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In August 2013, as evidence emerged of the active participation by New Zealand in the “Five Eyes” mass surveillance program exposed by Edward Snowden, the country’s conservative Prime Minister, John Key, vehemently denied that his government engages in such spying. He went beyond mere denials, expressly vowing to resign if it were ever proven that his government engages in mass surveillance of New Zealanders. He issued that denial, and the accompanying resignation vow, in order to reassure the country over fears provoked by a new bill he advocated to increase the surveillance powers of that country’s spying agency, Government Communications Security Bureau (GCSB) — a bill that passed by one vote thanks to the Prime Minister’s guarantees that the new law would not permit mass surveillance.

Since then, a mountain of evidence has been presented that indisputably proves that New Zealand does exactly that which Prime Minister Key vehemently denied — exactly that which he said he would resign if it were proven was done. Last September, we reported on a secret program of mass surveillance at least partially implemented by the Key government that was designed to exploit the very law that Key was publicly insisting did not permit mass surveillance. At the time, Snowden, citing that report as well as his own personal knowledge of GCSB’s participation in the mass surveillance tool XKEYSCORE, wrote in an article for The Intercept: Let me be clear: any statement that mass surveillance is not performed in New Zealand, or that the internet communications are not comprehensively intercepted and monitored, or that this is not intentionally and actively abetted by the GCSB, is categorically false. . . . The prime minister’s claim to the public, that “there is no and there never has been any mass surveillance” is false. The GCSB, whose operations he is responsible for, is directly involved in the untargeted, bulk interception and algorithmic analysis of private communications sent via internet, satellite, radio, and phone networks.

A series of new reports last week by New Zealand journalist Nicky Hager, working with my Intercept colleague Ryan Gallagher, has added substantial proof demonstrating GCSB’s widespread use of mass surveillance. An article last week in The New Zealand Herald demonstrated that “New Zealand’s electronic surveillance agency, the GCSB, has dramatically expanded its spying operations during the years of John Key’s National Government and is automatically funnelling vast amounts of intelligence to the US National Security Agency.” Specifically, its “intelligence base at Waihopai has moved to ‘full-take collection,’ indiscriminately intercepting Asia-Pacific communications and providing them en masse to the NSA through the controversial NSA intelligence system XKeyscore, which is used to monitor emails and internet browsing habits.” Moreover, the documents “reveal that most of the targets are not security threats to New Zealand, as has been suggested by the Government,” but “instead, the GCSB directs its spying against a surprising array of New Zealand’s friends, trading partners and close Pacific neighbours.” A second report late last week published jointly by Hager and The Intercept detailed the role played by GCSB’s Waihopai base in aiding NSA’s mass surveillance activities in the Pacific (as Hager was working with The Intercept on these stories, his house was raided by New Zealand police for 10 hours, ostensibly to find Hager’s source for a story he published that was politically damaging to Key).

HERE WAS A SIMPLE AIM at the heart of the top-secret program: Record the website browsing habits of “every visible user on the Internet.” Before long, billions of digital records about ordinary people’s online activities were being stored every day. Among them were details cataloging visits to porn, social media and news websites, search engines, chat forums, and blogs. The mass surveillance operation — code-named KARMA POLICE — was launched by British spies about seven years ago without any public debate or scrutiny. It was just one part of a giant global Internet spying apparatus built by the United Kingdom’s electronic eavesdropping agency, Government Communications Headquarters, or GCHQ. The revelations about the scope of the British agency’s surveillance are contained in documents obtained by The Intercept from National Security Agency whistleblower Edward Snowden. Previous reports based on the leaked files have exposed how GCHQ taps into Internet cables to monitor communications on a vast scale, but many details about what happens to the data after it has been vacuumed up have remained unclear.

Amid a renewed push from the U.K. government for more surveillance powers, more than two dozen documents being disclosed today by The Intercept reveal for the first time several major strands of GCHQ’s existing electronic eavesdropping capabilities.

The surveillance is underpinned by an opaque legal regime that has authorized GCHQ to sift through huge archives of metadata about the private phone calls, emails and Internet browsing logs of Brits, Americans, and any other citizens — all without a court order or judicial warrant

We need to look the world's dangers in the face. And we need to resolve that we will not allow the dangers of the world to freeze this country in its tracks. We need to recognize that antiquated laws will not keep the public safe. We need to recognize that laws that the rest of the world does not respect will ultimately undermine the fundamental ability of our own legal processes, law enforcement agencies and even the intelligence community itself. At the end of the day, we need to recognize... the one asset that the US has which is even stronger than our military might is our moral authority. And this decline in trust, has not only effected people's trust in American technology products. It has effected people's willingness to trust the leadership of the United States. If we are going to win the war on terror. If we are going to keep the public safe. If we are going to improve American competitiveness, we need Congress to stay on the path it's set. We need Congress to finish in December the job the President put before Congress in January.

