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For most of the past six weeks, the biggest story out of Silicon Valley was Apple’s battle with the FBI over a federal order to unlock the iPhone of a mass shooter. The company’s refusal touched off a searing debate over privacy and security in the digital age. But this morning, at a small office in Mountain View, California, three guys made the scope of that enormous debate look kinda small. Mountain View is home to WhatsApp, an online messaging service now owned by tech giant Facebook, that has grown into one of the world’s most important applications. More than a billion people trade messages, make phone calls, send photos, and swap videos using the service. This means that only Facebook itself runs a larger self-contained communications network. And today, the enigmatic founders of WhatsApp, Brian Acton and Jan Koum, together with a high-minded coder and cryptographer who goes by the pseudonym Moxie Marlinspike, revealed that the company has added end-to-end encryption to every form of communication on its service.

This means that if any group of people uses the latest version of WhatsApp—whether that group spans two people or ten—the service will encrypt all messages, phone calls, photos, and videos moving among them. And that’s true on any phone that runs the app, from iPhones to Android phones to Windows phones to old school Nokia flip phones. With end-to-end encryption in place, not even WhatsApp’s employees can read the data that’s sent across its network. In other words, WhatsApp has no way of complying with a court order demanding access to the content of any message, phone call, photo, or video traveling through its service. Like Apple, WhatsApp is, in practice, stonewalling the federal government, but it’s doing so on a larger front—one that spans roughly a billion devices.

The FBI and the Justice Department declined to comment for this story. But many inside the government and out are sure to take issue with the company’s move. In late 2014, WhatsApp encrypted a portion of its network. In the months since, its service has apparently been used to facilitate criminal acts, including the terrorist attacks on Paris last year. According to The New York Times, as recently as this month, the Justice Department was considering a court case against the company after a wiretap order (still under seal) ran into WhatsApp’s end-to-end encryption. “The government doesn’t want to stop encryption,” says Joseph DeMarco, a former federal prosecutor who specializes in cybercrime and has represented various law enforcement agencies backing the Justice Department and the FBI in their battle with Apple. “But the question is: what do you do when a company creates an encryption system that makes it impossible for court-authorized search warrants to be executed? What is the reasonable level of assistance you should ask from that company?”

Activists worried about online privacy are sending Congress a message with some old-school technology: They're sending faxes -- more than 6.2 million, they claim -- to express opposition to the Cybersecurity Information Sharing Act (CISA).Why faxes? "Congress is stuck in 1984 and doesn't understand modern technology," according to the campaign Fax Big Brother. The week-long campaign was organized by the nonpartisan Electronic Frontier Foundation, the group Access and Fight for the Future, the activist group behind the major Internet protests that helped derail a pair of anti-piracy bills in 2012. It also has the backing of a dozen groups like the ACLU, the American Library Association, National Association of Criminal Defense Lawyers and others.

CISA aims to facilitate information sharing regarding cyberthreats between the government and the private sector. The bill gained more attention following the massive hack in which the records of nearly 22 million people were stolen from government computers."The ability to easily and quickly share cyber attack information, along with ways to counter attacks, is a key method to stop them from happening in the first place," Sen. Dianne Feinstein, D-California, who helped introduce CISA, said in a statement after the hack. Senate leadership had planned to vote on CISA this week before leaving for its August recess. However, the bill may be sidelined for the time being as the Republican-led Senate puts precedent on a legislative effort to defund Planned Parenthood.Even as the bill was put on the backburner, the grassroots campaign to stop it gained steam. Fight for the Future started sending faxes to all 100 Senate offices on Monday, but the campaign really took off after it garnered attention on the website Reddit and on social media. The faxed messages are generated by Internet users who visit faxbigbrother.com or stopcyberspying.com -- or who simply send a message via Twitter with the hashtag #faxbigbrother. To send all those faxes, Fight for the Future set up a dedicated server and a dozen phone lines and modems they say are capable of sending tens of thousands of faxes a day.

