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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

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NSA

NSA Database Only for Terrorists? Hardly. Database Used for Years to Track Drug Suspects

Breaking this morning is a story that the DEA uses the databases of other law enforcement agencies, including the NSA’s vast phone and Web databases, to identify potential criminals. Then, when they find someone, they’ll look for a way to search the person without giving away that they used those databases, which they’ve coined “parallel construction.”

Parallel construction is a euphemism made up by the government for conducting an unlawful search and then unlawfully concealing that fact from both the courts and defense attorneys, in violation of the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution, various federal statutes (perjury being the most significant), and the rules of every court. When an illegal search is conducted, it cannot be “made right” by using the bad info and figuring out another way to nab the guy. It’s called using the “fruit of the poisonous tree” and it has been dismissed by every court for about 80 years.

The government will always start its illegal searches with those repulsed by society — terrorists, child pornographers, drug cartel members — and slowly work its way back to “garden variety” criminals. The courts will say, “well, we made it legal for the terrorists, why not for the guy who failed to use his turn signal?” If we don’t stand up for everyone’s rights — even the rights of the most despicable — the rights will be gone for all, and we’ll have deserved it for so easily giving them away. Or instead, we can demand now that the government catch everyone — even terrorists — using investigations that follow the law, followed by a trial that affords them full due process, and only then followed by a jail cell that they justly deserve.

House Votes NOT To Defund NSA Phone Spying

It was close (205-217), but the House of Representatives yesterday voted to allow the NSA to continue to use our tax dollars to spy on us.

Did your Rep vote YES (to defund) or NO (to continue government assholery)? Did you call them to thank them or tell them where to shove it?

Find your Rep: http://www.house.gov/representatives/find/

Find their vote: http://clerk.house.gov/evs/2013/roll412.xml

Make sure you call the Rep’s D.C. office. Not sure what to say on the phone call? Some ideas:

Hello, I’m a constituent in [city name]. I just wanted to express my appreciate that the Rep. voted in favor of defunding the NSA’s domestic phone spying. It is an extremely important issue for me, and will be remembered during election time.

-or-

Hello, I’m a constituent in [city name]. I just wanted to express my shock that my Rep. voted against the defunding of the NSA’s domestic phone spying. It is an extremely important issue for me, and I want to make the Rep.’s office aware that the public is paying attention and that [his/her] re-election is contingent upon being willing to stand up for my rights.

It takes literally 60 seconds to find your Rep and the phone number to call, and another 60 seconds to make the call. I did it today on my lunch break and it took me longer to pay for my check than to make the phone calls. Please take the time!

How Can The Constitutionality of NSA Spying be Challenged? Even the Big Guys Don’t Know.

When the NSA’s domestic spying scandal broke last month, I wanted to sue the NSA so badly. I have standing, I have the legal understanding required to generate a colorable complaint, and I’m genuinely pissed to know that the government has my phone records. But, as I presently have four lawsuits in federal court already, in addition to a day job, I decided I wouldn’t be able to start a fifth without taking time away from the other four.

Instead, I created My NSA Records, a site where you could either request your records under FOIA or send a motion to the FISA court demanding the deletion of your records, the latter of which would be the route I would have used to initiate a court challenge to the spying. Under the FISA court rules, “a party” may move or petition that court and, foolishly for the government, there is no filing fee whatsoever. Were the motion or petition denied, it could be appealed to the FISA Court of Review, and then to the U.S. Supreme Court.

Not so, says the Electronic Privacy Information Center. Apparently interpreting “a party” to mean “a party named in a FISA court order” rather than to mean “anyone” (as I read it), EPIC filed a motion for a writ of mandamus with the U.S. Supreme Court. In it, they argue that the U.S. Supreme Court is the only court that may tame the rogue FISA court, stating that “the rules of the FISC bar EPIC from seeking relief before the FISC” and that “lower federal courts have no jurisdiction to hear EPIC’s appeal.”

Not so, says the American Civil Liberties Union! Their view, apparently, is that challenging the FISA court’s order isn’t necessary. Just challenge the constitutionality of the NSA’s actions, instead of directly challenging the order that allowed for those actions, and you’re good to go in those pesky “lower federal courts.” Their collateral attack on the FISA court order was filed in U.S. District Court for the Southern District of New York.

So, which court really has jurisdiction to stop the NSA? Only time will tell, but one thing is for sure: the NSA is being challenged on every front possible.

“Acquiring a Haystack to Go Looking for a Needle” – EPIC Sues NSA in U.S. Supreme Court

The Electronic Privacy Information Center has filed a petition for a writ of mandamus (in layman’s terms, an order asking a government official to do, or stop doing, something) to overturn the Foreign Intelligence Surveillance Court’s decision to invade the phone records of every American. Accusing the NSA of “acquiring a haystack to go looking for a needle,” EPIC soundly argues that FISA orders for productions have to: 1) relate to, 2) a specific, authorized, 3) foreign investigation, and that the NSA cannot meet any of those three points.

