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Paul Merrell

European Court of Justice rules against mass data retention in EU | News | DW.COM | 21.... - 0 views

www.dw.com/...a-36859714

digital-privacy ECJ data-retention litigation civil-rights

shared by Paul Merrell on 22 Dec 16 - No Cached
  • The ECJ has ruled that governments cannot force telecom firms to keep all customer data. The ruling, which says the laws violate basic privacy rights, comes as governments call for greater powers for spy agencies.
  • The Court of Justice of the European Union (ECJ) ruled on Wednesday that laws allowing for the blanket collection and retention of location and traffic data are in breach of EU law. In their decision, the justices wrote that storing such data, which includes text message senders and recipients and call histories, allows for "very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained." "Such national legislation exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society," the Luxembourg-based court said. EU member states seeking to fight a "serious crime" are allowed to retain data in a targeted manner but must be subject to prior review by a court or independent body, the EU's top court said. Exceptions can be made in urgent cases. The decision came amidst growing calls from EU governments for security agencies to be given greater powers with the goal of preventing or investigating attacks. Privacy advocates, on the other hand, said mass data retention is ineffective in combating such crimes.
  • The court's decision was a response to challenges against data retention laws in Britain and Sweden on the ground that they were no longer valid after the court previously struck down an EU-wide data retention law in 2014. In Sweden, the law requires telecommunications companies to retain all their customers' traffic and location data, without exception, the ECJ said. British law allows authorities to ask firms to keep all communication data for a maximum 12-month period. In the UK, politicians filed a legal challenge against a surveillance law which passed in 2014, part of which was suspended by a British court. British lawmakers then passed the Investigatory Powers Act - the so-called "snooper's charter." A German data retention law, which came into effect at the end of 2015, requires telecommunications companies to store telephone and internet use for 10 weeks, after which point the data must be deleted. The German law also stipulates a shorter storage time of four weeks for location data which results from mobile phone calls. It remains to be seen what effect the ECJ ruling will have on Germany's blanket data retention measures.
Paul Merrell

The Latest Rules on How Long NSA Can Keep Americans' Encrypted Data Look Too Familiar |... - 0 views

justsecurity.org/...s-hold-encrypted-data-familiar

surveillance state NSA IAA-2015 Sect-309 legislation

shared by Paul Merrell on 26 Jan 15 - No Cached
  • 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.
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  • This language is broad, circular, and technically incoherent, so it takes some effort to parse appropriately. When the minimization procedures were disclosed in 2013, this language was interpreted by outside commentators to mean that NSA may keep all encrypted data that has been incidentally collected under Section 702 for at least as long as is necessary to decrypt that data. Is this the correct interpretation? I think so. It is important to realize that the language above isn’t just broad. It seems purposefully broad. The part regarding relevance seems to mirror the rationale NSA has used to justify its bulk phone records collection program. Under that program, all phone records were relevant because some of those records could be valuable to terrorism investigations and (allegedly) it isn’t possible to collect only those valuable records. This is the “to find a needle a haystack, you first have to have the haystack” argument. The same argument could be applied to encrypted data and might be at play here.
  • This exception doesn’t just apply to encrypted data that might be relevant to a current foreign intelligence investigation. It also applies to cases in which the encrypted data is likely to become relevant to a future intelligence requirement. This is some remarkably generous language. It seems one could justify keeping any type of encrypted data under this exception. Upon close reading, it is difficult to avoid the conclusion that these procedures were written carefully to allow NSA to collect and keep a broad category of encrypted data under the rationale that this data might contain the communications of NSA targets and that it might be decrypted in the future. If NSA isn’t doing this today, then whoever wrote these minimization procedures wanted to at least ensure that NSA has the authority to do this tomorrow.
  • There are a few additional observations that are worth making regarding these nominally new retention guidelines and Section 702 collection. First, the concept of incidental collection as it has typically been used makes very little sense when applied to encrypted data. The way that NSA’s Section 702 upstream “about” collection is understood to work is that technology installed on the network does some sort of pattern match on Internet traffic; say that an NSA target uses example@gmail.com to communicate. NSA would then search content of emails for references to example@gmail.com. This could notionally result in a lot of incidental collection of U.S. persons’ communications whenever the email that references example@gmail.com is somehow mixed together with emails that have nothing to do with the target. This type of incidental collection isn’t possible when the data is encrypted because it won’t be possible to search and find example@gmail.com in the body of an email. Instead, example@gmail.com will have been turned into some alternative, indecipherable string of bits on the network. Incidental collection shouldn’t occur because the pattern match can’t occur in the first place. This demonstrates that, when communications are encrypted, it will be much harder for NSA to search Internet traffic for a unique ID associated with a specific target.
  • This lends further credence to the conclusion above: rather than doing targeted collection against specific individuals, NSA is collecting, or plans to collect, a broad class of data that is encrypted. For example, NSA might collect all PGP encrypted emails or all Tor traffic. In those cases, NSA could search Internet traffic for patterns associated with specific types of communications, rather than specific individuals’ communications. This would technically meet the definition of incidental collection because such activity would result in the collection of communications of U.S. persons who aren’t the actual targets of surveillance. Collection of all Tor traffic would entail a lot of this “incidental” collection because the communications of NSA targets would be mixed with the communications of a large number of non-target U.S. persons. However, this “incidental” collection is inconsistent with how the term is typically used, which is to refer to over-collection resulting from targeted surveillance programs. If NSA were collecting all Tor traffic, that activity wouldn’t actually be targeted, and so any resulting over-collection wouldn’t actually be incidental. Moreover, greater use of encryption by the general public would result in an ever-growing amount of this type of incidental collection.
  • This type of collection would also be inconsistent with representations of Section 702 upstream collection that have been made to the public and to Congress. Intelligence officials have repeatedly suggested that search terms used as part of this program have a high degree of specificity. They have also argued that the program is an example of targeted rather than bulk collection. ODNI General Counsel Robert Litt, in a March 2014 meeting before the Privacy and Civil Liberties Oversight Board, stated that “there is either a misconception or a mischaracterization commonly repeated that Section 702 is a form of bulk collection. It is not bulk collection. It is targeted collection based on selectors such as telephone numbers or email addresses where there’s reason to believe that the selector is relevant to a foreign intelligence purpose.” The collection of Internet traffic based on patterns associated with types of communications would be bulk collection; more akin to NSA’s collection of phone records en mass than it is to targeted collection focused on specific individuals. Moreover, this type of collection would certainly fall within the definition of bulk collection provided just last week by the National Academy of Sciences: “collection in which a significant portion of the retained data pertains to identifiers that are not targets at the time of collection.”
  • The Section 702 minimization procedures, which will serve as a template for any new retention guidelines established for E.O. 12333 collection, create a large loophole for encrypted communications. With everything from email to Internet browsing to real-time communications moving to encrypted formats, an ever-growing amount of Internet traffic will fall within this loophole.
  • Paul Merrell on 26 Jan 15
     
