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Privacy | EFF | AUG 2, 2012

New technologies are radically advancing our freedoms but they are also enabling unparalleled invasions of privacy. Your cell phone helps you keep in touch with friends and families but it also makes it easier for security agencies to track your location. Your Web searches about sensitive medical information might seem a secret between you and your search engine, but companies like Google are creating a treasure trove of personal information by logging your online activities, and making it potentially available to any party wielding enough cash or a subpoena. And the next time you try to board a plane, watch out—you might be turned away after being mistakenly placed on a government watch list, or be forced to open your email in the security line.

National and international laws have yet to catch up with the evolving need for privacy that comes with new technology. Several governments have also chosen to use malware to engage in extra-legal spying or system sabotage for dissidents or non-citizens, all in the name of “national security.”Respect for individuals’ autonomy, anonymous speech, and the right to free association must be balanced against legitimate concerns like law enforcement. National governments must put legal checks in place to prevent abuse of state powers, and international bodies need to consider how a changing technological environment shapes security agencies’ best practices.

EFF fights in the courts and Congress to extend your privacy rights into the digital world, and works with partners around the globe to support the development of privacy-protecting technologies. Read our work on privacy issues below, and join EFF to help support our efforts.

The Dangers of Surveillance | HARVARD LAW REVIEW | MAY 20, 2013

From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others, our law and culture are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad and why we should be wary of it. To the extent that the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context and why it matters. We’ve been able to live with this state of affairs largely because the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states.

But these warnings are no longer science fiction. The digital technologies that have revolutionized our daily lives have also created minutely detailed records of those lives. In an age of terror, our government has shown a keen willingness to acquire this data and use it for unknown purposes. We know that governments have been buying and borrowing private-sector databases, and we recently learned that the National Security Agency (NSA) has been building a massive data and supercomputing center in Utah, apparently with the goal of intercepting and storing much of the world’s Internet communications for decryption and analysis.

Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, our law of surveillance provides only minimal protections. Courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no harms. The Supreme Court recently reversed the only major case to hold to the contrary, in Clapper v. Amnesty International USA, finding that the respondents’ claim that their communications were likely being monitored was “too speculative.”

But the important point is that our society lacks an understanding of why (and when) government surveillance is harmful. Existing attempts to identify the dangers of surveillance are often unconvincing, and they generally fail to speak in terms that are likely to influence the law. In this Article, I try to explain the harms of government surveillance. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of “surveillance studies,” I offer an account of what those harms are and why they matter. I will move beyond the vagueness of current theories of surveillance to articulate a more coherent understanding and a more workable approach.

Foreign Intelligence Surveillance Act (FISA) | WIKIPEDIA | MAY 13, 2017

The Foreign Intelligence Surveillance Act of 1978 (“FISA” Pub.L. 95–511, 92 Stat. 1783, 50 U.S.C. ch. 36) is a United States federal law which prescribes procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers” suspected of espionage or terrorism).[1] The Act created the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants by federal law enforcement and intelligence agencies. It has been repeatedly amended since the September 11 attacks.

United States Foreign Intelligence Surveillance Court | WIKIPEDIA | MAY 13, 2017

The United States Foreign Intelligence Surveillance Court (FISC, also called the FISA Court) is a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies. Such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). Congress created FISA and its court as a result of the recommendations by the U.S. Senate‘s Church Committee.[1] Its powers have evolved to the point that it has been called “almost a parallel Supreme Court.”[2]

Warrantless domestic wiretapping program: The Act came into public prominence in December 2005 following publication by the New York Times of an article[3] that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency since 2002; a subsequent Bloomberg article[4] suggested that this may have already begun by June 2000.

Mixed Signals In The Debate Over Encryption Technology | CNN | JUN 16, 1998

“Encryption is the foundation of security and electronic commerce,” said Gant Redmon, counsel for Axent Technologies Inc., a company based in Rockville that makes encryption products. While most agree that encryption is a key element in the growth of electronic commerce, a long-running debate has raged involving the high-tech industry, government officials and lawmakers over how far the government should go in restricting the technology’s use. High-tech companies have been pushing to export much stronger encryption products than currently allowed.

The Clinton administration has been reluctant to relax export controls on encryption. It is worried that easing controls may hinder law enforcement and intelligence gathering when the technology is used to block access to communications or data. But high-tech companies argue that restrictions are doing little to control the spread of strong encryption. Instead, they argue that these restrictions are making it increasingly difficult for U.S. companies to compete with foreign competitors.

Just how serious the issue is becoming was apparent June 9 when top law enforcement officials met with a half-dozen executives of high-tech companies to discuss both sides of the issue. Among the participants in the meeting, hosted by Sen. Dianne Feinstein, D-Calif., at her office, were FBI Director Louis J. Freeh and Attorney General Janet Reno, as well as Microsoft Corp. Chairman Bill Gates, Scott McNealy, chief executive of Sun Microsystems Inc., and Sen. Jon Kyl, R-Ariz.

The FBI’s Case: The White House’s policy has been driven by fears of law enforcement and national security officials that loosening export controls would lead to the widespread use of unbreakable encryption by criminals and terrorists who want to hide their illegal activities. As the use of encryption becomes more commonplace among criminals, law enforcement officials are concerned that their ability to use wiretaps and other legal means to gain valuable evidence will be thwarted if communications or stored data is coded with unbreakable encryption. The FBI has been “trying to find a balance in which we can still do our job and do our job in the future as this proliferates. We hope strong encryption proliferates from a business part and from a privacy part — but how can we do it in such a way . . . that doesn’t [hurt] us,” said FBI deputy Assistant Director Edward L. Allen in an interview. The FBI has been pushing to require manufacturers to ensure that law enforcement has some way to gain access to a decrypted version of stored data or communications.

Political Implications Some legislators on both sides of the issue say Clinton needs to show more leadership. “The president needs to step up. . . . He needs to make the case for the national security,” said Sen. Bob Kerrey, D-Neb., one of S909’s sponsors. Others cite the difficulty Clinton would have coming down in opposition to law enforcement and national security officials — a reality that has pushed some lawmakers to Freeh’s camp. Also influencing the debate is the recent controversy over the administration’s decision to allow a U.S. company to launch satellites aboard a Chinese rocket; that matter does not help the industry’s cause, Kerrey and others said. (Weekly Report, p. 1467) There is “not going to be a majority in the Senate who are going to do something that the director of the FBI, the secretary of Defense . . . say can jeopardize national security,” said Senate Commerce Committee Chairman John McCain, R-Ariz., S 909’s chief sponsor.

PATRIOT Act | EFF | OCT 12, 2015

The USA PATRIOT Act broadly expands law enforcement’s surveillance and investigative powers and represents one of the most significant threats to civil liberties, privacy, and democratic traditions in US history.

What is PATRIOT? The USA PATRIOT Act (officially the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) was quickly developed as anti-terrorism legislation in response to the September 11, 2001 attacks. The large and complex law received little Congressional oversight and debate and was signed into law by President George W. Bush on October 26, 2001.

PATRIOT gives sweeping search and surveillance to domestic law enforcement and foreign intelligence agencies and eliminates checks and balances that previously gave courts the opportunity to ensure that those powers were not abused. PATRIOT and follow-up legislation now in development threaten the basic rights of millions of Americans.

Bush Signs Anti-Terrorism Legislation | WASHINGTON POST | OCT 25, 2001

Bush signs new anti-terrorism laws | THE GUARDIAN | OCT 26, 2001

15 Years Later: The Patriot Act | ODYSSEY | OCT 31, 2016

SECRET COURT SAYS FBI MISLED JUDGES IN 75 CASES | NEW YORK TIMES | AUG 23, 2002

The nation’s secret intelligence court has identified more than 75 cases in which it says it was misled by the Federal Bureau of Investigation in documents in which the bureau attempted to justify its need for wiretaps and other electronic surveillance, according to the first of the court’s rulings to be released publicly. The opinion by the Foreign Intelligence Surveillance Court, which was issued in May but made public today by Congress, is stinging in its criticism of the F.B.I. and the Justice Department, which the court suggested had tried to defy the will of Congress by allowing intelligence material to be shared freely with criminal investigators. In its opinion, the court rejected a secret request made by the Justice Department this year to allow broader cooperation and evidence-sharing between counterintelligence investigators and criminal prosecutors. The court found that the request was ”not reasonably designed” to safeguard the privacy of Americans. The court generally operates in secret and is responsible for approving warrants to eavesdrop on people suspected of espionage or terrorism.

FBI and the Justice Department tried to defy the will of Congress by allowing intelligence material to be shared freely with criminal investigators. The standards of evidence required for electronic surveillance are much lower in many intelligence investigations than in criminal investigations, the authors of the law wanted to prevent the dissemination of intelligence information to criminal investigators or prosecutors. In a number of cases the FBI and the Justice Department had made ”erroneous statements” in eavesdropping applications about ”the separation of the overlapping intelligence and criminal investigators and the unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys.” The court said that the FBI and the Justice Department were violating the law by allowing information gathered from intelligence eavesdrops to be used freely in bringing criminal charges, without court review, and that criminal investigators were improperly directing the use of counterintelligence wiretaps. In one case, it said, the error appeared in a statement issued by the office of Louis J. Freeh, then the FBI director, in which the bureau said that target of an intelligence eavesdropping request ”was not under criminal investigation.”

In March of 2001, the court said, ”the government reported similar misstatements in another series of FISA applications in which there was supposed to be a ‘wall’ between separate intelligence and criminal squads in FBI field offices to screen FISA intercepts, when in fact all of the FBI agents were on the same squad and all of the screening was done by the one supervisor overseeing both investigations.”

Secret Court’s Judges Were Warned About NSA Spy Data | WASHINGTON POST page 1 | WASHINGTON POST page 2 | FEB 9, 2006

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush’s eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly — who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen. The two heads of the Foreign Intelligence Surveillance Court were the only judges in the country briefed by the administration on Bush’s program. The president’s secret order, issued sometime after the Sept. 11, 2001, attacks, allows the National Security Agency to monitor telephone calls and e-mails between people in the United States and contacts overseas.

James A. Baker, the counsel for intelligence policy in the Justice Department’s Office of Intelligence Policy and Review, discovered in 2004 that the government’s failure to share information about its spying program had rendered useless a federal screening system that the judges had insisted upon to shield the court from tainted information. He alerted Kollar-Kotelly, who complained to Justice, prompting a temporary suspension of the NSA spying program, the sources said.

The two judges’ discomfort with the NSA spying program was previously known. But this new account reveals the depth of their doubts about its legality and their behind-the-scenes efforts to protect the court from what they considered potentially tainted evidence. The new accounts also show the degree to which Baker, a top intelligence expert at Justice, shared their reservations and aided the judges. Both judges expressed concern to senior officials that the president’s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president’s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.

The Justice Department’s woman in charge of keeping the FISA program in check: Frances Townsend | WHITEHOUSE

Department of Justice, District of Brooklyn | Counsel to the Attorney General for Intelligence Policy (1985 – 1988) | Mentored by Rudolph Giuliani and FBI Director Louis Freeh.
Department of Justice, Southern District of New York | US Attorney International Organized Crime and White Collar Crime (1988 – 1991)
Department of Justice, Office of the Attorney General International Programs | (1991 1993) to assist in establishing the newly created Office of International Programs, the predecessor to the Executive Office for National Security.
Chief of Staff to the Assistance Attorney General, Criminal Division | (1993 1995) played a critical role in establishing the Division’s international training and rule of law programs.
Director of International Affairs, Criminal Division | (1995 – 1997) | which serves as the U. S. Central Authority for extradition and mutual legal assistance, and works with the Department of State in the negotiation of international law enforcement treaties.
Acting Deputy Assistant Attorney General, Criminal Division | (1997 1998) where she oversaw international law enforcement and training matters, and acted as an advisor to the Attorney General and Deputy Attorney General on international law enforcement policy.
Advisor to the Attorney General & Deputy Attorney General for International Law Enforcement Policy | (1997 1998)
Counsel to AG, Office of Intelligence Policy and Review for National Security Policy & Operations | (1998 – 2000) managing matters related to national security policy and operations for the Department of Justice. In this capacity she headed the office of Intelligence Policy and Review, an office that: provides legal advice and recommendations to the Attorney General and the Department of Justice regarding national security matters, reviews executive orders, directives and procedures relating to the intelligence community, and approves certain intelligence-gathering activities, especially those matters related to the Foreign Intelligence Surveillance Act.
Executive Office of the President Deputy Assistant to the President & Deputy National Security Advisor For Combating Terrorism | (2003 – 2004)
Assistant to President George W. Bush for Homeland Security and Counterterrorism | (2004 – 2008)
US Coast Guard | Assistant Commandant for Intelligence (2000 2003)
Homeland Security Council | Chairman | (2004 – 2008)
Intelligence and National Security Alliance (INSA) | Chairman of Board of Directors

Frances Townsend | RELATIONSHIP SCIENCE

Decision Sciences | Board of Advisors
The Aspen Institute | Member
The Trilateral Commission | Member
The Council on Foreign Relations | Member
US Coast Guard | Assistant Commandant for Intelligence (2000 2003)
Homeland Security Council | Chairman | (2004 – 2008)
Intelligence and National Security Alliance (INSA) | Chairman of Board of Directors
Protiviti Inc. | Advisory Board | (2015 – present)
IrisGuard Incorporated | Advisory Board
MacAndrews & Forbes Holdings, Inc. | Executive Vice President of Worldwide Government, Legal and Business Affairs
Aquamarine Investment Partners | Senior Counselor
SAP National Security Services, Inc. | Chair
Monument Capital Group, LLC | Operating Advisor
Freeport-McMoRan Inc. | Independent Director
The Western Union Company | Independent Director
SIGA Technologies | Director | (2011 – 2014)
Business Executives for National Security, Inc. | Director
Bipartisan Policy Center | Director
Baker Botts L.L.P. | Corporate Partner
CNN | National Security Expert Analyst

The FBI’s man, formerly in charge of keeping the surveillance program in check: Pasquale J. D’Amuro | CONCORDIA | MAY 13, 2017

Pasquale J. D’Amuro serves as the Chairman and Chief Executive Officer of Global Risk & Investigative Diligence, LLC (GRID) a full-service security, crisis management and investigative consulting firm. Mr. D’Amuro also serves as the Chairman and Chief Executive Officer of Giuliani Security and Safety, which he joined in April of 2005. Mr. D’Amuro’s efforts in the private sector follow 26 years of distinguished service with the Federal Bureau of Investigation. Ultimately rising to the Bureau’s 3rd highest position, Mr. D’Amuro served in a variety of capacities throughout his career, including Associate Special Agent in Charge of the New York Office’s Criminal Division; Inspector in Charge of the September 11th investigation; Assistant Director of the Counterterrorism Division; Executive Assistant Director for both Counterintelligence and Counterterrorism; and the Assistant Director in Charge of the New York Field Office. In each position of increasing difficulty, Mr. D’Amuro excelled in achieving the FBI’s most urgent mission-critical objectives.

Beginning his career as a field agent in New York, Mr. D’Amuro went on to serve in various offices in New York and Washington and participated in investigations that stretched into regions and locales across the globe, including the European and African continents, as well as Iraq, Afghanistan, Saudi Arabia, Jordan, Israel, Yemen, and Pakistan.

In October of 2001, Mr. D’Amuro received what was to become one of his most challenging and gratifying assignments, when he was chosen by FBI Director Robert Mueller to lead the Bureau’s investigation into the terrorist attacks of September 11, 2001. Reporting directly to the Director and the Attorney General for the United States, Mr. D’Amuro led the efforts of literally thousands of agents, coordinating one of the FBI’s largest and most comprehensive investigations, which resulted in the positive identification of all 19 hijackers and the successful prosecution of numerous individuals linked to Al-Qaeda and other terrorist organizations. Based upon the success of his efforts, Mr. D’Amuro’s responsibilities were broadened, and he was appointed to oversee field investigations into all of the nation’s threat-related activity. Despite the complexity of organizing and managing the analysis of thousands of leads, Mr. D’Amuro was praised by the Director for demonstrating “the highest level of initiative, flexibility, and innovation to accomplish the Bureau’s mission,” and in January 2002 was promoted to Assistant Director of the FBI’s national Counterterrorism Division.

Under Mr. D’Amuro’s leadership, the Counterterrorism Division more than quadrupled in budget and size, expanding both its reach and methods of operation. Included among the many enhancements Mr. D’Amuro brought to the Division was the creation of the Terrorism Financial Operations Section (TFOS), the first FBI section dedicated exclusively to targeting the financiers and the money supporting terrorist activities, as well as the Communications Exploitation Section, which greatly expanded the Bureau’s capabilities to retrieve and analyze essential telecommunications and electronic data. Mr. D’Amuro also played a critical role in advocating the needs and concerns of the Bureau to Congress, testifying on numerous occasions with respect to the events of September 11th, the changes in the Counterterrorism Program of the FBI, and the various Oversight Committees conducting reviews of FBI operations.

In November 2002, Mr. D’Amuro was appointed by the Director of the FBI to serve as Executive Assistant Director for Counterintelligence and Counterterrorism. In this role, Mr. D’Amuro helped forge significant inroads toward improving information sharing among the various federal law enforcement and intelligence agencies. Included among his accomplishments was the establishment of the Memorandum of Understanding that created the Terrorism Threat Integration Center and formalized the information sharing protocols between the FBI, Central Intelligence Agency, Department of Homeland Security, and Department of Defense. Mr. D’Amuro also played a lead role in establishing the centralized Terrorism Watch List, which linked all previous registers into a single comprehensive database operated and managed by the FBI. Mr. D’Amuro’s strong relationships with his government counterparts, results-driven work ethic, and ability to liaise effectively with the White House and the National Security Council, were lauded as critical factors in the success of the endeavors. In August of 2003, Mr. D’Amuro was tapped by the FBI Director to take charge of the Bureau’s New York Office, its largest and highest profile command. As Assistant Director in Charge, Mr. D’Amuro established New York as the first FBI office to operate its own Office of Intelligence.

This groundbreaking achievement ensured the proper analysis of information developed by the New York Office as well as information sharing within the law enforcement/intelligence community and the private sector. Throughout his tenure in New York, Mr. D’Amuro lectured regularly and appeared publicly to provide transparency for the changes implemented within the Bureau post-9/11. Over the course of his law enforcement career, Mr. D’Amuro has been the recipient of numerous awards and commendations, including the FBI’s Presidential Rank Award of Distinguished Executive in the Senior Executive Service. In 2004, Mercy College, Dobbs Ferry, New York, recognized Mr. D’Amuro’s achievements in the areas of law enforcement and counterterrorism by awarding him an honorary Doctorate of Laws. Mr. D’Amuro previously served on the Board of Trustees of Mercy College and has appeared as a senior analyst on CNN.

Bush Lets U.S. Spy on Callers Without Courts | NEW YORK TIMES | DEC 16, 2005

WASHINGTON, Dec. 15 – Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches. “This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.” Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation’s legality and oversight.

An Outsider’s Quick Rise To Bush Terror Adviser – Frances Townsend | WASHINGTON POST | AUG 27, 2005

In September of 2001, she worked for the Coast Guard as the intelligence chief. At the time, the Coast Guard was not part of the “intelligence community” and thus was not allowed to share sensitive information. She helped the Coast Guard get added to intelligence legislation and transformed the agency’s priority from South American drug-smuggling to the vulnerability of America’s ports.

In Spring of 2003, Richard Clarke and General John A Gordon (Bush’s Homeland Security Chief) lobbied for Townsend, and as a result she was hired on to the National Security Council. “Frances Townsend runs President Bush’s far-flung campaign against terrorism.” “She obviously has the confidence of the president, and that has a huge impact on her ability to influence the process,” said Homeland Security Secretary Michael Chertoff. She is the ‘coordinator, the facilitator, the bridge,’ as FBI Director Robert S. Mueller III put it, between the powerful institutions and clashing egos of a war cabinet.

Among her many mentors, she counts Secretary of State Condoleezza Rice, longtime FBI Director Louis J. Freeh and former White House counterterrorism czar Richard A. Clarke. “Townsend has overseen an intelligence reorganization and is now directing the first White House review of its anti-terrorism campaign since the aftermath of Sept. 11, a process intended to broaden the struggle into a new ‘strategy against violent extremism.”

Until a few months prior to 9/11, she had run the Justice Department’s Office of Intelligence Policy and Review that decided which cases merited supersecret intelligence wiretaps, work that took her inside al Qaeda cases, such as the 1998 embassy bombings in Africa.”

“Her office would be a focus of controversy after Sept. 11. As the gatekeeper for intelligence wiretap requests, Townsend’s office fought efforts to invoke the Foreign Intelligence Surveillance Act in matters that could result in criminal cases, fearing that prosecutors would use such surveillance to circumvent the more difficult threshold for obtaining a criminal wiretap. In practical terms, the result was what commission reports called “The Wall,” fencing off investigators from potentially useful information about suspects on American soil. In an example cited by a bipartisan congressional commission, Townsend refused to endorse a secret intelligence wiretap on Los Alamos National Laboratories scientist Wen Ho Lee because the FBI’s interest in the case was “way too criminal.”

Newly Released Documents Detail FBI’s Plan to Expand Federal Surveillance Laws | ELECTRONIC FRONTIER FOUNDATION | FEB 16, 2011

EFF just received documents in response to a 2-year old FOIA request for information on the FBI’s “Going Dark” program, an initiative to increase the FBI’s authority in response to problems the FBI says it’s having implementing wiretap and pen register/trap and trace orders on new communications technologies. The documents detail a fully-formed and well-coordinated plan to expand existing surveillance laws and develop new ones. And although they represent only a small fraction of the documents we expect to receive in response to this and a more recent FOIA request, they were released just in time to provide important background information for the House Judiciary Committee’s hearing tomorrow on the Going Dark program.

We first heard about the FBI’s Going Dark program in 2009, when the agency’s Congressional budget request included an additional $9 million to fund the program (on top of the $233.9 million it already received). Late last year, the New York Times linked the program to a plan to expand federal surveillance laws like the Communications Assistance to Law Enforcement Act (CALEA). We issued FOIA requests to the FBI in 2009 for information on Going Dark and in 2010 for information on the agency’s plans to update CALEA. These are the first documents we’ve received since we filed our lawsuit against the agency late last year. The documents provide rare insight into the agency’s multi-year strategy to increase its power to surveil our communications.

The FBI Has Been Working on “Going Dark” Since at Least 2006 and Has Lobbied Congress and the White House to Support the Program with More Money and Stronger Laws

The FBI and DOJ have been working on amendments to the Communications Assistance for Law Enforcement Act (CALEA) since at least 2006, though their efforts to lobby Congress and the White House have steadily ramped up within the last few years. The FBI has met with important Congressional committees and with the White House about Going Dark many times since January 2008 and has specific plans to “socialize [its] Strategy with key Congressional members and staff.

January 2008, the FBI director (Mueller) testified before the House and Senate at the annual threat assessment hearing and included a Q&A handout on Going Dark

In March 2008, staff from the Senate Subcommittee on Commerce, Justice, and Science visited the FBI’s Operational Technology Division and had a briefing on Going Dark with Kerry Haynes, the Assistant Director of the Investigative Technologies Division. Topics discussed included “unfunded requirements, level of cooperation/understanding/assistance from DNI, level of sharing and cooperation with IC/telecom and [international] partners, consolidation of tech efforts across industry, working groups/detailees [sic] to consolidate efforts, the ‘data coordination center’ concept.”

U.S. Tries to Make It Easier to Wiretap the Internet | NEW YORK TIMES | SEP 27, 2010

WASHINGTON — Federal law enforcement and national security officials are preparing to seek sweeping new regulations for the Internet, arguing that their ability to wiretap criminal and terrorism suspects is “going dark” as people increasingly communicate online instead of by telephone. Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order. The mandate would include being able to intercept and unscramble encrypted messages. The bill, which the Obama administration plans to submit to lawmakers next year, raises fresh questions about how to balance security needs with protecting privacy and fostering innovation. And because security services around the world face the same problem, it could set an example that is copied globally.

James X. Dempsey, vice president of the Center for Democracy and Technology, an Internet policy group, said the proposal had “huge implications” and challenged “fundamental elements of the Internet revolution” — including its decentralized design. “They are really asking for the authority to redesign services that take advantage of the unique, and now pervasive, architecture of the Internet,” he said. “They basically want to turn back the clock and make Internet services function the way that the telephone system used to function.”

But law enforcement officials contend that imposing such a mandate is reasonable and necessary to prevent the erosion of their investigative powers. “We’re talking about lawfully authorized intercepts,” said Valerie E. Caproni, general counsel for the Federal Bureau of Investigation. “We’re not talking expanding authority. We’re talking about preserving our ability to execute our existing authority in order to protect the public safety and national security.” Investigators have been concerned for years that changing communications technology could damage their ability to conduct surveillance. In recent months, officials from the F.B.I., the Justice Department, the National Security Agency, the White House and other agencies have been meeting to develop a proposed solution.

U.S. Is Secretly Collecting Records of Verizon Calls | NEW YORK TIMES | JUN 5, 2013

The Obama administration is secretly carrying out a domestic surveillance program under which it is collecting business communications records involving Americans under a hotly debated section of the Patriot Act, according to a highly classified court order disclosed on Wednesday night. The order from the Foreign Intelligence Surveillance Court in April, directs a Verizon Communications subsidiary, Verizon Business Network Services, to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”

Verizon Business Network Services is one of the nation’s largest telecommunications and Internet providers for corporations. It is not clear whether similar orders have gone to other parts of Verizon, like its residential or cellphone services, or to other telecommunications carriers. The order prohibits its recipient from discussing its existence, and representatives of both Verizon and AT&T declined to comment Wednesday evening. The four-page order was disclosed Wednesday evening by the newspaper The Guardian.

Obama administration officials at the F.B.I. and the White House also declined to comment on it Wednesday evening, but did not deny the report, and a person familiar with the order confirmed its authenticity. “We will respond as soon as we can,” said Marci Green Miller, a National Security Agency spokeswoman, in an e-mail. The order was sought by the Federal Bureau of Investigation under a section of the Foreign Intelligence Surveillance Act, the 1978 law that regulates domestic surveillance for national security purposes, that allows the government to secretly obtain “tangible things” like a business’s customer records. The provision was expanded by Section 215 of the Patriot Act, which Congress enacted after the 9/11 terrorist attacks.

NSA collecting phone records of millions of Verizon customers daily | THE GUARDIAN | JUN 6, 2013

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecomsproviders, under a top secret court order issued in April. The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing. The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19. Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered. The disclosure is likely to reignite longstanding debates in the US over the proper extent of the government’s domestic spying powers.

Under the Bush administration, officials in security agencies had disclosed to reporters the large-scale collection of call records data by the NSA, but this is the first time significant and top-secret documents have revealed the continuation of the practice on a massive scale under President Obama. The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

In Secret, Court Vastly Broadens Powers of N.S.A. | NEW YORK TIMES | JUL 6, 2013

WASHINGTON — In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greaterjudicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.” In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The legal interpretation uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. In one case, intelligence officials were granted access to an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran’s nuclear program.

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr.

A single judge signs most surveillance orders, which totaled nearly 1,800 last year (2012). None of the requests from the intelligence agencies was denied, according to the court. Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public.

FBI Director Comments on San Bernardino Matter | FBI | FEB 21, 2016

The following letter from FBI Director James Comey was posted on Lawfare Blog on February 21, 2016.

The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message. It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That’s what this is. The American people should expect nothing less from the FBI.

The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it. We don’t want to break anyone’s encryption or set a master key loose on the land. I hope thoughtful people will take the time to understand that. Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t. But we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.

Reflecting the context of this heart-breaking case, I hope folks will take a deep breath and stop saying the world is ending, but instead use that breath to talk to each other. Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure—privacy and safety. That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn’t drift to a place—or be pushed to a place by the loudest voices—because finding the right place, the right balance, will matter to every American for a very long time.

So I hope folks will remember what terrorists did to innocent Americans at a San Bernardino office gathering and why the FBI simply must do all we can under the law to investigate that. And in that sober spirit, I also hope all Americans will participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need.

CIA Director John Brennan Backs FBI in Apple Privacy Debate | ABC | FEB 24, 2016

The FBI has a “legitimate basis to try to understand” what is on the San Bernardino shooter’s cellphone, CIA Director John Brennan said, siding with the FBI in the brewing battle over whether Apple should be forced to hack into the phone. Apple has refused to allow the FBI to access the shooter’s locked and encrypted iPhone, which the FBI argues could have important information about the attack that left fourteen dead.

But “electronic communications, like other means of communication, or means of storage, have the opportunity for the government, when there is a legitimate basis, to access it,” Brennan told NPR reporter Mary Louise Kelly during a interview this weekend at the CIA headquarters in Langley, Virginia. Brennan talked about the balance between security and privacy, saying FBI director James Comey and others “are not calling for a sort of wholesale access to things. He’s saying under the right conditions, with the right bases, that these companies need to be able to provide, or to respond, to lawful court orders.”

Apple CEO Tim Cook has argued that creating a back door for the government into the San Bernardino shooter’s iPhone jeopardizes security for all iPhone users. Brennan’s predecessor, former CIA Director Michael Hayden, said recently that he sided with Apple on the issue.

Brennan was pressed on which additional capabilities he wished the CIA had to thwart attacks like the one that occurred in Paris last November. “I would like the government to have the ability to gain access to information that is in these electronic various devices that can be used to further investigations, whether it be guilt or innocence of individuals,” he said. Brennan stressed the need for a private-public sector partnership to adapt to the encrypted messaging technologies used by terrorists. “The cyber environment should not provide the safe harbor for terrorists and others who are trying to do harm, and conduct violence against citizenry around the world,” he said.

Comey: Dispute between FBI, Apple “hardest question I’ve seen in government” | CBS | FEB 25, 2016

FBI Director James Comey on Thursday told Congress that the current dispute between his agency and Apple over trying to access one of the San Bernardino attacker’s phones is “the hardest question I’ve seen in government.” He made the comment at a House Intelligence Committee hearing focused on worldwide threats, with Director of National Intelligence James Clapper and CIA Director John Brennan testifying alongside him.

“I think conversation and negotiation is the key to resolving this,” Comey told lawmakers. Comey said the FBI has two roles to play: to conduct an investigation into the San Bernardino terrorist attack that left 14 people dead in December using “whatever lawful tools are available to us.” The other is to ensure that people understand “the costs associated with universal strong encryption.”

While Comey said there are benefits to encryption and privacy, he also argued that law enforcement needs information to protect the public, which they often access through court orders that are search warrants, including of mobile devices. He warned that if they lose access to that information, there could be consequences. “If we’re going to move to a world where that is not possible anymore, the world will not end, but it will be a different world than where we are today and where we were in 2014,” he said.

The FBI has demanded that Apple help unlock the encrypted iPhone that was used by Syed Farook, one of the San Bernardino attackers, but Apple refused a court order last week issued by a federal magistrate judge that directed the company to override security features on his phone. Apple CEO Tim Cook said Wednesday that it would be “bad for America” if his company complied with the FBI and said he’s prepared to take the dispute all the way to the Supreme Court. Apple has claimed that the software the FBI wants it to create doesn’t exist, and if it is developed, it could make iPhones susceptible to hacking by authorities or criminals in the future. In other words, this dispute has broad implications in the debate between privacy and security.

But the FBI has maintained that its request is very narrow and only applies to Farook’s phone. “The San Bernardino litigation is not about us trying to send a message or establish some precedent,” Comey said. If the FBI prevails and Apple is required to create the requested code, one lawmaker asked about the concern that the code “gets out in the wild” for criminals and terrorists to potentially steal. Comey, however, said that the code the judge has directed Apple to write would only be compatible with the phone at issue and the idea that the code could be hacked “is not a real thing.”

WikiLeaks Vault 7 Leak Claims CIA Bugs ‘Factory Fresh’ iPhones | HEAVY | MAR 23, 2017

A new WikiLeaks Vault 7 leak titled “Dark Matter” claims, with unreleased documents, that the Central Intelligence Agency has been bugging “factory fresh” iPhones since at least 2008. WikiLeaks further claims that the CIA has the capability to permanently bug iPhones, even if their operating systems are deleted or replaced.

New WikiLeaks docs show how the CIA hacks iPhones and MacBooks | THE VERGE | MAR 23, 2017

For years, the CIA has been developing tools for hacking into Apple products — and thanks to WikiLeaks, those tools are now public. Today, the group published a new set of documentsdubbed “Dark Matter,” part of the ongoing Vault 7 publication on CIA hacking tools. Today’s documents focus specifically on Apple products, detailing the CIA’s methods for breaking into MacBooks and iPhones.

Obama’s restrictions on NSA surveillance rely on narrow definition of ‘spying’ | WASHINGTON POST | JAN 17, 2014

Obama placed restrictions on access to domestic phone records collected by the National Security Agency, but the changes he announced will allow it to continue — or expand — the collection of personal data from billions of people around the world, Americans and foreign citizens alike. Obama squares that circle with an unusually narrow definition of “spying.” It does not include the ingestion of tens of trillions of records about the telephone calls, e-mails, locations and relationships of people for whom there is no suspicion of relevance to any threat.

In his speech, and an accompanying policy directive, Obama described principles for “restricting the use of this information” — but not for gathering less of it.

Alongside the invocation of privacy and restraint, Obama gave his plainest endorsement yet of “bulk collection,” a term he used more than once and authorized explicitly in Presidential Policy Directive 28. In a footnote, the directive defined the term to mean high-volume collection “without the use of discriminants.”

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