Call for ECPA Reform Puts Pressure on SEC

April 11, 2014

By Elizabeth Holland

With the House proposal to update the 1986 Electronic Communications Privacy Act (ECPA) garnering 200 co-sponsors this week, the members of the Digital Fourth coalition — the ACLU, Heritage Action, Americans for Tax Reform, and the Center for Democracy & Technology — sent a letter to the Securities & Exchange Commission (SEC) calling out the agency’s “contradictory or misleading statements” about its work to oppose the popular proposed reform. The SEC has been a vocal opponent of bipartisan legislation (H.R. 1852, S. 607) that would reform ECPA to establish a search warrant requirement for the government to obtain the content of Americans’ emails when those communications are stored with a third-party service provider for more than 180 days.  While this legislation has gained broad bipartisan support in both chambers, the SEC has dragged its feet, claiming an update would interfere with the way it conducts investigations.

In the letter, sent to the commission on Wednesday, Digital Fourth proposed an amendment developed with the lead sponsor of the bill, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), to assuage these concerns and implored the SEC to compromise. The amendment would assure that “ECPA cannot be used to shield data in the cloud from ordinary discovery techniques” by allowing the SEC and other regulators to use a subpoena to obtain information held by third-party service providers during the course of an investigation.

AALL strongly supports these proposed reforms to ECPA, which ensure important protections to the privacy of library users. As a member of the Digital Due Process coalition, we advocate for reform that would balance the government’s interest in protecting national security with the protections of privacy and freedom from government surveillance the Constitution requires. As such, we echo the call to the SEC to back these widely-supported commonsense reforms and urge Congress to enact ECPA reform this year.


Happy Birthday, World Wide Web! Make a Wish for ECPA Reform

March 12, 2014

By Elizabeth Holland

On March 12th, 1989, Sir Tim Berners-Lee put forth a proposal to make information sharing possible over computers. That proposal in turn would eventually became the World Wide Web, and today we celebrate its 25th birthday.

It’s a gross understatement to say a lot has changed in technology and the Internet since 1989, from the first website and search engines of the early ‘90s to the more recent rise and growth of cloud computing, However, there has been one constant over time:  the law that protects the privacy of your online communications from government intrusion, the Electronic Communications Privacy Act (ECPA), has not been updated since it was authored in 1986.

Yes, the rules governing your online privacy are older than the Web itself. While technology has advanced at a rapid pace, electronic privacy law has remained at a standstill. Without reform, the kind of electronic communications and records that are common today— think any email, Facebook posts, search history, cloud computing documents, cell phone location information, or text messages older than 180 days— can be freely seized without a warrant.

While two reform bills have been introduced, Congress remains slow to act. The Senate Judiciary Committee passed the ECPA Amendments Act of 2013 (S. 607) in April 2013. It awaits consideration by the full Senate. The House proposal, the Email Privacy Act (HR. 1852) has a not-insignificant 184 co-sponsors, but has not yet been heard in committee. These reforms would establish a search warrant requirement for the government to obtain the content of Americans’ emails when those communications are stored with a third-party service provider. The bills eliminate the outdated “180-day” rule that calls for different legal standards for the government to obtain email content depending upon the age of an email and would also require the government to notify any individual whose electronic communications have been disclosed within 10 days of obtaining a search warrant.

As we celebrate the advances of the Web over the last 25 years, it’s long past time due to reform ECPA and bring electronic privacy law up to speed.


Take Action: The Day We Fight Back Against Mass Surveillance

February 11, 2014

By Elizabeth Holland

Today, we join thousands of companies, organizations, and websites in The Day We Fight Back, a day of protest and action against NSA surveillance.  AALL members are encouraged to take action in support of the USA FREEDOM Act (S.1599, H.R.3361), a bipartisan bill that would limit government spying authority and begin to restore our privacy and rights under the Constitution.

In response to the recent and ongoing revelations that government surveillance of Americans under the Foreign Intelligence Surveillance Act (FISA) has been far broader than generally understood, the USA FREEDOM Act would legislatively clarify the limits on the collection and use of Americans’ information. The bill would help restore confidence in the intelligence community by amending the USA PATRIOT Act and FISA Amendments Act of 2008 to better protect Americans’ privacy and require greater oversight, transparency, and accountability with respect to domestic surveillance authorities.