    Tucked into a budget authorization act in December without press notice. Section 309 (the Act is linked from the article) appears to be very broad authority for the NSA to intercept any form of telephone or other electronic information in bulk. There are far more exceptions from the five-year retention limitation than the encrypted information exception. When reading this, keep in mind that the U.S. intelligence community plays semantic games to obfuscate what it does. One of its word plays is that communications are not "collected" until an analyst looks at or listens to partiuclar data, even though the data will be searched to find information countless times before it becomes "collected." That searching was the major basis for a decision by the U.S. District Court in Washington, D.C. that bulk collection of telephone communications was unconstitutional: Under the Fourth Amendment, a "search" or "seizure" requiring a judicial warrant occurs no later than when the information is intercepted. That case is on appeal, has been briefed and argued, and a decision could come any time now. Similar cases are pending in two other courts of appeals. Also, an important definition from the new Intelligence Authorization Act: "(a) DEFINITIONS.-In this section: (1) COVERED COMMUNICATION.-The term ''covered communication'' means any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication, including communications in electronic storage."       
Paul Merrell

Canadian Spies Collect Domestic Emails in Secret Security Sweep - The Intercept - 0 views

firstlook.org/...ony-express-email-surveillance

surveillance state Canada CSE bulk-collection email

shared by Paul Merrell on 27 Feb 15 - No Cached
  • Canada’s electronic surveillance agency is covertly monitoring vast amounts of Canadians’ emails as part of a sweeping domestic cybersecurity operation, according to top-secret documents. The surveillance initiative, revealed Wednesday by CBC News in collaboration with The Intercept, is sifting through millions of emails sent to Canadian government agencies and departments, archiving details about them on a database for months or even years. The data mining operation is carried out by the Communications Security Establishment, or CSE, Canada’s equivalent of the National Security Agency. Its existence is disclosed in documents obtained by The Intercept from NSA whistleblower Edward Snowden. The emails are vacuumed up by the Canadian agency as part of its mandate to defend against hacking attacks and malware targeting government computers. It relies on a system codenamed PONY EXPRESS to analyze the messages in a bid to detect potential cyber threats.
  • Last year, CSE acknowledged it collected some private communications as part of cybersecurity efforts. But it refused to divulge the number of communications being stored or to explain for how long any intercepted messages would be retained. Now, the Snowden documents shine a light for the first time on the huge scope of the operation — exposing the controversial details the government withheld from the public. Under Canada’s criminal code, CSE is not allowed to eavesdrop on Canadians’ communications. But the agency can be granted special ministerial exemptions if its efforts are linked to protecting government infrastructure — a loophole that the Snowden documents show is being used to monitor the emails. The latest revelations will trigger concerns about how Canadians’ private correspondence with government employees are being archived by the spy agency and potentially shared with police or allied surveillance agencies overseas, such as the NSA. Members of the public routinely communicate with government employees when, for instance, filing tax returns, writing a letter to a member of parliament, applying for employment insurance benefits or submitting a passport application.
  • Chris Parsons, an internet security expert with the Toronto-based internet think tank Citizen Lab, told CBC News that “you should be able to communicate with your government without the fear that what you say … could come back to haunt you in unexpected ways.” Parsons said that there are legitimate cybersecurity purposes for the agency to keep tabs on communications with the government, but he added: “When we collect huge volumes, it’s not just used to track bad guys. It goes into data stores for years or months at a time and then it can be used at any point in the future.” In a top-secret CSE document on the security operation, dated from 2010, the agency says it “processes 400,000 emails per day” and admits that it is suffering from “information overload” because it is scooping up “too much data.” The document outlines how CSE built a system to handle a massive 400 terabytes of data from Internet networks each month — including Canadians’ emails — as part of the cyber operation. (A single terabyte of data can hold about a billion pages of text, or about 250,000 average-sized mp3 files.)
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  • The agency notes in the document that it is storing large amounts of “passively tapped network traffic” for “days to months,” encompassing the contents of emails, attachments and other online activity. It adds that it stores some kinds of metadata — data showing who has contacted whom and when, but not the content of the message — for “months to years.” The document says that CSE has “excellent access to full take data” as part of its cyber operations and is receiving policy support on “use of intercepted private communications.” The term “full take” is surveillance-agency jargon that refers to the bulk collection of both content and metadata from Internet traffic. Another top-secret document on the surveillance dated from 2010 suggests the agency may be obtaining at least some of the data by covertly mining it directly from Canadian Internet cables. CSE notes in the document that it is “processing emails off the wire.”
  • Paul Merrell on 27 Feb 15
     