Fight for the Future told CBS News that it has so many faxes queued up at this point, that it may take months for Senate offices to receive them all, though the group is working on scaling up its capability to send them faster. They're also limited by the speed at which Senate offices can receive them.

What does it look like when a society loses its sense of privacy? <div><a href="http://pubads.g.doubleclick.net/gampad/jump?iu=%2F4624%2FTheAtlanticOnline%2Fchannel_technology&t=src%3Dblog%26by%3Drobinson-meyer%26title%3Damerican-surveillance-now-threatens-american-business%26pos%3Din-article&sz=300x250&c=285899172&tile=1" title=""><img style="border:none;" src="http://pubads.g.doubleclick.net/gampad/ad?iu=%2F4624%2FTheAtlanticOnline%2Fchannel_technology&t=src%3Dblog%26by%3Drobinson-meyer%26title%3Damerican-surveillance-now-threatens-american-business%26pos%3Din-article&sz=300x250&c=285899172&tile=1" alt="" /></a></div>In the almost 18 months since the Snowden files first received coverage, writers and critics have had to guess at the answer. Does a certain trend, consumer complaint, or popular product epitomize some larger shift? Is trust in tech companies eroding—or is a subset just especially vocal about it? Polling would make those answers clear, but polling so far has been… confused. A new study, conducted by the Pew Internet Project last January and released last week, helps make the average American’s view of his or her privacy a little clearer. And their confidence in their own privacy is ... low. The study's findings—and the statistics it reports—stagger. Vast majorities of Americans are uncomfortable with how the government uses their data, how private companies use and distribute their data, and what the government does to regulate those companies. No summary can equal a recounting of the findings. Americans are displeased with government surveillance en masse:   

A new study finds that a vast majority of Americans trust neither the government nor tech companies with their personal data.

According to the study, 70 percent of Americans are “at least somewhat concerned” with the government secretly obtaining information they post to social networking sites. Eighty percent of respondents agreed that “Americans should be concerned” with government surveillance of telephones and the web. They are also uncomfortable with how private corporations use their data: Ninety-one percent of Americans believe that “consumers have lost control over how personal information is collected and used by companies,” according to the study. Eighty percent of Americans who use social networks “say they are concerned about third parties like advertisers or businesses accessing the data they share on these sites.” And even though they’re squeamish about the government’s use of data, they want it to regulate tech companies and data brokers more strictly: 64 percent wanted the government to do more to regulate private data collection. Since June 2013, American politicians and corporate leaders have fretted over how much the leaks would cost U.S. businesses abroad.

Internet service providers from around the world are lodging formal complaints against the UK government's monitoring service, GCHQ, alleging that it uses "malicious software" to break into their networks.The claims from seven organisations based in six countries – the UK, Netherlands, US, South Korea, Germany and Zimbabwe – will add to international pressure on the British government following Edward Snowden's revelations about mass surveillance of the internet by UK and US intelligence agencies.The claims are being filed with the investigatory powers tribunal (IPT), the court in London that assesses complaints about the agencies' activities and misuse of surveillance by government organisations. Most of its hearings are held at least partially in secret.

The IPT is already considering a number of related submissions. Later this month it will investigate complaints by human rights groups about the way social media sites have been targeted by GCHQ.The government has defended the security services, pointing out that online searches are often routed overseas and those deemed "external communications" can be monitored without the need for an individual warrant. Critics say that such a legal interpretation sidesteps the need for traditional intercept safeguards.The latest claim is against both GCHQ, located near Cheltenham, and the Foreign Office. It is based on articles published earlier this year in the German magazine Der Spiegel. That report alleged that GCHQ had carried out an attack, codenamed Operation Socialist, on the Belgian telecoms group, Belgacom, targeting individual employees with "malware (malicious software)".One of the techniques was a "man in the middle" attack, which, according to the documents filed at the IPT, bypasses modern encryption software and "operates by interposing the attacker [GCHQ] between two computers that believe that they are securely communicating with each other. In fact, each is communicating with GCHQ, who collect the communications, as well as relaying them in the hope that the interference will be undetected."The complaint alleges that the attacks were a breach of the Computer Misuse Act 1990 and an interference with the privacy rights of the employees under the European convention of human rights.

