NSA may need to begin winding down surveillance program this week

The Washington Post reports: A bitter ideological divide in Congress appeared destined Wednesday to at least temporarily end the bulk collection of Americans’ phone records as government officials warned they would have to begin shuttering the program after Friday if lawmakers do not act.

In a memorandum, the Justice Department said the National Security Agency would need to act “to ensure that it does not engage in any unauthorized collection” or use of the data should the program not be extended before a June 1 deadline.

The memo, along with comments Wednesday by FBI Director James B. Comey, puts pressure on lawmakers to act at a time when congressional Republicans remain divided over the NSA’s controversial gathering of private telephone records for counterterrorism purposes. [Continue reading…]

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Snowden sees some victories, from a distance

Scott Shane reports: For an international fugitive hiding out in Russia from American espionage charges, Edward J. Snowden gets around.

May has been another month of virtual globe-hopping for Mr. Snowden, the former National Security Agency contractor, with video appearances so far at Princeton and in a “distinguished speakers” series at Stanford and at conferences in Norway and Australia. Before the month is out, he is scheduled to speak by video to audiences in Italy, and also in Ecuador, where there will be a screening of “Citizenfour,” the Oscar-winning documentary about him.

But there have been far more consequential victories for Mr. Snowden’s cause two years after he flew from Hawaii to Hong Kong carrying laptops loaded with N.S.A. secrets.

Two weeks ago, a federal appeals court ruled that the first N.S.A. program he disclosed, which collects the phone call records of millions of Americans, is illegal. Last week, the House of Representatives voted overwhelmingly to transform the program by keeping the bulk phone records out of government hands, a change President Obama has endorsed and the Senate is now debating. And Apple and Google have angered the F.B.I. by stepping up encryption, including on smartphones, to scramble communications and protect customers from the kind of government surveillance Mr. Snowden exposed. [Continue reading…]

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House votes to end NSA’s bulk phone data collection

The New York Times reports: The House on Wednesday overwhelmingly approved legislation to end the federal government’s bulk collection of phone records, exerting enormous pressure on Senator Mitch McConnell of Kentucky, the Senate majority leader, who insists that dragnet sweeps continue in defiance of many of those in his Republican Party.

Under the bipartisan bill, which passed 338 to 88, the Patriot Act would be changed to prohibit bulk collection by the National Security Agency of metadata charting telephone calls made by Americans. However, while the House version of the bill would take the government out of the collection business, it would not deny it access to the information. It would be in the hands of the private sector — almost certainly telecommunications companies like AT&T, Verizon and Sprint, which already keep the records for billing purposes and hold on to them from 18 months to five years.

So for the N.S.A., which has been internally questioning the cost effectiveness of bulk collection for years, the bill would make the agency’s searches somewhat less efficient, but it would not wipe them out. With the approval of the Foreign Intelligence Surveillance Court, the spy agencies or the F.B.I. could request data relevant to an investigation. Corporate executives have said that while they would have to reformat some data to satisfy government search requirements, they could most likely provide data quickly. [Continue reading…]

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Merkel comes up empty as German-U.S. spy talks go nowhere

Bloomberg: Chancellor Angela Merkel has little to show for an effort begun a year ago to limit American spying in Germany as talks between the two countries on U.S. surveillance have run aground.

Meant to calm German outrage over alleged American espionage, the negotiations have been further hampered by the latest reports in Germany that the country’s BND foreign-intelligence agency collaborated with the National Security Agency to help the U.S. spy on European allies and companies, said a person familiar with the matter, who asked not to be identified discussing sensitive talks.

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White House backs bill that would end NSA bulk collection of phone records

The Washington Post: The Obama administration is urging lawmakers to pass a bipartisan bill that would end the National Security Agency’s mass collection of Americans’ phone records, an effort that has been boosted by a federal appeals court’s ruling last week that the program was unlawful.

The White House’s support for the USA Freedom Act, which preserves the government’s ability to obtain more limited amounts of records, comes as the House is expected to pass it on Wednesday. That sets up a showdown in the Senate, where Majority Leader Mitch McConnell (R-Ky.) is backing another bill that would maintain the NSA program of mass collection and renew it through 2020.

The attorney general and the director of national intelligence are expected to issue soon a letter of support for the USA Freedom Act, saying that they do not think it will undermine national security while its proposed reforms will enhance Americans’ privacy.

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Why the ruling against the NSA’s phone records program could have huge implications

The Washington Post reports: A federal appeals court ruling that the National Security Agency’s collection of millions of Americans’ phone records is illegal could undercut more than just that program.