    " CANADIAN SPIES COLLECT DOMESTIC EMAILS IN SECRET SECURITY SWEEP BY RYAN GALLAGHER AND GLENN GREENWALD @rj_gallagher@ggreenwald YESTERDAY AT 2:02 AM SHARE TWITTER FACEBOOK GOOGLE EMAIL PRINT POPULAR EXCLUSIVE: TSA ISSUES SECRET WARNING ON 'CATASTROPHIC' THREAT TO AVIATION CHICAGO'S "BLACK SITE" DETAINEES SPEAK OUT WHY DOES THE FBI HAVE TO MANUFACTURE ITS OWN PLOTS IF TERRORISM AND ISIS ARE SUCH GRAVE THREATS? NET NEUTRALITY IS HERE - THANKS TO AN UNPRECEDENTED GUERRILLA ACTIVISM CAMPAIGN HOW SPIES STOLE THE KEYS TO THE ENCRYPTION CASTLE Canada's electronic surveillance agency is covertly monitoring vast amounts of Canadians' emails as part of a sweeping domestic cybersecurity operation, according to top-secret documents. The surveillance initiative, revealed Wednesday by CBC News in collaboration with The Intercept, is sifting through millions of emails sent to Canadian government agencies and departments, archiving details about them on a database for months or even years. The data mining operation is carried out by the Communications Security Establishment, or CSE, Canada's equivalent of the National Security Agency. Its existence is disclosed in documents obtained by The Intercept from NSA whistleblower Edward Snowden. The emails are vacuumed up by the Canadian agency as part of its mandate to defend against hacking attacks and malware targeting government computers. It relies on a system codenamed PONY EXPRESS to analyze the messages in a bid to detect potential cyber threats. Last year, CSE acknowledged it collected some private communications as part of cybersecurity efforts. But it refused to divulge the number of communications being stored or to explain for how long any intercepted messages would be retained. Now, the Snowden documents shine a light for the first time on the huge scope of the operation - exposing the controversial details the government withheld from the public. Under Canada's criminal code, CSE is no
Paul Merrell

