In a highly anticipated speech on Friday, President Barack Obama introduced a series of reforms that will place new limits and safeguards on U.S. intelligence gathering, including additional protections for foreign nationals overseas. 

President Barack Obama talks on the phone with British Prime Minister David Cameron in the Oval Office, Jan. 16, 2014. Credit: White House Photo by Pete Souza

After weathering months of new disclosures and increasingly strident public criticism about the extent of U.S. spying, Obama on Friday recognised that the country’s National Security Agency (NSA) and other intelligence agencies may have overreached in the aftermath of the Sep. 11, 2001 attacks and the ongoing “war on terror”.

At the same time, Obama also stated that the particularly controversial bulk gathering of Internet and phone records would remain in place.

“We have to make some important decisions about how to protect ourselves and sustain our leadership in the world, while upholding the civil liberties and privacy protections that our ideals and our Constitution require,” Obama said Friday.

The new directive will “strengthen executive branch oversight of [U.S.] intelligence activities … reform programmes and procedures in place to provide greater transparency to our surveillance activities, and fortify the safeguards that protect the privacy of U.S. persons.”

In an unanticipated attempt to quell loud criticism from foreign governments and U.S. allies, Obama also introduced a series of changes aimed at protecting non-U.S. citizens abroad – the first time that a U.S. president has taken such steps.

“People around the world, regardless of their nationality, should know that the United States is not spying on ordinary people who don’t threaten our national security, and that we take their privacy concerns into account in our policies and procedures,” the president said.

“In this directive, I have taken the unprecedented step of extending certain protections that we have for the American people to people overseas [including] safeguards [that] will limit the duration that we can hold personal information, while also restricting the use of this information.”

In particular, the new directive seeks to ensure that “information about persons whose activities are not of foreign intelligence or counterintelligence value” will not be collected, “whatever their nationality and regardless of where they might reside.”

It is still unclear how exactly these protections will be implemented, but for now, the directive states that the United States will collect data only for the purposes of detecting espionage, cyber crime, threats to U.S. or allied armed forces, and threats from terrorism, weapons proliferation and sanctions evasion.

Yet there remains wide disagreement about the soundness of extending constitutional protections to foreign nationals.

“Although I agree that we should be sensitive to foreign nationals, the question is whether they have equal protection under the Constitution,” Brian Michael Jenkins, a senior adviser at the RAND Corporation, a think tank here, told IPS. “And the answer is that they really don’t.”

Others note that although foreign nationals may not be protected under the U.S. Constitution, their privacy still needs to be respected as a broader human rights issue.

“It may be the case that foreigners overseas do not enjoy constitutional protections, but they do enjoy basic human rights,” Elizabeth Goitein, the co-director of the Liberty & National Security Programme at the Brennan Centre for Justice at the New York University School of Law, told IPS. “And privacy is one of them.”

Distance to go

The president’s announcements comes in the midst of a historic public debate that first broke out in June when a former NSA contractor, Edward J. Snowden, publicised documents revealing the intrusiveness of U.S. intelligence gathering. And while many have welcomed Friday’s speech, the new reforms did little to quell all calls for action.

“The president took several steps toward reforming NSA surveillance, but there’s still a long way to go,” Cindy Cohn, the legal director of the Electronic Frontier Foundation (EFF), a digital-rights advocacy group, said following the president’s speech. “Other necessary reforms include requiring prior judicial review of national security letters and ensuring the security and encryption of our digital tools, but the president’s speech made no mention of these.”

Others expressed disappointment at the president’s decision to simply reform, but not eliminate, the government’s bulk collection of telephone records, also known as metadata.

“The president should stop bulk collection, approach Congress and support the USA Freedom ACT,” the Brennan Center’s Goitein says, referring to a legislative proposal that, if approved, would substantially rein in the NSA’s activities through an official act of Congress.

The president did note on Friday that he would include Congress in the new overhaul, either by asking legislators to codify the new changes or by ensuring that lawmakers were part of a rigorous oversight mechanism.

However, Goitein warns that Congress should be included only if this will lead to actual reforms, and not as a way to avoid progress.

“The president should go to Congress to tighten the law and to ensure that no other administration will do this in the future,” she says, noting that if the president had really wanted to end bulk collection, he could have done so during Friday’s speech.

Obama also noted that the bulk collection of telephone records would be substituted by an alternative mechanism, although the details of this remain unclear. The president proposed a two-stepped transition that would initially see a more limited surveillance of phone calls, one that would “pursue phone calls that are two steps removed from a number associated with a terrorist organisation, instead of the current three.”