Less than a week after the attacks in Paris — while the public and policymakers were still reeling, and the investigation had barely gotten off the ground — Cy Vance, Manhattan’s District Attorney, released a policy paper calling for legislation requiring companies to provide the government with backdoor access to their smartphones and other mobile devices. This is the first concrete proposal of this type since September 2014, when FBI Director James Comey reignited the “Crypto Wars” in response to Apple’s and Google’s decisions to use default encryption on their smartphones. Though Comey seized on Apple’s and Google’s decisions to encrypt their devices by default, his concerns are primarily related to end-to-end encryption, which protects communications that are in transit. Vance’s proposal, on the other hand, is only concerned with device encryption, which protects data stored on phones. It is still unclear whether encryption played any role in the Paris attacks, though we do know that the attackers were using unencrypted SMS text messages on the night of the attack, and that some of them were even known to intelligence agencies and had previously been under surveillance. But regardless of whether encryption was used at some point during the planning of the attacks, as I lay out below, prohibiting companies from selling encrypted devices would not prevent criminals or terrorists from being able to access unbreakable encryption. Vance’s primary complaint is that Apple’s and Google’s decisions to provide their customers with more secure devices through encryption interferes with criminal investigations. He claims encryption prevents law enforcement from accessing stored data like iMessages, photos and videos, Internet search histories, and third party app data. He makes several arguments to justify his proposal to build backdoors into encrypted smartphones, but none of them hold water.

Before addressing the major privacy, security, and implementation concerns that his proposal raises, it is worth noting that while an increase in use of fully encrypted devices could interfere with some law enforcement investigations, it will help prevent far more crimes — especially smartphone theft, and the consequent potential for identity theft. According to Consumer Reports, in 2014 there were more than two million victims of smartphone theft, and nearly two-thirds of all smartphone users either took no steps to secure their phones or their data or failed to implement passcode access for their phones. Default encryption could reduce instances of theft because perpetrators would no longer be able to break into the phone to steal the data.

Vance argues that creating a weakness in encryption to allow law enforcement to access data stored on devices does not raise serious concerns for security and privacy, since in order to exploit the vulnerability one would need access to the actual device. He considers this an acceptable risk, claiming it would not be the same as creating a widespread vulnerability in encryption protecting communications in transit (like emails), and that it would be cheap and easy for companies to implement. But Vance seems to be underestimating the risks involved with his plan. It is increasingly important that smartphones and other devices are protected by the strongest encryption possible. Our devices and the apps on them contain astonishing amounts of personal information, so much that an unprecedented level of harm could be caused if a smartphone or device with an exploitable vulnerability is stolen, not least in the forms of identity fraud and credit card theft. We bank on our phones, and have access to credit card payments with services like Apple Pay. Our contact lists are stored on our phones, including phone numbers, emails, social media accounts, and addresses. Passwords are often stored on people’s phones. And phones and apps are often full of personal details about their lives, from food diaries to logs of favorite places to personal photographs. Symantec conducted a study, where the company spread 50 “lost” phones in public to see what people who picked up the phones would do with them. The company found that 95 percent of those people tried to access the phone, and while nearly 90 percent tried to access private information stored on the phone or in other private accounts such as banking services and email, only 50 percent attempted contacting the owner.

The USA PATRIOT Act granted the government powerful new spying capabilities that have grown out of control—but the provision that the FBI and NSA have been using to collect the phone records of millions of innocent people expires on June 1. Tell Congress: it’s time to rethink out-of-control spying. A vote to reauthorize Section 215 is a vote against the Constitution.

On June 5, 2013, the Guardian published a secret court order showing that the NSA has interpreted Section 215 to mean that, with the help of the FBI, it can collect the private calling records of millions of innocent people. The government could even try to use Section 215 for bulk collection of financial records. The NSA’s defenders argue that invading our privacy is the only way to keep us safe. But the White House itself, along with the President’s Review Board has said that the government can accomplish its goals without bulk telephone records collection. And the Privacy and Civil Liberties Oversight Board said, “We have not identified a single instance involving a threat to the United States in which [bulk collection under Section 215 of the PATRIOT Act] made a concrete difference in the outcome of a counterterrorism investigation.” Since June of 2013, we’ve continued to learn more about how out of control the NSA is. But what has not happened since June is legislative reform of the NSA. There have been myriad bipartisan proposals in Congress—some authentic and some not—but lawmakers didn’t pass anything. We need comprehensive reform that addresses all the ways the NSA has overstepped its authority and provides the NSA with appropriate and constitutional tools to keep America safe. In the meantime, tell Congress to take a stand. A vote against reauthorization of Section 215 is a vote for the Constitution.

Yesterday, news broke that Google has been stealth downloading audio listeners onto every computer that runs Chrome, and transmits audio data back to Google. Effectively, this means that Google had taken itself the right to listen to every conversation in every room that runs Chrome somewhere, without any kind of consent from the people eavesdropped on. In official statements, Google shrugged off the practice with what amounts to “we can do that”.It looked like just another bug report. "When I start Chromium, it downloads something." Followed by strange status information that notably included the lines "Microphone: Yes" and "Audio Capture Allowed: Yes".