From Radio to Porn, British Spies Track Web Users' Online Identities - 0 views

theintercept.com/...ck-web-users-online-identities

surveillance state GCHQ Black-Hole

shared by Paul Merrell on 27 Sep 15 - No Cached
  • 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
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  • A huge volume of the Internet data GCHQ collects flows directly into a massive repository named Black Hole, which is at the core of the agency’s online spying operations, storing raw logs of intercepted material before it has been subject to analysis. Black Hole contains data collected by GCHQ as part of bulk “unselected” surveillance, meaning it is not focused on particular “selected” targets and instead includes troves of data indiscriminately swept up about ordinary people’s online activities. Between August 2007 and March 2009, GCHQ documents say that Black Hole was used to store more than 1.1 trillion “events” — a term the agency uses to refer to metadata records — with about 10 billion new entries added every day. As of March 2009, the largest slice of data Black Hole held — 41 percent — was about people’s Internet browsing histories. The rest included a combination of email and instant messenger records, details about search engine queries, information about social media activity, logs related to hacking operations, and data on people’s use of tools to browse the Internet anonymously.
  • Throughout this period, as smartphone sales started to boom, the frequency of people’s Internet use was steadily increasing. In tandem, British spies were working frantically to bolster their spying capabilities, with plans afoot to expand the size of Black Hole and other repositories to handle an avalanche of new data. By 2010, according to the documents, GCHQ was logging 30 billion metadata records per day. By 2012, collection had increased to 50 billion per day, and work was underway to double capacity to 100 billion. The agency was developing “unprecedented” techniques to perform what it called “population-scale” data mining, monitoring all communications across entire countries in an effort to detect patterns or behaviors deemed suspicious. It was creating what it said would be, by 2013, “the world’s biggest” surveillance engine “to run cyber operations and to access better, more valued data for customers to make a real world difference.”
  • A document from the GCHQ target analysis center (GTAC) shows the Black Hole repository’s structure.
  • The data is searched by GCHQ analysts in a hunt for behavior online that could be connected to terrorism or other criminal activity. But it has also served a broader and more controversial purpose — helping the agency hack into European companies’ computer networks. In the lead up to its secret mission targeting Netherlands-based Gemalto, the largest SIM card manufacturer in the world, GCHQ used MUTANT BROTH in an effort to identify the company’s employees so it could hack into their computers. The system helped the agency analyze intercepted Facebook cookies it believed were associated with Gemalto staff located at offices in France and Poland. GCHQ later successfully infiltrated Gemalto’s internal networks, stealing encryption keys produced by the company that protect the privacy of cell phone communications.
  • Similarly, MUTANT BROTH proved integral to GCHQ’s hack of Belgian telecommunications provider Belgacom. The agency entered IP addresses associated with Belgacom into MUTANT BROTH to uncover information about the company’s employees. Cookies associated with the IPs revealed the Google, Yahoo, and LinkedIn accounts of three Belgacom engineers, whose computers were then targeted by the agency and infected with malware. The hacking operation resulted in GCHQ gaining deep access into the most sensitive parts of Belgacom’s internal systems, granting British spies the ability to intercept communications passing through the company’s networks.
  • In March, a U.K. parliamentary committee published the findings of an 18-month review of GCHQ’s operations and called for an overhaul of the laws that regulate the spying. The committee raised concerns about the agency gathering what it described as “bulk personal datasets” being held about “a wide range of people.” However, it censored the section of the report describing what these “datasets” contained, despite acknowledging that they “may be highly intrusive.” The Snowden documents shine light on some of the core GCHQ bulk data-gathering programs that the committee was likely referring to — pulling back the veil of secrecy that has shielded some of the agency’s most controversial surveillance operations from public scrutiny. KARMA POLICE and MUTANT BROTH are among the key bulk collection systems. But they do not operate in isolation — and the scope of GCHQ’s spying extends far beyond them.
  • The agency operates a bewildering array of other eavesdropping systems, each serving its own specific purpose and designated a unique code name, such as: SOCIAL ANTHROPOID, which is used to analyze metadata on emails, instant messenger chats, social media connections and conversations, plus “telephony” metadata about phone calls, cell phone locations, text and multimedia messages; MEMORY HOLE, which logs queries entered into search engines and associates each search with an IP address; MARBLED GECKO, which sifts through details about searches people have entered into Google Maps and Google Earth; and INFINITE MONKEYS, which analyzes data about the usage of online bulletin boards and forums. GCHQ has other programs that it uses to analyze the content of intercepted communications, such as the full written body of emails and the audio of phone calls. One of the most important content collection capabilities is TEMPORA, which mines vast amounts of emails, instant messages, voice calls and other communications and makes them accessible through a Google-style search tool named XKEYSCORE.
  • As of September 2012, TEMPORA was collecting “more than 40 billion pieces of content a day” and it was being used to spy on people across Europe, the Middle East, and North Africa, according to a top-secret memo outlining the scope of the program. The existence of TEMPORA was first revealed by The Guardian in June 2013. To analyze all of the communications it intercepts and to build a profile of the individuals it is monitoring, GCHQ uses a variety of different tools that can pull together all of the relevant information and make it accessible through a single interface. SAMUEL PEPYS is one such tool, built by the British spies to analyze both the content and metadata of emails, browsing sessions, and instant messages as they are being intercepted in real time. One screenshot of SAMUEL PEPYS in action shows the agency using it to monitor an individual in Sweden who visited a page about GCHQ on the U.S.-based anti-secrecy website Cryptome.
  • Partly due to the U.K.’s geographic location — situated between the United States and the western edge of continental Europe — a large amount of the world’s Internet traffic passes through its territory across international data cables. In 2010, GCHQ noted that what amounted to “25 percent of all Internet traffic” was transiting the U.K. through some 1,600 different cables. The agency said that it could “survey the majority of the 1,600” and “select the most valuable to switch into our processing systems.”
  • According to Joss Wright, a research fellow at the University of Oxford’s Internet Institute, tapping into the cables allows GCHQ to monitor a large portion of foreign communications. But the cables also transport masses of wholly domestic British emails and online chats, because when anyone in the U.K. sends an email or visits a website, their computer will routinely send and receive data from servers that are located overseas. “I could send a message from my computer here [in England] to my wife’s computer in the next room and on its way it could go through the U.S., France, and other countries,” Wright says. “That’s just the way the Internet is designed.” In other words, Wright adds, that means “a lot” of British data and communications transit across international cables daily, and are liable to be swept into GCHQ’s databases.
  • A map from a classified GCHQ presentation about intercepting communications from undersea cables. GCHQ is authorized to conduct dragnet surveillance of the international data cables through so-called external warrants that are signed off by a government minister. The external warrants permit the agency to monitor communications in foreign countries as well as British citizens’ international calls and emails — for example, a call from Islamabad to London. They prohibit GCHQ from reading or listening to the content of “internal” U.K. to U.K. emails and phone calls, which are supposed to be filtered out from GCHQ’s systems if they are inadvertently intercepted unless additional authorization is granted to scrutinize them. However, the same rules do not apply to metadata. A little-known loophole in the law allows GCHQ to use external warrants to collect and analyze bulk metadata about the emails, phone calls, and Internet browsing activities of British people, citizens of closely allied countries, and others, regardless of whether the data is derived from domestic U.K. to U.K. communications and browsing sessions or otherwise. In March, the existence of this loophole was quietly acknowledged by the U.K. parliamentary committee’s surveillance review, which stated in a section of its report that “special protection and additional safeguards” did not apply to metadata swept up using external warrants and that domestic British metadata could therefore be lawfully “returned as a result of searches” conducted by GCHQ.
  • Perhaps unsurprisingly, GCHQ appears to have readily exploited this obscure legal technicality. Secret policy guidance papers issued to the agency’s analysts instruct them that they can sift through huge troves of indiscriminately collected metadata records to spy on anyone regardless of their nationality. The guidance makes clear that there is no exemption or extra privacy protection for British people or citizens from countries that are members of the Five Eyes, a surveillance alliance that the U.K. is part of alongside the U.S., Canada, Australia, and New Zealand. “If you are searching a purely Events only database such as MUTANT BROTH, the issue of location does not occur,” states one internal GCHQ policy document, which is marked with a “last modified” date of July 2012. The document adds that analysts are free to search the databases for British metadata “without further authorization” by inputing a U.K. “selector,” meaning a unique identifier such as a person’s email or IP address, username, or phone number. Authorization is “not needed for individuals in the U.K.,” another GCHQ document explains, because metadata has been judged “less intrusive than communications content.” All the spies are required to do to mine the metadata troves is write a short “justification” or “reason” for each search they conduct and then click a button on their computer screen.
  • Intelligence GCHQ collects on British persons of interest is shared with domestic security agency MI5, which usually takes the lead on spying operations within the U.K. MI5 conducts its own extensive domestic surveillance as part of a program called DIGINT (digital intelligence).
  • GCHQ’s documents suggest that it typically retains metadata for periods of between 30 days to six months. It stores the content of communications for a shorter period of time, varying between three to 30 days. The retention periods can be extended if deemed necessary for “cyber defense.” One secret policy paper dated from January 2010 lists the wide range of information the agency classes as metadata — including location data that could be used to track your movements, your email, instant messenger, and social networking “buddy lists,” logs showing who you have communicated with by phone or email, the passwords you use to access “communications services” (such as an email account), and information about websites you have viewed.
  • Records showing the full website addresses you have visited — for instance, www.gchq.gov.uk/what_we_do — are treated as content. But the first part of an address you have visited — for instance, www.gchq.gov.uk — is treated as metadata. In isolation, a single metadata record of a phone call, email, or website visit may not reveal much about a person’s private life, according to Ethan Zuckerman, director of Massachusetts Institute of Technology’s Center for Civic Media. But if accumulated and analyzed over a period of weeks or months, these details would be “extremely personal,” he told The Intercept, because they could reveal a person’s movements, habits, religious beliefs, political views, relationships, and even sexual preferences. For Zuckerman, who has studied the social and political ramifications of surveillance, the most concerning aspect of large-scale government data collection is that it can be “corrosive towards democracy” — leading to a chilling effect on freedom of expression and communication. “Once we know there’s a reasonable chance that we are being watched in one fashion or another it’s hard for that not to have a ‘panopticon effect,’” he said, “where we think and behave differently based on the assumption that people may be watching and paying attention to what we are doing.”
  • When compared to surveillance rules in place in the U.S., GCHQ notes in one document that the U.K. has “a light oversight regime.” The more lax British spying regulations are reflected in secret internal rules that highlight greater restrictions on how NSA databases can be accessed. The NSA’s troves can be searched for data on British citizens, one document states, but they cannot be mined for information about Americans or other citizens from countries in the Five Eyes alliance. No such constraints are placed on GCHQ’s own databases, which can be sifted for records on the phone calls, emails, and Internet usage of Brits, Americans, and citizens from any other country. The scope of GCHQ’s surveillance powers explain in part why Snowden told The Guardian in June 2013 that U.K. surveillance is “worse than the U.S.” In an interview with Der Spiegel in July 2013, Snowden added that British Internet cables were “radioactive” and joked: “Even the Queen’s selfies to the pool boy get logged.”
  • In recent years, the biggest barrier to GCHQ’s mass collection of data does not appear to have come in the form of legal or policy restrictions. Rather, it is the increased use of encryption technology that protects the privacy of communications that has posed the biggest potential hindrance to the agency’s activities. “The spread of encryption … threatens our ability to do effective target discovery/development,” says a top-secret report co-authored by an official from the British agency and an NSA employee in 2011. “Pertinent metadata events will be locked within the encrypted channels and difficult, if not impossible, to prise out,” the report says, adding that the agencies were working on a plan that would “(hopefully) allow our Internet Exploitation strategy to prevail.”
Paul Merrell

