Tag: Patrick Leahy

EARN IT Act Moves Forward After Addressing Encryption Concerns

The Eliminating Abuse and Rampant Neglect of Interactive Technologies Act of 2019 (EARN IT Act) has passed the Senate Judiciary Committee after addressing concerns about weakening encryption.

The EARN IT Act is aimed at protecting children and eliminating online sexual abuse. Many critics, however, were afraid the bill went too far in weakening encryption that law-abiding users rely on.

The bill addresses the Section 230 protections that limit the liability companies incur from the actions of users on their platforms. In order to maintain their protections, the original bill called for companies to follow mandatory “best practices” outlined by a commission of experts. Many companies and critics warned that these “best practices” could require companies to weaken industry-standard encryption, leaving them little recourse.

Senator Graham filed an amendment that waters down that provision of the bill, specifically changing the “best practices” to recommendations rather than requirements. In addition, according to The Verge, Senator Patrick Leahy filed an amendment—that was approved—that would “exclude encryption” as a factor that would increase a company’s liability.

The bill will now move to the Senate floor for a vote by the entire body.

July 2, 2020
Google Can Finally Publish FISA Request Numbers

For a few years now, Google has been publishing a bi-annual transparency report to let us know how many times governments around the world have petitioned the company for user data. The reports were always missing a few things though – specifically National Security Letters and FISA request numbers. NSL numbers were finally published last year, and now Google can do the same with FISA requests.

Google announced that it finally has permission to publish FISA request numbers from 2009 onwards. Unfortunately, the government has imposed a six month delay so we don’t have access to the numbers from July to December for last year. January to June and back, however, is a somewhat detailed look at the number of FISA requests Google receives from the government every six months.

As you will see below, Google is forced to report numbers on a scale of 1,000. That means it can only let us know that it receives between 0 and 999 FISA requests every six months. We do get to see numbers for content and non-content requests which are arguably more interesting as the number of content requests skyrocketed to over 10,000 in the latter half of 2012.

Google reminds us that FISA requires them to hand over a users’ personal information and the content of their communications whenever the government comes knocking with a court order. That’s why the company feels it’s incredibly important to keep fighting for the right to publish precise numbers so it can let its users know exactly how many user data requests are made every six months. After all, there’s a pretty big difference between 0 and 999.

To that end, Google is championing legislation in both the House and Senate – H.R. 3035 and S. 1621. Both would allow private entities to report the exact number of information requests they receive from the government. Unfortunately, both bills have only been referred to a committee thus far and it doesn’t look like either will be picked up anytime soon.

Despite the above bills not having much chance, reform may come in the form of Sen. Patrick Leahy’s USA FREEDOM Act. It seeks to end the dragnet surveillance of Americans’ communications, reform the FISA court and more. Google may want to throw some weight behind Leahy’s bill as it’s the only surveillance-related bill currently floating around Congress that has any chance of passing.

Image via Google

February 3, 2014
Senate Intelligence Panel Approves NSA Bill That Improves Transparency And Not Much Else

Ever since the Snowden leaks revealed that the NSA was collecting Americans’ phone records en masse, Senate Intelligence Committee Chairwoman Dianne Feinstein has been the agency’s number one cheerleader. She has consistently argued that the collection of phone records was legal and even proposed a bill that would make that collection legal under law instead of just a court decision. Now she’s one step closer to realizing her dream of an NSA that’s fully protected by the law.

The Hill reports that the Senate Intelligence Committee has passed Feinstein’s bill – the FISA Improvements Act – in a 11-4 vote. The bill would improve transparency regarding the NSA and the FISA court, but not much else. It would also prohibit the NSA from using its vast collection of phone numbers for anything other than terrorism, but it doesn’t change the fact that the agency would still have access to every Americans’ phone records. In short, Feinstein’s bill covers the NSA’s ass, but doesn’t wipe it.

In its defense, Feinstein said that she and her committee did everything they could to make the NSA more trustworthy:

“We’ve tried very hard to put together a bipartisan bill that improves transparency, improves privacy, has more public reporting, has more checks and we’ve done it to the best we can. And we’ve got a good solid two-thirds vote of the committee.”

As you would expect, nobody is really buying it. One of the four who voted agains it – Sen. Mark Udall – said that the Committee’s bill “does not go far enough to address the NSA’s overreaching domestic surveillance programs.” He went on further to say that the agency “needs fundamental reform – not incidental changes.”