Without consent, Google’s code had downloaded a black box of code that – according to itself – had turned on the microphone and was actively listening to your room.A brief explanation of the Open-source / Free-software philosophy is needed here. When you’re installing a version of GNU/Linux like Debian or Ubuntu onto a fresh computer, thousands of really smart people have analyzed every line of human-readable source code before that operating system was built into computer-executable binary code, to make it common and open knowledge what the machine actually does instead of trusting corporate statements on what it’s supposed to be doing. Therefore, you don’t install black boxes onto a Debian or Ubuntu system; you use software repositories that have gone through this source-code audit-then-build process. Maintainers of operating systems like Debian and Ubuntu use many so-called “upstreams” of source code to build the final product.Chromium, the open-source version of Google Chrome, had abused its position as trusted upstream to insert lines of source code that bypassed this audit-then-build process, and which downloaded and installed a black box of unverifiable executable code directly onto computers, essentially rendering them compromised. We don’t know and can’t know what this black box does. But we see reports that the microphone has been activated, and that Chromium considers audio capture permitted.

This was supposedly to enable the “Ok, Google” behavior – that when you say certain words, a search function is activated. Certainly a useful feature. Certainly something that enables eavesdropping of every conversation in the entire room, too.Obviously, your own computer isn’t the one to analyze the actual search command. Google’s servers do. Which means that your computer had been stealth configured to send what was being said in your room to somebody else, to a private company in another country, without your consent or knowledge, an audio transmission triggered by… an unknown and unverifiable set of conditions.Google had two responses to this. The first was to introduce a practically-undocumented switch to opt out of this behavior, which is not a fix: the default install will still wiretap your room without your consent, unless you opt out, and more importantly, know that you need to opt out, which is nowhere a reasonable requirement. But the second was more of an official statement following technical discussions on Hacker News and other places. That official statement amounted to three parts (paraphrased, of course):

Former US intelligence contractor Edward Snowden’s revelations rocked the world.  According to his detailed reports, the US had launched massive spying programs and was scrutinizing the communications of American citizens in a manner which could only be described as extreme and intense. The US’s reaction was swift and to the point. “”Nobody is listening to your telephone calls,” President Obama said when asked about the NSA. As quoted in The Guardian,  Obama went on to say that surveillance programs were “fully overseen not just by Congress but by the Fisa court, a court specially put together to evaluate classified programs to make sure that the executive branch, or government generally, is not abusing them”. However, it appears that Snowden may have missed a pivotal part of the US surveillance program. And in stating that the “nobody” is not listening to our calls, President Obama may have been fudging quite a bit.

In fact, Great Britain maintains a “listening post” at NSA HQ. The laws restricting live wiretaps do not apply to foreign countries  and thus this listening post  is not subject to  US law.  In other words, the restrictions upon wiretaps, etc. do not apply to the British listening post.  So when Great Britain hands over the recordings to the NSA, technically speaking, a law is not being broken and technically speaking, the US is not eavesdropping on our each and every call. It is Great Britain which is doing the eavesdropping and turning over these records to US intelligence. According to John Loftus, formerly an attorney with  the Department of Justice and author of a number of books concerning US intelligence activities, back in the late seventies  the USDOJ issued a memorandum proposing an amendment to FISA. Loftus, who recalls seeing  the memo, stated in conversation this week that the DOJ proposed inserting the words “by the NSA” into the FISA law  so the scope of the law would only restrict surveillance by the NSA, not by the British.  Any subsequent sharing of the data culled through the listening posts was strictly outside the arena of FISA. Obama was less than forthcoming when he insisted that “What I can say unequivocally is that if you are a US person, the NSA cannot listen to your telephone calls, and the NSA cannot target your emails … and have not.”

According to Loftus, the NSA is indeed listening as Great Britain is turning over the surveillance records en masse to that agency. Loftus states that the arrangement is reciprocal, with the US maintaining a parallel listening post in Great Britain. In an interview this past week, Loftus told this reporter that  he believes that Snowden simply did not know about the arrangement between Britain and the US. As a contractor, said Loftus, Snowden would not have had access to this information and thus his detailed reports on the extent of US spying, including such programs as XKeyscore, which analyzes internet data based on global demographics, and PRISM, under which the telecommunications companies, such as Google, Facebook, et al, are mandated to collect our communications, missed the critical issue of the FISA loophole.