During this initial period, the attorney-general and the rest of the intelligence community will look for an alternative mechanism to replace the NSA’s storage mechanism. It is still unclear whether this will be a single third party conducting the government’s surveillance or a group of private companies and contractors.

Ultimately, Friday’s speech was a notably public look at some of the United States’ most highly classified programmes, highlighting an already startling distance from the days prior to Snowden’s leaks.

“Intelligence collection is always a delicate business in a democracy, and it should be,” the RAND’s Jenkins told IPS. “Public debate and argument is the only way we have of achieving something that will be more or less acceptable to the public and that will provide the protection to our civil liberties.”

Press freedom advocates here charge that the administration of President Barack Obama is engaged in a war on “leaks” of secret information that is without parallel in this country.

This aggressive stance is having a chilling effect on U.S. press freedoms, they say. On one hand, government officials are becoming increasingly wary of speaking with journalists. On the other, reporters fear future criminal prosecutions over leaked information.“One of the reasons behind this tense atmosphere is that the scope of national security as currently defined by the government is extremely broad." -- Steven Aftergood of FAS

On Thursday, the Committee to Protect Journalists (CPJ), a non-profit organisation promoting press freedoms worldwide, released its first comprehensive report on the Obama administration’s surveillance practices and their effects on the domestic press. During the time that Obama has been in office, the number of individuals prosecuted by the Department of Justice (DOJ) for leaked information under the 1917 Espionage Act has seen a staggering increase.

“The Obama administration’s war on leaks … is in stark conflict with the president’s goal of increasing the federal government’s transparency,” Leonard Downie, Jr., the vice president at large of The Washington Post, said Thursday at the report’s Washington release.

Since 2009, a total of six government officials, plus two private contractors, have been subject to criminal prosecutions under the Espionage Act. Prior to that, only three officials had been charged in over nine decades. (Because of the government shutdown, the U.S. Department of Justice was unable to comment for this story.)

“The extremely aggressive approach by the current administration has led to an unusually high number of leak prosecutions,” Steven Aftergood, the director of the Government Secrecy Programme at the Federation of American Scientists (FAS), a security-focused non-profit organisation here, told IPS.

“This has created a polarised atmosphere where journalists are simply frightened by the prospect of future prosecution,” he said.

Broad definitions

Public outrage here exploded over another recent incident that saw the Department of Justice secretly seizing Associated Press (AP) telephone records. The secret seizures were part of a DOJ investigation over an AP story that had disclosed a covert U.S. intelligence operation in Yemen.

The DOJ informed the AP of the seizures in May, three months after it had seized the material. Following the AP incident, last month the Senate Judiciary Committee approved a new Media Shield Law, legislation that would protect journalists from being forced to reveal confidential material.

Yet critics, including many journalists, have warned that the law offers only a very narrow definition of journalists, as those individuals who are formally associated with a news media organisation.

“What is worrisome about the new shield law is that, for instance, it would restrict online bloggers and journalists who aren’t connected to a news media organisation from carrying out any journalistic act,” Jillian York, the director of the International Freedom of Expression programme at the Electronic Frontier Foundation (EFF), an advocacy group, told IPS.

“Of course, that depends on your definition of a journalistic act. Although it’s not a clear definition, it should be as broad as possible so as to safeguard the free flow of information.”

Indeed, much of the current debate seems to be centred on the breadth or narrowness of definitions.

“One of the reasons behind this tense atmosphere is that the scope of national security as currently defined by the government is extremely broad,” FAS’s Aftergood says. “It includes areas that many people think ought to be subject to public debate.”

So, while the public and the media would like to see a freer environment for the flow of information, the government has so far adopted a broad view of national security that has enabled it to withhold large amounts of information from the public.

This change has come at a high price, critics say.

“What the recent leaks tell us is not just that the government is trying to restrict freedom of expression,” Larry Siems, the director of the Freedom to Write Programme at the PEN American Center, an advocacy group advancing free expression, told IPS. “They’re telling us that our government has been engaging in activities that run counter to our laws and to international humanitarian law.”

War on leaks

The most recent example of leaked information involves Edward J. Snowden, the former security contractor who was charged under the Espionage Act for leaking classified government information on phone and Internet surveillance by the U.S. and British governments. Snowden was recently granted asylum in Russia, as he faces prosecution here in the United States.

