US Spying Scandal Hurts US Business

Lavabit's Brave Stand: Email Service Shuts Down

Edward Snowden: 'Google, Facebook, Microsoft, Yahoo, Apple, and the rest of our internet titans must ask themselves why they aren't fighting for our interests the same way'

by Glenn Greenwald

A Texas-based encrypted email service recently revealed to be used by Edward Snowden - Lavabit - announced yesterday it was shutting itself down in order to avoid complying with what it perceives as unjust secret US court orders to provide government access to its users' content. "After significant soul searching, I have decided to suspend operations," the company's founder, Ladar Levinson, wrote in a statement to users posted on the front page of its website. He said the US directive forced on his company "a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit." He chose the latter.

CNET's Declan McCullagh smartly speculates that Lavabit was served "with [a] federal court order to intercept users' (Snowden?) passwords" to allow ongoing monitoring of emails; specifically: "the order can also be to install FedGov-created malware." After challenging the order in district court and losing - all in a secret court proceeding, naturally - Lavabit shut itself down to avoid compliance while it appeals to the Fourth Circuit.

This morning, Silent Circle, a US-based secure online communication service, followed suit by shutting its own encrypted email service. Although it said it had not yet been served with any court order, the company, in a statement by its founder, internet security guru Phil Zimmerman, said: "We see the writing on the wall, and we have decided that it is best for us to shut down Silent Mail now."

What is particularly creepy about the Lavabit self-shutdown is that the company is gagged by law even from discussing the legal challenges it has mounted and the court proceeding it has engaged. In other words, the American owner of the company believes his Constitutional rights and those of his customers are being violated by the US Government, but he is not allowed to talk about it. Just as is true for people who receive National Security Letters under the Patriot Act, Lavabit has been told that they would face serious criminal sanctions if they publicly discuss what is being done to their company. Thus we get hostage-message-sounding missives like this:

I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what's going on - the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests."

Does that sound like a message coming from a citizen of a healthy and free country? Secret courts issuing secret rulings invariably in favor of the US government that those most affected are barred by law from discussing? Is there anyone incapable at this point of seeing what the United States has become? Here's the very sound advice issued by Lavabit's founder:

This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States."

As security expert Bruce Schneier wrote in a great Bloomberg column last week, this is one of the key aspects of the NSA disclosures: the vast public-private surveillance partnership. That's what makes Lavabit's stance so heroic: as our reporting has demonstrated, most US-based tech and telecom companies (though not all) meekly submit to the US government's dictates and cooperative extensively and enthusiastically with the NSA to ensure access to your communications.

Snowden, who told me today that he found Lavabit's stand "inspiring", added:

"Ladar Levison and his team suspended the operations of their 10 year old business rather than violate the Constitutional rights of their roughly 400,000 users. The President, Congress, and the Courts have forgotten that the costs of bad policy are always borne by ordinary citizens, and it is our job to remind them that there are limits to what we will pay.

"America cannot succeed as a country where individuals like Mr. Levison have to relocate their businesses abroad to be successful. Employees and leaders at Google, Facebook, Microsoft, Yahoo, Apple, and the rest of our internet titans must ask themselves why they aren't fighting for our interests the same way small businesses are. The defense they have offered to this point is that they were compelled by laws they do not agree with, but one day of downtime for the coalition of their services could achieve what a hundred Lavabits could not.

"When Congress returns to session in September, let us take note of whether the internet industry's statements and lobbyists - which were invisible in the lead-up to the Conyers-Amash vote - emerge on the side of the Free Internet or the NSA and its Intelligence Committees in Congress."

The growing (and accurate) perception that most US-based companies are not to be trusted with the privacy of electronic communications poses a real threat to those companies' financial interests. A report issued this week by the Technology and Innovation Foundation estimated that the US cloud computing industry, by itself, could lose between $21 billion to $35 billion due to reporting about the industry's ties to the NSA. It also notes that other nations' officials have been issuing the same kind of warnings to their citizens about US-based companies as the one issued by Lavabit yesterday:

And after the recent PRISM leaks, German Interior Minister Hans-Peter Friedrich declared publicly, 'whoever fears their communication is being intercepted in any way should use services that don't go through American servers.' Similarly, Jörg-Uwe Hahn, a German Justice Minister, called for a boycott of US companies."