By James Bamford Last summer, cyber investigators plowing through the thousands of leaked emails from the Democratic National Committee uncovered a clue.A user named “Феликс Эдмундович” modified one of the documents using settings in the Russian language. Translated, his name was Felix Edmundovich, a pseudonym referring to Felix Edmundovich Dzerzhinsky, the chief of the Soviet Union’s first secret-police organization, the Cheka.It was one more link in the chain of evidence pointing to Russian President Vladimir Putin as the man ultimately behind the operation.During the Cold War, when Soviet intelligence was headquartered in Dzerzhinsky Square in Moscow, Putin was a KGB officer assigned to the First Chief Directorate. Its responsibilities included “active measures,” a form of political warfare that included media manipulation, propaganda and disinformation. Soviet active measures, retired KGB Major General Oleg Kalugin told Army historian Thomas Boghart, aimed to discredit the United States and “conquer world public opinion.”As the Cold War has turned into the code war, Putin recently unveiled his new, greatly enlarged spy organization: the Ministry of State Security, taking the name from Joseph Stalin’s secret service. Putin also resurrected, according to James Clapper, the U.S. director of national intelligence, some of the KGB’s old active- measures tactics. On October 7, Clapper issued a statement: “The U.S. Intelligence community is confident that the Russian government directed the recent compromises of emails from U.S. persons and institutions, including from U.S. political organizations.” Notably, however, the FBI declined to join the chorus, according to reports by the New York Times and CNBC.A week later, Vice President Joe Biden said on NBC’s Meet the Press that "we're sending a message" to Putin and "it will be at the time of our choosing, and under the circumstances that will have the greatest impact." When asked if the American public would know a message was sent, Biden replied, "Hope not." Meanwhile, the CIA was asked, according to an NBC report on October 14, “to deliver options to the White House for a wide-ranging ‘clandestine’ cyber operation designed to harass and ‘embarrass’ the Kremlin leadership.”But as both sides begin arming their cyberweapons, it is critical for the public to be confident that the evidence is really there, and to understand the potential consequences of a tit-for-tat cyberwar escalating into a real war. 

This is a prospect that has long worried Richard Clarke, the former White House cyber czar under President George W. Bush. “It’s highly likely that any war that began as a cyberwar,” Clarke told me last year, “would ultimately end up being a conventional war, where the United States was engaged with bombers and missiles.”The problem with attempting to draw a straight line from the Kremlin to the Clinton campaign is the number of variables that get in the way. For one, there is little doubt about Russian cyber fingerprints in various U.S. campaign activities. Moscow, like Washington, has long spied on such matters. The United States, for example, inserted malware in the recent Mexican election campaign. The question isn’t whether Russia spied on the U.S. presidential election, it’s whether it released the election emails.Then there’s the role of Guccifer 2.0, the person or persons supplying WikiLeaks and other organizations with many of the pilfered emails. Is this a Russian agent? A free agent? A cybercriminal? A combination, or some other entity? No one knows.There is also the problem of groupthink that led to the war in Iraq. For example, just as the National Security Agency, the Central Intelligence Agency and the rest of the intelligence establishment are convinced Putin is behind the attacks, they also believed it was a slam-dunk that Saddam Hussein had a trove of weapons of mass destruction. Consider as well the speed of the political-hacking investigation, followed by a lack of skepticism, culminating in a rush to judgment. After the Democratic committee discovered the potential hack last spring, it called in the cybersecurity firm CrowdStrike in May to analyze the problem.

CrowdStrike took just a month or so before it conclusively determined that Russia’s FSB, the successor to the KGB, and the Russian military intelligence organization, GRU, were behind it. Most of the other major cybersecurity firms quickly fell in line and agreed. By October, the intelligence community made it unanimous. That speed and certainty contrasts sharply with a previous suspected Russian hack in 2010, when the target was the Nasdaq stock market. According to an extensive investigation by Bloomberg Businessweek in 2014, the NSA and FBI made numerous mistakes over many months that stretched to nearly a year. “After months of work,” the article said, “there were still basic disagreements in different parts of government over who was behind the incident and why.”  There was no consensus­, with just a 70 percent certainty that the hack was a cybercrime. Months later, this determination was revised again: It was just a Russian attempt to spy on the exchange in order to design its own. The federal agents also considered the possibility that the Nasdaq snooping was not connected to the Kremlin. Instead, “someone in the FSB could have been running a for-profit operation on the side, or perhaps sold the malware to a criminal hacking group.” Again, that’s why it’s necessary to better understand the role of Guccifer 2.0 in releasing the Democratic National Committee and Clinton campaign emails before launching any cyberweapons.

After months of deliberation, the Obama administration has made a long-awaited decision on the thorny issue of how to deal with encrypted communications: It will not — for now — call for legislation requiring companies to decode messages for law enforcement. Rather, the administration will continue trying to persuade companies that have moved to encrypt their customers’ data to create a way for the government to still peer into people’s data when needed for criminal or terrorism investigations. “The administration has decided not to seek a legislative remedy now, but it makes sense to continue the conversations with industry,” FBI Director James B. Comey said at a Senate hearing Thursday of the Homeland Security and Governmental Affairs Committee.

The decision, which essentially maintains the status quo, underscores the bind the administration is in — balancing competing pressures to help law enforcement and protect consumer privacy. The FBI says it is facing an increasing challenge posed by the encryption of communications of criminals, terrorists and spies. A growing number of companies have begun to offer encryption in which the only people who can read a message, for instance, are the person who sent it and the person who received it. Or, in the case of a device, only the device owner has access to the data. In such cases, the companies themselves lack “backdoors” or keys to decrypt the data for government investigators, even when served with search warrants or intercept orders.

