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

Wed Jun 12 12:09:40 EDT 2013

+1 to your comment on the whistleblowing paragraph.

M

From: Carolina Rossini [mailto:carolina.rossini at gmail.com] 
Sent: Wednesday, June 12, 2013 11:59 AM
To: Kevin Bankston
Cc: Joana Varon; anriette at apc.org Esterhuysen; michael gurstein;
webwewant at googlegroups.com; irp at lists.internetrightsandprinciples.org;
bestbits at lists.bestbits.net&gt
Subject: Re: [bestbits] International civil society letter to Congress to
follow up from HRC statement

+ 1 on Kevin's comments

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

Sorry, used the old best bits list address, now using new one...

Kevin

On Jun 12, 2013, at 11:53 AM, Kevin Bankston <kbankston at cdt.org> wrote:

I'm not sure how bestbits fell out of this thread--I thought bestbists was
going to be the main channel for this discussion--so adding that list back
into cc.

In addition to Carolina, I've also made some small tweaks and one big
comment.

The tweaks:

1) Changed "Some US-based Internet companies with global reach also seem to
be *complicit* in these practices" to "participating".  I am all for calling
out "complicity" in cases like, e.g., AT&T's cooperation with the Bush-era
program that operated without court approval (for the record, I'm one of the
attorneys who brought cases against AT&T and the NSA over that program,
while I was at EFF).  But as far as we know now the companies participating
currently are doing so under secret *order* of the FISA court and even if
they had attempted to challenge those orders we would never know.  So I'm
less willing to tar with the "complicity" brush.

2) Changed "Involved or affected companies *must* publish statistics" to
"must *be allowed to*" publish statistics.  Right now they are forbidden by
law from doing so.  So we should be asking USG to allow them to do so.

The one big comment, seconding Carolina's: I think that the paragraph
focusing on whistleblowing is a politically dangerous distraction from the
main point.  We had the same discussion in the stopwathing.us
<http://stopwathing.us/>  coalition--many people wanted to focus on
Snowden--but after a lot of debate it was agreed that doing so would
actually detract from what he is trying to accomplish.  I think the same is
true here.

Thanks,

K

PS CDT will have a blog post up shortly praising the HRC statement and the
Larue report and highlighting for a US audience the global human rights
impact of this issue.

____________________________________

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 11:34 AM, Carolina Rossini <carolina.rossini at gmail.com>
wrote:

Hi all

I just talked to Gene, and we have some new inputs. Edits on the letter.

C

On Wed, Jun 12, 2013 at 11:16 AM, Joana Varon <joana at varonferraz.com> wrote:

Hi folks, 
Great job! I'm adding some brackets.. if I might. 

Shall we be delivering this in Tunis, next week? During the Freedom Online
Coalition meeting.

best
joana

On Wed, Jun 12, 2013 at 3:44 PM, Carolina Rossini
<carolina.rossini at gmail.com> wrote:

Kevin,

Thank you for your inputs. However, do you think there is space to say -
besides reforming such law - there was a overreaching of authority ? 

C

On Wed, Jun 12, 2013 at 10:40 AM, Kevin Bankston <kbankston at cdt.org> wrote:

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] 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 <http://www.apc.org/> 
po box 29755, melville 2109
south africa
tel/fax +27 11 726 1692 <tel:%2B27%2011%20726%201692> 

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-- 

Joana Varon Ferraz
Centro de Tecnologia e Sociedade (CTS-FGV)
@joana_varon

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Carolina Rossini 

http://carolinarossini.net/

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skype: carolrossini

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