Tech and media firms join Twitter in key test of FBI gag orders

A bitter fight between the Justice Department and Silicon Valley is expanding as a diverse group of companies have lined up behind Twitter in a case that will help determine the limits of free speech in the age of Edward Snowden.

On Tuesday, groups ranging from BuzzFeed to Wikipedia to the Guardian filed friend-of-the-court briefs (see below) to support a challenge by Twitter to Patriot Act gag orders. Two other large companies, which are only allowed to refer to themselves as “Corporations 1 & 2,” also filed briefs.

The case, which began when Twitter sued the Justice Department in October, turns on how companies may use so-called “transparency reports” to tell users about government requests for their data.

Twitter claims it has a right under the First Amendment to say specifically how often it receives National Security Letters, while the government counters that companies can only do so in broad strokes lest they jeopardize national security.

In recent years, the FBI has made extensive use of National Security Letters to obtain information about subscribers, while also attaching gag orders to the letters that forbid companies from revealing they have even received a letter in the first place. The Justice Department has issued hundreds or thousands of such letters to companies like Google, Facebook and AT&T.

In its lawsuit, Twitter claims it is an illegal prior restraint of free speech for the government to bar companies from even disclosing that they have received a letter. A group of media companies has now voiced support for that argument:

“Twitter’s proposed transparency report is no less entitled to free speech protections than ‘literature’ or ‘movies,'” said the brief filed on behalf of BuzzFeed, NPR, the Washington Post, PEN America, the Guardian and First Look Media.

The brief reflects the media’s newfound legal interest into what has largely been a tech industry fight, but also shows how digital media companies like BuzzFeed are finally taking up the legal fight for free speech, a burden that has long been borne almost entirely by old-line newspaper companies.

“Corporations 1 & 2”

Meanwhile, a separate filing shows that a phone and internet company are also weighing in on the Twitter case, but in the guise of “Corporations 1 & 2.” The companies (which are likely Verizon and Google or Yahoo) are using the pseudonyms at the direction of a judge, and are muzzled in part because they are already before an appeals court in another national security case over the right to disclose government demands.

The right of internet companies to discuss security letters has become more pressing since 2013 , when leaked documents from Edward Snowden revealed massive surveillance operations by the U.S. government. Those operations rely on obtaining information from tech and phone companies, and have been facilitated by the legal process governing Patriot Act letters, as well as a related process for NSA demands.

In response, companies like Twitter have come to claim that free speech and the public interest give them the freedom to disclose how many NSA and FBI letters they receive in the first place. The companies stress they are not arguing for the right to disclose the contents of the letters, since doing so could jeopardize ongoing investigations, but only the existence of the letters.

The docket also shows that a group of other entities  — the Wikimedia Foundation, CloudFlare, Sonic, Wickr, Credo Mobile and Automattic (publisher of WordPress.com) — filed a brief in support of Twitter.

Here’s a copy of the media companies’ filing with some of the key parts underlined. Note that a key part of the argument turns on whether the federal judge has authority to hear the case in the first place (as the companies argue) or if the case belongs instead in a controversial secret court (as the Justice Department claims).

Media Amicus in Twitter Case

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This article was updated at 12:35pm ET to note that Automatic is the publisher of WordPress.com; an earlier version said “WordPress” (which refers to the software used by the company, WordPress.com). This article was also updated at 1:40pm on Thursday to clarify that it was the Wikimedia Foundation (not Wikipedia) that was on the amicus brief.

Charlie Hebdo murders are no excuse for killing online freedom

There’s been a predictable split in the reactions to Wednesday’s slaughter of the staff of French satirical newspaper Charlie Hebdo, along with others including police who were trying to protect them. On the one hand, hundreds of thousands of people have rallied in France and across Europe in defiance against those behind this attack on free speech…

… while others have taken a decidedly different tack, using the outrage as a justification for the rolling-back of online civil liberties. This approach was taken by Dan Hodges in the Telegraph, and by the Sun in an editorial arguing that “intelligence is our best defense… yet liberals still fret over the perceived assault on civil liberties of spooks analyzing emails.”

Here’s what Hodges (a well-known admirer of Tony Blair, the British prime minister who was no friend of civil liberties) wrote:

We hear a lot about freedom, and threats to our freedom. We heard about it, for example, when the government asked the Guardian to stop publishing the Snowden files because of the risk to national security. We heard about it last year, when David Cameron announced he was bringing back plans to allow the security agencies to monitor, and retain data on, our electronic communications – the so-called ‘snooper’s charter’. We heard about it in the wake of the Lee Rigby killing, where we [were] told the state would use the murder as an excuse for a further erosion of our liberties.

But those are not real assaults on our freedom. Switch on your TV. You will see and hear what an assault on freedom really looks like…

If one way of stopping obscenities like today is providing the security services a bit more access to our e-mails, we must give it to them. If it means internet providers handing over their records, the records must be handed over. If it means newspapers showing restraint the next time an Edward Snowden knocks on their door, then restraint will have to be shown. Because look who came knocking at the door today.

Hodges must be given credit for at least calling himself a “coward” in that piece, saving time for the rest of us.

I’m not going to go into the rights and wrongs of Charlie Hebdo’s content, much of which I personally found grossly offensive. That, after all, is the publication’s aim – to make points offensively (to a multitude of targets, it should be noted) and to meet calls for restraint with more proud offense. Freedom of expression is an essential civil liberty, not only in France, but across much of the democratic world. It was set out in the Declaration of the Rights of Man and of the Citizen, which emerged from the French Revolution in 1789, and it is today enshrined on an international level in the International Convention on Civil and Political Rights (ICCPR) .

The ICCPR’s signatories, including France, the U.K. and most of the world, have also pledged to ensure that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.” Yes, this is a right that needs to be balanced against others, most notably the right to security, but arguably no calculation of that balance can justifiably permit mass surveillance.

To quote last year’s report on online mass surveillance by Ben Emmerson, the U.N.’s special rapporteur on the protection and promotion of human rights while countering terrorism:

International human rights law require States to provide an articulable and evidence-based justification for any interference with the right to privacy, whether on an individual or mass scale. It is a central axiom of proportionality that the greater the interference with protected human rights, the more compelling the justification must be if it is to meet the requirements of the Covenant. The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether. By permitting bulk access to all digital communications traffic, this technology eradicates the possibility of any individualized proportionality analysis.

Apart from the fact that mass surveillance hasn’t been shown to work – France’s extensive surveillance regime, expanded just weeks ago, clearly failed in this case – it is no way to protect freedom of expression. It is a tool for chilling free speech, of dissuading people from speaking their minds, and the same British government that wants to introduce the “snooper’s charter” is also working to stop its citizens from seeing extremist material online, by getting ISPs to filter out such content. It is cracking down on free expression on social media, leading the police there to tweet things like this:

It forced the Guardian‘s editors to destroy computers holding copies of the Snowden cache with angle grinders, for whatever that was worth. And the Sun, so keen on Blair’s Regulation of Investigatory Powers Act (RIPA) this week, recently made an official complaint about the police using the mass surveillance law to spy on its journalists and their sources in a case that was embarrassing the government.

After a cartoon featuring Mohammed led to the firebombing of Charlie Hebdo’s offices in 2011, editor Stéphane “Charb” Charbonnier famously said: “It perhaps sounds a bit pompous, but I’d rather die standing than live on my knees.”

On Wednesday, Charb died for liberty. To suggest that the correct response is the curtailment of liberty — to effectively argue that terrorism should be met with fearful capitulation — is more offensive than anything he ever published.

UK watchdog: Public should wise up about surveillance cameras

The U.K.’s surveillance camera commissioner has warned that British citizens don’t seem to be aware of the implications of being constantly monitored in public places.

Although the crime-fighting efficacy of closed-circuit television (CCTV) cameras is debatable, they are everywhere in the U.K. (My favorite “These premises are under 24-hour CCTV surveillance” sign was in the now-closed Orwell pub — named after George — in Islington, London.) The job of the commissioner, Tony Porter, is to ensure that surveillance cameras in public places are used to “protect the public rather than spy on them,” though he doesn’t have any enforcement powers.

In an interview with the Guardian, Porter said he was troubled by “the lack of public awareness about the nature of surveillance”:

When people say ‘the public love CCTV’, do they really know what it does and its capability? Do they know with advancing technology, and algorithms, it starts to predict behavior?

The commissioner said he was worried about the rise of body-worn videos (BWVs), which are increasingly being sported by police, local council officers and even security staff in universities and supermarkets. He said he thought police BWVs – a hot topic in the U.S. recently — could dissuade the public from talking to them, and argued that on-campus BWVs raised questions about personal freedom and transparency. He also called on people who got drones for Christmas to have some sensitivity about their neighbors’ privacy.

Porter also urged more transparency in the police’s automatic number plate recognition (ANPR) systems, saying: “It is wrong not to be transparent because it impacts not just on the motorists, but on the whole psyche of the community. It is very dangerous to walk into a datafied society, where everybody is a number and everybody can be linked via ANPR to facial recognition, to another thing.”

I’m not sure what to add to that — Porter, a former counter-terrorism coordinator, knows what he’s talking about and he states his warnings well. It’s a pity that he doesn’t have enforcement powers, but hopefully those who do wield power will take what he says to heart, as surveillance regulation develops. Given the way the U.K. is going with online surveillance, though, I’m not feeling too hopeful about that.

UK surveillance probe goes public — sort of

A parliamentary inquiry into the laws governing British intelligence services is to add privacy implications to its remit, take submissions from the public and perhaps even hold some of its sessions in public.

U.S. phone companies quiet over legality of NSA data collection

http://www.theguardian.com/world/2013/sep/18/phone-companies-silent-nsa-data-collection

The Guardian reached out to all top U.S. phone companies including Verizon, CenturyLink and AT&T and asked them the question: “whether they accept that the bulk collection of their customers’ phone records by the National Security Agency is lawful.” The Guardian report was prompted by the publishing of a declassified opinion in the FISA court that reveals “that no telecom has challenged the court order for bulk collection of phone records.”