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Paul Merrell

Merkel, other European leaders raise concerns on U.S. surveillance - The Washington Post - 0 views

  • European leaders, describing themselves as stunned by revelations of an extensive U.S. surveillance program that included their citizens, moved Monday to demand more information from the U.S. government and said they would discuss ways to bolster their already stringent privacy laws. And in Britain, where intelligence agencies have long had robust cooperation with their American counterparts, a top official tried Monday to limit potential uproar, telling Parliament that the partnership had not been used to circumvent British laws.
  • The discontent from Europe pointed to the breadth of fallout from the affair and to the potential for fresh strains between the United States and allies wary of American intrusiveness. German Chancellor Angela Merkel vowed to raise the issue when she meets in Berlin with President Obama next week, a spokesman said, and other German officials said they were concerned by the apparent monitoring of their citizens. Top officials of the 27-nation European Union also said they would press the U.S. government on the matter at bilateral meetings this week.
  • The PRISM surveillance program, portions of which were described in recent days by The Washington Post and the Guardian newspaper in Britain, makes clear that U.S. intelligence services now have the power to vacuum up data about telecommunications traffic across the world. An apparent snapshot from an NSA Boundless Informant database published on the Guardian’s Web site indicated that in March 2013, foreign intelligence gathering was primarily focused on the Middle East. For that month, more pieces of intelligence were gathered in Germany than anywhere else in Europe.In Germany, where memories of East German Stasi surveillance remain fresh, privacy has powerful defenders. Individual German states have pursued cases against Facebook and Google in recent years, complaining that the companies did not do enough to give users power over their own information. The breadth and ambitions of the U.S. intelligence program far exceed any issues raised previously with private firms.
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  • When Merkel meets Obama, “you can safely assume that this is an issue that the chancellor will bring up,” Merkel’s spokesman, Steffen Seibert, told reporters on Monday. Merkel grew up in the East German system, where the government collected vast amounts of information about its citizens.
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    One of the biggest dangers to the NSA program that I see just over the horizon is that the E.U. has regulatory powers over Google and the other cloud companies involved in the scandal. If the European Commission decides that these companies can not be trusted to protect user's data, it has more than enough legal authority to whop some serious hurt on the companies. 
Paul Merrell

Hillary Clinton Goes to Militaristic, Hawkish Think Tank, Gives Militaristic, Hawkish S... - 0 views

  • Leading Democratic presidential candidate Hillary Clinton this morning delivered a foreign policy speech at the Brookings Institution in Washington. By itself, the choice of the venue was revealing. Brookings served as Ground Zero for centrist think tank advocacy of the Iraq War, which Clinton (along with potential rival Joe Biden) notoriously and vehemently advocated. Brookings’ two leading “scholar”-stars — Kenneth Pollack and Michael O’Hanlon — spent all of 2002 and 2003 insisting that invading Iraq was wise and just, and spent the years after that assuring Americans that the “victorious” war and subsequent occupation were going really well (in April 2003, O’Hanlon debated with himself over whether the strategy that led to the “victory” in his beloved war should be deemed “brilliant” or just extremely “clever,” while in June 2003, Pollack assured New York Times readers that Saddam’s WMD would be found).
  • Since then, O’Hanlon in particular has advocated for increased military force in more countries than one can count. That’s not surprising: Brookings is funded in part by one of the Democratic Party’s favorite billionaires, Haim Saban, who is a dual citizen of the U.S. and Israel and once said of himself: “I’m a one-issue guy, and my issue is Israel.” Pollack advocated for the attack on Iraq while he was “Director of Research of the Saban Center for Middle East Policy.” Saban became the Democratic Party’s largest fundraiser — even paying $7 million for the new DNC building — and is now a very substantial funder of Hillary Clinton’s campaign. In exchange, she’s written a personal letter to him publicly “expressing her strong and unequivocal support for Israel in the face of the Boycott, Divestment and Sanction movement.” So the hawkish Brookings is the prism through which Hillary Clinton’s foreign policy worldview can be best understood. The think tank is filled with former advisers to both Bill and Hillary Clinton, and would certainly provide numerous top-level foreign policy officials in any Hillary Clinton administration. As she put it today at the start: “There are a lot of long-time friends and colleagues who perch here at Brookings.” And she proceeded to deliver exactly the speech one would expect, reminding everyone of just how militaristic and hawkish she is.
  • Clinton proclaimed that she “too [is] deeply concerned about Iranian aggression and the need to confront it. It’s a ruthless, brutal regime that has the blood of Americans, many others and including its own people on its hands.” Even worse, she said, “Its political rallies resound with cries of ‘Death to America.’ Its leaders talk about wiping Israel off the face of the map, most recently just yesterday, and foment terror against it. There is absolutely no reason to trust Iran.” She repeated that claim several times for emphasis: “They vow to destroy Israel. And that’s worth saying again. They vow to destroy Israel.” She vowed that in dealing with Iran, she will be tougher and more aggressive than Reagan was with the Soviet Union: “You remember President Reagan’s line about the Soviets: Trust but verify? My approach will be distrust and verify.” She also explicitly threatened Iran with war if they fail to comply: “I will not hesitate to take military action if Iran attempts to obtain a nuclear weapon, and I will set up my successor to be able to credibly make the same pledge.” She even depicted the Iran Deal as making a future war with Iran easier and more powerful:
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  • Should it become necessary in the future having exhausted peaceful alternatives to turn to military force, we will have preserved and in some cases enhanced our capacity to act. And because we have proven our commitment to diplomacy first, the world will more likely join us. As for Israel itself, Clinton eagerly promised to shower it with a long, expensive, and dangerous list of gifts. Here’s just a part of what that country can expect from the second President Clinton: I will deepen America’s unshakeable commitment to Israel’s security, including our long standing tradition of guaranteeing Israel’s qualitative military edge. I’ll increase support for Israeli rocket and missile defenses and for intelligence sharing. I’ll sell Israel the most sophisticated fire aircraft ever developed. The F-35. We’ll work together to develop and implement better tunnel detection technology to prevent arms smuggling and kidnapping as well as the strongest possible missile defense system for Northern Israel, which has been subjected to Hezbollah’s attacks for years.
  • She promised she “will sustain a robust military presence in the [Persian Gulf] region, especially our air and naval forces.” She vowed to “increase security cooperation with our Gulf allies” — by which she means the despotic regimes in Saudi Arabia, United Arab Emirates and Qatar, among others. She swore she will crack down even further on Hezbollah: “It’s time to eliminate the false distinction that some still make between the supposed political and military wings. If you’re part of Hezbollah, you’re part of a terrorist organization, plain and simple.” Then she took the ultimate pledge: “I would not support this agreement for one second if I thought it put Israel in greater danger.” So even if the deal would benefit the U.S., she would not support it “for one second” if it “put Israel in greater danger.” That’s an unusually blunt vow to subordinate the interests of the U.S. to that foreign nation.
  • But when it comes to gifts to Israel, that’s not all! Echoing the vow of several GOP candidates to call Netanyahu right away after being elected, Clinton promised: “I would invite the Israeli prime minister to the White House during my first month in office to talk about all of these issues and to set us on a course of close, frequent consultation right from the start, because we both rely on each other for support as partners, allies and friends.” She then addressed “the people of Israel,” telling them: “Let me say, you’ll never have to question whether we’re with you. The United States will always be with you.” For good measure, she heaped praise on “my friend Chuck Schumer,” who has led the battle to defeat the Iran Deal, gushing about what an “excellent leader in the Senate” he will make. What’s a little warmongering among friends? Just as was true in her book, she implicitly criticized Obama — who boasts that he has bombed seven predominantly Muslim countries — of being insufficiently militaristic, imperialistic, and violent. She said she wanted more involvement in Syria from the start (though did not call for the U.S. to accept any of its refugees). In a clear rebuke to the current president, she decreed that any criticisms U.S. officials may utter of Israel should be done only in private (“in private and behind, you know, closed doors”), not in public, lest “it open[] the door to everybody else to delegitimize Israel to, you know, pile on in ways that are not good for the — the strength and stability, not just of Israel.” About Russia, she said, “I think we have not done enough” and put herself “in the category of people who wanted us to do more in response to the annexation of Crimea and the continuing destabilization of Ukraine.”
  • Two words that did not come out of Clinton’s mouth during the entire event: “Palestinians” (do they exist?) and “Libya” (that glorious war she supported that was going to be the inspiring template for future “humanitarian interventions” before it predictably destroyed that whole country).
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    Glenn Greenwald tags Hillary pandering to the Chicken Hawk Party
Paul Merrell