Outside of the Committee, there’s already a movement to pass a more robust bill in the Senate that would not only knock the NSA down a peg, but it would also reform the FISA court in some important ways. Senate Judiciary Committee Chairman Patrick Leahy introduced the USA FREEDOM Act earlier this week to end the NSA’s bulk collection of Americans’ phone records as well as put strict limits on the agency’s collection of Internet records under Section 702 of the FISA Amendments Act.

Besides Leahy and his 16 co-sponsors in the Senate, Sen. Ron Wyden has also come forward saying that he’ll do everything in his power to stop what he calls “skin deep” reforms. In other words, he wants to make sure that bills like Feinstein’s are never passed. Interestingly enough, however, Wyden was not one of the co-sponsors on Leahy’s bill. It’s hard to say why he hasn’t thrown his name in to support the USA FREEDOM Act, but it’s likely that he’ll speak up about it soon.

In the end, what’s done is done. Feinstein managed to get her bill approved by the Committee she oversees. That was the easy part though. The hard part is just beginning as she now has to contend with a full Congress that doesn’t very much appreciate what the NSA has been doing.

[Image: Dianne Feinstein/Facebook]

November 1, 2013
Sen. Patrick Leahy Officially Introduces The USA FREEDOM Act In The Senate

Earlier this month, Sen. Patrick Leahy began circulating a piece of legislation called The USA FREEDOM Act. We knew what the legislation would do, but we didn’t know any of the specifics until today.

The Hill reports that Sen. Leahy has finally introduced The USA FREEDOM Act, or the Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act, into the Senate this afternoon. The legislation, which enjoys 16 co-sponsors in the Senate, clocks in at 118 pages and seeks to reform both the NSA and the FISA court. Rep. Jim Sensenbrenner, otherwise known as the congressman who wrote the original Patriot Act, has also introduced sister legislation in the House with more than 70 co-sponsors.

“The government surveillance programs conducted under the Foreign Surveillance Intelligence Act are far broader than the American people previously understood. It is time for serious and meaningful reforms so we can restore confidence in our intelligence community,” Leahy said. “Modest transparency and oversight provisions are not enough. We need real reform, which is why I join today with Congressman Sensenbrenner, and bipartisan coalitions in both the Senate and House, to introduce the USA FREEDOM Act.”

So, what exactly does the USA FREEDOM Act do? First and foremost, it ends the bulk collection of Americans’ phone records under Section 215 of the Patriot Act. Currently, the NSA uses an interpretation of Section 215 handed down by the FISA court that allows it to indiscriminately collect Americans’ phone records.

Section 215 is not the only thing that needs reform and Leahy knows it. His legislation would also reform Section 702 of the FISA Amendments Act – a law that allows the NSA to collect Americans’ Internet communications without a warrant. Under the USA FREEDOM Act, there will be stricter limits placed on the kind of online communications that can be collected, and it will also require the NSA to “obtain a court order prior to conducting “back door” searches looking for the communications of U.S. persons in databases collected without a warrant under Section 702.”

The legislation would also improve oversight and transparency by reforming two key components of the intelligence community – the FISA court and data request reporting. For the former, the legislation would appoint a public privacy advocate that would argue in favor of pro-privacy in front of the FISA court. As for the latter, the legislation would permit companies to publish the number of data requests they receive from the federal government. It would also require the government to report these numbers itself.

Finally, the USA FREEDOM Act would implement new sunset dates for both the FISA Amendments Act and National Security Letters to bring their expiration in line with the 2015 sunset date for Section 215. The reasoning is that Leahy believes having all three sunset in the same year will force Congress and the executive branch to address every part of the NSA and FISA in one go instead of having years between them.

“Following 9/11, the USA PATRIOT Act passed the judiciary committees with overwhelming bipartisan support. The bill has helped keep Americans safe by ensuring information is shared among those responsible for defending our country and by enhancing the tools the intelligence community needs to identify and track terrorists,” Sensenbrenner said. “But somewhere along the way, the balance between security and privacy was lost. It’s now time for the judiciary committees to again come together in a bipartisan fashion to ensure the law is properly interpreted, past abuses are not repeated and American liberties are protected. Washington must regain Americans’ trust in their government. The USA FREEDOM Act is an essential first step. I would like to thank Congressmen Conyers and Amash, Congresswoman Lofgren, Chairman Issa and others for working with us to draft this important legislation and encourage all my colleagues to support it.”

Now, before you go off and petition your local lawmakers to pass this law, you might want to check out Sen. Patrick Leahy’s statement on his bill. It’s an excellently written piece on how he feels about the NSA and what he hopes the legislation will accomplish.