Since the FISA court is not an “inferior” court to the U.S. District Courts or U.S. Courts of Appeals, EPIC filed their petition directly with the U.S. Supreme Court, s it is the only court that directly (by Constitutional decree) has oversight.

Full petition:

In Re: EPIC (.pdf)

An Open Letter to the @NYPost: Snowden is a Hero, Not a Traitor

We’re currently running a fundraiser for 1985, peer-to-peer phone call encryption that will prevent NSA spying on your “metadata.” We’re also running My NSA Records, a site to generate a free request to send you your NSA records (or delete them!).


nypostsucks1The New York Post has persisted in running covers condemning whistleblower Edward Snowden as a man who has betrayed America. If by “America” they mean “the government of the United States while engaged in a a sneaky, immoral, and illegal program designed to spy on its citizens,” then perhaps they are right. But if they mean “America” as in “the people of the United States,” they are dead wrong.

On June 12th, 2013, the Post ran a cover with the headline “Plug The Leak: Traitor Could Get Life.” This was before Snowden had been charged with any crime, and still today he has not been charged with treason. Today’s headline is “Comrades – Vlad [Putin] harbors spy as US fumes.” Snowden also has not been charged with, nor can his actions reasonably be construed to be, “spying.” Why the Post has decided to take a position on the matter at all (let alone such an absurd position), rather than simply reporting the news, is a mystery to me. Perhaps they simply prefer to be inflammatory.

Allow me to break down the argument advanced by those in favor of tarring and feathering the man who revealed the biggest invasion on the privacy of American citizens by its own government in history:

  1. The collection of phone records and PRISM data was not illegal. Incorrect. The only court to approve of this spying is the secretive Foreign Intelligence Surveillance Court. Their decision has never been reviewed by the U.S. Supreme Court (it is, after all, difficult to appeal an order that was kept secret!), and if it were (or really, when it is), it would likely be struck down on at least two grounds: a) The NSA, a part of the U.S. military, is only allowed to monitor foreign intelligence, but the phone records order specifically addressed domestic communications, and b) the order constituted a “general warrant” that requested the records of no less than 100 million Americans, presumably 99.99 million+ of which are not under suspicion. Arguments that “Congress authorized this” are dead wrong. Diane Feinstein may have supported the move, but as far as legislation rather than the opinion of a loud-mouthed Senator, even the Patriot Act does not authorize this under any reasonable reading.
     
  2. nypostsucks1There are better ways he could have blown the whistle. Wrong. At least three men before them tried blowing the whistle using official channels. Thomas Drake, William Binney and J. Kirk Wiebe all did what the Post would consider “responsible” whistleblowing. Drake was prosecuted, Binney and Wiebe had their houses raided by FBI SWAT teams, all three men lost their security clearances, and all of their stories were swept under the rug. Not quite change we can believe in.
     
  3. Snowden is a coward for fleeing. He probably wats to collaborate with our enemies, Russia and China. Really? First, regarding leaving the country, had he not, he’d presently be receiving the same treatment Bradley Manning received: sleeping naked in solitary confinement and permanently silenced. That’s not a noble way to advance a cause — that’s sheer stupidity. Second, regarding his choice of where to go, he can’t exactly enjoy a spot of tea in London or currywurst in Berlin: most of the world would bow to the U.S. and extradite him on these purely political charges. Hong Kong and Moscow are two places where he has a chance. Third, our enemies? China is our biggest trading partner, and the idea that Russia presents a threat to us reflects a mindset several decades in the past. If you want to talk about our enemies, you’ll need to look to the middle east at the people who are less than enthusiastic about us because we bomb the shit out of them. Finally, there is zero evidence that he intends to assist any foreign power. Let’s all be aware that the government is going to attempt to portray him in the most unfavorable light possible. We don’t need to buy into it.
     
  4. He aided the terrorists — there’s a reason these programs were secret! No. Any legitimate terrorist already knew that their communications would be intercepted as they travel through America. “Real terrorists” use sophisticated encryption and private forums when their “work” requires being on the grid. These programs were only “secret” from Americans who did not want to believe that their government would do such a thing, and the “reason these programs were secret” is that if the public found out about them, there would be outrage.

Edward Snowden risked his life to expose an ongoing governmental disgrace of epic proportions; an abuse directed squarely at the citizens who are forced to finance its continued operation and now, forced to finance political persecution. Over 100,000 Americans have signed the White House petition demanding that President Obama pardon Snowden and referring to him as a “national hero.” It is time that the Post also recognize the sacrifice he has made and that the evil here was not the release of documents, but what was contained in those documents.

I Called My Representatives… Here’s What They Had to Say About the NSA

I spent some time this afternoon calling my representatives with this simple question:

Hi, my name is Jon Corbett, I’m a constituent in Miami and I’d like to know what the [Rep./Sen.] is doing to restrict the NSA’s collection of the phone records of Americans.