The Fundamentals of US Surveillance: What Edward Snowden Never Told Us? | Global Resear... - 0 views

  • 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.
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  • U.S. government officials have defended the program by asserting it cannot be used on domestic targets without a warrant. But once again, the FISA courts and their super-secret warrants  do not apply to foreign government surveillance of US citizens. So all this sturm and drang about whether or not the US is eavesdropping on our communications is, in fact, irrelevant and diversionary.
  • In fact, the USA Freedom Act reinstituted a number of the surveillance protocols of Section 215, including  authorization for  roving wiretaps  and tracking “lone wolf terrorists.”  While mainstream media heralded the passage of the bill as restoring privacy rights which were shredded under 215, privacy advocates have maintained that the bill will do little, if anything, to reverse the  surveillance situation in the US. The NSA went on the record as supporting the Freedom Act, stating it would end bulk collection of telephone metadata. However, in light of the reciprocal agreement between the US and Great Britain, the entire hoopla over NSA surveillance, Section 215, FISA courts and the USA Freedom Act could be seen as a giant smokescreen. If Great Britain is collecting our real time phone conversations and turning them over to the NSA, outside the realm or reach of the above stated laws, then all this posturing over the privacy rights of US citizens and surveillance laws expiring and being resurrected doesn’t amount to a hill of CDs.
Paul Merrell

