J. G. Sandom ~ Author

404 — Does "tagging" a car with a GPS device violate 4th Amendment rights? That depends . . .

The question of whether tracking devices deployed by law enforcement agencies comply with the Constitution’s bar on unreasonable searches was addressed in a 2012 Supreme Court decision, which held that installing a GPS device on a suspect’s vehicle constitutes a search as defined by the Fourth Amendment and requires a warrant, according to this story from The New York Times. The majority opinion, written by Justice Antonin Scalia, said that installing the device on a vehicle was akin to trespassing on private property. But it's not that simple. With probable cause and urgent circumstances — a drunken-driving suspect who flees, for instance — the use of this type of device would most likely not constitute an illegal search in the eyes of a court, based on the Supreme Court’s 1967 Warden v. Hayden decision, which upheld the right of law enforcement to enter a home without a warrant when there is probable cause.

A launcher unit in a patrol car’s grille, above, shoots a tracker tag, below, which attaches to the target vehicle. 

A Virtual Alternative to the Hot Pursuit

By PAUL STENQUIST

If StarChase, a maker of GPS-tagging systems for police departments, has its way, cable TV stations will soon be looking for new material to fill slow news days. That’s because the Virginia Beach company has developed a device meant to eliminate the high-risk car chases that draw viewers and seem, inevitably, to end in tears.

StarChase’s innovation is a GPS launcher — a unit that law-enforcement agencies can use to attach a tracking device to a suspected lawbreaker’s vehicle without officers’ having to leave their patrol cars. A vehicle fleeing from the police can then be followed on a computer screen, rather than in a high-speed pursuit, while an interception that does not put others in danger is planned.

The technology is not complex. A launcher powered by compressed air — a weaponized spitball shooter, you might say — is mounted behind the grille of the police car. The launcher is loaded with two cylindrical tracking tags that look like oversize shotgun shells. Each contains a GPS receiver, a cellular transmitter that sends location coordinates every few seconds and a battery. At the front of each tag is an adhesive pad.

Using a control panel inside the police car, an officer fires the tag at a car. A laser assists in aiming the tag; when it makes contact and attaches to the target vehicle, it begins relaying GPS coordinates, heading and vehicle speed to a map display so a police dispatcher can track its course. The police car can fall back and wait for the dispatcher to coordinate a safe intercept.

“Safe” is a key word, because police departments have long been criticized for high-speed pursuits, which often endanger drivers, bystanders and property. Geoffrey P. Alpert, a University of South Carolina professor who researches decision-making by police officers, said in a telephone interview that 35 to 40 percent of police chases end in crashes. According to an F.B.I. Law Enforcement Bulletin of March 2010, police pursuits result in an average of one fatality every day — yet the same report says the majority of pursuits involve nothing more than a traffic violation stop.

The StarChase approach is to track rather than chase, a plan that seems to offer good odds for success: In a 1997 study for the National Institute of Justice, more than 70 percent of apprehended offenders interviewed by Dr. Alpert said they would have slowed if they thought they were no longer being pursued.

A 2013 study of police departments using StarChase, commissioned by StarChase and conducted by Dr. Alpert for the justice institute, added credibility to that research. On average, suspects tracked by StarChase slowed to within 10 m.p.h. of the posted speed limit once the police car dropped back. The apprehension rate was over 80 percent, as compared with about 70 percent in incidents where police pursued aggressively.

“The ’90s data was based on offender interviews, so if police departments didn’t like the numbers, they dismissed them,” Dr. Alpert said. “StarChase gives us scientific data to back up our conjecture about how suspects respond. Now the authorities must admit that if they don’t chase, suspects won’t run.”

The question of whether tracking devices deployed by law enforcement agencies comply with the Constitution’s bar on unreasonable searches was addressed in a 2012 Supreme Court decision, which held that installing a GPS device on a suspect’s vehicle constitutes a search as defined by the Fourth Amendment and requires a warrant. The majority opinion, written by Justice Antonin Scalia, said that installing the device on a vehicle was akin to trespassing on private property. But the decision also said that trespass occurs when there is “physical intrusion.”

StarChase says in its sales materials that the device complies with the Fourth Amendment. Trevor Fischbach, president of StarChase, said in a telephone interview that the GPS module was attached to a car only when there was probable cause, such as when a vehicle was identified as stolen or there was evidence suggesting the driver was intoxicated.

John Wesley Hall, a criminal defense lawyer and Fourth Amendment expert, said in a telephone interview that in his opinion, the argument that the use of a device like StarChase doesn’t involve trespass was not supportable. But, he added, with probable cause and urgent circumstances — a drunken-driving suspect who flees, for instance — the use of this type of device would most likely not constitute an illegal search in the eyes of a court.

Mr. Hall said that intrusion alone doesn’t make it a Fourth Amendment violation when there is probable cause, citing the Supreme Court’s 1967 Warden v. Hayden decision, which, he said, upheld the right of law enforcement to enter a home without a warrant when there is probable cause.

According to Mr. Fischbach, there have been no legal challenges to the StarChase device, but its legality may ultimately be determined on fine points of law.

In any situation that involves surveillance of citizens, there is always the question of whether law-enforcement needs usurp the right to privacy. In this case, Dr. Alpert said, the answer favors StarChase: “Government intrusion here is minimal, and the chance of apprehension is maximized, so I think it’s a very good balance.”

404 — Obama concedes NSA bulk collection of phone data may be unnecessary

In this story from The Guardian, we learn that President Obama may be considering a different way to collect phone metadata on susptected terrorists. It's about time. But he doesn't seem to be softening about a pardon for Snowden, despite all the good the whistleblower's revelations have wrought.

President Barack Obama speaks during a news conference at the White House.

Obama concedes NSA bulk collection of phone data may be unnecessary

• President: 'There may be a better way of skinning the cat'

• 'Potential abuse' of collected data cited as concern

Dan Roberts, Paul Lewis and Spencer Ackerman in Washington

President Barack Obama has conceded that mass collection of private data by the US government may be unnecessary and said there were different ways of “skinning the cat”, which could allow intelligence agencies to keep the country safe without compromising privacy.

In an apparent endorsement of a recommendation by a review panel to shift responsibility for the bulk collection of telephone records away from the National Security Agency and on to the phone companies, the president said change was necessary to restore public confidence.

“In light of the disclosures, it is clear that whatever benefits the configuration of this particular programme may have, may be outweighed by the concerns that people have on its potential abuse,” Obama told an end-of-year White House press conference. “If it that’s the case, there may be a better way of skinning the cat.”

Though insisting he will not make a final decision until January, this is the furthest the president has gone in backing calls to dismantle the programme to collect telephone data, a practice the NSA claims has legal foundation under section 215 of the Patriot Act. This week, a federal judge said the program “very likely” violates the US constitution.

“There are ways we can do this potentially that give people greater assurance that there are checks and balances, sufficient oversight and transparency,” Obama added. â€œProgrammes like 215 could be redesigned in ways that give you the same information when you need it without creating these potentials for abuse. That’s exactly what we should be doing: to evaluate things in a very clear specific way and moving forward on changes. And that’s what I intend to do.”

He promised a meaningful response to a review panel that reported earlier this week, which urged more transparency in surveillance activities. “Just because we can do something it doesn’t mean we necessarily should,” he told reporters at the White House.

The president also went further than his review panel in suggesting the US needed to rein in its overseas surveillance activities. â€œWe have got to provide more confidence to the international community. In a virtual world, some of these boundaries don’t matter any more,” he said. “The values that we have got as Americans are ones that we have to be willing to apply beyond our borders, perhaps more systematically than we have done in the past.”

