Tessa D'Arcangelew Talk

ACLU Talk on Government Surveillance

The East Bay Gray Panthers general membership meeting for March 2014 was held on March 26 at North Berkeley Senior Center.
The topic: “Big Brother IS Watching you and How It is Done”

The speaker was Tessa D’Arcangelew , an organizer at the ACLU of Northern California, from the San Francisco office.

This is a summary report by Steve Geller. It covers Tessa’s talk, with some points augmented by information from the Internet.

The Gray Panther audience was about 30 people, including at least 4 members of the Berkeley chapter of ACLU.

Big Brother IS Watching

Government surveillance has been going on for a long time. Tessa started by reminding us of what happened during the ‘50s and ‘60s. The FBI was actively monitoring the activities of activists and radical groups. Government informants infiltrated such groups as the Black Panthers and monitored their communications. This surveillance did a lot to disable the activities of these groups.

The sixties are over now, but on September 11, 2001, there was a terror attack. Suddenly, the government passed laws to expand the collection of information under the guise of keeping us safe from additional terror attacks.

The fictional “Big Brother” of the novel “1984” has come close to reality in 2014 in the form of the National Security Agency (NSA), an arm of the US federal government which is using modern communications and computer technology to collect data on phone calls and emails.

The whistle blower revelations by former NSA contractor Edward Snowden made the general public aware of just how much government surveillance is going on. This surveillance affects everyone, not just foreigners suspected of terrorism.

Modern communications and computer technology have opened up our world. Nearly all Americans make use of personal computers, the Internet, social networking (Facebook, Twitter) and smart phones. But along with the convenience and fun, the proliferation of these things makes it all too easy to do surveillance on the people who use them.

Smart phones typically use the Global Positioning Satellites (GPS) to determine the phone's geographic location. Everywhere you go and everything you do can be digitized and sent out via the Internet.

Emails and phone calls pass through a network, which can be tapped.

The PRISM software is used to tap into the Internet. It collects stored Internet communications based on demands made to Internet companies such as Google Inc. and Apple Inc. under Section 702 of the FISA Amendments Act of 2008. Google et al are required to turn over any customer data that match court-approved search terms. The NSA can use these PRISM requests to target even communications that were encrypted when they traveled across the Internet backbone. PRISM puts captured data into a form that is easier for NSA analysts to work with.

It’s Unconstitutional

“Section 702 of FISA?” The government uses three legal authorities to justify its surveillance programs -- two public laws and a presidential executive order. But this does not mean these laws are constitutional.

They are:

FISA authorizes surveillance of any communications that go out of the country. Within the country, a surveillance agency is supposed to go to a court and get a search warrant to collect data.

Warrantless surveillance is the practice of monitoring the communications of US residents if it involves any party believed by the NSA to be outside the US, even if the other end of the communication lies within the US.


NSA has claimed that that, for US residents, they only collect “metadata.” For phone calls, this means logging who made the call, when, from where and to whom the call was connected. The phone conversation itself is not recorded.

Tessa gave this example of collecting metadata:
You get a call from the ACLU, which is logged. Then very soon afterward, you make a call to the office of Senator Feinstein, which is also logged. If a pattern of such calls appears for many people, it can be surmised that the ACLU has been urging people to call Senator Feinstein about some issue.

The same metadata constraints apply to monitoring emails – not recording the message content.

However, it has been discovered that, in practice, all U.S. communications have been digitally copied by government agencies, in apparent violation of the Fourth Amendment prohibition on unreasonable search and seizure. The government avoids litigation over this dubious practice by saying that no stored data will be reviewed until searching it becomes legally defensible.

Under the Obama Administration, the NSA has supposedly been operating under FISA guidelines. However, in April 2009, officials at the US Department of Justice acknowledged that the NSA had engaged in "overcollection" of domestic communications in excess of the FISA authority, but NSA claimed the acts were unintentional and the practice had since been rectified.

The NSA can make demands to Internet companies, to capture the online activities of their customers and turn this information over to NSA. These demands are usually honored by companies including Google, ATT, Verizon, Apple, Microsoft, Facebook and Twitter.
As an example, NSA could request Verizon wireless to report all cell phone calls made during some time period , which originated close to the intersection of Martin Luther King Blvd and Hearst Ave. These requests are usually made without presenting a court order; the companies feel pressure to comply.

