Privacy Digest

ACLU Commends Senator Feingold for Hearing on Secret Law - Via American Civil Liberties Union:

Washington, DC – The American Civil Liberties Union today applauded a Senate subcommittee for holding a hearing on the Bush administration’s use of secrecy to institute government policy. During the hearing, entitled "Secret Law and the Threat to Democratic and Accountable Government," the Senate Judiciary Subcommittee on the Constitution and its chairman, Senator Russell Feingold (D-WI), heard testimony from legal experts and open government advocates. The hearing focused on the administration’s broad interpretation of the law as it relates to government secrecy and counterterrorism policies – including a legal opinion written by former Justice Department Official John Yoo on the use of torture in interrogations. That memo was made public through a Freedom of Information Act (FOIA) request made by the ACLU.

"Government transparency is the cornerstone of democracy," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "This administration has been rewriting the Constitution memo by memo. From what we’ve seen of the self-serving opinions issued by the Office of Legal Counsel, we can only believe that those that remain secret must equally distort the law in favor of President Bush’s agenda. An agenda built on secrecy and overclassification is antithetical to our country’s ideals."  read more »

After Records Reveal E-Voting Glitches, Election Official Jokes She'll Stop Keeping Records - Via Threat Level:

Kathy Dent, the election director in Sarasota County, Florida, was the target of controversy after the 2006 election when more than 18,000 ballots cast on ES&S touch-screen voting machines in her county showed no vote cast in the 13th congressional district race. The so-called undervote rate in that race was five times what is considered normal and resulted in two lawsuits filed by voters and the defeated candidate, Christine Jennings, who lost the congressional seat by fewer than 400 votes.  read more »

Annals of Surveillance: State Secrets - Via Reporting & Essays: The New Yorker:

One Friday afternoon in August, 2004, a Washington, D.C., attorney named Lynne Bernabei received a package from the Department of the Treasury. The government was investigating one of her clients, the American branch of a Saudi charity called the Al Haramain Islamic Foundation, which had been active in fifty countries. Al Haramain had come under scrutiny, as had many other Islamic charities, after the attacks of September 11, 2001, and Treasury Department investigators believed that Al Haramain’s American branch, which was based in Oregon, had connections to Al Qaeda. In response to a request from Bernabei for evidence against her client, the government had turned over two sets of documents, primarily media reports that referred to other branches of Al Haramain. None of the materials demonstrated a direct connection between the Oregon branch and Al Qaeda.  read more »

EFF Issues Report on Abuse of National Security Letter - Via EFF: Deep Links:

Today, EFF published a report on the misuse of a National Security Letter to seek educational records from North Carolina State University at Raleigh in 2005. The NSL authority does not allow the government to seek educational records.

The detailed report stems from EFF's Freedom of Information Act request for records about NSL abuse. FBI documents show that, over the span of three days in July 2005, the Charlotte Division of the FBI first obtained educational records pursuant to a grand jury subpoena, and then -- at the direction of FBIHQ -- returned the records and sought them again pursuant to an improper NSL.

The improper NSL was refused by the university, but the FBI finally obtained them pursuant to a second grand jury subpoena. Later in July 2005, FBI Director Robert Mueller used the delay in obtaining these particular records as an example of why the FBI needed administrative subpoena power instead of NSLs in testimony.  read more »

EFF Report: FBI Slowed Terror Investigation with Improper NSL Request - Via EFF: Breaking News:

San Francisco - The Electronic Frontier Foundation (EFF) has found that the Federal Bureau of Investigation (FBI), which claims that National Security Letters (NSLs) take too long and that it needs the authority to conduct surveillance without judicial oversight, delayed its own investigation of a student suspected of links to terrorism by employing an improper NSL to seek information on the suspect, at the direction of FBI Headquarters. The FBI failed to report the misuse for almost two years.

EFF's report comes as the House Judiciary Committee prepares for a Tuesday hearing on the misuse of NSLs. The Senate Judiciary Committee will hold another hearing on Wednesday.

"This report raises important questions about the FBI's use of these very powerful investigative tools," said EFF Senior Staff Attorney Kurt Opsahl. "Congress should determine why FBI headquarters insisted on an improper NSL instead of using the appropriate tools, and why the FBI failed to report the misuse for almost two years."  read more »

Quantico Circus - Via ACLU Blog - Government Spying:

Today the Washington Post took us further into the Quantico Circuits and the problems inherent within. The circuits link together the FBI and phone companies and are used during wiretap investigations. Last month, a whistleblower named Babak Pasdar came forward to disclose the existence of the Quantico circuit. They can tell FBI investigators the length of the call, the callers’ identities and the location of the callers — a nice reminder that when you’re using your phone you’re a walking homing beacon.

The catch is that wiretapping orders require a warrant (or not — looking at you, President Bush) but to get the info the Quantico circuit provides, all you need is a National Security Letter, or NSL.  read more »

EFF Wins Another Speedy Release of Telecom Lobbying Records - Via EFF: Breaking News:

San Francisco - The Electronic Frontier Foundation (EFF) won another battle against the government Friday over the release of information about a campaign to change federal surveillance law.

A federal judge ordered the Department of Justice (DOJ) and the Office of the Director of National Intelligence (ODNI) to provide to EFF by April 21, 2008, records about telecom industry lobbying of their offices.

