Tag Archives: NSA

ARL Opposes Senator McConnell’s Bill to Reauthorize Section 215 “Library Records” Provision

On April 21, 2015, Senate Majority Leader Mitch McConnell (R-KY) and Senate Select Intelligence Committee Chairman Richard Burr introduced S.1035, a bill that would extend Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision, through 2020. The bill would not make any reforms to Section 215 and is a pure reauthorization of this provision that is set to expire on June 1, 2015.

Section 215 has been used by the National Security Agency (NSA) to conduct mass surveillance, including the bulk collection of phone records. ARL, as well as many other organizations, have urged Congress and the Administration to pass reform that protects privacy and civil liberties. Minimum components to meaningful surveillance reform require ending bulk collection practices.

The upcoming expiration of Section 215 provides the opportunity to address the serious infringement on civil liberties caused by mass surveillance. Rather than endorsing and extending these practices for another five years, Congress should end bulk collection of records.

ARL Joins Letters to House and Senate Expressing Concerns Over Cybersecurity Bills

On April 20, 2015, ARL joined a coalition of 36 privacy and civil liberties organizations and 19 security experts and academics raising concerns regarding the Protecting Cyber Networks Act (PCNA, H.R. 1560) and the Cybersecurity Information Sharing Act of 2015 (CISA, S.754).  The letters urge members of Congress to oppose these bills because the proposed legislation, “threatens privacy and civil liberties, and would undermine cybersecurity, rather than enhance it.”

With respect to PCNA, the letter raises the following concerns that the legislation:

  • Authorizes companies to significantly expand monitoring of their users’ online activities and permits sharing of vaguely defined “cyber threat indicators” without adequate privacy protections prior to sharing.
  • Requires federal entities to automatically disseminate to the NSA all cyber threat indicators received, including personal information about individuals.
  • Authorizes overbroad law enforcement that goes far outside the scope of cybersecurity
  • Authorizes companies to deploy invasive countermeasures or “defensive measures.”

The CISA letter raises the same four concerns above, but also raises additional issues that the legislation:

  • Permits companies to share cyber threat indicators, which may include information about innocent individuals, directly with the NSA.
  • Authorizes companies to deploy countermeasures or “defensive measures” that could damage data and computer systems of innocent third parties who did not perpetrate the threat.  The CISA bill would potentially cause greater harm than PCNA with respect to this point because it specifically authorizes “negligent use of defensive measures that could cause significant, though not substantial harm to a third party’s information system.”

 

Recent Developments on UN Special Rapporteurs: copyright policy; privacy in the digital age

There have been two recent developments regarding UN Special Rapporteurs in the last month relevant to issues of copyright and privacy.  First, UN Special Rapporteur in the filed of cultural rights, Farida Shaheed, presented her report on Copyright policy and the right to science and culture to the Human Rights Council on March 11, 2015.  Then, on March 26, 2015, the Human Rights Council voted to establish a new UN Special Rapporteur on the right to privacy in the digital age.  Below are some highlights from Shaheed’s report.

Copyright policy and the right to science and culture

Shaheed’s report on copyright policy contains many positive aspects, specifically emphasizing the importance of access to knowledge and noting the problems that may arise in promoting such access because of high copyright protections.

In discussing copyright policy, the report draws a line between human authors and corporate rights holders, noting that authors may sell their copyright interests to a corporation.  However, corporate rights holders “economic interests do not enjoy the status of human rights.  From the human rights perspective, copyright policy and industry practices must be judged by how well they serve the interests of human authors, as well as the public’s interest in cultural participation.”  Furthermore, “Corporate rights holders with immense financial resources and professional sophistication are typically better positioned to influence copyright policymaking, and may even claim to speak for authors in copyright debates.  Unfortunately, the material interests of corporate rights holders do not always coincide with those of authors.”

