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Four privacy-minded lawmakers have introduced legislation requiring law enforcement officials to obtain a warrant before searching phones belonging to US citizens, and prohibiting them from barring entry to Americans who decline to share their passwords at the border.

Americans Constitutional rights shouldnt disappear at the border, Senator Ron Wyden said in statement to BuzzFeed News. By requiring a warrant to search Americans devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans personal photos and other data.

Some law enforcement agencies have asserted broad authority to conduct searches of devices at the border, the lawmakers contend, in a way that circumvents the Fourth Amendments protections. The lawmakers argue that searching devices even after obtaining permission to do so is an invasion of privacy that should be tightly controlled.

The bill would require law enforcement to establish probable cause before searching or seizing a phone belonging to an American. Manual searches, in which a border agent flips through a persons stored pictures would be covered under the proposed law as well. But the bill does allow for broad emergency exceptions.

The government should not have the right to access your personal electronic devices without probable cause, Rep. Polis told BuzzFeed news in a statement. Whether you are at home, walking down the street, or at the border, we must make it perfectly clear that our Fourth Amendment protections extend regardless of location. This bill is overdue, and I am glad we can come together in a bicameral, bipartisan manner to ensure that Customs and Border Patrol agents dont continue to violate essential privacy safeguards.

The lawmakers say that the bill extends the privacy principles clarified in the Supreme Court decision Riley v. California. In that case, the High Court ruled that warrantless searches of electronic devices during an arrest are unconstitutional.

In a letter to Homeland Security in February, Sen. Wyden asked the agencys chief, Secretary John Kelly, to reveal how many times Customs and Border Protection personnel had asked for or demanded US citizens disclose their phone, computer, email, and social media passwords in the past several years. Sen. Wyden also asked Secretary Kelly to explain what legal authority allows the CBP to demand those passwords and how such demands are consistent with the Constitution and federal law.

The Senator asked Secretary Kelly to respond by March 20. But according to Sen Wydens office, Homeland Security has not written back.

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New Bill Would Outlaw Warrantless Phone Searches At The Border - BuzzFeed News

Watergate was just a private break-in by private actors. To preclude either Watergate or Cointelpro from ever occurring again, and in response to Justice Douglas warnings about illegal uses of electronic surveillance, Congress passed laws to conform surveillance to the twin mandates of the First and Fourth Amendment.

The means our government uses to protect the First and Fourth Amendment rights of Americans without sacrificing the countrys security needs for information gathering on foreign threats is a process known as minimization and masking. The point of the minimization and maskingprotocolsis to insure Americas eavesdropping on foreigners safeguards the constitutional rights of U.S. persons. These protocols are not merely internal rules nor discretionary guidelines; they are the necessary legislatively delegated means required to protect theprivacyrights of U.S. persons provided for by the Bill of Rights of the United States Constitution.Violating these provisions does more than violate mere regulatory restrictions; violating these provisions violates the Constitutional rights of Americans. That is why the law criminalizes such action when taken under color of law by rogue agents.

The law imposescriminalsanctions on government officials who engage in electronic surveillance under color of law except as authorized by statutes and governing regulations implementing those statutes. This same criminallawmakes a person guilty of an offense if she intentionally discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained in a manner not authorized by law. Notably, the law enforcementdefenseis limited to law enforcement or investigative officer cleared to do so by a search warrant or court order. The crime imposes a term ofimprisonmentup to sixty months in a federal prison.The point of the law criminalizing rogue agents either intercepting Americans conversations illicitly or unmasking they identities illegally is to protect against rogue government agents from abusing the most powerful surveillance means ever developed to invade the free speech, free thought, free expression and intimate privacy rights of all Americans.

According to both FBI DirectorComeyand NSA DirectorClapper, no warrant ever authorized the intercepts and electronic surveillance on a member of Trumps team. Yet, Chairman Nunesreportssuch intercepts occurred, identifying them as incidental. As law professor GlennReynoldsrecently noted, recent reports raise doubts on how incidental it was. And now,national security reporter Eli Lake ofBloombergNews reports note that former National Security Advisor SusanRice unmasked apparently some of Trump transition team members whentheir communications were caught in Americas Snowden-reported expansive surveillance web. It appears what Snowdenwarnedof how this wide net of eavesdropping would inescapably be misused by the Hoover-ites in the government may have cometrue.