The organisations targeted, the submission states, were all "responsible and professional internet service providers". The claimants are: GreenNet Ltd, based in the UK, Riseup Networks in Seattle, Mango Email Service in Zimbabwe, Jinbonet in South Korea, Greenhost in the Netherlands, May First/People Link in New York and the Chaos Computer Club in Hamburg.

The United States has found a way to permanently embed surveillance and sabotage tools in computers and networks it has targeted in Iran, Russia, Pakistan, China, Afghanistan and other countries closely watched by American intelligence agencies, according to a Russian cybersecurity firm.In a presentation of its findings at a conference in Mexico on Monday, Kaspersky Lab, the Russian firm, said that the implants had been placed by what it called the “Equation Group,” which appears to be a veiled reference to the National Security Agency and its military counterpart, United States Cyber Command.

It linked the techniques to those used in Stuxnet, the computer worm that disabled about 1,000 centrifuges in Iran’s nuclear enrichment program. It was later revealed that Stuxnet was part of a program code-named Olympic Games and run jointly by Israel and the United States.Kaspersky’s report said that Olympic Games had similarities to a much broader effort to infect computers well beyond those in Iran. It detected particularly high infection rates in computers in Iran, Pakistan and Russia, three countries whose nuclear programs the United States routinely monitors.

Some of the implants burrow so deep into the computer systems, Kaspersky said, that they infect the “firmware,” the embedded software that preps the computer’s hardware before the operating system starts. It is beyond the reach of existing antivirus products and most security controls, Kaspersky reported, making it virtually impossible to wipe out.

On the 21st floor of a high-rise hotel in Cleveland, in a room full of political operatives, Microsoft’s Research Division was advertising a technology that could read each facial expression in a massive crowd, analyze the emotions, and report back in real time. “You could use this at a Trump rally,” a sales representative told me. At both the Republican and Democratic conventions, Microsoft sponsored event spaces for the news outlet Politico. Politico, in turn, hosted a series of Microsoft-sponsored discussions about the use of data technology in political campaigns. And throughout Politico’s spaces in both Philadelphia and Cleveland, Microsoft advertised an array of products from “Microsoft Cognitive Services,” its artificial intelligence and cloud computing division. At one exhibit, titled “Realtime Crowd Insights,” a small camera scanned the room, while a monitor displayed the captured image. Every five seconds, a new image would appear with data annotated for each face — an assigned serial number, gender, estimated age, and any emotions detected in the facial expression. When I approached, the machine labeled me “b2ff” and correctly identified me as a 23-year-old male.

“Realtime Crowd Insights” is an Application Programming Interface (API), or a software tool that connects web applications to Microsoft’s cloud computing services. Through Microsoft’s emotional analysis API — a component of Realtime Crowd Insights — applications send an image to Microsoft’s servers. Microsoft’s servers then analyze the faces and return emotional profiles for each one. In a November blog post, Microsoft said that the emotional analysis could detect “anger, contempt, fear, disgust, happiness, neutral, sadness or surprise.” Microsoft’s sales representatives told me that political campaigns could use the technology to measure the emotional impact of different talking points — and political scientists could use it to study crowd response at rallies.

Facial recognition technology — the identification of faces by name — is already widely used in secret by law enforcement, sports stadiums, retail stores, and even churches, despite being of questionable legality. As early as 2002, facial recognition technology was used at the Super Bowl to cross-reference the 100,000 attendees to a database of the faces of known criminals. The technology is controversial enough that in 2013, Google tried to ban the use of facial recognition apps in its Google glass system. But “Realtime Crowd Insights” is not true facial recognition — it could not identify me by name, only as “b2ff.” It did, however, store enough data on each face that it could continuously identify it with the same serial number, even hours later. The display demonstrated that capability by distinguishing between the number of total faces it had seen, and the number of unique serial numbers. Photo: Alex Emmons