The US-based internet industry knows that the recent transparency brought to the NSA is a threat to their business interests. This week, several leading Silicon Valley and telecom executives met with President Obama to discuss their "surveillance partnership". But the meeting was - naturally - held in total secrecy. Why shouldn't the agreements and collaborations between these companies and the NSA for access to customer communications not be open and public?

Obviously, the Obama administration, telecom giants, and the internet industry are not going to be moved by appeals to transparency, privacy and basic accountability. But perhaps they'll consider the damage being done to the industry's global reputation and business interests by constructing a ubiquitous spying system with the NSA and doing it all in secret.

It's well past time to think about what all this reflects about the US. As the New York Times Editorial Page put it today, referencing a front-page report from Charlie Savage enabled by NSA documents we published: "Apparently no espionage tool that Congress gives the National Security Agency is big enough or intrusive enough to satisfy the agency's inexhaustible appetite for delving into the communications of Americans." The NYT added:

Time and again, the NSA has pushed past the limits that lawmakers thought they had imposed to prevent it from invading basic privacy, as guaranteed by the Constitution."

I know it's much more fun and self-satisfying to talk about Vladimir Putin and depict him as this omnipotent cartoon villain. Talking about the flaws of others is always an effective tactic for avoiding our own, and as a bonus in this case, we get to and re-live Cold War glory by doing it. The best part of all is that we get to punish another country for the Supreme Sin: defying the dictates of the US leader.

[Note how a country's human rights problems becomes of interest to the US political and media class only when that country defies the US: hence, all the now-forgotten focus on Ecuador's press freedom record when it granted asylum to Julian Assange and considered doing so for Edward Snowden, while the truly repressive and deeply US-supported Saudi regime barely rates a mention. Americans love to feign sudden concern over a country's human rights abuses as a tool for punishing that country for disobedience to imperial dictates and for being distracted from their own government's abuses: Russia grants asylum to Snowden --> Russia is terrible to gays! But maybe it's more constructive for US media figures and Americans generally to think about what's happening to their own country and the abuses of the own government, the one for which they bear responsibility and over which they can exercise actual influence.]

Lavabit has taken an impressive and bold stand against the US government, sacrificing its self-interest for the privacy rights of its users. Those inclined to do so can return that support by helping it with lawyers' fees to fight the US government's orders, via this paypal linkprovided in the company's statement.

One of the most remarkable, and I think enduring, aspects of the NSA stories is how much open defiance there has been of the US government. Numerous countries around the world have waved away threats, from Hong Kong and Russia to multiple Latin American nations. Populations around the world are expressing serious indignation at the NSA and at their own government to the extent they have collaborated. And now Lavabit has shut itself down rather than participate in what it calls "crimes against the American people", and in doing so, has gone to the legal limits in order to tell us all what has happened. There will undoubtedly be more acts inspired by Snowden's initial choice to unravel his own life to make the world aware of what the US government has been doing in the dark.

© 2013 Guardian News and Media

Glenn Greenwald is a columnist on civil liberties and US national security issues for the Guardian. A former constitutional lawyer, he was until 2012 a contributing writer at Salon.  His most recent book is, With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful. His other books include: Great American Hypocrites: Toppling the Big Myths of Republican Politics,  A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism.

When Big Brother Listens

The Surveillance State Is as Strong as Ever

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Posted on Aug 4, 2013

Flickr/jonathan mcintosh

By Bill Blum

Don’t let the acquittal of Army Pfc. Bradley Manning on aiding the enemy charges or the temporary asylumRussia granted to NSA whistle-blower Edward Snowden fool you. With American embassies and diplomatic missions on high alert across the Middle East and North Africa, the surveillance state remains as strong as ever, supported by leaders of both political parties and bolstered by a growing body of constitutional law crafted largely in secret by the federal court that oversees the Foreign Intelligence Surveillance Act. 

This isn’t to minimize Manning’s limited victory or to underestimate the impact of Snowden’s efforts to avoid extradition. Under Section 104 of the Uniform Code of Military Justice, aiding the enemy is the rough equivalent of treason (as defined in Article III of the Constitution). Like treason, it carries a potential death sentence, though in Manning’s case military prosecutors sought only a life term.