The decision was made at a Cabinet meeting Oct. 1. “As the president has said, the United States will work to ensure that malicious actors can be held to account — without weakening our commitment to strong encryption,” National Security Council spokesman Mark Stroh said. “As part of those efforts, we are actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services.” But privacy advocates are concerned that the administration’s definition of strong encryption also could include a system in which a company holds a decryption key or can retrieve unencrypted communications from its servers for law enforcement. “The government should not erode the security of our devices or applications, pressure companies to keep and allow government access to our data, mandate implementation of vulnerabilities or backdoors into products, or have disproportionate access to the keys to private data,” said Savecrypto.org, a coalition of industry and privacy groups that has launched a campaign to petition the Obama administration.

The American Civil Liberties Union (ACLU) has filed a motion to reveal the secret court opinions with “novel or significant interpretations” of surveillance law, in a renewed push for government transparency. The motion, filed Wednesday by the ACLU and Yale Law School’s Media Freedom and Information Access Clinic, asks the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence gathering activities in secret, to release 23 classified decisions it made between 9/11 and the passage of the USA Freedom Act in June 2015. As ACLU National Security Project staff attorney Patrick Toomey explains, the opinions are part of a “much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans.” Among them is the court order that the government used to direct Yahoo to secretly scanits users’ emails for “a specific set of characters.” Toomey writes: These court rulings are essential for the public to understand how federal laws are being construed and implemented. They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.

Although the USA Freedom Act requires the release of novel FISA court opinions on surveillance law, the government maintains that the rule does not apply retroactively—thereby protecting the panel from publishing many of its post-9/11 opinions, which helped create an “unprecedented buildup” of secret surveillance laws. Even after National Security Agency (NSA) whistleblower Edward Snowden revealed the scope of mass surveillance in 2013, sparking widespread outcry, dozens of rulings on spying operations remain hidden from the public eye, which stymies efforts to keep the government accountable, civil liberties advocates say. “These rulings are necessary to inform the public about the scope of the government’s surveillance powers today,” the ACLU’s motion states.

Toomey writes that the rulings helped influence a number of novel spying activities, including: The government’s use of malware, which it calls “Network Investigative Techniques” The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA) The government’s warrantless surveillance of Americans under FISA Section 702—a controversial authority scheduled to expire in December 2017 The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act Without these rulings being made public, “it simply isn’t possible to understand the government’s claimed authority to conduct surveillance,” Toomey writes. As he told The Intercept on Wednesday, “The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow. These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”

European officials are demanding answers and investigations into a joint U.S. and U.K. hack of the world’s largest manufacturer of mobile SIM cards, following a report published by The Intercept Thursday. The report, based on leaked documents provided by NSA whistleblower Edward Snowden, revealed the U.S. spy agency and its British counterpart Government Communications Headquarters, GCHQ, hacked the Franco-Dutch digital security giant Gemalto in a sophisticated heist of encrypted cell-phone keys. The European Parliament’s chief negotiator on the European Union’s data protection law, Jan Philipp Albrecht, said the hack was “obviously based on some illegal activities.” “Member states like the U.K. are frankly not respecting the [law of the] Netherlands and partner states,” Albrecht told the Wall Street Journal. Sophie in ’t Veld, an EU parliamentarian with D66, the Netherlands’ largest opposition party, added, “Year after year we have heard about cowboy practices of secret services, but governments did nothing and kept quiet […] In fact, those very same governments push for ever-more surveillance capabilities, while it remains unclear how effective these practices are.”

“If the average IT whizzkid breaks into a company system, he’ll end up behind bars,” In ’t Veld added in a tweet Friday. The EU itself is barred from undertaking such investigations, leaving individual countries responsible for looking into cases that impact their national security matters. “We even get letters from the U.K. government saying we shouldn’t deal with these issues because it’s their own issue of national security,” Albrecht said. Still, lawmakers in the Netherlands are seeking investigations. Gerard Schouw, a Dutch member of parliament, also with the D66 party, has called on Ronald Plasterk, the Dutch minister of the interior, to answer questions before parliament. On Tuesday, the Dutch parliament will debate Schouw’s request. Additionally, European legal experts tell The Intercept, public prosecutors in EU member states that are both party to the Cybercrime Convention, which prohibits computer hacking, and home to Gemalto subsidiaries could pursue investigations into the breach of the company’s systems.

According to secret documents from 2010 and 2011, a joint NSA-GCHQ unit penetrated Gemalto’s internal networks and infiltrated the private communications of its employees in order to steal encryption keys, embedded on tiny SIM cards, which are used to protect the privacy of cellphone communications across the world. Gemalto produces some 2 billion SIM cards a year. The company’s clients include AT&T, T-Mobile, Verizon, Sprint and some 450 wireless network providers. “[We] believe we have their entire network,” GCHQ boasted in a leaked slide, referring to the Gemalto heist.