Spy Chief James Clapper Wins Rosemary Award - 0 views

  • Director of National Intelligence James Clapper has won the infamous Rosemary Award for worst open government performance in 2013, according to the citation published today by the National Security Archive at www.nsarchive.org. Despite heavy competition, Clapper's "No, sir" lie to Senator Ron Wyden's question: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" sealed his receipt of the dubious achievement award, which cites the vastly excessive secrecy of the entire U.S. surveillance establishment. The Rosemary Award citation leads with what Clapper later called the "least untruthful" answer possible to congressional questions about the secret bulk collection of Americans' phone call data. It further cites other Clapper claims later proved false, such as his 2012 statement that "we don't hold data on U.S. citizens." But the Award also recognizes Clapper's fellow secrecy fetishists and enablers, including:
  • Gen. Keith Alexander, director of the NSA, for multiple Rose Mary Woods-type stretches, such as (1) claiming that the secret bulk collection prevented 54 terrorist plots against the U.S. when the actual number, according to the congressionally-established Privacy and Civil Liberties Oversight Board (PCLOB) investigation (pp. 145-153), is zero; (2) his 2009 declaration to the wiretap court that multiple NSA violations of the court's orders arose from differences over "terminology," an explanation which the chief judge said "strains credulity;" and (3) public statements by the NSA about its programs that had to be taken down from its website for inaccuracies (see Documents 78, 85, 87 in The Snowden Affair), along with public statements by other top NSA officials now known to be untrue (see "Remarks of Rajesh De," NSA General Counsel, Document 53 in The Snowden Affair).
  • Robert Mueller, former FBI director, for suggesting (as have Gen. Alexander and many others) that the secret bulk collection program might have been able to prevent the 9/11 attacks, when the 9/11 Commission found explicitly the problem was not lack of data points, but failing to connect the many dots the intelligence community already had about the would-be hijackers living in San Diego. The National Security Division lawyers at the Justice Department, for misleading their own Solicitor General (Donald Verrilli) who then misled (inadvertently) the U.S. Supreme Court over whether Justice let defendants know that bulk collection had contributed to their prosecutions. The same National Security Division lawyers who swore under oath in the Electronic Frontier Foundation's Freedom of Information Act lawsuit for a key wiretap court opinion that the entire text of the opinion was appropriately classified Top Secret/Sensitive Compartmented Information (release of which would cause "exceptionally grave damage" to U.S. national security). Only after the Edward Snowden leaks and the embarrassed governmental declassification of the opinion did we find that one key part of the opinion's text simply reproduced the actual language of the 4th Amendment to the U.S. Constitution, and the only "grave damage" was to the government's false claims.
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  • President Obama for his repeated misrepresentations about the bulk collection program (calling the wiretap court "transparent" and saying "all of Congress" knew "exactly how this program works") while in effect acknowledging the public value of the Edward Snowden leaks by ordering the long-overdue declassification of key documents about the NSA's activities, and investigations both by a special panel and by the Privacy and Civil Liberties Oversight Board. The PCLOB directly contradicted the President, pointing out that "when the only means through which legislators can try to understand a prior interpretation of the law is to read a short description of an operational program, prepared by executive branch officials, made available only at certain times and locations, which cannot be discussed with others except in classified briefings conducted by those same executive branch officials, legislators are denied a meaningful opportunity to gauge the legitimacy and implications of the legal interpretation in question. Under such circumstances, it is not a legitimate method of statutory construction to presume that these legislators, when reenacting the statute, intended to adopt a prior interpretation that they had no fair means of evaluating." (p. 101)
  • Even an author of the Patriot Act, Rep. Jim Sensenbrenner (R-WI), was broadsided by the revelation of the telephone metadata dragnet. After learning of the extent of spying on Americans that his Act unleashed, he wrote that the National Security Agency "ignored restrictions painstakingly crafted by lawmakers and assumed plenary authority never imagined by Congress" by cloaking its actions behind the "thick cloud of secrecy" that even our elected representatives could not breech. Clapper recently conceded to the Daily Beast, "I probably shouldn't say this, but I will. Had we been transparent about this [phone metadata collection] from the outset … we wouldn't have had the problem we had." The NSA's former deputy director, John "Chris" Inglis, said the same when NPR asked him if he thought the metadata dragnet should have been disclosed before Snowden. "In hindsight, yes. In hindsight, yes." Speaking about potential (relatively minimal) changes to the National Security Agency even the president acknowledged, "And all too often new authorities were instituted without adequate public debate," and "Given the unique power of the state, it is not enough for leaders to say: Trust us. We won't abuse the data we collect. For history has too many examples when that trust has been breached." (Exhibit A, of course, is the NSA "watchlist" in the 1960's and 1970's that targeted not only antiwar and civil rights activists, but also journalists and even members of Congress.)
  • The Archive established the not-so-coveted Rosemary Award in 2005, named after President Nixon's secretary, Rose Mary Woods, who testified she had erased 18-and-a-half minutes of a crucial Watergate tape — stretching, as she showed photographers, to answer the phone with her foot still on the transcription pedal. Bestowed annually to highlight the lowlights of government secrecy, the Rosemary Award has recognized a rogue's gallery of open government scofflaws, including the CIA, the Treasury Department, the Air Force, the FBI, the Federal Chief Information Officers' Council, and the career Rosemary leader — the Justice Department — for the last two years. Rosemary-winner James Clapper has offered several explanations for his untruthful disavowal of the National Security Agency's phone metadata dragnet. After his lie was exposed by the Edward Snowden revelations, Clapper first complained to NBC's Andrea Mitchell that the question about the NSA's surveillance of Americans was unfair, a — in his words — "When are you going to stop beating your wife kind of question." So, he responded "in what I thought was the most truthful, or least untruthful, manner by saying 'no.'"
  • After continuing criticism for his lie, Clapper wrote a letter to Chairman of the Senate Select Committee on Intelligence Dianne Feinstein, now explaining that he misunderstood Wyden's question and thought it was about the PRISM program (under Section 702 of the Foreign Intelligence Surveillance Act) rather than the telephone metadata collection program (under Section 215 of the Patriot Act). Clapper wrote that his staff "acknowledged the error" to Senator Wyden soon after — yet he chose to reject Wyden's offer to amend his answer. Former NSA senior counsel Joel Brenner blamed Congress for even asking the question, claiming that Wyden "sandbagged" Clapper by the "vicious tactic" of asking "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Meanwhile, Steve Aftergood of the Federation of American Scientists countered that "it is of course wrong for officials to make false statements, as DNI Clapper did," and that in fact the Senate Intelligence Committee "became complicit in public deception" for failing to rebut or correct Clapper's statement, which they knew to be untruthful. Clapper described his unclassified testimony as a game of "stump the chump." But when it came to oversight of the National Security Agency, it appears that senators and representatives were the chumps being stumped. According to Representative Justin Amash (R-Mich), the House Intelligence Committee "decided it wasn't worthwhile to share this information" about telephone metadata surveillance with other members of Congress. Classified briefings open to the whole House were a "farce," Amash contended, often consisting of information found in newspapers and public statutes.
  • The Emmy and George Polk Award-winning National Security Archive, based at the George Washington University, has carried out thirteen government-wide audits of FOIA performance, filed more than 50,000 Freedom of Information Act requests over the past 28 years, opened historic government secrets ranging from the CIA's "Family Jewels" to documents about the testing of stealth aircraft at Area 51, and won a series of historic lawsuits that saved hundreds of millions of White House e-mails from the Reagan through Obama presidencies, among many other achievements.
  • Director Clapper joins an undistinguished list of previous Rosemary Award winners: 2012 - the Justice Department (in a repeat performance, for failure to update FOIA regulations for compliance with the law, undermining congressional intent, and hyping its open government statistics) 2011- the Justice Department (for doing more than any other agency to eviscerate President Obama's Day One transparency pledge, through pit-bull whistleblower prosecutions, recycled secrecy arguments in court cases, retrograde FOIA regulations, and mixed FOIA responsiveness) 2010 - the Federal Chief Information Officers' Council (for "lifetime failure" to address the crisis in government e-mail preservation) 2009 - the FBI (for having a record-setting rate of "no records" responses to FOIA requests) 2008 - the Treasury Department (for shredding FOIA requests and delaying responses for decades) 2007 - the Air Force (for disappearing its FOIA requests and having "failed miserably" to meet its FOIA obligations, according to a federal court ruling) 2006 - the Central Intelligence Agency (for the biggest one-year drop-off in responsiveness to FOIA requests yet recorded).   ALSO-RANS The Rosemary Award competition in 2013 was fierce, with a host of government contenders threatening to surpass the Clapper "least untruthful" standard. These secrecy over-achievers included the following FOI delinquents:
  • Admiral William McRaven, head of the Special Operations Command for the raid that killed Osama Bin Laden, who purged his command's computers and file cabinets of all records on the raid, sent any remaining copies over to CIA where they would be effectively immune from the FOIA, and then masterminded a "no records" response to the Associated Press when the AP reporters filed FOIA requests for raid-related materials and photos. If not for a one-sentence mention in a leaked draft inspector general report — which the IG deleted for the final version — no one would have been the wiser about McRaven's shell game. Subsequently, a FOIA lawsuit by Judicial Watch uncovered the sole remaining e-mail from McRaven ordering the evidence destruction, in apparent violation of federal records laws, a felony for which the Admiral seems to have paid no price. Department of Defense classification reviewers who censored from a 1962 document on the Cuban Missile Crisis direct quotes from public statements by Soviet Premier Nikita Khrushchev. The quotes referred to the U.S. Jupiter missiles in Turkey that would ultimately (and secretly) be pulled out in exchange for Soviet withdrawal of its missiles in Cuba. The denials even occurred after an appeal by the National Security Archive, which provided as supporting material the text of the Khrushchev statements and multiple other officially declassified documents (and photographs!) describing the Jupiters in Turkey. Such absurd classification decisions call into question all of the standards used by the Pentagon and the National Declassification Center to review historical documents.
  • Admiral William McRaven memo from May 13, 2011, ordering the destruction of evidence relating to the Osama bin Laden raid. (From Judicial Watch)
  • The Department of Justice Office of Information Policy, which continues to misrepresent to Congress the government's FOIA performance, while enabling dramatic increases in the number of times government agencies invoke the purely discretionary "deliberative process" exemption. Five years after President Obama declared a "presumption of openness" for FOIA requests, Justice lawyers still cannot show a single case of FOIA litigation in which the purported new standards (including orders from their own boss, Attorney General Eric Holder) have caused the Department to change its position in favor of disclosure.
Paul Merrell