[Image: Patrick Leahy]

October 29, 2013
Sen. Leahy Introduces USA Freedom Act To Reign In NSA

One of the most vocal opponents of the NSA’s surveillance program has been Sen. Patrick Leahy. He’s promised for a while now that he would bring some sort of anti-NSA legislation to the floor, and he’s now done that with the help of Patriot Act author Rep. Jim Sensenbrenner.

Last night, Leahy began to circulate an outline of what he calls the USA Freedom Act. The bill would drastically limit what the NSA can do while ending some of its more controversial surveillance programs. It would also make both the NSA and FISA court more transparent.

To start, Leahy’s bill would end the bulk collection of Americans’ phone metadata under Section 215 of the Patriot Act. It would limit the collection of phone metadata to international terrorism or clandestine intelligence investigations. It would also require any and all investigations to pertain to one of the following:
A foreign power or agent of a foreign power.
The activities of a suspect agent of a foreign power who is the subject of an investigation.
An individual in contact with, or known to, a suspected agent of a foreign power.

That already sounds pretty good, but Leahy’s bill goes even further by prohibiting the use of “reverse targeting.” For those unaware, this is a tactic used by the NSA to obtain the communications of Americans in the name of investigating a foreign threat.

As for incidental data collection, it would require the NSA to “aggressively filter and discard information about Americans collected through PRISM and related programs.”

Moving on, Leahy’s legislation would work to reform the FISA court. It would create what Leahy calls the Office of the Special Advocate, or OSA. The OSA would be able to appeal decisions made by the FISA court, and would be staffed by lawyers cleared to view classified materials.

More so, it would require the FISA court to regularly report to Congress on issues relating to its decisions. The Privacy and Civil Liberties Oversight Board would also be given subpoena authority to “investigate issues related to privacy and national security.”

As for transparency, it would require the Justice Department to declassify all FISA court decisions made after July 10, 2003 that “contain a significant construction or interpretation of law.” It would also allow private companies to disclose estimates of the number of federal data requests they receive while requiring the government to disclose an estimate of the number of FISA orders it sends out on an annual basis.

Finally, Leahy’s bill would adopt a “single standard for Section 215 and NSL protection to ensure the Administration doesn’t use different authorities to support bulk collection.” It would also add a “sunset date to NSLs requiring that Congress reauthorize the government’s authority thereby ensuring proper congressional review.”

So, what do you think? It’s a pretty good set of rules that would go a long way in reigning in the NSA. It might be able to get pretty far as well thanks to it being backed by Leahy, the Senate Judiciary Committee Chairman. In fact, the only real challenge it will face comes from Senate Intelligence Chairwoman Dianne Feinstein. She has consistently supported the NSA’s powers and has vowed to everything she can “to prevent this [phone data] program from being canceled.”

Despite Feinstein’s challenge, Leahy’s bill faces an even greater threat – the continued government shutdown. Until Congress can work together to pass a CR, we’re not going to see anything done to the NSA. Of course, it doesn’t really matter at this point anyway as 75 percent of the NSA’s civilian workforce has been furloughed.

[Image: Patrick Leahy/Facebook]
[h/t: The Hill]

October 4, 2013

Charles McCullough Called On To Investigate The NSA

It’s a well-known fact at this point that the NSA has violated the Fourth Amendment rights of Americans. The Snowden leaks and official disclosures have both pointed out that the agency has violated its own rules regarding the protection of Americans’ civil rights numerous times. The big question now is whether or not these violations were intentional.

The Hill reports that nine Senate Judiciary Committee members have sent a letter to the Charles McCullough, Inspector General of the Intelligence Community, asking him to conduct a thorough review of the NSA. In particular, the letter calls for McCullough to look into the following matters:

Senate To Grill NSA Over Surveillance Programs This Week

It’s been almost two months since Edward Snowden revealed the existence of the NSA’s spy programs to the world. Any other issue would have been swept under the rug by now, but Congress is still pursuing changes to the agency. The House had their chance last week, and now it’s the Senate’s turn.

The Hill reports that the Senate Judiciary Committee will be holding a hearing this week in which its members will be looking into the NSA’s spy programs. Both supporters and opponents of the agency will be present to make their case. In particular, James Cole, deputy attorney general at the Justice Department, and Jameel Jaffer, deputy legal director at the American Civil Liberties Union, will be making their case for or against the spy programs revealed last month.

What makes this hearing especially interesting is that it’s being headed by the Judiciary Committee Chairman Patrick Leahy. He has already introduced legislation that would curtail the NSA’s ability to collect phone records, and it sounds like he’s going to use this hearing to further pursue his legislation:

“I remain deeply concerned about the expansive use of government surveillance under [the Foreign Intelligence Surveillance Act]. The authorities under this law, and the government’s interpretation of them, must be carefully scrutinized by Congress. As I have said, just because we have the ability to collect huge amounts of data, it does not mean that we should be doing so.”

