Tag Archives: Domestic Spying

The Spy in Your Pocket


Does the government need a search warrant to know where you’ve been? Not if your cell phone provider knows. If you don’t like how that sounds, there may be ways to change it.

Take the case of Quartavious Davis, a Florida man convicted of robbing at gunpoint a pizzeria, a gas station, a drugstore, an auto parts store, a beauty salon, a fast food restaurant, and a jewelry store. The prosecution offered multiple lines of evidence, but there was one in particular that Davis’s lawyers objected to: records the government obtained from Davis’s cell phone provider, MetroPCS.

The records, which MetroPCS kept in its normal course of business, showed “the telephone numbers for each of Davis’s calls and the number of the cell tower that connected each call.” From this information, police concluded that “calls to and from Davis’s cell phone were connected through cell tower locations that were near the robbery locations, and thus Davis necessarily was near the robberies too.”

Prosecutors got their hands on the MetroPCS cell tower records using a court-ordered subpoena. In criminal cases like Davis’s, courts may grant subpoenas on “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” Although this standard is higher than that for typical subpoenas, it’s lower than the Fourth Amendment’s probable cause standard.

Not Even a Search

On appeal, Davis argued that the cell tower records were obtained in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. But the 11th Circuit — the federal appeals court encompassing Alabama, Georgia, and Florida — disagreed (United States v. Davis).

In fact, the government’s actions weren’t even a “search,” according to the court. In legal terms, a search occurs only when police invade a person’s reasonable expectation of privacy. For example, you have a reasonable expectation of privacy in the content of your phone conversations — what is actually said during your call — so eavesdropping on the conversation would constitute a search.

In Davis’s case, though, the police didn’t eavesdrop on his conversations. Nor did they use GPS to track his precise movements while he was making them. Because they merely obtained business records from a third party, the court says that the police didn’t invade Davis’s privacy:

[quote_box_center]Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.… Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes does not belong to Davis, even if it concerns him.[/quote_box_center]

Because there wasn’t a “search,” the Fourth Amendment didn’t even apply.

Outdated Doctrine Meets Modern Society

Despite the court’s logic, something about this case still makes many observers feel uneasy. Even AT&T filed a brief in the case, arguing that the government’s actions were illegal. We all turn over huge amounts of information to third parties every day, and almost all of our activities can be tracked through our “smart” devices. And as the amount of data that businesses collect on us grows, so do concerns over the government’s ability to access that data.

[bctt tweet=”As the amount of data that businesses collect on us grows, so do concerns over the government’s ability to access that data.”]

So when the 11th Circuit focused its decision in Davis on something called the third-party doctrine, there was reason for a little gasp. The third-party doctrine was developed by the Supreme Court in the 1970s to draw a line between a person’s “reasonable” expectation of privacy and the information that person voluntarily shares with third parties. Back then, the Supreme Court held that a person has no reasonable expectation of privacy over his or her bank records, because that information was voluntarily provided to the bank. Nor can you have a reasonable expectation of privacy over the phone numbers you dial, because you furnish those numbers to the phone company in order to place calls. And so the government may subpoena these records from the business collecting them without meeting heightened standards under the Fourth Amendment.

The Davis court discussed these cases to support the premise that when people turn over their data to third parties by virtue of using those parties’ services, that information falls outside Fourth Amendment protection. A breathtakingly low point can be found in one of the judges’ concurring opinions:

[quote_box_center]If a telephone caller does not want to reveal dialed numbers to the telephone company, he has another option: don’t place a call. If a cell phone user does not want to reveal his location to a cellular carrier, he also has another option: turn off the cell phone.[/quote_box_center]

In other words, if you want your information protected by heightened privacy standards, go off the grid.

Today, that position is practically untenable. And this is what makes the 11th Circuit’s opinion troubling: it allows the government easy access to your data by virtue of your participation in modern society. The court’s holding helps grease the slippery slope that takes us away from historically reasonable expectations of privacy.