Shaheed points to the importance of a balanced copyright system that takes into account limitations and exceptions:

Designing copyright law to promote the material interests of authors requires nuance.  “Stronger” copyright protection does not necessarily advance the material interests of creators.  Exceptions and limitations often support creators’ material interests b offering opportunities for statutory licensing income or the possibility of relying in part on the work of other artists in a new work or performance.  An  appropriate balance is crucial, recognizing the creators are both supported and constrained by copyright rules . . .

[ . . . ]

Copyright exceptions and limitations — defining specific uses that do not require a licence from the copyright holder — constitute a vital part of the balance that copyright law must strike between the interests of rights-holders in exclusive control and the interests of others in cultural participation.  Copyright exceptions and limitations have rarely been the topic of international norm-setting, hence State practice varies significantly.

The report notes that limitations and exceptions can: empower new creativity, expand educational opportunities, and expand non-commercial culture.

Additionally, the report notes that “A human rights perspective . . . requires that the potential of copyright exceptions and limitations to promote inclusion and access to cultural works, especially for disadvantaged groups, be fully explored,” for example the 2013 WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled.

The report also points out that flexible limitations and exceptions can adapt to new circumstances and changing technologies:

A few countries have a more expansive and flexible exception or limitation, commonly referred to as “fair use.”  Such provisions authorize courts to adapt copyright law to permit additional unlicensed uses that comply with general standards of fairness to creators and copyright holders.  For example, the fair use doctrine in the United States encompasses protection for parody and certain educational uses.  It has also been interpreted to permit a search engine to return thumbnail-sized images as part of its search results and to protect technology manufacturers from liability where consumers record a television show to watch later.  Most States do not have such broad and flexible exceptions and limitations; instead each specific type of allowable use is listed in the statute.  While enumerated provisions may provide greater clarity regarding permitted uses, they may also fail to be sufficiently comprehensive and adaptable to new contexts.

Shaheed’s report also discusses the importance of open licensing, such as the Creative Commons license, and notes that “Open access publishing is emerging as a significant alternative model for disseminating scientific knowledge.”

The report also notes the “democratic deficit in international policymaking on copyright,” pointing to the lack of transparency in, for example, the negotiations of the Trans-Pacific Partnership Agreement (TPP).  These discussions happen “without benefit of public participation and debate.”  While Shaheed points out that WIPO treaty negotiations are more transparent, “Regardless of the forum, concern is often expressed that powerful parties may use international rule-making to restrict domestic policy options, advancing private interests at the expense of public welfare or human rights.”

The report concludes with 28 recommendations including, for example:

  • Ensuring that international intellectual property agreements, including trade agreements, are negotiated in a transparent manner.
  • Encouraging states to create limitations and exceptions, including without remuneration “in particular in contexts of income disparity, non-profit efforts, or undercapitalized artists, where a requirement of compensation might stifle efforts to create new works or reach new audiences”
  • Ensuring that exceptions and limitations are not overridden by contracts or impaired by technological protection measures
  • Supporting a WIPO instrument on exceptions and limitations for libraries and education and/or an international fair use provision
  • Promoting open access scholarship and open educational resources, including through government subsidized support (“States should redirect financial support from proprietary publishing models to open publishing models”) and ensuring that public and private universities as well as public research institutions adopt open access, particularly through adoption of Creative Commons licenses
  • Ratifying the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled
  • Providing alternatives to criminal sanctions and blocking of contents/websites for copyright infringement

UN Special Rapporteur on the right to privacy in the digital age

The newly created UN Special Rapporteur on the right to privacy in the digital age was approved by resolution A/HRC/28/L27 and will have an initial 3-year mandate and will “report on alleged violations, wherever they may occur, of the right to privacy, as set out in article 12 of the Universal Declaration of Human Rights and article 17 of the International Covenant on Civil and Political Rights, including in connection with the challenges arising from new technologies, and to draw the attention of the Council and the High Commissioner to situations of particular serious concern.”  The Special Rapporteur will be appointed in June, approximately two years after leaks revealed the mass surveillance and bulk collection practices of the NSA.