High Court Rules UK's Surveillance Powers Violate Human Rights - 0 views

www.tomshardware.com/...ourt-dripa-unlawful,29615.html

surveillance state GCHQ UK litigation

shared by Paul Merrell on 20 Jul 15 - No Cached
  • UK's High Court found the rushed Data Retention and Investigatory Powers Act (DRIPA) to be illegal under the European Convention on Human Rights and EU Charter of Fundamental Rights, both of which require respect for private and family life, as well as protection of personal data in the case of the latter. DRIPA was challenged by two members of Parliament (MPs), Labor's Tom Watson and the Conservative David Davis, who argued that the surveillance of communications wasn't limited to serious crimes, that individual notices for data collection were kept secret, and that no provision existed to protect those who need professional confidentiality, such as lawyers and journalists. DRIPA was pushed through in three days last year after the European Court of Justice ruled that the EU data retention powers were disproportionate, which invalidated the previous data retention law in the UK. The UK High Court also ruled that sections 1 and 2 of DRIPA were unlawful based on the fact that they fail to provide precise policies to ensure that data is only accessed for the purpose of investigating serious crimes. Another major point against DRIPA was that it didn't require judicial approval, which could limit access to only the data that is strictly necessary for investigations.
  • DRIPA passed in only three days, but the Court allowed it to continue for another nine months, to give the UK government enough time to draft new legislation. Although this almost doubles the time in which this law will exist, it might be better in the long term, as it gives the members of Parliament enough time to debate its successor, without having to rush yet another law fearing that the government's surveillance powers will expire. This court ruling arrived at the right time, as the UK government is currently preparing the draft for the Investigative Powers Bill (also called Snooper's Charter by many), which further expands the government's surveillance powers and may even request encryption backdoors. It also joins other recent reviews of the government's surveillance laws that called for much stricter oversight done by judges rather than the government's own members. "Campaigners, MPs across the political spectrum, the Government's own reviewer of terrorism legislation are all calling for judicial oversight and clearer safeguards," said James Welch, Legal Director for Liberty, a human rights organization.
  • Paul Merrell on 20 Jul 15
     
    The Dark State takes another hit.
Paul Merrell

Obama to propose legislation to protect firms that share cyberthreat data - The Washing... - 0 views

