Tag Archives: surveillance

DOJ Overreach in Case Demanding Information on Website Visitors Threatens First, Fourth Amendments

On July 12, the Department of Justice has issued a request to web hosting provider, DreamHost, seeking information on visitors to a website that was used to organize protests against President Trump on Inauguration Day. DreamHost has fought this request because it would amount to handing over 1.3 million visitor IP addresses, contact information and content, in what appears to be a clear threat to freedom of speech and privacy.

The broad search warrant seeks for DreamHost to turnover detailed information, including IP addresses, contact information and financial information of all visitors to the site; DreamHost already complied with the request to turn over the registration information of the owners of the website. The warrant also seeks communications and unpublished content, such as draft posts and photos.

The request will clearly have the effect of chilling freedom of speech and freedom of association. It appears that the Administration is seeking to identify dissidents who oppose President Trump, a clear threat to the First Amendment rights of the website’s visitors. One can only assume that the Administration is using the power of the DOJ to threaten and silence critics of President Trump.

For libraries, who have long championed freedom of speech and association, these reports are particularly appalling. Privacy is essential to the exercise of the First Amendment so that an individual may research, inquire and learn without having the subject of his interests scrutinized by others. Patron privacy has long be a fundamental value of libraries and in a world where so much information is now online, it is critical for protections to extend to visitors to websites. The DOJ’s warrant threatens these central tenants to a free and open democracy.

 

DreamHost is challenging the request, with a hearing scheduled for today. DreamHost argues that the search warrant is overly broad and violates the Fourth Amendment and privacy laws. You can read more at DreamHost’s blog post on the case.

 

ARL Joins 33 Organizations Urging Congressional Oversight of Intelligence Activities

On September 13, 2016, ARL joined in a coalition letter of 33 organizations expressing concerns regarding congressional oversight of intelligence activities.  The letter calls on Congress “to provide a meaningful check on the executive branch and reform how it conducts oversight over intelligence matters.”  The letter calls for a number of reforms to the House Permanent Select Committee on Intelligence and to strengthen Congressional power, including to provide members with sufficient staff assistance.

The letter concludes:

In addition to the above reforms, we urge you to consider establishing a distinct, broad-based review of the activities of the Intelligence Community since 9/11, modeled after the 9/11 Commission or the U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities.

When questions were raised about the activities of the intelligence community in the 1970s, Congress reacted by forming two special committees, colloquially known as the Pike and Church committees. Reports preceded wholesale reforms of the intelligence community, including improving congressional-oversight mechanisms. The outcome improved congressional oversight and the perception of its efficacy. The House should provide the new select committee adequate staffing and financial support, and give it a broad mandate to review practices and structures associated with congressional oversight of intelligence matters.

The full letter can be read here.

ARL Disappointed in Senate’s Passage of Flawed Cybersecurity Bill

On October 27, 2015, the U.S. Senate voted 74-21 to pass the flawed Cyberinformation Sharing Act (CISA), a slightly modified version from the bill that passed the House of Representatives earlier this year.  CISA, which purports to protect against data breaches, actually raises serious privacy concerns.  In passing CISA, the Senate unfortunately voted against a number of proposed amendments which would have strengthened user privacy.

Among other concerns, CISA will allow companies to expand monitoring of their users’ online activities and permits sharing of vaguely defined cybersecurity threats without adequate privacy safeguards.  It authorizes law enforcement that goes far beyond the scope of cybersecurity.

The Senate and House will now need to conference to resolve the differences between the two versions that passed.

 

New Advocacy and Policy Update Available

The latest ARL Advocacy and Policy Update (covering mid-August to the beginning of October) is now available.  Previous Advocacy and Policy Updates can be found here.

From the current update’s summary:

With its return from an August recess, the US Congress faces several controversial must-pass bills and other divisive issues with little time to spare prior to the passage of a short-term funding measure for the US Government as the Government’s fiscal year ended on September 30. A short-term funding bill that will fund the Government through mid-December was approved in lieu of another Government shutdown.

The US Senate continues to press ahead for passage of the Fair Access to Science and Technology Research Act (FASTR), a bill to codify the Office of Science and Technology Policy’s 2013 memorandum regarding public access to federally funded research.

The White House is building a pool of prospective candidates for the Librarian of Congress position. With James Billington’s retirement at the end of September, the White House has been reaching out to stakeholders, including ARL, for their input and recommendations. Legislation has been introduced in the Senate to limit the term of the Librarian of Congress to 10 years.