Does the National Security Agency (NSA) have the authority to collect and keep all encrypted Internet traffic for as long as is necessary to decrypt that traffic? That was a question first raised in June 2013, after the minimization procedures governing telephone and Internet records collected under Section 702 of the Foreign Intelligence Surveillance Act were disclosed by Edward Snowden. The issue quickly receded into the background, however, as the world struggled to keep up with the deluge of surveillance disclosures. The Intelligence Authorization Act of 2015, which passed Congress this last December, should bring the question back to the fore. It established retention guidelines for communications collected under Executive Order 12333 and included an exception that allows NSA to keep ‘incidentally’ collected encrypted communications for an indefinite period of time. This creates a massive loophole in the guidelines. NSA’s retention of encrypted communications deserves further consideration today, now that these retention guidelines have been written into law. It has become increasingly clear over the last year that surveillance reform will be driven by technological change—specifically by the growing use of encryption technologies. Therefore, any legislation touching on encryption should receive close scrutiny.

Section 309 of the intel authorization bill describes “procedures for the retention of incidentally acquired communications.” It establishes retention guidelines for surveillance programs that are “reasonably anticipated to result in the acquisition of [telephone or electronic communications] to or from a United States person.” Communications to or from a United States person are ‘incidentally’ collected because the U.S. person is not the actual target of the collection. Section 309 states that these incidentally collected communications must be deleted after five years unless they meet a number of exceptions. One of these exceptions is that “the communication is enciphered or reasonably believed to have a secret meaning.” This exception appears to be directly lifted from NSA’s minimization procedures for data collected under Section 702 of FISA, which were declassified in 2013. 

While Section 309 specifically applies to collection taking place under E.O. 12333, not FISA, several of the exceptions described in Section 309 closely match exceptions in the FISA minimization procedures. That includes the exception for “enciphered” communications. Those minimization procedures almost certainly served as a model for these retention guidelines and will likely shape how this new language is interpreted by the Executive Branch. Section 309 also asks the heads of each relevant member of the intelligence community to develop procedures to ensure compliance with new retention requirements. I expect those procedures to look a lot like the FISA minimization guidelines.

Micah Lee: What are some operational security practices you think everyone should adopt? Just useful stuff for average people. Edward Snowden: [Opsec] is important even if you’re not worried about the NSA. Because when you think about who the victims of surveillance are, on a day-to-day basis, you’re thinking about people who are in abusive spousal relationships, you’re thinking about people who are concerned about stalkers, you’re thinking about children who are concerned about their parents overhearing things. It’s to reclaim a level of privacy. The first step that anyone could take is to encrypt their phone calls and their text messages. You can do that through the smartphone app Signal, by Open Whisper Systems. It’s free, and you can just download it immediately. And anybody you’re talking to now, their communications, if it’s intercepted, can’t be read by adversaries. [Signal is available for iOS and Android, and, unlike a lot of security tools, is very easy to use.] You should encrypt your hard disk, so that if your computer is stolen the information isn’t obtainable to an adversary — pictures, where you live, where you work, where your kids are, where you go to school. [I’ve written a guide to encrypting your disk on Windows, Mac, and Linux.] Use a password manager. One of the main things that gets people’s private information exposed, not necessarily to the most powerful adversaries, but to the most common ones, are data dumps. Your credentials may be revealed because some service you stopped using in 2007 gets hacked, and your password that you were using for that one site also works for your Gmail account. A password manager allows you to create unique passwords for every site that are unbreakable, but you don’t have the burden of memorizing them. [The password manager KeePassX is free, open source, cross-platform, and never stores anything in the cloud.]

The other thing there is two-factor authentication. The value of this is if someone does steal your password, or it’s left or exposed somewhere … [two-factor authentication] allows the provider to send you a secondary means of authentication — a text message or something like that. [If you enable two-factor authentication, an attacker needs both your password as the first factor and a physical device, like your phone, as your second factor, to login to your account. Gmail, Facebook, Twitter, Dropbox, GitHub, Battle.net, and tons of other services all support two-factor authentication.]

We should armor ourselves using systems we can rely on every day. This doesn’t need to be an extraordinary lifestyle change. It doesn’t have to be something that is disruptive. It should be invisible, it should be atmospheric, it should be something that happens painlessly, effortlessly. This is why I like apps like Signal, because they’re low friction. It doesn’t require you to re-order your life. It doesn’t require you to change your method of communications. You can use it right now to talk to your friends.

The Obama administration fought a legal battle against Google to secretly obtain the email records of a security researcher and journalist associated with WikiLeaks. Newly unsealed court documents obtained by The Intercept reveal the Justice Department won an order forcing Google to turn over more than one year’s worth of data from the Gmail account of Jacob Appelbaum (pictured above), a developer for the Tor online anonymity project who has worked with WikiLeaks as a volunteer. The order also gagged Google, preventing it from notifying Appelbaum that his records had been provided to the government. The surveillance of Appelbaum’s Gmail account was tied to the Justice Department’s long-running criminal investigation of WikiLeaks, which began in 2010 following the transparency group’s publication of a large cache of U.S. government diplomatic cables. According to the unsealed documents, the Justice Department first sought details from Google about a Gmail account operated by Appelbaum in January 2011, triggering a three-month dispute between the government and the tech giant. Government investigators demanded metadata records from the account showing email addresses of those with whom Appelbaum had corresponded between the period of November 2009 and early 2011; they also wanted to obtain information showing the unique IP addresses of the computers he had used to log in to the account.

