Liberty News

A legal battle over the scope of US government surveillance took a turn in favour of the National Security Agency with a court opinion declaring that bulk collection of telephone data does not violate the constitution.

The judgement, in a case brought before a district court in New York by the American Civil Liberties Union, directly contradicts the result of a similar challenge in a Washington court last week which ruled the NSA's bulk collection program was likely to prove unconstitutional and was almost Orwellian in scale.

Friday's ruling makes it more likely that the issue will be settled by the US supreme court, although it may be overtaken by the decision of Barack Obama on whether to accept the recommendations of a White House review panel to ban the NSA from directly collecting such data.

Judge Pauley said privacy protections enshrined in the fourth amendment of the US constitution needed to be balanced against a government need to maintain a database of records to prevent future terrorist attacks:

The right to be free from searches is fundamental but not absolute. Whether the fourth amendment protects bulk telephony metadata is ultimately a question of reasonableness.

Update: Appeal

3rd January 2013. See  article from  theguardian.com

The American Civil Liberties Union gave notice on Thursday that it will continue its legal case challenging the constitutionality of the National Security Agency's collection of all US phone records, drawing the federal appeals courts into a decision on the controversial surveillance.

A federal judge in New York, William Pauley, gave the NSA a critical courtroom victory last week when he found the ACLU has no traction in arguing that intercepting the records of every phone call made in the United States is a violation of the constitutional protection against unreasonable search and seizures.

As expected, on Thursday the ACLU filed notice that it will appeal Pauley's decision before the second circuit court of appeals. The civil liberties group said in a statement that it anticipates making its case before the appellate court in the spring.

The government has a legitimate interest in tracking the associations of suspected terrorists, but tracking those associations does not require the government to subject every citizen to permanent surveillance, deputy ACLU legal director Jameel Jaffer said in the statement.

French intelligence, the police and many others will be able to spy on internet users in real time and without authorisation, under a law passed on Wednesday.

The legislation, which was approved almost unnoticed, will enable a wide range of public officials including police, gendarmes, intelligence and anti-terrorist agencies as well as several government ministries to monitor computer, tablet and smartphone use directly.

The spying clause, part of a new military programming law, comes just weeks after France, which considers individual privacy a pillar of human rights, expressed outrage at revelations that the US National Security Agency (NSA) had been intercepting phone calls in France.

Article 13 of the new law will allow not just the security forces but intelligence services from the defence, interior, economy and budget ministries to see electronic and digital communications in real time to discover who is connected to whom, what they are communicating and where they are.

Opponents are considering whether to refer the legislation to the constitutional court, France's highest legal authority, over the question of public freedom.

The human rights group Amnesty International has announces that it is taking legal action against the UK government over concerns its communications have been illegally accessed by UK intelligence services.

Amnesty said it was highly likely its emails and phone calls have been intercepted and issued a claim at the Investigatory Powers Tribunal (IPT) arguing that the interception of its communications would be in breach of article 8 (right to privacy) and article 10 (right to freedom of expression) of the Human Rights Act.

Michael Bochenek, director of law and policy for the human rights group, said:

As a global organisation working on many sensitive issues that would be of particular interest to security services in the US and UK, we are deeply troubled by the prospect that the communications of our staff may have been intercepted.

We regularly receive sensitive information from sources in situations that mean their co-operation with Amnesty could present a real risk to their safety and the safety of their family. Any prospect that this type of communication is being intercepted by the US and UK through their mass surveillance programmes raises substantive concerns and presents a real threat to the effectiveness of Amnesty International's work.

The NSA has been collecting details about the online sexual activity of prominent muslim extremists in order to undermine them, according to a new Snowden document published by the Huffington Post .

The American surveillance agency targeted six unnamed radicalisers , none of whom is alleged to have been involved in terror plots. One document argues that if the vulnerabilities they are accused of were to be exposed, this could lead to their devotion to the jihadist cause being brought into question, with a corresponding loss of authority. As an example of vulnerabilities, it lists: Viewing sexually explicit material online or using sexually persuasive language when communicating with inexperienced young girls.

The names of the six targeted individuals have been redacted. One is listed as having been imprisoned for inciting hatred against non-Muslims. Under vulnerabilities, the unnamed individual is listed as being involved in online promiscuity .

Shawn Turner, press spokesman for the US director of national intelligence, in an email to the Huffington Post, said it was not surprising the US government uses all of the lawful tools at our disposal to impede the efforts of valid terrorist targets who seek to harm the nation and radicalise others to violence .

An international coalition of human rights and privacy organizations has launched an action center to oppose mass surveillance on the global stage: necessaryandproportionate.org/take-action . The new petition site went live just as the United Nations voted on a resolution to recognize the need for the international community to come to terms with new digital surveillance techniques.

The Electronic Frontier Foundation (EFF), along with Access and Privacy International, took a leadership role in developing the campaign. The new action center allows individuals from around the world to sign their names to a petition in support of the International Principles on the Application of Human Rights to Communications Surveillance . Also known as the Necessary and Proportionate Principles, the document outlines 13 policies that governments must follow to protect human rights in an age of digital surveillance---including acknowledgement that communications surveillance threatens free speech and privacy and should only be carried out in exceptional cases and under the rule of law.

Once the signatures are collected, the organizations will deliver the petition to the UN, world leaders and global policymakers. Over 300 organizations, plus many individual experts, have already signed the petition.

EFF International Rights Director Katitza Rodriguez said:

Surveillance can and does threaten human rights. Even laws intended to protect national security or combat crime will inevitably lead to abuse if left unchecked and kept secret. The Necessary and Proportionate Principles set the groundwork for applying human rights values to digital surveillance techniques through transparency, rigorous oversight and privacy protections that transcend borders.

The UN General Assembly's unanimously adopted Resolution A/C.3/68/L.45 , The Right to Privacy in the Digital Age . Sponsored by 47 nations, the non-binding resolution recognizes the importance of privacy and free expression and how these core principles of democracy may be threatened when governments exploit new communications technologies. Rodriguez said:

While not as strong as the original draft resolution , the United Nations resolution is a meaningful and very positive step for the privacy rights of individuals, no matter what country they call home. We will be watching to see if countries such as China, Russia or even the US use the resolution to legitimize their mass surveillance programs. That is why it's important for nations to go further and comply with the Necessary and Proportionate principles.

The organizations behind the Action Center include Access, Chaos Computer Club, Center for Internet & Society-India, Center for Technology and Society at Fundac,a~o Getulio Vargas, Digitale Gesellschaft, Digital Courage, EFF, OpenMedia.ca, Open Rights Group, Fundacion Karisma, Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic, SHARE Foundation, and Privacy International.

Sign the petition .

The Guardian has won a Liberty award for articles about GCHQ and NSA spying. The newspaper was named Independent Voice of the Year in recognition of ethical journalism essential to the rule of law

The award "recognises the courage it requires to speak out against injustice when others will not, to make a stand when no one else will and to put the truth before all else, even at great cost".

Shami Chakrabarti, director of Liberty, said:

Whatever your position on blanket surveillance, the people and their parliament have a right to debate it and there can be no debate about what we do not know. In a time of deceit, telling the truth seems revolutionary. Spy chiefs should reflect on whether their occasional inconvenience isn't essential to the democracy they serve.

The Guardian's editor, Alan Rusbridger, accepted the award at a ceremony and said:

What was worrying Edward Snowden was that we were, unknowingly, sleep-walking into a society where the infrastructure of total surveillance was being built behind our backs, without any discussion or wide public knowledge. This does need to be discussed, as calmer heads in security agencies now recognise. I am very proud to pick up this award in recognition of the Guardian's role in stimulating that necessary debate.

The United Nations General Assembly should approve a new resolution and make clear that indiscriminate surveillance is never consistent with the right to privacy, five human rights organizations said in a November 21, 2013 letter to members of the United Nations General Assembly.

After heated negotiations, the draft resolution on digital privacy initiated by Brazil and Germany emerged on November 21 relatively undamaged, despite efforts by the United States and other members of the Five Eyes group to weaken its language. Although a compromise avoided naming mass extraterritorial surveillance explicitly as a human rights violation, the resolution directs the UN high commissioner for human rights to report to the Human Rights Council and the General Assembly on the protection and promotion of privacy in the context of domestic and extraterritorial surveillance... including on a mass scale. The resolution will ensure that this issue stays on the front burner at the UN. A vote on the resolution is expected in the next week.

The resolution would be the first major statement by the UN on privacy in 25 years, crucially reiterating the importance of protecting privacy and free expression in the face of technological advancements and encroaching state power.