Leahy’s comments regarding the NSA leaves one hopeful, but the House’s prior performance doesn’t inspire much confidence. Last week, an amendment from Reps. Justin Amash and John Conyers that would have severely limited the NSA’s spying powers tried to piggyback on the 2014 Defense spending bill. Unfortunately, the amendment was defeated in a narrow vote.

The narrow vote has some confident that a similar push in the Senate may yield more positive results, but you have to also remember that some of the most hardcore NSA supporters are in the Senate. This is largely the same Senate that refused to divulge details on how many Americans had been targeted by the NSA because some members said such details must be kept secret.

Even if I’m not particularly hopeful, the Senate does also house quite a few NSA opponents as well. Sens. Ron Wyden, Rand Paul and others could combine their powers with Leahy to push his legislation forward. We can only hope, right?

Senate Judiciary Committee To Debate ECPA Reform This Week

ECPA, or the Electronic Communications Privacy Act, has long been in need of an update. The Senate tried last year, but ran out of time. Now it’s a priority and it will hopefully get the time it deserves this week.

The Hill reports that the Senate Judiciary Committee plans to mark-up Sen. Patrick Leahy’s ECPA amendment on Thursday morning. S.607 would require law enforcement to obtain a warrant when requesting emails as part of an investigation. The current law under ECPA requires a warrant only if the email is less than 180 days old. An older email, or one that’s already been opened, only requires a subpoena under current law.

Sen. Leahy issued the following statement today in regards to the mark-up:

“Like many Americans, I am concerned about the growing and unwelcome intrusions into our private lives in cyberspace. I have long believed that our government should obtain a search warrant — issued by a court — before gaining access to our email and other private communications. This week the Senate Judiciary Committee will begin consideration of legislation that I authored with Republican Senator Mike Lee to reform the Electronic Communications Privacy Act to make sure that this occurs, and that the overall privacy protections for our email and other electronic communications are strengthened. Safeguarding Americans’ privacy rights is not a Democratic issue or a Republican issue — it is something that is important to all Americans, regardless of political party or ideology. I hope that all members of Congress share this view and will support this timely and significant legislation that upholds Americans’ privacy rights.”

Sen. Leahy’s proposed ECPA amendment was introduced in late March, but one event in particular may have forced his hand to push ECPA reform faster than he may have planned. The ACLU obtained a number of documents from the IRS that suggested the agency obtained emails without a warrant, and said that Internet users “do not have a reasonable expectation of privacy.”

In response, Rep. Charles Boustany sent a letter to the IRS asking the agency to explain its email policy. It’s highly unlikely that the agency would answer all of the questions posed by Rep. Boustany, but it did say that it “treats taxpayers with respect” and “does not use emails to target taxpayers.”

Sen. Leahy’s bill is a great first step to updating the decades old ECPA, but a House vote this week could be a different first step in making an updated ECPA a moot point. CISPA, a bill that would let companies share you private information with the government, will go to the House floor for a vote this week. If it somehow makes its way into law, it would allow companies to share your emails and much more with the government while enjoying total immunity in the case the government uses that information for anything illegal. Fortunately, the White House has serious reservations, but it didn’t go so far as to issue a veto threat.

We’ll keep following both ECPA and CISPA as they make their way through the legislature over the coming months. We can only hope that the former makes its way all way through, and the latter is treated to the same ignoble death its predecessor was dealt last year.

Sen. Patrick Leahy Introduces ECPA Reform Bill In The Senate

The House has been unusually proactive early this year in attempting to pass email privacy protections through an updated Electronic Communications Privacy Act. In fact, the House Judiciary Committee held a hearing this morning to gather testimonies from Google, law experts, and law enforcement on potential fixes for the ECPA. Now the Senate is finally ready to reveal its bill – authored by the lawmaker who helped write the original bill over 20 years ago.

The Hill reports that Sen. Patrick Leahy and Sen. Mike Lee have introduced the Electronic Communications Privacy Act Amendments Act of 2013 in the Senate today. It doesn’t have quite the same ring as Rep. Zoe Logren’s bill that was introduced in the House earlier this month, but it will accomplish much the same thing.

In short, Leahy’s bill will require law enforcement to obtain a warrant before accessing private emails or other online online communications. Under current law, law enforcement need only submit a subpoena to obtain emails that are more than 180 days old. What’s more is that the bill would require law enforcement to notify a user that their online communications were under investigation, but the notification requirement can be delayed with a court order.

