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Paul Merrell

NZ Prime Minister John Key Retracts Vow to Resign if Mass Surveillance Is Shown - 0 views

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surveillance state NSA GCSB Key-resignation bulk-collection lies

shared by Paul Merrell on 12 Mar 15 - No Cached
  • In August 2013, as evidence emerged of the active participation by New Zealand in the “Five Eyes” mass surveillance program exposed by Edward Snowden, the country’s conservative Prime Minister, John Key, vehemently denied that his government engages in such spying. He went beyond mere denials, expressly vowing to resign if it were ever proven that his government engages in mass surveillance of New Zealanders. He issued that denial, and the accompanying resignation vow, in order to reassure the country over fears provoked by a new bill he advocated to increase the surveillance powers of that country’s spying agency, Government Communications Security Bureau (GCSB) — a bill that passed by one vote thanks to the Prime Minister’s guarantees that the new law would not permit mass surveillance.
  • Since then, a mountain of evidence has been presented that indisputably proves that New Zealand does exactly that which Prime Minister Key vehemently denied — exactly that which he said he would resign if it were proven was done. Last September, we reported on a secret program of mass surveillance at least partially implemented by the Key government that was designed to exploit the very law that Key was publicly insisting did not permit mass surveillance. At the time, Snowden, citing that report as well as his own personal knowledge of GCSB’s participation in the mass surveillance tool XKEYSCORE, wrote in an article for The Intercept: Let me be clear: any statement that mass surveillance is not performed in New Zealand, or that the internet communications are not comprehensively intercepted and monitored, or that this is not intentionally and actively abetted by the GCSB, is categorically false. . . . The prime minister’s claim to the public, that “there is no and there never has been any mass surveillance” is false. The GCSB, whose operations he is responsible for, is directly involved in the untargeted, bulk interception and algorithmic analysis of private communications sent via internet, satellite, radio, and phone networks.
  • A series of new reports last week by New Zealand journalist Nicky Hager, working with my Intercept colleague Ryan Gallagher, has added substantial proof demonstrating GCSB’s widespread use of mass surveillance. An article last week in The New Zealand Herald demonstrated that “New Zealand’s electronic surveillance agency, the GCSB, has dramatically expanded its spying operations during the years of John Key’s National Government and is automatically funnelling vast amounts of intelligence to the US National Security Agency.” Specifically, its “intelligence base at Waihopai has moved to ‘full-take collection,’ indiscriminately intercepting Asia-Pacific communications and providing them en masse to the NSA through the controversial NSA intelligence system XKeyscore, which is used to monitor emails and internet browsing habits.” Moreover, the documents “reveal that most of the targets are not security threats to New Zealand, as has been suggested by the Government,” but “instead, the GCSB directs its spying against a surprising array of New Zealand’s friends, trading partners and close Pacific neighbours.” A second report late last week published jointly by Hager and The Intercept detailed the role played by GCSB’s Waihopai base in aiding NSA’s mass surveillance activities in the Pacific (as Hager was working with The Intercept on these stories, his house was raided by New Zealand police for 10 hours, ostensibly to find Hager’s source for a story he published that was politically damaging to Key).
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  • That the New Zealand government engages in precisely the mass surveillance activities Key vehemently denied is now barely in dispute. Indeed, a former director of GCSB under Key, Sir Bruce Ferguson, while denying any abuse of New Zealander’s communications, now admits that the agency engages in mass surveillance.
  • Meanwhile, Russel Norman, the head of the country’s Green Party, said in response to these stories that New Zealand is “committing crimes” against its neighbors in the Pacific by subjecting them to mass surveillance, and insists that the Key government broke the law because that dragnet necessarily includes the communications of New Zealand citizens when they travel in the region.
  • So now that it’s proven that New Zealand does exactly that which Prime Minister Key vowed would cause him to resign if it were proven, is he preparing his resignation speech? No: that’s something a political official with a minimal amount of integrity would do. Instead — even as he now refuses to say what he has repeatedly said before: that GCSB does not engage in mass surveillance — he’s simply retracting his pledge as though it were a minor irritant, something to be casually tossed aside:
  • When asked late last week whether New Zealanders have a right to know what their government is doing in the realm of digital surveillance, the Prime Minister said: “as a general rule, no.” And he expressly refuses to say whether New Zealand is doing that which he swore repeatedly it was not doing, as this excellent interview from Radio New Zealand sets forth: Interviewer: “Nicky Hager’s revelations late last week . . . have stoked fears that New Zealanders’ communications are being indiscriminately caught in that net. . . . The Prime Minister, John Key, has in the past promised to resign if it were found to be mass surveillance of New Zealanders . . . Earlier, Mr. Key was unable to give me an assurance that mass collection of communications from New Zealanders in the Pacific was not taking place.” PM Key: “No, I can’t. I read the transcript [of former GCSB Director Bruce Ferguson’s interview] – I didn’t hear the interview – but I read the transcript, and you know, look, there’s a variety of interpretations – I’m not going to critique–”
  • Interviewer: “OK, I’m not asking for a critique. Let’s listen to what Bruce Ferguson did tell us on Friday:” Ferguson: “The whole method of surveillance these days, is sort of a mass collection situation – individualized: that is mission impossible.” Interviewer: “And he repeated that several times, using the analogy of a net which scoops up all the information. . . . I’m not asking for a critique with respect to him. Can you confirm whether he is right or wrong?” Key: “Uh, well I’m not going to go and critique the guy. And I’m not going to give a view of whether he’s right or wrong” . . . . Interviewer: “So is there mass collection of personal data of New Zealand citizens in the Pacific or not?” Key: “I’m just not going to comment on where we have particular targets, except to say that where we go and collect particular information, there is always a good reason for that.”
  • From “I will resign if it’s shown we engage in mass surveillance of New Zealanders” to “I won’t say if we’re doing it” and “I won’t quit either way despite my prior pledges.” Listen to the whole interview: both to see the type of adversarial questioning to which U.S. political leaders are so rarely subjected, but also to see just how obfuscating Key’s answers are. The history of reporting from the Snowden archive has been one of serial dishonesty from numerous governments: such as the way European officials at first pretended to be outraged victims of NSA only for it to be revealed that, in many ways, they are active collaborators in the very system they were denouncing. But, outside of the U.S. and U.K. itself, the Key government has easily been the most dishonest over the last 20 months: one of the most shocking stories I’ve seen during this time was how the Prime Minister simultaneously plotted in secret to exploit the 2013 proposed law to implement mass surveillance at exactly the same time that he persuaded the public to support it by explicitly insisting that it would not allow mass surveillance. But overtly reneging on a public pledge to resign is a new level of political scandal. Key was just re-elected for his third term, and like any political official who stays in power too long, he has the despot’s mentality that he’s beyond all ethical norms and constraints. But by the admission of his own former GCSB chief, he has now been caught red-handed doing exactly that which he swore to the public would cause him to resign if it were proven. If nothing else, the New Zealand media ought to treat that public deception from its highest political official with the level of seriousness it deserves.
  • Paul Merrell on 12 Mar 15
     
    It seems the U.S. is not the only nation that has liars for head of state. 
Paul Merrell

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

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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.”
  • 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 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.
  • 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 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

The Orwellian Re-Branding of "Mass Surveillance" as Merely "Bulk Collection" - The Inte... - 0 views

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surveillance state propaganda bulk-collection mass-surveillance