F.B.I. Is Broadening Surveillance Role, Report Shows - NYTimes.com - 0 views

  • Although the government’s warrantless surveillance program is associated with the National Security Agency, the Federal Bureau of Investigation has gradually become a significant player in administering it, a newly declassified report shows.In 2008, according to the report, the F.B.I. assumed the power to review email accounts the N.S.A. wanted to collect through the “Prism” system, which collects emails of foreigners from providers like Yahoo and Google. The bureau’s top lawyer, Valerie E. Caproni, who is now a Federal District Court judge, developed procedures to make sure no such accounts belonged to Americans.
  • Then, in October 2009, the F.B.I. started retaining copies of unprocessed communications gathered without a warrant to analyze for its own purposes. And in April 2012, the bureau began nominating new email accounts and phone numbers belonging to foreigners for collection, including through the N.S.A.’s “upstream” system, which collects communications transiting network switches.That information is in a 231-page study by the Justice Department’s inspector general about the F.B.I.’s activities under the FISA Amendments Act of 2008, which authorized the surveillance program. The report was entirely classified when completed in September 2012. But the government has now made a semi-redacted version of the report public in response to a Freedom of Information Act lawsuit filed by The New York Times.
  • The report also filled in a gap about the evolving legality of the warrantless wiretapping program, which traces back to a decision by President George W. Bush in October 2001 to direct the N.S.A. to collect Americans’ international phone calls and emails, from network locations on domestic soil, without the individual warrants required by the Foreign Intelligence Surveillance Act, or FISA. The Times revealed that program in December 2005.After the article appeared, telecommunications providers that had voluntarily participated in the program were sued, and a Federal District Court judge in Detroit ruled that the program was illegal, although that decision was later vacated. The Bush administration sought to put the program on more solid legal footing by gaining orders from the Foreign Intelligence Surveillance Court approving it.Continue reading the main story Continue reading the main story Continue reading the main story In January 2007, the Bush administration persuaded the court’s Judge Malcolm Howard to issue an order to telephone and network companies requiring them to let the security agency target foreigners’ accounts for collection without individual warrants. But in April 2007, when the order came up for renewal before Judge Roger Vinson, he said that it was illegal.
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  • Judge Vinson’s resistance led Congress to enact, in August 2007, the Protect America Act, a temporary law permitting warrantless surveillance of foreigners from domestic network locations. The next year, Congress replaced that law with the FISA Amendments Act.Last month, as a result of separate Freedom of Information Act lawsuits by The Times and the Electronic Frontier Foundation, the government declassified the identities of the judges who disagreed in early 2007 and several court filings from that episode. But it remained unclear what the N.S.A. had done in June and July of 2007.The newly declassified report said Judge Vinson issued an order on May 31, 2007, that allowed existing surveillance to continue by approving collection on a long list of specific foreign phone numbers and email addresses. But after that, when the agency wanted to start wiretapping an additional person, it had to ask the court for permission.The report said that “the rigorous nature of the FISA Court’s probable cause review of new selectors submitted to the various FISA Court judges following Judge Vinson’s May 31, 2007, order caused the N.S.A. to place fewer foreign selectors under coverage than it wanted to.” That and other factors “combined to accelerate the government’s efforts” to persuade Congress to enact the Protect America Act.
Paul Merrell