www.washingtonpost.com/...4-bcfb-059ec7a93ddc_story.html

surveillance state U.S. digital-privacy legislation

shared by Paul Merrell on 19 Jan 15 - No Cached
  • President Obama plans to announce legislation Tuesday that would shield companies from lawsuits for sharing computer threat data with the government in an effort to prevent cyber­attacks. On the heels of a destructive attack at Sony Pictures Entertainment and major breaches at JPMorgan Chase and retail chains, Obama is intent on capitalizing on the heightened sense of urgency to improve the security of the nation’s networks, officials said. “He’s been doing everything he can within his executive authority to move the ball on this,” said a senior administration official who spoke on the condition of anonymity to discuss legislation that has not yet been released. “We’ve got to get something in place that allows both industry and government to work more closely together.”
  • “We think the current information-sharing regime is adequate,” said Mark Jaycox, legislative analyst at the Electronic Frontier Foundation, a privacy group. “More companies need to use it, but the idea of broad legal immunity isn’t needed right now.” The administration official disagreed. The lack of such immunity is what prevents many companies from greater sharing of data with the government, the official said. “We have heard that time and time again,” the official said. The proposal, which builds on a 2011 administration bill, grants liability protection to companies that provide indicators of cyberattacks and threats to the Department of Homeland Security.
  • But in a provision likely to raise concerns from privacy advocates, the administration wants to require DHS to share that information “in as near real time as possible” with other government agencies that have a cybersecurity mission, the official said. Those include the National Security Agency, the Pentagon’s ­Cyber Command, the FBI and the Secret Service. “DHS needs to take an active lead role in ensuring that unnecessary personal information is not shared with intelligence authorities,” Jaycox said. The debates over government surveillance prompted by disclosures from former NSA contractor Edward Snowden have shown that “the agencies already have a tremendous amount of unnecessary information,” he said.
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  • The legislation is part of a broader package, to be sent to Capitol Hill on Tuesday, that includes measures to help protect consumers and students against ­cyberattacks and to give law enforcement greater authority to combat cybercrime. The provision’s goal is to “enshrine in law liability protection for the private sector for them to share specific information — cyberthreat indicators — with the government,” the official said. Some analysts questioned the need for such legislation, saying there are adequate measures in place to enable sharing between companies and the government and among companies.
  • The administration official stressed that the legislation will require companies to remove unnecessary personal information before furnishing it to the government in order to qualify for liability protection. It also will impose limits on the use of the data for cybersecurity crimes and instances in which there is a threat of death or bodily harm, such as kidnapping, the official said. And it will require DHS and the attorney general to develop guidelines for the federal government’s use and retention of the data. It will not authorize a company to take offensive cyber-measures to defend itself, such as “hacking back” into a server or computer outside its own network to track a breach. The bill also will provide liability protection to companies that share data with private-sector-developed organizations set up specifically for that purpose. Called information sharing and analysis organizations, these groups often are set up by particular industries, such as banking, to facilitate the exchange of data and best practices.
  • Efforts to pass information-sharing legislation have stalled in the past five years, blocked primarily by privacy concerns. The package also contains provisions that would allow prosecution for the sale of botnets or access to armies of compromised computers that can be used to spread malware, would criminalize the overseas sale of stolen U.S. credit card and bank account numbers, would expand federal law enforcement authority to deter the sale of spyware used to stalk people or commit identity theft, and would give courts the authority to shut down botnets being used for criminal activity, such as denial-of-service attacks.
  • It would reaffirm that federal racketeering law applies to cybercrimes and amends the Computer Fraud and Abuse Act by ensuring that “insignificant conduct” does not fall within the scope of the statute. A third element of the package is legislation Obama proposed Monday to help protect consumers and students against cyberattacks. The theft of personal financial information “is a direct threat to the economic security of American families, and we’ve got to stop it,” Obama said. The plan, unveiled in a speech at the Federal Trade Commission, would require companies to notify customers within 30 days after the theft of personal information is discovered. Right now, data breaches are handled under a patchwork of state laws that the president said are confusing and costly to enforce. Obama’s plan would streamline those into one clear federal standard and bolster requirements for companies to notify customers. Obama is proposing closing loopholes to make it easier to track down cybercriminals overseas who steal and sell identities. “The more we do to protect consumer information and privacy, the harder it is for hackers to damage our businesses and hurt our economy,” he said.
  • In October, Obama signed an order to protect consumers from identity theft by strengthening security features in credit cards and the terminals that process them. Marc Rotenberg, executive director of the Electronic Privacy Information Center, said there is concern that a federal standard would “preempt stronger state laws” about how and when companies have to notify consumers. The Student Digital Privacy Act would ensure that data entered would be used only for educational purposes. It would prohibit companies from selling student data to third-party companies for purposes other than education. Obama also plans to introduce a Consumer Privacy Bill of Rights. And the White House will host a summit on cybersecurity and consumer protection on Feb. 13 at Stanford University.
Paul Merrell

Do Not Track Implementation Guide Launched | Electronic Frontier Foundation - 0 views

www.eff.org/...-implementation-guide-launched

open web do-not-track guidelines

shared by Paul Merrell on 11 Nov 17 - No Cached
  • Today we are releasing the implementation guide for EFF’s Do Not Track (DNT) policy. For years users have been able to set a Do Not Track signal in their browser, but there has been little guidance for websites as to how to honor that request. EFF’s DNT policy sets out a meaningful response for servers to follow, and this guide provides details about how to apply it in practice. At its core, DNT protects user privacy by excluding the use of unique identifiers for cross-site tracking, and by limiting the retention period of log data to ten days. This short retention period gives sites the time they need for debugging and security purposes, and to generate aggregate statistical data. From this baseline, the policy then allows exceptions when the user's interactions with the site—e.g., to post comments, make a purchase, or click on an ad—necessitates collecting more information. The site is then free to retain any data necessary to complete the transaction. We believe this approach balances users’ privacy expectations with the ability of websites to deliver the functionality users want. Websites often integrate third-party content and rely on third-party services (like content delivery networks or analytics), and this creates the potential for user data to be leaked despite the best intentions of the site operator. The guide identifies potential pitfalls and catalogs providers of compliant services. It is common, for example, to embed media from platforms like You Tube, Sound Cloud, and Twitter, all of which track users whenever their widgets are loaded. Fortunately, Embedly, which offers control over the appearance of embeds, also supports DNT via its API, displaying a poster instead and loading the widget only if the user clicks on it knowingly.
  • Knowledge makes the difference between willing tracking and non-consensual tracking. Users should be able to choose whether they want to give up their privacy in exchange for using a site or a  particular feature. This means sites need to be transparent about their practices. A great example of this is our biggest adopter, Medium, which does not track DNT users who browse the site and gives clear information about tracking to users when they choose to log in. This is their previous log-in panel, the DNT language is currently being added to their new interface.
Paul Merrell