Copyright has been an active area over the past six weeks. Members of the House Judiciary Committee are poised to introduce several bills regarding the future of the US Copyright Office— determining the office’s authority and whether it will remain in the Library of Congress. This may be the first issue that the House considers as it continues its review of the Copyright Act for possible reform. A court ruled that Warner/Chappell Music does not hold a valid copyright to the “Happy Birthday” song lyrics, and there were two positive fair use decisions in Lenz v. Universal and Katz v. Google. The Library Copyright Alliance filed comments on the Copyright Office Notice of Inquiry on Extended Collective Licensing, and the 1201 Digital Millennium Copyright Act rulemaking is still underway.

ARL participated in a number of amicus briefs on a variety of issues. ARL, the American Library Association, Association of College and Research Libraries, and Chief Officers of State Library Agencies filed an amicus brief in support of the Federal Communications Commission’s Open Internet Order protecting network neutrality. ARL also joined in an amicus brief in the case Wikimedia v. National Security Agency (NSA), challenging warrantless surveillance and invoking the First Amendment’s protection of privacy.

Congress continues to consider reform of the Electronic Communications Privacy Act, or ECPA and there is widespread support in the House for such reform.

The US Supreme Court has agreed to rehear Fisher v. University of Texas at Austin, a case involving the University of Texas (UT) admissions process, which seeks to improve student body diversity.

On the international front, several additional countries have ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, with Canada moving closer to ratification of the treaty. Another meeting took place in late September–early October to finalize the Trans-Pacific Partnership Agreement, a large, regional, trade agreement among 12 countries including Canada and the US. Finally, the “right to be forgotten” online has been upheld in Europe, and French regulators declared that search engines must apply the right to be forgotten across all domains, not just in France or Europe.

ARL Joins Amicus Brief in Surveillance Case, Wikimedia v. NSA

On September 3, 2015, ARL joined an amicus brief with other library associations and bookseller associations in Wikimedia v. NSA, a case that challenges warrantless surveillance.  The amicus brief, authored by the Electronic Frontier Foundation, was also signed on to by the American Booksellers Association, the American Library Association, the Freedom to Read Foundation, and the International Federation of Library Associations and Institutions.

The brief explains that the First Amendment is a broad guarantee that includes the ability to distribute and receive information, and to freely and privately associate.  Libraries have long advocated for and protected patron privacy, and the brief points out the importance of patron confidentiality including in the digital age.

The brief points out that protecting reader privacy is critical:

Providers of books and reading material such as libraries and booksellers are often uniquely positioned to assert readers’ First Amendment rights. Readers change or curtail their reading if they fear government scrutiny of their behavior, especially where the intrusion concerns reading material that is personally embarrassing, politically controversial, or otherwise revealing.

[…]

The resulting inhibition of expressive activity is not hypothetical: patrons care deeply about their intellectual privacy and avoid situations where they cannot preserve it. In Subpoena to Kramerbooks, the D.C. district court found that as a result of a grand jury subpoena for a patron’s book purchases, “[m]any customers have informed Kramerbooks personnel that they will no longer shop at the bookstore because they believed Kramerbooks to have turned documents over . . . that reveal a patron’s choice of books.” 26 Media L. Rep. (BNA) at 1601. Similarly, when the owner of the Tattered Cover bookstore challenged a search warrant for a customer’s purchase history, she testified she received an “‘enormous amount of feedback’ from customers about this case, including over one hundred letters from customers in support of the Tattered Cover’s position.” Tattered Cover, 44 P. 3d at 1050.

Additionally, the brief notes the rise in digital communications and interactions.  It emphasizes that the First Amendment rights apply in the digital world:

Just as libraries and booksellers have standing to challenge law enforcement access to patron records in the physical world so, too, do they have standing to challenge unwarranted access to digital records. Just as government intrusion on the freedom of inquiry causes First Amendment injury in the physical world so, too, does government surveillance cause injury in the digital world . . . By sweeping in and searching vast amounts of Internet traffic, upstream surveillance encroaches on the sensitive interactions between libraries and booksellers and their patrons—interactions that, as shown above, these entities have historically taken great pains to protect.

The full brief can be accessed here.

 

New Advocacy and Policy Update: August 14, 2015

A new ARL Advocacy and Policy Update, covering mid-June to mid-August is now available here.  Prior updates can be accessed here.

The summary and contents from the current Advocacy and Policy Update are reproduced below:

Summary

The US House of Representatives began the summer recess on July 30th, and the US Senate adjourned on August 6th with both reconvening on September 8th. September and October promise to be very busy months as both chambers must act on the FY 2017 appropriations bills, highway trust fund, debt ceiling, and many other issues. It is also hoped that there will be a deal to increase the spending limits under sequestration, which higher education institutions and others have long advocated for.