Obama pointedly declined to be drawn into a debate about possible amnesty for Edward Snowden, the whistleblower whose revelations about the NSA have sparked intense internal deliberation about changing US surveillance activities. The president distinguished between Snowden’s leaks and the debate those leaks prompted, which he said was “an important conversation we needed to have”, but left open the question of whether Snowden should still be prosecuted.

“The way in which these disclosures happened has been damaging to the United States and damaging to our intelligence capabilities,” Obama said. “I think that there was a way for us to have this conversation without that damage. As important and as necessary as this debate has been, it’s important to keep in mind this has done unnecessary damage.”

Ben Wizner, Snowden's attorney, told the Guardian: â€œThe president said that we could have had this important debate without Snowden, but no one seriously believes we would have. And now that a federal court and the president’s own review panel have agreed that the NSA’s activities are illegal and unwise, we should be thanking Snowden, not prosecuting him.”

The president would not comment on a suggestion last weekend by Richard Ledgett, the NSA official investigating the Snowden leaks, that an amnesty might be appropriate in exchange for the return of the data Snowden took from the agency.

Obama said he could not comment specifically because Snowden was “under indictment”, something not previously disclosed. While the Justice Department filed a criminal complaint against Snowden on espionage-related charges in June, there has been no public subsequent indictment, although it is possible one exists under gag order.

The Justice Department referred comment on a Snowden indictment to the White House. Caitlin Hayden, the chief spokeswoman for the White House National Security Council, clarified that Obama was referring to the criminal complaint against Snowden. It remains unclear if there is an indictment under seal. 

Conspicuously, Obama declined to rebut one assessment from his surveillance review group – that the bulk collection of US call data was not essential to stopping a terrorist attack.

Instead, he contended that there had been “no abuse” of the bulk phone data collection. But in 2009, a judge on the secret surveillance court prevented the NSA from searching through its databases of US phone information after discovering “daily violations” resulting from NSA searches of Americans’ phone records without reasonable suspicion of connections to terrorism.

That data was inaccessible to the NSA for almost all of 2009, before the Fisa court was convinced the NSA had sufficient safeguards in place for preventing similar violations.

In another indication of the shifting landscape on surveillance, the telecoms giant AT&T announced on Friday that it will begin publishing a semi-annual report about its complicity with government surveillance requests. AT&T followed its competitor Verizon, which announced a similar move on Thursday.

“We believe clear legal frameworks with accountability and oversight are required to strike the right balance between protecting individual privacy and civil liberties, and protecting the national and personal security, a balance we all desire. We take our responsibility to protect our customers' information and privacy very seriously and pledge to continue to do so to the fullest extent possible,” said AT&T vice-president Wayne Watts.

The first such report is expected for early 2014, Watts said. While technology firms like Yahoo and Google have pushed for greater transparency about providing their customer data to the government, the telecommunications firms – which have cooperated with the NSA since the agency’s 1952 inception – did not join them before the events of the past week.

404 — NSA and GCHQ spied on Israeli PM, EU aid head and foreign energy cos

The NSA is revealed to have spied on the Israeli Prime Minister, plus various EU leaders and various private company heads. Not much new here in this story from The New York Times. Just shows how deep the spying goes, and the kinds of people targeted. Not just goverment: the business elite.

Satellite dishes in Cornwall, England, at an outpost of Britain’s General Communications Headquarters. The agency has worked closely with the United States.

N.S.A. Spied on Allies, Aid Groups and Businesses

By JAMES GLANZ and ANDREW W. LEHREN

Secret documents reveal more than 1,000 targets of American and British surveillance in recent years, including the office of an Israeli prime minister, heads of international aid organizations, foreign energy companies and a European Union official involved in antitrust battles with American technology businesses.

While the names of some political and diplomatic leaders have previously emerged as targets, the newly disclosed intelligence documents provide a much fuller portrait of the spies’ sweeping interests in more than 60 countries.

Britain’s Government Communications Headquarters, working closely with the National Security Agency, monitored the communications of senior European Union officials, foreign leaders including African heads of state and sometimes their family members, directors of United Nations and other relief programs, and officials overseeing oil and finance ministries, according to the documents. In addition to Israel, some targets involved close allies like France and Germany, where tensions have already erupted over recent revelations about spying by the N.S.A.

Details of the surveillance are described in documents from the N.S.A. and Britain’s eavesdropping agency, known as GCHQ, dating from 2008 to 2011. The target lists appear in a set of GCHQ reports that sometimes identify which agency requested the surveillance, but more often do not. The documents were leaked by the former N.S.A. contractor Edward J. Snowden and shared by The New York Times, The Guardian and Der Spiegel.

The reports are spare, technical bulletins produced as the spies, typically working out of British intelligence sites, systematically tapped one international communications link after another, focusing especially on satellite transmissions. The value of each link is gauged, in part, by the number of surveillance targets found to be using it for emails, text messages or phone calls. More than 1,000 targets, which also include people suspected of being terrorists or militants, are in the reports.

It is unclear what the eavesdroppers gleaned. The documents include a few fragmentary transcripts of conversations and messages, but otherwise contain only hints that further information was available elsewhere, possibly in a larger database.

Some condemned the surveillance on Friday as unjustified and improper. “This is not the type of behavior that we expect from strategic partners,” Pia Ahrenkilde Hansen, a spokeswoman for the European Commission, said on the latest revelations of American and British spying in Europe.

Some of the surveillance relates to issues that are being scrutinized by President Obama and a panel he appointed in Washington that on Wednesday recommended tighter limits on the N.S.A., particularly on spying of foreign leaders, especially allies.

The reports show that spies monitored the email traffic of several Israeli officials, including one target identified as “Israeli prime minister,” followed by an email address. The prime minister at the time, in January 2009, was Ehud Olmert. The next month, spies intercepted the email traffic of the Israeli defense minister, Ehud Barak, according to another report. Two Israeli embassies also appear on the target lists.

Mr. Olmert said in a telephone interview on Friday that the email address was used for correspondence with his office, which he said staff members often handled. He added that it was unlikely that any secrets could have been compromised.

“This was an unimpressive target,” Mr. Olmert said. He noted, for example, that his most sensitive discussions with President George W. Bush took place in person. “I would be surprised if there was any attempt by American intelligence in Israel to listen to the prime minister’s lines,” he said.

Mr. Barak, who declined to comment, has said publicly that he used to take it for granted that he was under surveillance.

Despite the close ties between the United States and Israel, the record of mutual spying is long: Israeli spies, including Jonathan Jay Pollard, who was sentenced in 1987 to life in prison for passing intelligence information to Israel, have often operated in the United States, and the United States has often turned the abilities of the N.S.A. against Israel.

Mr. Olmert’s office email was intercepted while he was dealing with fallout from Israel’s military response to rocket attacks from Gaza, but also at a particularly tense time in relations with the United States. The two countries were simultaneously at odds on Israeli preparations to attack Iran’s nuclear program and cooperating on a wave of cyberattacks on Iran’s major nuclear enrichment facility.

A year before the interception of Mr. Olmert’s office email, the documents listed another target, the Institute of Physics at the Hebrew University of Jerusalem, an internationally recognized center for research in atomic and nuclear physics.

Also appearing on the surveillance lists is Joaquín Almunia, vice president of the European Commission, which, among other powers, has oversight of antitrust issues in Europe. The commission has broad authority over local and foreign companies, and it has punished a number of American companies, including Microsoft and Intel, with heavy fines for hampering fair competition. The reports say that spies intercepted Mr. Almunia’s communications in 2008 and 2009.