Congress is currently considering granting immunity to telecommunications companies that participated in unlawful electronic surveillance on millions of ordinary Americans as part of changes to the Foreign Intelligence Surveillance Act (FISA). Officials at the DOJ and ODNI have been vocal supporters of the immunity proposal. Using the Freedom of Information Act (FOIA), EFF asked the DOJ and ODNI for any documents reflecting telecom carriers' efforts to avoid legal responsibility for their role in the government's surveillance operations, but the agencies failed to comply with EFF's requests.  read more »

The Yoo Torture Memo: The Aftermath - Via ACLU Blog:

So yesterday's late-evening release of the Yoo torture memo caught everyone by surprise. Amrit Singh, ACLU staff attorney, and Jameel Jaffer, director of our National Security Project, didn't know it was coming. It wasn't until 5:30 p.m. when everyone in the office getting ready to leave for the day, that the proverbial crap hit the fan. Our media relations department sent out a press release at 10:34 p.m., after Jameel and Amrit, our experts on torture issues, read the 81-page memo and were able to comment on its…contents.

While we got some great coverage on this huge news, some outlets neglected to mention the ACLU's role in the declassification of this memo. We'd like to clarify, Attorney General Mukasey didn't wake up yesterday morning and think: "Hey, we should send the ACLU that Yoo memo we've been keeping so close to the chest for five years." No, we've been fighting for the release of the Yoo memo for years in our Freedom of Information Act (FOIA) request, filed in October of 2003, asking for the release of any and all documents related to the detention and interrogation of prisoners held in U.S. custody overseas. It was the ACLU's vigorous prosecution of our FOIA lawsuit to enforce this request that ultimately led to the declassification of this memo. We just went to court over it a few weeks ago.  read more »

Memo linked to warrantless surveillance - San Jose Mercury News - Via :

WASHINGTON—For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism.
Editor: Emphasis added.

That view was expressed in a Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.  read more »

Sunlight Foundation Asks The Public For Ideas On A More Accountable Government - Via Threat Level:

As has been documented repeatedly, President Bush has run one of the most secretive administrations in recent memory. For their part, members of congress haven't fared so well in public opinion polls either when it comes to openness and accountability. So perhaps it's not surprising that government transparency and accountability have become themes in this year's presidential campaign.

Democratic presidential contenders Senators Barack Obama and Hillary Clinton have both offered plans to improve government transparency, with Obama's campaign stressing the role that technology could play in facilitating the process.  read more »

Seeking Public Input for More Government Accountability - Via ACLU Blog - Civil Liberties News:

Sunshine Week is over, but Wired reports that the Sunlight Foundation just launched a new initiative to bring together all of the government transparency bills that have been proposed, but stalled one way or another in Congress, plus some new proposals, and ask for public comment on them. Sunlight is taking comments by putting the bill, called the Transparency in Government Act of 2008, on its site PublicMarkup.org. The act covers everything from faster responses to Freedom of Information Act (FOIA) requests, to access to Congressional Research Service reports, to improving Executive Branch Transparency.

As participants in the Sunshine Week campaign for open government, the ACLU encourages citizens to participate in this important exercise and give their comments on the PublicMarkup site. It's an unusual opportunity for members of the public to give their direct input into legislation that's pending in Congress.

Speaking of transparency in the Executive Branch, Public Citizen—the consumer advocacy nonprofit founded by Ralph Nader—established BushSecrecy.org to chronicle our current president's efforts to keep the public in dark about his administration's inner workings.

The site points out that government transparency laws were strengthened during the Clinton administration, but that all went to hell with a memo (PDF) sent by Bush's then-Attorney General John Ashcroft in October 2001.  read more »

Times Reporter Hides NSA Spying Back Story - Via Threat Level:

On December 16 2005, the New York Times revealed the existence of the President's secret, warrantless wiretapping program, setting in motion an ongoing stream of revelations about more secret domestic surveillance and acrimonious political debates over whether to give amnesty to corporations that aided the program.

But lost in the aftermath is the fact that Pulitzer-prize winning story came out more than a year after the Times learned of the program and informed the government it was thinking of exposing it.

Now, Eric Lichtblau -- who co-wrote the story with James Risen -- is telling some of the back story in a book, casting it as the tale of a journalist learning to distrust the government. There's secret meetings at the White House, a buried story brought back to life by Risen's decision to include it in his book, and the online publishing of the story in response to a rumored threat that the government might try to stop the story with a court order.  read more »

Va. Domestic Intelligence Center Sued for Info - Via Threat Level:

A D.C. privacy group that is curious about the activities of a Virginia domestic intelligence center filed a government sunshine lawsuit Friday, after Virigina's so-called fusion center rebuffed its requests for documents about what the center was doing.

The Electronic Privacy Information Center's complaint (.pdf) asks a Virginia judge to force state police to cough up records about meetings with the Departments of Justice and Homeland Security, especially in regards to discussions about how the center would or would not comply with state open government laws. Virginia state police denied the request, saying the documents were "criminal intelligence data."

Fusion centers are relatively new creatures on the homeland security scene and are intended to allow local and state police to combine their criminal and intelligence information with information shared by government agencies.  read more »

For FOIA Follies, Treasury Department Wins Incompetence Prize - Via ACLU Blog - Civil Liberties News:

In the s