shared by Paul Merrell on 14 Mar 15 - No Cached
  • Just as the Bush administration and the U.S. media re-labelled “torture” with the Orwellian euphemism “enhanced interrogation techniques” to make it more palatable, the governments and media of the Five Eyes surveillance alliance are now attempting to re-brand “mass surveillance” as “bulk collection” in order to make it less menacing (and less illegal). In the past several weeks, this is the clearly coordinated theme that has arisen in the U.S., UK, Canada, Australia and New Zealand as the last defense against the Snowden revelations, as those governments seek to further enhance their surveillance and detention powers under the guise of terrorism.
  • This manipulative language distortion can be seen perfectly in yesterday’s white-washing report of GCHQ mass surveillance from the servile rubber-stamp calling itself “The Intelligence and Security Committee of the UK Parliament (ISC)”(see this great Guardian Editorial this morning on what a “slumbering” joke that “oversight” body is). As Committee Member MP Hazel Blears explained yesterday (photo above), the Parliamentary Committee officially invoked this euphemism to justify the collection of billions of electronic communications events every day. The Committee actually acknowledged for the first time (which Snowden documents long ago proved) that GCHQ maintains what it calls “Bulk Personal Datasets” that contain “millions of records,” and even said about pro-privacy witnesses who testified before it: “we recognise their concerns as to the intrusive nature of bulk collection.” That is the very definition of “mass surveillance,” yet the Committee simply re-labelled it “bulk collection,” purported to distinguish it from “mass surveillance,” and thus insist that it was all perfectly legal.
  • This re-definition game goes as follows: yes, we vacuum up and store literally as much of the internet as we possibly can. Then we analyze all the data about what you’re doing, with whom you’re speaking, and who your network of associates is. Based on that analysis of all of you and your activities, we then read the communications that we want (with virtually no checks and concealing from you what percentage of it we’re reading), and store as much of the rest of it as technology permits for future trolling. But don’t worry: we’re only reading the Bad People’s emails. So run along then: no mass surveillance here. Just bulk collection! It’s not mass surveillance, but “enhanced collection techniques.”  One of the many facts that made the re-defining of “torture” so corrupt and indisputably invalid was that there was long-standing law making clear that exactly these interrogation techniques used by the U.S. government were torture and thus illegal. The same is true of this obscene attempt to re-define “mass surveillance” as nothing more than mere innocent “bulk collection.”
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  • As Caspar Bowden points out, EU law is crystal clear that exactly what these agencies are doing constitutes illegal mass surveillance. From the 2000 decision of the European Court of Human Rights in Amann v. Switzerland, which found a violation of the right to privacy guaranteed by Article 8 of the European Convention on Human Rights and rejected the defense from the government that no privacy violation occurs if the data is not reviewed or exploited: The Court reiterates that the storing of data relating to the “private life” of an individual falls within the application of Article 8 § 1  . . . . The Court reiterates that the storing by a public authority of information relating to an individual’s private life amounts to an interference within the meaning of Article 8. The subsequent use of the stored information has no bearing on that finding (emphasis added). A separate 2000 ruling found a violation of privacy rights even when the government is merely storing records regarding one’s activities undertaken in public (such as attending demonstrations), because “public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities.” That’s why an EU Parliamentary Inquiry into the Snowden revelations condemned NSA and GCHQ spying in the “strongest possible terms,” pointing out that it was classic “mass surveillance” and thus illegal. That’s the same rationale that led a U.S. federal court to conclude that mass metatdata collection was very likely an unconstitutional violation of the privacy rights in the Fourth Amendment.
  • By itself, common sense should prevent any of these governments from claiming that sweeping up, storing, and analyzing much of the internet – literally examining billions of communications activities every week of entire populations – is something other than “mass surveillance.” Yet this has now become the coordinated defense from the governments in the U.S., the UK, Canada, New Zealand and Australia. It’s nothing short of astonishing to watch them try to get away with this kind of propagnadistic sophistry. (In the wake of our reports with journalist Nicky Hager on GCSB, watch the leader of New Zealand’s Green Party interrogate the country’s flailing Prime Minister this week in Parliament about this completely artificial distinction). But – just as it was stunning to watch media outlets refuse to use the term “torture” because the U.S. Government demanded that it be called something else – this Orwellian switch in surveillance language is now predictably (and mindlessly) being adopted by those nations’ most state-loyal media outlets.
Gary Edwards

You Won't BELIEVE What's Going On with Government Spying on Americans - BlackListedNews... - 1 views

www.blacklistednews.com/...M.html

NSA-Patriot-Act-NDAA NSA-Whistleblower Edward-Snowden Tyranny-by-Executive-Order spying

shared by Gary Edwards on 20 Aug 13 - No Cached
  • Gary Edwards on 20 Aug 13
     
    "New Revelations Are Breaking Every Day" This web page is very well sourced and filled with links where you will get lost for hours. Excellent reference document ............................ Revelations about the breathtaking scope of government spying are coming so fast that it's time for an updated roundup: - Just weeks after NSA boss Alexander said that a review of NSA spying found not even one violation, the Washington Post published an internal NSA audit showing that the agency has broken its own rules thousands of times each year - 2 Senators on the intelligence committee said the violations revealed in the Post article were just the "tip of the iceberg" - Glenn Greenwald notes:  "One key to the WashPost story: the reports are internal, NSA audits, which means high likelihood of both under-counting & white-washing".(Even so, the White House tried to do damage control by retroactively changing on-the-record quotes) - The government is spying on essentially everything we do. It is not just "metadata" … although that is enough to destroy your privacy - The government has adopted a secret interpretation of the Patriot Act which allows it to pretend that "everything" is relevant … so it spies on everyone - NSA whistleblowers say that the NSA collects all of our conversations word-for-word - It's not just the NSA … Many other agencies, like the FBI and IRS - concerned only with domesticissues - spy on Americans as well - The information gained through spying is shared with federal, state and local agencies, and they are using that information to prosecute petty crimes such as drugs and taxes.  The agencies are instructed to intentionally "launder" the information gained through spying, i.e. to pretend that they got the information in a more legitimate way … and to hide that from defense attorneys and judges - Top counter-terror experts say that the government's mass spying doesn't keep us
Paul Merrell

NSA oversight dismissed as 'illusory' as anger intensifies in Europe and beyond | World... - 0 views

www.theguardian.com/...veillance-anger-deepens-europe

surveillance state NSA NSA-oversight NSA-blowback IAHCR U.N. legislation Sensenbrenner Leahy

shared by Paul Merrell on 30 Oct 13 - No Cached
  • The Obama administration's international surveillance crisis deepened on Monday as representatives from a Latin American human rights panel told US diplomats that oversight of the programs was "illusory".Members of the Inter-American Commission on Human Rights, an arm of the Organization of American States, expressed frustration and dissatisfaction with the National Security Agency's mass surveillance of foreign nationals – something the agency argues is both central to its existence and necessary to prevent terrorism. "With a program of this scope, it's obvious that any form of control becomes illusory when there's hundreds of millions of communications that become monitored and surveilled," said Felipe Gonzales, a commissioner and Chilean national."This is of concern to us because maybe the Inter-American Committee on Human Rights may become a target as well of surveillance," said Rodrigo Escobar Gil, a commissioner and Colombian citizen.
  • Frank La Rue, the United Nations special rapporteur on the right to freedom of opinion and expression, told the commission that the right to privacy was "inextricably linked" to free expression. "What is not permissible from a human rights point of view is that those that hold political power or those that are in security agencies or, even less, those in intelligence agencies decide by themselves, for themselves, what the scope of these surveillance activities are, or who will be targeted, or who will be blank surveilled," La Rue said.While the US sent four representatives to the hearing, they offered no defence, rebuttal or elaboration about bulk surveillance, saying the October government shutdown prevented them from adequate preparation. "We are here to listen," said deputy permanent representative Lawrence Gumbiner, who pledged to submit written responses within 30 days.All 35 North, Central and South American nations are members of the commission. La Rue, originally from Guatemala and an independent expert appointed by the Human Rights Council, travels the world reporting on human rights concerns – often in countries with poor democratic standards.
  • The Obama administration has been fielding a week's worth of European outrage following media reports that the NSA had collected a similarly large volume of phone calls from France – which director of national intelligence James Clapper, who recently apologised for misleading the Senate about domestic spying, called "false" – and spying on German chancellor Angela Merkel's own cellphone, which US officials have effectively confessed to. Brazil and Mexico are also demanding answers from US intelligence officials, following reports about intrusive acts of espionage in their territory revealed by documents provided to journalists by former NSA contractor Edward Snowden. The White House has said it will provide some answers after the completion of an external review of its surveillance programs, scheduled to be completed before the end of the year. The Guardian reported on Thursday that the NSA has intercepted the communications of 35 world leaders.
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  • Spying on foreigners is the core mission of the NSA, one that it vigorously defends as appropriate, legal and unexceptional given the nature of global threats and widespread spycraft. Monday's hearing suggested that there are diplomatic consequences to bulk surveillance even if there may not be legal redress for non-Americans. Brazil has already shown a willingness to challenge Washington over bulk surveillance. President Dilma Rousseff postponed a September meeting with President Obama in protest, and denounced the spying during the UN general assembly shortly thereafter. Brazil is also teaming up with Germany at the UN on a general assembly resolution demanding an end to the mass surveillance. The commission's examination of the NSA's bulk surveillance activities suggested a potential southern front could open in the spy crisis just as the administration is attempting to calm down Europe.
  • International discomfort with NSA bulk surveillance is not the only spy challenge the Obama administration now confronts. Congressman James Sensenbrenner, the Wisconsin Republican and key author of the 2001 Patriot Act, is poised to introduce a bill this week that would prevent the NSA from collecting phone records on American citizens in bulk and without an individual warrant. The National Journal reported that Sensenbrenner's bill, which has a companion in the Senate, has attracted eight co-sponsors who either voted against or abstained on a July amendment in the House that would have defunded the domestic phone records bulk collection, a legislative gambit that came within seven votes of passage.Sensenbrenner's bill, like its Senate counterpart sponsored by Vermont Democrat Patrick Leahy, would not substantially restrict the NSA's foreign-focused surveillance, which is a traditional NSA activity. There is practically no congressional appetite, and no viable legislation, to limit the NSA from intercepting the communications of foreigners. An early sign about the course of potential surveillance reforms in the House of Representatives may come as early as Tuesday. The House intelligence committee, a hotbed of support for the NSA, will hold its first public hearing of the fall legislative calendar on proposed surveillance legislation. Its chairman, Mike Rogers of Michigan, has proposed requiring greater transparency on the NSA and the surveillance court that oversees it, but would largely leave the actual surveillance activities of the NSA, inside and outside the United States, untouched.
  • Alex Abdo, a lawyer with the ACLU, which requested the hearing at the Inter-American Commission on Human Rights, warned the human rights panel that the NSA could "target the foreign members of this commission when they travel abroad", as well as foreign dissidents of US-aligned governments; foreign lawyers for Guantánamo detainees; and other foreigners."If every country were to engage in surveillance as pervasive as the NSA, we would soon live in a state … with no refuge for the world's dissidents, journalists and human rights defenders," Abdo said.
Paul Merrell