The court attempted to soften the blow by categorizing the subject information as noncontent data. In other words, the data in the Davis case was less private because it was not the actual substance of phone calls, texts, or other communications. Instead, it was the nonsubstantive cell-tower data that allowed the government to track where Davis was when he made or received calls. But we all know that a precise record of our movements reveals a lot about us, as the dissenting judge in the Davis case pointed out:

[quote_box_center]A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.[/quote_box_center]

Toward Privacy

There is still a chance that the Supreme Court will reverse the 11th Circuit’s holding. Even if it doesn’t, other options exist. As mentioned in the Davisdecision, Congress can still legislate greater privacy protections.

The market provides another option. Although a court order forced MetroPCS to provide its records, “federal law did not require that MetroPCS either create or retain these business records.” As technology changes, and as we all become more attuned to privacy issues, we will look to the market for options. When this happens, cell phone providers will benefit from offering an “enhanced privacy” version of their services. Some customers will prefer that their data not be collected at all — or that it be anonymized. Providers could charge a higher price for anonymous services, or customers could forego certain personalized services.

By providing customized levels of privacy, the market can create de facto immunity from third-party “searches.”




“Reprinted from FEE with permission under Creative Commons Attribution License”

Breaking: Obama Admin to Begin Winding Down NSA’s Phone Records Spying Program in Three Days

The clock is ticking, and Congress has until Friday of this week to re-authorize the USA PATRIOT Act’s provision, found in Section 215, which grants the National Security Agency the authority to spy on Americans’ cell phone records, or else the program could be interrupted. According to a Department of Justice memo obtained by National Journal, the Obama administration has announced that it will begin winding down the program at the end of the week if it is not renewed by Congress.

“After May 22, 2015, the National Security Agency will need to begin taking steps to wind down the bulk telephone metadata program in anticipation of a possible sunset in order to ensure that it does not engage in any unauthorized collection or use of the metadata. NSA will attempt to ensure that any shutdown of the program occurs as close in time as possible to the expiration of the authority, assuming the program has not been reauthorized in some form prior to the scheduled sunset of Section 215. In the event of a lapse in authority and subsequent reauthorization, there will necessarily be some time needed to restart the program,” stated the memo, which was sent to members of Congress.

The DOJ memo continued, “Further, the February 26, 2015 Court order renewing the authority for the NSA’s bulk telephone metadata program, which expires at 5:00 pm on June 1, 2015, directs the government to file any proposed renewal application no later than Friday, May 22, 2015, if the government seeks to renew the authorities granted in the order prior to their expiration under the order. For these reasons, after May 22, 2015, it will become increasingly difficult for the government to avoid a lapse in the current NSA program of at least some duration.”

A federal appeals court ruled earlier this month that the program is illegal, and Senators Rand Paul (R-KY) and Ron Wyden (D-OR) have threatened to filibuster its renewal. The House of Representatives recently passed the USA FREEDOM Act, which some have said ends the cell phone spying program, though Congressman Justin Amash (R-MI) criticized the legislation, saying it would force corporations to store smartphone metadata on behalf of the government. The House of Representatives is scheduled to wrap up its activities for the month on Thursday, after which time many representatives will be leaving Washington DC, meaning legislators in favor of the cell phone spying program are running out of time and options.

The Senate is currently considering the USA FREEDOM Act and two-month and five-year re-authorizations of the USA PATRIOT Act.

Meanwhile, the American Civil Liberties Union and Tea Party Patriots have put aside their differences and teamed up on a TV commercial and ad buy aimed at encouraging lawmakers to end the domestic cell phone spying program. Watch their new commercial in the below-embedded video player.


White House Will End Bulk Phone Spying If Congress Lets The Patriot Act Expire

By Giuseppe Macri

The White House will not use a legal loophole to let the National Security Agency continue collecting the phone records of millions of Americans if Congress lets the Patriot Act expire in June.