It is possible to track wherever a smart phone goes. The NSA can make use of this.

Local law enforcement gets federal funds for local surveillance work.


When necessary, the telephone and Internet companies can be bypassed, and the Internet tapped directly. The NSA can get into the actual fiber optics and wires in what is called “upstream” data gathering. They put on a “splitter” device which amounts to a copy machine. Data goes where it was intended, plus in parallel, a copy goes to the NSA.

Tessa told about another whistle blower -- a maintenance person working in an AT&T building in San Francisco. He reported that he could not get into “room 631A” – only NSA personnel were allowed there. Perhaps this room was where the splitter equipment is located.

An even more direct way to carry out surveillance on an individual is to intercept the person’s order for a new computer and delay its delivery long enough to install tracking hardware or spy software on it.

More things than phone calls and emails are being monitored. Tessa warned against buying “security devices” – especially if they are offered free. The devices might be spying on you. People can be embarrassed or blackmailed, for example if they are detected accessing pornographic websites.

A Real Threat

This intense surveillance, digging into the private lives of people, most of whom are probably not under any suspicion of terrorism or criminal activity, is a threat to the very backbone of democracy – our system of checks and balances. The surveillance is being approved by secret courts, with no oversight, no way to check constitutionality. NSA is watching everyone else. Who is watching the NSA? Edward Snowden?

The Snowden revelations have opened the door for other revelations. Some of it is coming from the technology companies, like Google, which is in business to “share information” about people’s purchases and preferences. The companies would like to preserve the trust of their customers.

Citizens can use this concern to put pressure on those companies to tell more about what they are doing to support government surveillance.

Exiled Snowden Speaks

The South by Southwest (SXSW) conference was held March 2014, in Austin Texas. This is one of several annual conferences which feature film, interactive, and music.

This year, Edward Snowden made a speaking appearance, remotely.

Mr. Snowden said he chose the SXSW conference to speak directly to people with the skills to make mass surveillance significantly more expensive for government agencies — if not impossible. For the past decade, Mr. Snowden said, the NSA had been given free rein to make the Internet less secure by engaging in large-scale sweeps of data.

Mr. Snowden appeared remotely at the conference joining two people from the ACLU who were on stage in Austin. They were Christopher Soghoian, the principal technologist of the ACLU, and Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project (and Mr. Snowden’s legal adviser). The event was a rare live interview for Mr. Snowden, conducted by Mr. Wizner.

Using technology to mask his whereabouts, Mr. Snowden appeared through a Google Plus videoconference — the irony of which was not lost on Mr. Snowden or others, who joked about the fact that Google was involved in many of Mr. Snowden’s revelations.

At various points during the event, the Internet access in the convention center buckled under the burden of all the people trying to use their devices to tweet or go online. And at times, Mr. Snowden’s connection dropped, in part because of the anonymity software he used to mask his location.

Appearing before a green screen that had been programmed to display the American Constitution, Mr. Snowden addressed a rapt audience that often broke into applause and cheers.

He said, “They are setting fire to the future of the Internet. You guys are all the firefighters. We need you to help us fix this.”

“Our technology has outgrown our law.”

He added that tech is good; we should use tech against government surveillance.

Surveillance Causes Misunderstanding

Tessa told a story which showed how government monitoring of the content of private communications can lead to misunderstandings.

A professor in the Midwest made contact with an old friend, a man who lived in Greece. They struck up an email exchange and arranged for him to come to the US and meet at the airport.

When her friend arrived, both the professor and the Greek friend were detained for questioning by the Customs and Border Patrol. They thought the professor and her friend were was planning to marry in violation of her Greek friend's visa.

For some reason, the NSA had been capturing the content of their emails (one side was outside the US). The messages frequently ended with “love and kisses” or other endearments.

The upshot was that the man, who actually had no marriage plans, got frustrated when he couldn’t make contact with his professor friend. He decided to stop trying to get a US visa and returned to Greece.