Mr. Almunia, a Spaniard, assumed direct authority over the commission’s antitrust office in 2010. He has been involved in a three-year standoff with Google over how the company runs its search engine. Competitors of the online giant had complained that it was prioritizing its own search results and using content like travel reviews and ratings from other websites without permission. While pushing for a settlement with Google, Mr. Almunia has warned that the company could face large fines if it does not cooperate.

The surveillance reports do not specify whether the interceptions of Mr. Almunia’s communications were requested by the N.S.A. or British spies. Nor do the reports make clear whether he was a longstanding surveillance target or swept up as part of a fleeting operation. Contacted by The Times, Mr. Almunia said he was “strongly upset” about the spying.

Ms. Hansen, the spokeswoman for the European Commission, said that it was already engaged in talks with the United States that were “needed to restore trust and confidence in the trans-Atlantic relationship.” She added that “the commission will raise these new allegations with U.S. and U.K. authorities.”

In a statement, the N.S.A. denied that it had ever carried out espionage to benefit American businesses.

“We do not use our foreign intelligence capabilities to steal the trade secrets of foreign companies on behalf of — or give intelligence we collect to — U.S. companies to enhance their international competitiveness or increase their bottom line,” said Vanee Vines, an N.S.A. spokeswoman.

But she added that some economic spying was justified by national security needs. “The intelligence community’s efforts to understand economic systems and policies, and monitor anomalous economic activities, are critical to providing policy makers with the information they need to make informed decisions that are in the best interest of our national security,” Ms. Vines said.

Spies have a freer hand with economic targets in Britain, where the law permits intelligence gathering in the service of the “economic well-being” of the country. A GCHQ spokesman said that its policy was not to comment on intelligence matters, but that the agency “takes its obligations under the law very seriously.”

At the request of GCHQ, The Times agreed to withhold some details from the documents because of security concerns.

The surveillance reports show American and British spies’ deep appetite for information. The French companies Total, the oil and gas giant, and Thales, an electronics, logistics and transportation outfit, appear as targets, as do a French ambassador, an “Estonian Skype security team” and the German Embassy in Rwanda.

Germany is especially sensitive about American spying since reports emerged that the agency listened to Chancellor Angela Merkel’s cellphone calls. Negotiations for a proposed agreement between Germany and the United States on spying rules have recently stalled for several reasons, including the United States’ guarantee only that it would never spy on the chancellor — a promise it has refused to extend to other German officials.

Multiple United Nations Missions in Geneva are listed as targets, including Unicef and the United Nations Institute for Disarmament Research. So isMédecins du Monde, a medical relief organization that goes into war-ravaged areas. Leigh Daynes, an executive director of the organization in Britain, responded to news about the surveillance by saying: “There is absolutely no reason for our operations to be secretly monitored.”

More obvious intelligence targets are also listed, though in smaller numbers, including people identified as “Israeli grey arms dealer,” “Taleban ministry of refugee affairs” and “various entities in Beijing.” Some of those included are described as possible members of Al Qaeda, and as suspected extremists or jihadists.

While few if any American citizens appear to be named in the documents, they make clear that some of the intercepted communications either began or ended in the United States and that N.S.A. facilities carried out interceptions around the world in collaboration with their British partners. Some of the interceptions appear to have been made at the Sugar Grove, W.Va., listening post run by the N.S.A. and code-named Timberline, and some are explicitly tied to N.S.A. target lists in the reports.

Many of the reports, written by British teams specializing in Sigint, shorthand for “signals intelligence,” are called “Bude Sigint Development Reports,” referring to a British spy campus on the Cornwall coast. The reports often reveal which countries were the endpoints for the intercepted communications, and information on which satellite was carrying the traffic.

Strengthening the likelihood that full transcripts were taken during the intercepts is the case of Mohamed Ibn Chambas, an official of the Economic Community of West African States, known as Ecowas, a regional initiative of 15 countries that promotes economic and industrial activity. Whether intentionally or through some oversight, when Mr. Chambas’s communications were intercepted in August 2009, dozens of his complete text messages were copied into one of the reports.

Referred to in the transcripts as “Dr. Chambers,” he seems to have been monitored during an especially humdrum day or two of travel. “Am glad yr day was satisfying,” Mr. Chambas texted one acquaintance. “I spent my whole day travelling ... Had to go from Abidjan to Accra to catch a flt to Monrovia ... The usual saga of intra afr.”

Later he recommended a book, “A Colonial History of Northern Ghana,” to the same person. “Interesting and informative,” Mr. Chambas texted. The high point of his day was receiving an award in Liberia, but soon he was busy working out logistics for future appointments.

“Where is the conference pl? Didnt get the invt,” he texted another contact. He discussed further details before adding, perhaps wistfully, given his grinding travel schedule: “Have a restful Sunday.”

Katrin Bennhold contributed reporting from London, David E. Sanger from Washington, and Ethan Bronner from New York.

404 — Advisory panel recommends strong restrictions on NSA mass surveillance . . . but not strong enough

In this fine story from The New York Times, Dave Sanger and Charlie Savage report on the President's advisory group that recently recommended curbing NSA data mining practices. Clarke is the author on one of my favorite books on cyber warfare. That said, these recommendations don't go far enough. I support the Leahy bill, also supported by Wyden and Udall.

Richard A. Clarke, a former national security official, said a new report would reassure the public on shielding civil liberties.

Obama Is Urged to Sharply Curb N.S.A. Data Mining

By DAVID E. SANGER and CHARLIE SAVAGE

WASHINGTON — A panel of outside advisers urged President Obama on Wednesday to impose major oversight and some restrictions on the National Security Agency, arguing that in the past dozen years its powers had been enhanced at the expense of personal privacy.

The panel recommended changes in the way the agency collects the telephone data of Americans, spies on foreign leaders and prepares for cyberattacks abroad.

But the most significant recommendation of the panel of five intelligence and legal experts was that Mr. Obama restructure a program in which the N.S.A. systematically collects logs of all American phone calls — so-called metadata — and a small group of agency officials have the power to authorize the search of an individual’s telephone contacts. Instead, the panel said, the data should remain in the hands of telecommunications companies or a private consortium, and a court order should be necessary each time analysts want to access the information of any individual “for queries and data mining.”

The experts briefed Mr. Obama on Wednesday on their 46 recommendations, and a senior administration official said Mr. Obama was “open to many” of the changes, though he has already rejected one that called for separate leaders for the N.S.A. and its Pentagon cousin, the United States Cyber Command.

If Mr. Obama adopts the majority of the recommendations, it would mark the first major restrictions on the unilateral powers that the N.S.A. has acquired since the Sept. 11 terrorist attacks. They would require far more specific approvals from the courts, far more oversight from the Congress and specific presidential approval for spying on national leaders, especially allies. The agency would also have to give up one of its most potent weapons in cyberconflicts: the ability to insert “back doors” in American hardware or software, a secret way into them to manipulate computers, or to purchase previously unknown flaws in software that it can use to conduct cyberattacks.

“We have identified a series of reforms that are designed to safeguard the privacy and dignity of American citizens, and to promote public trust, while also allowing the intelligence community to do what must be done to respond to genuine threats,” says the report, which Mr. Obama commissioned in August in response to the mounting furor over revelations by Edward J. Snowden, a former N.S.A. contractor, of the agency’s surveillance practices.

It adds, “Free nations must protect themselves, and nations that protect themselves must remain free.”

White House officials said they expected significant resistance to some of the report’s conclusions from the N.S.A. and other intelligence agencies, which have argued that imposing rules that could slow the search for terror suspects could pave the way for another attack. But those intelligence leaders were not present in the Situation Room on Wednesday when Mr. Obama met the authors of the report.