Here are the responses I got:

  • Rep. Ileana Ros-Lehtinen (R-FL) – I called the D.C. Office at (202) 225-3931 and my call was immediately answered by a live person. The Representative has not come out with a position on the issue. I pressed that 2 weeks after the occurrance of one of the biggest scandals in recent years, that it would be shocking that the Rep. has not yet come out with an opinion. The woman on the phone apologized and said she had no further information. She took my address and recorded my position.
  • Sen. Marco Rubio (R-FL) – I called the D.C. Office at (202) 224-3041. My first call got a “we’re busy” message, and an immediate re-dial got me a live person. The friendly young man on the other end assured me that the Senator was outraged over the domestic spying and had press releases on his Web site. I walked through the Web site with him, and there are a ton of press releases, but almost all of them are on immigration. I clarified for the phone rep that while immigration is important, as a U.S. Citizen, protecting my constitutional rights is more important to me. The man told me that there will be a public statement on the site soon and I could check YouTube. He took my area code and recorded my position. I took to YouTube and found this interview — the tl;dw version is that the Sen. feels that releasing more information about the program would make Americans comfortable with it.
  • Sen. Bill Nelson (D-FL) – I called the D.C. Office at (202) 224-5274. My first 3 calls got a “we’re busy” message. I called the Miami office, and they told me I needed to try D.C. I tried D.C. about half a dozen more times and finally got through. I was told that the Senator has not taken a position on the issue. I pressed like I did with Rep. Illeana, and was told that the phone rep was not authorized to speak on the matter. She took my ZIP code and recorded my position.

So there you have it. Two out of three don’t really care, and the third flip-flops on the issue (no, Sen. Rubio, the problem is not that I have insufficient information, the problem is that the NSA has too much information). Perhaps they don’t care because not enough people have called them. Let’s work on that. 🙂

Find Your Congressperson here, find your Senators there. Give them a call at their D.C. offices, use the script above or make up your own, and make sure they record your position.

How to File a Motion with the Foreign Intelligence Surveillance Court

I’ve been working on a project called My NSA Records, a Web site designed to allow you to either request a copy of your phone records that the NSA has captured or request of the FISA Court that the records be ordered deleted. We had a huge opening day, gathering over 500 such requests within 24 hours.

The first of the FOIA/Privacy Act requests (to get a copy of your records) were mailed on Sunday, but I had a problem with the motions (to request deletion): I couldn’t find the address of the clerk of the FISA court. More research uncovered the following deep within the court’s rules:

A party may obtain instructions for making submissions permitted under the Act and these Rules by contacting the Clerk at (202) 357-6250.

FISA Ct. Rule 7(k)

Ok, so for whatever reason, the court doesn’t publish its address. I’ll just give them a call and they’ll provide it, right? Well, calling that phone number leads to an answering machine with a terse greeting: “You have reached the Foreign Intelligence Surveillance Court. Please leave a message.”

I left a message, which was returned the next day. However, the nice-sounding woman on the other end of the phone call didn’t provide me an address. “You’ll need to contact Christine Gunning to arrange to mail your documents.” I asked if this woman was a representative of the clerk’s office, and I was told, “No.” Well then who is she? “She works for the Department of Justice.”

So, there you have it. In another stunning failure to separate powers, in order to file paperwork with the judicial branch, you’re required to go through the executive branch. Ms. Gunning, a DoJ veteran that, based on some brief research frequently works on cases involving classified information, informed me that she would accept for papers for filing with the FISA court (as well as accept service on behalf of the government) sent to her attention at:

2 Constitution Sq.
145 N St. NE, Ste. 2W-115
Washington, DC 20530

In summary, if you’d like to move the FISA court:

  1. Read the rules
  2. Draft your motion
  3. Mail to Christine

There appears to be no filing fee, so if you’re upset with a FISA court decision that affects you, go for it.

Request Your NSA Records… or Request the NSA Delete Your Records

We’re currently running a fundraiser for 1985, peer-to-peer phone call encryption that will prevent NSA spying on your “metadata.” Please take a look, share with your friends, and donate if you can!


So the NSA has collected information on you, eh? Assembled some records have they? Excellent, now their records are subject to Freedom of Information Act requests (for records in general held by a government agency) as well as Privacy Act requests (for records relating specifically to the requestor). I’ve started a new site to make the process quick and pain free — please check out: My NSA Records.

Will the government respond? Probably not, or if they do, probably to tell you to f’ off. But picture the FOIA department at the NSA sitting with a desk full of thousands upon thousands of FOIA request. Now *there’s* a protest.

Help Support 1985: Peer-to-Peer Encrypted Phone Calls to Avoid NSA Wiretapping

I just launched a fundraising campaing for a new project of mine called 1985. 1985 is an Internet protocol and soon-to-be a mobile application that uses peer-to-peer encryption and relaying to accomplish anonynimity for phone calls from cell phones. In order to build the app, we need funding, so we created an Indiegogo campaign for it.

If hearing that the NSA has collected your phone records for years makes you outraged and you’re looking for something you can do, please contribute if you can and share on Facebook, by e-mail, etc. etc. etc.:

Fundraising Page:
http://www.indiegogo.com/projects/1985-peer-to-peer-encrypted-phone-calls-to-avoid-nsa-wiretapping/

Official Web Site:
http://www.1985phone.com/

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