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US views on NSA, PRISM & FISA

US views on NSA, PRISM & FISA

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On 7 June 2013, the British newspaper, the Guardian, published a story by Glenn Greenwald and Ewen MacAskill about Edward Snowden, a former contractor at the US National Security Agency (NSA). The PRISM program can tap into user data from all over the world from internet service providers, following approval of the Foreign Intelligence Surveillance Act (FISA) court. The Washington Post followed up with an article the following day, explaining how the system works. The discussion in European press and in the European Parliament (plenary debate on 11 June 2013), centers around concerns over data protection and right to privacy. In the US, Feinstein and Chambliss, leaders of the Senate Intelligence Committee, even though they supported hearings on the Government’s data collection, maintained that “detailed information has been made available to all members of Congress prior to each congressional reauthorization of this law”(FISA). If you would like to know more about the working of the FISA Courts, have a look at the Congressional Research Service’s study: Disclosure of FISA Opinions—Select Legal Issues, 24 February 2014
Later in June, Marc A. Thiessenpublished an article in the Washington Post: Yes, publishing NSA secrets is a crime, explaining that “Greenwald’s crime is violating 18 USC § 798, which makes it a criminal act to publish classified information revealing government cryptography or communications intelligence.
In October 2013, Senator Feinstein acknowledged that the Senate Intelligence Committee “was not satisfactorily informed” concerning the extensive use of Executive Order 12333 (United States intelligence activities) and that she was totally opposed to collecting intelligence on US allies. She has also introduced the FISA improvements act (meant to improve privacy and transparency) that was adopted in Committee later in October. However, during a House hearing on the NSA Programs on29 October, the Intelligence Chair Rogers said that the collection of intelligence to protect Americans and allies from terrorism was an important task. The same day Senate Judiciary Committee Chair Leahy and Congressman Sensenbrenner introduced the bipartisan USA FREEDOM Act with the aim of increasing congressional oversight. However, there is a division in both parties concerning surveillance politics in general and the NSA policy in particular.

In an interview with MSBNC on 5 December 2013, President Obama said that he would propose reforms of the NSA to prevent privacy violations of American citizens. This announcement came the same day as the Washington Post published an article about the NSA’s daily gathering of five billion cell phone records. On 12 December 2013, the President’s Review Group on Intelligence and Communications Technologies, presented their recommendations, trying to combine national security and civil liberties, which caused divergent reactions and was criticised by civil right organisations such as Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU). On 17 January 2014, the President issued a revised presidential policy directive (PPD-28) for the collection of signal intelligence and on 23 January 2014, the Privacy and Civil Liberties Oversight Board (PCLOB), published its 238 page report on the collection of telephone calls and on the operations of the FISA Court.
At a press conference in February 2014, Presdident Obama said there was no country where the United States has a no-spy agreement, including the so-called “Five Eyes,”(US, Canada, United Kingdom, Australia and New Zealand). This may be seen as a comment on European requests made in 2013

Concerning this issue, the US District Court for the District of Columbia ruled (Klayman v. Obama, 16 December2013) ruled in favour of the plaintiff, but an appeal was filed on 3 January 2014 by the Department of Justice. This decision is at odds with a U.S. District Court for the Southern District of New York ruling on 27 December 2013 on the issue (Am. Civil Liberties Union v. Clapper, where ACLU’s motion was dismissed, but appealed by ACLU. On 3 February 2014 Larry Klayman sent a petition for a writ of certiorari before judgment to the Supreme Court (this asked the Court to immediately review the decision of a US District Court, a request that is very seldom granted) 

Overviews

EP sources

The European Parliament, after the the revelations of the activities of the National Security Agency’s activities in Europe, decided to set up an inquiry. In the adopted text, the Parliament not only called for the suspension of the two data-sharing agreements (Safe Harbour and Swift) but also threatened to block the TTIP

The US surveillance programmes and their impact on EU citizens’ fundamental rights / Mr Caspar BOWDEN, Didier BIGO, Policy Department Citizens’ Rights and Constitutional Affairs, Sep. 2013
In light of the recent PRISM-related revelations, this briefing note analyzes the impact of US surveillance programmes on European citizens’ rights. The note explores the scope of surveillance that can be carried out under the US FISA Amendments Act 2008, and related practices of the US authorities which have very strong implications for EU data sovereignty and the protection of European citizens’ rights

Key Sources on: EU-US cooperation in Justice and Home Affairs, US Cybersecurity and PNR – Passenger Name Record

Library briefing on The EU-US safe harbour agreement / by Nic Copeland, Nic, 2012.