The key question now is simple: what legal basis did Susan Rice have to order the unmasking of Trump team members? If the information was inadequate to justify a FISA warrant (or the Obama White House wanted to keep some members of the intelligence community out of the loop?), what permissible purpose justified the unmasking? How significant is this?

As the minimization and maskingprotocolscompel, the incidental information gathered by the NSA spying machine is legally protected from public disclosure and is to be used only for official purposes of National Security Agency/Central Security Services. All users with access must strictlyadhereto all classification and handling restrictions. Sound familiar?Who could ever imagine the Obama foreign affairs apparatusmishandlingclassified information? Who could ever imagine SusanRice, whose Secretary of State bid failed due to her Benghazi-implicated scandals, behaving badly? Who could ever imagine the Obama administration spying on Americans in dubious ways, like say, trying tosurveilthe Associated Press, spy on a Fox Newsreporter,eavesdropon his own allies, joke about drone bombing Wikileaks founderAssange, or trying to lock up morewhistleblowersthan all prior administrations combined?

Essential aspects of thoserulesrequire that intercepted communications between persons in the United States inadvertently intercepts during the collection of foreign communications will be promptly destroyed unless the Attorney General determine that the contents indicate a threat of death of serious bodily harm. As for communications that incidentally intercept an American and a foreigner, the information concerning U.S, persons must be disseminated in a manner which does notidentifythe U.S. Person. The only exceptions to this allowunmaskingwhen the communications concern varieties of probable cause of a crime, such as that the U.S. person is working as an agent of the foreign power to engage in criminal conduct, disclosing classified information without authorization, engaged in international narcotics activity, engaged in criminal activity, is the target of hostile intelligence activities of a foreign power, is terrorism connected, a threat to safety, or is an existing senior official. Of critical note, at all times theunmaskingmust made by the appropriate approval authority and must fit a need for the identity for the performance of his official duties. Note what is not present: unmasking for partisan aims, political purposes, or personal enmity. To be clear,we dont know why Susan Rice unmasked these identities, but given the political nature of this case, it is reasonable to question her motives.

Some defenders of Rice suggests she could label anything she wanted of foreign intelligence value, under the implementing regulatory protocols and thereby label it foreign intelligence information under the statute. The law is not so broad. Instead, the statute requires foreign intelligence information be necessary to the conduct of foreign affairs and to the persons position, and further employs a more limiting specific definition in the regulations in USSID for warrant-less seizures, as necessary to make it constitutional under the 4th Amendment. That definition is limited to criminal conduct type behavior, or its security equivalent. That is why the regulatory protocols give specific examples of the type of information that meet this standard of foreign intelligence value. What are those examples? Criminal-type behavior or imminent security risks. Why those restrictions? Because that makes it conform to the First and Fourth Amendment limitations on the intercept of Americans private political conversations. The examples are not prohibitive of like conduct being included, but it must belikeconduct e.g., criminal-type behavior or imminent-safety risk. Why? So it can be constitutional under the 4th Amendment, because the act of unmasking is an act of invading Americans privacy, covered by the 4th Amendment, and political speech in private is a right protected by the First Amendment. This is the biggest mistake the Obama defenders have been making, and reflects their lack of understanding of the laws Constitutional context and legislative history. Put most simply, neither the 1st Amendment nor the 4th Amendment has a talking to foreigners exception.

Hence, the reason Schiff was soshiftyon Jake Tapper on Sunday after Schiff read the unmasked intel at the invite of the White House last week. Was it because he saw unmasked identities on conversations that could not fit any of those very narrow, constricted, limited legal circumstances allowed? Susan Ricefeignedno knowledge of any incidental intercepts just a few a weeks back.Why say so if she thought it never happened and any unmasking was completely legal? (Note: A source close to Rice told CNN reporter Jim Sciutto that the idea that Ambassador Rice improperly unmasked the identities of Americans is false.)