The report’s authors made clear that they were weighing the N.S.A.’s surveillance requirements against other priorities like constitutional protections for privacy and economic considerations for American businesses. The report came just three days after a federal judge in Washington ruled that the bulk collection of telephone data by the government was “almost Orwellian” and a day after Silicon Valley executives complained to Mr. Obama that the N.S.A. programs were undermining American competitiveness in offering cloud services or selling American-made hardware, which is now viewed as tainted.

The report was praised by privacy advocates in Congress and civil-liberties groups as a surprisingly aggressive call for reform.

Senator Ron Wyden, an Oregon Democrat who has been an outspoken critic of N.S.A. surveillance, said it echoed the arguments of the N.S.A.’s skeptics in significant ways, noting that it flatly declared that the phone-logging program had not been necessary in stopping terrorist attacks.

“This has been a big week for the cause of intelligence reform,” he said.

Greg Nojeim of the Center for Democracy and Technology called the report “remarkably strong,” and singled out its call to sharply limit the F.B.I.’s power to obtain business records about someone through a so-called national security letter, which does not involve court oversight.

Anthony Romero, the executive director of the American Civil Liberties Union, while praising the report’s recommendations, questioned “whether the president will have the courage to implement the changes.”

Members of the advisory group said some of the recommendations were intended to provide greater public reassurances about privacy protections rather than to result in any wholesale dismantling of the N.S.A.’s surveillance powers. Richard A. Clarke, a cyberexpert and former national security official under Presidents Bill Clinton and George W. Bush, said the report would give “more reason for the skeptics in the public to believe their civil liberties are being protected.”

Other members included Michael J. Morell, a former deputy director of the C.I.A.; Cass Sunstein, a Harvard Law School professor who ran the office of Information and Regulatory Affairs in the Obama White House; Peter Swire, a privacy law specialist at the Georgia Institute of Technology; and Geoffrey R. Stone, a constitutional law specialist at the University of Chicago Law School, where Mr. Obama once taught.

Mr. Obama is expected to take the report to Hawaii on his vacation that starts this week and announce decisions when he returns in early January. Some of the report’s proposals could be ordered by Mr. Obama alone, while others would require legislation from Congress, including changes to how judges are appointed to the Foreign Intelligence Surveillance Court.

Senator Rand Paul, Republican of Kentucky, said he was skeptical that any changes passed by Congress would go far enough. “It gives me optimism that it won’t be completely brushed under the rug,” he said. “However, I’ve been here long enough to know that in all likelihood when there’s a problem, you get window dressing.”

The FISA court, which oversees national security surveillance inside the United States, has been criticized because it hears arguments only from the Justice Department without adversarial lawyers to raise opposing views, and because Chief Justice John G. Roberts Jr. has unilateral power to select its members. Echoing proposals already floated in congressional hearings and elsewhere, the advisory group backs the view that there should be a “public interest advocate to represent the interests of privacy and civil liberties” in classified arguments before the court. It also says the power to select judges for the surveillance court should be distributed among all the Supreme Court justices.

In backing a restructuring of the N.S.A.’s program that is systematically collecting and storing logs of all Americans’ phone calls, the advisers went further than some of the agency’s backers in Congress, who would make only cosmetic changes to it, but stopped short of calling for the program to be shut down, as its critics have urged. The N.S.A. uses the telephone data to search for links between people in an effort to identify hidden associates of terrorism suspects, but the report says it “was not essential to preventing attacks.”

Currently, the government obtains orders from the surveillance court every 90 days that require all the phone companies to give their customers’ data to the N.S.A., which commingles the records from every company and stores it for five years. A small group of analysts may query the database — examining records of everyone who is linked by up to three degrees of separation from a suspect — if the analyst has “reasonable, articulable suspicion” that the original person being examined is linked to terrorism.

Under the new system proposed by the review group, such records would stay in private hands — either scattered among the phone companies or pooled into some kind of private consortium. The N.S.A. would need to make the case to the surveillance court that it has met the standard of suspicion — and get a judge’s order — every time it wanted to perform such “link analysis.”

“In our view, the current storage by the government of bulk metadata creates potential risks to public trust, personal privacy, and civil liberty,” the report said.

The report recommended new privacy protections for the disclosure of personal information about non-Americans among agencies or to the public. The change would extend to foreigners essentially the same protections that citizens have under the Privacy Act of 1974 — a way of assuring foreign countries that their own citizens, if targeted for surveillance, will enjoy at least some protections under American law.

It also said the United States should get out of the business of secretly buying or searching for flaws in common computer programs and using them for mounting cyberattacks. That technique, using what are called zero-day flaws, so named because they are used with zero days of warning that the flaw exists, were crucial to the cyberattacks that the United States and Israel launched on Iran in an effort to slow its nuclear program. The advisers said that the information should be turned over to software manufacturers to have the mistakes fixed, rather than exploited.

Regarding spying on foreign leaders, the report urged that the issue be taken out the hands of the intelligence agencies and put into the hands of policy makers.

Jeremy W. Peters contributed reporting.

404 — Tech executives to Obama: NSA spying revelations are hurting business

The same tech companies that were behind Obama during his elections are now asking why are you hacking us! Here is more data that NSA domestic bulk surveillance is undermining American business interests, according to this story in The Washington Post.

President Obama vice-president Joe Biden meet with executives from leading tech companies at the White House.

Tech executives to Obama: NSA spying revelations are hurting business

By Cecilia Kang and Ellen Nakashima

Leaders of the nation’s biggest technology firms warned President Obama during a lengthy meeting at the White House on Tuesday that National Security Agency spying programs are damaging their reputations and could harm the broader economy.

Cisco Systems has said it is seeing customers, especially overseas, back away from American-branded technology after documents revealed that the NSA enlisted tech firms and secretly tapped into their data hubs around the world as the agency pursued terrorism suspects. Companies such as IBM, AT&T and Verizon Communications are facing angry shareholders, some of whom have filed lawsuits demanding that the companies disclose their participation in NSA intelligence programs.

The companies also pressed the need for transparency and for limits on surveillance to restore the credibility of the U.S. government. They wanted an explanation of what the NSA was doing overseas to collect their data and to be able to talk about it, said industry and U.S. officials briefed on the meeting who spoke on the condition of anonymity to discuss it freely.

“Most companies” in the room pressed this point, “and they did so loudly,” said one U.S. official.

Obama said that he heard their message and that the White House would consider the group’s views as it completed a review of NSA surveillance programs.

Silicon Valley has been a critical driver of the economic recovery and has long represented the face of American ingenuity around the world. Many of these companies say they are still trying to assess the damage caused by Edward Snowden’s leak of NSA documents showing their work with intelligence officials.

But some shareholders say Silicon Valley has been slow to recognize the reputational crisis that is developing around the world for these companies. “Verizon and AT&T are not managing this crisis effectively,” said Jonas Kron, director of shareholder advocacy at Trillium, an investment advisory firm. “Now is the time for these companies to demonstrate that they will protect user privacy.”

The morning meeting at the White House, held in the Roosevelt Room, took on added import given a federal judge’s ruling Monday that the NSA’s counterterrorism program to collect Americans’ phone records appears to be unconstitutional. That, along with the outcry from Silicon Valley and civil liberties advocates, some of whom belong to Obama’s party, is increasing pressure on the administration to curb NSA surveillance efforts.

The gathering was scheduled for two hours but went well over the allotted time, with the majority of the discussion focused on the companies’ demands for changes to NSA spying programs, according to tech industry officials.

Several of the executives came to the meeting particularly angered over a Washington Post report in late October that revealed the NSA and its British counterpart, Government Communications Headquarters, or GCHQ, were gaining access to the data connections that link Google and Yahoo servers around the world, industry officials said.