Today is a great victory against GCHQ, the NSA and the surveillance state | Carly Nyst ... - 0 views

  • It is a rare thing to bring truth to bear on the most powerful and secretive arm of the state. Never before has the Investigatory Powers Tribunal – the British court tasked with reviewing complaints against the security services – ruled against the government. Not once have the spooks been taken to task for overstepping the lawful boundaries of their conduct. Not a single British spy has been held accountable for mass surveillance, unlawful spying or snooping on private emails and phone calls. Until today. Privacy International has spent the past 25 years fighting back against the ever-expanding British surveillance state. Together with our allies, we’ve resisted the snooper’s charter (multiple times), mandatory ID cards and the provision of passenger name records. Yet in June 2013 we were as shocked as everyone else to learn that GCHQ, in collaboration with the NSA, had acquired the capabilities to completely control, monitor, copy, read and analyse the world’s private communications. It was, until that point, unfathomable that the security services could have so audaciously stretched the boundaries of democratic legitimacy – and could have so severely violated the civil liberties and human rights of not only Britons, but of hundreds of millions of innocent people across the globe.
  • Thanks to Edward Snowden, we learned that GCHQ has access to emails and messages that the NSA siphons off directly and en masse from Google, Skype and Facebook. We discovered that the NSA collects 194m text messages and 5bn location records every day – and GCHQ can read them too. And, of course, we learned that GCHQ is operating a mass surveillance system that, combined with its access to the NSA’s own mass surveillance architecture, means it can read almost anyone’s communications, at any time, without judicial authorisation or any meaningful oversight. In July 2013, the Intelligence and Security Committee assured us that GCHQ access to NSA surveillance material, in particular through the Prism programme, was entirely lawful. Unsurprisingly, we did not find the reassurances of a body that has consistently and blindly backed the services that it is meant to scrutinise comforting.
  • That’s why we decided to take GCHQ to court. Alongside Liberty, Amnesty International and human rights organisations from around the world, we argued that mass surveillance is not an acceptable activity of a democratic government, and that the cosy dealings between GCHQ and the NSA, conducted under a veil of secrecy that was only lifted by a whistleblower’s bravery, had to be brought within public control and scrutiny. The evidence was overwhelming and the history of human rights law was in our favour, but the tribunal – which at that point had never before found that the surveillance activities of GCHQ broke the law – disagreed. Mass surveillance, it found in its decision of December 2014, was legitimate under British law. GCHQ’s access to NSA mass surveillance was also acceptable, it said, given that the government had disclosed details of its relationship with the US during the course of our case.
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  • The decision was a disappointing one, and we’ll soon appeal to the European court of human rights. But it left us with a small glimmer of hope. The tribunal said that it was lawful for GCHQ and the NSA to swap and share surveillance material only because GCHQ has secret internal policies that it reluctantly disclosed in response to Privacy International’s case. Now that those secret policies are no longer secret, the court reasoned, the British public know what’s going on, and that in itself must make those activities lawful. It must follow, therefore, that before those policies were public – prior to Edward Snowden’s disclosures, and our case in the IPT – GCHQ was acting outside the law. Complicated reasoning aside, this finding was a genuine – and rare – success. The tribunal agreed, and we today have a firm statement that the intelligence services were acting completely out of bounds. It is not the judgment we would have liked – that we still hope to get from the European court of human rights in Strasbourg later this year – but it is a significant victory against an arm of the state that has rarely been forced to account for its wrongdoings.
  • It is a vindication of Snowden, and all those who put their careers – and even their lives – on the line to ensure the truth was told. It is a huge encouragement to civil society organisations like Privacy International, which often spend years locked in David and Goliath battles, depleting their funds and their morale to perform the essential role of holding truth to power. In years to come we will look back on today as an essential victory against the surveillance state. Here at Privacy International, we humbly hope that perhaps we will also look back at this day as a turning of the tide; the day when the seemingly uncontrollable advancement of state intrusion into individuals’ lives was halted, and when internet users reclaimed some of the power in their fight for privacy, security and free expression.
Gary Edwards

Great Privacy Essay: Fourth Amendment Doctrine in the Era of Total Surveillance | CIO - 0 views

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    "'Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance' is a thought-provoking essay written by a Fordham University law professor about how the reasonable expectation test for privacy is failing to protect us. Add into our networked world the third-party doctrine and we have little protection against unreasonable searches and seizures."
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    It doesn't detract substantially from the essay's central thesis, but an important part of the learned professor's heartfelt desires were delivered in a Supreme Court decision just decided, after the essay was published, Reilly v. California, http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf The Court held in relevant part: "We also reject the United States' final suggestion that officers should always be able to search a phone's call log, as they did in Wurie's case. The Government relies on Smithv. Maryland, 442 U. S. 735 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a "search" at all under the Fourth Amendment. See id., at 745-746. There is no dispute here that the officers engaged in a search of Wurie's cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label "my house" in Wurie's case." The effect there was to confine Smith v. Maryland, the foundation of the third-party doctrine, to its particular facts. In other words, the third-party doctrine is now confined to connected telephone numbers, the connect time, and the duration of the call. If any other metadata is gathered, such as location data, the third-party doctrine no longer applies. When you read the rest of the Reilly decision, you see a unanimous Supreme Court shooting down one government defense after another that have been used in the NSA's defense to mass telecommunications surveillance. But most interestingly, the Court unmistakably has laid the groundwork for a later decision drastically cutting back on digital surveillance without a search warrant based on particularized probable cause to believe that evidence of a specific crime has occurred and that the requested sear
Paul Merrell

Here's How You Can Find Out If The NSA Shared Your Data With British Spies - Forbes - 0 views