UN Report Finds Mass Surveillance Violates International Treaties and Privacy Rights - ... - 0 views

firstlook.org/...ort-condemns-mass-surveillance

surveillance state UN-report digital-privacy

shared by Paul Merrell on 16 Oct 14 - No Cached
  • 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.”
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  • Instead, explained the Rapporteur, states have relied on vague claims whose validity cannot be assessed because of the secrecy behind which these programs are hidden: “The arguments in favor of a complete abrogation of the right to privacy on the Internet have not been made publicly by the States concerned or subjected to informed scrutiny and debate.” About the ongoing secrecy surrounding the programs, the report explained that “states deploying this technology retain a monopoly of information about its impact,” which is “a form of conceptual censorship … that precludes informed debate.” A June report from the High Commissioner for Human Rights similarly noted “the disturbing lack of governmental transparency associated with surveillance policies, laws and practices, which hinders any effort to assess their coherence with international human rights law and to ensure accountability.” The rejection of the “terrorism” justification for mass surveillance as devoid of evidence echoes virtually every other formal investigation into these programs. A federal judge last December found that the U.S. Government was unable to “cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack.” Later that month, President Obama’s own Review Group on Intelligence and Communications Technologies concluded that mass surveillance “was not essential to preventing attacks” and information used to detect plots “could readily have been obtained in a timely manner using conventional [court] orders.”
  • Three Democratic Senators on the Senate Intelligence Committee wrote in The New York Times that “the usefulness of the bulk collection program has been greatly exaggerated” and “we have yet to see any proof that it provides real, unique value in protecting national security.” A study by the centrist New America Foundation found that mass metadata collection “has had no discernible impact on preventing acts of terrorism” and, where plots were disrupted, “traditional law enforcement and investigative methods provided the tip or evidence to initiate the case.” It labeled the NSA’s claims to the contrary as “overblown and even misleading.” While worthless in counter-terrorism policies, the UN report warned that allowing mass surveillance to persist with no transparency creates “an ever present danger of ‘purpose creep,’ by which measures justified on counter-terrorism grounds are made available for use by public authorities for much less weighty public interest purposes.” Citing the UK as one example, the report warned that, already, “a wide range of public bodies have access to communications data, for a wide variety of purposes, often without judicial authorization or meaningful independent oversight.”
  • The report was most scathing in its rejection of a key argument often made by American defenders of the NSA: that mass surveillance is justified because Americans are given special protections (the requirement of a FISA court order for targeted surveillance) which non-Americans (95% of the world) do not enjoy. Not only does this scheme fail to render mass surveillance legal, but it itself constitutes a separate violation of international treaties (emphasis added): The Special Rapporteur concurs with the High Commissioner for Human Rights that where States penetrate infrastructure located outside their territorial jurisdiction, they remain bound by their obligations under the Covenant. Moreover, article 26 of the Covenant prohibits discrimination on grounds of, inter alia, nationality and citizenship. The Special Rapporteur thus considers that States are legally obliged to afford the same privacy protection for nationals and non-nationals and for those within and outside their jurisdiction. Asymmetrical privacy protection regimes are a clear violation of the requirements of the Covenant.
  • That principle — that the right of internet privacy belongs to all individuals, not just Americans — was invoked by NSA whistleblower Edward Snowden when he explained in a June, 2013 interview at The Guardian why he disclosed documents showing global surveillance rather than just the surveillance of Americans: “More fundamentally, the ‘US Persons’ protection in general is a distraction from the power and danger of this system. Suspicionless surveillance does not become okay simply because it’s only victimizing 95% of the world instead of 100%.” The U.N. Rapporteur was clear that these systematic privacy violations are the result of a union between governments and tech corporations: “States increasingly rely on the private sector to facilitate digital surveillance. This is not confined to the enactment of mandatory data retention legislation. Corporates [sic] have also been directly complicit in operationalizing bulk access technology through the design of communications infrastructure that facilitates mass surveillance. ”
  • The latest finding adds to the growing number of international formal rulings that the mass surveillance programs of the U.S. and its partners are illegal. In January, the European parliament’s civil liberties committee condemned such programs in “the strongest possible terms.” In April, the European Court of Justice ruled that European legislation on data retention contravened EU privacy rights. A top secret memo from the GCHQ, published last year by The Guardian, explicitly stated that one key reason for concealing these programs was fear of a “damaging public debate” and specifically “legal challenges against the current regime.” The report ended with a call for far greater transparency along with new protections for privacy in the digital age. Continuation of the status quo, it warned, imposes “a risk that systematic interference with the security of digital communications will continue to proliferate without any serious consideration being given to the implications of the wholesale abandonment of the right to online privacy.” The urgency of these reforms is underscored, explained the Rapporteur, by a conclusion of the United States Privacy and Civil Liberties Oversight Board that “permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens.”
Paul Merrell

NSA Will Destroy Archived Metadata When Program Stops - 0 views

firstlook.org/...rchived-metadata-program-stops

surveillance state telephone-metadata purge pending-litigation

shared by Paul Merrell on 28 Jul 15 - No Cached
  • Four months from now, at the same time that the National Security Agency finally abandons the massive domestic telephone dragnet exposed by whistleblower Edward Snowden, it will also stop perusing the vast archive of data collected by the program. The NSA announced on Monday that it will expunge all the telephone metadata it previously swept up, citing Section 215 of the U.S.A Patriot Act. The program was ruled illegal by a federal appeals court in May. In June, Congress voted to end the program, but gave the NSA until the end of November to phase it out. The historical metadata —  records of American phone calls showing who called who, when, and for how long — will be put out of the reach of analysts on November 29, although technical personnel will have access for three more months. The program started 14 years ago, and operated under rules requiring data be retained for five years, and then destroyed.
  • The only possible hold-up, ironically, would be if any of the civil lawsuits prompted by the program prohibit the destruction of the data. “The telephony metadata” will be “preserved solely because of preservation obligations in pending civil litigation,” the Office of the Director of National Intelligence announced. “As soon as possible, NSA will destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations.” ACLU staff attorney Alex Abdo told The Intercept his organization is “pleased that the NSA intends to purge the call records it has collected illegally.” But, he added: “Even with today’s pledge, the devil may be in the details.”
Paul Merrell

