[bestbits] International civil society letter to Congress to follow up from HRC statement

Wed Jun 12 11:59:02 EDT 2013

+1 on Kevin comments

On Wed, Jun 12, 2013 at 11:58 AM, Kevin Bankston <kbankston at cdt.org> wrote:

> Ugh--used the old BestBits address.  Using the new one.
>
> ____________________________________
> Kevin S. Bankston
> Senior Counsel and Free Expression Director
> Center for Democracy & Technology
> 1634 I St NW, Suite 1100
> Washington, DC 20006
> 202.407.8834 direct
> 202.637.0968 fax
> kbankston at cdt.org
>
> Follow CDT on Twitter at @cendemtech
>
> On Jun 12, 2013, at 11:51 AM, Kevin Bankston <kbankston at cdt.org> wrote:
>
> Hi everyone--I'm not sure how BestBits got dropped from this thread?  I
> thought that was going to be the main channel for work on this letter.  So,
> adding back.
> ____________________________________
> Kevin S. Bankston
> Senior Counsel and Free Expression Director
> Center for Democracy & Technology
> 1634 I St NW, Suite 1100
> Washington, DC 20006
> 202.407.8834 direct
> 202.637.0968 fax
> kbankston at cdt.org
>
> Follow CDT on Twitter at @cendemtech
>
> On Jun 12, 2013, at 11:23 AM, Kevin Bankston <kbankston at cdt.org> wrote:
>
> FAA was reauthorized in December 2012 until 2017.  When dealing with
> Congress specific is always best but for now and for this group's purposes
> I think that just getting across the need for action is sufficient; the
> discussion about what specific amendments would be appropriate is a much
> more complex one that will take some time (you'll note that even the
> domestic advocacy effort, stopwatching.us, is still fuzzy on exactly what
> it is asking for).
>
> Also, some who weren't on the original thread asked what Andrew's original
> questions were; they are below my sig.  Also, to answer an aspect of the
> question I didn't answer before: unlike the original Bush-era version of
> the NSA programs, the most recently revealed aspects all seem to be
> occuring under FISA court order as per authorities in the FISA statute.  We
> don't think that the statutes actually do or should authorize these things,
> but the Administration and the FISA court and many members of Congress
> clearly disagree.  That's why we need to change the statutes, to the extent
> we can.  Otherwise, there's little to be done (except successfully
> challenge the statutes on constitutional grounds, although as the Clapper
> case demonstrated, achieving standing to bring such a challenge can be very
> difficult.)
> ____________________________________
> Kevin S. Bankston
> Senior Counsel and Free Expression Director
> Center for Democracy & Technology
> 1634 I St NW, Suite 1100
> Washington, DC 20006
> 202.407.8834 direct
> 202.637.0968 fax
> kbankston at cdt.org
>
> Follow CDT on Twitter at @cendemtech
>
> Begin forwarded message:
>
> *From: *Andrew Puddephatt <Andrew at gp-digital.org>
> *Subject: **[bestbits] RE: International civil society letter to Congress
> to follow up from HRC statement*
> *Date: *June 12, 2013 4:41:05 AM EDT
> *To: *'Jeremy Malcolm' <jeremy at ciroap.org>, "bestbits at lists.bestbits.net"
> <bestbits at lists.bestbits.net>
> *Cc: *"webwewant at googlegroups.com" <webwewant at googlegroups.com>, "
> irp at lists.internetrightsandprinciples.org" <
> irp at lists.internetrightsandprinciples.org>
>
> Hi everyone****
>
> As we are referring to specific US legislation - Section 215 of the USA
> PATRIOT Act, the State Secrets Privilege, and the FISA Amendments Act I’d
> like to understand the legislation.  From what I can read FISA talks about
> establishing a court  “*which shall have jurisdiction to hear