  • In the UK earlier this month, human rights groups Liberty and Privacy International were cheered by a tribunal decision that declared GCHQ’s access to NSA spies’ data illegal. Though it was a hollow victory, as the tribunal also declared all current activities, including all those blanket surveillance projects much derided by free speech activists, entirely legal. The practices previously broke the law because the public was unaware of what safeguards were in place for the UK’s access to data from NSA programs like Prism; as soon as Snowden blew everything wide open the snoops had to explain themselves, and that was enough for the tribunal to confirm the legality of GCHQ’s operations. But the case has had one significant effect: anyone can now figure out if their data was illegally shared by the agencies. Privacy International has set up a simple webpage that anyone in the world can sign up to. You can visit the page here.
  • Once the UK Investigatory Powers Tribunal has determined whom was affected, it has to inform them. Though participants should find out whether their data were unlawfully obtained by GCHQ from the millions of private communications hoovered up by the NSA up until December 2014, it won’t be anytime soon. Privacy International warned in its FAQs: “Count on it being many months, and likely years before this action is completed.” And somewhat ironically Privacy International has to collect participant’s information, including their name and email address, to supply the service. They may ask for more information from willing participants once the group has determined if more is required from the IPT. Anyone who wants to submit directly to the tribunal can do so here.
Paul Merrell