The Newest Reforms on SIGINT Collection Still Leave Loopholes | Just Security - 0 views

justsecurity.org/...lection-leave-plenty-loopholes

surveillance state NSA-reform DNI Clapper voluntary-reforms

shared by Paul Merrell on 05 Feb 15 - No Cached
  • Director of National Intelligence James Clapper this morning released a report detailing new rules aimed at reforming the way signals intelligence is collected and stored by certain members of the United States Intelligence Community (IC). The long-awaited changes follow up on an order announced by President Obama one year ago that laid out the White House’s principles governing the collection of signals intelligence. That order, commonly known as PPD-28, purports to place limits on the use of data collected in bulk and to increase privacy protections related to the data collected, regardless of nationality. Accordingly, most of the changes presented as “new” by Clapper’s office  (ODNI) stem directly from the guidance provided in PPD-28, and so aren’t truly new. And of the biggest changes outlined in the report, there are still large exceptions that appear to allow the government to escape the restrictions with relative ease. Here’s a quick rundown.
  • Retention policy for non-U.S. persons. The new rules say that the IC must now delete information about “non-U.S. persons” that’s been gathered via signals intelligence after five-years. However, there is a loophole that will let spies hold onto that information indefinitely whenever the Director of National Intelligence determines (after considering the views of the ODNI’s Civil Liberties Protection Officer) that retaining information is in the interest of national security. The new rules don’t say whether the exceptions will be directed at entire groups of people or individual surveillance targets.  Section 215 metadata. Updates to the rules concerning the use of data collected under Section 215 of the Patriot Act includes the requirement that the Foreign Intelligence Surveillance Court (rather than authorized NSA officials) must determine spies have “reasonable, articulable suspicion” prior to query Section 215 data, outside of emergency circumstances. What qualifies as an emergency for these purposes? We don’t know. Additionally, the IC is now limited to two “hops” in querying the database. This means that spies can only play two degrees of Kevin Bacon, instead of the previously allowed three degrees, with the contacts of anyone targeted under Section 215. The report doesn’t explain what would prevent the NSA (or other agency using the 215 databases) from getting around this limit by redesignating a phone number found in the first or second hop as a new “target,” thereby allowing the agency to continue the contact chain.
  • National security letters (NSLs). The report also states that the FBI’s gag orders related to NSLs expire three years after the opening of a full-blown investigation or three years after an investigation’s close, whichever is earlier. However, these expiration dates can be easily overridden by by an FBI Special Agent in Charge or a Deputy Assistant FBI Director who finds that the statutory standards for secrecy about the NSL continue to be satisfied (which at least one court has said isn’t a very high bar). This exception also doesn’t address concerns that NSL gag orders lack adequate due process protections, lack basic judicial oversight, and may violate the First Amendment.
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  • The report also details the ODNI’s and IC’s plans for the future, including: (1) Working with Congress to reauthorize bulk collection under Section 215. (2) Updating agency guidelines under Executive Order 12333 “to protect the privacy and civil liberties of U.S. persons.” (3) Producing another annual report in January 2016 on the IC’s progress in implementing signals intelligence reforms. These plans raise more questions than they answer. Given the considerable doubts about Section 215’s effectiveness, why is the ODNI pushing for its reauthorization? And what will the ODNI consider appropriate privacy protections under Executive Order 12333?
Paul Merrell

Bulk Collection Under Section 215 Has Ended… What's Next? | Just Security - 0 views

www.justsecurity.org/...lk-collection-ended-whats-next

surveillance state NSA-reform 215 bulk-collection EO-12333

shared by Paul Merrell on 01 Dec 15 - No Cached
  • 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.
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  • The US intelligence community’s broadest surveillance authorities are enshrined in Executive Order 12333, which primarily covers the interception of electronic communications overseas. The Order authorizes the collection, retention, and dissemination of “foreign intelligence” information, which includes information “relating to the capabilities, intentions or activities of foreign powers, organizations or persons.” In other words, so long as they are operating outside the US, intelligence agencies are authorized to collect information about any foreign person — and, of course, any Americans with whom they communicate. The NSA has conceded that EO 12333 is the basis of most of its surveillance. While public information about these programs is limited, a few highlights give a sense of the breadth of EO 12333 operations: The NSA gathers information about every cell phone call made to, from, and within the Bahamas, Mexico, Kenya, the Philippines, and Afghanistan, and possibly other countries. A joint US-UK program tapped into the cables connecting internal Yahoo and Google networks to gather e-mail address books and contact lists from their customers. Another US-UK collaboration collected images from video chats among Yahoo users and possibly other webcam services. The NSA collects both the content and metadata of hundreds of millions of text messages from around the world. By tapping into the cables that connect global networks, the NSA has created a database of the location of hundreds of millions of mobile phones outside the US.
  • Given its scope, EO 12333 is clearly critical to those seeking serious surveillance reform. The path to reform is, however, less clear. There is no sunset provision that requires action by Congress and creates an opportunity for exposing privacy risks. Even in the unlikely event that Congress was inclined to intervene, it would have to address questions about the extent of its constitutional authority to regulate overseas surveillance. To the best of my knowledge, there is no litigation challenging EO 12333 and the government doesn’t give notice to criminal defendants when it uses evidence derived from surveillance under the order, so the likelihood of a court ruling is slim. The Privacy and Civil Liberties Oversight Board is currently reviewing two programs under EO 12333, but it is anticipated that much of its report will be classified (although it has promised a less detailed unclassified version as well). While the short-term outlook for additional surveillance reform is challenging, from a longer-term perspective, the distinctions that our law makes between Americans and non-Americans and between domestic and foreign collection cannot stand indefinitely. If the Fourth Amendment is to meaningfully protect Americans’ privacy, the courts and Congress must come to grips with this reality.
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