Wikimedia v. NSA: Another Court Blinds Itself to Mass NSA Surveillance | Electronic Fro... - 0 views

www.eff.org/...s-itself-mass-nsa-surveillance

surveillance state NSA Wikimedia litigation tyranny freedom

shared by Paul Merrell on 07 Nov 15 - No Cached
  • We all know justice is blind. But that is supposed to mean that everyone before it is treated equally, not that the justice system must close its eyes and refuse to look at important legal issues facing Americans.  Yet the government continues to convince courts that they cannot consider the constitutionality of its behavior in national security cases and, last week, in an important case for anyone who has ever used Wikipedia, another judge agreed with that position.  A federal district judge in Maryland dismissed Wikimedia v. NSA, a case challenging the legality of the NSA’s “upstream” surveillance—mass surveillance of Internet communications as they flow through the Internet backbone. The case was brought by our friends at the ACLU on behalf of nine plaintiffs, including human rights organizations, members of the media, and the Wikimedia Foundation.1 We filed a brief in the case, too, in support of Wikimedia and the other plaintiffs. The judge dismissed the case based on a legal principle called standing. Standing is supposed to ensure, among other things, that the party bringing the lawsuit has suffered a concrete harm, caused by the party being sued, and that the court can resolve the harm with a favorable ruling.
  • But the U.S. government has taken this doctrine, which was intended to limit the cases federal courts hear to actual live controversies, and turned it into a perverse shell game in surveillance cases—essentially arguing that because aspects of the surveillance program are secret, plaintiffs cannot prove that their communications were actually, in fact, intercepted and surveilled. And without that proof, the government argues, there’s no standing, because plaintiffs can’t show that they’ve suffered harm. Sadly, like several other courts before it, the judge agreed to this shell game and decided that it couldn’t decide whether the constitutional rights of Wikimedia and the other plaintiffs were violated.  This game is mighty familiar to us at EFF, but that doesn’t make it any less troubling. In our system, the courts have a fundamental obligation to conclusively determine the legality of government action that affects individuals’ constitutional rights. For years now, plaintiffs have tried to get the courts to simply issue a ruling on the merits of NSA surveillance programs. And for years, the government has successfully persuaded the courts to rely on standing and related doctrines to avoid doing so. That is essentially what happened here. The court labeled as “speculative” Wikimedia’s claim that, at a minimum, even one of its approximately one trillion Internet communications had been swept up in the NSA’s upstream surveillance program. Remember, this is a program that, by the government’s own admission, involves the searching and scanning of vast amounts of Internet traffic at key Internet junctures on the Internet’s backbone. Yet in court’s view, Wikimedia’s allegations describing upstream—based on concrete facts, taken from government documents— coupled with a plaintiff that engages in a large volume of internet communications were not enough to state a “plausible” claim that Wikimedia had been surveilled.
  • On the way to reaching that conclusion, and putting on its blindfold, the court made a number of mistakes. The Government’s Automated Eyes Are Still Government Eyes First, it appears the court fundamentally misunderstood Wikimedia’s claim about upstream surveillance and, in particular, “about surveillance.” As Wikimedia alleged, “about surveillance” (a specific aspect of upstream surveillance that searches the content of communications for references to particular email addresses or other identifiers) amounts to “the digital analogue of having a government agent open every piece of mail that comes through the post to determine whether it mentions a particular word or phrase.” The court held, however, that this type of “about” surveillance was “targeted insofar as it makes use of only those communications that contain information matching the tasked selectors,” like email addresses. But what the government "makes use of" is entirely beside the point—it is the scanning of the communications for the tasked selectors in the first place that is the problem.  To put it into a different context, the government conducts a search when it enters into your house and starts rifling through your files—not just when it finds something it wants to keep. The government's ultimate decision to “make use of” the communications it finds interesting is irrelevant. It is the search of the communications that matters.
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  • Back of the Envelope Gymnastics Another troubling aspect of the court’s decision was its attack on the probabilities Wikimedia assigned to the likelihood of its communications being intercepted. Given that Wikimedia engages in a large volume of Internet communications, Wikimedia alleged that—even assuming a .00000001% chance that any one particular communication is intercepted—it would still have a 99.9999999999% of having one of its communications intercepted. The statistic was used to illustrate that, even assuming very low probabilities for interception, there was still a near-certainty that Wikipedia’s traffic was collected. But the court attacked Wikimedia’s simple statistical analysis (and the attack tracked, to a great degree, arguments made in the government’s declarations that the court purportedly did not consider). The court seemed to believe it had seized upon a great flaw in Wikimedia’s case by observing that, if the probability of any given communication being intercepted were decreased 100% or 1000%, the probability of one of Wikimedia’s communications being intercepted would similarly drop. The “mathematical gymnastics” the court believed it had unearthed were nothing more than Wikimedia using an intentionally small (and admittedly arbitrary) probability to illustrate the high likelihood that its communications had been swept up. But even if the court disagreed with the probabilities Wikimedia relied on, it’s not at all clear why that would justify dismissing the case at the outset. If it turned out, after development of the record, that the probabilities were off, then dismissal might be appropriate. But the court cut the case off before Wikimedia had the opportunity to introduce evidence or other facts that might support the probability they assigned.
  • Someone Else Probably Has Standing, Right? Perhaps most troubling was the court’s mistaken belief that the legality of upstream surveillance could be challenged in other ways, beyond civil cases like Wikimedia or our ongoing case, Jewel v. NSA. The court asserted its decision would not insulate upstream from judicial review, which—according to the court—could still receive judicial scrutiny through (1) review from the Foreign Intelligence Surveillance Court (FISC), (2) a challenge by a criminal defendant, or (3) a challenge from an electronic service provider. None of these options is truly a viable alternative, however. First, the FISC (until very recently) did not have adversarial proceedings—it only heard from the government, and its proceedings remain both far more limited and more secretive than a regular court’s. Second, a challenge from a criminal defendant won’t work either, because, to date, the government has explicitly refused to disclose—even where defendants are notified of the use of FISA surveillance—whether their communications were obtained using upstream surveillance. And, finally, in the nearly 15 years (or more) the government has conducted upstream surveillance, we’re not aware of any service provider that has challenged the legality of the practice. Indeed, given that upstream is done with the cooperation of telecoms like AT&T and Verizon—the same telcos that did not challenge the NSA’s bulk collection of Americans’ call records for over a decade—we're not holding our breath for a challenge anytime soon. Instead, we need the courts to tackle these cases. Upstream surveillance presents unique constitutional issues that no federal court has seriously addressed. It's time the federal courts stepped up to the challenge.
  • Paul Merrell on 07 Nov 15
     
    The notion that the government can intentionally violate the privacy rights of its citizens yet a court find that those citizens have no right to seek redress announces a view that privacy rights are hollow --- that those wronged by government malfeasance have no remedy in the courts of our nation. That is a view that must be thrown in the dustbins of history if freedom is to be preserved. 
Paul Merrell

