Saturday, August 10, 2013

Privacy World's August 2013 Newsletter Issue 2Aug

Subject: Privacy World's August 2013 Newsletter Issue 2Aug


> Privacy World - The WORLD'S SHREWDEST PRIVACY NEWSLETTER
> 
> NSA handing over non-terror intelligence
> 
> The National Security Agency is handing the Justice Department
> information, derived from its secret electronic eavesdropping
> programs, about suspected criminal activity unrelated to terrorism.
> 
> This little-known byproduct of counterterrorism surveillance
> continues amid controversy over the NSA's wide-ranging collection
> of domestic communications intelligence, including Americans'
> telephone calling records and Internet use.
> 
> It is unclear whether the referrals have been built upon the
> content of telephone calls and emails. Administration officials
> have previously assured Congress that NSA surveillance focuses on
> so-called metadata and in the main does not delve into the content
> of individual calls or email messages.
> 
> Also, some in the legal community question the constitutionality
> of criminal prosecutions stemming from intelligence-agency
> eavesdropping.
> 
> Current and former federal officials say the NSA limits non-terrorism
> referrals to serious criminal activity inadvertently detected during
> domestic and foreign surveillance. The NSA referrals apparently
> have included cases of suspected human trafficking, sexual abuse
> and overseas bribery by U.S.-based corporations or foreign corporate
> rivals that violate the Foreign Corrupt Practices Act.
> 
> "We can't task the collection of information for those purposes,
> and the Department of Justice can't ask us to collect evidence of
> that kind of a crime," said Robert Litt general counsel for the
> Office of the Director of National Intelligence.
> 
> "If the intelligence agency uncovers evidence of any crime ranging
> from sexual abuse to FCPA, they tend to turn that information over to
> the Department of Justice," Litt told an audience at the Brookings
> Institution recently. "But the Department of Justice cannot task
> the intelligence community to do that."
> 
> Litt declined to discuss NSA referrals to the Justice Department
> when asked about the practice by Hearst Newspapers after a Senate
> Judiciary Committee hearing last week.
> 
> The super-secret NSA surveillance disclosed by fugitive leaker
> Edward Snowden has already sparked a public outcry and congressional
> hearings, and threatened congressional intervention to limit the
> programs.
> 
> Litt's acknowledgment that the NSA is handing off intelligence to
> federal prosecutors could further stoke controversy and calls for
> action on Capitol Hill.
> 
> "If the information from surveillance or wiretaps is used by the
> NSA inconsistently with the warrant or other permission from the
> FISA court, certainly there would be a violation of law," said
> Sen. Richard Blumenthal D-Conn., a former U.S. attorney and state
> attorney general. "Unfortunately we have no access to the FISA court
> opinions or orders that may authorize this activity because they're
> largely secret. This presents yet another clear and powerful reason
> that we need more transparency in the FISA court."
> 
> Sen. John Cornyn R-Texas, a former Texas Supreme Court judge and
> state attorney general, said, "There's certainly room to improve
> the process and to reassure the American people that their privacy
> rights are being protected while at the same time making sure that
> we have the tools in place to keep us safe."
> 
> After intelligence-based information is referred to the FBI,
> the domestic law enforcement agency would have to prove probable
> cause to a federal judge to obtain a warrant to conduct electronic
> surveillance or a physical search as part of any domestic criminal
> investigation.
> 
> But some lawyers, particularly in the criminal defense community,
> see that process as constitutionally flawed.
> 
> "The NSA intercepts, whether they are mail covers, metadata or what
> have you, are in essence general warrants," said Harold Haddon a
> prominent criminal defense attorney from Denver. Using information
> from those warrants as the basis for a criminal prosecution "is
> a bright-line Fourth Amendment violation," Haddon said, referring
> to the constitutional protection against unreasonable search and
> seizure.
> 
> Rep. Alan Grayson D-Fla., a Harvard-trained lawyer who clerked
> for judges on the U.S. Court of Appeals in Washington, said it was
> "conceivable that by some kind of a fluke the NSA gets information