AALL believes the government has a responsibility to protect the privacy of library users and calls for effective oversight of those laws which expand surveillance on library users. We urge Congress to take action in support of the USA Freedom Act to provide meaningful reform.

Have 5 minutes to spare? Using our Legislative Action Center, you can easily urge your members of Congress to co-sponsor the USA FREEDOM Act by sending a customized message to their offices and fight back against mass surveillance.


Review Group Report Calls for Limits on NSA Surveillance

December 20, 2013

By Elizabeth

On Wednesday, the White House released the report and recommendations of the Review Group on Intelligence and Communications Technologies, the board appointed by President Obama to review National Security Agency’s (NSA) surveillance practices. The 300+ page report includes 46 recommendations to reform government surveillance of online and telephone communications for the purposes of national security and suggests new limits on the NSA programs. The report comes after D.C. District Court judge Richard Leon ruled on Monday that the NSA’s program to collect bulk telephone metadata “almost certainly” violates the Fourth Amendment. Here are the highlights:

  • Bulk Collection under Section 215: The review group recommends that the NSA’s bulk collection of phone records under Section 215 of the USA PATRIOT Act be “terminated as soon as reasonably practicable” stating, “as general rule…the government should not be permitted to collect and store all mass, undigested, non-public personal information about individuals to enable future queries and data-mining for foreign intelligence purposes.” The group recommends instead that the NSA query records as they are maintained by phone companies or a private third party. Data could only be queried if a Foreign Intelligence Surveillance Act (FISA) Court judge has determined that there are reasonable grounds to believe that the information sought is relevant to an authorized terrorism or counter-intelligence operation, and that the order is reasonable in focus, scope and breadth. The report does not recommend that the phone companies be statutorily required to retain call record data.
  • National Security Letters: The review group report recommends tightening federal law enforcement’s use of National Security Letters (NSLs) by requiring authorities to obtain a prior “judicial finding” showing “reasonable grounds” that information sought is relevant to terrorism or other intelligence activities. This recommendation is both surprising and promising in its breadth as it would essentially do away with NSLs in favor of court orders under the same standard recommended by the Review group for Section 215 orders.
  • Surveillance under Section 702: The review group recommends closing the “backdoor search loophole” by prohibiting the government from searching information acquired pursuant to Section 702 of the Foreign Intelligence Surveillance Act for information about a particular U.S. person without a court order. The report also recommends immediate deletion of any information about U.S. persons acquired under Section 702 that does relate to foreign intelligence, and recommends prohibiting use of any information about U.S. persons acquired under Section 702 from being used in any criminal proceedings.

The report also recommends greater public disclosure of the use of Section 215, Section 702 and NSL authorities; the creation of a Public Interest Advocate to represent privacy and civil liberties interests before the FISA Court; and reform of FISA Court procedures, including release of FISC opinions where practicable.

We were pleased to see the group advocate for such significant reform of surveillance practices and we urge both Congress and the White House to heed their call. Many of the recommendations of the review group align with provisions included in Senator Patrick Leahy (D-Vt.) and Congressman Sensenbrenner’s (R-Wisc.) USA FREEDOM Act (new advocacy one-pager from Government Relations Committee chair Susan Nevelow Mart and Marlene Harmon is available here), which AALL strong supports.  Senator Leahy, chair of the Senate Judiciary Committee, said in a statement on Wednesday that he has invited the members of the review group to testify before the Senate Judiciary Committee in January. We will keep you updated as more information develops.


AALL Calls for ECPA Reform on National Day of Action

December 5, 2013

By Elizabeth

Today, AALL is joining a broad spectrum of organizations in a day of action to call for reform of the Electronic Communication Privacy Act (ECPA), the federal law that governs standards for government access to private information that is transmitted and stored on the Internet. Since it was authored in 1986, ECPA has not been updated to reflect the immense changes in technology that have taken place, resulting in a law that fails to provide necessary privacy protections for electronic communications.  It’s time to update ECPA so that the law protects the digital privacy rights of today’s citizens, including library users.  As a member of the Digital Due Process coalition, a diverse group of companies, public interest groups and library associations, AALL urges reform to ECPA that would restore a fair balance between the privacy rights of citizens and the legitimate needs of law enforcement in the digital age.