“No one could have imagined just how the Internet and mobile technologies would transform how we communicate and exchange information today,” said Leahy. “Privacy laws written in an analog era are no longer suited for privacy threats we face in a digital world. Three decades later, we must update this law to reflect new privacy concerns and new technological realities, so that our Federal privacy laws keep pace with American innovation and the changing mission of our law enforcement agencies.”

All of this may sound really familiar because it is. Leahy attempted to pass an amendment to the ECPA during the last Congress, but it never went to the floor for a vote before the end of the year. This latest bill gives Leahy a head start on negotiations to hopefully get a bill passed this year.

Sen. Patrick Leahy’s Cellphone Unlocking Bill Is A Temporary Fix For A Broken DMCA

Cellphone unlocking has become a top priority in Washington since the White House threw its support behind the movement. Now it’s up to senators to pass the legislation required to permanently add an exemption to the DMCA. The latest bill from Sen. Patrick Leahy unfortunately doesn’t do that.

On Monday, Leahy introduced the Unlocking Consumer Choice and Wireless Competition Act to restore the exemption in the DMCA that allows consumers to unlock their cellphone after a contract is up. The Hill predicts that Leahy’s bill will be the one to move forward as his committee – the Senate Judiciary Committee – has authority over copyright issues.

“This straightforward restoring bill is about promoting consumer rights,” Leahy said. “When consumers finish the terms of their contract, they should be able to keep their phones and make their own decision about which wireless provider to use.”

The big difference between Leahy’s bill and the previous bill introduced last week by Sen. Amy Klobuchar is that Leahy doesn’t give any authority to the FCC on the issue of cellphone unlocking. In that sense, Leahy’s bill is better as it targets the real issue behind the cellphone unlocking – DMCA hardware circumvention exemptions.

Unfortunately, Leahy’s bill would not reform the DMCA to permanently add cellphone unlocking as an exemption. Instead, his bill would add cellphone unlocking back to the exemption list, and order the Librarian of Congress to consider adding tablets to the exemption list as well. In essence, Leahy’s bill is a temporary fix for a larger problem, and we would be stuck discussing this same issue three years from now when the Librarian of Congress decides DMCA exemptions.

Fortunately, there’s still time to amend Leahy’s legislation to make sure cellphone unlocking is afforded a permanent exemption. Even if he isn’t calling on the FCC in his legislation, he should at least listen to its recommendation:

“The Digital Millennium Copyright Act (DMCA), as it pertains to this issue, unnecessarily restricts consumer choice and is a case of the government going too far,” FCC commissioner Ajit Pai said. “Fortunately, there’s a simple solution: a permanent exemption from the DMCA for consumers who unlock their mobile devices.”

Will Congress Finally Pass An Email Privacy Bill This Year?

An updated Electronic Communications Privacy Act, or ECPA, was a good idea proposed at the wrong time. The amendment would have protected our privacy in online communications, but its proposal at the end of the last Congress ensured its demise. With a new Congress comes a new chance to pass it, and some lawmakers are taking that chance.

The Hill reports that House Judiciary Committee Chairman Bob Goodlatte has laid out his priorities for 2013, and the ECPA amendment is near the top. He said that Committee will “look at modernizing the decades-old Electronic Communications Privacy Act to reflect our current digital economy.”

The amendment’s original sponsor in the Senate, Patrick Leahy, is also reportedly on board with trying to pass the bill again. He and Goodlatte will presumably work together to get something passed this time around.

Do you think the ECPA can pass the House and Senate this year? Should it be a priority? Let us know in the comments.

So, why is an updated ECPA important again? The original bill was drafted and passed into law in 1986. It’s intent was to protect electronic communications from government surveillance, but it was written with the technology of the late 80s in mind. Email and other electronic communications have evolved and greatly expanded since then. Some lawmakers and privacy proponents think the bill needs a rewrite to address changes in how we communicate online.

The current ECPA requires law enforcement to simply obtain a subpoena before going through your email. Beyond that, the only limitation is that they can go through emails that have been opened, or those that are more than 180 days old. It’s kind of ridiculous to think that this was acceptable in the late 80s when there were maybe only a few thousand email messages being sent among a handful of people, but it’s unacceptable when there are billions of email messages being sent out everyday.

That’s why many lawmakers feel that the ECPA needs to be updated, and Goodlatte isn’t the only one in the House working on a solution. California Rep. Zoe Lofgren has been working on her own version of the bill called ECPA 2.0 Act of 2012, but it was killed with the last Congress. Lofgren will probably reintroduce the bill in this year’s Congress, however, and Goodlatte would be wise to back it. It features a number of protections that any person who communicates over the Internet would appreciate: