surveillance

Both Brazil and German, which have been the subjct of American surveillance, are seeking to "apply the right to privacy, which is enshrined in the International Covenant on Civil and Political Rights (ICCPR), to online communications," Foreign Policy reports. The United States, however, is pushing back, "to kill a provision of the Brazilian and German draft which states that 'extraterritorial surveillance' and mass interception of communications, personal information, and metadata may constitute a violation of human rights," Foreign Policy further reports.

Separately, Reuters reports that a "draft U.N. resolution that some diplomats said suggested spying in foreign countries could be a human rights violation has been weakened to appease the United States, Britain and others ahead of a vote by a U.N. committee next week." The initial draft would have had the General Assembly declare it is "'deeply concerned at human rights violations and abuses that may result from the conduct of any surveillance of communications, including extraterritorial surveillance of communications,"' but the draft now proposes the General Assembly declare it is '"deeply concerned at the negative impact that surveillance and/or interception of communications, including extraterritorial surveillance and/or interception of communications, as well as the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights,'" according to Reuters.

Lawfare has a comprehensive roundup of all the legislative proposals to reform the mass surveillance that has been revealed by Edward Snowden's leaks. One suggested reform is to end the ex parte proceedings in the Foreign Intelligence Surveillance Court in which the government's requests face no opposition: "Judging by the bills in play, there’s pretty much two ideas for doing so: the addition of a new 'Special Advocate,' a lawyer who would argue in the public interest in FISC proceedings; or of an amicus curiae, or 'friend of the court,' when called upon by the court," according to Lawfare.
 

The Washington Post reports that a defendant in a terrorism case has been informed by the U.S. Department of Justice that federal prosecutors want to use evidence generated from warrantless surveillance against him. The case is expect to generate a constitutional challenge. The case also could generated a U.S. Supreme Court test case. The Supreme Court rejected prior challenges to warrantless surveillance because the "lawyers, journalists and human rights organizations who brought the suit could not prove they had been caught up in the surveillance. As a result, they did not have legal standing to challenge the constitutionality," The Washington Post also reports.

The Guardian has another scoop based on documents leaked by Edward Snowden: during the second term of the Bush presidential administration the National Security Agency memorialized that it tapped the phone calls of 35 world leaders after getting their numbers from a U.S. official in another department. The secret document stated no actionable intelligence arose from all that surveillance, The Guardian also reported.

The New York Times' Charlie Savage reports: "Five years after Congress authorized a sweeping warrantless surveillance program, the Justice Department is setting up a potential Supreme Court test of whether it is constitutional by notifying a criminal defendant — for the first time — that evidence against him derived from the eavesdropping, according to officials." The disclosure will be made after an internal debate within the DOJ on wheterh such disclosure is legally necessary.

The Washington Post reports on how the National Security Agency is sweeping up contacts lists in Americans' e-mail accounts and instant messaging accounts. For example, "during a single day last year, the NSA’s Special Source Operations branch collected 444,743 e-mail address books from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail and 22,881 from unspecified other providers, according to an internal NSA PowerPoint presentation," The Post reported. Over the course of a year, that would be millions of accounts. Is this contact information being paired with the already-revealed collection of nearly every record of phone calls made in the United States?

Even Americans who aren't living or working abroad are having their contact information collected because "data crosses international boundaries even when its American owners stay at home. Large technology companies, including Google and Facebook, maintain data centers around the world to balance loads on their servers and work around outages," The Post also reported.

On an amusing note, spam is just as annoying for spies as it is for the rest of us. "Spam has proven to be a significant problem for the NSA — clogging databases with information that holds no foreign intelligence value," The Post also reports.

The Atlantic blogs on a report from the Brennan Center for Justice on "what the surveillance state does with our private data" as a strong synthesis of everything that's been revealed in recent months. Further, The Atlantic writes, "even though the people being spied on are often totally innocent, the government stores their information for a very long time."

The full report is here: http://www.brennancenter.org/publication/what-government-does-americans-...

Wired looks at how the U.S. Supreme Court's decision in Smith v. Maryland has been used to justify the massive level of surveillance conducted of Americans. That 1979 decision started with a purse-snatcher whose obsession with the victim of his crime led police to use a pen register to track all of his phone calls, including the multitude of times he rang her. "Nobody is more surprised by the long-term ramifications of the case than the prosecutor who won it," Wired reports. "'It was a routine robbery case. The circumstances are radically different today. There wasn’t anything remotely [like] a massive surveillance of citizens’ phone calls or communications,' [Stephen] Sachs says. 'To extend it to what we now know as massive surveillance, in my personal view, is a bridge too far. It certainly wasn’t contemplated by those involved in Smith.”'

A California federal judge found Google "may have breached federal and California wiretapping laws for machine-scanning Gmail messages as part of its business model to create user profiles and provide targeted advertising," Wired reports. This putative class action is still at the early stage; the judge denied most of Google's motion to dismiss with leave for the plaintiffs to file an amended claim on the two claims she did dismiss.

Plaintiffs allege that Google violated both federal and California's wiretapping laws by acquiring the content of Gmail user's e-mails in order to send advertisements relevant to the senders or receipients of those messages, according to the opinion.

The judge did grant the motion to dismiss on the plaintiffs' Pennsylvania law claim regarding those who received emails from Gmail users because "Pennsylvania law protects only the sender of communication from wiretapping, not the recipient of that communication," according to the opinion.

The full opinion:

http://www.wired.com/images_blogs/threatlevel/2013/09/GoogleGmailOrder09...

With the United Nations General Assembly in New York this week, one UN event looked at the role the United Nations could have, if any, regarding ensuring privacy on the Internet from governmental spying.

A blogger for Ars Technica who was on the panel and who wrote about the event "pointed out that while anti-democratic countries may want legitimacy, their policies are already well in place. Surveillance capabilities are already being used, with or without the UN’s approval or disapproval, by democratic and anti-democratic governments."

Another interesting point from the panel was a Brazilian representative who "referred to the fact that President Barack Obama had recently defended the global American spying effort: 'I think it's important to recognize you can't have 100 percent security, and also 100 percent privacy, and also zero inconvenience. We're going to have to make some choices as a society.'" 

The Brazilian official said in light of the revelations of American spying on the Brazilian president and a major Brazilian energy company '“Brazil has 100 percent inconvenience, 0 percent security, and 0 percent privacy.”'