Guardian, The

[Commentary] In a secured room beneath the US Capitol, legislative aides working to finalize a bill intended to constrain the National Security Agency attempted to out-think a battery of lawyers working for the Obama Administration and the intelligence services.

The NSA, its credibility hurt by whistleblower Edward Snowden’s disclosures, is trying to reassure its overseers that it will abide by new congressional action, even as its advocates labor to shape the bill to its liking. But the agency's post-9/11 history has left the architects and advocates of the bill concerned about the ways in which it might once again reinterpret a law intended to restrain it into one allowing it more surveillance leeway than congressional architects intend.

Recent meetings between Hill aides and administration and intelligence lawyers yielded a sense of the legal reasoning likely to result if the USA Freedom Act becomes law. The NSA thinks it has not earned the public’s suspicion and has sought to assuage it since the Snowden disclosures. Its battalions of lawyers are preoccupied with restraining surveillance, veterans say, far more than they are with expanding the frontiers of the law. Still, congressional testimony has suggested that the agency will be reluctant to let legislation aimed at restricting surveillance have the final word.

[Commentary] In two significant but almost-completely overlooked legal briefs, the US government defended the constitutionality of the Foreign Intelligence Security Amendments Act, the controversial 2008 law that codified the Bush Administration's warrantless-wiretapping program.

That law permits the government to monitor Americans' international communications without first obtaining individualized court orders or establishing any suspicion of wrongdoing.

It's hardly surprising that the government believes the 2008 law is constitutional -- government officials advocated for its passage in 2008, and they have been vigorously defending the law ever since. Documents made public over the last eleven-and-a-half months by the Guardian and others show that the National Security Agency has been using the law aggressively. What's surprising -- even remarkable -- is what the government says on the way to its conclusion. It says, in essence, that the Constitution is utterly indifferent to the NSA's large-scale surveillance of Americans' international telephone calls.

The government also argues that Americans' privacy rights are further diminished in this context because the NSA has a "paramount" interest in examining information that crosses international borders. And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can't reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries -- the government doesn't name them -- might be monitoring those communications, too.

Reform is urgently necessary, and years overdue, but this imperfect legislation would leave some of the government's most sweeping authorities intact -- and to a large extent it would leave the privacy rights, of Americans and non-Americans alike, to the mercy of the NSA. The US Congress should pass the USA Freedom Act, but this legislation must be the beginning of reform, not the end.

[Jaffer is deputy legal director at the American Civil Liberties Union and director of the ACLU's Center for Democracy]

[Commentary] The US Supreme Court arguments involved a seemingly basic legal question about the future of the Fourth Amendment: do police officers need a warrant to search the cellphone of a person they arrest?

But the two privacy cases pit against each other two very different conceptions of what it means to be a supreme court in the first place -- and what it means to do constitutional law in the 21st century.

"With computers, it's a new world," several justices reportedly said in the chamber. Are they ready to be the kinds of justices who make sense of it? Cellphones expose so much of our most personal data that the decision should be a 9-0 no-brainer.

The basic problem that makes it a harder call is that lawyers and judges are by training and habit incrementalists, while information and communications technology moves too fast for incrementalism to keep up. But this kind of narrow legalism simply cannot do when the world is changing as rapidly as it is today: all narrow analogies will systematically fail to preserve the values they did five or ten years ago, especially when we're walking around with all the metadata coming out of the bank/medical monitor/full-on GPS trackers in our pockets.

The world is changing, and that narrow view of constitutional adjudication will not offer us meaningful protection. What we need in these news cellphone cases is for those five justices to join together and show that constitutional vision is more than just the workmanlike competence of lawyers. Otherwise, the coming decades will become a series of lurches from one formally defensible but substantively implausible invasion to another, with no end in sight -- as long as there's another iPhone in the works.

[Commentary] The Federal Communications Commission will say -- loud and proud – that it is fixing the open-web problem while actually letting it get worse, by providing a so-called "fast lane" for carriers to hike fees on sites trying to reach customers like you and me.

Which, inevitably, would mean you and I start paying more to use those sites -- if we aren't already.

If you live in America and believe in an open Internet, don't waste your time sinking into despair over politicians' betrayals. A little anger wouldn't hurt, but aiming it at the former cable and wireless industry lobbyist Tom Wheeler is pointless. Focus your attention on the people who he works for, and who allegedly work for you.

Start with President Barack Obama, whose unequivocal vow as a candidate to support an open Internet was as empty as so many of his other promises, if not an outright lie. Then:

1. At the local level, push for community broadband networks, owned and operated by the public. (Waiting for Google Fiber? You might as well wait to win the lottery. Google is not your daddy, or your savior.)
2. The telecommunications cartel has frantically worked to get state legislatures to prevent them from existing in the first place. Tell your state legislators that this is an unacceptable intrusion on your community's right to govern itself.
3. Finally, tell your member of the US House of Representatives and your US senators that they have a job to do -- to ensure the future of innovation and free speech in a digital world. In particular, tell them that Internet access is a public utility and should be treated as such.

Just in case you weren't jealous enough of the French already, what with their effortless style, lovely accents and collective will to calorie control, they have now just made it illegal to work after 6pm. Well, sort of.

Après noticing that the ability of bosses to invade their employees' home lives via smartphone at any heure of the day or night was enabling real work hours to extend further and further beyond the 35-hour week the country famously introduced in 1999, workers' unions have been fighting back.

Now employers' federations and unions have signed a new, legally binding labor agreement that will require staff to switch off their phones after 6pm.

Under the deal, which affects a million employees in the technology and consultancy sectors (including the French arms of Google, Facebook, Deloitte and PwC), employees will also have to resist the temptation to look at work-related material on their computers or smartphones -- or any other kind of malevolent intrusion into the time they have been nationally mandated to spend on whatever the French call la dolce vita. And companies must ensure that their employees come under no pressure to do so.

US intelligence chiefs have confirmed that the National Security Agency has used a "backdoor" in surveillance law to perform warrantless searches on Americans’ communications.

The NSA's collection programs are ostensibly targeted at foreigners, but in August the Guardian revealed a secret rule change allowing NSA analysts to search for Americans' details within the databases. Now, in a letter to Sen Ron Wyden (D-OR) of the Senate Intelligence Committee, the director of national intelligence, James Clapper, has confirmed for the first time this backdoor had been used in practice to search for data related to “US persons.”

“There have been queries, using US person identifiers, of communications lawfully acquired to obtain foreign intelligence targeting non-US persons reasonably believed to be located outside the United States,” Clapper wrote in the letter. “These queries were performed pursuant to minimization procedures approved by the FISA [Foreign Intelligence Surveillance Act] court and consistent with the statute and the fourth amendment.”

The legal authority to perform the searches, revealed in top-secret NSA documents provided to the Guardian by Edward Snowden, was denounced by Sen Wyden as a “backdoor search loophole.” Clapper did not disclose how many such searches had been performed by the NSA.

Microsoft is not unique in claiming the right to read users' emails -- Apple, Yahoo and Google all reserve that right as well.

The broad rights e-mail providers claim for themselves has come to light following Microsoft's admission that it read a journalist's Hotmail account in an attempt to track down the source of an internal leak. But most webmail services claim the right to read users' email if they believe that such access is necessary to protect their property. But other major email providers reserve exactly the same rights.

Yahoo requires users to "acknowledge, consent and agree that Yahoo may access… your account information and Content… in a good faith belief that such access… is reasonably necessary to… protect the rights… of Yahoo." Google's terms require the user to "acknowledge and agree that Google may access… your account information and any Content associated with that account… in a good faith belief that such access… is reasonably necessary to… protect against imminent harm to the… property… of Google". Apple "may, without liability to you, access… your Account information and Content… if we have a good faith belief that such access… is reasonably necessary to… protect the… property… of Apple".

The senior lawyer for the National Security Agency stated that US technology companies were fully aware of the surveillance agency’s widespread collection of data.

Rajesh De, the NSA general counsel, said all communications content and associated metadata harvested by the NSA under a 2008 surveillance law occurred with the knowledge of the companies -- both for the Internet collection program known as Prism and for the so-called “upstream” collection of communications moving across the Internet.

Asked during a hearing of the US government’s institutional privacy watchdog if collection under the law, known as Section 702 or the FISA Amendments Act, occurred with the “full knowledge and assistance of any company from which information is obtained,” De replied: “Yes.” De explained: “Prism was an internal government term that as the result of leaks became the public term,” De said. “Collection under this program was a compulsory legal process that any recipient company would receive.”

After the hearing, De added that service providers also know and receive legal compulsions surrounding NSA’s harvesting of communications data not from companies but directly in transit across the Internet under 702 authority.

Tumblr is one of the centerpieces of the intelligence community’s attempts at rebranding in the wake of what it considers a crisis wrought by Edward Snowden: a web clearinghouse of formerly classified documents related to the National Security Agency’s sweeping surveillance authorities, an exercise in transparency.

But the documents on the site are most often presented without a critical disclosure. While statements accompanying them refer to decisions by director James Clapper and other administration officials to release the surveillance-related information, nearly all the instances of such declassification – eight out of 12 – came to be published only after the government lost transparency cases, a fact that the Tumblr, known as IC On The Record, most often omits or obscures.

Warnings that phone call “metadata” can betray detailed information about your life has been confirmed by research at Stanford University.

Researchers there successfully identified a cannabis cultivator, multiple sclerosis sufferer and a visitor to an abortion clinic using nothing more than the timing and destination of their phone calls. Jonathan Mayer and Patrick Mutchler, the researchers behind the finding, used data gleaned from 546 volunteers to assess the extent to which information about who they had called and when revealed personally sensitive information.

The research aimed to answer questions raised by the NSA wiretapping revelations, where it was revealed that the US intelligence agency collects metadata -- but not content -- of millions of phone calls on mobile networks.