The Justice Department argued in the case that Appelbaum had “no reasonable expectation of privacy” over his email records under the Fourth Amendment, which protects against unreasonable searches and seizures. Rather than seeking a search warrant that would require it to show probable cause that he had committed a crime, the government instead sought and received an order to obtain the data under a lesser standard, requiring only “reasonable grounds” to believe that the records were “relevant and material” to an ongoing criminal investigation. Google repeatedly attempted to challenge the demand, and wanted to immediately notify Appelbaum that his records were being sought so he could have an opportunity to launch his own legal defense. Attorneys for the tech giant argued in a series of court filings that the government’s case raised “serious First Amendment concerns.” They noted that Appelbaum’s records “may implicate journalistic and academic freedom” because they could “reveal confidential sources or information about WikiLeaks’ purported journalistic or academic activities.” However, the Justice Department asserted that “journalists have no special privilege to resist compelled disclosure of their records, absent evidence that the government is acting in bad faith,” and refused to concede Appelbaum was in fact a journalist. It claimed it had acted in “good faith throughout this criminal investigation, and there is no evidence that either the investigation or the order is intended to harass the … subscriber or anyone else.” Google’s attempts to fight the surveillance gag order angered the government, with the Justice Department stating that the company’s “resistance to providing the records” had “frustrated the government’s ability to efficiently conduct a lawful criminal investigation.”

Google accused the government of hyperbole and argued that the backlash over the Twitter order did not justify secrecy related to the Gmail surveillance. “Rather than demonstrating how unsealing the order will harm its well-publicized investigation, the government lists a parade of horribles that have allegedly occurred since it unsealed the Twitter order, yet fails to establish how any of these developments could be further exacerbated by unsealing this order,” wrote Google’s attorneys. “The proverbial toothpaste is out of the tube, and continuing to seal a materially identical order will not change it.” But Google’s attempt to overturn the gag order was denied by magistrate judge Ivan D. Davis in February 2011. The company launched an appeal against that decision, but this too was rebuffed, in March 2011, by District Court judge Thomas Selby Ellis, III.

The United Nations’ top official for counter-terrorism and human rights (known as the “Special Rapporteur”) issued a formal report to the U.N. General Assembly today that condemns mass electronic surveillance as a clear violation of core privacy rights guaranteed by multiple treaties and conventions. “The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether,” the report concluded. Central to the Rapporteur’s findings is the distinction between “targeted surveillance” — which “depend[s] upon the existence of prior suspicion of the targeted individual or organization” — and “mass surveillance,” whereby “states with high levels of Internet penetration can [] gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites.” In a system of “mass surveillance,” the report explained, “all of this is possible without any prior suspicion related to a specific individual or organization. The communications of literally every Internet user are potentially open for inspection by intelligence and law enforcement agencies in the States concerned.”

Mass surveillance thus “amounts to a systematic interference with the right to respect for the privacy of communications,” it declared. As a result, “it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately.” In concluding that mass surveillance impinges core privacy rights, the report was primarily focused on the International Covenant on Civil and Political Rights, a treaty enacted by the General Assembly in 1966, to which all of the members of the “Five Eyes” alliance are signatories. The U.S. ratified the treaty in 1992, albeit with various reservations that allowed for the continuation of the death penalty and which rendered its domestic law supreme. With the exception of the U.S.’s Persian Gulf allies (Saudi Arabia, UAE and Qatar), virtually every major country has signed the treaty. Article 17 of the Covenant guarantees the right of privacy, the defining protection of which, the report explained, is “that individuals have the right to share information and ideas with one another without interference by the State, secure in the knowledge that their communication will reach and be read by the intended recipients alone.”

The report’s key conclusion is that this core right is impinged by mass surveillance programs: “Bulk access technology is indiscriminately corrosive of online privacy and impinges on the very essence of the right guaranteed by article 17. In the absence of a formal derogation from States’ obligations under the Covenant, these programs pose a direct and ongoing challenge to an established norm of international law.” The report recognized that protecting citizens from terrorism attacks is a vital duty of every state, and that the right of privacy is not absolute, as it can be compromised when doing so is “necessary” to serve “compelling” purposes. It noted: “There may be a compelling counter-terrorism justification for the radical re-evaluation of Internet privacy rights that these practices necessitate. ” But the report was adamant that no such justifications have ever been demonstrated by any member state using mass surveillance: “The States engaging in mass surveillance have so far failed to provide a detailed and evidence-based public justification for its necessity, and almost no States have enacted explicit domestic legislation to authorize its use.”