Snooping on Foreign Leaders

The NSA has been caught monitoring phone calls and emails of leaders of friendly countries, including Germany, France, Spain, Mexico, and Brazil.

At one point, NSA was monitoring the phone of German Chancellor Angela Merkel.

These countries have expressed their displeasure.

Sharing Captured Data

Tessa told us that most intercepted international communications are shared among the five “I” countries (“I” for Intelligence?). The countries are US, UK, Canada, New Zealand and Australia.

Reporting Data Demands

James Clapper, the Director of NSA, at one point famously declared “we don’t watch US citizens.” He said he has no idea how many Americans get caught up in NSA surveillance.

Well, some technology companies have estimated the number at about 100,000 people. Most of these tech companies are now under a gag order to prevent release of this information. They are allowed to tell about data requests from local law enforcement, but not about requests from the federal government.

Recently, the ACLU noticed that ACLU is a major shareholder in AT&T, so ACLU got together with other major shareholders and filed a shareholder action, to release transparency reports, showing how many data requests have been received.

AT&T reported that, in 2013, it received 301,816 demands for information from federal, state and local courts, including subpoenas, court orders and search warrants. Of those demands, the company provided no or partial information in 13,707 cases and rejected or challenged the order in 3,756 cases.

Verizon reported 321,545 subpoenas, orders and warrants from law enforcement in 2013.

Tessa said that only about 16,000 of the AT&T requests were accompanied by a warrant. For the Verizon requests, warrants were presented for about 36,000.

So What?

Tessa said that she sometimes gives her talks in the conservative parts of Sacramento. Her audience in those places tends to shrug at the surveillance and say “So what? We want to be protected from terrorists.”

She quoted some FBI statistics to us. During one particular period, the FBI made 14,000 data surveillance requests. From these, 53 criminal cases were developed, involving fraud, money laundering and immigration. None of the cases involved terrorism.

The ACLU and the NAACP have been in court, defending against government attempts to get their records of members and donors. This is a clear violation of 4th amendment rights when no warrant is presented.

What can be done?

To begin with, individuals shouldn't have to consider the tradeoff between the convenience offered by today’s technology and its potential for violation of privacy. But we need to make careful choices about our technology because of government surveillance.

Tessa listed some specific ways in which individuals can use modern technology to fighct unwarranted surveillance.

Two software packages are available for download.

“Tor Browser” protects you against a common form of Internet surveillance known as "traffic analysis." Traffic analysis can be used to infer who is talking to whom over a public network. Knowing the source and destination of your Internet traffic allows others to track your behavior and interests. More information on Tor Browser is available, including downloads, from

“HTTPS Everywhere” software forces encryption on all Internet data.
If a site URL looks like this -- http://en.example....., then your communictions with that site are not encrypted.
If the URL begins with “https://...” then communications are encrypted, secure.

The HTTPS Everywhere software will tell you if a site refuses to use HTTPS.

More information on HTTPS Everywhere is available, including downloads at


There is a proliferation of passwords. You can prevent your password from being stolen if you use different passwords for each kind of online access you do. If you use the same password for everything, accessing an unsecured site can allow a malicious monitor to use that password on another of your sites.

Example: you use your "universal password" to access New York Times news on a public computer -- which has been compromised. Thieves now know the password for your bank account.

Disable Location Tracking

If you have a smart phone, and don’t want anyone to know where you are or where you’ve been, then turn off location tracking. This will help limit the data that apps and websites collect about you.

Stop the Hops

Hops work like this. If X makes a call to Y, that’s one hop. If Y makes a call to Z, and surveillance was started with X, that’s two hops. If Z calls W, that’s three hops.

You don’t need to be talking to a terror suspect to have your communications data analyzed by the NSA. The agency is allowed to travel three hops from its targets – who could be people who talk to people who talk to people who talk to you. Facebook, where the typical user has 190 friends, shows how three degrees of separation gets you to a network bigger than the population of Colorado.

NSA should limit its number of surveillance hops to two.

(There’s an interesting speculative theory that in human acquaintance, everyone is six or fewer hops away from any other person in the world, so that a chain of "a friend of a friend" statements can be made to connect any two people in a maximum of six steps. )

State Legislature

You can put pressure on your representatives in the California legislature. Show your support when bills come up to limit surveillance. This does happen.