Their message was to say: “What the hell are you doing? Are you really hacking into the infrastructure of American companies overseas? The same American companies that cooperate with your lawful orders and spend a lot of money to comply with them to facilitate your intelligence collection?” said one industry official familiar with the companies’ views.

The NSA has stressed that its overseas collection is carried out lawfully, under executive authority. Any data on Americans are handled according to rules that protect their privacy, including the requirement to obtain a warrant to target an American’s communications, officials say.

In the meeting, the executives reiterated a list of demands that had been sent to the White House in a letter last week calling on the administration to cease bulk data collection of e-mails, online address books and other personal information; to impose limits on how easily the NSA can obtain court orders for Internet data; and to allow the companies to be more transparent about government intelligence requests.

Several participants acknowledged that the White House had to balance the companies’ business concerns against national security considerations.

Senior administration officials described the meeting with the 15 executives as “constructive, not at all contentious.”

“This was an opportunity for the President to hear from CEOs directly as we near completion of our review of signals intelligence programs, building on the feedback we’ve received from the private sector in recent weeks and months,” the White House said in a statement.

One participant suggested the president pardon Snowden. Obama said he could not do so, said one industry official. White House officials have said that Snowden is accused of leaking classified information and faces felony charges in the United States, and that he should be returned as soon as possible to the United States, “where he will be accorded full due process and protections.”

Senior executives from AT&T, Yahoo, Apple, Netflix, Twitter, Google, Microsoft and Facebook were among those in attendance.

“We appreciated the opportunity to share directly with the President our principles on government surveillance that we released last week and we urged him to move aggressively on reform,” the technology firms said in a joint statement after the meeting.

Many of these firms have played a key role in boosting Obama’s political fortunes. Tech companies pumped nearly $7.8 million into his campaign in the last cycle, according to the nonpartisan Center for Responsive Politics.

Some of the top officials meeting with the president Tuesday served as bundlers for his 2012 bid. Yahoo’s chief executive, Marissa Mayer, raised between $100,000 and $200,000, according to the center, and Shervin Pish­evar, co-founder of the Sherpa technology investment fund, raised more than $500,000. Mark Pincus, Zynga’s chief product officer and chairman, gave $1 million to Priorities Action USA, the super PAC that supported Obama.

Still, some of these executives, as well as their shareholders, are fretting about the ­bottom-line impact of the NSA intelligence programs.

In Cisco’s earnings report last month, executives explained that disappointing sales in emerging markets were partly tied to the NSA leaks, which may have “caused a number of customers to pause and reevaluate,” Cisco’s head of sales, Robert Lloyd, said at the time.

Last week, IBM shareholders sued the company in a New York federal court, saying that it harmed investors with its secret participation in NSA programs.

“IBM’s association with the NSA presented a material risk to the company’s sales and, in particular . . . sales in China that were of critical importance to investors,” the Louisiana Sheriffs’ Pension and Relief Fund said in its lawsuit. “Despite that knowledge . . . IBM misrepresented to investors that it was a market leader in the Asia-Pacific region and that IBM expected solid improvement in the sales of its hardware division.”

Last month, shareholders of Verizon and AT&T demanded that the companies disclose their participation in NSA intelligence programs.

The $160.7 billion New York State Common Retirement Fund filed a resolution with AT&T’s board to make public its participation in government intelligence programs. The pension fund argued that customers can too easily switch to another wireless carrier amid concerns that AT&T is sharing telephone data and other information with the government.

The meeting at the White House was the second time top Silicon Valley and telecommunications leaders have convened with Obama since Snowden began to release portions of a trove of top-secret documents detailing NSA spying programs.

Obama tried to keep the tenor friendly, even cracking jokes, an industry official said.

At one point, he asked Netflix chief executive Reed Hastings if he brought advanced copies of the second season of “House of Cards,” a satire-drama of Washington politics, according to a pool report of the meeting.

Hastings laughed and invited Obama to do a cameo appearance on the show. Obama said of the ruthless lead character, a congressman played by Kevin Spacey, “This guy’s getting a lot of stuff done.”

“I wish things were that ruthlessly efficient,” Obama said, to laughter from all the tech executives.

Juliet Eilperin and Matea Gold contributed to this report.

404 — Some are critical of Judge Leon's recent anti-NSA stance, citing that he should not be making rulings on SCOTUS judge musings

This interesting article from The New York Times decomposes Judge Richard Leon's recent ruling that the NSA's bulk surveillance phone program is probably unconstitutional.

Some said Judge Richard J. Leon’s N.S.A. ruling exceeded Supreme Court precedent.

After Ruling Critical of N.S.A., Uncertain Terrain for Appeal

By ADAM LIPTAK

WASHINGTON — As Judge Richard J. Leon heard arguments last month in a challenge to a National Security Agency program, he said only one thing was certain.

“I’m not sure how I’m going to come out,” he said, “but I know it’s going upstairs.” He meant that appeals were inevitable, first to a federal appeals court in Washington and then to the Supreme Court.

On Monday, Judge Leon ruled that the program, which collects records of all Americans’ phone calls, is probably unconstitutional. He stayed his order to allow for that anticipated trip upstairs.

The appeal will face ideological crosscurrents, Supreme Court opinions pointing in opposite directions and unpredictable judicial voting. But it seems reasonably likely that the case, or a related one, will for the first time result in a definitive legal ruling on the constitutionality of one of the post-Sept. 11 government surveillance programs.

Similar cases, including one brought by the American Civil Liberties Union in New York, are pending. Unlike in earlier cases challenging warrantless wiretapping programs, it is likely that judges will no longer decline to hear the new ones based on the objection that the plaintiffs cannot demonstrate that information about them has been collected.

Judge Leon was dismissive of the government’s halfhearted argument on this point, saying it “defies common sense.”

The main initial critique of Judge Leon’s decision was that it blew past the closest Supreme Court precedent and tried to anticipate where the justices might be heading based on concurring rather than controlling opinions in a 2012 decision.

The next stop for the case is the United States Court of Appeals for the District of Columbia Circuit, which, thanks to the recent overhaul of the Senate’s filibuster rule, has a majority of Democratic appointees among its active judges.

But it may be that nothing turns on that. Writing recently in Judicature magazine, Judge Douglas H. Ginsburg, who was appointed to the District of Columbia Circuit by President Ronald Reagan, noted with satisfaction that a recent empirical study had absolved his court “of the charge, so often leveled in the vacuous but vociferous political debates over the confirmation of a new judge, that the court is a political partisan.”

His own 2010 opinion in United States v. Maynard, writing for a unanimous three-judge panel with two judges appointed by a Republican president, tends to illustrate his point. The decision, which will be helpful to the challengers to the data collection program, was, curiously, mentioned only in passing by Judge Leon.

Judge Ginsburg said the collection of huge troves of data over long stretches of time, producing a mosaic of information, could cross a constitutional line.

“A person who knows all of another’s travels,” Judge Ginsburg wrote, “can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one fact about a person, but all such facts.”

Alexander A. Abdo, an A.C.L.U. lawyer, echoed that reasoning at the Nov. 22 argument in the New York case, four days after arguments in the case heard by Judge Leon. The telephone records collected by the security agency reveal, Mr. Abdo said, “who you call and when, whether you call your doctor, the domestic violence hotline, an abortion provider, an ex-girlfriend, a suicide hotline or a pastor,” he said. “And it reveals not just one of those details about every American, but every one of those details.”

The District of Columbia Circuit’s decision, Mr. Abdo said, “could serve as a model for this court.”