Section 215, which authorizes the NSA to collect metadata on virtually all domestic landline phone calls, including numbers and call durations, will expire on June 1. Without a renewal by Congress, which lawmakers within and on both sides of the aisle are divided over, the agency will lose that authority.

Earlier this week the White House said it will not use a legal loophole in the law that would allow records collection to continue for investigations launched prior to the expiration date that concern national security. (RELATED: This Legal Loophole Could Let NSA Spy On Americans After The Patriot Act Expires)

“If Section 215 (of the law which covers the collection) sunsets, we will not continue the bulk telephony metadata program,” National Security Council spokesman Ned Price said in a statement to Reuters.

“Allowing Section 215 to sunset would result in the loss, going forward, of a critical national security tool that is used in a variety of additional contexts that do not involve the collection of bulk data.”

Section 215 would have been reauthorized under a bill containing other NSA reforms that was defeated by Republicans in the Senate late last year, many of whom feared it went too far in restricting the agency. Republicans now in control of the chamber have yet to propose a plan of their own. (RELATED: Senate Sinks NSA Reform)

National Security Agency reform is also facing renewed discussion in the House, which passed a weaker version of the Senate bill last summer. Lawmakers in the lower chamber proposed a bipartisan bill to repeal the Patriot Act in its entirety Tuesday, which included privacy-focused reforms to the Foreign Intelligence Surveillance Court and the 2008 FISA Amendments Act. (RELATED: House Revives Bill To Repeal Patriot Act, Dismantle NSA Spying)

Follow Giuseppe on Twitter and Facebook

VIDEO: Obama Attempts to Marginalize Bundy Ranch Standoff, Rand Paul, and Domestic Spying

Washington, May 5, 2014- On the evening of Saturday, May 3, at the White House Correspondents’ Dinner, President Obama finally broke his silence about the Bundy Ranch situation and Cliven Bundy. Obama took the opportunity to make light of one of the most serious domestic events in recent U.S. history in front of his fellow elites. After cracking a few jokes, he turned the attention to Rand Paul and Nevada Rancher Cliven Bundy.

Obama with a smirk said, “I haven’t seen somebody pull a ’180′ that fast since Rand Paul dis-invited that Nevada rancher from this dinner. As a general rule, things don’t end well if the sentence starts, ‘let me tell you something I know about the Negro.’ You don’t really need to hear the rest of it. Just a tip for you — don’t start your sentence that way.”

Rather than stand up as President of the United States and deal with the seriousness of the situation that manifested in Bunkersville, when he chose to finally approach the situation, he played the race card to get a few laughs. While his fellow elites in Washington thought it was rather humorous, the men and women on the ground at the Bundy Ranch who were assaulted by BLM agents, and the Bundy family, that had armed agents with sniper teams surround their property, most likely didn’t find his jokes nearly as humorous.

He then went on to say, “Speaking of Rand Paul — Colorado legalized marijuana this year, an interesting social experiment. I do hope it doesn’t lead to a bunch of paranoid people who think that the federal government is out to get them and listening to their phone calls — that would be a problem.”

The implication being that Rand Paul is paranoid for taking a stand against the growing surveillance state.

By making light of the domestic spying programs that have been revealed to the American public by Edward Snowden, in an attempt to marginalize Rand Paul, Obama has shown a total disregard and contempt for the American public, their privacy, and their legitimate concerns about the potential implications from these domestic spying programs.

Follow Jay on Facebook and on Twitter @SirMetropolis

Congressman: President’s Push To End Data Collection, Will Actually Increase Collection

Just by reading the name, the average American would believe that a new bill being crafted by the Obama administration to end NSA data collection, or a simultaneous effort being pushed through the House Intelligence Committee by Rep. Mike Rogers would lead to the end of data collection on hundreds of millions of Americans.  After all, these bills with names like “End Bulk Collection Act” sound like they will free the American people from NSA spying.

Newspaper, television and internet story headlines read “ White House plan would end NSA’s bulk collection of Americans’ phone data”.  Sounds like the NSA spying program is coming to an end.