Federation of American Scientists collection of documents on the Foreign Intelligence Surveillance Act

European Commission DG HOME: Cooperation with the United States

European Parliament Liaison Office in Washington

New Internet Privacy Legislation: What the White House, Federal Trade Commission and the European Commission are Recommending / Christian MAURIN DE FARIÑA, David WAYNE, intern, European Parliament Liaison Office with the US Congress, 22 May 2012

EP Policy Department

The extraterritorial effects of legislation and policies in the EU and US / FROSINI, Justin, 16 May 2012
There is a general principle in international law that one state cannot take measures on the territory of another state by means of enforcement of national laws without the consent of the latter. It is possible – however – to observe a recent trend of a growing number of laws that aim to produce a legislative effect in third countries. The nature of the extraterritorial measures at stake and the interests involved have determined the intensity of protests against those measures, by businesses and legislators. This study explores the legal principles that sit behind extraterritoriality, and how such measures have come to be justified. It also examines how those enacting extraterritorial laws have sought to use mostly economic and diplomatic levers to seek compliance from third countries and entities registered in third countries. Finally, this study explores the impact extraterritoriality has had on the businesses and governments affected by it and outlines the defensive measures that can be taken to protect against the reach of such laws

News, Analysis and Opinion from POLITICO on NSA & PRISM

Analysis

Looking outside the prism: how safe are data transfers? / Gail Crawford, Fiona Maclean, Privacy & Data Protection Volume 14, Issue 2
Methods of data transfer outside the EEA The vast majority of large global businesses use the European Commission’s standard contractual clauses, commonly known as the ‘Model Clauses’, for the transfer of personal data to third countries or, in relation to transfers to US companies that are members of the US Safe Harbor programme, rely on that company’s Safe Harbor certification

Diplomatic Fallout: Three Good Reasons for the U.S. to Spy on Germany / By Richard Gowan, World Politics Review on 28 Oct 2013
““The Chinese,” they wrote, “increasingly see Germany as their most reliable partner in the West, not just on economic issues but also on strategic issues.” The idea of a Berlin-Beijing axis is probably a chimera. But if it is even a faint prospect, U.S. spy agencies will want to know about it”

The aftermath of the PRISM program and its wider impact / e-commerce law & policy 2013, 15(8), 3-
In light of recent revelations regarding the apparent collection of European citizen data by US intelligence services via the USA Patriot Act and the PRISM program, May, alongside Annabelle Carton, revisit this issue and discuss the options for businesses now looking to reduce the risk of intrusion, as well as at how the European Commission may respond through the upcoming Data Protection Regulation

Privacy paradox(es): in search of a transatlantic data protection standard ; Symposium: The Second Wave of Global Privacy Protection / Bartosz M. Marcinkowski, Ohio State Law Journal, 2013, 74 Ohio St. L.J. 1167 (avalable in Westlaw)

USA-EU Safe Harbor Framework: a bridge to the future…or past? / Damon Greer, data protection law & policy, 2013, 10(7), 6-8
The transatlantic data transfer landscape is changing; Binding Corporate Rules are on the rise and Safe Harbor has recently been called into question in light of the revelations that the National Security Agency has carried out extensive eavesdropping under authority of the Foreign Intelligence Surveillance Act (FISA) court in the USA. In part pne of this feature, Damon Greer, Director of the USA-EU and Swiss Safe Harbor Frameworks from July 2006 to September 2011, addresses concerns over Safe Harbor’s adequate level of protection and explores the dialogue that has led to this point.

Strategic Horizons: Transparency and American Security / by Steven Metz, World Politics Review on 26 Jun 2013

Datenüberwachung Der große Staubsauger / von Markus Wehner, FAS, 16 Juni 2013
Die Amerikaner sind uns in der Kontrolle des digitalen Datenverkehrs weit voraus. Deutschland ist auf ihre Informationen angewiesen. Will das Land unabhängig werden, muss es aufrüsten.

Counterterrorism cooperation in the transatlantic security community / Andrew L. Porter and Annegret Bendiek, May 2012, European Security, pp. 1-21
The transatlantic security community has suffered routine criticism in the aftermath of 9/11. Drawing on the idea that community membership enhances norm convergence, this article examines the process of norm convergence in EU–US counterterrorism cooperation. We argue that the recent EU–US agreements on Passenger Name Records and the Terrorist Finance Tracking Programme represent a form of cooperation, that is, the convergence of values, which is essential for late-stage security community integration.

Practising homeland security across the Atlantic: practical learning and policy convergence in Europe and North America / Ruben Zaiotti, European Security, April 2012, pp. 328-346 (click on IP recognition)
Despite different traditions, interests and perceptions characterizing North American and European approaches to homeland security, since 9/11 policymakers across the Atlantic have formulated increasingly similar policies to deal with terrorism and other international security threats.

An den Grenzen des Rechtsstaates: EU-USA-Terrorismusbekämpfung / SWP = Stiftung Wissenschaft Politik:SWP-Studien 2011/S 03, Februar 2011, 24 Seiten

Anything But SWIFT: Why Data Sharing is Still a Problem for the EU / By Edna Dretzka and Stormy-Annika Mildner, American Institute For Contemporary German Studies Issue Brief #35 (2010).

European and United States Counter-Terrorism Policies, the Rule of Law and Human Rights / SCHEININ, Martin, EUI RSCAS PP; 2011/03
Abstract: On 15 March 2011 the Global Governance Programme at the EUI hosted a High-Level Policy Seminar (HLPS) on “European and United States Counter-Terrorism Policies, the Rule of Law and Human Rights”. The first part of the event consisted of a transatlantic dialogue on legal issues in the fight against terrorism, with addresses by the Legal Adviser of the US Department of State, Harold Hongju Koh and the EU Counter-Terrorism Coordinator, Gilles de Kerchove. The second part of the HLPS consisted of focused discussions introduced by academics and clustered around four big themes: terrorist blacklisting, definitions of terrorism, detention, trial and the role of criminal law in the fight against terrorism, and finally the positions of the EU and the US in relation to counter-terrorism and the role of Islam

Stakeholder views

White House

President’s comments on the report, 20 Dec. 2013
“And we’ve got to provide more confidence to the international community. In some ways, what has been more challenging is the fact that we do have a lot of laws and checks and balances and safeguards and audits when it comes to making sure that the NSA and other intelligence agencies are not spying on Americans. We’ve had less legal constraint in terms of what we’re doing internationally. But I think part of what’s been interesting about this whole exercise is recognizing that in a virtual world, some of these boundaries don’t matter anymore, and just because we can do something doesn’t mean we necessarily should. And the values that we’ve got as Americans are ones that we have to be willing to apply beyond our borders I think perhaps more systematically than we’ve done in the past.”

Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies / White House, 12 December 2013
Chapter III: Reforming Foreign Intelligence Surveillance Directed at United States Persons — Section 215 (Section 215 of the USA PATRIOT Act of 2001) and the Bulk Collection of Telephony Meta-data — Reforming Foreign Intelligence Surveillance Directed at Non-United States Persons — Foreign Intelligence Surveillance and Section 702 (Title VII, Section 702 of the Foreign Intelligence Surveillance Act (FISA))– Determining What Intelligence Should Be Collected and How — Organizational Reform in Light of Changing Communications Technology — Reforming the FISA Court

Press Briefing By National Security Advisor Tom Donilon / White House Office of the Press Secretary, June 08, 2013

Statement by the President, Fairmont Hotel, San Jose, California, June 07, 2013
Q Mr. President, could you please react to the reports of secret government surveillance of phones and Internet? And can you also assure Americans that the government — your government doesn’t have some massive secret database of all their personal online information and activities?