European Human Rights Court Deals a Heavy Blow to the Lawfulness of Bulk Surveillance |... - 0 views

www.justsecurity.org/...w-lawfulness-bulk-surveillance

surveillance state bulk-collection ECHR litigation

shared by Paul Merrell on 11 Dec 15 - No Cached
  • In a seminal decision updating and consolidating its previous jurisprudence on surveillance, the Grand Chamber of the European Court of Human Rights took a sideways swing at mass surveillance programs last week, reiterating the centrality of “reasonable suspicion” to the authorization process and the need to ensure interception warrants are targeted to an individual or premises. The decision in Zakharov v. Russia — coming on the heels of the European Court of Justice’s strongly-worded condemnation in Schrems of interception systems that provide States with “generalised access” to the content of communications — is another blow to governments across Europe and the United States that continue to argue for the legitimacy and lawfulness of bulk collection programs. It also provoked the ire of the Russian government, prompting an immediate legislative move to give the Russian constitution precedence over Strasbourg judgments. The Grand Chamber’s judgment in Zakharov is especially notable because its subject matter — the Russian SORM system of interception, which includes the installation of equipment on telecommunications networks that subsequently enables the State direct access to the communications transiting through those networks — is similar in many ways to the interception systems currently enjoying public and judicial scrutiny in the United States, France, and the United Kingdom. Zakharov also provides a timely opportunity to compare the differences between UK and Russian law: Namely, Russian law requires prior independent authorization of interception measures, whereas neither the proposed UK law nor the existing legislative framework do.
  • The decision is lengthy and comprises a useful restatement and harmonization of the Court’s approach to standing (which it calls “victim status”) in surveillance cases, which is markedly different from that taken by the US Supreme Court. (Indeed, Judge Dedov’s separate but concurring opinion notes the contrast with Clapper v. Amnesty International.) It also addresses at length issues of supervision and oversight, as well as the role played by notification in ensuring the effectiveness of remedies. (Marko Milanovic discusses many of these issues here.) For the purpose of the ongoing debate around the legitimacy of bulk surveillance regimes under international human rights law, however, three particular conclusions of the Court are critical.
  • The Court took issue with legislation permitting the interception of communications for broad national, military, or economic security purposes (as well as for “ecological security” in the Russian case), absent any indication of the particular circumstances under which an individual’s communications may be intercepted. It said that such broadly worded statutes confer an “almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance” (para. 248). Such discretion cannot be unbounded. It can be limited through the requirement for prior judicial authorization of interception measures (para. 249). Non-judicial authorities may also be competent to authorize interception, provided they are sufficiently independent from the executive (para. 258). What is important, the Court said, is that the entity authorizing interception must be “capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” (para. 260). This finding clearly constitutes a significant threshold which a number of existing and pending European surveillance laws would not meet. For example, the existence of individualized reasonable suspicion runs contrary to the premise of signals intelligence programs where communications are intercepted in bulk; by definition, those programs collect information without any consideration of individualized suspicion. Yet the Court was clearly articulating the principle with national security-driven surveillance in mind, and with the knowledge that interception of communications in Russia is conducted by Russian intelligence on behalf of law enforcement agencies.
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  • This element of the Grand Chamber’s decision distinguishes it from prior jurisprudence of the Court, namely the decisions of the Third Section in Weber and Saravia v. Germany (2006) and of the Fourth Section in Liberty and Ors v. United Kingdom (2008). In both cases, the Court considered legislative frameworks which enable bulk interception of communications. (In the German case, the Court used the term “strategic monitoring,” while it referred to “more general programmes of surveillance” in Liberty.) In the latter case, the Fourth Section sought to depart from earlier European Commission of Human Rights — the court of first instance until 1998 — decisions which developed the requirements of the law in the context of surveillance measures targeted at specific individuals or addresses. It took note of the Weber decision which “was itself concerned with generalized ‘strategic monitoring’, rather than the monitoring of individuals” and concluded that there was no “ground to apply different principles concerning the accessibility and clarity of the rules governing the interception of individual communications, on the one hand, and more general programmes of surveillance, on the other” (para. 63). The Court in Liberty made no mention of any need for any prior or reasonable suspicion at all.
  • In Weber, reasonable suspicion was addressed only at the post-interception stage; that is, under the German system, bulk intercepted data could be transmitted from the German Federal Intelligence Service (BND) to law enforcement authorities without any prior suspicion. The Court found that the transmission of personal data without any specific prior suspicion, “in order to allow the institution of criminal proceedings against those being monitored” constituted a fairly serious interference with individuals’ privacy rights that could only be remedied by safeguards and protections limiting the extent to which such data could be used (para. 125). (In the context of that case, the Court found that Germany’s protections and restrictions were sufficient.) When you compare the language from these three cases, it would appear that the Grand Chamber in Zakharov is reasserting the requirement for individualized reasonable suspicion, including in national security cases, with full knowledge of the nature of surveillance considered by the Court in its two recent bulk interception cases.
  • The requirement of reasonable suspicion is bolstered by the Grand Chamber’s subsequent finding in Zakharov that the interception authorization (e.g., the court order or warrant) “must clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which the authorisation is ordered. Such identification may be made by names, addresses, telephone numbers or other relevant information” (para. 264). In making this finding, it references paragraphs from Liberty describing the broad nature of the bulk interception warrants under British law. In that case, it was this description that led the Court to find the British legislation possessed insufficient clarity on the scope or manner of exercise of the State’s discretion to intercept communications. In one sense, therefore, the Grand Chamber seems to be retroactively annotating the Fourth Section’s Liberty decision so that it might become consistent with its decision in Zakharov. Without this revision, the Court would otherwise appear to depart to some extent — arguably, purposefully — from both Liberty and Weber.
  • Finally, the Grand Chamber took issue with the direct nature of the access enjoyed by Russian intelligence under the SORM system. The Court noted that this contributed to rendering oversight ineffective, despite the existence of a requirement for prior judicial authorization. Absent an obligation to demonstrate such prior authorization to the communications service provider, the likelihood that the system would be abused through “improper action by a dishonest, negligent or overly zealous official” was quite high (para. 270). Accordingly, “the requirement to show an interception authorisation to the communications service provider before obtaining access to a person’s communications is one of the important safeguards against abuse by the law-enforcement authorities” (para. 269). Again, this requirement arguably creates an unconquerable barrier for a number of modern bulk interception systems, which rely on the use of broad warrants to authorize the installation of, for example, fiber optic cable taps that facilitate the interception of all communications that cross those cables. In the United Kingdom, the Independent Reviewer of Terrorism Legislation David Anderson revealed in his essential inquiry into British surveillance in 2015, there are only 20 such warrants in existence at any time. Even if these 20 warrants are served on the relevant communications service providers upon the installation of cable taps, the nature of bulk interception deprives this of any genuine meaning, making the safeguard an empty one. Once a tap is installed for the purposes of bulk interception, the provider is cut out of the equation and can no longer play the role the Court found so crucial in Zakharov.
  • The Zakharov case not only levels a serious blow at bulk, untargeted surveillance regimes, it suggests the Grand Chamber’s intention to actively craft European Court of Human Rights jurisprudence in a manner that curtails such regimes. Any suggestion that the Grand Chamber’s decision was issued in ignorance of the technical capabilities or intentions of States and the continued preference for bulk interception systems should be dispelled; the oral argument in the case took place in September 2014, at a time when the Court had already indicated its intention to accord priority to cases arising out of the Snowden revelations. Indeed, the Court referenced such forthcoming cases in the fact sheet it issued after the Zakharov judgment was released. Any remaining doubt is eradicated through an inspection of the multiple references to the Snowden revelations in the judgment itself. In the main judgment, the Court excerpted text from the Director of the European Union Agency for Human Rights discussing Snowden, and in the separate opinion issued by Judge Dedov, he goes so far as to quote Edward Snowden: “With each court victory, with every change in the law, we demonstrate facts are more convincing than fear. As a society, we rediscover that the value of the right is not in what it hides, but in what it protects.”
  • The full implications of the Zakharov decision remain to be seen. However, it is likely we will not have to wait long to know whether the Grand Chamber intends to see the demise of bulk collection schemes; the three UK cases (Big Brother Watch & Ors v. United Kingdom, Bureau of Investigative Journalism & Alice Ross v. United Kingdom, and 10 Human Rights Organisations v. United Kingdom) pending before the Court have been fast-tracked, indicating the Court’s willingness to continue to confront the compliance of bulk collection schemes with human rights law. It is my hope that the approach in Zakharov hints at the Court’s conviction that bulk collection schemes lie beyond the bounds of permissible State surveillance.
Paul Merrell