> applications for and grant orders approving electronic surveillance
> anywhere within the United States” and Section 215 then expands the scope
> of records searches dealt with by the court.  This is obviously a concern
> to US citizens but a letter from international organisations should pick up
> on the issue of non US citizens.*
> * *
> *Can someone direct me to any relevant legislation that refers to non US
> citizens, if there is such legislation?  Can our US friends tell us which
> bit of legislation, if any,  allows the surveillance of non US citizens?  I
> want to be clear whether this is happening outside of the law (an executive
> branch responsibility) or within the law (the legislative branch)***
>
>
>
> On Jun 12, 2013, at 10:56 AM, Andrew Puddephatt <Andrew at gp-digital.org>
> wrote:
>
> Kevin****
>
> That’s helpful thanks – does the case in the Supreme Court,  *Clapper v
> Amnesty International* which was thrown out in 2013 have any bearing?  As
> I understand it, it challenged the general provisions to acquire
> communications without “probable cause” but Amnesty as the plaintiff could
> not establish injury to anyone?   From your brief the key change we would
> be looking for is amendment of the FISA Amendments Act (FAA) 2008 which
> set this in motion.  Do you know when this next requires authorisation (if
> it does?) ****
>
> Of course it maybe that any general letter should avoid specific
> references to legislation, as the current draft seems to, but I would be
> interested in your views as to whether it is more effective in the US
> context to raise a general complaint or to focus upon specific
> legislative/executive changes that you want to achieve?****
>
> *Andrew Puddephatt* Executive Director
> *GLOBAL PARTNERS* DIGITAL****
> Direct:   +44 (0)20 7549 0336
> Office: +44 (0)20 7549 0350
> Mobile: +44 (0)7713 399 597
> Skype: andrewpuddephatt****
>
> Address: Development House, 56–64 Leonard Street, London EC2A 4LT****
>
> *gp-digital.org*
>
> *From:* webwewant at googlegroups.com [mailto:webwewant at googlegroups.com] *On
> Behalf Of *Kevin Bankston
> *Sent:* 12 June 2013 15:40
> *To:* anriette at apc.org
> *Cc:* michael gurstein; webwewant at googlegroups.com;
> irp at lists.internetrightsandprinciples.org
> *Subject:* Re: [bestbits] International civil society letter to Congress
> to follow up from HRC statement****
> ** **
>
>
> By then we might also have responses to Andrew Puddephatt's questions.****
>
> ** **
> I'm not sure how best to answer Andrew's questions; FISA is a complex law.
>  And to be clear, Section 215 of the PATRIOT Act was an amendment to FISA's
> provision for court orders for records; not a separate law.  And the state
> secrets privilege is common law; there is no statute for it.  But I'll do
> my best!****
> ** **
> To read Andrew's question as narrowly as possible so that I can give a
> quick answer:  In the context of foreign intelligence and terrorism
> investigations, FISA regulates surveillance conducted inside the United
> States, and acquisition of records from companies inside the United
> States, and surveillance outside of the United States to the extent it
> implicates United States person (i.e., citizens and naturalized permanent
> residents); there is also the National Security Letter authority which is
> an authority for the FBI to obtain records without going through the FISA
> Court.  ****
> ** **
> These authorities directly implicate the privacy of non-Americans to the
> extent that 1) non-Americans may reside in the US, 2) non-Americans
> communications will transit or be stored in facilities in the US, 3)
> records about non-Americans will be stored by companies in the US.