 

ARL Joins Broad Coalition Calling for Surveillance Reform

On Wednesday, March 25, 2015, ARL joined a coalition of 47 advocacy groups, technology companies and trade associations in sending a letter to President Obama, Director of National Intelligence James Clapper, Attorney General Eric Holder, Director of National Security Admiral Michael Rogers, and Congressional leadership advocating for significant surveillance reform. Key portions of the PATRIOT Act, including Section 215 (known as the “business records” or “library records” provisions), which has been used as the basis for bulk collection of records, are set to sunset on June 1, 2015.

While these groups hold differing opinions on the best and most appropriate reforms, all came together in agreement that reform must include: 1) Ending bulk collection under Section 215 provision, as well as under Section 214, the provision governing pen registers and trap and trace deices; and 2) Transparency and accountability measures for government and company reporting as well as declassifications of Foreign Intelligence Surveillance Act (FISA) court decisions.

These elements are minimum components to a surveillance reform package. The letter concludes, “It has been nearly two years since the first news stories revealed the scope of the United States’ surveillance and bulk collection activities. Now is the time to take on meaningful legislative privacy, transparency, and accountability.”

Given the quickly approaching June 1 deadline, Congress must move swiftly to pass surveillance reform.   Last November, the U.S. Senate failed to advance the USA FREEDOM Act, falling two votes shy of the necessary 60 votes for cloture, which would have provided meaningful reform to current NSA practices. The Senate version of the USA FREEDOM Act, introduced by Senator Leahy (D-VT) would have ended the current practice of bulk collection of phone records, would have made meaningful reforms to the FISA Court, and included enhanced transparency. ARL urges Congress to act now and pass meaningful reforms, such as those proposed by Senator Leahy’s bill.

USA FREEDOM Act Fails to Advance in Senate

Cross-posted from ARL News

ARL is disappointed that the US Senate failed to advance the USA FREEDOM Act (S. 2685), a bill that would have provided meaningful reform to current National Security Agency (NSA) surveillance practices and protect civil liberties. A November 18, 2014, evening vote on Senate Majority Leader Harry Reid’s (D-NV) cloture motion to proceed with the USA FREEDOM Act fell two votes shy of the necessary 60 votes.

The USA FREEDOM Act, reintroduced by Senate Judiciary Committee Chair Patrick Leahy (D-VT) in July, would have ended the current practice of bulk collection of phone records and prevented bulk collection of other records under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision. Additionally, S. 2685 included several reforms to the Foreign Intelligence Surveillance Court (FISC), such as requiring unclassified summaries of FISC opinions with information necessary to understand the impact on civil liberties and creating a Special Advocate position charged with protecting privacy and civil liberties. Leahy’s bill also included enhanced transparency provisions.

The USA FREEDOM Act had broad support of advocacy groups and technology companies. The bill also gained support from key individuals, including President Obama, Director of National Intelligence James Clapper, and Senate Intelligence Committee Chair Dianne Feinstein (D-CA).

Section 215 of the PATRIOT Act will expire in June 2015 unless the US Congress votes to reauthorize the provision, and a continued fight over this provision is expected. Last year, revelations about the NSA program, including the breadth and scope of bulk collection of data, raised serious concerns regarding curtailment of civil liberties and the compatibility of these programs with the Fourth Amendment to the US Constitution. Even prior to these disclosures, the library community expressed reservations regarding overly broad national security powers and has repeatedly urged for necessary reforms.

While ARL is disappointed that the US Senate failed to address the serious civil liberties concerns raised by NSA surveillance practices and bring the USA FREEDOM Act to a vote, the Association remains hopeful that meaningful reform can still be achieved as the fight over bulk collection of records continues. ARL is grateful to Chairman Leahy for his leadership on NSA reform and looks forward to continuing to work with his and other offices on these important civil liberty issues in the future.