The 2nd Circuit Court of Appeals ruled Thursday that the phone records program violated the law used to authorize it, the USA Patriot Act. The program had been approved by the secretive Foreign Intelligence Surveillance Court, but it was not disclosed publicly until revealed by documents from former government contractor Edward Snowden.

The government argued that the huge volume of phone records were relevant to counterterrorism investigations because searching through them later might help discern links to terrorism suspects. But the court didn’t buy it, ruling that such an interpretation of “relevance” was “unprecedented and unwarranted.” The government’s argument, the judges said, boiled down to “the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations.”

Knocking down that interpretation could have consequences that go beyond the program and even the part of the USA Patriot Act used to authorized it, Section 215. [Continue reading…]

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Intelligence official: Era of bulk-records collection likely over

The Wall Street Journal: A senior U.S. intelligence official on Friday afternoon suggested that the public blowback and corporate outrage that erupted after it was revealed that the National Security Agency collected bulk telephone records made it rather certain the government would not try to recreate such a program in the future.

Robert Litt, the Office of the Director of National Intelligence’s general counsel, told a panel hosted by the Sunlight Foundation that the intelligence community now decides when it creates any new program how it will look if it is leaked to the public.

He says they ask “Are the benefits we get from that program worth that risk?”

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NSA phone records program illegal, court rules

The Guardian reports: The US court of appeals has ruled that the bulk collection of telephone metadata is unlawful, in a landmark decision that clears that way for a full legal challenge against the National Security Agency.

A panel of three federal judges for the second circuit overturned an earlier ruling that the controversial surveillance practice first revealed to the US public by NSA whistleblower Edward Snowden in 2013 could not be subject to judicial review.

But the judges also waded into the charged and ongoing debate over the reauthorization of a key Patriot Act provision currently before US legislators. That provision, which the appeals court ruled the NSA program surpassed, will expire on June 1 amidst gridlock in Washington on what to do about it.

The judges opted not to end the domestic bulk collection while Congress decides its fate, calling judicial inaction “a lesser intrusion” on privacy than at the time the case was initially argued. [Continue reading…]

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America’s willing helper: Intelligence scandal puts Merkel in tight place

Der Spiegel reports: July 14, 2013 was an overcast day. The German chancellor was reclining in a red armchair across from two television hosts with the country’s primary public broadcaster. With Berlin’s Spree River flowing behind her, Angela Merkel gave her traditional summer television interview. The discussion focused in part on the unbridled drive of America’s NSA intelligence service to collect as much information as possible. Edward Snowden’s initial revelations had been published just one month earlier, but by the time of the interview, the chancellor had already dispatched her interior minister to Washington. Having taken action to confront the issue, Merkel was in high spirits.

Merkel’s interviewers wanted to know exactly what data had been targeted in Germany. Reports had been making the rounds, they reminded her, of “economic espionage.” Merkel sat quietly. “So, on that,” she said, “the German interior minister was clearly told that there is no industrial espionage against German companies.”

Only a few hundred meters away from the red armchair, though, more was known. In Merkel’s Chancellery, staff had long been aware that the information provided by the United States wasn’t true.

By 2010 at the latest, the Chancellery had received indications that the NSA had attempted to spy on European firms, including EADS, the European aerospace and defense company that is partly owned by German shareholders. They also knew that the Americans were seeking to join forces with Germany’s foreign intelligence agency, the Bundesnachrichtendienst (BND), in their spying efforts. It would be astonishing if Merkel herself had not known about these occurrences long before she sat down for the interview. Indeed, she would look even worse had she not known. [Continue reading…]

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German prosecutors launch investigation of spying charges

Reuters: Germany’s top public prosecutor will look into accusations that the country’s BND foreign intelligence agency violated laws by helping the United States spy on officials and firms in Europe, including Airbus group, the federal prosecutors office said.

A spokesman for the prosecutors office confirmed weekend media reports that an investigation had been launched as opposition politicians demanded more information about the unfolding scandal from Chancellor Angela Merkel’s government.

“A preliminary investigation has been started,” the spokesman said. In a related development, federal prosecutor Harald Range himself will be questioned by a parliamentary committee looking into the affair in Berlin on Wednesday.

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Why the NSA isn’t howling over restrictions

The New York Times reports: For years after the attacks of Sept. 11, 2001, even as the National Security Agency fiercely defended its secret efforts to sweep up domestic telephone data, there were doubters inside the agency who considered the program wildly expensive with few successes to show for it.

So as Congress moves to take the government out of the business of indiscriminate bulk collection of domestic calling data, the agency is hardly resisting. Former intelligence officials, in fact, said Friday that the idea to store the data with telecommunications companies rather than the government was suggested to President Obama in 2013 by Gen. Keith B. Alexander, then the N.S.A. director, who saw the change as a way for the president to respond to criticism without losing programs the N.S.A. deemed more vital.

The limits on bulk collection are the centerpiece of legislation now advancing in the House that would be the first significant response to the spying revelations by Edward J. Snowden, a former N.S.A. contractor. In addition to new restrictions on domestic data sweeps, the plan would require more transparency and introduce ostensibly independent voices into secret intelligence court proceedings.

But as one recently departed senior intelligence official put it on Friday, “This is hardly major change.” [Continue reading…]

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Utah’s reaction to NSA data center mirrors wider ambivalence over surveillance programs

The Wall Street Journal reports: As a defiant statement against what it sees as government overreach, a group of Utahans “adopted” the desert highway that leads to the National Security Agency’s secretive and sprawling new facility in Bluffdale.

Their novel plan: While collecting trash along their stretch of road, they would simultaneously protest outside the NSA building, spreading the “Restore the Fourth” message in favor of Fourth Amendment protections against illegal search and seizure.

But their plan soon wilted thanks to a lack of organization and a lack of enthusiasm for more protests.

“What we’re working on now is consolidating and coordinating our actions with other organizations,” said Dan Garfield, who leads Restore the Fourth’s Utah chapter. He said there is no timeline for the next protest.

The stalled effort highlights the ambivalence in Utah and in Washington, D.C., over secret government surveillance programs. Section 215 of the USA Patriot Act, which the government has used to justify its bulk telephone-record collection program, expires at the end of this month, giving hope to the agency’s critics that they can make major changes. But the rise of the Islamic State extremist group has encouraged more outspoken support for the NSA, including by several potential presidential candidates, complicating negotiations about what to do with the expiring powers.

In Utah, plenty of people don’t seem bothered by the NSA presence. [Continue reading…]

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Bush-era documents show official misled Congress about NSA spying

Bloomberg: Former U.S. Attorney General Alberto Gonzales misled Congress by downplaying a dispute between George W. Bush’s White House and the Justice Department over the legality of the National Security Agency’s warrantless spying program, according to previously classified documents.

The documents released Saturday from the inspectors general of the Defense Department, Justice Department, Central Intelligence Agency, National Security Agency and Office of the Director of National Intelligence concerned their investigations of the surveillance programs initiated by then-President Bush after the Sept. 11, 2001, terrorist attacks.

They show that intelligence and law-enforcement agencies had mixed views toward Bush’s emergency order authorizing the NSA’s bulk collection of telephone and Internet data. For example, agencies other than the NSA had difficulty accessing information on terrorism suspects because of secrecy surrounding the program, lack of training and the large volume and confusing structure of the data.

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German intelligence under fire for NSA cooperation

Der Spiegel reports: It was obvious from its construction speed just how important the new site in Bavaria was to the Americans. Only four-and-a-half months after it was begun, the new, surveillance-proof building at the Mangfall Kaserne in Bad Aibling was finished. The structure had a metal exterior and no windows, which led to its derogatory nickname among members of the Bundesnachrichtendienst (BND), the German foreign intelligence agency: The “tin can.”

The construction project was an expression of an especially close and trusting cooperation between the American National Security Agency (NSA) and the BND. Bad Aibling had formerly been a base for US espionage before it was officially turned over to the BND in 2004. But the “tin can” was built after the handover took place.

The heads of the two intelligence agencies had agreed to continue cooperating there in secret. Together, they established joint working groups, one for the acquisition of data, called Joint Sigint Activity, and one for the analysis of that data, known as the Joint Analysis Center.

But the Germans were apparently not supposed to know everything their partners in the “tin can” were doing. The Americans weren’t just interested in terrorism; they also used their technical abilities to spy on companies and agencies in Western Europe. They didn’t even shy away from pursuing German targets. [Continue reading…]

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Declassified report shows doubts about value of NSA’s warrantless spying

The New York Times reports: The secrecy surrounding the National Security Agency’s post-9/11 warrantless surveillance and bulk data collection program hampered its effectiveness, and many members of the intelligence community later struggled to identify any specific terrorist attacks it thwarted, a newly declassified document shows.