>  Finally, it also implicates the privacy of non-Americans to the extent
> that it does not at all regulate USG surveillance of non-Americans outside
> of America.****
> ** **
> FISA is at 18 USC 1801 et seq, in Chapter 36 of our US Code:****
> http://www.law.cornell.edu/uscode/text/50/chapter-36****
> ** **
> In most relevant part, Subchapter I deals with individual wiretaps
> ("electronic surveillance"), II with secret physical searches, III with pen
> registers and trap and trace devices (i.e. surveillance of metadata), IV
> with records demands (now referred to as PATRIOT 215 orders since it was
> significantly amended by that section of PATRIOT).  Meanwhile, Subchapter
> VI--added by the FISA Amendments Act (FAA) in 2008--provided the new and
> seriously problematic authority to obtain year long orders authorizing
> "programs" of non-individualized surveillance of communications where at
> least one party to the communication is outside of the country, while also
> allowing without any court authorization the interception of any
> foreign-to-foreign communications transiting the US; that is the authority
> under which PRISM is being used, as far as we best understand it.****
> ** **
> Therefore and to be absolutely clear: amendment to these laws--and
> especially a narrowing of the FAA--would SUBSTANTIALLY impact the privacy
> of every non-American who uses modern communications networks and services,
> especially those with facilities in the US.  And the assistance of
> international civil society will be critical in any effort to accomplish
> such amendments.  So--thank you all for what you've been doing!  ****
> ** **
> Best,****
> Kevin****
> ____________________________________****
> Kevin S. Bankston****
> Senior Counsel and Free Expression Director****
> Center for Democracy & Technology****
> 1634 I St NW, Suite 1100****
> Washington, DC 20006****
> 202.407.8834 direct****
> 202.637.0968 fax****
> kbankston at cdt.org****
>
> Follow CDT on Twitter at @cendemtech****
> ** **
> On Jun 12, 2013, at 10:02 AM, Anriette Esterhuysen <anriette at apc.org>
> wrote:****
>
>
> ****
> We need a clean copy.. but I am afraid I can't work on it today.
>
> But thanks MIke and others who have given input.  I would be happy to let
> Joy and Jeremy clean up and give us a version to send tomorrow or Friday.
>
> By then we might also have responses to Andrew Puddephatt's questions.
>
> Anriette
>
>
> On 12/06/2013 15:03, michael gurstein wrote:
> > I`ve commented as well and also****
>       around all day...
>
> ****
>       >
>
> ****
>       > M
>
> ****
>       >
>
> ****
>       > -----Original Message-----
>
> ****
>       > From: webwewant at googlegroups.com****
>       [mailto:webwewant at googlegroups.com <webwewant at googlegroups.com>] On
>
> ****
>       > Behalf Of Anriette Esterhuysen
>
> ****
>       > Sent: Wednesday, June 12, 2013 4:28 AM
>
> ****
>       > Cc: webwewant at googlegroups.com;****
>       irp at lists.internetrightsandprinciples.org
>
> ****
>       > Subject: Re: [bestbits] International civil society letter to****
>       Congress to
>
> ****
>       > follow up from HRC statement
>
> ****
>       >
>
> ****
>       >
>
> ****
>
> Great work. Thanks Joy and Jeremy . I have made some comments. Will be
> around all day if needed.
>
> Anriette
>
> On 12/06/2013 06:01, Jeremy Malcolm wrote:
> > This follows on from a telephone call organised by the Web Foundation
> > yesterday, in which APC was asked to coordinate a civil society letter
> > to the US government from international organisations.  That letter
> > would follow on from our joint statement to the Human Rights Council,
> > and we would invite Human Rights Watch and Privacy International to
> > participate in drafting.  APC agreed to do this and suggested
> > continuing to use Best Bits as the coordinating coalition.
>
> > Here is the first rough draft of the text that Joy from APC and I have
> > begun to put together, which awaits your comments and improvements:
>
> > http://igcaucus.org:9001/p/your_name_here (sorry for the dumb URL)
>
> > Although I'm cc'ing the IRP and Web We Want lists, to avoid
> > fragmentation of discussions on the text like happened inadvertently
> > last time, can I suggest, if nobody objects, that we centralise on
> > this list, and that if you are not a member you can join at
> > http://lists.bestbits.net/wws/info/bestbits.  To bring in others, you
> > can point them towards this list too.
>
> ****
> >
>
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> --
> ------------------------------------------------------
> anriette esterhuysen anriette at apc.org
> executive director, association for progressive communications
> www.apc.org
> po box 29755, melville 2109
> south africa
> tel/fax +27 11 726 1692****
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