You can join us today by adding your name to the tens of thousands who have signed on to this petition to the White House calling for support for sensible ECPA reform. 

AALL will continue to advocate for stronger privacy protections for communications in response to changes in technology, while preserving the legal tools necessary for government agencies to enforce the laws, respond to emergency circumstances and protect the public. For more information on AALL’s position on ECPA, see our Advocacy One-Pager.


Coalition Calls on Congress to Reform Intelligence Practices

November 22, 2013

By Elizabeth

AALL signed on to a letter sent yesterday to Congressional leadership urging that intelligence surveillance practices be reformed by “limiting the scope of surveillance and by substantially enhancing the privacy protections, oversight, and accountability mechanisms that govern that surveillance.” The letter, signed by a diverse group of civil society groups, trade associations, companies and investors, was received by party leadership in the House and Senate and the chair and ranking members of the House and Senate Judiciary and Intelligence Committees.

The letter urges Congress to limit the scope of surveillance practices, reject bulk collection, and to substantially enhance the privacy protections, oversight and accountability mechanisms that govern surveillance. Signatories endorse the USA FREEDOM Act, which promotes these goals, and oppose “legislation that codifies sweeping bulk collection activities.”


AALL Endorses USA FREEDOM Act

October 29, 2013

By Elizabeth Holland, AALL Public Policy Associate

Today, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Congressman Jim Sensenbrenner (R-Wisc.), chairman of the House Judiciary Crime and Terrorism Subcommittee, introduced legislation that seeks to significantly limit the collection and use of Americans’ information under our nation’s domestic surveillance authorities. The Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection, and Online Monitoring Act, or “USA FREEDOM Act”, would amend the USA PATRIOT Act and FISA Amendments Act of 2008 to better protect Americans’ privacy and require greater oversight, transparency, and accountability with respect to domestic surveillance authorities. AALL has joined more than 20 diverse organizations in endorsing this legislation.

The USA FREEDOM Act reins in the collection of Americans’ records by raising the standard for collection of items pursuant to Section 215 of the Patriot Act.  The bill requires that the tangible things sought are relevant and material to an authorized investigation into international terrorism or clandestine intelligence activities, and pertain to: (1) a foreign power or agent of a foreign power; (2) the activities of a suspected agent of a foreign power who is the subject of an investigation; or (3) an individual in contact with, or known to, a suspected agent of a foreign power. This reform would extend not only to phone records, but also to financial records, location data, medical records, credit card data, and other information the government may attempt to gather in bulk for intelligence purposes. Further, this legislation would raise the standard for collection under National Security Letter statutes and the Pen Register/Trap and Trace to prevent the government from shifting bulk collection to another authority.

The USA FREEDOM Act also seeks to protect Americans’ communication collected under the FISA Amendments Act of 2008. The bill closes the National Security Agency’s “back door” access to Americans’ communications by requiring a court order to search for the communications of Americans in data collected without individualized warrants under Section 702 of FISA.  The bill also imposes other safeguards on activities conducted under Section 702, including strengthening the prohibition on “reverse targeting” of Americans (targeting a foreigner with the goal of obtaining communications involving an American). Under the bill, the scheduled expiration of the FISA Amendments Act is moved from 2017 to 2015 to align it with the next Patriot Act reauthorization.

Additionally, the USA FREEDOM Act also contains important provisions to improve oversight, transparency, and accountability with respect to the NSA’s surveillance programs. If passed, the legislation will create the Office of the Special Advocate, appointed by the Privacy and Civil Liberties Oversight Board (PCLOB), which would promote privacy interests before the Foreign Intelligence Surveillance Court (FISC). The bill requires the Attorney General to disclose, or write summaries for, all significant FISC decisions written since 2003. The bill addresses the problem of “secret law” by establishing a process for public release of FISC opinions containing significant legal interpretations. The bill also would require the government to provide new public reporting on FISA implementation. Specifically, the government would be required to make public reports estimating the total number of individuals and U.S. persons who were subject to various types of FISA orders and whose information was reviewed by federal agents.  The bill enhances oversight by requiring Inspector General audits on the use of Section 215 orders, National Security Letters, and other surveillance authorities under the Patriot Act, as well as a comprehensive review of Section 702 surveillance by the Inspector General of the Intelligence Community.