In 1979, in Smith v. Maryland, the Supreme Court said a robbery suspect could not expect that his right to privacy extended to the numbers dialed from his phone. The government says the Fourth Amendment analysis in the new cases should begin and end with that decision.

“The government’s position is that Fourth Amendment challenge is foreclosed by Smith v. Maryland, which held that there is no reasonable expectation of privacy in the noncontent information that’s held by third parties,” Stuart F. Delery, a Justice Department lawyer, said at the argument of the A.C.L.U. case.

The 2012 decision, United States v. Jones, an appeal from the Maynard decision, unanimously rejected the use of a GPS device to track the movements of a drug suspect over a month. The majority in the 2012 case said that attaching the device violated the defendant’s property rights.

In a pair of concurrences, though, five justices said the tracking raised concerns about the defendant’s expectation of privacy. “It may be necessary,” Justice Sonia Sotomayor wrote, citing the Smith case, “to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

But it is one thing for justices, even five of them, to indicate that a precedent had been undermined. It is another for a lower-court judge to make use of such musings. Indeed, the Supreme Court has cautioned against it.

“If a precedent of this court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions,” Justice Anthony M. Kennedy wrote for the court in 1989, lower-court judges “should follow the case which directly controls, leaving to this court the prerogative of overruling its own decisions.”

Last month, a federal judge in California took that approach in refusing to grant a new trial to a defendant convicted of terrorism charges based on asserted Fourth Amendment violations arising from the N.S.A. program. Judge Jeffrey T. Miller said he would not “blaze a new path and adopt the approach to the concept of privacy set forth by Justice Sotomayor in her concurrence in United States v. Jones.”

There will almost certainly be more decisions on the constitutionality of the program, in the A.C.L.U. case and in one brought by the Electronic Frontier Foundation. They all present essentially the same issues, and it is hard to predict which will strike the justices as the most attractive vehicle for a decision.

If nothing else, Judge Leon’s decision was a powerful critique of the secret court that supervises the program. He noted that 15 judges of the court, the Foreign Intelligence Surveillance Court, have issued 35 orders authorizing it, even as the government “repeatedly made misrepresentations and inaccurate statements about the program.”

Barry Friedman, a law professor at New York University who is at work on a book on the Fourth Amendment, said that only Judge Leon’s work was worthy of a federal judge.

“Judge Leon’s reads as though there is a living, breathing, thinking person behind it,” he said. “Right or wrong ultimately, it is full of detail, real-world fact and serious consideration. The FISA court opinions are lifeless. They read like a machine wrote them.”

404 — In turnaround, Senator Feinstein says NSA phone surveillance 'important' but not 'indispensable'

In a change of position, following the recent ruling by Federal Judge Richard Leon of the US district court for the District of Columbia, who doubted both the constitutionality of the NSA's bulk phone records collection and its necessity to stop terrorist attacks, Senator Feinstein says the NSA phone surveillance program is 'important' but not 'indispensable', according to this story from The Guardian.

Feinstein said: 'Only the supreme court can resolve the question on the constitutionality of the NSA’s program.'

Feinstein: NSA phone surveillance 'important' but not 'indispensable'

• Senate intelligence committee chair a staunch ally of NSA
• 'I welcome a supreme court review of its constitutionality'

Spencer Ackerman in Washington

 

The influential chairwoman of the Senate intelligence committee said on Tuesday that the National Security Agency’s bulk collection of American phone records, savaged by a federal judge a day earlier, was not “indispensable” for preventing terrorism.

In an interview with MSNBC on Tuesday, senator Dianne Feinstein, a California Democrat who has been a staunch supporter of the National Security Agency, urged the supreme court to determine its constitutionality.

“I’m not saying it’s indispensable,” Feinstein said. “But I’m saying it is important, and it is a major tool in ferreting out a potential terrorist attack.”

Her assessment came a day after Monday’s dramatic ruling from Judge Richard Leon of the US district court for the District of Columbia, who doubted both the constitutionality of the bulk phone records collection and its necessity to stop terrorist attacks.

In a ruling dripping with impatience for the NSA, Leon noted that the Obama administration and the NSA did not actually argue to him that the bulk collection of American phone metadata “actually stopped an imminent terrorist attack,” but instead that it was “faster than other investigative methods might allow.”

The difference helped informed Leon’s decision that the program was very likely unconstitutional, and would have left James Madison, the former US president and constitutional architect, “aghast.”

During the six months since Edward Snowden first disclosed the extent of NSA bulk surveillance, Feinstein has been a crucial Capitol Hill ally for the embattled agency. In television interviews and congressional hearings, she has cited it as a critical tool for detecting terrorism. She is the architect of a bill that would bolster the bulk phone records collection beyond what the NSA currently performs – a bill that stands as the chief competitor to a legislative push aimed at ending the bulk collection.

“The collection of phone numbers, which can be run when a terrorist target in another country calls an American number, is something in my view which protects this country,” Feinstein said in October.

“We would place the nation in jeopardy if we were to end these two programs,” she said in a July hearing that discussed both the NSA’s bulk phone records collection and its mass dragnets on foreign telephone and internet communications.

In her MSNBC interview on Tuesday, Feinstein offered a subtler defense.

“It is my belief we live in a world with serious jeopardy to this nation. And those of us on the intelligence committee see this frequently. Therefore, this program, in conjunction with other programs, helps keep this nation safe,” Feinstein told MSNBC’s Andrea Mitchell. 

To Mitchell and in a press release issued shortly afterward, Feinstein said that other judges have blessed the constitutionality of the domestic call data program, and urged the US’ highest court to settle the issue. 

“Only the supreme court can resolve the question on the constitutionality of the NSA’s program,” Feinstein said in her statement.

“I welcome a supreme court review since it has been more than 30 years since the court’s original decision of constitutionality, and I believe it is crucial to settling the issue once and for all. In the meantime, the call records program remains in effect.” 

The ACLU has a similar case pending before the southern district of New York that seeks to get at the constitutionality of bulk domestic call data collection. Leon invited the government to reply to his ruling, indicating that his will not be the last word on its constitutionality.

John Conyers, a Michigan Democrat on the judiciary committee who opposes bulk collection of phone data, called Leon’s ruling a “turning point” on Tuesday.

“United States district court Judge Leon’s ruling yesterday that this program is ‘likely unconstitutional’ marks a turning point in our efforts to restore the civil liberties that have eroded since the early days of the Bush administration,” Conyers said in a statement.

“Judge Leon has laid bare the questionable constitutional underpinnings of bulk collection and warrantless mass surveillance. Congress must now intensify its examination of the NSA’s telephone metadata program and other surveillance programs like it, and hold legislative hearings aimed at curing their constitutional defects.”

404 — U.S.-Germany Intelligence Partnership Falters Over Spying

This story from The New York Times outlines the many problems that current NSA practices are causing with our greatest partners and allies. Efforts to find a compromise are "floundering".

Chancellor Angela Merkel and President Obama in 2011. Their relationship has been severely tested in recent months.

U.S.-Germany Intelligence Partnership Falters Over Spying

By DAVID E. SANGER and ALISON SMALE

BERLIN — Nearly two months after President Obama assured Chancellor Angela Merkel of Germany that the United States would never again target her cellphone, a broader effort to build a new intelligence relationship with Germany is floundering, with each side increasingly reluctant to make major changes in how it deals with the other.

American officials have refused to extend the “no spying” guarantee beyond Ms. Merkel, telling German officials in private sessions that if the White House agreed to forgo surveillance on German territory, other partners would insist on the same treatment.

“Susan Rice has been very clear to us,” one senior German official said, referring to Mr. Obama’s national security adviser. “The U.S. is not going to set a precedent.”