The Obama administration has also implemented a series of surveillance practices that have made it increasingly troublesome for government officials to approach the press.

The Insider Threat Programme, for instance, aims to eliminate leaks by government officials, ordering federal employees to report any suspicious behaviour by their colleagues. Forced to spy on each other, government officials are now reportedly becoming increasingly less willing to respond to calls from the media, for fear of future repercussions, according to The Washington Post’s Downey, Jr.

The administration’s mass surveillance is impacting on foreign journalists working in the United States, too.

“One of our more troublesome findings is that foreign journalists currently in the U.S. lack any legal protection U.S. reporters may now have,” CPJ’s Joel Simon told IPS. “Unfortunately, they need to operate under the assumption that their communication is not secure.”

After more than two years of fighting to prevent their release, the Department of Justice has released numerous documents related to domestic spying on U.S. citizens by the U.S. National Security Agency (NSA) and the previously-secret court opinions that authorised the NSA’s controversial programmes to go forward.

On the evening of Sep. 10, the Justice Department released the documents to the American Civil Liberties Union and the Electronic Frontier Foundation (EFF), which had sued to force their release. Both organisations also have separate litigation against the NSA challenging its domestic spying programmes altogether.“They fought tooth and nail to keep this information from getting out to the public." -- Trevor Timm of EFF

The director of national intelligence, James Clapper, has also published the documents on the DNI website.

At issue is a telephony metadata programme, through which the NSA collects so-called “metadata” regarding every U.S. phonecall. The programme was revealed earlier this year by whistleblower Edward Snowden, who is currently living in Russia under the status of political asylum.

Some of the most significant documents that are part of the release are rulings by the Foreign Intelligence Surveillance Court (FISC) that authorised the telephony metadata programme to move forward over the last several years.

The document release “reveals a few things”, Trevor Timm, a policy analyst for EFF, told IPS.

“First the NSA admitted to the court [FISC] in 2009 it had not a single person in the NSA who was able to adequately understand their surveillance system, which is an extraordinary admission because… the surveillance system exists solely because the court authorised it based on the NSA’s explanations,” he said.

“This shows NSA is in charge of itself. They could get away with anything and not tell the court and there would be no repercussions or way for anybody to find out it,” Timm said.

On Jul. 19, the court ordered the Justice Department to meet with the parties seeking access to the FISC records and other records, to negotiate the voluntary release of as many records as possible.

According to EFF, some records have still not been released, but at least this has narrowed the scope of the records dispute remaining before the courts.

EFF is still waiting on at least one crucial FISC opinion that has yet to be released, specifically regarding the court’s interpretation of the word “relevant”. The word “relevant” appears in Section 215 of the amended Patriot Act and is the NSA’s justification for collecting all U.S. telephony metadata. The NSA argues every citizens’ metadata is relevant to national security.

“We still think we’re going to get that [document]. That will have the most direct effect on the lawsuit [challenging the programme],” Timm said.

In responding to the Jul. 19 court order, the Justice Department said it was able to release more records than it had been previously because of an Aug. 9 directive by President Barack Obama to release “as much information about these programmes as possible”.

However, EFF disputes the notion that the government has released the information voluntarily.

“The presidential directive was not the reason they started releasing information. It’s because the Court ordered them to start releasing information,” Timm said. “Because of the presidential directive, those negotiations turned out better than they normally would have.”

“They fought tooth and nail to keep this information from getting out to the public. They wouldn’t even tell us the number of pages involved. They said if we release even one word of this, it would cause significant and articulable harm to national security,” Timm said.

“Since the Snowden revelations, that’s been… [revealed] as ridiculous. Basically they’re just implementing public laws and explaining the legal standards for which they carry out these laws – this stuff should’ve been public years ago,” Timm said.

In January 2009, the NSA revealed to the court that it had failed to follow its own procedures to minimise the use of citizens’ constitutionally protected private information. The NSA had violated court orders on numerous occasions in which it queried citizens’ information without any suspicion of a connection to terrorism.

The NSA had a list of approximately 18,000 phone numbers that they had been not just collecting but using, but they only had reasonable suspicion of terrorist links for around 2,000 of them.

A Mar. 3, 2009 order, by FISC Judge Reggie B. Walton, obtained by the organisations, describes a federal agency run amok.

“The court at first authorised the collection of bulk metadata in 2006,” Patrick Toomey, attorney and national security fellow at the American Civil Liberties Union’s National Security Project, told IPS.

