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  • Top Human Rights Court Rules UK Mass Surveillance Program Violated Privacy Rights: This week, the grand chamber of the European Court of Human Rights issued a final judgement in Big Brother Watch v. UK confirming that the UK's intelligence agency violated the right to privacy by systematically intercepting online communications without first applying necessary safeguards. The agency's mass surveillance program was "not in accordance with [EU] law," which only allows governments to retain data in an effort to combat "serious crime" and requires a court or administrative body to sign off on data collection. The UK law at issue was not limited to serious crime, nor did it require independent authorization; these "fundamental deficiencies" impermissibly increased the "risk of the bulk interception power being abused." Nevertheless, the grand chamber found that the agency's decision to operate a bulk interception program did not itself violate human rights, and the agency's sharing of sensitive digital intelligence with foreign counterparts--including with the NSA--was legal. Several chamber judges believed this ruling did not go far enough to condemn the sharing of wrongfully collected communications with other countries, noting the chamber "missed an excellent opportunity to fully uphold the importance of private life ... when faced with interference in the form of mass surveillance." EPIC has a strong interest in protecting the human right to privacy and has continuously opposed suspicionless mass collection of personal communications by domestic and foreign governments. EPIC participated in this case as a third-party intervenor and filed a brief describing U.S. intelligence authorities that allow the NSA to access the private communications of non-U.S. persons in violation of their rights. EPIC was also chosen by the Irish High Court to make amicus submissions in a case involving the international transfer of data from European servers to the U.S. in violation of E.U. law. (May. 25, 2021)
  • Appeals Court: NSA Call Metadata Program Was Illegal, Likely Unconstitutional: The Ninth Circuit U.S. Court of Appeals ruled today that the NSA's bulk collection of phone call metadata violated the Foreign Intelligence Surveillance Act and was likely unconstitutional. EPIC and a coalition of groups filed an amicus brief in the case, United States v. Moalin, arguing that call metadata is protected under the Fourth Amendment. "We hold that the telephony metadata collection program exceeded the scope of Congress's [FISA] authorization," the Ninth Circuit wrote. The court rejected the argument that individuals lack a Fourth Amendment expectation of privacy in call metadata simply because the data is held by phone companies. The public is "likely to perceive as private several years' worth of telephony metadata collected on an ongoing, daily basis—as demonstrated by the public outcry following the revelation of the metadata collection program," the court explained. The court cited to the coalition amicus brief and to the work of EPIC advisory board member Laura K. Donohue. However, the court declined in this particular case to exclude the unlawfully collected metadata as evidence. In In re EPIC, EPIC petitioned the Supreme Court to end the NSA's bulk phone record collection program, which occurred with the 2015 passage of the USA Freedom Act. (Sep. 2, 2020)
  • Coalition Amicus Brief: Civil Litigants Must Be Able to Challenge FISA Surveillance: EPIC has joined a group of organizations across the political spectrum—EFF, Americans for Prosperity, the Brennan Center, FreedomWorks, and TechFreedom—to urge a federal appeals court to revive a challenge to an NSA surveillance program. A lower court judge in the case, Wikimedia v. NSA, found that Wikimedia could not demonstrate that its communications had actually been intercepted under the Upstream surveillance program—and that further litigation was barred for national security reasons. The amicus brief argues that “it is critical that those directly affected by mass foreign intelligence surveillance be able to obtain judicial review” because “FISA is broken.” EPIC has participated as amicus in several previous cases challenging FISA surveillance, including Smith v. Obama and Clapper v. Amnesty International. EPIC also brought the first challenge to the NSA telephone records surveillance program, In re EPIC, in the U.S. Supreme Court. (Jul. 9, 2020)
  • Administration Seeks Reauthorization of NSA Phone Record Program: The Administration is seeking reauthorization of the NSA phone record collection program, according to a letter from Director of National Intelligence Dan Coats published by the New York Times. The Patriot Act "Section 215" program originally allowed the bulk collection of all telephone records of Americans. In 2013, following the Snowden disclosures, EPIC filed a petition with the Supreme Court, challenging the lawfulness of the bulk collection program. Congress then held extensive hearings which found the program was ineffective and later passed the USA Freedom Act, which limited the data collection. NSA has since acknowledged significant compliance problems with the Freedom Act, and the Coats letter confirms that the program was subsequently suspended. EPIC has joined civil liberties organizations in calling for a permanent end to the NSA's phone record collection program. (Aug. 16, 2019)
  • Bipartisan Group of Senators, Representatives File Bill To End NSA Surveillance Program: Sens. Ron Wyden (D-Ore.), and Rand Paul (R-Ky.), and Reps. Justin Amash (R-Mich.), and Zoe Lofgren (D-Calif.) have introduced The Ending Mass Collection of Americans' Phone Records Act. The bill would end the NSA's collection of Americans' phone records, known as "Section 215" authority, which is set to expire on December 15, 2019. EPIC recently joined civil liberties organizations in a statement calling for the end to the NSA's phone record collection program. The USA Freedom Act limited the NSA's collection program, but the NSA has acknowledged compliance problems. In 2013, EPIC filed a petition with the Supreme Court, challenging the lawfulness of the NSA program. EPIC has long called for an end to the phone record collection program. (Apr. 3, 2019)
  • EPIC, Coalition Call on Congress to End NSA Surveillance Program: EPIC joined civil liberties organizations this week in a statement to the House Judiciary Committee, calling for a permanent end to the NSA's phone record collection program. The groups asked that Congress to "hold hearings and make public information critical to permit an informed debate over the reauthorization of Section 215 and other provisions of the Patriot Act, which are set to expire December 15, 2019." The National Security Agency has reportedly ended the collection of Americans' phone records. The USA Freedom Act limited the NSA's bulk collection program. The NSA also acknowledged compliance problems and opposition to renewal is growing. In 2013, EPIC filed a petition with the Supreme Court, challenging the lawfulness of the NSA program. EPIC previously called for an end to the phone record collection program. (Mar. 20, 2019)
  • Reports - NSA Call Record Program Shut Down: The National Security Agency has reportedly ended the controversial collection of Americans' phone records. The USA Freedom Act limited the NSA's bulk collection program. However, the NSA has acknowledged compliance problems and doubts remain about renewal of the program later this year. Now, a senior Hill aide has said the NSA "hasn't actually been using it for the past six months" and it is not clear "that the administration will want to start that back up." In 2013, EPIC filed a petition with the U.S. Supreme Court, challenging the lawfulness of the program. EPIC and a coalition have since called attention to the NSA's failure comply with the requirements of the Freedom Act. EPIC previously called for an end to the phone record collection program. (Mar. 5, 2019)
  • EPIC Seeks Public Release of Secret Directive on Cybersecurity: EPIC has filed an urgent FOIA request with the DHS, the Department of Justice, and the NSA, seeking the expedited release of NSPD-1. The National Security Presidential Directive sets out procedures for cybersecurity "policy coordination, guidance, dispute resolution, and periodic in-progress review." EPIC has previously litigated, and successfully obtained, NSPD-54, a Presidential Directive concerning the NSA's authority to conduct surveillance within the United States. (Jan. 28, 2017)
  • Reuters: US Government Issued Secret Order to Yahoo to Scan All E-mails: Reuters reported today that Yahoo scanned the private email of Yahoo users pursuant to a secret directive issued by the FBI. The email scanning technique, based on a search for key terms, recalled a similar FBI program “Carnivore” that was found to capture far more information than authorized, according to documents obtained by EPIC under the Freedom of Information Act. The news report also renews concerns about the scope of US Internet surveillance.  The European Court of Justice struck down an EU-US data transfer deal last year, following revelations that US Internet firms collaborated with the NSA to enable mass surveillance.  A related case, Irish Data Protection Commissioner v. Facebook, is now pending. The Irish High Court has selected EPIC as "a friend of the court" to "counterbalance" the submission of the United States intelligence community. (Oct. 4, 2016)
  • EPIC, Coalition Oppose NSA Data Transfer Plan: EPIC and over 30 organizations have urged the Obama Administration to halt proposed changes to Executive Order 12333 that would permit the NSA to transfer raw data collected to law enforcement agencies. The NSA’s vast data collection activities are traditionally limited to intelligence purposes. The proposal will permit use of NSA data by law enforcement and make personal data more widely available across the federal government. Last year, EPIC urged the Privacy and Civil Liberties Oversight Board to increase oversight of 12333.  EPIC called for: (1) new limits on data collection and disclosure; (2) audit trails for surveillance activities; and (3) published legal justifications for surveillance programs. The Board is currently reviewing surveillance under EO 12333. (Apr. 8, 2016)

Background

On the evening of June 5, 2013, The Guardian began publishing stories based on internal government documents disclosed by former National Security Agency (NSA) contractor Edward Snowden. The first story published by The Guardian described the NSA’s bulk metadata collection program, which has since been the subject of numerous lawsuits, government reports, and surveillance reform proposals. Under the Bulk Metadata Program, authorized by the Foreign Intelligence Surveillance Court, Verizon and other major telephone companies were ordered to turn over all telephone call detail records (including the numbers dialed and received, the time, duration, and other identifying information) to the NSA on an ongoing basis.

The second story, published by the Washington Post, described the NSA’s collection of Internet communications directly from major service providers including Google, Facebook, Microsoft, Yahoo!, Apple, Skype, and AOL. The documents released also described the NSA’s “upstream collection” activity, which involves collecting digital communications directly from the fiber optic facilities that transfer Internet traffic.

Subsequent stories published by The Guardian and the Washington Post have revealed the scope of NSA surveillance activities, including “the capability of recording ‘100 percent’ of a foreign country’s telephone calls, enabling the agency to rewind and replay conversations as long as a month after they take place.” The stories also revealed that the NSA has collected millions of Internet address books or “buddy lists,” and has infiltrated the private links between Google and Yahoo! data centers. Both The Guardian and the Washington Post received Pulitzer Prizes in 2014 for their coverage of the NSA story.

As a result of the Snowden revelations, Congress has conducted both public and classified hearings, and has considered reform proposals aimed at ending the bulk collection, increasing transparency, and improving the FISA Court process. The Office of the Director of National Intelligence has also released thousands of pages of formerly classified documents, and created a public website to provide ongoing updates and transparency reports. Even the FISA Court, which formerly had no public presence, has created a publicly available website and docket.

Edward Snowden is one of the 2014 recipients of EPIC’s Champion of Freedom Award

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