AALL believes that the government has a responsibility to protect the privacy of library users and we oppose any current or future legislation, regulation, or guideline that erodes the privacy and confidentiality of library users or that has the effect of suppressing the free and open exchange of ideas and information. AALL believes that there must be effective oversight of current law that expands surveillance on library users. We urge Congress enact the USA FREEDOM Act to provide effective oversight of expanding surveillance on library users and amend provisions of the Patriot Act and other legislation, regulations, and guidelines that threaten the rights of inquiry and free expression.

The USA FREEDOM Act has more than 70 cosponsors in the House and Senate and enjoys broad bipartisan support. Visit our Legislative Action Center to urge your members of Congress to support this important reform.


Amid NSA Revelations, 2013 Secrecy Report Casts New Doubts

October 15, 2013

By Elizabeth

OpenTheGovernment.org (OTG) has released the 2013 Secrecy Report, its 9th annual review and analysis of indicators of secrecy in the federal government. With the public and lawmakers alike still reeling from the revelations about the scope of National Security Agency’s (NSA) data collection programs, this year’s report casts new doubt on the accuracy and the meaningfulness of the government’s statistics about surveillance.

In a note prefacing the report, OTG’s Executive Director Patrice McDermott writes: “Our distrust of the government’s reported numbers is focused in four areas: demands for records under Section 215 of the USA PATRIOT Act; the applications made to the Foreign Intelligence Surveillance Court (FISC) under Section 702 of the FISA Amendments Act of 2012; the failure of congressional oversight; and our new understandings of the interactions between the FISC and the intelligence community, and the expanded role of the Court.” As a result, previously included numbers on the use of National Security Letters (NSLs) and the government’s applications to the FISC are not included in this year’s report. Instead, the discussion focuses on the “misdirection in which our government has engaged” and “secret interpretations of law,” which are “as disturbing as the activities they have hidden.”

In response to the misrepresentation and obfuscation of the government intelligence collection programs, OTG outlines several recommendations for administrative action to curb secret law and restore accountability, including the release of authoritative legal interpretations of the Executive Branch, existing FISC decisions and opinions, and declassified Presidential Policy Directives – all of which AALL strongly supports.

Beyond the aforementioned surveillance programs, the 2013 Secrecy Report also considers the status of open and accountable government in other areas. With regards to the Freedom of Information Act (FOIA), this year’s assessment shows that while agencies continue to make progress in reducing their FOIA request backlog, requesters must still wait far too long to get a response. There has also been been a dramatic increase in decisions to withhold information about government deliberations. While the number of people with the authority to create new secrets continues to drop, the volume of classified material continues to grow and overwhelms the government’s declassification efforts. With the National Declassification Center poised to fail to meet its December 31 deadline, the center “has released 57 million pages to the public, a 61 percent release rate.”  Further, OTG found far too much material is marked at a classification level beyond its risk to national security.  While there have been some reductions in secrecy during the Obama administration’s tenure, the rate of change is “well below what it would take to make the government open and accountable.”

AALL is a founding member of OpenTheGovernment.org, a coalition of 80+ groups advocating for open and accountable government. We commend OTG for this year’s impressive report and we will continue to work with the coalition to promote greater transparency at the federal level.


A Quick Guide to the Laws Governing NSA Surveillance

September 19, 2013

By Elizabeth

As we’ve shared in previous posts, the AALL Government Relations Office (GRO) has been working closely with key allies on Capitol Hill to support several Congressional efforts for greater transparency, privacy protections, and government oversight in the wake of the recent revelations about the National Security Agency’s (NSA) domestic surveillance programs.

We now know the NSA gathers intelligence under Section 702 of the FISA Amendment Act, and declassified court opinions show the NSA gathers tens of thousands of “domestic communications” by and from Americans in its normal gathering of foreign communications. Under Section 215 of the USA PATRIOT Act, the NSA also performs bulk collection of telephone metadata.

