discuss any personnel issues, unfortunately,” the spokesman told me.
Has the agency at least set a specific goal for when it will get through its backlog? “Our target is to get these cleared as quickly as possible 2014 I don’t have a date for you.”