Still, Manning faces up to 136 years in prison after being convicted on 19 other charges, including six violations of the Espionage Act of 1917. In all likelihood, his sentence will be less than that, but he’ll still probably spend decades behind bars. A similar fate no doubt awaits Snowden should he one day fall out of favor with his Russian hosts and be returned to the U.S.

The harsh treatment of whistle-blowers will likely continue into the foreseeable future in pace with the needs and expansion of the surveillance state itself. In the aftermath of last month’s defeat of a proposed amendment to the Patriot Act that would have placed new limits on the National Security Agency’s ability to track phone records, there is little on the political horizon to halt the expansion.

Legally too the avenues for challenging the surveillance state are dwindling under the authority of the Foreign Intelligence Surveillance Court. Established in 1978, the court is a unique judicial body, consisting of 11 U.S. District Court judges appointed to serve staggered seven-year terms by the chief justice of the Supreme Court without Senate confirmation. All of the surveillance court’s current members were appointed by Chief Justice John Roberts. Ten are Republicans; nearly all have had legal experience working in the executive branch of the federal government or as prosecutors.

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The FISA Court’s hearings are held in secret on an “ex parte” basis without notice to the targets of surveillance, and the tribunal’s orders are classified. Last year, the government filed 1,789 surveillance applications with the court. One application was subsequently withdrawn; all the others were granted, albeit with 40 modifications.

The government can appeal FISA Court decisions (in some instances, an Internet provider objecting to surveillance applications can too) to the FISA Court of Review, a three-judge panel similarly appointed by the chief justice. The Court of Review also conducts its proceedings in secret and has sole discretion to release its rulings to the public. Its decisions can be appealed only to the Supreme Court. None of them, however, have been appealed thus far.

Although the FISA Court and the Court of Review reportedly have prepared more than a dozen substantive rulings over the years, until last week only two highly redacted opinions had been publicly released, both by the Court of Review—In re: Sealed Case, found in the official reports of federal appellate court decisions at 310 F.3d 717 (2002), and In re: Directives, found at 551 F.3d 1004 (2008).

Taken together, the two decisions uphold FISA’s constitutionality and recognize a constitutional doctrine not yet decided on by the Supreme Court—that there is a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. The Directives case, which technically dealt with the Protect America Act that was later repealed and replaced by the FISA Amendment Act of 2008, went even further. It held that notwithstanding a formal foreign intelligence exception to the Fourth Amendment, NSA’s spying operations are constitutionally permissible under a variety of so-called “special needs” cases decided by the Supreme Court that have authorized drug and alcohol testing on high-school students and railroad workers without warrants or probable cause. 

Last week, in a clumsy attempt to allay growing public skepticism about its spying operations, the Obama administration declassified a redacted version of the FISA Court decision that approved the now-infamous order issued last April directing Verizon Business Services to turn over bulk records of all phone calls made inside the U.S. and between the U.S. and abroad to the FBI. The administration also declassified Justice Department legal memos from 2009 and 2011 on the legality of phone record collection. 

Contrary to the administration’s hopes, the released material is anything but encouraging. The decision—written by former FISA Court Judge Roger Vinson, a senior federal District Court judge from Florida who gained notoriety in 2011 for declaring the entire Affordable Care Act unconstitutional—sheds no light on why the bulk collection order issued to Verizon, and presumably duplicated in orders served on other phone companies, was needed to further specific investigations into international terrorism. And the analyses only underscore the questionable legal reasoning previously adopted in the Sealed and Directives cases.

In the meantime, according to Edward Snowden, as reported by journalist Glenn Greenwald of The Guardian, the NSA’s spying techniques have become ever more sophisticated with the implementation of the XKeyscore program, enabling agency analysts to search without prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals. 

In another era, the Supreme Court might have been expected to intervene in the controversy and restore a sensible constitutional balance between the nation’s legitimate need for security and the right of its citizens to privacy under the Fourth Amendment. But this isn’t another era. Just last term, in a 5-4 majority opinion written by Justice Samuel Alito, the high court dismissed a FISA challenge brought by Amnesty International and other human rights groups in the case Clapper v. Amnesty International, reasoning that none of the organizations had suffered actual legal harm, and thus lacked “standing” to sue. 