The Trump administration is considering the possibility of banning end-to-end encryption, as used by services like Apple’s Messages and FaceTime, as well as competing platforms like WhatsApp and Signal. The topic was reportedly the main topic of a previously-unreported meeting of a National Security Council meeting on Wednesday … NordVPN Politico cites three sources for the story. Senior Trump administration officials met on Wednesday to discuss whether to seek legislation prohibiting tech companies from using forms of encryption that law enforcement can’t break — a provocative step that would reopen a long-running feud between federal authorities and Silicon Valley. The encryption challenge, which the government calls “going dark,” was the focus of a National Security Council meeting Wednesday morning that included the No. 2 officials from several key agencies, according to three people familiar with the matter. The meeting reportedly discussed two options. Senior officials debated whether to ask Congress to effectively outlaw end-to-end encryption, which scrambles data so that only its sender and recipient can read it […] “The two paths were to either put out a statement or a general position on encryption, and [say] that they would continue to work on a solution, or to ask Congress for legislation,” said one of the people. No decision was reached given strongly opposing views within the government.

Journalist Glenn Greenwald just dropped a pile of new secret National Security Agency documents onto the Internet. But this isn’t just some haphazard WikiLeaks-style dump. These documents, leaked to Greenwald last year by former NSA contractor Edward Snowden, are key supplemental reading material for his new book, No Place to Hide, which went on sale Tuesday. Now, you could just go buy the book in hardcover and read it like you would any other nonfiction tome. Thanks to all the additional source material, however, if any work should be read on an e-reader or computer, this is it. Here are all the links and instructions for getting the most out of No Place to Hide.

Greenwald has released two versions of the accompanying NSA docs: a compressed version and an uncompressed version. The only difference between these two is the quality of the PDFs. The uncompressed version clocks in at over 91MB, while the compressed version is just under 13MB. For simple reading purposes, just go with the compressed version and save yourself some storage space. Greenwald also released additional “notes” for the book, which are just citations. Unless you’re doing some scholarly research, you can skip this download.

No Place to Hide is, of course, available on a wide variety of ebook formats—all of which are a few dollars cheaper than the hardcover version, I might add. Pick your e-poison: Amazon, Nook, Kobo, iBooks. Flipping back and forth Each page of the documents includes a corresponding page number for the book, to allow readers to easily flip between the book text and the supporting documents. If you use the Amazon Kindle version, you also have the option of reading Greenwald’s book directly on your computer using the Kindle for PC app or directly in your browser. Yes, that may be the worst way to read a book. In this case, however, it may be the easiest way to flip back and forth between the book text and the notes and supporting documents. Of course, you can do the same on your e-reader—though it can be a bit of a pain. Those of you who own a tablet are in luck, as they provide the best way to read both ebooks and PDF files. Simply download the book using the e-reader app of your choice, download the PDFs from Greenwald’s website, and dig in. If you own a Kindle, Nook, or other ereader, you may have to convert the PDFs into a format that works well with your device. The Internet is full of tools and how-to guides for how to do this. Here’s one:

Software created by the controversial UK-based Gamma Group International was used to spy on computers that appear to be located in the United States, the UK, Germany, Russia, Iran, and Bahrain, according to a leaked trove of documents analyzed by ProPublica. It's not clear whether the surveillance was conducted by governments or private entities. Customer e-mail addresses in the collection appeared to belong to a German surveillance company, an independent consultant in Dubai, the Bosnian and Hungarian Intelligence services, a Dutch law enforcement officer, and the Qatari government.

The leaked files—which were posted online by hackers—are the latest in a series of revelations about how state actors including repressive regimes have used Gamma's software to spy on dissidents, journalists, and activist groups. The documents, leaked last Saturday, could not be readily verified, but experts told ProPublica they believed them to be genuine. "I think it's highly unlikely that it's a fake," said Morgan Marquis-Bore, a security researcher who while at The Citizen Lab at the University of Toronto had analyzed Gamma Group's software and who authored an article about the leak on Thursday. The documents confirm many details that have already been reported about Gamma, such as that its tools were used to spy on Bahraini activists. Some documents in the trove contain metadata tied to e-mail addresses of several Gamma employees. Bill Marczak, another Gamma Group expert at the Citizen Lab, said that several dates in the documents correspond to publicly known events—such as the day that a particular Bahraini activist was hacked.