Fresno Police Roll Out Dystopian 'Threat Ranking' System - 0 views

www.mintpressnews.com/...212684

surveillance state Fresno citizen-threat-ranking Intrado Beware trade-secrets

shared by Paul Merrell on 12 Jan 16 - No Cached
  • “On 57 monitors that cover the walls of the center, operators zoomed and panned an array of roughly 200 police cameras perched across the city. They could dial up 800 more feeds from the city’s schools and traffic cameras, and they soon hope to add 400 more streams from cameras worn on officers’ bodies and from thousands from local businesses that have surveillance systems.” Though the intricate surveillance apparatus described above seems straight from a dystopic novel, it is actually the Washington Post’s recent description of the the visual data collection system employed by a local California police department. The police department in Fresno, California, has taken extreme measures to combat high rates of crime in the city. As the Post reports, Fresno’s Real Time Crime Center, buried deep in the police station’s headquarters, has developed as a response to what many police call increasing threats. The system, according to police officials, can “provide critical information that can help uncover terrorists or thwart mass shootings, ensure the safety of officers and the public, find suspects, and crack open cases” — a feature they say is increasingly important in the wake of events like the November terror attack in Paris and the San Bernardino shooting last month.
  • “Our officers are expected to know the unknown and see the unseen,” Fresno Chief of Police Jerry Dyer said. “They are making split-second decisions based on limited facts. The more you can provide in terms of intelligence and video, the more safely you can respond to calls.” Programs similar to the Real Time Crime Center have launched in New York, Houston, and Seattle over the course of the last decade. Nationwide, the use of Stingrays, data fusion centers, and aerial drone surveillance have broadened the access local police have to private information. In another example, the FBI is continually developing a comprehensive biometric database that local police access every day. “This is something that’s been building since September 11,” says Jennifer Lynch, a senior attorney at the Electronic Frontier Foundation. Like the problem of police militarization, Lynch traces the trend back to the Pentagon: “First funding went to the military to develop this technology, and now it has come back to domestic law enforcement. It’s the perfect storm of cheaper and easier-to-use technologies and money from state and federal governments to purchase it.”
  • While many of these programs may fail to shock Americans, one new software program takes police scrutiny of private citizens to a new level. Beware, a software tool produced by tech firm Intrado, not only surveils the data of the citizens of Fresno, the first city to test it — it calculates threat levels based on what it discovers. The software scours arrest records, property records, Deep Web searches, commercial databases, and social media postings. By this method, it was able to designate a man with a firearm and gang convictions involved in a real-time domestic violence dispute as the highest of three threat levels: a bright red ranking. Fresno police say the intelligence from Beware aided them, as the man eventually surrendered and officers found he was armed with a gun. Beware scours billions of data points to develop rankings for citizens, and though few recoil at the thought of catching criminals and miscreants, the program provides particular cause for concern because of both its invasiveness and its fallibility.
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  • These shortcomings have sparked concern among Fresno’s city council members, who discussed the issue at a meeting in November. At that meeting, one council member cited an incident where a girl who posted on social media about a card game called “Rage” was consequently given an elevated threat ranking — all because “rage” could be a triggering keyword for Beware. At that same meeting, libertarian-leaning Republican councilman Clinton J. Olivier asked Chief Dyer to use the technology to calculate his threat level. In real-time, Olivier was given a green, or non-threatening ranking, but his home received a yellow, or medium, threat ranking. It was likely due to the record of his home’s prior occupant. “Even though it’s not me that’s the yellow guy, your officers are going to treat whoever comes out of that house in his boxer shorts as the yellow guy,” Olivier told Dyer. “That may not be fair to me.” He added later, “[Beware] has failed right here with a council member as the example.” “It’s a very unrefined, gross technique,” Fresno civil rights attorney, Rob Nabarro, has said of Beware’s color-coded levels. “A police call is something that can be very dangerous for a citizen,” he noted, echoing Olivier’s worries.
  • Further, though Fresno police use Beware, they are left in the dark about how it determines rankings. Intrado designates the method a “trade secret,” and as such, will not share it with the officers who use it. This element of the software’s implementation has concerned civil rights advocates like Nabarro. He believes the secrecy surrounding the technology may result in unfair, unchecked threat rankings. Nabarro cautioned that between the software’s secrecy and room for error, Beware could accidentally rank a citizen as dangerous based on, for example, posts on social media criticizing police. This potential carries with it the ability for citizens to be punished not for actual crimes, but for exercising basic constitutional rights. Further, it compromises the rights of individuals who have been previously convicted of crimes, potentially using past behavior to assume guilt in unrelated future incidents. Chief Dyer insists concerns are exaggerated and that a particular score does not guarantee a particular police response. Police maintain the tools are necessary to fight crime. Nevertheless, following the heated November meeting, Dyer suggested he would work to turn off the color-coded threat ranking due to citizens’ concerns. “It’s a balancing act,” he admitted.
  • It remains to be seen if Fresno police and residents will move forward with the technology or shut it down over privacy concerns. City officials in Oakland, California, for example, recently scaled back plans to establish a Real Time Crime Center after outraged citizens protested. At the very least, as Northern California ACLU attorney Matt Cagle said, “[W]henever these surveillance technologies are on the table, there needs to be a meaningful debate. There needs to be safeguards and oversight.”
  • Paul Merrell on 12 Jan 16
     
    Claiming trade secrecy for the software's selection criteria for threat ranking actually constitutes policy policy, the trade secrecy claim would probably not survive judical review. It's at least arguably an unconstitutional delegation of a government function (ranking citizens as threats) to a private company. Police departments in Florida were sued to produce records of how a related surveillance device, the Stingray IMSI device that intercepts cell phone calls by mimicking a cell-phone tower, and only averted court-ordered disclosure of its trade secret workings by the FBI swooping in just before decision to remove all the software documentation from local police possession, custody, and control.    There is a long chain of case law holding that information that is legitimately trade secret and proprietary loses that protection if adopted by local or federal government as law. With a software program that classifies citizens as threats for governmental purposes if they meet the program's selection criteria, the software is performing a strictly governmental function that is in reality law. 
Paul Merrell

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

www.theguardian.com/...st-gchq-nsa-surveillance-state

surveillance state GCHQ NSA litigation human rights UK

shared by Paul Merrell on 07 Feb 15 - No Cached
  • 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.
Paul Merrell

Technology, Not Law, Limits Mass Surveillance | MIT Technology Review - 0 views

www.technologyreview.com/...t-law-limits-mass-surveillance

surveillance state issues

shared by Paul Merrell on 04 Jul 13 - No Cached
  • Recent revelations about the extent of surveillance by the U.S. National Security Agency come as no surprise to those with a technical background in the workings of digital communications. The leaked documents show how the NSA has taken advantage of the increased use of digital communications and cloud services, coupled with outdated privacy laws, to expand and streamline their surveillance programs. This is a predictable response to the shrinking cost and growing efficiency of surveillance brought about by new technology. The extent to which technology has reduced the time and cost necessary to conduct surveillance should play an important role in our national discussion of this issue.
  • What we have learned about the NSA’s capabilities suggests a move toward programmatic, automated surveillance previously unfathomable due to limitations of computing speed, scale, and cost. Technical advances have both reduced the barriers to surveillance and increased the NSA’s capacity for it. We need to remember that this is a trend with a firm lower bound. Once the cost of surveillance reaches zero we will be left with our outdated laws as the only protection. Whatever policy actions are taken as a result of the recent leaks should address the fact that technical barriers such as cost and speed offer dwindling protection from unwarranted government surveillance domestically and abroad.
  • Paul Merrell on 04 Jul 13
     
    A concise and convincing case that technological limitations have ruled what surveillance practices the government employs and that as technology advances, so do the surveillance practices.  Do we as a society continue to tell government that it is free to employ advanced surveillance technologies until caught and outlawed, or do we outlaw all surveillance techniques except for a defined list of methods with defined restrictions?  
Paul Merrell

John Kerry admits: some US surveillance has gone too far | World news | theguardian.com - 0 views