Director of National Intelligence

Facts on the Collection of Intelligence Pursuant to Section 702 of the Foreign Intelligence Surveillance Act
Director of National Intelligence, June 8, 2013

Federal Trade Commission

U.S. officials respond to EU concerns over Safe Harbor data transfer program / by Stephen Gardner, Bloomberg Privacy & Data Security Law Resource Center, December 16, 2013

US Congress

House

NSA FISA Programs: Committee Links and Documents (Foreign Intelligence Surveillance Court Overview — Oversight of NSA Programs – Checks and Balances in ActionNSA Programs and the Fourth Amendment)

House Committee on the Judiciary holds a Hearing on Recommendations to reform FISA authorities & Transcripts, 4 Feb 2014

Rep. Dutch Ruppersberger (D., Md.) top Democrat on the House intelligence committee called for the end of the National Security Agency’s mass collection of phone records, March 12, 2014

Chairman Mike Rogers: NSA should keep control of its surveillance data, Washington Examiner, 29 Dec. 2013

Hearing NSA Programs HVC-210, 29 Oct 2013

Chairman Mike Rogers and Ranking Member Dutch Ruppersberger Urge Support of Important NSA Counterterrorism Tool, Jul 23, 2013

Joint Statement by House Intelligence Chairman Mike Rogers and Ranking Member C.A. Dutch Ruppersberger
“The collection described with yesterday’s disclosure of a purported court order is consistent with the Foreign Intelligence Surveillance Act (FISA) as passed by Congress, executed by the Executive Branch, and approved by a Federal Court. The FISA business records authorities are used to track foreign intelligence threats and international terrorists

Chairman Rogers’s Opening Statement at the hearing: “How Disclosed NSA Programs Protect Americans, and Why Disclosure Aids Our Adversaries”, Jun 18 2013

NSA surveillance program isn’t the scandal you think it is / Mike Rogers, June 16, 2013

Senate

Hearing: Current and Projected National Security Threats Against the United States, January 29, 2014

Witnesses & Opening Statements
Director of National Intelligence: James R. Clapper (Statement and Archived Video)

Hearing: “The Surveillance Transparency Act of 2013” / Senate Judiciary Committee Subcommittee on Privacy, Technology and the Law DATE: November 13, 2013
Obama Officials Reject Portions Of Surveillance Transparency Bill / Robert S. Litt, General Counsel, Office of the Director of National Intelligence J. Bradford Wiegmann, Deputy Assistant Attorney General, National Security Division, United States Department of Justice Senate Committee on the Judiciary

Hearing: Foreign Intelligence Surveillance Act (FISA) Legislation, September 26, 2013
Panel I
James Clapper, Director of National Intelligence
General Keith Alexander, Director of the National Security Agency
James Cole, Deputy Attorney General

Panel II
Ben Wittes, Brookings Institution
Tim Edgar, Watson Institute for International Studies, Brown University

Feinstein, Chambliss Statement on NSA Phone Records Program, Joint Statement by Senate Intelligence Charieman and Vice Chairman, June 6, 2013
The executive branch’s use of this authority has been briefed extensively to the Senate and House Intelligence and Judiciary Committees, and detailed information has been made available to all members of Congress prior to each congressional reauthorization of this law.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) is chairing a hearing this morning on oversight of the Federal Bureau of Investigation, June 19, 2013
” I remain concerned that we have not yet struck the right balance between the intelligence-gathering needs of the FBI, and the civil liberties and privacy rights of Americans”
“I also firmly believe that we need to maintain close oversight over the broad surveillance authorities contained in the FISA Amendments Act”

Congressional Research Service

NSA Surveillance Leaks: Background and Issues for Congress / John W. Rollins & Edward C. Liu, September 4, 2013
Recent attention concerning National Security Agency (NSA) surveillance pertains to unauthorized disclosures of two different intelligence collection programs. Since these programs were publicly disclosed over the course of two days in June, there has been confusion about what information is being collected and under which authorities the NSA is acting. This report clarifies the differences between the two programs and identifies potential issues that may help Members of Congress assess legislative proposals pertaining to NSA surveillance authorities.