Senate to Vote on Future of USA FREEDOM Act

Today, November 18, 2014, the U.S. Senate is expected to vote on a cloture motion by Majority Leader Harry Reid (D-NV) on the USA FREEDOM Act (S.2685), determining whether the Senate will move forward with a vote on this important piece of legislation. The motion needs sixty votes to proceed to the floor. Senator Leahy (D-VT) re-introduced a new version of the USA FREEDOM Act on July 29, 2014, which includes significant improvements over the version passed in the House (H.R. 3361) in May. Leahy’s bill, which has bipartisan support, provides for meaningful reform and protects civil liberties.

Leahy’s bill would end the current practice of bulk collection of phone records and prevent bulk collection of other records under Section 215 of the PATRIOT Act, also known as the “library records” or “business records” provision. It would also make several reforms to the FISA Court, such as requiring that unclassified summaries of FISC opinions include information necessary to understand the impact on civil liberties and create a Special Advocate position charged with protecting privacy and civil liberties. Leahy’s version of the USA FREEDOM Act also includes enhanced transparency provisions.

ARL, along with a broad coalition of advocacy groups, supports this bill and has called for swift passage of this new version, without any dilution or amendment. The White House has now endorsed the bill, as well.

Senator Leahy’s USA FREEDOM Act represents a significant step forward in reforming NSA surveillance practices. ARL urges the Senate to move forward on the USA FREEDOM Act and pass the bill in its current form.

Senate Majority Leader Reid Moves USA FREEDOM Act One Step Closer

On Wednesday, November 12, 2014, Senate Majority Leader Harry Reid (D-NV) filed a motion for cloture on the USA FREEDOM Act, bringing the legislation one step closer to passage. Senator Patrick Leahy (D-VT) introduced a revised version of the bill in July 2014 which includes significant improvements over the version passed by the House of Representatives (H.R. 3361) on May 22, 2014.

Leahy’s version of the USA FREEDOM Act includes more effective language to end bulk collection and protect civil liberties as well as strengthened oversight and transparency provisions. The bill garnered bipartisan sponsorship and has a long list of supporters, including ARL.

Coalition Calls for Swift Passage of USA FREEDOM Act; Express Concerns Over Cybersecurity Information Sharing Act

On September 4, 2014, the Association of Research Libraries joined a coalition of 43 civil liberties, human rights and public interest organizations sent a letter to Senate leadership supporting swift passage of the USA FREEDOM Act (S. 2685) and expressing concerns regarding the Cybersecurity Information Sharing Act of 2014 (CISA, S. 2588).

The letter urges the Senate to pass the S. 2685 in its current form, noting that this version of the USA FREEDOM Act would end bulk collection of records under Section 215 of the USA PATRIOT Act, a provision known as the “library records” or “business records” provision,” as well as under National Security Letter authorities. As the letter explains, S. 2685 also provides for other significant reforms including enhanced transparency, appointing of a special panel of civil liberties and privacy advocates to the FISA court, and limiting the purpose for which call detail records collected under Section 215 may be used.

Given these improvements, the signatories to the letter are “eager for Congress to pass this legislation swiftly and without weakening the bill.” As these groups previously expressed, Congress should not weaken the USA FREEDOM Act through consideration of new mandatory data retention requirements. The letter urges the Senate to make passage of the USA FREEDOM Act (S.2685) a legislative priority for September.

The letter then notes its opposition to and concerns regarding the CISA, pointing out that “Ironically, just as Congress is struggling to pass meaningful surveillance reform to rein in the NSA, the Senate Select Committee on Intelligence has approved a problematic bill that would give the NSA even more access to American’s data.” Advocacy groups have previously written to Congress and the President opposing CISA because the bill would pose serious threats to privacy by allowing information to automatically be disseminated to the NSA and other government agencies.