How aggressively to continue targeting the leaders of countries allied with the United States is one of the most delicate questions facing Mr. Obama as he weighs the still-confidential report of an outside advisory group that submitted 40 recommendations to him on Friday, including several dealing with spying on the United States’ closest allies and partners.

The director of the National Security Agency, Gen. Keith B. Alexander, said in an interview after the monitoring of Chancellor Merkel was revealed that the United States may soon have to choose between spying on partners and making them full participants in combating digital threats. Ms. Merkel has also responded to the disclosures: Among the ministers she named to her new coalition government on Sunday was a former intelligence official.

“This is a consequence of the N.S.A. matter, or affair,” she said, using the common reference in Germany to the reports on American intelligence activities. It is “a justified response to the new challenges we face.”

According to officials familiar with the advisory group’s report to Mr. Obama, it concluded that the White House must regularly review the N.S.A.’s surveillance programs to determine whether the intelligence gathered is worth the damage that would be done if a program were revealed — a process that C.I.A. operations go through annually. Officials said elements of that recommendation were already being adopted ahead of Mr. Obama’s broader announcement, expected in January, about the N.S.A. overhauls he plans to make.

But as Mr. Obama considers his options, the effort to repair the damage to the United States’ relationship with Germany appears to have stumbled. American officials have so far refused to pull back from electronic spying in the country, save for Ms. Merkel’s own communications, even though German officials argue that the United States is violating German law.

At the same time, Germany is equally reluctant to enter into a deeper cooperation agreement, at least on American terms.

Germany has for years participated in American counterterrorism operations, especially those tracking suspected Al Qaeda or other terrorist cells inside Germany, but it has refused to provide the United States with information that it believes could help provide targets for drone strikes. Now, officials are reluctant to join in some types of bulk collection of telephone data or preparations for offensive digital strikes against other countries.

“We simply don’t have the capability or the legal authorities,” said one senior German official involved in the talks, who, like other officials interviewed, spoke on the condition of anonymity because the negotiations are confidential.

The White House has tried to engage the German leadership quietly, hoping to avoid further public confrontations while Ms. Merkel formed her new government.

“At the president’s and chancellor’s direction, we continue to talk with our German partners about how we can strengthen our intelligence cooperation and address some of the concerns that have been raised,” Caitlin Hayden, a spokeswoman for the National Security Council, said Saturday. “We’ve agreed that these talks are best held confidentially, so I’m not going to provide any details at this stage.”

Nonetheless, in interviews in the past week, American and German officials described a continued wariness in the countries’ relationship after documents that the German newsmagazine Der Spiegel received from Edward J. Snowden, the former N.S.A. contractor, revealed the apparent tracking of Ms. Merkel’s personal cellphone and suggested that other surveillance operations had been run out of the United States Embassy here.

While Mr. Obama tried to make amends, several senior German officials expressed suspicions that the United States might be using its surveillance technology to strengthen its negotiating hand in trade talks with the European Union, in which Germany is the most important player.

The dispute also reflects very different views of how far the state should go in conducting surveillance, both at home and abroad.

In an angry conversation with Mr. Obama in October after the phone monitoring was revealed, Ms. Merkel said that the N.S.A.’s activities reminded her of growing up as the daughter of a Protestant minister in East Germany. “She told him, ‘This is like the Stasi,’ â€ said one person who had discussed the conversation with the chancellor.

Another person familiar with the conversation said Ms. Merkel had told Mr. Obama that she was particularly angry that, based on the disclosures, “the N.S.A. clearly couldn’t be trusted with private information, because they let Snowden clean them out.”

American officials said that the German accounts accurately captured the spirit of the heated conversation, but that the quotations given by German officials were more direct and pointed than what was actually said. But the exchange set the tone for a dialogue between Washington and Berlin that has only underscored how differently the two countries see the issue. United States officials talk about conducting surveillance, whether of adversaries or allies, to protect American interests; German officials emphasize the importance of reaffirming the alliance. American officials are intent on gathering the data needed to quickly determine the whereabouts of terrorism suspects; the Germans start with privacy concerns.

The man Ms. Merkel tapped for the new post in her coalition government is a veteran of the German security apparatus. Klaus-Dieter Fritsche, 60, now a top Interior Ministry official, was previously deputy head of the Federal Office for the Protection of the Constitution, Germany’s domestic intelligence service.

The distaste within the German political establishment for the United States’ approach extends beyond former citizens of East Germany, like Ms. Merkel. Sigmar Gabriel, chairman of the Social Democratic Party and deputy chancellor in Ms. Merkel’s new government, took time in a speech last month to emphasize Germany’s dismay that the United States could engage in the kind of surveillance Mr. Snowden has disclosed.

“The United States, the country we Germans have so much to thank for,” Mr. Gabriel said at a party congress in Leipzig, “is at the moment endangering the most important foundation of our trans-Atlantic partnership.”

404 — A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls likely violates the Constitution

A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way. Richard J. Leon of Federal District Court for the District of Columbia, ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history, according to this story from The New York Times.

A city bus in Washington displays a wraparound advertisement sponsored by the Partnership for Civil Justice Fund.

Judge Questions Legality of N.S.A. Phone Records

By CHARLIE SAVAGE

WASHINGTON — A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.

The judge, Richard J. Leon of Federal District Court for the District of Columbia, ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history. But Judge Leon, appointed to the bench in 2002 by President George W. Bush, stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, which he said could take at least six months.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote in a 68-page ruling. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures.

Andrew Ames, a Justice Department spokesman, said government lawyers were studying the decision, but he added: “We believe the program is constitutional as previous judges have found.”

The case is the first in which a federal judge who is not on the Foreign Intelligence Surveillance Court, which authorized the once-secret program, has examined the bulk data collection on behalf of someone who is not a criminal defendant. The Justice Department has said that 15 separate judges on the surveillance court have held on 35 occasions that the calling data program is legal.

It also marks the first successful legal challenge brought against the program since it was revealed in June after leaks by the former N.S.A. contractor Edward J. Snowden.

In a statement from Moscow, where he has obtained temporary asylum, Mr. Snowden praised the ruling.

“I acted on my belief that the N.S.A.’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” Mr. Snowden said in his statement. It was distributed by Glenn Greenwald, a journalist who received leaked documents from Mr. Snowden and wrote the first article about the bulk data collection. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights,” the statement said. “It is the first of many.”

The case was brought by several plaintiffs led by Larry Klayman, a conservative legal activist. Mr. Klayman, who represented himself and the other plaintiffs, said in an interview on Monday that he was seeking to turn the case into a class action on behalf of all Americans. “I’m extremely gratified that Judge Leon had the courage to make this ruling,” he said. “He is an American hero.”

Mr. Klayman argued that he had legal standing to challenge the program in part because, he contended, the government had sent inexplicable text messages to his clients on his behalf; at a hearing, he told the judge, “I think they are messing with me.”

The judge portrayed that claim as “unusual” but looked past it, saying Mr. Klayman and his co-plaintiff instead had standing because it was highly likely, based on the government’s own description of the program as a “comprehensive metadata database,” that the N.S.A. collected data about their phone calls along with everyone else’s.

Similar legal challenges to the N.S.A. program, including by the American Civil Liberties Union and the advocacy group Electronic Frontier Foundation, are at earlier stages in the courts. Last month, the Supreme Court declined to hear an unusual challenge to the program by the Electronic Privacy Information Center, which had sought to bypass lower courts.

The ruling on Monday comes as several government panels are developing recommendations on whether to keep, restructure or scrap the bulk data collection program, and as Congress debates competing bills over the program’s future.