The document is a lengthy report on a once secret N.S.A. program code-named Stellarwind. The report was a joint project in 2009 by inspectors general for five intelligence and law enforcement agencies, and it was withheld from the public at the time, although a short, unclassified version was made public. The government released a redacted version of the full report to The New York Times on Friday evening in response to a Freedom of Information Act lawsuit.

Shortly after the terrorist attacks on Sept. 11, 2001, President George W. Bush secretly told the N.S.A. that it could wiretap Americans’ international phone calls and collect bulk data about their phone calls and emails without obeying the Foreign Intelligence Surveillance Act. Over time, Stellarwind’s legal basis evolved, and pieces of it emerged into public view, starting with an article in The Times about warrantless wiretapping in 2005.

The report amounts to a detailed history of the program. While significant parts remain classified, it includes some new information. For example, it explains how the Bush administration came to tell the chief judge of the Foreign Intelligence Surveillance Court at the time of the Sept. 11 attacks, Royce C. Lamberth, about the program’s existence in early 2002. [Continue reading…]

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Key Republican is not on board with NSA reform

National Journal: Senate Judiciary Committee Chairman Chuck Grassley is not yet ready to support legislation that would curtail the National Security Agency’s surveillance authorities, meaning a major roadblock to post-Snowden spying reforms has yet to budge.

Despite weeks of negotiations involving his staff, the Iowa Republican said Tuesday he still has concerns about the USA Freedom Act, a bipartisan package that would effectively end the NSA’s bulk collection of Americans’ phone records.

“Not until I have discussions with people on the Intelligence Committee,” Grassley said Tuesday when asked whether he might support the bill. When pressed on what reservations he still had, Grassley offered, “Just finding a balance between national security and privacy.”

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Congress to introduce last-ditch bill to reform NSA spying

National Journal reports: Backed up against a rapidly approaching do-or-die deadline, bipartisan lawmakers are poised to introduce legislation next week that would roll back the National Security Agency’s expansive surveillance powers.

The legislation could land as soon as Tuesday in the House, congressional aides and privacy advocates said, who would only speak on condition of anonymity because of the sensitivity of the negotiations.

The bill, known as the USA Freedom Act, would effectively end the NSA’s bulk collection of U.S. phone metadata — the numbers, time stamps, and duration of a call but not its actual content — by instead relying on phone companies to retain that data. The program is the first and one of the most controversial spying programs exposed by the Edward Snowden leaks that began nearly two years ago.

House Judiciary Committee Chairman Bob Goodlatte and Rep. John Conyers, the panel’s top Democrat, are expected to back the bill, as is Rep. Jim Sensenbrenner, the author of the original Freedom Act that first emerged in the fall of 2013, and Rep. Jerry Nadler. All four have been intensely involved in negotiations since the measure fell apart in Congress late last year.

But as the House barrels ahead, it remains unclear what strategy the bill’s advocates in the Senate, led chiefly by Sen. Patrick Leahy, intend to deploy. That question is complicated by the implications a fractious national security debate could have for the Republican caucus, whose three presidential aspirants — Sens. Ted Cruz, Rand Paul, and Marco Rubio — have adopted increasingly divergent positions on NSA surveillance. [Continue reading…]

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As encryption spreads, U.S. grapples with clash between privacy, security

The Washington Post reports: For months, federal law enforcement agencies and industry have been deadlocked on a highly contentious issue: Should tech companies be obliged to guarantee government access to encrypted data on smartphones and other digital devices, and is that even possible without compromising the security of law-abiding customers?

Recently, the head of the National Security Agency provided a rare hint of what some U.S. officials think might be a technical solution. Why not, suggested Adm. Michael S. Rogers, require technology companies to create a digital key that could open any smartphone or other locked device to obtain text messages or photos, but divide the key into pieces so that no one person or agency alone could decide to use it?

“I don’t want a back door,” Rogers, the director of the nation’s top electronic spy agency, said during a speech at Princeton University, using a tech industry term for covert measures to bypass device security. “I want a front door. And I want the front door to have multiple locks. Big locks.”

Law enforcement and intelligence officials have been warning that the growing use of encryption could seriously hinder criminal and national security investigations. But the White House, which is preparing a report for President Obama on the issue, is still weighing a range of options, including whether authorities have other ways to get the data they need rather than compelling companies through regulatory or legislative action.

The task is not easy. Those taking part in the debate have polarized views, with advocates of default commercial encryption finding little common ground with government officials who see increasing peril as the technology becomes widespread on mobile phones and on text messaging apps. [Continue reading…]

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