> that would lead to criminal prosecution of a U.S. citizen." But
> Grayson said a substantial number of referrals would be "a strong
> indication that the NSA has overstepped its authority."
> 
> The number of NSA referrals to the Justice Department is not publicly
> reported to Congress. A former federal official who served in the
> top echelons of both Bush administrations said there have been as
> many as 20 to 30 NSA referrals of non-terrorism criminal activity
> to the Justice Department.
> 
> The Justice Department did not respond to a request for comment
> for this story.
> 
> The "Patriot Act" enables the NSA to legally hand over information
> to the Justice Department about suspected criminal activity
> inadvertently derived from foreign intelligence surveillance,
> said Stewart A. Baker a former general counsel for the NSA who
> later led the 250-person policy directorate at the Department of
> Homeland Security during the second Bush administration.
> 
> "Criminal activity really has to be as plain as the nose on your
> face before NSA will turn anything over to the Justice Department,"
> said Baker, now a partner at the powerhouse Washington law firm
> Steptoe & Johnson. "The last thing an intelligence agency wants is
> to become enmeshed in the criminal justice system."
> 
> NSA handoffs only occur in cases where there has been "substantial
> criminal activity" that meets a pre-defined Justice Department
> standard of evidence and passes review by senior officials, according
> to the former Justice Department official who spoke on condition
> of anonymity.
> 
> FBI investigators and Justice Department prosecutors protect the
> intelligence-agency origins of such investigations to prevent
> criminal defense lawyers from summoning intelligence agents into
> court to testify.
> 
> "The problem you have is that in many, if not most cases, the NSA
> doesn't tell DOJ prosecutors where or how they got the information,
> and won't respond to any discovery requests," said Haddon, the
> defense attorney. "It's a rare day when you get to find out what
> the genesis of the ultimate investigation is."
> 
> The former Justice Department official agreed: "A defense lawyer
> can try to follow the bouncing ball to see where the tip came from
> -- but a prosecutor is not going to acknowledge that it came from
> intelligence."
> 
> Patrick Toomey an attorney at American Civil Liberties Union
> headquarters in New York, said NSA surveillance is tipping off
> Justice Department investigations without any public accountability.
> 
> "The NSA ability to disseminate the information that it gathers is
> a serious concern because it allows the NSA to transform material
> gathered for foreign intelligence purposes into the basis for a
> criminal prosecution," Toomey said.
> 
> NSA began making formal referrals to the Justice Department in
> response to enactment of the Foreign Intelligence Surveillance Act
> in 1978, said James Bamford a scholar who has written three books
> about the NSA. It was NSA surveillance that initially detected that
> Billy Carter, the younger brother of President Jimmy Carter, had
> become a paid agent of Libya, visiting the rogue nation at least
> three times and reportedly receiving a $220,000 loan and as much
> as $2 million to press Libya's case in Washington.
> 
> The president publicly disavowed his brother's activities.
> 
> Bamford, author of "The Shadow Factory: The Ultra-Secret NSA
> from 9/11 to the Eavesdropping on America," said NSA referrals
> are ongoing.
> 
> "There are a lot of gray areas where eavesdropping uncovers suspected
> crime," he said. "NSA hands the intercept to the Justice Department
> and it has to make a decision on whether to pursue it or not."
> 
> NSA surveillance overseas occasionally trips across evidence of
> violating international sanctions against countries such as Iran
> or companies violating anti-bribery laws in hopes of securing
> multimillion-dollar commercial or defense contracts.
> 
> Lucinda A. Low, another partner at Steptoe & Johnson, has defended
> clients in hundreds of cases involving alleged bribery or foreign
> corrupt practices.
> 
> "I haven't come across any instances where this kind of intelligence
> was a factor," Low said. But she added, "Most of us believe that
> those phone calls are monitored already."
> 
> The above article by Stewart M. Powell
> 
> Until next issue, stay cool and remain low profile!
> 
> Privacy World
> 
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