The leaked files contain more than 40 gigabytes of confidential technical material, including software code, internal memos, strategy reports, and user guides on how to use Gamma Group software suite called FinFisher. FinFisher enables customers to monitor secure Web traffic, Skype calls, webcams, and personal files. It is installed as malware on targets' computers and cell phones. A price list included in the trove lists a license of the software at almost $4 million. The documents reveal that Gamma uses technology from a French company called Vupen Security that sells so-called computer "exploits." Exploits include techniques called "zero days" for "popular software like Microsoft Office, Internet Explorer, Adobe Acrobat Reader, and many more." Zero days are exploits that have not yet been detected by the software maker and therefore are not blocked.

While there is considerable telecom hubris regarding the 5G rollout and increasing speculation that the next generation of wireless is not yet ready for Prime Time, the industry continues to make promises to Rural America that it has no intention of fulfilling. Decades-long promises to deliver digital Utopia to rural America by T-Mobile, Verizon and AT&T have never materialized.  

In 2017, the USDA reported that 29% of American farms had no internet access. The FCC says that 14 million rural Americans and 1.2 million Americans living on tribal lands do not have 4G LTE on their phones, and that 30 million rural residents do not have broadband service compared to 2% of urban residents.  It’s beginning to sound like a Third World country. Despite an FCC $4.5 billion annual subsidy to carriers to provide broadband service in rural areas, the FCC reports that ‘over 24 million Americans do not have access to high-speed internet service, the bulk of them in rural area”while a  Microsoft Study found that  “162 million people across the US do not have internet service at broadband speeds.” At the same time, only three cable companies have access to 70% of the market in a sweetheart deal to hike rates as they avoid competition and the FCC looks the other way.  The FCC believes that it would cost $40 billion to bring broadband access to 98% of the country with expansion in rural America even more expensive.  While the FCC has pledged a $2 billion, ten year plan to identify rural wireless locations, only 4 million rural American businesses and homes will be targeted, a mere drop in the bucket. Which brings us to rural mapping: Since the advent of the digital age, there have been no accurate maps identifying where broadband service is available in rural America and where it is not available.  The FCC has a long history of promulgating unreliable and unverified carrier-provided numbers as the Commission has repeatedly ‘bungled efforts to produce accurate broadband maps” that would have facilitated rural coverage. During the Senate Commerce Committee hearing on April 10th regarding broadband mapping, critical testimony questioned whether the FCC and/or the telecom industry have either the commitment or the proficiency to provide 5G to rural America.  Members of the Committee shared concerns that 5G might put rural America further behind the curve so as to never catch up with the rest of the country

The Wall Street Journal reports Huawei Manages to Make Smartphones Without American Chips. American tech companies are getting the go-ahead to resume business with Chinese smartphone giant Huawei Technologies Co., but it may be too late: It is now building smartphones without U.S. chips. Huawei’s latest phone, which it unveiled in September—the Mate 30 with a curved display and wide-angle cameras that competes with Apple Inc.’s iPhone 11—contained no U.S. parts, according to an analysis by UBS and Fomalhaut Techno Solutions, a Japanese technology lab that took the device apart to inspect its insides. In May, the Trump administration banned U.S. shipments to Huawei as trade tensions with Beijing escalated. That move stopped companies like Qualcomm Inc. and Intel Corp. from exporting chips to the company, though some shipments of parts resumed over the summer after companies determined they weren’t affected by the ban. Meanwhile, Huawei has made significant strides in shedding its dependence on parts from U.S. companies. (At issue are chips from U.S.-based companies, not those necessarily made in America; many U.S. chip companies make their semiconductors abroad.) Huawei long relied on suppliers like Qorvo Inc., the North Carolina maker of chips that are used to connect smartphones with cell towers, and Skyworks Solutions Inc., a Woburn, Mass.-based company that makes similar chips. It also used parts from Broadcom Inc., the San Jose-based maker of Bluetooth and Wi-Fi chips, and Cirrus Logic Inc., an Austin, Texas-based company that makes chips for producing sound.