Much of the activity related to copyright has centered around the Copyright Office. Congressional offices continue to explore and discuss ways to modernize the Copyright Office, including various proposals to move the Copyright Office out of the Library of Congress. Additionally, the Copyright Office has issued notices of inquiries that relate to orphan works, mass digitization, visual works, and extended collective licensing.

There have been positive developments with respect to open access, open educational resources, and open data. The Obama Administration released science and technology priorities for FY 2017, which note that “preserving and improving access to scientific collections, research data, other results of federally funded research, open datasets and open education resources should be a priority for agencies.” The FASTR Bill to enhance public access to research was approved unanimously by the US Senate Committee on Homeland Security and Governmental Affairs.

Privacy and surveillance concerns continue as Congress is considering cybersecurity legislation that raises serious issues for privacy and civil liberties. Litigation around net neutrality is in full swing, with the briefs of telecommunications companies opposing the FCC’s net neutrality rules filed in July.

Finally, ARL continues to promote a simple and quick ratification of the Marrakesh Treaty. Currently, 10 countries have ratified the Treaty, and 10 more are needed for it to enter into force.

Contents

Copyright and Intellectual Property

  • Proposal to “Modernize” the Copyright Office
  • Copyright Office Notice of Inquiry on Visual Works
  • Copyright Office Notice of Inquiry on Mass Digitization and Extended Collective Licensing
  • House Judiciary Committee’s Copyright Review

Open Access, Open Educational Resources, and Open Data

  • Obama Administration Releases Science and Technological Priorities for FY 2017
  • Coalition Calls on White House to Open Up Access to Federally Funded Educational Resources
  • FASTR Bill to Enhance Public Access to Research Approved by US Senate Committee
  • National Technical Information Service (NTIS)

Update Appropriations

Draft Bill Would Eliminate NHPRC

Privacy and Surveillance

  • Cybersecurity Legislation
  • Electronic Communications Privacy Act Reform

Telecommunications

  • Net Neutrality Litigation

International Treaties

  • Trans-Pacific Partnership Agreement
  • Marrakesh Treaty

ARL Applauds Senate on Passage of USA FREEDOM Act

ARL is pleased that the Senate has passed the USA FREEDOM Act, without weakening provisions that protect privacy and civil liberties.  The USA FREEDOM Act prohibits the bulk collection that had been practiced by the National Security Agency and restores essential civil liberties. Passage of this bill is the first step forward in meaningful surveillance reform.  ARL looks forward to working with Congress on continued reforms to protect privacy and civil liberties.

Three Provisions of the PATRIOT Expire; Senate to Vote on USA FREEDOM Act This Week

*Edited to include a link to the Center for Democracy and Technology (CDT) in-depth analysis of Senator McConnell’s proposed amendments to the USA FREEDOM Act*

Today, three key provision of the PATRIOT Act expired, including Section 215, known as the “library records” or “business records” provision.  While the Senate voted 77-17 on late Sunday evening — just hours prior to the midnight expiration of Section 215 and other provisions — to move forward with a vote on the USA FREEDOM Act, a final vote will not come until later this week due to Senate rules requiring additional time for debate.  Senator Paul’s (R-KY) earlier filibuster of the USA FREEDOM Act, which he argued did not go far enough in protecting privacy and civil liberties, delayed the process enough to result in at least temporary sunset of three provisions of the PATRIOT Act.

Section 215 has been used by the National Security Agency (NSA) to conduct mass surveillance, including bulk collection of phone metadata.  The Second Circuit recently ruled that this bulk collection exceeded the authority granted by Section 215.

While the Senate will hold a vote on the USA FREEDOM Act later this week, passage in its current form is not assured.  Majority Leader McConnell (R-KY) has introduced four amendments, all of which would weaken the USA FREEDOM Act.  These amendments would 1) extend the transition period for agency compliance with the USA FREEDOM Act from 6 months to 12 months; 2) replaces the section creating an amicus curiae to the FISA court with one that is less effective; 3) substitute the USA FREEDOM Act in its current form, including a new notice requirement for data retention for companies that intend to retain call detail records for less than 18 months and; 4) substitute the USA FREEDOM Act with all of the above changes and also removes the provision regarding declassification of FISA court opinions.  The third and fourth amendments are complete substitutes of the House-passed version of the USA FREEDOM Act, essentially re-writing the bill with substantial amendments.  CDT has a great in-depth explanation of each amendment here.

Should any of these amendments be accepted, the House of Representatives would need to accept these changes before the bill can be sent to President Obama.  A number of Representatives have already criticized the USA FREEDOM Act as not going far enough to protect privacy and civil liberties and Senator McConnell’s amendments could be rejected in the House.

