NSA Mass Spying and the Law


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Because of the work of Edward Snowden and a growing list of journalists around the world, the US government has now admitted that the NSA has been engaged in mass surveillance of Americans along with others around the world.

The government vacuums up massive amounts of communications and communications records, then uses various techniques to search and sort through them, claiming that the initial collection is legally justified by the techniques by which it does the sorting and discarding of untargeted material.

Learn about the most controversial programs, and how the Fourth and First Amendments might apply to them. Learn, also, about the status of various litigation challenges and legislative proposals to reform the NSA, the FISA Court, and surveillance law.

Published in: Law, Business, Technology
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NSA Mass Spying and the Law

  1. 1. Rocket Matter Webinar June 26, 2014 NSA Spying (Some of) What we know so far (Some of) the law (Some of) What is EFF doing (Some of) What you can do Cindy Cohn, Legal Director, EFF
  2. 2. Rocket Matter Webinar June 26, 2014 Public Disclosure •  In 2005, NYT revealed PSP, focus on content collection •  In 2006, USA Today revealed call-detail records program •  2006 Mark Klein reveals access to fiberoptic cables (“upstream”)
  3. 3. Rocket Matter Webinar June 26, 2014 New info via Snowden (US collection) •  Confirms call records collection (June 5, 2013) •  Confirms fiberoptic collection (June 6, 2013) •  “Prism” – company collection (June 6, 2013) •  MUCH, MUCH MORE
  4. 4. Rocket Matter Webinar June 26, 2014 Not Snowden: Hemisphere (NYT Sept. 1 2013) •  Domestic law enforcement •  AT&T embeds into DEA •  Records back to 1987 •  “Parallel Construction”
  5. 5. Rocket Matter Webinar June 26, 2014 Phone Records Collection •  “all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” •  Originating and terminating phone nos., IMSI #, IMEI #, trunk identifier, telephone calling card numbers, and time and duration of call •  Renewed every 90 days, kept 5 years
  6. 6. Rocket Matter Webinar June 26, 2014 Section 215 of Patriot Act •  Section 215 amended FISA to allow orders to produce “tangible things” •  Must be “relevant to an authorized investigation (other than a threat assessment)” •  No broader than a Grand Jury Subpoena
  7. 7. Rocket Matter Webinar June 26, 2014 Gov’t Attempts to Explain •  Need a big haystack to go back in time and “connect the dots” •  No identity – NSA may have access to phone books •  No location information – “under this program” - Wyden •  300 selectors + 3 hops – ACLU says 2.4 million/govt 64,000 per selector (now 2 hops)
  8. 8. Rocket Matter Webinar June 26, 2014 Why Metadata Matters •  You rang a phone sex service at 2:24 am and spoke for 18 minutes.. •  You called the suicide prevention hotline from the Golden Gate Bridge. •  You spoke with an HIV testing service, then your doctor, then your health insurance company in the same hour. •  Felten declaration in ACLU v. Clapper
  9. 9. Rocket Matter Webinar June 26, 2014 Phone Records Cases •  Klayman v. Obama (DC Circuit) •  ACLU v. Clapper (2nd Circuit) •  Smith v. Obama (9th Circuit) •  EFF: – First Unitarian Church of Los Angeles v. NSA – Jewel v. NSA (since 2008!)
  10. 10. Rocket Matter Webinar June 26, 2014 Fiber-Optic Splitters •  The “splitter cabinet” splits the light signals in two, making two identical copies of the data carried on the light signal – One copy goes to the NSA •  Mark Klein & Room 641A
  11. 11. Rocket Matter Webinar June 26, 2014
  12. 12. Rocket Matter Webinar June 26, 2014 FISA Amendment Act •  Section 702 was passed in 2008, and the government relies on this for the collection of content. •  Targeting and Minimization docs – Aimed foreign targets – Encrypted information kept forever – Can “Tip” the FBI on criminal (and maybe IRS, DEA and others)
  13. 13. Rocket Matter Webinar June 26, 2014 Fourth Amendment •  Response to General Warrants/Writs of Assistance •  First question: is it a search or seizure – Govt says no if metadata – Smith case •  If Search then – Probable cause (person or group) – Particularity
  14. 14. Rocket Matter Webinar June 26, 2014 "the child independence was then and there born,[for] every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance." - John Adams
  15. 15. Rocket Matter Webinar June 26, 2014 First Amendment •  Right of Association –  NAACP v. Alabama – Prop 8 case •  If likely chilling effect – Then must show “least restrictive means” and “narrow tailoring” •  Govt says doesn’t apply if not aimed at associations
  16. 16. Rocket Matter Webinar June 26, 2014 Turning upside down •  Collect everything first and analyze – Phone records – Prism/Upstream •  Sort out what you actually need second – 215: RAS: reasonable articulable suspicion – 702: 51% sure is foreign •  As long as “target” is foreign, OK to analyze data that includes Americans and innocent foreigners
  17. 17. Rocket Matter Webinar June 26, 2014 Word Games •  Collect •  DNI McConnell: “We may not know that it is in the database until we have some reason to go query that portion of the database” •  Data ≠ “Metadata •  Conversations/Communications •  Targeting •  No. Not Wittingly
  18. 18. Rocket Matter Webinar June 26, 2014 Sabotage – Bullrun 5 Sept 2013 •  “Insert vulnerabilities into commercial encryption systems, IT systems, networks and endpoint communications devicees used by targets” •  "actively engages US and foreign IT industries to covertly influence and/or overtly leverage their commercial products' designs" •  “Shape the worldwide commercial cryptography marketplace to make it more tractable to advanced cryptoanalytic capabilities being developed by NSA/CSS •  "These design changes make the systems in question exploitable through Sigint collection … with foreknowledge of the modification. To the consumer and other adversaries, however, the systems' security remains intact.” •  “influence policies, standards and specifications for commercial public key technologies”
  19. 19. Rocket Matter Webinar June 26, 2014 What is EFF doing? •  Litigation – Jewel v. NSA (filed in 2008) – First Unitarian v. NSA (filed last month) – EFF v. DOJ (FOIA cases, 215 and FISC) – Support for criminal cases
  20. 20. Rocket Matter Webinar June 26, 2014 Legislation and Activism •  Built multi-partisan coalition – Delivered over half-million signatures to Congress in October – Interpret for public •  Commenting on drafts •  Feinstein/Rogers •  USA Freedom
  21. 21. Rocket Matter Webinar June 26, 2014 International •  13 Principles (necessaryandproportionate.net) – Around 300 organizations worldwide – UN Special Rapporteurs – Now picked up by Germany/Brazil governments •  Legal processes – ECHR complaint – OAS hearing
  22. 22. Rocket Matter Webinar June 26, 2014 Technology •  Still to be done: Ease of use – End to end in phones, text message, the web, email instant messaging, social networking, disk drives, flash memory, “data at rest” •  Shore up crypto tools against sabotage
  23. 23. Rocket Matter Webinar June 26, 2014 You •  Pay attention, Activate, Share, Vote – Activism is an open source project •  Use the tools •  Help with the technology projects •  If you don’t want to live in a surveillance state, stop building the tools of it
  24. 24. Rocket Matter Webinar June 26, 2014 questions? Cindy Cohn Legal Director, EFF Cindy@eff.org
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