Not so, says Michigan Congressman Justin Amash who voted against the House version of the “End Bulk Collection” bill.  Amash, a Republican two term Congressman, was a guest on the Ben Swann Radio Show Wednesday.  He says the bill sounds like it will lead to the end of data collection but when you get into the details, the bill could actually expand collection.

“It actually expands the scope of collection, of unconstitutional collection.  It is called the “End Bulk Collection Act.”  It is like we are in some dystopian future where government calls a bill something that has the opposite affect of what title is.” says Rep. Amash.

The major point brought up by the Congressman is that despite the name “End Bulk Collection”, the bill does not to end collection of data, rather it shifts the responsibility of collection from the NSA to private phone companies.

“They are going to transfer where the phone data is collected so that it is not stored by the government but it is instead stored by the phone companies. Where it is stored is not really the main problem.”

Congressman Amash goes on to say that by correcting “who” is storing the information does not to resolve the constitutionality of bulk collection of data.

“The problem is the unconstitutional search and seizure of people’s information.  Even if it is stored about the phone companies, the phone companies are now acting as agents of the government and provide the government even more information than they have today.  That doesn’t put us in a better position, it puts us in a worse position.”

So how is it that the American public has no clue that the “End Bulk Collection Act” or the President’s new proposal would actually increase bulk collection?  Rep. Amash says you can blame that, in part, on a complacent media.

“Last night I saw all these headlines about how the President and the Intelligence Committee were going to end the bulk collection of data as though they are resolving the problem.  But the fact is they are not resolving the problem.  I would love to hear more about the President’s plan, maybe there are some good points to it.  But overall, when you look at the two proposals either from the President or from the Intelligence Committee, they sound like they’re not moving us in the right direction and they are not doing what the American people want which is to protect their privacy under the 4th amendment.”

Media Blacks Out New Snowden Interview The Government Doesn’t Want You to See

This past Sunday evening former NSA contractor Edward Snowden sat down for an interview with German television network ARD. The interview has been intentionally blocked from the US public, with virtually no major broadcast news outlets covering this story. In addition, the video has been taken down almost immediately every time it’s posted on YouTube.

In contrast, this was treated as a major political event in both print and broadcast media, in Germany, and across much of the world. In the interview, Mr. Snowden lays out a succinct case as to how these domestic surveillance programs undermine and erode human rights and democratic freedom.

He states that his “breaking point” was “seeing Director of National Intelligence, James Clapper, directly lie under oath to Congress” denying the existence of a domestic spying programs while under questioning in March of last year. Mr. Snowden goes on to state that, “The public had a right to know about these programs. The public had a right to know that which the government is doing in its name, and that which the government is doing against the public.”

It seems clear that the virtual blackout of this insightful interview is yet another deliberate attempt to obfuscate the truth from the view of the American public. The media has continually attempted to shill the official government lies about mass domestic surveillance programs, justifying them as necessary to fight the “War on Terror”, while attempting to painting Mr. Snowden as a traitor.

In regards to accusations that he is a traitor or a foreign agent, he states, “ If I am traitor, who did I betray? I gave all my information to the American public, to American journalists who are reporting on American issues. If they see that as treason, I think people really need to consider who they think they’re working for. The public is supposed to be their boss, not their enemy. Beyond that as far as my personal safety, Ill never be fully safe until these systems have changed.”

The attempt to bury this interview by the government/corporate symbiosis has extremely dark implications. Additionally, the fact that government officials have openly talked about assassinating Mr. Snowden cannot be taken lightly, and Mr. Snowden obviously takes these threats to his life very seriously. Sadly, the reality of the US government assassinating an American citizen is not beyond the realm of possibility in the age we live in.