Efforts to weaken the USA FREEDOM Act, such as those advanced by Senator McConnell, should not be accepted.  The USA FREEDOM Act should be considered to be the bare minimum in a series of reforms to the NSA’s surveillance practices and efforts to change the bill should focus on strengthening, rather than weakening, protections for privacy.  Now that Section 215 and other provisions of the PATRIOT Act have expired, Congress must carefully consider what authorities it wants to grant the NSA and other federal agencies.  Congress is no longer considering extension or reauthorization of existing powers, but will be granting authority to federal agencies once again.  In doing so, ARL urges members of Congress to protect privacy and civil liberties in a meaningful way and ensure that the key protections advanced by the USA FREEDOM Act are not diminished.

ARL Joins Coalition Letter Opposing Two Flawed Surveillance Reform Bills

On Thursday, May 28, 2015, ARL joined a coalition of 51 companies, trade associations and civil society organizations to oppose the FISA Improvements Act of 2015, introduced by Senator Burr (R-NC), and the FISA Reform Act of 2015, introduced by Senator Feinstein (D-CA).  While these bills have been called a “backup plan” if the USA FREEDOM Act is not passed, it is clear that the two bills do not adequately address current surveillance practices and fail to protect privacy and civil liberties.

The letter points out that both bills fail to stop domestic bulk collection and would authorize a government-imposed data retention mandate on private businesses.  It also notes

. . . the FISA Improvements Act would permit domestic bulk collection b leaving unchanged the FISA Pen Register/Trap and Trace law, which was used for years to collect Internet metadata in bulk.  The bill explicitly leaves Section 215 of the PATRIOT Act unchanged for two years, despite recent public assurances by the NSA Director that a transition period longer than 180 days is not necessary.  In addition to this, the bill contains provisions that weaken whistleblower protections, expand surveillance power by granting the FBI The authority to obtain electronic communication transaction records without a court order, and make permanent provisions of the Patriot Act that are currently tied to a sunset date.

The letter concludes:

Section 215 of the PATRIOT Act is set to expire at 12:00am on June 1.  No legislation has passed the Senate, despite a clear demand for surveillance reform.  These proposals are unviable, ineffective and do not offer a path forward.  We strongly urge against consideration of the FISA Improvements Act or the FISA Restoration and Reform Act.

The Center for Democracy and Technology (CDT) has great one-pagers explaining the flaws of Senator Burr’s bill and Senator Feinstein’s bill.

Section 215 “Library Records” Provision Set to Expire on June 1

Last week, Senator Rand Paul (R-KY) engaged in a filibuster designed to stall consideration of a vote on the USA FREEDOM Act as well as Senator McConnell’s bill which would grant a clean reauthorization of certain expiring provisions of the PATRIOT Act, including the controversial Section 215, also known as the “library records” or “business records” provision.  Section 215 has been used by the National Security Agency (NSA) for bulk collection of phone metadata, a program which was recently ruled unlawful by the Court of Appeals for the Second Circuit.

The filibuster had bipartisan support and, due to its timing, could result in expiration of Section 215 which will sunset beginning on June 1.  In the early hours of Saturday, May 23, just before the Senate adjourned, a vote to move forward with the USA FREEDOM Act (a bill which ARL has supported) failed, as did McConnell’s reauthorization bill.  While Senator McConell’s bill initially proposed reauthorization for 5 years, he advanced attempts to reauthorize PATRIOT Act provisions for much shorter periods of two months, eight days, five days, three days and two days, ostensibly to give the Senate more time to craft a compromise on surveillance reform before expiration of Section 215 and other provisions.  Each of these attempts failed.

Senator McConnell is expected to call for another vote on Sunday, May 31, hours before provisions of the PATRIOT Act will expire.  It is unclear whether such a vote would be held for short-term reauthorization or on the USA FREEDOM Act, which fell just three votes shy of the 60 needed for cloture. Passing the USA FREEDOM Act in its current form, which has already been approved by the House of Representatives, is the only option that might completely avoid a sunset of Section 215 and other provisions. Even if Senator McConnell collects enough votes to approve a short-term reauthorization, it does not appear that the House will be able to hold a vote on such reauthorization. Likewise, if any amendments are made to the USA FREEDOM Act, the House would need to vote to approve these amendments. Because the House of Representatives is not scheduled to return until the afternoon of June 1, should a vote be required in the House, Section 215 as well as several other provisions will likely expire, even if it is for just a short period.

Reauthorization following a sunset of Section 215 would be therefore be seen as a new grant of authority rather than extension of existing authority.  Politically, this distinction could be an important one and policymakers must carefully consider whether a new grant of authority to allow broad surveillance practices is warranted and, if so, what privacy and civil liberty protections are in place.  ARL encourages members of Congress to protect privacy and civil liberty and ensure that meaningful reform of current surveillance practices are achieved in any new grants of authority.