In our society, the rule of law sets limits on what government can and cannot do, no matter how important its goals. To give a simple example, even when chasing a fleeing murder suspect, the police have a duty not to endanger bystanders. The government should pay the same care to our safety in pursuing threats online, but right now we don’t have clear, enforceable rules for government activities like hacking and "digital sabotage." And this is no abstract question—these actions increasingly endanger everyone’s security

The problem became especially clear this year during the San Bernardino case, involving the FBI’s demand that Apple rewrite its iOS operating system to defeat security features on a locked iPhone. Ultimately the FBI exploited an existing vulnerability in iOS and accessed the contents of the phone with the help of an "outside party." Then, with no public process or discussion of the tradeoffs involved, the government refused to tell Apple about the flaw. Despite the obvious fact that the security of the computers and networks we all use is both collective and interwoven—other iPhones used by millions of innocent people presumably have the same vulnerability—the government chose to withhold information Apple could have used to improve the security of its phones. Other examples include intelligence activities like Stuxnet and Bullrun, and law enforcement investigations like the FBI’s mass use of malware against Tor users engaged in criminal behavior. These activities are often disproportionate to stopping legitimate threats, resulting in unpatched software for millions of innocent users, overbroad surveillance, and other collateral effects.  That’s why we’re working on a positive agenda to confront governmental threats to digital security. Put more directly, we’re calling on lawyers, advocates, technologists, and the public to demand a public discussion of whether, when, and how governments can be empowered to break into our computers, phones, and other devices; sabotage and subvert basic security protocols; and stockpile and exploit software flaws and vulnerabilities.  

Smart people in academia and elsewhere have been thinking and writing about these issues for years. But it’s time to take the next step and make clear, public rules that carry the force of law to ensure that the government weighs the tradeoffs and reaches the right decisions. This long post outlines some of the things that can be done. It frames the issue, then describes some of the key areas where EFF is already pursuing this agenda—in particular formalizing the rules for disclosing vulnerabilities and setting out narrow limits for the use of government malware. Finally it lays out where we think the debate should go from here.   

The United States and its key intelligence allies are quietly working behind the scenes to kneecap a mounting movement in the United Nations to promote a universal human right to online privacy, according to diplomatic sources and an internal American government document obtained by The Cable. The diplomatic battle is playing out in an obscure U.N. General Assembly committee that is considering a proposal by Brazil and Germany to place constraints on unchecked internet surveillance by the National Security Agency and other foreign intelligence services. American representatives have made it clear that they won't tolerate such checks on their global surveillance network. The stakes are high, particularly in Washington -- which is seeking to contain an international backlash against NSA spying -- and in Brasilia, where Brazilian President Dilma Roussef is personally involved in monitoring the U.N. negotiations.

The Brazilian and German initiative seeks to apply the right to privacy, which is enshrined in the International Covenant on Civil and Political Rights (ICCPR), to online communications. Their proposal, first revealed by The Cable, affirms a "right to privacy that is not to be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence." It notes that while public safety may "justify the gathering and protection of certain sensitive information," nations "must ensure full compliance" with international human rights laws. A final version the text is scheduled to be presented to U.N. members on Wednesday evening and the resolution is expected to be adopted next week. A draft of the resolution, which was obtained by The Cable, calls on states to "to respect and protect the right to privacy," asserting that the "same rights that people have offline must also be protected online, including the right to privacy." It also requests the U.N. high commissioner for human rights, Navi Pillay, present the U.N. General Assembly next year with a report on the protection and promotion of the right to privacy, a provision that will ensure the issue remains on the front burner.

Publicly, U.S. representatives say they're open to an affirmation of privacy rights. "The United States takes very seriously our international legal obligations, including those under the International Covenant on Civil and Political Rights," Kurtis Cooper, a spokesman for the U.S. mission to the United Nations, said in an email. "We have been actively and constructively negotiating to ensure that the resolution promotes human rights and is consistent with those obligations." But privately, American diplomats are pushing hard to kill a provision of the Brazilian and German draft which states that "extraterritorial surveillance" and mass interception of communications, personal information, and metadata may constitute a violation of human rights. The United States and its allies, according to diplomats, outside observers, and documents, contend that the Covenant on Civil and Political Rights does not apply to foreign espionage.

Google said Thursday it will by default encrypt data warehoused in its Cloud Storage service. The server-side encryption is now active for all new data written to Cloud Storage, and older data will be encrypted in the coming months, wrote Dave Barth, a Google product manager, in a blog post.

The data and metadata around an object stored in Cloud Storage is encrypted with a unique key using 128-bit Advanced Encryption Standard algorithm, and the "per-object key itself is encrypted with a unique key associated with the object owner," Barth wrote. "These keys are additionally encrypted by one of a regularly rotated set of master keys," he wrote. "Of course, if you prefer to manage your own keys then you can still encrypt data yourself prior to writing it to Cloud Storage."

A Google spokeswoman said via email the company does not provide encryption keys to any government and provides user data only in accordance with the law.