Though long and detailed, Judge Leon’s ruling is not a final judgment on the program, but rather a preliminary injunction to stop the collection of data about the plaintiffs while they pursued their case.

He also wrote that he had “serious doubts about the efficacy” of the program, saying that the government had failed to cite “a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive.”

Judge Leon rejected the Obama administration’s argument that a 1979 case, Smith v. Maryland, had established there are no Fourth Amendment protections for call metadata — information like the numbers dialed and the date, time and duration of calls, but not their content. The 1979 case, which involved collecting information about a criminal defendant’s calls, helped establish the principle that people do not have a reasonable expectation of privacy for information they have exposed to a third party, like the phone company, which knows about their calls.

The surveillance court, which issues secret rulings after hearing arguments from only the Justice Department and without opposing lawyers, has maintained that the 1979 decision is a controlling precedent that shields the N.S.A. call data program from Fourth Amendment review. But Judge Leon, citing the scope of the program and the evolving role of phones and technology, distinguished the bulk collection from the 34-year-old case.

Last month, a federal judge declined to grant a new trial to several San Diego men convicted of sending money to a terrorist group in Somalia. Government officials have since acknowledged that investigators became interested in them because of the call records program. Citing Smith v. Maryland, the judge said the defendants had “no legitimate expectation of privacy” over their call data.

David Rivkin, a White House lawyer in the administration of the elder President George Bush, criticized Judge Leon’s reasoning.

“Smith v. Maryland is the law of the land,” Mr. Rivkin said. “It is not for a District Court judge to question the continuing validity of a Supreme Court precedent that is exactly on point.”

Judge Leon also pointed to a landmark privacy case decided by the Supreme Court in 2012 that held it was unconstitutional for the police to use a GPS tracking device to monitor a suspect’s public movements without a warrant.

Although the court decided the case on narrow grounds, five of the nine justices separately questioned whether the 1979 precedent was still valid in an era of modern technology, which enables long-term, automated collection of information.

404 — NSA officials consider Ed Snowden amnesty in return for documents

Here are more details about NSA official Richard Ledgett's offer of amnesty to Ed Snowden in exchange for the extensive document trove the whistleblower took from the agency. Check out this interesting story from The Guardian.

Edward Snowden is currently in Russia, where he was granted a year's asylum.

NSA officials consider Edward Snowden amnesty in return for documents

• Key official tells CBS 'it's worth having a conversation'
• State Department and other key figures oppose deal

Spencer Ackerman in Washington

National Security Agency officials are considering a controversial amnesty that would return Edward Snowden to the United States, in exchange for the extensive document trove the whistleblower took from the agency.

An amnesty, which does not have the support of the State Department, would represent a surprising denouement to an international drama that has lasted half a year. It is particularly unexpected from a surveillance agency that has spent months insisting that Snowden’s disclosures have caused vast damage to US national security.

The NSA official in charge of assessing the alleged damage caused by Snowden’s leaks, Richard Ledgett, told CBS News an amnesty still remains controversial within the agency, which has spent the past six months defending itself against a global outcry and legislative and executive proposals to restrain its broad surveillance activities.

“My personal view is, yes, it’s worth having a conversation about,” Ledgett, who is under consideration to become the agency’s top civilian, said in an interview slated to air Sunday evening on 60 Minutes. â€œI would need assurances that the remainder of the data could be secured, and my bar for those assurances would be very high. It would be more than just an assertion on his part.”

Snowden is in Russia, having been granted a year-long asylum that has sparked international intrigue. In June, the Justice Department filed a criminal complaint charging the 30-year old former contractor with theft of government property, unauthorized communication of national defense information and “wilful communication of classified communications intelligence information to an unauthorized person”, although he has not yet been indicted.

Any amnesty would have to come through the Justice Department, which did not respond to a request for comment.

The NSA’s director, General Keith Alexander, told CBS that granting Snowden amnesty would reward the leaks and potentially incentivize future ones. But Alexander is retiring in the spring, joining his civilian deputy John C Inglis, and Ledgett is rumored to be a top candidate to replace Inglis.

On Sunday, the State Department spokeswoman Marie Harf said that Ledgett was stating a “personal view”.

“Our position has not changed,” Harf said. “Mr Snowden is facing very serious charges and should return to the United States to face them.”

Alexander’s predecessor at the NSA, retired Air Force General Michael Hayden, also rejected an amnesty for Snowden.

“I wouldn’t do it. That simply motivates future Snowdens,” said Hayden, who began the bulk collection of Americans’ phone and internet metadata in 2001 as a response to 9/11 that was initially unknown and unauthorized by Congress and the courts.

But Hayden also said that Snowden had kickstarted an important debate in the US about the appropriate balance between liberty and security.

“Snowden was important. He accelerated a debate, he misshaped the debate, but … the debate was coming,” Hayden said, on NBC.

Snowden told the New York Times in October that he divested himself of the documents before leaving Hong Kong for Russia, which he suggested was a preventive measure to keep the documents out of the hands of Russian intelligence. Lack of access to the documents, which are now in the hands of journalists, would likely complicate the “assurances” Ledgett indicated the government would require for any amnesty.

The NSA does not believe that Snowden’s documents have escaped the collection capabilities of its Russian and Chinese counterparts; a senior official told the New York Times on Saturday that the government may never know how much material Snowden took from the agency.

The Guardian continues to publish surveillance stories based on Snowden’s leaks, as do the Washington Post and other news organizations around the world, aided by the former Guardian journalist Glenn Greenwald and Laura Poitras, the two journalists who maintain possession of the entire Snowden data trove.

Ledgett told Reuters that the NSA is worried about the large majority of documents the agency believes to have been taken by Snowden that news organizations have not yet published.

Whether or not Snowden returns to the US a free man, the Obama administration continues to grapple with the aftershocks of his disclosures. Ledgett and other NSA officials have said that the agency is instituting new technical initiatives to prevent new Snowdens by increasing internal data security. Alexander testified on Wednesday that the agency would soon detail those to Congress, but he said they included “compartmentalizing and encrypting data”.

However, NSA officials conceded in interviews that by the time of Snowden’s leaks, they had yet to fully implement data-security promises the government pledged to institute after the 2010 leaks of war logs and diplomatic cables by the Army private Chelsea Manning.

On Friday, a review group created by the White House provided President Barack Obama with a report recommending 40 potential surveillance reforms. National Security Council spokeswoman Caitlin Hayden said the administration would spend “several weeks” assessing which to implement, and would make the report public in January.

The White House has already rejected one proposed initiative, which would divorce the NSA from the military’s Cyber Command, which protects US military data networks and attacks those of adversaries. Civil liberties groups have already attacked the review group’s reported proposals as cosmetic.

“The proposed recommendations from the Review Group do not go far enough,” said Alan Butler, a lawyer for the Electronic Privacy Information Center. â€œBulk collection of personal data should simply end. And meaningful constraints on the NSA should be re-established. The purpose of FISA was to allow for electronic surveillance of foreign targets for foreign intelligence purposes, and the current framework of bulk domestic collection is upside down.”

Beyond the review group, privacy advocates in Congress are pushing a bill, the USA Freedom Act, that would prevent the government from collecting Americans’ phone and other data in bulk without court-authorized and individualized suspicion of wrongdoing. The USA Freedom Act has yet to clear any of its relevant committees in the House and Senate, but supporters claim 120 co-sponsors in the legislature.

The 60 Minutes interview is part of an NSA initiative to rebuild its reputation through increased public engagement. This week, the sympathetic blog Lawfare will air a series of podcasted interviews with NSA leaders. Senior NSA officials have also been makingappearances on college campuses to argue that their bulk surveillance activities are necessary for national security and not intrusive on Americans’ privacy.