In 2012, Governor Brown vetoed SB 1434, an EFF-co-sponsored location privacy bill that would have required law enforcement to obtain a search warrant to obtain evidence of a person's location from an electronic device.

In 2013, SB 467 was an attempt to make a warrant requirement state law. Although it passed with broad bipartisan support, Brown vetoed the bill anyway. In his veto message, he wrote that SB 467 "imposes new notice requirements that go beyond those required by federal law and could impede ongoing criminal investigations,"

Act Locally

Pay attention to what local law enforcement is doing.

Tessa gave this example:
The City of Oakland tried to set up a “Domain Awareness Center” (DAC) which was supposed to be for security of the Port of Oakland. It would have set up a surveillance hub integrating public and private cameras and sensors all over the City of Oakland into one $10.9M mass surveillance system.

On July 30th, 2013 Oakland’s City Council unanimously approved a $2M grant for Phase 2 of the DAC, which was to be funded by grants from the Department of Homeland Security (DHS), and implemented by the military contractor Science Applications International Corporation (SAIC).

Tessa said that ACLU had heard that few members of the city council understood what they were getting into.

After mounting opposition to DAC in 2013 and 2014, The Oakland City Council voted on March 4, 2014 to restrict DAC to a primarily Port-focused operation by removing citywide ShotSpotter maps and city traffic cameras from the system, and requiring any further expansion or information-sharing decisions to come before the Council for approval.

Q & A

During the Q&A session after Tessa gave her talk, local ACLU members were introduced. Some of them spoke, and answered questions.

The Berkeley/North East Bay ACLU Chapter is working to protect and advance civil liberties and civil rights in Albany, Berkeley, Crockett, El Cerrito, El Sobrante, Hercules, Kensington, Pinole, Richmond, Rodeo and San Pablo. This chapter meets monthly in Berkeley.
For more information contact Jessica at jmalonehendricks@gmail.com or (707) 980-3816.
The mailing address is PO Box 11141, Berkeley, CA 94712-2141.
For help with a legal issue please call the ACLU’s Civil Liberties Hotline: 415-621-2488

Somebody asked about access cards – a single card that gets you into everywhere.

An Electronic Benefit Transfer (EBT) card is like a debit card for CalFresh benefits and California Food Assistance Program benefits. CalFresh is California's Supplemental Nutrition Assistance Program (SNAP), which was previously called Food Stamps . The same card may be used for Family Assistance (FA) - Temporary Assistance to Needy Families (TANF) or any other emergency or special cash benefits.

Someone else directed us to an article in Berkeley Daily Planet
ECLECTIC RANT: Commentary on Senator Feinstein's Defense of NSA Surveillance
by Ralph E. Stone
Thursday November 07, 2013

Obama May Start the Reform of NSA

President Barack Obama has proposed an end to the government’s bulk collection of telephone metadata, with the storage of phone records instead being transferred to the private phone companies who collect them.

The new set of rules, detailed in a White House statement, were developed in response to protests about invasive National Security Agency (NSA) surveillance programs revealed in a series of leaks by former government contractor Edward Snowden.

The President said, “Having carefully considered the available options, I have decided that the best path forward is that the government should not collect or hold this data in bulk,” the president said. “Instead, the data should remain at the telephone companies for the length of time it currently does today.”

The current practice is for metadata to be held at the NSA for five years.

Obama reiterated that the government would also need to gain approval of the Foreign Intelligence Surveillance Court (FISC) in order to query the private companies for such data.

Mr. Snowdon appears to approve of what the President is doing.

Summary and bottom line

Government surveillance had gotten out of control. We need for law enforcement to watch out for terror-suspects and criminals, but we need to avoid creating the “other” who is working against us instead of for us.

We need to keep up our system of checks and balances. Some authority must be watching over the agencies doing surveillance. We need transparency. The legitimate need for obtaining a search warrant should not be bypassed by using a “secret court.”

We need to build trust in our government, and in local law enforcement.

The website of the ACLU of Northern California is