“In 2009 it describes the restrictions, the very rigorous restrictions that the court imposed on the use of this phone record metadata, and it describes the ways the government had defied or failed to comply with those restrictions.

“The most disturbing point probably that came out of these documents was the extent of the government’s failure to comply with the court order,” Toomey said.

The NSA argues there is no expectation of privacy for metadata under the Fourth Amendment because it is owned by the phone companies.

“They’ve clung to a case from 1970s that allowed law enforcement to collect one phone call for one person,” Timm said, referring to Smith v. Maryland, a 1979 case decided by the Supreme Court.

Collecting the telephony metadata of all U.S. residents is “not exactly what the U.S. Supreme Court intended or knew could happen when that decision was made,” Timm said.

The NSA has also argued that it is not violating citizens’ rights by merely collecting and storing citizens’ telephone metadata because it only uses the information when it needs to.

But the American Civil Liberties Union disagrees with that logic. “It doesn’t matter what the government does with the information. For Fourth Amendment and privacy purposes, the government has taken for itself information that discloses personal details, political, religious, even medical,” Toomey said.

“If the government took your diary and promised not to read it, it would still be a search, and not just because of your property interest in the paper,” Toomey said.

Earlier this month, Reuters revealed that a special division within the U.S. Drug Enforcement Administration (DEA) has been using intelligence intercepts, wiretaps, informants and a mass database of telephone records to secretly identify targets for drug enforcement actions.

In the wake of these revelations, a former prosecutor tells IPS he believes he and his colleagues may have been unwitting pawns in the federal government’s effort to deceive defendants and the court system, thereby violating citizens’ constitutional rights.“This is changing the rules of the game so they can conceal the source and use tainted information." -- former prosecutor Patrick Nightingale

“None of us had any idea whatsoever there was a secret DEA programme that instructed DEA agents to conceal the source,” Patrick Nightingale, a former prosecutor for Allegheny County, Pennsylvania, and a member of Law Enforcement Against Prohibition, told IPS.

“My oath as an attorney and as a prosecutor was as an officer of the constitution, and not to win at all costs. This [programme] is a win at all costs mentality: whether it’s constitutional or not we’re going to use it and we can conceal it,” he said.

Called the Special Operations Division (SOD), it is comprised of some two dozen federal agencies, including the Federal Bureau of Investigation, Central Intelligence Agency, National Security Agency (NSA), Internal Revenue Service (IRS), and the Department of Homeland Security.

Everything about the SOD is secret, including the size of its budget and the location of its offices.

Reuters has also identified the IRS as a recipient of the information, pointing to a former IRS training manual that referenced the SOD programme.

As a routine practice, the SOD secretly provides the information to local authorities across the U.S., allowing them to start investigations against U.S. citizens under false pretenses, in a practice known as “parallel construction”.

For example, under parallel construction, local law enforcement will be instructed to find a reason to stop a particular vehicle – for example, through a routine traffic stop – and then once the drugs are found, the government will falsely state the drugs were found in the traffic stop.

The IRS training document details how government officials are instructed to conceal – from prosecutors, defence attorneys, and even the courts – the methods by which a suspected drug criminal is identified and then targeted for apprehension.

“Special Operations Division has the ability to collect, collate, analyze, evaluate, and disseminate information and intelligence derived from worldwide multi-agency sources, including classified projects,” the 2005 and 2006 IRS training manual says, according to Reuters.

“SOD converts extremely sensitive information into usable leads and tips which are then passed to the field offices for real-time enforcement activity against major international drug trafficking organizations,” the document states.

The Electronic Frontier Foundation (EFF), a group that defends free speech and privacy issues, calls it “intelligence laundering“.

Since the revelations on Aug. 5, the Justice Department has said it is reviewing the programme, according to reports. But such a review does not address the constitutional violations that appear to have already occurred.

“Our criminal justice system is based on the presumption of innocence and our constitution demands fair play in criminal proceedings. It demands that prosecutors reveal to the defence both the good and the bad,” Nightingale said.

“If the source of this information is so sensitive that a law enforcement agency is told to keep the information from its own team [including federal and local prosecutors] because it knows members of its team are required to divulge it to the other side [the defence], then it’s a problem,” he said.

Nightingale told IPS he had no awareness of the programme as a prosecutor, even though he worked on many cases where he sought court approval for a Title 3 wiretap based on certain evidence. Now he does not know – nor does he have any way of knowing – how many of those cases originated from a secret SOD tip.