The letter concludes:

We therefore urge the Senate to swiftly pass the USA FREEDOM Act (S. 2685) without any amendments that would weaken its protections or create any new data retention mandates, and without taking up the Cybersecurity Information Sharing Act (S. 2588 in its current form. The Senate cannot seriously consider controversial information-sharing legislation such as CISA without first completing the pressing unfinished business of passing meaningful surveillance reform.

Senator Leahy Introduces New Version of USA FREEDOM Act, Includes Significant Improvements Over House Version

On July 29, 2014, Senator Leahy (D-VT) re-introduced a new version of the USA FREEDOM Act, co-sponsored by Senators Lee (R-UT), Durbin (D-IL), Heller (R-NV), Franken (D-MN), Cruz (R-TX), Blumenthal (D-CT), Udall (D-NM), Coons (D-DE), Heinrich (D-NM), Markey (D-MA), Hirono (D-HI), Klobuchar (D-MN), and Whitehouse (D-RI). ARL supports this version, which includes major improvements over the version passed in the House (H.R. 3361) on May 22, 2014, including more effective language to end bulk collection and protect civil liberties and strengthened transparency provisions. ARL has signed on to two letters supporting the new version of the USA FREEDOM Act, including one that focuses on the enhanced transparency provision and one that addresses the bill more comprehensively. Both letters urge Congressional leadership to act swiftly and pass the new version, without any dilution or amendment.

The version that passed the U.S. House of Representatives represented a significantly watered down version after changes were made by the House Rules Committee on the eve of the floor vote on the bill. Although the House passed the bill, half of the original House co-sponsors to the USA FREEDOM Act withdrew their support and opposed the weakened version because it did not go far enough in curtailing the Government’s ability to conduct bulk collection and failed to protect privacy and civil liberties in the same manner as prior versions. Organizations that originally supported the USA FREEDOM Act withdrew support for the House version and urged the Senate to ensure meaningful reform.

Leahy’s version narrowly defines a “specific selection term” in an effort to effectively curb bulk collection. It clearly prohibits the collection of broad swaths of information under Section 215—the provision known as the “business records” or “library records” provision—such as all information related to a broad geographic region (such as a city, state, zip code or area code). It also enhances minimization procedures, requiring the government to delete data it has collected on individuals that are not targets of the investigation or contacts of such individuals and limits the purpose for which call detail records may be generated.

The new version of the bill would also make several reforms to the FISA Court, such as requiring that unclassified summaries of FISC opinions include information necessary to understand the impact on civil liberties. It would also require disclosure of FISC opinions of “new construction or interpretation of the term ‘specific selection term.’” It provides further protections by providing for a Special Advocate position charged with protecting privacy and civil liberties and requires that the Office of the Special Advocate has access to relevant legal precedent and materials necessary to participate in FISC proceedings.

Finally, Leahy’s new version improves on the House version through enhanced transparency provisions. It requires the government to report on the number of U.S. persons whose information was collected and number of searched conducted under Section 215. It reduces the time a company must wait after receiving a FISA order before reporting on it from two years to one year.

A detailed comparison between the House-passed version and Senator Leahy’s new version is available through the Center for Democracy and Technology.

U.S. House of Representatives Passes Amendment to End NSA Backdoor Spying

On June 19, 2014, the U.S. House of Representatives voted 293-123 to pass an amendment to the Defense Appropriations bill to cut funding for NSA backdoor spying under Section 702 of the FISA Amendments. Current NSA practices include the collection of vast amounts of information and, provided that there is a foreign “target,” the NSA can search these collections for communications of U.S. persons, thus providing a “backdoor” method of conducting surveillance on Americans. This Amendment, originally primarily sponsored by Representatives Massie (R-KY), Sensenbrenner (R-WI) and Lofgren (D-CA), would restore Fourth Amendment protections by cutting funding of current NSA practices of conducting these warrantless searches.