Just before midnight on Friday, at the close of what was a hectic month for markets, WSJ dropped a bombshell of a story: The paper reported that the DoJ has opened an anti-trust investigation of Alphabet Inc., which could "present a major new layer of regulatory scrutiny for the search giant, according to people familiar with the matter." The report was sourced to "people familiar with the matter," but was swiftly corroborated by the New York Times, Bloomberg and others. For months now, the FTC has appeared to be gearing up for a showdown with big tech. The agency - which shares anti-trust authority with the DoJ - has created a new commission that could help undo big-tech tie-ups like Facebook's acquisition of Instagram, and hired lawyers who have advanced new anti-monopoly theories that would help justify the breakup of companies like Amazon. But as it turns out, the Trump administration's first salvo against big tech didn't come from the FTC; instead, this responsibility has been delegated to the DoJ, which has reportedly been tasked with supervising the investigation into Google. That's not super surprising, since the FTC already had its chance to nail Google with an anti-monopoly probe back in 2013. But the agency came up short. From what we can tell, it appears the administration will divvy up responsibility for any future anti-trust investigations between the two agencies, which means the FTC - which is already reportedly preparing to levy a massive fine against Facebook - could end up taking the lead in those cases.

Though WSJ didn't specify which aspects of Google's business might come under the microscope, a string of multi-billion-euro fines recently levied by the EU might offer some guidance. The bloc's anti-trust authority, which has been far more eager to take on American tech giants than its American counterpart (for reasons that should be obvious to all), has fined Google over its practice of bundling software with its standard Android license, the way its search engine rankings favor its own product listings, and ways it has harmed competition in the digital advertising market. During the height of the controversy over big tech's abuses of sensitive user data last year, the Verge published a story speculating about how the monopolistic tendencies of each of the dominant Silicon Valley tech giants could be remedied. For Google, the Verge argued, the best remedy would be a ban on acquisitions - a strategy that has been bandied about in Congress.

10 years ago, everybody was on MySpace. 10 years from now, the Twitters and Facebooks and YouTubes of today will be dinosaurs, abandoned by users sick of censorship and centralized control. Thankfully, the alternatives to these social media dinosaurs are already here, and they’re blockchain-based, torrent friendly, decentralized and censorship resistant.

SHOW NOTES Leaked Twitter API data shows the number of tweets is in serious decline Yep, science confirms that quitting Facebook makes people happier Facebook ‘made China censorship tool’ Facebook is censoring posts in Thailand that the government has deemed unsuitable The Corbett Report on Steemit The Corbett Report on Minds.com The Corbett Report on BitChute Ray Vahey on Twitter

The Federal Communications Commission is poised to ruin the free Internet on a technicality. The group is expected to introduce new net neutrality laws that would allow companies to pay for better access to consumers through deals similar to the one struck by Netflix and Comcast earlier this year. The argument is that those deals don’t technically fall under the net neutrality umbrella, so these new rules won’t apply to them even though they directly affect the Internet. At least the commission is being upfront about its disinterest in protecting the free Internet.

The Verge notes that the proposed rules will offer some protections to consumers: The Federal Communication Commission’s proposal for new net neutrality rules will allow internet service providers to charge companies for preferential treatment, effectively undermining the concept of net neutrality, according to The Wall Street Journal. The rules will reportedly allow providers to charge for preferential treatment so long as they offer that treatment to all interested parties on “commercially reasonable” terms, with the FCC will deciding whether the terms are reasonable on a case-by-case basis. Providers will not be able to block individual websites, however. The goal of net neutrality rules is to prevent service providers from discriminating between different content, allowing all types of data and all companies’ data to be treated equally. While it appears that outright blocking of individual services won’t be allowed, the Journal reports that some forms of discrimination will be allowed, though that will apparently not include slowing down websites.