Edward Snowden: A 'Nation' Interview | The Nation - 0 views

  • Snowden: That’s the key—to maintain the garden of liberty, right? This is a generational thing that we must all do continuously. We only have the rights that we protect. It doesn’t matter what we say or think we have. It’s not enough to believe in something; it matters what we actually defend. So when we think in the context of the last decade’s infringements upon personal liberty and the last year’s revelations, it’s not about surveillance. It’s about liberty. When people say, “I have nothing to hide,” what they’re saying is, “My rights don’t matter.” Because you don’t need to justify your rights as a citizen—that inverts the model of responsibility. The government must justify its intrusion into your rights. If you stop defending your rights by saying, “I don’t need them in this context” or “I can’t understand this,” they are no longer rights. You have ceded the concept of your own rights. You’ve converted them into something you get as a revocable privilege from the government, something that can be abrogated at its convenience. And that has diminished the measure of liberty within a society.
  • From the very beginning, I said there are two tracks of reform: there’s the political and the technical. I don’t believe the political will be successful, for exactly the reasons you underlined. The issue is too abstract for average people, who have too many things going on in their lives. And we do not live in a revolutionary time. People are not prepared to contest power. We have a system of education that is really a sort of euphemism for indoctrination. It’s not designed to create critical thinkers. We have a media that goes along with the government by parroting phrases intended to provoke a certain emotional response—for example, “national security.” Everyone says “national security” to the point that we now must use the term “national security.” But it is not national security that they’re concerned with; it is state security. And that’s a key distinction. We don’t like to use the phrase “state security” in the United States because it reminds us of all the bad regimes. But it’s a key concept, because when these officials are out on TV, they’re not talking about what’s good for you. They’re not talking about what’s good for business. They’re not talking about what’s good for society. They’re talking about the protection and perpetuation of a national state system. I’m not an anarchist. I’m not saying, “Burn it to the ground.” But I’m saying we need to be aware of it, and we need to be able to distinguish when political developments are occurring that are contrary to the public interest. And that cannot happen if we do not question the premises on which they’re founded. And that’s why I don’t think political reform is likely to succeed. [Senators] Udall and Wyden, on the intelligence committee, have been sounding the alarm, but they are a minority.
  • The Nation: Every president—and this seems to be confirmed by history—will seek to maximize his or her power, and will see modern-day surveillance as part of that power. Who is going to restrain presidential power in this regard? Snowden: That’s why we have separate and co-equal branches. Maybe it will be Congress, maybe not. Might be the courts, might not. But the idea is that, over time, one of these will get the courage to do so. One of the saddest and most damaging legacies of the Bush administration is the increased assertion of the “state secrets” privilege, which kept organizations like the ACLU—which had cases of people who had actually been tortured and held in indefinite detention—from getting their day in court. The courts were afraid to challenge executive declarations of what would happen. Now, over the last year, we have seen—in almost every single court that has had this sort of national-security case—that they have become markedly more skeptical. People at civil-liberties organizations say it’s a sea change, and that it’s very clear judges have begun to question more critically assertions made by the executive. Even though it seems so obvious now, it is extraordinary in the context of the last decade, because courts had simply said they were not the best branch to adjudicate these claims—which is completely wrong, because they are the only nonpolitical branch. They are the branch that is specifically charged with deciding issues that cannot be impartially decided by politicians. The power of the presidency is important, but it is not determinative. Presidents should not be exempted from the same standards of reason and evidence and justification that any other citizen or civil movement should be held to.
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  • The Nation: Explain the technical reform you mentioned. Snowden: We already see this happening. The issue I brought forward most clearly was that of mass surveillance, not of surveillance in general. It’s OK if we wiretap Osama bin Laden. I want to know what he’s planning—obviously not him nowadays, but that kind of thing. I don’t care if it’s a pope or a bin Laden. As long as investigators must go to a judge—an independent judge, a real judge, not a secret judge—and make a showing that there’s probable cause to issue a warrant, then they can do that. And that’s how it should be done. The problem is when they monitor all of us, en masse, all of the time, without any specific justification for intercepting in the first place, without any specific judicial showing that there’s a probable cause for that infringement of our rights.
  • Since the revelations, we have seen a massive sea change in the technological basis and makeup of the Internet. One story revealed that the NSA was unlawfully collecting data from the data centers of Google and Yahoo. They were intercepting the transactions of data centers of American companies, which should not be allowed in the first place because American companies are considered US persons, sort of, under our surveillance authorities. They say, “Well, we were doing it overseas,” but that falls under a different Reagan-era authority: EO 12333, an executive order for foreign-intelligence collection, as opposed to the ones we now use domestically. So this one isn’t even authorized by law. It’s just an old-ass piece of paper with Reagan’s signature on it, which has been updated a couple times since then. So what happened was that all of a sudden these massive, behemoth companies realized their data centers—sending hundreds of millions of people’s communications back and forth every day—were completely unprotected, electronically naked. GCHQ, the British spy agency, was listening in, and the NSA was getting the data and everything like that, because they could dodge the encryption that was typically used. Basically, the way it worked technically, you go from your phone to Facebook.com, let’s say—that link is encrypted. So if the NSA is trying to watch it here, they can’t understand it. But what these agencies discovered was, the Facebook site that your phone is connected to is just the front end of a larger corporate network—that’s not actually where the data comes from. When you ask for your Facebook page, you hit this part and it’s protected, but it has to go on this long bounce around the world to actually get what you’re asking for and go back. So what they did was just get out of the protected part and they went onto the back network. They went into the private network of these companies.
  • The Nation: The companies knew this? Snowden: Companies did not know it. They said, “Well, we gave the NSA the front door; we gave you the PRISM program. You could get anything you wanted from our companies anyway—all you had to do was ask us and we’re gonna give it to you.” So the companies couldn’t have imagined that the intelligence communities would break in the back door, too—but they did, because they didn’t have to deal with the same legal process as when they went through the front door. When this was published by Barton Gellman in The Washington Post and the companies were exposed, Gellman printed a great anecdote: he showed two Google engineers a slide that showed how the NSA was doing this, and the engineers “exploded in profanity.” Another example—one document I revealed was the classified inspector general’s report on a Bush surveillance operation, Stellar Wind, which basically showed that the authorities knew it was unlawful at the time. There was no statutory basis; it was happening basically on the president’s say-so and a secret authorization that no one was allowed to see. When the DOJ said, “We’re not gonna reauthorize this because it is not lawful,” Cheney—or one of Cheney’s advisers—went to Michael Hayden, director of the NSA, and said, “There is no lawful basis for this program. DOJ is not going to reauthorize it, and we don’t know what we’re going to do. Will you continue it anyway on the president’s say-so?” Hayden said yes, even though he knew it was unlawful and the DOJ was against it. Nobody has read this document because it’s like twenty-eight pages long, even though it’s incredibly important.
  • The big tech companies understood that the government had not only damaged American principles, it had hurt their businesses. They thought, “No one trusts our products anymore.” So they decided to fix these security flaws to secure their phones. The new iPhone has encryption that protects the contents of the phone. This means if someone steals your phone—if a hacker or something images your phone—they can’t read what’s on the phone itself, they can’t look at your pictures, they can’t see the text messages you send, and so forth. But it does not stop law enforcement from tracking your movements via geolocation on the phone if they think you are involved in a kidnapping case, for example. It does not stop law enforcement from requesting copies of your texts from the providers via warrant. It does not stop them from accessing copies of your pictures or whatever that are uploaded to, for example, Apple’s cloud service, which are still legally accessible because those are not encrypted. It only protects what’s physically on the phone. This is purely a security feature that protects against the kind of abuse that can happen with all these things being out there undetected. In response, the attorney general and the FBI director jumped on a soap box and said, “You are putting our children at risk.”
  • The Nation: Is there a potential conflict between massive encryption and the lawful investigation of crimes? Snowden: This is the controversy that the attorney general and the FBI director were trying to create. They were suggesting, “We have to be able to have lawful access to these devices with a warrant, but that is technically not possible on a secure device. The only way that is possible is if you compromise the security of the device by leaving a back door.” We’ve known that these back doors are not secure. I talk to cryptographers, some of the leading technologists in the world, all the time about how we can deal with these issues. It is not possible to create a back door that is only accessible, for example, to the FBI. And even if it were, you run into the same problem with international commerce: if you create a device that is famous for compromised security and it has an American back door, nobody is gonna buy it. Anyway, it’s not true that the authorities cannot access the content of the phone even if there is no back door. When I was at the NSA, we did this every single day, even on Sundays. I believe that encryption is a civic responsibility, a civic duty.