“This is changing the rules of the game so they can conceal the source and use tainted information, depriving… defence attorneys and defendants from being able to have a fair trial as defined by the Constitution,” he said.

Hanni Fakhoury, a staff attorney with EFF, told IPS, “The NSA data is being gathered on purpose, and then directed to a different purpose.” He said the information being gathered by the NSA “should” be something that the FISA Court has been approving, although there is no way to know.

“Those orders have a broad scope. The orders aren’t public, there isn’t insight into what the orders look like, or how the court operates really,” Fakhoury said.

“The big concern is they’re not being forthright about the fact that they’re using the information directed toward a purpose not related to national security, and they’re not telling the court or the defendants the true source of that information.

“It’s yet more proof what is being said publicly [by the NSA] is not all entirely accurate,” he said. “It’s another reason why we have to very carefully scrutinise the government’s justification for these types of programmes.”

Fakhouri says the SOD programme is unconstitutional because of the Fifth and Sixth Amendments combined.

Full and fair disclosure is enshrined in the U.S. Constitution as part of the Sixth Amendment, which states, “In all criminal prosecutions, the accused shall enjoy the right… to be informed of the nature and cause of the accusation.”

The Fifth Amendment provides, “No person shall be… deprived of life, liberty, or property, without due process of law.”

The revelations also raise the possibility that individuals who have been convicted over the last 20 years on drug charges, or perhaps IRS-related charges, will challenge those convictions in court on the basis that secret evidence may have been used in the investigative process.

“I think we’re going to see a lot of those types of arguments. How successful those will be – will be a tough sell. I think it will be an interesting thing to watch,” Fakhoury said.

Civil liberties advocates are expressing doubt that promised reforms to a vast and controversial U.S. surveillance programme will allay concerns that the spying infringes on certain rights.

On Friday, U.S. President Barack Obama announced that he would oversee reforms to his administration’s surveillance programme. Evidence of this programme, which was initially leaked in May, showed that the U.S. National Security Agency (NSA) had gained access to the communication records of millions of U.S. citizens, sparking public outrage.“Intelligence agencies, by their nature, will always want to collect as much information as possible, and today there are very few technological limits left on what they can collect." -- Prof. David C. Unger

“It’s good that President Obama has gotten the message that Americans are troubled to learn of the National Security Agency’s overreaching surveillance of their private communications,” David C. Unger, a professor of U.S. foreign policy at the Johns Hopkins University School of Advanced International Studies (SAIS), told IPS.

“But more transparency alone won’t be enough, especially if the president intends to keep his proposed review process within the executive branch itself.”

Rather, Unger says what is needed is a “reinvigorated system of checks and balances, with much more vigorous legislative and judicial oversight than we have today.”

In his remarks, Obama listed four reforms his administration was ready to make. The steps include working with Congress to reform the laws governing surveillance, pursuing measures to increase transparency, and establishing “a high-level group of outside experts” to assess how U.S. intelligence agencies utilise communications technology.

The reforms, he said, are intended to “strike the right balance between protecting our security and preserving our freedoms,” as well as “to give the American people additional confidence that there are additional safeguards against abuse.”

In a sign of sincerity about the reforms, on Monday the president sent a memorandum to the director of national intelligence (DNI), James Clapper, ordering him to establish a Review Group on Intelligence and Communications Technologies.

The Review Group’s primary assignment is to “assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust.”

The committee will now have two months to carry out the review, after which it will present its findings to Obama through the DNI.

Right to ask questions

Speaking with reporters at the White House, Obama reminded U.S. citizens about the threat of terrorism the country continues to face. He also lamented the effects that high-profile leaks made by former intelligence analyst Edward Snowden have had on the country’s discourse about the power of its spy agencies.

“Unfortunately, rather than an orderly and lawful process to debate these issues and come up with appropriate reforms, repeated leaks of classified information have initiated the debate in a very passionate, but not always fully informed, way,” the president said.

Yet that opinion clashes with the widespread views of critics of the surveillance programme, who are encouraged that an impassioned public outcry has reached presidential ears.

“While we’re glad Obama is responding to the public’s concerns, we take [his] promises today with a healthy dose of scepticism,” the Electronic Frontier Foundation, a group which advocates for less government surveillance, said in a statement.

“He may be paying lip service to accountability and transparency, but the devil will be in the details when it comes to whether his proposals will be effective.”

The EFF also remarked that it is “glad” the Obama administration “has been forced to address the matter publicly as a result of the sustained public pressure from concerned voters as well as the ongoing press coverage of this issue.”

