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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