Re/code summarizes the discontent with these proposed rules: Consumer groups have complained about that plan because they’re worried that Wheeler’s rules may not hold up in court either. A federal appeals court rejected two previous versions of net neutrality rules after finding fault in the FCC’s legal reasoning. During the latest smackdown, however, the court suggested that the FCC had some authority to impose net neutrality rules under a section of the law that gives the agency the ability to regulate the deployment of broadband lines. Internet activists would prefer that the FCC just re-regulate Internet lines under old rules designed for telephone networks, which they say would give the agency clear authority to police Internet lines. Wheeler has rejected that approach for now. Phone and cable companies, including Comcast, AT&T and Verizon, have vociferously fought that idea over the past few years.

The first (and thus far only) roll-back of post-9/11 surveillance authorities was implemented over the weekend: The National Security Agency shuttered its program for collecting and holding the metadata of Americans’ phone calls under Section 215 of the Patriot Act. While bulk collection under Section 215 has ended, the government can obtain access to this information under the procedures specified in the USA Freedom Act. Indeed, some experts have argued that the Agency likely has access to more metadata because its earlier dragnet didn’t cover cell phones or Internet calling. In addition, the metadata of calls made by an individual in the United States to someone overseas and vice versa can still be collected in bulk — this takes place abroad under Executive Order 12333. No doubt the NSA wishes that this was the end of the surveillance reform story and the Paris attacks initially gave them an opening. John Brennan, the Director of the CIA, implied that the attacks were somehow related to “hand wringing” about spying and Sen. Tom Cotton (R-Ark.) introduced a bill to delay the shut down of the 215 program. Opponents of encryption were quick to say: “I told you so.”

But the facts that have emerged thus far tell a different story. It appears that much of the planning took place IRL (that’s “in real life” for those of you who don’t have teenagers). The attackers, several of whom were on law enforcement’s radar, communicated openly over the Internet. If France ever has a 9/11 Commission-type inquiry, it could well conclude that the Paris attacks were a failure of the intelligence agencies rather than a failure of intelligence authorities. Despite the passage of the USA Freedom Act, US surveillance authorities have remained largely intact. Section 702 of the FISA Amendments Act — which is the basis of programs like PRISM and the NSA’s Upstream collection of information from Internet cables — sunsets in the summer of 2017. While it’s difficult to predict the political environment that far out, meaningful reform of Section 702 faces significant obstacles. Unlike the Section 215 program, which was clearly aimed at Americans, Section 702 is supposedly targeted at foreigners and only picks up information about Americans “incidentally.” The NSA has refused to provide an estimate of how many Americans’ information it collects under Section 702, despite repeated requests from lawmakers and most recently a large cohort of advocates. The Section 215 program was held illegal by two federal courts (here and here), but civil attempts to challenge Section 702 have run into standing barriers. Finally, while two review panels concluded that the Section 215 program provided little counterterrorism benefit (here and here), they found that the Section 702 program had been useful.

There is, nonetheless, some pressure to narrow the reach of Section 702. The recent decision by the European Court of Justice in the safe harbor case suggests that data flows between Europe and the US may be restricted unless the PRISM program is modified to protect the information of Europeans (see here, here, and here for discussion of the decision and reform options). Pressure from Internet companies whose business is suffering — estimates run to the tune of $35 to 180 billion — as a result of disclosures about NSA spying may also nudge lawmakers towards reform. One of the courts currently considering criminal cases which rely on evidence derived from Section 702 surveillance may hold the program unconstitutional either on the basis of the Fourth Amendment or Article III for the reasons set out in this Brennan Center report. A federal district court in Colorado recently rejected such a challenge, although as explained in Steve’s post, the decision did not seriously explore the issues. Further litigation in the European courts too could have an impact on the debate.