In his remarks on the subject, Obama did note that he had been influenced by a meeting held with civil liberties advocates at the beginning of this month. He also said he understood the concerns being expressed by those who oppose the more invasive spying techniques that his administration has reportedly used.

“[G]iven the history of abuse by governments, it’s right to ask questions about surveillance,” the president said, “particularly as technology is reshaping every aspect of our lives.”

Critics of the extensive spying programme agree the advancement of communication technology has played a part in enabling governments to gather vast amounts of information on private citizens.

“Intelligence agencies, by their nature, will always want to collect as much information as possible, and today there are very few technological limits left on what they can collect,” says SAIS’s Unger, author of “The Emergency State: America’s Pursuit of Absolute Security at All Costs.”

Maintaining principles

In his remarks, President Obama also made noteworthy comments on the importance of openness and adherence to the law, even when engaging in controversial surveillance activity. He suggested this was one way in which the United States distinguishes itself from other powers.

“[W]e show a restraint that many governments around the world don’t even think to do, refuse to show – and that includes, by the way, some of America’s most vocal critics,” the president stated.

U.S. leadership, Obama suggested, depends upon “the example of American democracy and American openness – because what makes us different from other countries is not simply our ability to secure our nation, it’s the way we do it.”

While those leery of extensive spying are aware that U.S. practices are often less abusive than some states that have criticised it, many continue to warn against using that fact as justification for the U.S. abandoning its ethical principles.

“Without a doubt there are worse actors in the world of espionage than the United States, including some of America’s critics,” SAIS’s Unger told IPS.

“[However,] none of that should or does absolve the United States from adhering to the principled standards it has historically set for itself and that are in its own long-term best interests.”

The U.S. government argues there is no expectation of privacy for so-called metadata collected by the NSA. Credit: Zofeen Ebrahim/IPS

By Matthew Charles Cardinale
ATLANTA, Georgia, Jul 19 2013 (IPS)

A wide variety of individuals and organisations have filed lawsuits challenging the National Security Agency (NSA) and other federal agencies and officials for conducting a massive, dragnet spying operation on U.S. citizens that was recently confirmed by whistleblower Edward Snowden.

At least three ongoing lawsuits are challenging the NSA’s practice of indiscriminately collecting and storing information related to all phone calls to and from U.S. citizens – referred to as “telephony metadata” by the government – as in violation of several protections guaranteed under the constitution."Metadata is extraordinarily important. You could make a pretty clear map of your political views, your religious affiliations." -- Rebecca Jeschke of the Electronic Frontier Foundation

In addition, at least one lawsuit challenges the NSA’s PRISM programme, which collects a variety of multimedia communications of non-U.S. citizens that are handled by U.S.-based companies such as Facebook, Google, MSN and Yahoo.

Snowden, a former contractor for Booz Allen Hamilton, a computer technology consulting firm that works with the NSA, revealed the NSA programmes in interviews with several publications, including the Guardian newspaper in the United Kingdom, which was the first to begin publishing related documents on Jun. 6.

Snowden has been stuck at an airport terminal in Russia for several weeks and is currently seeking asylum there, as he has said he fears he would be wrongfully prosecuted, tortured, or even killed by the U.S. government.

One of the latest lawsuits to challenge the telephonic spying programme, First Unitarian Church of Los Angeles, et al., v. National Security Agency, et al., was filed on Tuesday.

The plaintiffs “are organisations with members with First Amendment rights to freedom of association,” Rebecca Jeschke, a digital rights analyst with the Electronic Frontier Foundation, told IPS. “CALGUNS [a California-based gun rights advocacy group] is scared people won’t call their hotline.

“We have the First Unitarian Church as a plaintiff. They are concerned people won’t use the services they have, because they’re afraid they’re going to be associated with other services they have. Metadata is extraordinarily important. You could make a pretty clear map of your political views, your religious affiliations,” Jeschke said.

The government admits the telephonic spying programme collects the phone numbers, time and date, and durations of all U.S. phonecalls.

The plaintiffs argue the programme is a violation of the First Amendment because it has a chilling effect on the rights to free speech, assembly, practice of religion, and to petition the government for a redress of grievances; the Fourth Amendment right to be free from unreasonable searches and seizures; the Fifth Amendment right to due process; and various federal statutes related to electronic surveillance.

The federal government has said it collects and stores the metadata for several years – in order to preserve it – but only uses it when it decides there is a national security reason to search the information.