Regardless, Susan Rice, and the Obama administration, appeared to have often skipped the Constitutional limits on their duties while in office; now might be a good time to buffup on the Fifth Amendment, and the right to counsel. Congress may be calling soon.

Robert Barnes is a California-based trial attorneywhose practice focuses on Constitutional, criminal and civil rights law. You can follow him at@Barnes_Law

This is an opinion piece. The views expressed in this article are those of just the author.

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Why Susan Rice's Reported 'Unmasking' of Trump Officials Raises Very Serious Legal Concerns for Her - LawNewz

Defense

Strategic Command chief Gen. John Hyten says that Cyber Command needs its own platform ahead of a planned split from NSA.

U.S. Cyber Command needs to be elevated to a full combatant command as soon as possible, but it should remain tied to the National Security Agency until it has its own cyber platform, according to the head of U.S. Strategic Command.

Air Force Gen. John Hyten told the Senate Armed Services Committee that he and Adm. Michael Rogers, head of the NSA and CyberCom, submitted their plan to the Trump administration calling for elevation of CyberCom "sooner rather than later."

He said that needed to happen "just to normalize that command and make sure that we can kind of develop normal command relationships between Cyber Command and all the combatant commanders including Strategic Command."

Later in the hearing, Hyten added that the end of the dual-hat leadership structure of the NSA and CyberCom will have to wait until CyberCom has an independent cyber platform from the NSA.

"There are acquisition programs of record being instituted to build those capabilities," said Hyten. "Once those capabilities are built, I would be supportive of separating the two. But I will not advocate separating the two until we have a separate platform in the services that Cyber Command can operate on."

Senators pressed Hyten on a number of cybersecurity topics, including the ramifications of modernizing the IT architecture that controls the U.S. nuclear arsenal.

Strategic Command currently oversees cyber, space and nuclear capabilities, and Hyten said they are linked in that a cyber threat that could affect command and control capabilities could undermine the U.S. nuclear deterrent, "and we have to make sure we never allow that to happen."

Hyten said Congress needs to demand that as the military services modernize nuclear command and control capabilities that they move from a 20th century architecture and not simply move from eight-and-a-half inch floppy discs to the five-inch variety.

"We will introduce cyber vulnerabilities as we walk into that, but if you work it right from the beginning, you can make sure that that threat is mitigated from the beginning," he said.

When asked whether the U.S. has the capacity to protect nuclear cyber systems, Hyten said in general he was happy with where the Cyber Mission Forces are going right now. But he warned that they do yet not have the capacity to meet all of the requirements the DOD has.

He said that currently cyber forces are specifically assigned to the combatant commands, and that DOD needs to look at cyber forces like special forces -- as a high-demand, low-density asset that needs to be centralized and allocated out based on mission priority.

"The demand signal is going to go nowhere but up and the capacity is not sufficient to meet all of the demand," he said.

Hyten also said the conversation on deterrence in cyberspace must move past the nuclear framework of the past, with its binary analysis.

"I think what's missing is a broader discussion of what 21st century deterrence really means," said Hyten. "That involves the nuclear capabilities as the backstop, but fundamentally space, cyber, conventional, all the other elements as well.""Now it's a multivariable analysis and each of those has to be put in context," he said. "And context has to be the fact that we're actually not deterring cyber, we're not deterring space. We're deterring an adversary that wants to operate and do damage in those domains."

About the Author

Sean Carberry is an FCW staff writer covering defense, cybersecurity and intelligence. Prior to joining FCW, he was Kabul Correspondent for NPR, and also served as an international producer for NPR covering the war in Libya and the Arab Spring. He has reported from more than two-dozen countries including Iraq, Yemen, DRC, and South Sudan. In addition to numerous public radio programs, he has reported for Reuters, PBS NewsHour, The Diplomat, and The Atlantic.