Follow Jay on Facebook and on Twitter @SirMetropolis

NSA Director Plays Offense: Let Us Spy, We Aren’t Reading Your Messages

Article submitted by guest contributor Ezra Van Auken.
NSA Director Keith Alexander

Looking to ease the Americans’ tensions and primarily concerned with federal spying, National Security Agency (NSA) director Keith Alexander took on lawmakers this past Wednesday, hoping to bring understanding to the saga of mass surveillance. Rather than opening discussion to possible NSA reform, more innovative surveillance, or anything of the sort, NSA’s Alexander told a Senate committee that there’s no better way at this time.

The NSA director compared his agency’s unfavorable spying to holding a hornet’s nest, and said that while officials are being stung, there isn’t an alternative solution. Alexander explained that prior to the September 11th attacks, NSA officials had no ability to track communications between foreign and domestic bystanders. While professing that current NSA programs “connect the dots”, Alexander said there’s a balance between privacy and spying.

Civil liberties proponents including groups like the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF), which have been putting up a fight since Snowden’s leaks, would beg to differ. Both advocacy groups have aimed at the federal government, filing lawsuits against the NSA and White House. Of course, Snowden’s leaks have only solidified claims by privacy groups, giving ample reason to take action.

Reapplying his position to the Senate Judiciary Committee, Alexander noted, “And [he] think[s] these programs have been effective.” Once again, however, media and advocacy group objections have shown a much different story than “effective”. Most significant was the claim by Alexander, earlier in the year, that NSA officials had foiled 54 terror-related incidents. The claim by Alexander and the President was quickly refuted.

Declassified charts from July provide insight on what exactly the NSA story is behind the alleged 54 thwarted plots. Off the bat, the declassified material reads, the NSA “has contributed to the [US government’s] understanding of terrorism activities and, in many cases, has enabled the disruption of potential terrorist events at home and abroad.” And whether or not Alexander and Obama forgot the NSA’s numbers, it certainly wasn’t 54.

Rather, the number is 42, and only the NSA identified four of the foiled plots. Elliot and Meyer of ProPublica explained that “The NSA itself has been inconsistent on how many plots it has helped prevent and what role the surveillance programs played.” Throwing more fudge onto the NSA’s success, director Alexander decided once again to make bold claims behind cameras – this time in front of CBS’s 60 Minutes with John Miller.

For any viewer who watched the CBS program, conflicted interests were glowing. Miller, the reporter assigned to interviewing Alexander, actually spent years inside the National Intelligence for Analytic Transformation and Technology as associate deputy director, and prior to that, held position in the Federal Bureau of Investigation (FBI). Ironically, the entire interview sounded like a shock to Miller, who threw Alexander softballs.

Despite the Snowden storm of NSA information, Alexander and Miller spent Sunday night’s CBS segment talking as if information never existed. He asked the NSA director whether or not it’s true that “There is a perception out there that the NSA is widely collecting the content of the phone calls of Americans.” Alexander, shrugging the obvious, replied, “No, that’s not true,” and added that NSA officials can only target Americans with probable cause.

Alexander said the agency itself has only 60 authorizations on specific persons, allowing officials to scan their phones, e-mails and other devices. However, recent reports show the NSA tracks over five billion phone users. Using up 27 terabytes of computer-server space, the agency is constantly pumping data, a Snowden report showed.

Bringing up a FISA court judge’s claim that even with the FISA courts, NSA officials have avoided using the court’s powers to receive confirmation requests, Miller asked for reasoning. Director Alexander’s blunt and obnoxious answer was that “There was nobody willfully or knowingly trying to break the law.” While Alexander concluded that nothing was willful or knowing, Miller decided not to challenge the response.

Giving in to the NSA director, Miller felt satisfied with the loose answer that held no proof of either happening. It’s as if Miller decided not to challenge Alexander because Alexander is the NSA director and therefore must know facts from conjecture. On the other hand, Miller was in the same intelligence gathering process as Alexander, and challenging the very practice with which you once partook in is certainly not protocol.

With Alexander packing on the interviews and Senate hearings, it seems the NSA wants to shape up more of the picture than they have in recent months.