Whether the present Supreme Court would intervene on the side of privacy were it disposed to get involved is dubious, of course. But one thing remains certain: Unless and until the high court gets involved, our Fourth Amendment rights will continue to be shaped by another court that meets behind locked doors and publishes its rulings only when it sees fit.

So whistle-blowers and everyone else take heed, and welcome to the new era. It looks like it’s here to stay.

un-Constitutional Acts are Classified

File photo, U.S. Capitol building. (photo: file)

Members of Congress Denied Oversight on NSA Surveillance

By Glenn Greenwald, Guardian UK

04 August 13

Documents provided by two House members demonstrate how they are blocked from exercising any oversight over domestic surveillance.

embers of Congress have been repeatedly thwarted when attempting to learn basic information about the National Security Agency (NSA) and the secret FISA court which authorizes its activities, documents provided by two House members demonstrate.

From the beginning of the NSA controversy, the agency's defenders have insisted that Congress is aware of the disclosed programs and exercises robust supervision over them. "These programs are subject to congressional oversight and congressional reauthorization and congressional debate," President Obama said the day after the first story on NSA bulk collection of phone records was published in this space. "And if there are members of Congress who feel differently, then they should speak up."

But members of Congress, including those in Obama's party, have flatly denied knowing about them. On MSNBC on Wednesday night, Sen. Richard Blumenthal (D-Ct) was asked by host Chris Hayes: "How much are you learning about what the government that you are charged with overseeing and holding accountable is doing from the newspaper and how much of this do you know?" The Senator's reply:

The revelations about the magnitude, the scope and scale of these surveillances, the metadata and the invasive actions surveillance of social media Web sites were indeed revelations to me."

But it is not merely that members of Congress are unaware of the very existence of these programs, let alone their capabilities. Beyond that, members who seek out basic information - including about NSA programs they are required to vote on and FISA court (FISC) rulings on the legality of those programs - find that they are unable to obtain it.

Two House members, GOP Rep. Morgan Griffith of Virginia and Democratic Rep. Alan Grayson of Florida, have provided the Guardian with numerous letters and emails documenting their persistent, and unsuccessful, efforts to learn about NSA programs and relevant FISA court rulings.

"If I can't get basic information about these programs, then I'm not able to do my job", Rep. Griffith told me. A practicing lawyer before being elected to Congress, he said that his job includes "making decisions about whether these programs should be funded, but also an oath to safeguard the Constitution and the Bill of Rights, which includes the Fourth Amendment."

Rep. Griffith requested information about the NSA from the House Intelligence Committee six weeks ago, on June 25. He asked for "access to the classified FISA court order(s) referenced on Meet the Press this past weekend": a reference to my raising with host David Gregory the still-secret 2011 86-page ruling from the FISA court that found substantial parts of NSA domestic spying to be in violation of the Fourth Amendment as well as governing surveillance statutes.

In that same June 25 letter, Rep. Griffith also requested the semi-annual FISC "reviews and critiques" of the NSA. He stated the rationale for his request: "I took an oath to uphold the United States Constitution, and I intend to do so."

Almost three weeks later, on July 12, Rep. Griffith requested additional information from the Intelligence Committee based on press accounts he had read aboutYahoo's unsuccessful efforts in court to resist joining the NSA's PRISM program. He specifically wanted to review the arguments made by Yahoo and the DOJ, as well as the FISC's ruling requiring Yahoo to participate in PRISM.

On July 22, he wrote another letter to the Committee seeking information. This time, it was prompted by press reports that that the FISA court had renewed its order compelling Verizon to turn over all phone records to the NSA. Rep. Griffith requested access to that court ruling.

The Congressman received no response to any of his requests. With a House vote looming on whether to defund the NSA's bulk collection program - it was scheduled for July 25 - he felt he needed the information more urgently than ever. He recounted his thinking to me: "How can I responsibly vote on a program I know very little about?"

On July 23, he wrote another letter to the Committee, noting that it had been four weeks since his original request, and several weeks since his subsequent ones. To date, six weeks since he first asked, he still has received no response to any of his requests (the letters sent by Rep. Griffith can be seen here).

"I know many of my constituents will ask about this when I go home," he said, referring to the August recess when many members of Congress meet with those they represent. "Now that I won't get anything until at least September, what am I supposed to tell them? How can I talk about NSA actions I can't learn anything about except from press accounts?"

Congressman Grayson has had very similar experiences, except that he sometimes did receive responses to his requests: negative ones.

On June 19, Grayson wrote to the House Intelligence Committee requesting several documents relating to media accounts about the NSA. Included among them were FISA court opinions directing the collection of telephone records for Americans, as well as documents relating to the PRISM program.

But just over four weeks later, the Chairman of the Committee, GOP Rep. Mike Rogers, wrote to Grayson informing him that his requests had been denied by a Committee "voice vote".

In a follow-up email exchange, a staff member for Grayson wrote to the Chairman, advising him that Congressman Grayson had "discussed the committee's decision with Ranking Member [Dutch] Ruppersberger on the floor last night, and he told the Congressman that he was unaware of any committee action on this matter." Grayson wanted to know how a voice vote denying him access to these documents could have taken place without the knowledge of the ranking member on the Committee, and asked: "can you please share with us the recorded vote, Member-by-Member?" The reply from this Committee was as follows:

Thanks for your inquiry. The full Committee attends Business Meetings. At our July 18, 2013 Business Meeting, there were seven Democrat Members and nine Republican Members in attendance. The transcript is classified."

To date, neither Griffith nor Grayson has received any of the documents they requested. Correspondence between Grayson and the Committee - with names of staff members and email addresses redacted - can be read here.

Denial of access for members of Congress to basic information about the NSA and the FISC appears to be common. Justin Amash, the GOP representative who, along with Democratic Rep. John Conyers, co-sponsored the amendment to ban the NSA's bulk collection of Americans' phone records, told CNN on July 31: "I, as a member of Congress, can't get access to the court opinions. I have to beg for access, and I'm denied it if I - if I make that request."

It is the Intelligence Committees of both the House and Senate that exercise primary oversight over the NSA. But as I noted last week, both Committees are, with the exception of a handful of members, notoriously beholden to the NSA and the intelligence community generally.

Its members typically receive much larger contributions from the defense and surveillance industries than non-Committee members. And the two Committee Chairs - Democrat Dianne Feinstein in the Senate and Republican Mike Rogers in the House - are two of the most steadfast NSA loyalists in Congress. The senior Democrat on the House Committee is ardent NSA defender Dutch Ruppersberger, whose district not only includes NSA headquarters in Fort Meade, but who is also himself the second-largest recipient of defense/intelligence industry cash.

Moreover, even when members of the Intelligence Committee learn of what they believe to be serious abuses by the NSA, they are barred by law from informing the public. Two Democratic Committee members in the Senate, Ron Wyden and Mark Udall,spent years warning Americans that they would be "stunned to learn" of the radical interpretations of secret law the Obama administration had adopted in the secret FISA court to vest themselves with extremist surveillance powers.

Yet the two Senators, prohibited by law from talking about it, concealed what they had discovered. It took Edward Snowden's whistleblowing for Americans to learn what those two Intelligence Committee members were so dramatically warning them about.

Finally, all members of Congress - not just those on the Intelligence Committees - are responsible for making choices about the NSA and for protecting the privacy rights and other Constitutional guarantees of Americans. "I did not take an oath to defer to the Intelligence Committee," Rep. Griffith told me. "My oath is to make informed decisions, and I can't do my job when I can't get even the most basic information about these programs."

In early July, Grayson had staffers distribute to House members several slides published by the Guardian about NSA programs as part of Grayson's efforts to trigger debate in Congress. But, according to one staff member, Grayson's office was quickly told by the House Intelligence Committee that those slides were still classified, despite having been published and discussed in the media, and directed Grayson to cease distribution or discussion of those materials in the House, warning that he could face sanctions if he continued.

It has been widely noted that the supremely rubber-stamping FISA court constitutes NSA "oversight" in name only, and that the Intelligence Committees are captured by the agency and constrained to act even if they were inclined to. Whatever else is true, members of Congress in general clearly know next to nothing about the NSA and the FISA court beyond what they read in the media, and those who try to rectify that are being actively blocked from finding out.