Carberry earned a Master of Public Administration from the Harvard Kennedy School, and has a B.A. in Urban Studies from Lehigh University.

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General: Cyber Command needs new platform before NSA split - FCW.com

Wikileaks recent dump of classified information related to the CIAs secret hacking operations has once again sparked a conversation about privacy in the digital age. While similar secret surveillance programs like the NSAs PRISM have been in the public eye for years, other government agencies thatmishandle millions of Americans private information in the light of day are often left unchecked.

Take the U.S. Census Bureau, for example. Since 2005, Census has selected approximately three million Americans annually to complete the American Community Survey (ACS), collecting information on the nations demographic, social, economic, and housing characteristics. While theres no question that the ACS collects some valuable information, the intrusive nature of the survey and the poor security measures with which Census handles respondents personal information should be a cause for concern no less sothan any surveillance by the CIA or NSA.

The methods used by Census Bureau employees can vary in the degree to which they violate a persons privacy. Some may only receive letters in the mail, appealing to the persons sense of community, with a veiled threat if they do not comply. Others have received a personal visit from a Census employee, often resulting in pressure or downright intimidation to complete the survey.

Take Kimberly Hayes of Sapulpa, Oklahoma. After being threatened with a fine by mail for refusing to fill out the form because some of the questions made her uncomfortable, a man sent by Census visited her home unannounced in the hopes of getting her to complete the ACS. The man started walking around and was looking in windows, according to Hayes.

If this gentleman had been trying to conduct a survey on behalf of a companys marketing department, Hayes could have told him to get lost without fear of repercussions. She might even have been able to prosecute him for trespassing. So long as the ACS exists, however, the letter of the law is against people like Hayes. If our government treated its citizens with the respect that companies reserve for their customers, violations of privacy would be far less frequent.

Unfortunately, our government is more often a technological laggard than a pathbreaker. Census has been remarkably slow in following the private sectors civilizing example. Recipients who fail to fill out the online ACS are sent a paper copy that they are asked to return in the mail, chock-full of personal information that could be damaging in the wrong hands. Questions range from the embarrassing (e.g. Question 18b, Does this person have difficulty dressing or bathing?) to the dangerous (e.g. Question 33, What time did this person usually leave home to go to work last week?).

Furthermore, the Census database is vulnerable. It has already been hacked into as recently as 2015. While Census tried to reassure nervous Americans that survey information remains safe, secure and on an internal network, bureaucrats dont always follow internal safety protocols. In 2011, the State Department operated an internal network that broke federal standards and may have left sensitive material vulnerable to hackers according to the Associated Press.

Many ACS answers are already compromised by design. On the Bureaus microdata website, anyone can download data of anonymous individualized ACS responses for areas with as few as 600 people. The only defense against those who might use ACS data for nefarious purposes is the bolded command: Use it for GOOD never for EVIL.

There are better ways to acquire sensitive information while protecting the privacy of citizens. For instance, in Europe, there are many viable census models already in place that drastically reduce privacy violations, and are more cost effective to boot.

The Netherlands, Slovenia, and Austria are among eight European countries that obtain census data without employing costly survey employees to harass their constituents. These countries use models that only process data from what other government agencies have already collected, so there is no added risk of privacy violations from mandatory and redundant surveys. The monetary and psychological costs of harassment suggest that we should look for foreign alternatives, perhaps even outside any government solution.

If the destruction of the ACS does indeed leave a void in the market for knowledge, then a private company could fill this gap, while heeding a mandate to respect our privacy. The fact of the matter is that our government has rarely prioritized the right to privacy for American citizens, regardless of which party is in power.

The benefits of the ACS have been greatly exaggerated, especially when we consider viable alternatives. The monetary costs of the ACS, while excessive at over $1.3 billion per year, are nothing compared to the psychological damage done to three million Americans annually. Our right to privacy has been offered up by our government on the altar of the common good. Americans who love their liberty should support replacing the ACS with a more conscientious alternative.

Census collection c. 1940 (Wikimedia Commons)

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CIA, NSA Aren't the Only Federal Agencies Violating Privacy - American Spectator

Yes, that would be the same Susan Rice who made herself famous fordelivering outright lies on national television about the Benghazi terrorist attack, the nature of which the Obama administration was eager to deliberately distort for political reasons in the thick of a campaign. It would also be the same Susan Rice described by Newsweek as President Obama's "right-hand woman" in 2014. As Isaid on air yesterday, this whole Russia meddling/wiretap saga has become so convoluted and bereft of verifiable facts that it's quite difficult to keep following the plot. Here's my stab at a succinct summation: Ourintelligence agencies and members of relevant committees onboth sides of the aisle all agree that Moscow tried to meddle in the 2016 election. Theirclearpreference was to help Donald Trump and damage Hillary Clinton, whom they assumed would win anyway. The Kremlin has also deployed their propaganda and subterfuge toundermine Republicans, too. Their overarching goal is to undercut faith in the American system. And while there isno factualbasis forPresident Trump's counter-claim that his predecessor ordered his phones to be tapped, there are real indications that some people within Trump's orbit were monitored in some way -- and the series of one-sided leaks on that front does look to many like a deliberate push within elements of the government to damage Trump's presidency. There is alsono evidence that the Trump campaign coordinated or colluded with the Russians.

One of the latest twists in all of this wasthe claim by House Intelligence Committee Chairman Devin Nunes, a Republican, that Trump-tied officials whose communications had been incidentally intercepted (they themselves hadnot been targeted) as a part of foreign surveillance operations had their redacted identities "unmasked" last year. Who did this, and why -- especially since the intercepted communications in question allegedly had nothing to do with Russia? Late last week,Fox News' Adam Housley added some meat onto those suspicious bones, citing unnamed sources:

And nowEli Lake's reporting at Bloomberg appears to confirm what the rumor mill has been buzzing about for days --Rice was at the center of this:

Lake writes that given what is known about what happened, both the incidental collection and the unmasking were likely conducted within the confines of the law, but the episode raises new questions about (a) why a senior Obama official was so keen to identify the US citizens mentioned or involved in these conversations, (b) whether those conversations had any genuine investigative value beyond political curiosity (Housley's sources say no), and (c) how the existence of some of these conversations ended up gettingmore widely disseminated, eventually leaking into the press. The piecealso reminds readers that Ms. Rice claimed ignorance on the entire subject when she was asked about it a few weeks ago:

Perhaps there's an innocent explanation for all of this, and perhaps Rice believed she was answering that question accurately. But for previously-alluded-to reasons, it's hardly a stretch to imagine Rice flat-out lying on television. One of the indications that Chairman Nunes really had exposed something significant came last week camewhen the ranking Democrat on the House Intelligence Committee, Adam Schiff-- who has beenloudly attacking his GOP counterpart and spreadingunfounded claims and conspiracies related to the Russia probe -- got a look at the same documents Nunes saw (which led to Nunes'subsequent briefing of both President Trump and the newsmedia). AsRed State points out, Schiff emerged from that session fixated on process, while remaining notably mumon anything pertaining to content. It's not unreasonable to hypothesize that he read the documents and realized that something damaging lies within. Maybe that something was Barack Obama's lightning-rod NSA repeatedly requesting the unmasking of Trump officials' communications for dubious reasons.

For months, Democrats have insisted that the Russian meddling side of this story is the only thing thatmatters. While I agree that probes into those disquieting issues are justified and important, I've also taken the national security leak element of the controversy quite seriously. These new developments demand further inquiry and real answers. And today's introduction of an untrustworthy partisan actor within the previous president's inner-most circle into the mix all but guarantees that this story is about to become more politically explosive. I'll leave you withthis column by the Wall Street Journal's Kim Strassel:

Nuke 'Em: On Judicial Nominations, GOP Must Punish Democrats for Decades of Unprecedented Escalation

Read more:
Oh My: Former Obama NSA Susan Rice Reportedly Directed Dubious 'Unmasking' of Trump Allies - Townhall