For the first time ever, a judge has invalidated a secret Patriot Act warrant


Calyx is a privacy-oriented ISP. In 2004, the FBI brought its owner, Nicholas Merrill, a National Security Letter -- one of the USA Patriot Act's secret search warrants, which comes with a gag order prohibiting the recipient from ever disclosing its existence.

Merrill has fought the gag order for 11 years, refusing to give up despite government attempts to get the case booted and to run up the court costs beyond Merrill's ability to pay.

He had a partial victory in 2010, when he and the ACLU won a court victory that allowed him to disclose some elements of the NSL, but left important details -- including the categories of information the FBI believes it can request under an NSL -- still secret. This latest victory overturns that restriction.

The judge in this case, Judge Victor Marrero, also presided over a 2007 case that overturned part of the Patriot Act, requiring investigators to go through the courts in order to get NSLs. In his Calyx decision, he condemned the government's secrecy as "extreme and overly broad."

U.S. District Judge Victor Marrero’s decision invalidated the gag order in full, finding no “good reason” to prevent Merrill from speaking about any aspect of the NSL, particularly an attachment to the NSL that lists the specific types of “electronic communication transactional records” (“ECTR”) that the FBI believed it was authorized to demand. The FBI has long refused to clarify what kinds of information it sweeps up under the rubric of ECTR, a phrase that appears in the NSL statute but is not publicly defined anywhere.

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EFF's new certificate authority publishes an all-zero, pre-release transparency report

EFF, Mozilla and pals are launching Let's Encrypt, an all-free certificate authority, in September -- but they've released a transparency report months in advance. Read the rest

NSA can't legally surveil Americans' every phone call, for now. Thanks, Edward Snowden.

For the time being, we can call our mom, our best friend, or a pizza delivery service without the NSA automatically keeping a record of who we called, when, and how long the conversation lasts.

If the PATRIOT Act ends tonight, what will that mean?


There's a chance the PATRIOT Act will end tonight at midnight. If that happens, the NSA will no longer enjoy the right to gather phone records of innocent Americans. And there's more. Here's a list of other liberties that government agencies will have to forfeit. Read the rest

Rand Paul plans to crush the PATRIOT Act

Official Portrait

Rand Paul, who sued the NSA two years ago, just announced that he plans to "force the expiration of the NSA illegal spy program" tomorrow in order to protect Americans' privacy rights. Here is his exclusive with Politico. Read the rest

Ron Wyden and Rand Paul kill the Patriot Act (ish)

After an all-night session, Rand Paul [R-KY] and Ron Wyden [D-OR] tag-teamed majority leader Mitch McConnell [R-KY] and beat him to the mat -- he has abandoned the current legislative effort to extend section 215 of the Patriot Act, which authorizes mass surveillance and is set to expire on June 1. Read the rest

Librarians: privacy's champions

Libraries have always been places where people gathered for intellectual inquiry, where communities could form around emerging ideologies that challenged the status quo. Read the rest

Kafka, meet Orwell: Lavabit's founder explains why he shut down his company

Writing in the Guardian, Lavabit founder Ladar Levison recounts the events that led to his decision to shutter his company in August 2013. Lavabit provided secure, private email for over 400,000 people, including Edward Snowden, and the legal process by which the FBI sought to spy on its users is a terrifying mix of Orwell -- wanting to snoop on all 400,000 -- and Kafka -- not allowing Levison legal representation and prohibiting him from discussing the issue with anyone who might help him navigate the appropriate law.

Levison discloses more than I've yet seen about the nature of the feds' demands, but more important are the disclosures about the legal shenanigans he was subjected to. In fact, his description of the legal process is a kind of bas relief of the kind of legal services that those of us fighting the excesses of the global war on terror might need: a list of attorneys who are qualified to represent future Lavabits, warrant canaries for the services we rely upon; and, of course, substantive reform to the judicial processes laid out in the Patriot Act. Read the rest

Patriot Act's author to spooks: roll over or you get nothing

James Sensenbrenner (R-WI), the architect of the Patriot Act, has repudiated his Frankenstein's monster -- though it took the NSA mass-spying scandal to do it (yo, James, where were you for the 10-ish years of horrors before Snowden's leaks?). He's told American spooks that if they keep on blocking reform to their habits, he'll lead an effort to tank the Patriot Act's spying provisions when they come up for renewal this June, and he sounds serious: "Unless Section 215 is fixed, you, Mr. Cole, and the intelligence community will end up getting nothing because I am absolutely confident that there are not the votes in this Congress to reauthorize 215." (via Ars Technica) Read the rest

Surveillance State Repeal Act: repealing the PATRIOT Act and some of FISA

Rush Holt (D-NJ) has introduced a bill called the "Surveillance State Repeal Act" that repeals the PATRIOT Act and much of FISA (though it leaves some pretty terrible parts of FISA intact). It's only 8 pages long, but it has the potential to do a lot of good. Read the rest

Hasan Elahi: "Giving the F.B.I. What It Wants"

We've blogged before about artist Hasan Elahi, who learned in 2008 that he was being tracked as a terror suspect by the U.S. for undisclosed reasons. He has never been charged with a crime, but that's hardly needed these days, thanks to the Patriot Act (which recently turned 10). The New York Times this weekend ran a sort of manifesto from Elahi, in which he describes how he transformed this extraordinary act of surveillance into an extraordinary work of art.

In an era in which everything is archived and tracked, the best way to maintain privacy may be to give it up. Information agencies operate in an industry that values data. Restricted access to information is what makes it valuable. If I cut out the middleman and flood the market with my information, the intelligence the F.B.I. has on me will be of no value. Making my private information public devalues the currency of the information the intelligence gatherers have collected.

Read the whole thing: Giving the F.B.I. What It Wants (NYT, thanks Miles O'Brien).

Also: Clive Thompson wrote this feature about him in Wired back in 2008.

(IMAGE: Top, art by Elahi which incorporates surveillance data about his location and activities. Middle, one of the FBI surveillance images of his whereabouts. Bottom, Mr. Elahi, via Wikipedia.)

 Man who claims FBI is after him puts entire life online

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PATRIOT Act at 10: the 3 worst provisions for ordinary Americans

As Xeni noted yesterday, the USA PATRIOT Act is now ten years old. In case you were wondering which parts of PATRIOT are the most offensive to liberty, human dignity and commons sense, the Electronic Frontier Foundation has celebrated the occasion with a handy guide to "three of the most dangerous provisions affecting ordinary Americans."

1. SECTION 215 – “ANY TANGIBLE THING” Under this provision, the FBI can obtain secret court orders for business records and other “tangible things” so long as the FBI says that the records are sought "for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities." The Foreign Intelligence Surveillance Court must issue the order if the FBI so certifies, even when there are no facts to back it up. These “things” can include basically anything—driver’s license records, hotel records, car-rental records, apartment-leasing records, credit card records, books, documents, Internet history, and more. Adding insult to injury, Section 215 orders come with a "gag " prohibiting the recipient from telling anyone, ever, that they received one.

As the New York Times reported, the government may now be using Section 215 orders to obtain “private information about people who have no link to a terrorism or espionage case.” The Justice Department has refused to disclose how they are interpreting the provision, but we do have some indication of how they are using Section 215. While not going into detail, Senator Mark Udall indicated the FBI believes it to allows them “unfettered” access to innocent Americans’ private data, like “a cellphone company’s phone records” in bulk form.

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