We are deeply concerned that the countries representing the Five Eyes surveillance alliance -- the United States, Canada, New Zealand, Australia, and the United Kingdom -- have sought to weaken the resolution at the risk of undercutting their own longstanding public commitment to privacy and free expression, the groups said in their letter:

To All Member States of the United Nations General Assembly

Dear Ambassador,

The right to privacy is central to who we are as humans and is enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. It protects us from unwarranted intrusions into our daily lives, allows us to speak freely without fear of retribution, and helps keep our personal information, including health records, political affiliations, sexual orientation, and familial histories, safe. Indiscriminate mass surveillance, which tramples individuals' right to privacy and undermines the social contract we all have with the State, must come to end immediately.

That is why we welcome efforts at the United Nations to adopt a resolution on "The right to privacy in the digital age." Should it be adopted, the resolution, introduced by Brazil and Germany, would be the first major statement by the UN on privacy in 25 years. A strong resolution would crucially reiterate the importance of protecting privacy and free expression in the face of technological advancements and encroaching State power. It would also build on the strong stance taken by the UN High Commissioner for Human Rights, Navi Pillay, and the UN Special Rapporteur on freedom of opinion and expression, Frank La Rue, in recent months, as well as the International Principles on the Application of Human Rights to Communications Surveillance, an initiative supported by 300 organizations from around the world.

As negotiations continue on this draft resolution, we are deeply concerned that the countries representing the "Five Eyes" surveillance alliance--the United States, Canada, New Zealand, Australia and the United Kingdom--have sought to weaken the resolution at the risk of undercutting their own longstanding public commitment to privacy and free expression. In discussion of the draft resolution, we urge these countries and the entire General Assembly to protect the right to privacy and take into account these basic points:

Privacy is intrinsically linked to freedom of expression and many other rights:

• The mere existence of domestic legislation is not all that is required to make surveillance lawful under international law;

• Indiscriminate mass surveillance is never legitimate as intrusions on privacy must always be genuinely necessary and proportionate;

• When States conduct extraterritorial surveillance, thereby exerting control over the privacy and rights of persons, they have obligations to respect privacy and related rights beyond the limits of their own borders;

• Privacy is also interfered with even when metadata and other third party communications are intercepted and collected.

We call upon all States meeting at the UN General Assembly this week to take a stand against indiscriminate mass surveillance, interception and data collection, both at home and abroad; to support the draft resolution, and to uphold the right of all individuals to use information and communication technologies such as the internet without fear of unwarranted interference.

This is a critical moment for the protection of privacy around the world.

Signed:
Access
Amnesty International
Electronic Frontier Foundation
Human Rights Watch
Privacy International

Liam Fox, the former Defence Secretary has called for the Guardian newspaper to be prosecuted over its role in disclosing information about Britain's mass surveillance system.

Fox has written to Alison Saunders, the Director of Public Prosecutions (DPP), urging her to set out whether the newspaper breached counter-terrorism laws by publishing secrets which were stolen by the former US spy contractor Edward Snowden .

Fox accuses The Guardian's editor Alan Rusbridger of:

Exhibit[ing] no sense of understanding, never mind remorse, about what damage might have been done to the safety of individuals or the country.

The former defence secretary's letter asks the DPP how a prosecution against the Guardian could be initiated , although Fox has not yet indicated whether he would be prepared to trigger such action himself.

In an article for The Telegraph , Fox says he recognised surveillance by government agencies was a legitimate topic for debate. But he accused The Guardian of collaborating in indiscriminate publication of material which had damaged national security.

Fox's intervention comes after the nation's three leading spy chiefs last week told Parliament that terrorists around the world have already been monitored discussing how to evade surveillance by implementing knowledge gleaned from Snowden's leaks .

Britain is holding up an agreement on internet freedom among the 47 members of Europe's human rights watchdog after objecting to a probe into the gathering of vast amounts of electronic data by intelligence agencies.

The government is declining to endorse a political declaration by the Council of Europe that could conclude that Britain's mass snooping regime is illegal.

Britain intervened during a Council of Europe ministerial conference on Friday in Belgrade, Freedom of Expression and Democracy in the Digital Age , where a document was due to be signed by the 47 members of the body. The document, entitled Political Declaration and Resolutions , says that the Council of Europe should examine whether the gathering of data by intelligence agencies is consistent with the European Convention on Human Rights.

Shami Chakrabarti , the director of Liberty, said:

Bad enough that our authorities engaged in blanket surveillance without democratic mandate or legal authority; worse still when they attacked the ethical journalists who exposed that scandal. Now they delay the Council of Europe's action on the issue and risk turning Britain into an arrogant bad boy on the world stage. The nation that led the establishment of post-war European human rights now jeers at the Strasbourg court and tolerates no scrutiny for spooks or privacy for ordinary people. Churchill must be spinning in his grave.

New Zealand has approved an email and phone-snooping law that will force telecommunications firms to install interception equipment on their networks.

Under the telecommunications interceptions and security capability bill, firms must also consult with the electronic eavesdropping agency, the Government Communications Security Bureau, (GCSB), when developing new infrastructure and networks, and allow interception equipment to be installed on their networks.

The law, which passed by 61 votes to 59, would give GCSB powers similar to Britain's Government Communications Headquarters ( GCHQ ) and the US National Security Agency ( NSA ). Along with the Australian and Canadian intelligence agencies, GCSB shares large amounts of data with its US and UK counterparts through the Five Eyes electronic espionage alliance.

It is not clear whether such warrants can be used to give blanket permission for GCSB to intercept the internet and phone traffic of millions of people, as is the case in GCHQ's Tempora programme , and a variety of NSA operations.

Last week, the New Zealand defence minister, Jonathan Coleman, said he was not worried at all about revelations that the NSA had spied on world leaders .

At a Washington press conference with the US defence secretary, Chuck Hagel, Coleman said: We don't believe it would be occurring. And, look, quite frankly, there'd be nothing that anyone could hear in our private conversations that we wouldn't be prepared to share publicly.

Tesco is installing hundreds of hi-tech screens that scan the faces of shoppers as they queue at the till supposedly to detect their age and sex for advertisers.

The store giant has signed a ground-breaking deal with Lord Alan Sugar's Amscreen in a move which last night sparked fresh concerns from privacy campaigners about the growing use of invasive techology in the nation's shops.

The OptimEyes system will be rolled out into 450 Tesco petrol forecourts, which serve millions of customers a week.

It works by using inbuilt cameras in a TV-style screen above the till that identify whether a customer is male or female, estimate their age and judge how long they look at the ad.

The real time data is fed back to advertisers supposedly to give them a better idea of the effectiveness of their campaigns.

Two email providers, forced to close their services after the NSA demanded a backdoor, have proposed a new open standard for secure email that would be harder for security services and others to eavesdrop upon.

The encrypted email service Lavabit, and Silent Circle, a firm also encrypting phone calls and texts, are the founding members of the Darkmail Alliance, a service that aims to prevent government agencies from listening in on the metadata of emails.

The metadata is the information bundled up with the content of an email such as that showing the sender, the recipient and date the message was sent. Conventional email can never be made fully secure because the standard requires some metadata to be sent unencrypted.

Mike Janke, Silent Circle's chief executive and co-founder, said:

We want to get another dozen to two dozen email providers up and running on Darkmail architecture so that at any one time citizens of the world can choose two dozen email providers to get their email service from.

He said that the services Lavabit and Silent Mail kept too much data on the provider's server:

So what happened is you saw nation states can go to an email provider and coerce them into turning over the keys and decrypting.

The proposal of the alliance, it says, is as close to being compatible with conventional email as can be; users can send and receive insecure emails with contacts on normal services, and it is only when an email is sent between two accounts within the alliance that the message is encrypted and routed from one peer to the other without going through a central server.

The ultimate aim is to get the big email providers, such as Microsoft , Yahoo ! and Gmail , using the new standard too.

A VPN provider says that concerns it may be forced to hand over its encryption keys to United States authorities have led it to take the decision to shut down its consumer services. CryptoSeal says that information revealed as part of the Lavabit case has undermined its original understanding of United States law and made its position untenable. Shutting down, the company says, is the only solution to protect customer privacy.

The company said in a statement:

With immediate effect as of this notice, CryptoSeal Privacy , our consumer VPN service, is terminated. All cryptographic keys used in the operation of the service have been zerofilled, and while no logs were produced (by design) during operation of the service, all records created incidental to the operation of the service have been deleted to the best of our ability.