The government also argues there is no expectation of privacy for metadata under the Fourth Amendment because it is owned by the phone companies.

“The Fourth Amendment question is in part going to turn on the scope of search and the reasonableness. Accessing metadata for persons for which some level of suspicion [exists] is one thing, accessing metadata for everybody is a different matter,” Prof. Gerry Weber, an adjunct professor at Emory School of Law specialising in constitutional law, told IPS.

“This is all an evolving technology area, where the Supreme Court has generally been hit or miss. They’re dealing with new electronic technologies as they come,” Weber said.

On Jun. 9, Larry Klayman, the former chairman of Judicial Watch, and two other citizens filed a federal class action lawsuit challenging the telephonic surveillance programme.

On Jun. 11, the American Civil Liberties Union (ACLU) also sued over the telephonic spying programme.

The ACLU had previously sued the NSA in 2008, challenging the constitutionality of the Foreign Intelligence Surveillance Act (FISA) of 1978 Amendments Act of 2008 – which the government has used as part of its secret legal justification for its programme – but their complaint was dismissed by the U.S. Supreme Court in February 2013 on the grounds that the ACLU could not prove it had been monitored by the government.

However, given the recent revelations, and given that the ACLU is a Verizon subscriber, the organisation should now have standing.

Verizon, a phone service provider, was subject to a previously-secret court order dated Apr. 25 by U.S. Foreign Intelligence Surveillance Court Judge Roger Vinson compelling it to turn over customers’ phone records to the NSA.

But advocates are confident that Verizon is not the only participant.

“The director of National Intelligence, James Clapper, acknowledged the Verizon order was part of a large programme from the NSA. It would be surprising if it were only Verizon. That’s [just] the document that’s leaked. We do have intelligence officials saying it was a wide-ranging programme… ‘broad in scope,’” Jeschke said.

Klayman has also sued over the multi-media eavesdropping programme, PRISM.

In addition, the Electronic Privacy Information Center (EPIC) filed a Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari, with the Supreme Court on Jul. 8. The petition asks the court to vacate the Apr. 25 order by the FISA Court that had compelled Verizon to send telephony metadata to the NSA.

In addition to arguments similar to those made in the other cases, the petition also argues the NSA telephonic spying programme violates attorney-client privilege, and is a violation of separation of powers because the NSA is also collecting phone records of Congress and the judiciary.

Meanwhile, in separate, ongoing class action litigation the EFF has had against the NSA since 2008, Jewel v. NSA, a federal judge last week rejected a motion by the federal government to dismiss the suit. That case alleged ongoing, dragnet surveillance by the NSA on millions of U.S. citizens, even years prior to Snowden’s revelations.

“We’ve asked this case to be associated with Jewel v. NSA. There were other leaks. The fact that this programme was ongoing was something that many people were aware of before these leaks came out – it’s just the documents from the FISA Court confirmed it,” Jeschke said.

A whistleblower with AT&T, who had wired a room that he believed was for the government to track U.S. citizens’ phonecalls, came to EFF in 2006.

“He realised he was wiring up Big Brother and came to us,” Jeschke said.

Meanwhile, in a U.S. House Judiciary Committee hearing this week on the NSA spying programmes, members of Congress of both parties told representatives of the NSA and the Federal Bureau of Investigation that they believe the administration has abused the authority granted to it by Congress.

Rep. Jim Sensenbrenner, a powerful Republican from Wisconsin, warned that if the administration did not stop collecting the phone records of U.S. citizens indiscriminately, that a provision, Section 215 of the Patriot Act, known as the business records provision, will expire, and that there will not be enough votes in Congress to renew it.

President Obama's new executive order could make the U.S. government among the world’s most transparent. Credit: Official White House Photo by Pete Souza

By Carey L. Biron
WASHINGTON, May 9 2013 (IPS)

President Barack Obama has initiated a potential sea change in U.S government accountability, unveiling Thursday an executive order mandating all federal agencies to make openness and public accessibility the default methods for handling official data.

Depending on how the order and related rules are implemented, the change could make the U.S. government among the world’s most transparent, at least with regard to non-secret information. Elated supporters – including many longstanding critics of government secrecy – suggest that the move now offers a potent model for other countries that have expressed interest in increasing their transparency."If you release the data, people will be able to find ways to analyse it in ways that make sense.” -- Dave Maass of the Electronic Frontier Foundation

“It’s really reassuring to see this issue get formalised in an executive order, which constitutes a major step in updating how government information gets disseminated,” Dave Maass, a spokesperson for the Electronic Frontier Foundation (EFF), a digital-rights advocacy group, told IPS.