U.S.-EU Cooperation Against Terrorism / John Rollins & Liana Sun Wyler, June 11, 2013
While the U.S. government has maintained substantial long-standing efforts to combat terrorism and transnational crime separately, Congress has been challenged to evaluate whether the existing array of authorities, programs, and resources sufficiently responds to the combined crime-terrorism threat

Reauthorization of the FISA Amendments Act / Edward C. Liu CRS, 8 April 2013
The Foreign Intelligence Surveillance Act (FISA) provides a statutory framework by which government agencies may, when gathering foreign intelligence information, obtain authorization to conduct wiretapping or physical searches, utilize pen registers and trap and trace devices, or access specified business records and other tangible things. Reauthorizations of expiring provisions of FISA have been an annual occurrence in Congress since 2009. Prior to 2012, the legislative debate and reauthorizations largely dealt with three amendments to FISA that are commonly linked to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act). Most recently, in 2011, these three provisions were extended until June 1, 2015. For a more detailed discussion of these three provisions, see CRS Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015, by Edward C. Liu.

NGO and Think Tank views

ACLU (= American Civil Liberties Union) FISA needs oversight, amendment before reauthorization / by Michelle Richardson, legislative counsel at ACLU , The Hill, 6 Dec. 2012

EPIC (=Electronic Privacy Information Center) on Foreign Intelligence Surveillance Act (FISA)

Google Google statement on NSA infiltration

Just Security (an online forum for analysis of U.S. national security law, aiming at promoting principled and pragmatic solutions to national security problems)

Stop Watching Us

Surveillance SelfDefence, a project of the Electronic Frontier Foundation The History of FISA

Brookings PRISM and Boundless Informant: Is NSA Surveillance a Threat? / Richard Lempert, June 13, 2013 “there is little reason for all but a handful of Americans to lose sleep over this, and those most likely to lose sleep are also most likely to pose security threats”

CATO Institute Public More Wary of NSA Surveillance than Pundits Claim / by Emily McClintock Ekins, June 18, 2013

Do the NSA’s Phone and Internet Monitoring Programs Make Sense? / Jeffrey A. Miron, Huffington Post on June 13, 2013.

NSA Surveillance in Perspective / by Roger Pilon and Richard A. Epstein, Chicago Tribune on June 12, 2013.

Council on Foreign Relations U.S. Domestic Surveillance / Jonathan Masters, Deputy Editor, and Greg Bruno, Updated: June 13, 2013

Pew Research Center Public Split over Impact of NSA Leak, But Most Want Snowden Prosecuted, June 17, 2013 “Young People Say Leak Serves Public Interest”

Case law

U.S. District Court for the Southern District of New York ruling 12/27/13 (Am. Civil Liberties Union v. Clapper

US District Court for the District of Columbia ruled (Klayman v. Obama, 12/16/13)

Amnesty v. Clapper – Supreme Court – Opinion, 26 Feb. 2013
In a 5-4 ruling handed down on February 26, 2013, the Supreme Court held the the ACLU plaintiffs don’t have standing to challenge the constitutionality of the warrantless wiretapping program

Amnesty et al. v. Clapper – Legal Documents

50 USCode Chapter 36 – FOREIGN INTELLIGENCE SURVEILLANCE

United States v. United States District Court (the “Keith” case) 407 U.S. 297 (1972), involving a plot to blow up a CIA office (Significance)
The court ruled that the Government, even if national security are at stake, has no authority to spy on US citizens on U.S. soil without a warrant. (Past administrations have maintained that it this is not the case if communications with foreign countries are involved.)

The Story of United States v. United States District Court (Keith): The Surveillance Power / Trevor W. Morrison, New York University School of Law, Columbia Public Law Research Paper No. 08-189, November 20, 2008
“Keith is the Supreme Court’s first and still most important statement on the extent to which the President, acting in the interests of national security, may authorize the warrantless wiretapping or other electronic surveillance of persons within the United States”

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