  • The Nation: Some years ago, The Nation did a special issue on patriotism. We asked about a hundred people how they define it. How do you define patriotism? And related to that, you’re probably the world’s most famous whistleblower, though you don’t like that term. What characterization of your role do you prefer? Snowden: What defines patriotism, for me, is the idea that one rises to act on behalf of one’s country. As I said before, that’s distinct from acting to benefit the government—a distinction that’s increasingly lost today. You’re not patriotic just because you back whoever’s in power today or their policies. You’re patriotic when you work to improve the lives of the people of your country, your community and your family. Sometimes that means making hard choices, choices that go against your personal interest. People sometimes say I broke an oath of secrecy—one of the early charges leveled against me. But it’s a fundamental misunderstanding, because there is no oath of secrecy for people who work in the intelligence community. You are asked to sign a civil agreement, called a Standard Form 312, which basically says if you disclose classified information, they can sue you; they can do this, that and the other. And you risk going to jail. But you are also asked to take an oath, and that’s the oath of service. The oath of service is not to secrecy, but to the Constitution—to protect it against all enemies, foreign and domestic. That’s the oath that I kept, that James Clapper and former NSA director Keith Alexander did not. You raise your hand and you take the oath in your class when you are on board. All government officials are made to do it who work for the intelligence agencies—at least, that’s where I took the oath.
  • The Nation: Creating a new system may be your transition, but it’s also a political act. Snowden: In case you haven’t noticed, I have a somewhat sneaky way of effecting political change. I don’t want to directly confront great powers, which we cannot defeat on their terms. They have more money, more clout, more airtime. We cannot be effective without a mass movement, and the American people today are too comfortable to adapt to a mass movement. But as inequality grows, the basic bonds of social fraternity are fraying—as we discussed in regard to Occupy Wall Street. As tensions increase, people will become more willing to engage in protest. But that moment is not now.
  • The Nation: You really think that if you could go home tomorrow with complete immunity, there wouldn’t be irresistible pressure on you to become a spokesperson, even an activist, on behalf of our rights and liberties? Indeed, wouldn’t that now be your duty? Snowden: But the idea for me now—because I’m not a politician, and I do not think I am as effective in this way as people who actually prepare for it—is to focus on technical reform, because I speak the language of technology. I spoke with Tim Berners-Lee, the guy who invented the World Wide Web. We agree on the necessity for this generation to create what he calls the Magna Carta for the Internet. We want to say what “digital rights” should be. What values should we be protecting, and how do we assert them? What I can do—because I am a technologist, and because I actually understand how this stuff works under the hood—is to help create the new systems that reflect our values. Of course I want to see political reform in the United States. But we could pass the best surveillance reforms, the best privacy protections in the history of the world, in the United States, and it would have zero impact internationally. Zero impact in China and in every other country, because of their national laws—they won’t recognize our reforms; they’ll continue doing their own thing. But if someone creates a reformed technical system today—technical standards must be identical around the world for them to function together.
  • As for labeling someone a whistleblower, I think it does them—it does all of us—a disservice, because it “otherizes” us. Using the language of heroism, calling Daniel Ellsberg a hero, and calling the other people who made great sacrifices heroes—even though what they have done is heroic—is to distinguish them from the civic duty they performed, and excuses the rest of us from the same civic duty to speak out when we see something wrong, when we witness our government engaging in serious crimes, abusing power, engaging in massive historic violations of the Constitution of the United States. We have to speak out or we are party to that bad action.
  • The Nation: Considering your personal experience—the risks you took, and now your fate here in Moscow—do you think other young men or women will be inspired or discouraged from doing what you did? Snowden: Chelsea Manning got thirty-five years in prison, while I’m still free. I talk to people in the ACLU office in New York all the time. I’m able to participate in the debate and to campaign for reform. I’m just the first to come forward in the manner that I did and succeed. When governments go too far to punish people for actions that are dissent rather than a real threat to the nation, they risk delegitimizing not just their systems of justice, but the legitimacy of the government itself. Because when they bring political charges against people for acts that were clearly at least intended to work in the public interest, they deny them the opportunity to mount a public-interest defense. The charges they brought against me, for example, explicitly denied my ability to make a public-interest defense. There were no whistleblower protections that would’ve protected me—and that’s known to everybody in the intelligence community. There are no proper channels for making this information available when the system fails comprehensively.
  • The government would assert that individuals who are aware of serious wrongdoing in the intelligence community should bring their concerns to the people most responsible for that wrongdoing, and rely on those people to correct the problems that those people themselves authorized. Going all the way back to Daniel Ellsberg, it is clear that the government is not concerned with damage to national security, because in none of these cases was there damage. At the trial of Chelsea Manning, the government could point to no case of specific damage that had been caused by the massive revelation of classified information. The charges are a reaction to the government’s embarrassment more than genuine concern about these activities, or they would substantiate what harms were done. We’re now more than a year since my NSA revelations, and despite numerous hours of testimony before Congress, despite tons of off-the-record quotes from anonymous officials who have an ax to grind, not a single US official, not a single representative of the United States government, has ever pointed to a single case of individualized harm caused by these revelations. This, despite the fact that former NSA director Keith Alexander said this would cause grave and irrevocable harm to the nation. Some months after he made that statement, the new director of the NSA, Michael Rogers, said that, in fact, he doesn’t see the sky falling. It’s not so serious after all.
  • The Nation: You also remind us of [Manhattan Project physicist] Robert Oppenheimer—what he created and then worried about. Snowden: Someone recently talked about mass surveillance and the NSA revelations as being the atomic moment for computer scientists. The atomic bomb was the moral moment for physicists. Mass surveillance is the same moment for computer scientists, when they realize that the things they produce can be used to harm a tremendous number of people. It is interesting that so many people who become disenchanted, who protest against their own organizations, are people who contributed something to them and then saw how it was misused. When I was working in Japan, I created a system for ensuring that intelligence data was globally recoverable in the event of a disaster. I was not aware of the scope of mass surveillance. I came across some legal questions when I was creating it. My superiors pushed back and were like, “Well, how are we going to deal with this data?” And I was like, “I didn’t even know it existed.” Later, when I found out that we were collecting more information on American communications than we were on Russian communications, for example, I was like, “Holy shit.” Being confronted with the realization that work you intended to benefit people is being used against them has a radicalizing effect.
  • The Nation: We have a sense, or certainly the hope, we’ll be seeing you in America soon—perhaps sometime after this Ukrainian crisis ends. Snowden: I would love to think that, but we’ve gone all the way up the chain at all the levels, and things like that. A political decision has been made not to irritate the intelligence community. The spy agencies are really embarrassed, they’re really sore—the revelations really hurt their mystique. The last ten years, they were getting the Zero Dark Thirty treatment—they’re the heroes. The surveillance revelations bring them back to Big Brother kind of narratives, and they don’t like that at all. The Obama administration almost appears as though it is afraid of the intelligence community. They’re afraid of death by a thousand cuts—you know, leaks and things like that.
  • The Nation: You’ve given us a lot of time, and we are very grateful, as will be The Nation’s and other readers. But before we end, any more thoughts about your future? Snowden: If I had to guess what the future’s going to look like for me—assuming it’s not an orange jumpsuit in a hole—I think I’m going to alternate between tech and policy. I think we need that. I think that’s actually what’s missing from government, for the most part. We’ve got a lot of policy people, but we have no technologists, even though technology is such a big part of our lives. It’s just amazing, because even these big Silicon Valley companies, the masters of the universe or whatever, haven’t engaged with Washington until recently. They’re still playing catch-up. As for my personal politics, some people seem to think I’m some kind of archlibertarian, a hyper-conservative. But when it comes to social policies, I believe women have the right to make their own choices, and inequality is a really important issue. As a technologist, I see the trends, and I see that automation inevitably is going to mean fewer and fewer jobs. And if we do not find a way to provide a basic income for people who have no work, or no meaningful work, we’re going to have social unrest that could get people killed. When we have increasing production—year after year after year—some of that needs to be reinvested in society. It doesn’t need to be consistently concentrated in these venture-capital funds and things like that. I’m not a communist, a socialist or a radical. But these issues have to be 
addressed.
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    Remarkable interview. Snowden finally gets asked some questions about politics. 
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