“One of the most important aspects of this order is that it will force the government not only to release vastly more data but to do so in a more standardised format. Over the past several years, many policy experts have been doing great stuff with ‘big data’, but so far not much of that has been machine readable, meaning that it’s been very difficult to collate and analyse.”

Maass notes that the move will impact on both agencies’ input and output responsibilities, and thus will do much to ensure that government information is accurate to begin with, prior to its release. Still, that now puts additional onus on analysts to come up with inventive ways of using any massive new streams of data.

“While some journalists have had trouble with big data dumps, there have been notable examples – for instance, surrounding WikiLeaks – in which we’ve seen that people are able to sort through huge amounts of data and come up with innovative ways of parsing that information,” he says.

“I think the key here is that if you release the data, people will be able to find ways to analyse it in ways that make sense.”

New mindset

The new moves are mirroring a broader international discussion over digital standards among fast-changing industries. While governments, including Washington, have been relatively slow to adopt such new standards, Thursday’s executive order should now speed that process up.

The new policies build on but greatly expand a series of steps taken by the Obama administration in recent years, beginning with a directive in 2009 that set a series of deadlines towards increased transparency. March 2012 then saw the release of a new government-wide strategy paper.

While advocates of government openness cautiously applauded these moves, many continued to push the administration to do far more, urging the adoption of a new mindset altogether.

Thursday’s order “is significantly different from the open data policies that have come before it”, John Wonderlich, policy director at the Sunlight Foundation, a Washington advocacy group that has been at the forefront of the push for greater government transparency, wrote Thursday on the group’s website.

“This Executive Order and the new policies that accompany it cover a lot of ground, building public reporting systems, adding new goals, and laying out new principles for openness … Most importantly, though, the Executive Order takes on one of the most important, trickiest questions that these policies face – how can we reset the default to openness when there is so much data?”

At least 48 governments have now committed to the Open Government Partnership, a set of principles in favour of greater transparency. Concrete implementation has been slow, however, and Wonderlich suggests says the United States now offers an important model.

The partnership “has spawned a huge number of similar commitments from governments around the world … [exhibiting] enthusiasm that needs an example of where to head next,” he writes, noting that Obama’s policy changes constitute a “new approach to open data, moving beyond rhetoric and aspiration”.

Troves

While many advocates are seeing the new policies in terms of facilitating public oversight, the White House is emphasising the entrepreneurial potential of this new data availability.

“One of the things we’re doing to fuel more private sector innovation and discovery is to make vast amounts of America’s data open and easy to access for the first time in history,” President Obama said Thursday.

The administration is calling the executive order “historic”. But it also points to previous examples of government data leading to major consumer services, including regarding government weather satellites, agricultural advisory services and the Global Positioning System (GPS).

“This move will make troves of previously inaccessible or unmanageable data easily available to entrepreneurs, researchers and others who can use that data to generate new products and services, build businesses and create jobs,” Todd Park, the White House’s chief technology officer, told reporters Thursday.

“In fact, just … two types of open government data, weather and GPS, alone have added tens of billions of dollars in annual value to the American economy, as basically the government has given taxpayers back the data that they pay for.”

A website, data.gov, soon to be expanded, will serve as a central hub for the new initiatives. Indeed, while the new policies are unique in their application across the federal government, recent years have seen a substantial increase in “open data” projects in federal agencies, covering health, education, finance and other fields.

Foremost among these is the State Department’s foreign assistance “dashboard”, which began operating in late 2010 and is seen as a central component in bringing the United States in compliance with a global standards agreement known as the International Aid Transparency Initiative (IATI). Aimed at offering regular data updates on all federal agencies with foreign assistance budgets, the U.S. system is to be fully up and running by 2015.

“Endorsed by the [Obama] administration in 2011, IATI has demonstrated that it is only through the use of open data standards and a presumption to publish that information can be understood, compared and become useful to a wide range of users. To its great credit, the new Executive Order recognises these principles,” David Hall Matthews, managing director of Publish What You Fund, a London-based advocacy group, told IPS, calling the policy a “step change” in Washington’s approach to open data.

“In the specific area of foreign assistance, data from U.S. agencies will be most helpful to other agencies – as well as to other international donors and to recipients – when it is accessible, timely, complete and as granular as possible. We are delighted that the new policy indicates exactly that.”