Essentially, the service was created and operated under a certain understanding of current US law, and that understanding may not currently be valid. As we are a US company and comply fully with US law, but wish to protect the privacy of our users, it is impossible for us to continue offering the CryptoSeal Privacy consumer VPN product, the company says.

Thousands of Islamic extremists in the UK see the British public as a legitimate target for attacks, the director general of MI5 has warned. Andrew Parker was making his first public speech since taking over as head of the UK Security Service in April.

Al-Qaeda and its affiliates in Pakistan and Yemen present the most direct and immediate threats to the UK, he said. He added that the security services must have access to the many means of communication which terrorists now use. He warned:

It remains the case that there are several thousand Islamist extremists here who see the British public as a legitimate target. Being on our radar does not necessarily mean being under our microscope.

The reality of intelligence work in practice is that we only focus the most intense intrusive attention on a small number of cases at any one time. The challenge therefore concerns making choices between multiple and competing demands to give us the best chance of being in the right place at the right time to prevent terrorism.

Parker's speech also went on to reveal some of the fears and frustrations his service was experiencing over both the advances in technology and those who leak government secrets into the public domain. He warned that terrorists now had tens of thousands of means of communication through e-mail, IP telephony, in-game communication, social networking, chat rooms, anonymising services and a myriad of mobile apps .

Parker said it was vital for MI5 - and by inference its partner GCHQ - to retain the capability to access such information if the Security Service was to protect the country.

Intelligence officials in both the US and Britain have been absolutely dismayed at the wealth of secret data taken by the former CIA contractor Edward Snowden when he fled to Russia. Without mentioning Snowden by name, Parker said it causes enormous damage to make public the reach and limits of GCHQ techniques .

Recent disclosures that the government routinely taps, stores and sifts through our internet data have alarmed experts and internet users alike. It is alleged that the government has used the US's PRISM programme to access data on British citizens stored by US internet corporations. Through its own TEMPORA programme, the government is alleged to tap into the sub-ocean cables that carry the UK's and the EU's internet activities around the world and stores and sifts through that data, even if it is an email or a call between two British or EU citizens. Furthermore, the UK has granted the US National Security Agency unlimited access to this data.

These practices appear to have been authorized by government ministers on a routine rolling basis, in secret. Existing oversight mechanisms (the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Parliamentary Intelligence and Security Committee and the Investigatory Powers Tribunal) have failed. The legislation that is supposed to balance our rights with the interests of the security services is toothless.

That is why Big Brother Watch, Open Rights Group, English PEN and Constanze Kurz have taken the unusual step of instructing a legal team to pursue legal action on our behalf and on behalf of all internet users in the UK and EU. First, our lawyers wrote to the government demanding that it accepts that its authorization practices have been unlawful and that it consult on a new, transparent set of laws for the future. The government refused and invited us to submit a case to the Investigatory Powers Tribunal. But the Tribunal is a creature of the very statutory regime which has failed and would not offer an effective remedy. It is unable to rule that the legislative regime breaches our privacy rights, it is conducted largely in secret and there is no right of appeal. The European Court of Human Rights has previously decided that this tribunal does not provide an effective remedy for privacy victims. So we will take our case directly to the European Court of Human Rights. It will decide whether the government's surveillance activities and the existing legislation sufficiently protect the privacy of UK and EU internet users.

The group are seeking funding for the legal challenge. See privacynotprism.org.uk

The former operator of a secure email service once used by NSA leaker Edward Snowden has been fined $10,000 for failing to give government agents access to his customers' accounts, newly released court documents show.

In August, Ladar Levinson shut down Lavabit, his security-minded email business, rather than comply with government demands that he claimed would have made him complicit in crimes against the American people.

Court documents reveal that the FBI wanted Levinson to hand over encryption keys that would have given federal agents real time access to not just Snowden's account, but the accounts of all 40,000 of Lavabit's customers.

To Levinson, that was going too far. You don't need to bug an entire city to bug one guy's phone calls, he told The New York Times . In my case, they wanted to break open the entire box just to get to one connection.

Levinson claims he had complied with legal surveillance requests in the past, and that he proposed logging and decrypting just Snowden's communications and uploading them to a government server once per day. But this wasn't good enough for the FBI, they wanted the keys.

Levinson did his best to avoid handing over the keys but the court levied a fine of $5,000 per day until the keys were provided in electronic form. Levinson held out for two days but finally relented, only to shut down Lavabit at the same time he gave up the certificates .