www.theguardian.com/...some-surveillance-gone-too-far

surveillance state NSA NSA-blowback Obama Kerry Snowden Germany

shared by Paul Merrell on 01 Nov 13 - No Cached
  • John Kerry, the US secretary of state, conceded on Thursday that some of the country's surveillance activities had gone too far, saying that certain practices had occurred "on autopilot" without the knowledge of senior officials in the Obama administration.In the most stark comments yet by a senior administration official, Kerry promised that a previously announced review of surveillance practices would be thorough and that some activities would end altogether."The president and I have learned of some things that have been happening in many ways on an automatic pilot, because the technology is there and the ability is there," he told a conference in London via video link."In some cases, some of these actions have reached too far and we are going to try to make sure it doesn't happen in the future."
  • In recent days, the Obama administration has put some distance between it and the National Security Agency (NSA). Kerry's comments are a reflection in particular of a concern about the diplomatic fallout from the revelation that the US monitored the cellphone of the German chancellor, Angela Merkel.The tactic has irritated senior intelligence officials. On Thursday evening, the director of the NSA, General Keith Alexander, blamed US diplomats for requests to place foreign leaders under surveillance.During a pointed exchange with a former US ambassador to Romania, James Carew Rosapepe, Alexander said: "We, the intelligence agencies, don't come up with the requirements. The policy-makers come up with the requirements."He added: "One of those groups would have been, let me think, hold on, oh: ambassadors."
  • Alexander said that the NSA collected information when it was asked by policy officials to discover the "leadership intentions" of foreign countries. "If you want to know leadership intentions, these are the issues," he said at a discussion hosted by the Baltimore Council on Foreign Relations.Earlier in Washington, the debate continued about whether further legal constraints should be placed on the NSA. The Senate intelligence committee approved a bill that placed largely cosmetic restrictions on the National Security Agency's domestic surveillance programme.The bill, sponsored by committee chairwoman Dianne Feinstein, a California Democrat, allows the NSA continue to collect phone metadata of millions of Americans for renewable 90-day periods, but orders it to be more transparent about the practice.
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  • The bill, which is competing with more restrictive measures from other committees, now moves forward to a full Senate vote. The stage is now set for a showdown with the USA Freedom Act, a bipartisan bill that would prohibit bulk collection of Americans' telephone records.Senator Mark Udall, a Democratic member of the Senate intelligence committee and a supporter of NSA reform, said it did not go far enough."The NSA's invasive surveillance of Americans' private information does not respect our constitutional values and needs fundamental reform, not incidental changes," he said.
  • In a separate development on Thursday, a group of technology giants called for substantial reforms to the US government's surveillance programmes. The companies were furious about revelations this week – the latest to emerge from documents leaked by the former NSA contractor Edward Snowden – that the agency had intercepted the cables that link the worldwide data centres belonging to Google and Yahoo.It was also reported that Obama had ordered the NSA to stop eavesdropping on the headquarters of the International Monetary Fund (IMF) and World Bank. Reuters cited a US official as saying the president had ordered the halt in the past few weeks.The NSA's surveillance of the IMF and World Bank has not previously been disclosed.
  • In response to Reuters inquiries, a senior Obama administration official said, "The United States is not conducting electronic surveillance targeting the headquarters of the World Bank or IMF in Washington." The Obama administration official, who spoke on condition of anonymity, did not address whether the NSA had eavesdropped on the two entities in the past.Kerry, in his comments to a conference organised by the Open Government Partnership, acknowledged that trust needed to be restored. "There is an effort to try to gather information, yes, in same cases inappropriately, and the president is now doing a thorough review, in order that nobody will have a sense of abuse," he said.Despte the cracks between the administration and the spy community, Kerry was careful to defended the motives of US intelligence agencies, insisting no "innocent people" were being abused and saying surveillance by several countries had prevented many terrorist plots.
  • A German MP said he met Snowden in Moscow on Thursday, and said the NSA whistelblower was prepared in principle to help Germany investigate allegations of surveillance by US intelligence.Hans-Christian Stroebele, a lawmaker with Germany's opposition Greens and a prominent critic of the NSA's alleged actions, told ARD television that Snowden "made clear he knows a great deal."He said Snowden would be prepared to travel to Germany and testify, "but the circumstances would have to be cleared up".
  • Paul Merrell on 01 Nov 13
     
    Looks like maybe Snowden is now a hero in Germany and may be allowed to travel there. Meanwhile, the Obama Administration rats continue to desert the sinking NSA ship, but Diane Feinstein fights on to preserve mass surveillance. 
Paul Merrell

Huge swath of GCHQ mass surveillance is illegal, says top lawyer | UK news | The Guardian - 0 views

www.theguardian.com/...surveillance-spying-law-lawyer

surveillance state GCHQ NSA drones law EHCR RIPA

shared by Paul Merrell on 31 Jan 14 - No Cached
  • GCHQ's mass surveillance spying programmes are probably illegal and have been signed off by ministers in breach of human rights and surveillance laws, according to a hard-hitting legal opinion that has been provided to MPs.The advice warns that Britain's principal surveillance law is too vague and is almost certainly being interpreted to allow the agency to conduct surveillance that flouts privacy safeguards set out in the European convention on human rights (ECHR).The inadequacies, it says, have created a situation where GCHQ staff are potentially able to rely "on the gaps in the current statutory framework to commit serious crime with impunity".
  • Last year, Hague told MPs: "It has been suggested GCHQ uses our partnership with the US to get around UK law, obtaining information that they cannot legally obtain in the UK. I wish to be absolutely clear that this accusation is baseless."However, the legal advice poses awkward new questions about the framework GCHQ operates within, the role of ministers and the legality of transferring bulk data to other spy agencies.The advice makes clear Ripa does not allow GCHQ to conduct mass surveillance on communications between people in the UK, even if the data has briefly left British shores because the call or email has travelled to an internet server overseas.
  • The legal advice has been sent to the 46 members of the all-party parliamentary group on drones, which is chaired by the Labour MP, Tom Watson.
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  • In a 32-page opinion, the leading public law barrister Jemima Stratford QC raises a series of concerns about the legality and proportionality of GCHQ's work, and the lack of safeguards for protecting privacy.
  • At its most extreme, the advice raises issues about the possible vulnerability of staff at GCHQ if it could be proved that intelligence used for US drone strikes against "non-combatants" had been passed on or supplied by the British before being used in a missile attack."An individual involved in passing that information is likely to be an accessory to murder. It is well arguable, on a variety of different bases, that the government is obliged to take reasonable steps to investigate that possibility," the advice says.
  • The advice concludes: "In short, the rules concerning communications data are too uncertain and do not provide sufficient clarity to be in accordance with the law … we consider the mass interception of communications via a transatlantic cable to be unlawful, and that these conclusions would apply even if some or all of the interception is taking place outside UK territorial waters."Leaving decisions about whether data can be shared with agencies abroad to the "unfettered discretion" of ministers is also a probable breach of the convention, the advice warns.
  • "First, the transfer of private data is a significant interference with an individual's article 8 rights. That interference will only be lawful when proportionate."Secondly, the ECHR has held on more than one occasion that surveillance, and the use of surveillance data, is an area in which governments must conduct themselves in a transparent and 'predictable' manner. The current framework is uncertain: it relies on the discretion of one individual."Thirdly, on a pragmatic level,there is a real possibility that the NSA might function as GCHQ's unofficial 'backup' service. If GCHQ is not entitled to hold onto data itself, it might transfer it to the NSA. In time, and if relevant, that data might be transferred back to GCHQ. Without strong guidelines and scrutiny, the two services might support each other to (in effect) circumvent the requirements of their domestic legislation."The opinion adds: "If GCHQ transfers communications data to other governments it does so without any statutory restrictions. Such transfers are a disproportionate interference with the article 8 rights of the individuals concerned. There are no restrictions, checks or restraints on the transfer of that data."
  • The opinion notes that the UK has not adopted the doctrine of "anticipatory self-defence" in the same way as the US to provide legal cover for drone strikes in countries where it is not involved in an international armed conflict."Accordingly, in our view, if GCHQ transferred data to the NSA in the knowledge that it would or might be used for targeting drone strikes, that transfer is probably unlawful," the advice states."The transferor would be an accessory to murder for the purposes of domestic law … We consider that, pursuant to the transfer, the agent is likely to become an accessory to murder."Watson said he would be submitting the legal opinion to the parliamentary intelligence and security committee, which is undertaking an inquiry into mass surveillance."MPs now have strong independent advice questioning the legality of major UK intelligence programmes," he said.
  • "If ministers are prepared to allow GCHQ staff to be potential accessories to murder, they must be very clear that they are responsible for allowing it. We have seen a step change in mass covert surveillance and intelligence gathering, underpinned on dubious legal grounds and with virtually no parliamentary oversight. "The leadership of all the main parties should stop turning a blind eye to a programme that has far-reaching consequences around the globe."
  • Paul Merrell on 31 Jan 14
     
    The lawyer who wrote the opinion is a QC, or Queen's Counsel. See http://en.wikipedia.org/wiki/Queen's_Counsel This opinion *will* result in changes in UK law and oversight of GCHQ. And because much of it is based on the European Convention on Human Rights, the opinion will stoke the anti-spying sentiment in the European Community, which is already at fever-pitch. The ECHR is Europe's implementation of several U.N. treaties on human rights, so the blowback may well extend beyond the EU and UK.  
Paul Merrell

Reset The Net - Privacy Pack - 0 views

pack.resetthenet.org

surveillance state digital-privacy NSA-reform Reset-the-Net

shared by Paul Merrell on 03 Jun 14 - No Cached
  • This June 5th, I pledge to take strong steps to protect my freedom from government mass surveillance. I expect the services I use to do the same.
  • Fight for the Future and Center for Rights will contact you about future campaigns. Privacy Policy
  • Paul Merrell on 03 Jun 14
     
    I wound up joining this campaign at the urging of the ACLU after checking the Privacy Policy. The Reset the Net campaign seems to be endorsed by a lot of change-oriented groups, from the ACLU to Greenpeac to the Pirate Party. A fair number of groups with a Progressive agenda, but certainly not limited to them. The right answer to that situation is to urge other groups to endorse, not to avoid the campaign. Single-issue coalition-building is all about focusing on an area of agreement rather than worrying about who you are rubbing elbows with.  I have been looking for a a bipartisan group that's tackling government surveillance issues via mass actions but has no corporate sponsors. This might be the one. The reason: Corporate types like Google have no incentive to really butt heads with the government voyeurs. They are themselves engaged in massive surveillance of their users and certainly will not carry the battle for digital privacy over to the private sector. But this *is* a battle over digital privacy and legally defining user privacy rights in the private sector is just as important as cutting back on government surveillance. As we have learned through the Snowden disclosures, what the private internet companies have, the NSA can and does get.  The big internet services successfully pushed in the U.S. for authorization to publish more numbers about how many times they pass private data to the government, but went no farther. They wanted to be able to say they did something, but there's a revolving door of staffers between NSA and the big internet companies and the internet service companies' data is an open book to the NSA.   The big internet services are not champions of their users' privacy. If they were, they would be featuring end-to-end encryption with encryption keys unique to each user and unknown to the companies.  Like some startups in Europe are doing. E.g., the Wuala.com filesync service in Switzerland (first 5 GB of storage free). Compare tha
Paul Merrell

ACLU Demands Secret Court Hand Over Crucial Rulings On Surveillance Law - 0 views

www.mintpressnews.com/...221667

surveillance state FISA-Court opinions disclosure litigation ACLU

shared by Paul Merrell on 24 Oct 16 - No Cached
  • The American Civil Liberties Union (ACLU) has filed a motion to reveal the secret court opinions with “novel or significant interpretations” of surveillance law, in a renewed push for government transparency. The motion, filed Wednesday by the ACLU and Yale Law School’s Media Freedom and Information Access Clinic, asks the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence gathering activities in secret, to release 23 classified decisions it made between 9/11 and the passage of the USA Freedom Act in June 2015. As ACLU National Security Project staff attorney Patrick Toomey explains, the opinions are part of a “much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans.” Among them is the court order that the government used to direct Yahoo to secretly scanits users’ emails for “a specific set of characters.” Toomey writes: These court rulings are essential for the public to understand how federal laws are being construed and implemented. They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.
  • Although the USA Freedom Act requires the release of novel FISA court opinions on surveillance law, the government maintains that the rule does not apply retroactively—thereby protecting the panel from publishing many of its post-9/11 opinions, which helped create an “unprecedented buildup” of secret surveillance laws. Even after National Security Agency (NSA) whistleblower Edward Snowden revealed the scope of mass surveillance in 2013, sparking widespread outcry, dozens of rulings on spying operations remain hidden from the public eye, which stymies efforts to keep the government accountable, civil liberties advocates say. “These rulings are necessary to inform the public about the scope of the government’s surveillance powers today,” the ACLU’s motion states.
  • Toomey writes that the rulings helped influence a number of novel spying activities, including: The government’s use of malware, which it calls “Network Investigative Techniques” The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA) The government’s warrantless surveillance of Americans under FISA Section 702—a controversial authority scheduled to expire in December 2017 The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act Without these rulings being made public, “it simply isn’t possible to understand the government’s claimed authority to conduct surveillance,” Toomey writes. As he told The Intercept on Wednesday, “The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow. These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”
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

The US government doesn't want you to know the cops are tracking you | Trevor Timm | Co... - 0 views

www.theguardian.com/...ng-calls-stingray-surveillance

surveillance state local-law-enforcement location-data stingrays

shared by Paul Merrell on 15 Jun 14 - No Cached
  • All across America, from Florida to Colorado and back again, the country's increasingly militarized local police forces are using a secretive technology to vacuum up cellphone data from entire neighborhoods – including from people inside their own homes – almost always without a warrant. This week, numerous investigations by major news agencies revealed the US government is now taking unbelievable measures to make sure you never find out about it. But a landmark court ruling for privacy could soon force the cops to stop, even as the Obama administration fights to keep its latest tool for mass surveillance a secret.So-called International Mobile Subscriber Identity (IMSI) catchers – more often called their popular brand name, "Stingray" – have long been the talk of the civil liberties crowd, for the indiscriminate and invasive way these roving devices conduct surveillance. Essentially, Stingrays act as fake cellphone towers (usually mounted in a mobile police truck) that police can point toward any given area and force every phone in the area to connect to it. So even if you're not making a call, police can find out who you've been calling, and for how long, as well as your precise location. As Nathan Freed Wessler of the ACLU explained on Thursday, "In one Florida case, a police officer explained in court that he 'quite literally stood in front of every door and window' with his stingray to track the phones inside a large apartment complex."
  • Yet these mass surveillance devices have largely stayed out of the public eye, thanks to the federal government and local police refusing to disclose they're using them in the first place – sometimes, shockingly, even to judges. As the Associated Press reported this week, the Obama administration has been telling local cops to keep information on Stingrays secret from members of the news media, even when it seems like local public records laws would mandate their disclosure. The AP noted:Federal involvement in local open records proceedings is unusual. It comes at a time when President Barack Obama has said he welcomes a debate on government surveillance and called for more transparency about spying in the wake of disclosures about classified federal surveillance programs.
  • Some of the government's tactics to hide Stingray from journalists and the public have been downright disturbing. After the ACLU had filed a records request for information on Stingrays, the local police force initially told them that, yes, they had the documents and to come on down to the station to look at them. But just before an ACLU rep was due to arrive, US Marshals seized the records and hid them away at another location, in what Wessler describes as "a blatant violation of state open-records laws".The federal government has used various other tactics around the country to prevent disclosure of similar information.USA Today also published a significant nationwide investigation about the Stingray problem, as well as what are known as "cellphone tower dumps". When police agencies don't have Stingrays at their disposal, they can go to cell phone providers to get the cellphone location information of everyone who has connected to a specific cell tower (which inevitably includes thousands of innocent people). The paper's John Kelly reported that one Colorado case shows cellphone tower dumps got police "'cellular telephone numbers, including the date, time and duration of any calls,' as well as numbers and location data for all phones that connected to the towers searched, whether calls were being made or not."
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  • You may be asking: how, exactly, are the local cops getting their hands on such advanced military technology? Well, the feds are, in many cases, giving away the technology for free. When the US government is not loaning police agencies their own Stingrays, the Defense Department and Homeland Security are giving federal grants to cops, which allow departments to purchase the gear at the cost of $400,000 a pop from defense contractors like Harris Corporation, which makes the Stingray brand.
  • It's scary enough to think that the NSA is collecting so much information, but this mass location and metadata tracking at the local level all may be about to change. This week, the ACLU won a historic victory in the 11th Circuit Court of Appeals (serving Florida, Alabama and Georgia), which ruled that police need to get a warrant from a judge before extracting from your cellphone the location data obtained by way of a cell tower. This ruling will apply whether cops are going after one person, the whole tower and, one can assume, Stingrays. (The case was also argued by the aforementioned Wessler, who clearly is this month’s civil liberties Most Valuable Player.)This case has huge implications, and not just for the Stingrays secretly being used in Florida. It virtually guarantees the US supreme court will soon have to tackle the larger cellphone location question in some form – and whether police across the country have to finally start getting a warrant to find out where your precise location for days or weeks at a time. But as Stanford law professor Jennifer Granick wrote on Friday, it could also have an impact on NSA spying, which relies on the theory that indiscriminately collecting metadata is fair game until a court says otherwise.
  • Like Stingrays, and the NSA's phone dragnet before them, the militarization of America's local cops is a phenomenon that's only now getting widespread attention. As journalist Radley Balko, who wrote a seminal book on the subject two years ago, said this week, the Obama administration could easily limit these tactics to "cases of legitimate national security" – but has clearly chosen not to.No matter how much President Obama talks about how he has "maintained a healthy skepticism toward our surveillance programs", it seems the Most Transparent Administration in American History™ remains much more interested in maintaining a healthy, top-secret surveillance state.
Paul Merrell

Leaked memos reveal GCHQ efforts to keep mass surveillance secret | UK news | The Guardian - 0 views

www.theguardian.com/...ss-surveillance-secret-snowden

surveillance state GCHQ Tempora telecoms lies litigation offshoring-surveillance

shared by Paul Merrell on 26 Oct 13 - No Cached
  • The UK intelligence agency GCHQ has repeatedly warned it fears a "damaging public debate" on the scale of its activities because it could lead to legal challenges against its mass-surveillance programmes, classified internal documents reveal.Memos contained in the cache disclosed by the US whistleblower Edward Snowden detail the agency's long fight against making intercept evidence admissible as evidence in criminal trials – a policy supported by all three major political parties, but ultimately defeated by the UK's intelligence community.Foremost among the reasons was a desire to minimise the potential for challenges against the agency's large-scale interception programmes, rather than any intrinsic threat to security, the documents show.
  • The papers also reveal that:• GCHQ lobbied furiously to keep secret the fact that telecoms firms had gone "well beyond" what they were legally required to do to help intelligence agencies' mass interception of communications, both in the UK and overseas.• GCHQ feared a legal challenge under the right to privacy in the Human Rights Act if evidence of its surveillance methods became admissible in court.• GCHQ assisted the Home Office in lining up sympathetic people to help with "press handling", including the Liberal Democrat peer and former intelligence services commissioner Lord Carlile, who this week criticised the Guardian for its coverage of mass surveillance by GCHQ and America's National Security Agency.The most recent attempt to make intelligence gathered from intercepts admissible in court, proposed by the last Labour government, was finally stymied by GCHQ, MI5 and MI6 in 2009.
  • Another top GCHQ priority in resisting the admission of intercepts as evidence was keeping secret the extent of the agency's co-operative relationships with telephone companies – including being granted access to communications networks overseas.In June, the Guardian disclosed the existence of GCHQ's Tempora internet surveillance programme. It uses intercepts on the fibre-optic cables that make up the backbone of the internet to gain access to vast swaths of internet users' personal data. The intercepts are placed in the UK and overseas, with the knowledge of companies owning either the cables or landing stations.The revelations of voluntary co-operation with some telecoms companies appear to contrast markedly with statements made by large telecoms firms in the wake of the first Tempora stories. They stressed that they were simply complying with the law of the countries in which they operated.
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  • In reality, numerous telecoms companies were doing much more than that, as disclosed in a secret document prepared in 2009 by a joint working group of GCHQ, MI5 and MI6.Their report contended that allowing intercepts as evidence could damage relationships with "Communications Service Providers" (CSPs).In an extended excerpt of "the classified version" of a review prepared for the Privy Council, a formal body of advisers made up of current and former cabinet ministers, the document sets out the real nature of the relationship between telecoms firms and the UK government."Under RIPA [the Regulation of Investigatory Powers Act 2000], CSPs in the UK may be required to provide, at public expense, an adequate interception capability on their networks," it states. "In practice all significant providers do provide such a capability. But in many cases their assistance – while in conformity with the law – goes well beyond what it requires."
  • GCHQ's internet surveillance programme is the subject of a challenge in the European court of human rights, mounted by three privacy advocacy groups. The Open Rights Group, English PEN and Big Brother Watch argue the "unchecked surveillance" of Tempora is a challenge to the right to privacy, as set out in the European convention on human rights.That the Tempora programme appears to rely at least in part on voluntary co-operation of telecoms firms could become a major factor in that ongoing case. The revelation could also reignite the long-running debate over allowing intercept evidence in court.GCHQ's submission goes on to set out why its relationships with telecoms companies go further than what can be legally compelled under current law. It says that in the internet era, companies wishing to avoid being legally mandated to assist UK intelligence agencies would often be able to do so "at little cost or risk to their operations" by moving "some or all" of their communications services overseas.
  • As a result, "it has been necessary to enter into agreements with both UK-based and offshore providers for them to afford the UK agencies access, with appropriate legal authorisation, to the communications they carry outside the UK".The submission to ministers does not set out which overseas firms have entered into voluntary relationships with the UK, or even in which countries they operate, though documents detailing the Tempora programme made it clear the UK's interception capabilities relied on taps located both on UK soil and overseas.There is no indication as to whether the governments of the countries in which deals with companies have been struck would be aware of the GCHQ cable taps.
  • Evidence that telecoms firms and GCHQ are engaging in mass interception overseas could stoke an ongoing diplomatic row over surveillance ignited this week after the German chancellor, Angela Merkel, accused the NSA of monitoring her phone calls, and the subsequent revelation that the agency monitored communications of at least 35 other world leaders.On Friday, Merkel and the French president, François Hollande, agreed to spearhead efforts to make the NSA sign a new code of conduct on how it carried out intelligence operations within the European Union, after EU leaders warned that the international fight against terrorism was being jeopardised by the perception that mass US surveillance was out of control.Fear of diplomatic repercussions were one of the prime reasons given for GCHQ's insistence that its relationships with telecoms firms must be kept private .
  • Telecoms companies "feared damage to their brands internationally, if the extent of their co-operation with HMG [Her Majesty's government] became apparent", the GCHQ document warned. It added that if intercepts became admissible as evidence in UK courts "many CSPs asserted that they would withdraw their voluntary support".The report stressed that while companies are going beyond what they are required to do under UK law, they are not being asked to violate it.Shami Chakrabarti, Director of Liberty and Anthony Romero Executive Director of the American Civil Liberties Union issued a joint statement stating:"The Guardian's publication of information from Edward Snowden has uncovered a breach of trust by the US and UK Governments on the grandest scale. The newspaper's principled and selective revelations demonstrate our rulers' contempt for personal rights, freedoms and the rule of law.
  • "Across the globe, these disclosures continue to raise fundamental questions about the lack of effective legal protection against the interception of all our communications."Yet in Britain, that conversation is in danger of being lost beneath self-serving spin and scaremongering, with journalists who dare to question the secret state accused of aiding the enemy."A balance must of course be struck between security and transparency, but that cannot be achieved whilst the intelligence services and their political masters seek to avoid any scrutiny of, or debate about, their actions."The Guardian's decision to expose the extent to which our privacy is being violated should be applauded and not condemned."
  • Paul Merrell on 26 Oct 13
     
    The Guardian lands another gigantic bomb squarely on target, with massive potential for diplomatic, political, and financial disruption. Well done, Guardian. 
Paul Merrell

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

www.thenation.com/...wden-exile-exclusive-interview

surveillance state Snowden-interview

shared by Paul Merrell on 30 Oct 14 - No Cached
  • 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: 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.
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  • 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.
  • 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: 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.
  • 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: 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.
  • 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: 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 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: 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.
  • Paul Merrell on 30 Oct 14
     
    Remarkable interview. Snowden finally gets asked some questions about politics. 
Paul Merrell

Republican Party Calls For End To NSA Domestic Phone Records Program | TIME.com - 0 views

swampland.time.com/...nvestigation-into-nsa-snooping

surveillance state NSA NSA-blowback RNC-resolution

shared by Paul Merrell on 26 Jan 14 - No Cached
  • In the latest indication of a growing libertarian wing of the GOP, the Republican National Committee passed a resolution Friday calling for an investigation into the “gross infringement” of Americans’ rights by National Security Agency programs that were revealed by Edward Snowden. The resolution also calls on on Republican members of Congress to enact amendments to the Section 215 law that currently allows the spy agency to collect records of almost every domestic telephone call. The amendment should make clear that “blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court,” the resolution reads.
  • The measure, the “Resolution to Renounce the National Security Agency’s Surveillance Program,” passed by an “overwhelming majority” by voice vote, along with resolutions calling for the repeal of the Foreign Account Tax Compliance Act and reaffirming the party’s pro-life stance, according to Reince Priebus, the RNC chairman. Among other points, the resolution declares “the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution,” a claim embraced by civil libertarians of both parties. The revelation of the NSA programs has caused deepened a rift within the Republican Party between national security hawks and libertarians, but at the meeting, no RNC member rose to speak against the resolution.
  • The full text of the resolution as given to TIME follows below: Resolution to Renounce the National Security Agency’s Surveillance Program WHEREAS, the secret surveillance program called PRISM targets, among other things, the surveillance of U.S. citizens on a vast scale and monitors searching habits of virtually every American on the internet; WHEREAS, this dragnet program is, as far as we know, the largest surveillance effort ever launched by a democratic government against its own citizens, consisting of the mass acquisition of Americans’ call details encompassing all wireless and landline subscribers of the country’s three largest phone companies; WHEREAS, every time an American citizen makes a phone call, the NSA gets a record of the location, the number called, the time of the call and the length of the conversation, all of which are an invasion into the personal lives of American citizens that violates the right of free speech and association afforded by the First Amendment of the United States Constitution;
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  • WHEREAS, the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution, which guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, that warrants shall issue only upon probable cause, and generally prevents the American government from issuing modern-day writs of assistance; WHEREAS, unwarranted government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society and this program represents a gross infringement of the freedom of association and the right to privacy and goes far beyond even the permissive limits set by the Patriot Act; and WHEREAS, Republican House Representative Jim Sensenbrenner, an author of the Patriot Act and Chairman of the House Judiciary Committee at the time of Section 215′s passage, called the Section 215 surveillance program “an abuse of that law,” writing that, “based on the scope of the released order, both the administration and the FISA (Foreign Intelligence Surveillance Act) court are relying on an unbounded interpretation of the act that Congress never intended,” therefore be it
  • RESOLVED, the Republican National Committee encourages Republican lawmakers to enact legislation to amend Section 215 of the USA Patriot Act, the state secrets privilege, and the FISA Amendments Act to make it clear that blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court; RESOLVED, the Republican National Committee encourages Republican lawmakers to call for a special committee to investigate, report, and reveal to the public the extent of this domestic spying and the committee should create specific recommendations for legal and regulatory reform ot end unconstitutional surveillance as well as hold accountable those public officials who are found to be responsible for this unconstitutional surveillance; and
  • RESOLVED, the Republican National Committee encourages Republican lawmakers to immediately take action to halt current unconstitutional surveillance programs and provide a full public accounting of the NSA’s data collection programs.
  • Paul Merrell on 26 Jan 14
     
    That's more like it! Notice that the call is for a "special committee to investigate," etc., not the House Intelligence Committee chaired by Mike Rogers.  Note also the call for heads to roll.
  • Paul Merrell on 26 Jan 14
     
    Something messed up in the quoting of the resolution. Please go to the linked web site for the resolution's full text.
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