What are the differences between Sections 702 and 215 and how are they being used to conduct surveillance? While we haven’t learned much about the FISC’s legal interpretation of these two key provisions, here’s a brief guide to what we do know: 

Section 702

Title VII, Section 702 of the Foreign Intelligence Surveillance Act (FISA), “Procedures for targeting certain persons outside the United States other than United States persons” (50 USC § 1881a)

  • Allows for targeting of communications of foreign persons located abroad for foreign intelligence purposes
  • Must have appropriate and documented foreign intelligence purpose for the acquisition and foreign target must be reasonably believed to be outside the United States
  • Cannot be used to intentionally target any U.S. citizen, or any other U.S. person, or to intentionally target any person known to be in the United States; cannot be used to target a person outside the United States if the purpose is to acquire information from a person inside the United States
  • Subject to annual review of “certifications” jointly submitted by U.S. Attorney General and Director of National Security which define the categories of foreign actors that may be targets and include specific targeting and minimization procedures
  • Department of Justice and Office of the Director of National Intelligence conduct on-site reviews of targeting, minimization, and dissemination decisions at least every 60 days

Section 215

Section 215 of the USA PATRIOT Act of 2001, which amended Title V, Section 501 of the Foreign Intelligence Surveillance Act (FISA), “Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations” (50 USC § 1861)

  • Used to justify collection of telephone metadata; does not acquire content communication, the identity of any party to communication, or any cell-site locational information
  • Metadata stored in repositories within secure networks, must be uniquely marked, and can only be accessed by a limited number of authorized personnel; metadata not reviewed and minimized must be destroyed within 5 years
  • Metadata may be queried only when there is reasonable suspicion, based on specific and articulated facts, that identifier used as basis for query is associated with specific foreign terrorist organizations; basis must be documented in writing in advance
  • Government must file report describing  implementation of the program to FISC every 30 days, including application the Reasonable Articulable Suspicion (RAS) standard, number of approved queries and the number of instances that query results that contain U.S. person information were shared outside of NSA
  •  FISC reviews and must reauthorize the program every 90 days

Stayed tuned to the Blawg for the updates on our efforts and visit our 113th Congress Bill Tracking Chart for the latest progress on pending legislation.


House Vote Signals Support for PATRIOT Act Reform

July 25, 2013

By Elizabeth

In a close but ultimately unsuccessful vote during consideration of the Department of Defense Appropriations Act (H.R. 2397) yesterday, 205 members of the House of Representatives voted to curtail the National Security Agency’s (NSA) ability to collect Americans’ phone data.  The amendment— offered by Representative Justin Amash (R-Mich.) with bipartisan co-sponsorship from Reps. John Conyers, Jr. (D-Mich.), Thomas Massie (R-Ky.), Mick Mulvaney (R-S.C.), and Jared Polis (D-Colo.)—  sought to limit the government’s collection of records under Section 215 of the USA PATRIOT Act to those records that pertain to a person who is subject to an investigation under that provision. Though defeated by a narrow margin of 205-217, the Amash amendment signaled growing opposition to the NSA’s broad surveillance program.

Notably, a principal author of the USA PATRIOT Act in 2001, Representative Jim Sensenbrenner (R-Wis.), urged his colleagues to rein in the NSA’s data collection program stating on the floor, “The time has come to stop it and the way we stop it is to approve this amendment.” The vote also made for interesting bedfellows with a majority of Democrats voting in support of the amendment and the majority of Republicans joining the White House to oppose the effort. The close vote suggests a burgeoning bipartisan contingent of lawmakers willing to place new limits on the federal government’s national security program for the first time in post-9/11 policy.

As we’ve said in our responses to the news of the NSA’s surveillance programs, AALL strongly supports a comprehensive national and state framework for privacy protection to safeguard the rights of Americans. To this end, AALL will continue to work in support of those Congressional efforts that would reform the PATRIOT Act to balance the government’s interest in protecting national security with defending the constitutional rights of the American people. See our 113th Congress Bill Tracking Chart for more on our work.

If your representative voted in favor of the amendment, please take a moment to thank him or her. Please also join the Government Relations Office on August 7 from 12:00-12:30pm EDT for a complimentary online training to learn more about how you can influence your members of Congress to support surveillance reform and our other policy priorities during the August recess. Register online by August 5.


Follow

Get every new post delivered to your Inbox.

Join 158 other followers

%d bloggers like this: