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Paul Merrell

Groups Call for Public Disclosure of the Legal Rationale for US Force Against ISIS - 0 views

www.pogo.org/...all-for-public-disclosure.html

war & peace ISIL war-powers constitution Obama legal-memos

shared by Paul Merrell on 20 Sep 14 - No Cached
  • OpenTheGovernment.org urges you to press for public disclosure of all Office of Legal Counsel memoranda and other legal opinions setting forth the legal rationale for the United States to use military force against the Islamic State in Iraq and Syria (ISIS). Congress cannot meaningfully exercise its Constitutional power to authorize force if the Executive uses secret legal opinions to extend past authorizations in ways that Congress never anticipated or intended. The Obama administration has stated that it already has the authority it needs to launch airstrikes against ISIS in Syria, but has given shifting, incomplete explanations of the source of that authority.
  • Last week, administration officials stated that Congress did not need to vote to authorize strikes against ISIS (also commonly known as ISIL or the Islamic State) because the President could rely on the post-September 11, 2001 Authorization for the Use of Military Force (AUMF). An administration official acknowledged that ISIS had publicly split with Al Qaeda, but said that the AUMF still applied to ISIS based on its past relationship with Al Qaeda, its role in the Iraq war, and ISIS’s “position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy.”1But the 2001 AUMF does not authorize force against all anti-American terrorist organizations that are arguably “the true inheritors of Usama bin Laden’s legacy.” It authorizes force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”2
  • The Obama administration has said that “2002 Iraq AUMF would serve as an alternative statutory for military action in Iraq—but this is inconsistent with prior administration statements that the basis”6 Iraq war has ended, and that the 2002 AUMF “is no longer used for any U.S. Government activities.”7Administration officials have also cited the President’s power under Article II of the Constitution to act in self-defense of the United States to attack ISIS—but this contradicts its repeated assurances that ISIS does not pose an imminent risk of attack on U.S. soil.8Instead of trying to explain the case for war in confusing and often anonymous soundbites, the Executive Branch should publicly release the OLC memos and other binding written analyses that explain the purported legal basis for strikes against ISIS, and its legal interpretation of the AUMF more generally.
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  • The leadership of ISIS had no known role in the September 11 attacks, and the administration’s recent statements acknowledge that the group first affiliated with Al Qaeda in 2004. The Obama administration has argued for some time that the 2001 AUMF authorized military action against “associated forces” of Al Qaeda even if those affiliates had no role in the September 11 attacks, but has also assured Congress that there were meaningful limits on what constituted an “associated force.” Department of Defense General Counsel Stephen Preston testified to the Senate Foreign Relations Committee in May that to be an “associated force,” a group had to be both (1) an organized, armed group that has entered the fight alongside al-Qa’ida or the Taliban and (2) a co-belligerent with al-Qa’ida or the Taliban in hostilities against the United States or its coalition partners.(3) Al Qaeda specifically disavowed conducting operations with ISIS earlier this year.4 York Times, the administration has said it has no secret intelligence that the groups have reconciled,5 is difficult to understand how it could remain an “associated force.”
  • When the United States enters a war, the public and Congress need to know who the enemy is, and under what legal authority U.S. forces are operating. It would be unacceptable in a democracy for Congress to authorize force in secret. It is equally unacceptable for the Executive Branch to secretly interpret and expand past Congressional authorizations. Accordingly, we hope you will use the upcoming committee hearing to press for full disclosure of the relevant OLC opinions.
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

NSA phone surveillance program likely unconstitutional, federal judge rules | World new... - 0 views

www.theguardian.com/...-likely-unconstitutional-judge

surveillance state NSA call-metadata litigation 4th Amendment constitutional law NSA-blowback

shared by Paul Merrell on 17 Dec 13 - No Cached
  • A federal judge in Washington ruled on Monday that the bulk collection of Americans’ telephone records by the National Security Agency is likely to violate the US constitution, in the most significant legal setback for the agency since the publication of the first surveillance disclosures by the whistleblower Edward Snowden. Judge Richard Leon declared that the mass collection of metadata probably violates the fourth amendment, which prohibits unreasonable searches and seizures, and was "almost Orwellian" in its scope. In a judgment replete with literary swipes against the NSA, he said James Madison, the architect of the US constitution, would be "aghast" at the scope of the agency’s collection of Americans' communications data. The ruling, by the US district court for the District of Columbia, is a blow to the Obama administration, and sets up a legal battle that will drag on for months, almost certainly destined to end up in the supreme court. It was welcomed by campaigners pressing to rein in the NSA, and by Snowden, who issued a rare public statement saying it had vindicated his disclosures. It is also likely to influence other legal challenges to the NSA, currently working their way through federal courts.
  • In Monday’s ruling, the judge concluded that the pair's constitutional challenge was likely to be successful. In what was the only comfort to the NSA in a stinging judgment, Leon put the ruling on hold, pending an appeal by the government. Leon expressed doubt about the central rationale for the program cited by the NSA: that it is necessary for preventing terrorist attacks. “The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack,” he wrote.
  • Leon’s opinion contained stern and repeated warnings that he was inclined to rule that the metadata collection performed by the NSA – and defended vigorously by the NSA director Keith Alexander on CBS on Sunday night – was unconstitutional. “Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment,” he wrote. Leon said that the mass collection of phone metadata, revealed by the Guardian in June, was "indiscriminatory" and "arbitrary" in its scope. "The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979," he wrote, referring to the year in which the US supreme court ruled on a fourth amendment case upon which the NSA now relies to justify the bulk records program.
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  • In a statement, Snowden said the ruling justified his disclosures. “I acted on my belief that the NSA's mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts," he said in comments released through Glenn Greenwald, the former Guardian journalist who received leaked documents from Snowden. "Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”
  • In his ruling, Judge Leon expressly rejected the government’s claim that the 1979 supreme court case, Smith v Maryland, which the NSA and the Obama administration often cite to argue that there is no reasonable expectation of privacy over metadata, applies in the NSA’s bulk-metadata collection. The mass surveillance program differs so much from the one-time request dealt with by the 1979 case that it was of “little value” in assessing whether the metadata dragnet constitutes a fourth amendment search.
  • In a decision likely to influence other federal courts hearing similar arguments from the ACLU, Leon wrote that the Guardian’s disclosure of the NSA’s bulk telephone records collection means that citizens now have standing to challenge it in court, since they can demonstrate for the first time that the government is collecting their phone data.
  • Leon also struck a blow for judicial review of government surveillance practices even when Congress explicitly restricts the ability of citizens to sue for relief. “While Congress has great latitude to create statutory schemes like Fisa,” he wrote, referring to the seminal 1978 surveillance law, “it may not hang a cloak of secrecy over the constitution.”
  • In his ruling on Monday, Judge Leon predicted the process would take six months. He urged the government to take that time to prepare for an eventual defeat. “I fully expect that during the appellate process, which will consume at least the next six months, the government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld,” wrote Leon in his opinion. “Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.”
  • Paul Merrell on 17 Dec 13
     
    This is the case I thought was the weakest because of poor drafting in the complaint. The judge noted those issues in dismissing the plaintiffs' claims under the Administrative Procedures Act, but picked his way through what remained to find sufficient allegations to support the 4th Amendment challenge. Because he ruled for the plaintiffs on the 4th Amendment count, the judge did not reach the plaintiffs' arguments under the First and Fifth Amendments. This case is about cellphone call metadata, which the FISA Court has been ordering cell phone companies to provide every day, with the orders updated every 90 days. The judge's 68-page opinion is at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0881-40 (cleaner copy than the Guardian's, which was apparently faxed). Notably, the judge, Richard Leon, is a Bush II appointee and one of the plaintiffs is a prominent conservative civil libertarian lawyer. The other plaintiff is the father of an NSA cryptologist who worked closely with SEAL Team 6 and was killed along with members of that team when their helicopter crashed in Afghanistan. I'll add some more in a comment. But digital privacy is not yet dead.
  • Paul Merrell on 17 Dec 13
     
    Unfortunately, DRM is not dead yet either and the court's PDF file is locked. No easy copying of its content. If you want to jump directly to the discussion of 4th Amendment issues, go to page 35. That way, you can skip past all the dreary discussion of the Administrative Procedures Act claim and you won't miss much that's memorable. In ruling on the plaintiffs' standing to raise the 4th Amendment claim, Judge Leon postulated two possible search issues: [i] the bulk daily collection of metadata and its retention in the database for five years; and [ii] the analysis of that data through the NSA's querying process. The judge had no difficulty with the first issue; it definitely qualifies as a search. But the judge rejected the plaintiffs' argument on the second type (which was lame), demonstrating that at least one federal judge understands how computers work. The government's filings indicated that a "seed" telephone number or other identifier is used as the query string. Judge Leon figured out for himself from this fact that the NSA of necessity had to compare that number or identifier to every number or identifier in its database looking for a match. The judge concluded that the plaintiffs' metadata --- indeed everyone's metadata --- had to be searched for comparison purposes *every* time the NSA analysts ran any query against the database. See his incisive discussion at pp. 39-41. So having established that two searches were involved, one every time the NSA queried the database, the judge moved on to the next question, whether "the plaintiffs had a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets." pg. 43. More later
Paul Merrell

U.S. Military Bans The Intercept - The Intercept - 0 views

firstlook.org/...-s-military-bans-the-intercept

surveillance state military-censorship leaked-docs

shared by Paul Merrell on 29 Aug 14 - No Cached
  • A portion of an email (redacted and slightly altered to protect the source) sent to staff last week at a U.S. Marine Corps installation directing employees not to read this web site. The U.S. military is banning and blocking employees from visiting The Intercept in an apparent effort to censor news reports that contain leaked government secrets. According to multiple military sources, a notice has been circulated to units within the Army, Navy, Air Force, and Marine Corps warning staff that they are prohibited from reading stories published by The Intercept on the grounds that they may contain classified information. The ban appears to apply to all employees—including those with top-secret security clearance—and is aimed at preventing classified information from being viewed on unclassified computer networks, even if it is freely available on the internet. Similar military-wide bans have been directed against news outlets in the past after leaks of classified information.
  • A directive issued to military staff at one location last week, obtained by The Intercept, threatens that any employees caught viewing classified material in the public domain will face “long term security issues.” It suggests that the call to prohibit employees from viewing the website was made by senior officials over concerns about a “potential new leaker” of secret documents. The directive states: We have received information from our higher headquarters regarding a potential new leaker of classified information.  Although no formal validation has occurred, we thought it prudent to warn all employees and subordinate commands.  Please do not go to any website entitled “The Intercept” for it may very well contain classified material. As a reminder to all personnel who have ever signed a non-disclosure agreement, we have an ongoing responsibility to protect classified material in all of its various forms.  Viewing potentially classified material (even material already wrongfully released in the public domain) from unclassified equipment will cause you long term security issues.  This is considered a security violation.
  • A military insider subject to the ban said that several employees expressed concerns after being told by commanders that it was “illegal and a violation of national security” to read publicly available news reports on The Intercept. “Even though I have a top secret security clearance, I am still forbidden to read anything on the website,” said the source, who spoke on condition of anonymity due to the sensitivity of the subject.  “I find this very disturbing that they are threatening us and telling us what websites and news publishers we are allowed to read or not.”
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  • In an emailed statement, Defense Department spokeswoman Lt. Col. Valerie Henderson said that she had not been able to establish whether the DoD had been the source of “any guidance related to your website.” Henderson added, however, that “DoD personnel have an obligation to safeguard classified information. Classified information, whether made public by unauthorized disclosure, remains classified until declassified by an appropriate government authority. DoD is committed to preventing classified information from being introduced onto DoD’s unclassified networks.” Earlier this month, after the publication of two Intercept stories revealing classified details about the vast scope of the government’s watchlisting program, Reuters reported that “intelligence officials were preparing a criminal referral” over the leaks.
  • The ban on The Intercept appears to have come in the aftermath of those stories, representing the latest in a string of U.S. military crackdowns on news websites that have published classified material. Last year, the Army admitted that it was blocking parts of The Guardian’s website after it published secret documents from former National Security Agency contractor Edward Snowden. In 2010, WikiLeaks and several major news organizations were subject to similar measures after the publication of leaked State Department diplomatic files. Flanagan, the Marine Corps spokesman, told The Intercept that The Washington Post was also blocked by some military agencies last year after it published documents from Snowden revealing covert NSA surveillance operations. “Just because classified information is published on a public website, that doesn’t mean military people with security clearance have the ability to download it,” Flanagan said.
  • Paul Merrell on 29 Aug 14
     
    Enforced ignorance of the U.S. military. The official reason is a bucket that doesn't hold water. Despite official "classified" status, public is public. Any enemy can read it, so why should our military be barred from doing so. The real reason, I suspect, is protecting morale. 
Paul Merrell

Investigation Finds World's Largest Coal Company Misled Public On Climate Change | Thin... - 0 views

thinkprogress.org/...ttlement-new-york-schneiderman

shared by Paul Merrell on 11 Nov 15 - No Cached
  • The world’s largest private coal company misled its investors and the public about the financial risks of climate change, New York state’s attorney general announced on Monday. In a press release, Attorney General Eric Schneiderman said Peabody Energy violated New York laws prohibiting “false and misleading conduct” in public statements about its business. Specifically, Schneiderman found that Peabody failed to tell its investors about how regulations to fight climate change could hurt the coal industry. Instead, Peabody insisted it had no idea how climate regulations would affect its business, and provided its investors with “incomplete and one-sided discussions” of the future of coal in a climate-concerned world, Schneiderman said.
  • “As a publicly traded company whose core business generates massive amounts of carbon emissions, Peabody Energy has a responsibility to be honest with its investors and the public about the risks posed by climate change, now and in the future,” Schneiderman said in a statement. “I believe that full and fair disclosures by Peabody and other fossil fuel companies will lead investors to think long and hard about the damage these companies are doing to our planet.” The state laws Peabody was found to have violated are the Martin Act and Executive Law, both of which “prohibit false and misleading conduct in connection with securities transactions,” the attorney general said. Peabody did not admit or deny those findings, but signed a document on Sunday agreeing to revise its shareholder disclosures with the Securities and Exchange Commission. Per that document, Peabody will have to correct its financial statements to be honest about how a global climate deal or other carbon regulation could hurt its business. The document can be found in full here.
  • Peabody’s violations will not result in financial punishment, as both laws only allow monetary penalties if shareholders need to be reimbursed for financial losses. It’s difficult to know what, if any, financial harm was passed on to shareholders due to Peabody’s misleading statements, since this particular situation was about the future risks of climate change. If in the future, however, investors find that Peabody’s misleading statements cost them money, they would likely have the option to sue. The settlement comes just a few days after the two-year investigation became public. On Friday, Scheiderman announced that his office had issued subpoenas to both Peabody and oil company ExxonMobil, both related to the fossil fuel giants’ public statements on climate change.
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  • Environmentalists and Democratic politicians have accused ExxonMobil of engaging in a cover-up to mislead the public about the risks of human-caused climate change in order to sell more of its carbon-intensive product. Exxon has vehemently denied the accusation. Either way, Schneiderman’s two investigations are sparking serious legal discussion about how honest fossil fuel companies must be when it comes to the carbon emissions they create — especially if honesty might mean knowingly lowering profits. Should coal companies be forced to admit that their coal is creating a climate risk? If so, should they be allowed to fund politicians who advocate against climate action? Are these corporate activities protected free speech? Bloomberg View columnist Matt Levine offered a nuanced discussion of those questions on Friday. And ultimately, he said, it may just come down to whether these companies lied to their own investors — even if the lie was in their investors’ financial interest. “If you lie to the public about the risks that fossil fuel use poses to life on earth, you are just exercising your right as a citizen,” Levine wrote. “But if you lie to your investors about the risks that fossil fuel regulation poses to your stock price, you are committing fraud and will get in bad trouble.”
  • Paul Merrell on 11 Nov 15
     
    "If you lie to the public about the risks that fossil fuel use poses to life on earth, you are just exercising your right as a citizen," Levine wrote. Correction. Corporations are not citizens; only human beings can achieve that status.  
Paul Merrell

Obama to Place Some Restraints on Surveillance - NYTimes.com - 0 views

www.nytimes.com/...hamper-surveillance-court.html

surveillance state NSA Obama Obama-decision

shared by Paul Merrell on 16 Jan 14 - No Cached
  • President Obama will issue new guidelines on Friday to curtail government surveillance, but will not embrace the most far-reaching proposals of his own advisers and will ask Congress to help decide some of the toughest issues, according to people briefed on his thinking.Mr. Obama plans to increase limits on access to bulk telephone data, call for privacy safeguards for foreigners and propose the creation of a public advocate to represent privacy concerns at a secret intelligence court. But he will not endorse leaving bulk data in the custody of telecommunications firms, nor will he require court permission for all so-called national security letters seeking business records.
  • President Obama will issue new guidelines on Friday to curtail government surveillance, but will not embrace the most far-reaching proposals of his own advisers and will ask Congress to help decide some of the toughest issues, according to people briefed on his thinking.Mr. Obama plans to increase limits on access to bulk telephone data, call for privacy safeguards for foreigners and propose the creation of a public advocate to represent privacy concerns at a secret intelligence court. But he will not endorse leaving bulk data in the custody of telecommunications firms, nor will he require court permission for all so-called national security letters seeking business records.
  • The emerging approach, described by current and former government officials who insisted on anonymity in advance of Mr. Obama’s widely anticipated speech, suggested a president trying to straddle a difficult line in hopes of placating foreign leaders and advocates of civil liberties without a backlash from national security agencies. The result seems to be a speech that leaves in place many current programs, but embraces the spirit of reform and keeps the door open to changes later. The decision to provide additional privacy protections for non-American citizens or residents, for instance, largely codifies existing practices but will be followed by a 180-day study by the director of national intelligence about whether to go further. Likewise, instead of taking the storage of bulk data out of government hands, as recommended by a review panel he appointed, Mr. Obama will leave it in place for now and ask lawmakers to weigh in.The blend of decisions, to be outlined in a speech at the Justice Department and in a presidential guidelines memorandum, will be Mr. Obama’s highest-profile response to the disclosures about the National Security Agency made in recent months by Edward J. Snowden, a former N.S.A. contractor who has fled to Russia.
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  • The developments came as the nation’s judiciary waded into the highly charged debate. In a letter made public on Tuesday, a judge designated by Chief Justice John G. Roberts Jr. to express the views of the judicial branch warned that some changes under consideration would have a negative “operational impact” on a secret foreign intelligence court.Judge John D. Bates, a former chief judge of the Foreign Intelligence Surveillance Court, urged Mr. Obama and Congress not to alter the way the court is appointed or to create an independent public advocate to argue against the Justice Department in secret proceedings. Any such advocate, he wrote, should instead be appointed only when the court decided one was needed.Judge Bates objected to the workload of requiring that courts approve all national security letters, which are administrative subpoenas allowing the F.B.I. to obtain records about communications and financial transactions without court approval. And he raised concerns about greater public disclosure of court rulings, arguing that unclassified summaries would be “likely to promote confusion and misunderstanding.”
  • The judge’s letter, versions of which he sent to the leaders of several congressional committees, was released as all five members of Mr. Obama’s surveillance review group testified Tuesday before the Senate Judiciary Committee, seeking support for their recommendations.Illustrating the cross-pressures on the president, the advisers argued for the appointment of the independent version of a public advocate, a recommendation the president is expected to follow, though it is not clear how he will structure the position.
  • The judge’s objection to the proposal on national security letters dovetailed with that of the F.B.I. director, James B. Comey, who argued it would be inefficient to have to go to a judge each time records were sought. Mr. Obama has decided not to require court approval in every case, but might still require it in some circumstances, according to one administration official.Mr. Obama will cut back on the number of people whose phone records can be examined by the N.S.A. through its bulk data program. Currently the agency can scrutinize call records of people as far as three steps, or “hops,” removed from a suspect. Mr. Obama’s review panel proposed limiting searches to people just two steps removed. He is also likely to cut down the number of years such data can be retained; currently it is deleted after five years.
  • But the president will not, at least for now, back the panel’s suggestion that telecommunications firms keep such data and that the government be allowed to tap into those databases only when necessary. Intelligence officials complained it would be inefficient to have to go to multiple companies, so some officials proposed creating an independent consortium to store the data instead.Mr. Obama has decided against keeping the data at the private providers because they do not want that responsibility, officials said, and no independent consortium currently exists. As a result, he will ask Congress to work with him to determine the best way to store the data.
  • The letter by Judge Bates was accompanied by 15 pages of often specific comments about possible surveillance reforms.It is highly unusual for judges to weigh in on public policy debates involving the other two branches of government, but Judge Bates, the director of the Administrative Office of the United States Court, said that Chief Justice Roberts had designated him to “act as a liaison” and that he had consulted other judges.
  • Paul Merrell on 16 Jan 14
     
    I keep wondering if Barack Obama just might be the most timid President the U.S. has ever had. Certainly, he lacks the courage to lead the nation. 
Paul Merrell

Tech giants reach White House deal on NSA surveillance of customer data | World news | ... - 0 views

www.theguardian.com/...eal-surveillance-customer-data

surveillance state NSA litigation settlement public-disclosure FISA-Court

shared by Paul Merrell on 29 Jan 14 - No Cached
  • The Obama administration has reached a deal with a number of technology giants, allowing the companies to disclose more information on customer data they are compelled to share with the government.Announced on Monday, the transparency arrangement ends months of legal wrangling between the companies and US intelligence agencies before a secret surveillance court, to compel the disclosures.The disclosures are to be nonspecific, listed by the thousand and subject in some cases to a six-month delay – speaking to the large quantities of data that the government still plans on collecting from its technology partners. In order to be more specific about the amount of data turned over, the companies must be less specific about the type of data it is.The deal also explicitly points to a delay of up to two years on revealing information on data collected under surveillance programs the National Security Agency may yet develop.
  • But the deal also purports to shed far more light than ever on a question the intelligence agencies have been extremely reluctant to address – the number of people affected by NSA surveillance.The Justice Department said the transparency deal also applies to phone companies that turn over, on a daily basis, the records of every phone call made in the US. The phone companies have not exhibited the same agitation for transparency in the wake of the Edward Snowden revelations as have tech firms.
  • The new arrangement addresses a major grievance held by Google, Yahoo, Microsoft, Facebook and LinkedIn, which all joined a coalition called Reform Government Surveillance in order to pressure the administration into reassuring their customers about the propriety and legality of giving vast amounts of data to the NSA, FBI and other government agencies. It does not curtail the amount of data demanded, which is another demand of the coalition. 
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  • Additionally, once the NSA or other government agency develops a surveillance effort on “a platform, product or service (whether developed or acquired) for which the company has not previously received such an order”, the firms must wait two years before disclosure of its existence. Such “new capability orders” would subsequently be subject to the same biannual reporting requirements after the two-year period expires.
  • The five firms that were party to the Fisa court transparency suit agreed to drop their case, according to a document released by the court on Monday. Civil libertarians were optimistic about the deal. 
Paul Merrell

On 6/5, 65 Things We Know About NSA Surveillance That We Didn't Know a Year Ago | Elect... - 0 views

www.eff.org/...illance-we-didnt-know-year-ago

surveillance state NSA NSA-disclosures research-resources

shared by Paul Merrell on 10 Jun 14 - No Cached
  • It’s been one year since the Guardian first published the Foreign Intelligence Surveillance Court order, leaked by former NSA contractor Edward Snowden, that demonstrated that the NSA was conducting dragnet surveillance on millions of innocent people. Since then, the onslaught of disturbing revelations, from disclosures, admissions from government officials, Freedom of Information Act requests, and lawsuits, has been nonstop. On the anniversary of that first leak, here are 65 things we know about NSA spying that we did not know a year ago
  • here’s no question that the international relationships Obama pledged to repair, as well as the confidence of the American people in their privacy and constitutional rights, have been damaged by the NSAs dragnet surveillance. But one year later, both the United States and international governments have not taken the steps necessary to ensure that this surveillance ends. That’s why everyone must take action— contact your elected representative, join Reset the Net, and learn about how international law applies to U.S. surveillance today. 
  • Paul Merrell on 10 Jun 14
     
    EFF has a great list of the top NSA disclosures in the last year, with each of the 65 bullet points linked to source articles. 
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

Obama confidant's spine-chilling proposal - Salon.com - 0 views

www.salon.com/...sunstein_2

surveillance state psywar Sunstein Obama

shared by Paul Merrell on 06 Apr 14 - No Cached
  • Cass Sunstein has long been one of Barack Obama’s closest confidants.  Often mentioned as a likely Obama nominee to the Supreme Court, Sunstein is currently Obama’s head of the Office of Information and Regulatory Affairs where, among other things, he is responsible for “overseeing policies relating to privacy, information quality, and statistical programs.”  In 2008, while at Harvard Law School, Sunstein co-wrote a truly pernicious paper proposing that the U.S. Government employ teams of covert agents and pseudo-”independent” advocates to “cognitively infiltrate” online groups and websites — as well as other activist groups — which advocate views that Sunstein deems “false conspiracy theories” about the Government.  This would be designed to increase citizens’ faith in government officials and undermine the credibility of conspiracists.  The paper’s abstract can be read, and the full paper downloaded, here. Sunstein advocates that the Government’s stealth infiltration should be accomplished by sending covert agents into “chat rooms, online social networks, or even real-space groups.”  He also proposes that the Government make secret payments to so-called “independent” credible voices to bolster the Government’s messaging (on the ground that those who don’t believe government sources will be more inclined to listen to those who appear independent while secretly acting on behalf of the Government).   This program would target those advocating false “conspiracy theories,” which they define to mean: “an attempt to explain an event or practice by reference to the machinations of powerful people, who have also managed to conceal their role.”  Sunstein’s 2008 paper was flagged by this blogger, and then amplified in an excellent report by Raw Story‘s Daniel Tencer.
  • There’s no evidence that the Obama administration has actually implemented a program exactly of the type advocated by Sunstein, though in light of this paper and the fact that Sunstein’s position would include exactly such policies, that question certainly ought to be asked.  Regardless, Sunstein’s closeness to the President, as well as the highly influential position he occupies, merits an examination of the mentality behind what he wrote.  This isn’t an instance where some government official wrote a bizarre paper in college 30 years ago about matters unrelated to his official powers; this was written 18 months ago, at a time when the ascendancy of Sunstein’s close friend to the Presidency looked likely, in exactly the area he now oversees.  Additionally, the government-controlled messaging that Sunstein desires has been a prominent feature of U.S. Government actions over the last decade, including in some recently revealed practices of the current administration, and the mindset in which it is grounded explains a great deal about our political class.  All of that makes Sunstein’s paper worth examining in greater detail.
  • Initially, note how similar Sunstein’s proposal is to multiple, controversial stealth efforts by the Bush administration to secretly influence and shape our political debates.  The Bush Pentagon employed teams of former Generals to pose as “independent analysts” in the media while secretly coordinating their talking points and messaging about wars and detention policies with the Pentagon.  Bush officials secretly paid supposedly “independent” voices, such as Armstrong Williams and Maggie Gallagher, to advocate pro-Bush policies while failing to disclose their contracts.  In Iraq, the Bush Pentagon hired a company, Lincoln Park, which paid newspapers to plant pro-U.S. articles while pretending it came from Iraqi citizens.  In response to all of this, Democrats typically accused the Bush administration of engaging in government-sponsored propaganda — and when it was done domestically, suggested this was illegal propaganda.  Indeed, there is a very strong case to make that what Sunstein is advocating is itself illegal under long-standing statutes prohibiting government ”propaganda” within the U.S., aimed at American citizens: As explained in a March 21, 2005 report by the Congressional Research Service, “publicity or propaganda” is defined by the U.S. Government Accountability Office (GAO) to mean either (1) self-aggrandizement by public officials, (2) purely partisan activity, or (3) “covert propaganda.”  By covert propaganda, GAO means information which originates from the government but is unattributed and made to appear as though it came from a third party.
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  • Covert government propaganda is exactly what Sunstein craves.  His mentality is indistinguishable from the Bush mindset that led to these abuses, and he hardly tries to claim otherwise.  Indeed, he favorably cites both the covert Lincoln Park program as well as Paul Bremer’s closing of Iraqi newspapers which published stories the U.S. Government disliked, and justifies them as arguably necessary to combat “false conspiracy theories” in Iraq — the same goal Sunstein has for the U.S.Sunstein’s response to these criticisms is easy to find in what he writes, and is as telling as the proposal itself.  He acknowledges that some “conspiracy theories” previously dismissed as insane and fringe have turned out to be entirely true (his examples:  the CIA really did secretly administer LSD in “mind control” experiments; the DOD really did plot the commission of terrorist acts inside the U.S. with the intent to blame Castro; the Nixon White House really did bug the DNC headquarters).  Given that history, how could it possibly be justified for the U.S. Government to institute covert programs designed to undermine anti-government “conspiracy theories,” discredit government critics, and increase faith and trust in government pronouncements?  Because, says Sunstein, such powers are warranted only when wielded by truly well-intentioned government officials who want to spread The Truth and Do Good — i.e., when used by people like Cass Sunstein and Barack Obama
  • Throughout, we assume a well-motivated government that aims to eliminate conspiracy theories, or draw their poison, if and only if social welfare is improved by doing so. But it’s precisely because the Government is so often not “well-motivated” that such powers are so dangerous.  Advocating them on the ground that “we will use them well” is every authoritarian’s claim.  More than anything else, this is the toxic mentality that consumes our political culture:  when our side does X, X is Good, because we’re Good and are working for Good outcomes.  That was what led hordes of Bush followers to endorse the same large-government surveillance programs they long claimed to oppose, and what leads so many Obama supporters now to justify actions that they spent the last eight years opposing.
  • Consider the recent revelation that the Obama administration has been making very large, undisclosed payments to MIT Professor Jonathan Gruber to provide consultation on the President’s health care plan.  With this lucrative arrangement in place, Gruber spent the entire year offering public justifications for Obama’s health care plan, typically without disclosing these payments, and far worse, was repeatedly held out by the White House — falsely — as an “independent” or “objective” authority.  Obama allies in the media constantly cited Gruber’s analysis to support their defenses of the President’s plan, and the White House, in turn, then cited those media reports as proof that their plan would succeed.  This created an infinite “feedback loop” in favor of Obama’s health care plan which — unbeknownst to the public — was all being generated by someone who was receiving hundreds of thousands of dollars in secret from the administration (read this to see exactly how it worked).In other words, this arrangement was quite similar to the Armstrong Williams and Maggie Gallagher scandals which Democrats, in virtual lockstep, condemned.  Paul Krugman, for instance, in 2005 angrily lambasted right-wing pundits and policy analysts who received secret, undisclosed payments, and said they lack “intellectual integrity”; he specifically cited the Armstrong Williams case.  Yet the very same Paul Krugman last week attacked Marcy Wheeler for helping to uncover the Gruber payments by accusing her of being “just like the right-wingers with their endless supply of fake scandals.”  What is one key difference?  Unlike Williams and Gallagher, Jonathan Gruber is a Good, Well-Intentioned Person with Good Views — he favors health care — and so massive, undisclosed payments from the same administration he’s defending are dismissed as a “fake scandal.”
  • Sunstein himself — as part of his 2008 paper — explicitly advocates that the Government should pay what he calls “credible independent experts” to advocate on the Government’s behalf, a policy he says would be more effective because people don’t trust the Government itself and would only listen to people they believe are “independent.”  In so arguing, Sunstein cites the Armstrong Williams scandal not as something that is wrong in itself, but as a potential risk of this tactic (i.e., that it might leak out), and thus suggests that “government can supply these independent experts with information and perhaps prod them into action from behind the scenes,” but warns that “too close a connection will be self-defeating if it is exposed.”  In other words, Sunstein wants the Government to replicate the Armstrong Williams arrangement as a means of more credibly disseminating propaganda — i.e., pretending that someone is an “independent” expert when they’re actually being “prodded” and even paid “behind the scenes” by the Government — but he wants to be more careful about how the arrangement is described (don’t make the control explicit) so that embarrassment can be avoided if it ends up being exposed.  
  • In this 2008 paper, then, Sunstein advocated, in essence, exactly what the Obama administration has been doing all year with Gruber:  covertly paying people who can be falsely held up as “independent” analysts in order to more credibly promote the Government line.  Most Democrats agreed this was a deceitful and dangerous act when Bush did it, but with Obama and some of his supporters, undisclosed arrangements of this sort seem to be different.  Why?  Because, as Sunstein puts it:  we have “a well-motivated government” doing this so that “social welfare is improved.”  Thus, just like state secrets, indefinite detention, military commissions and covert, unauthorized wars, what was once deemed so pernicious during the Bush years — coordinated government/media propaganda — is instantaneously transformed into something Good.* * * * *What is most odious and revealing about Sunstein’s worldview is his condescending, self-loving belief that “false conspiracy theories” are largely the province of fringe, ignorant Internet masses and the Muslim world.  That, he claims, is where these conspiracy theories thrive most vibrantly, and he focuses on various 9/11 theories — both domestically and in Muslim countries — as his prime example.
  • It’s certainly true that one can easily find irrational conspiracy theories in those venues, but some of the most destructive “false conspiracy theories” have emanated from the very entity Sunstein wants to endow with covert propaganda power:  namely, the U.S. Government itself, along with its elite media defenders. Moreover, “crazy conspiracy theorist” has long been the favorite epithet of those same parties to discredit people trying to expose elite wrongdoing and corruption. Who is it who relentlessly spread “false conspiracy theories” of Saddam-engineered anthrax attacks and Iraq-created mushroom clouds and a Ba’athist/Al-Qaeda alliance — the most destructive conspiracy theories of the last generation?  And who is it who demonized as “conspiracy-mongers” people who warned that the U.S. Government was illegally spying on its citizens, systematically torturing people, attempting to establish permanent bases in the Middle East, or engineering massive bailout plans to transfer extreme wealth to the industries which own the Government?  The most chronic and dangerous purveyors of “conspiracy theory” games are the very people Sunstein thinks should be empowered to control our political debates through deceit and government resources:  namely, the Government itself and the Enlightened Elite like him.
  • It is this history of government deceit and wrongdoing that renders Sunstein’s desire to use covert propaganda to “undermine” anti-government speech so repugnant.  The reason conspiracy theories resonate so much is precisely that people have learned — rationally — to distrust government actions and statements.  Sunstein’s proposed covert propaganda scheme is a perfect illustration of why that is.  In other words, people don’t trust the Government and “conspiracy theories” are so pervasive precisely because government is typically filled with people like Cass Sunstein, who think that systematic deceit and government-sponsored manipulation are justified by their own Goodness and Superior Wisdom.
  • The point is that there are severe dangers to the Government covertly using its resources to “infiltrate” discussions and to shape political debates using undisclosed and manipulative means.  It’s called “covert propaganda” and it should be opposed regardless of who is in control of it or what its policy aims are. UPDATE II:  Ironically, this is the same administration that recently announced a new regulation dictating that “bloggers who review products must disclose any connection with advertisers, including, in most cases, the receipt of free products and whether or not they were paid in any way by advertisers, as occurs frequently.”  Without such disclosure, the administration reasoned, the public may not be aware of important hidden incentives (h/t pasquin).  Yet the same administration pays an MIT analyst hundreds of thousands of dollars to advocate their most controversial proposed program while they hold him out as “objective,” and selects as their Chief Regulator someone who wants government agents to covertly mold political discussions “anonymously or even with false identities.”
  • UPDATE III:  Just to get a sense for what an extremist Cass Sunstein is (which itself is ironic, given that his paper calls for ”cognitive infiltration of extremist groups,” as the Abstract puts it), marvel at this paragraph:
  • So Sunstein isn’t calling right now for proposals (1) and (2) — having Government ”ban conspiracy theorizing” or “impose some kind of tax on those who” do it — but he says “each will have a place under imaginable conditions.”  I’d love to know the “conditions” under which the government-enforced banning of conspiracy theories or the imposition of taxes on those who advocate them will “have a place.”  That would require, at a bare minumum, a repeal of the First Amendment.  Anyone who believes this should, for that reason alone, be barred from any meaningful government position.
  • Paul Merrell on 06 Apr 14
     
    This is a January 2010 article by Glenn Greenwald. The Sunstein paper referred to was published in 2008 and is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1084585  Sunstein left the Obama Administration in 2012 and now teaches law at Harvard. He is the husband of U.S. Ambassador to the U.N. Susan Rice,a notorious neocon.  His paper is scholarly only in format. His major premises have no citations and in at least two cases are straw man logical fallacies that misportray the position of the groups he criticizes. This is "academic" work that a first-year-law student heading for a 1.0 grade point average could make mincemeat of. This paper alone would seem to disqualify him from a Supreme Court nomination and from teaching law. Has he never heard of the First Amendment and why didn't he bother to check whether it is legal to inflict propaganda on the American public? But strange things happen when you're a buddy of an American president. Most noteworthy, however, is that the paper unquestionably puts an advocate of waging psychological warfare against the foreign populations *and* the American public as the head of the White House White House OMB Office of Information and Regulatory Affairs from 2008 through 2012 and on Obama's short list for the Supreme Court. Given the long history of U.S. destabilization of foreign nations via propaganda, of foreign wars waged under false pretenses, of the ongoing barrage of false information disseminated by our federal government, can there be any reasonable doubt that the American public is not being manipulated by false propaganda disseminated by their own government?  An inquiring mind wants to know ...   
Paul Merrell

If GCHQ wants to improve national security it must fix our technology | Technology | th... - 0 views

www.theguardian.com/...q-national-security-technology

surveillance state cyberwar vulnerabilities secure-computing Doctorow

shared by Paul Merrell on 10 Apr 14 - No Cached
  • In a recent column, security expert Bruce Schneier proposed breaking up the NSA – handing its offensive capabilities work to US Cyber Command and its law enforcement work to the FBI, and terminating its programme of attacking internet security. In place of this, Schneier proposed that “instead of working to deliberately weaken security for everyone, the NSA should work to improve security for everyone.” This is a profoundly good idea for reasons that may not be obvious at first blush.People who worry about security and freedom on the internet have long struggled with the problem of communicating the urgent stakes to the wider public. We speak in jargon that’s a jumble of mixed metaphors – viruses, malware, trojans, zero days, exploits, vulnerabilities, RATs – that are the striated fossil remains of successive efforts to come to grips with the issue. When we do manage to make people alarmed about the stakes, we have very little comfort to offer them, because Internet security isn’t something individuals can solve.
  • I remember well the day this all hit home for me. It was nearly exactly a year ago, and I was out on tour with my novel Homeland, which tells the story of a group of young people who come into possession of a large trove of government leaks that detail a series of illegal programmes through which supposedly democratic governments spy on people by compromising their computers.
  • I explained the book’s premise, and then talked about how this stuff works in the real world. I laid out a parade of awfuls, including a demonstrated attack that hijacked implanted defibrillators from 10 metres’ distance and caused them to compromise other defibrillators that came into range, implanting an instruction to deliver lethal shocks at a certain time in the future. I talked about Cassidy Wolf, the reigning Miss Teen USA, whose computer had been taken over by a “sextortionist” who captured nude photos of her and then threatened to release them if she didn’t perform live sex shows for him. I talked about the future of self-driving cars, smart buildings, implanted hearing aids and robotic limbs, and explained that the world is made out of computers that we put our bodies into, and that we put inside our bodies.These computers are badly secured. What’s more, governments and their intelligence agencies are actively working to undermine the security of our computers and networks. This was before the Snowden revelations, but we already knew that governments were buying “zero-day vulnerabilities” from security researchers. These are critical bugs that can be leveraged to compromise entire systems. Until recently, the normal response to the discovery of one of these “vulns” was to report them to the vendor so they could be repaired.
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  • But spy-agencies and law-enforcement have created a bustling marketplace for “zero-days,” which are weaponised for the purpose of attacking the computers and networks of “bad guys”. The incentives have shifted, and now a newly discovered bug had a good chance of remaining unpatched and live in the field because governments wanted to be able to use it to hack their enemies.
  • Last year, when I finished that talk in Seattle, a talk about all the ways that insecure computers put us all at risk, a woman in the audience put up her hand and said, “Well, you’ve scared the hell out of me. Now what do I do? How do I make my computers secure?”And I had to answer: “You can’t. No one of us can. I was a systems administrator 15 years ago. That means that I’m barely qualified to plug in a WiFi router today. I can’t make my devices secure and neither can you. Not when our governments are buying up information about flaws in our computers and weaponising them as part of their crime-fighting and anti-terrorism strategies. Not when it is illegal to tell people if there are flaws in their computers, where such a disclosure might compromise someone’s anti-copying strategy.But: If I had just stood here and spent an hour telling you about water-borne parasites; if I had told you about how inadequate water-treatment would put you and everyone you love at risk of horrifying illness and terrible, painful death; if I had explained that our very civilisation was at risk because the intelligence services were pursuing a strategy of keeping information about pathogens secret so they can weaponise them, knowing that no one is working on a cure; you would not ask me ‘How can I purify the water coming out of my tap?’”
  • Because when it comes to public health, individual action only gets you so far. It doesn’t matter how good your water is, if your neighbour’s water gives him cholera, there’s a good chance you’ll get cholera, too. And even if you stay healthy, you’re not going to have a very good time of it when everyone else in your country is striken and has taken to their beds.If you discovered that your government was hoarding information about water-borne parasites instead of trying to eradicate them; if you discovered that they were more interested in weaponising typhus than they were in curing it, you would demand that your government treat your water-supply with the gravitas and seriousness that it is due.The public health analogy is suprisingly apt here. The public health threat-model is in a state of continuous flux, because our well-being is under continuous, deliberate attack from pathogens for whom we are, at best, host organisms, and at worst, dinner. Evolution drives these organisms to a continuously shifting array of tactics to slide past our defenses.Public health isn’t just about pathogens, either – its thorniest problems are about human behaviour and social policy. HIV is a blood-borne disease, but disrupting its spread requires changes to our attitudes about sex, pharmaceutical patents, drugs policy and harm minimisation. Almost everything interesting about HIV is too big to fit on a microscope slide.
  • And so it is for security: crypto is awesome maths, but it’s just maths. Security requires good password choice, good password management, good laws about compelled crypto disclosure, transparency into corporate security practices, and, of course, an end to the governmental practice of spending $250M/year on anti-security sabotage through the NSA/GCHQ programmes Bullrun and Edgehill.
  • But for me, the most important parallel between public health and internet security is their significance to our societal wellbeing. Everything we do today involves the internet. Everything we do tomorrow will require the internet. If you live near a nuclear power plant, fly in airplanes, ride in cars or trains, have an implanted pacemaker, keep money in the bank, or carry a phone, your safety and well-being depend on a robust, evolving, practice of network security.This is the most alarming part of the Snowden revelations: not just that spies are spying on all of us – that they are actively sabotaging all of our technical infrastructure to ensure that they can continue to spy on us.There is no way to weaken security in a way that makes it possible to spy on “bad guys” without making all of us vulnerable to bad guys, too. The goal of national security is totally incompatible with the tactic of weakening the nation’s information security.
  • “Virus” has been a term of art in the security world for decades, and with good reason. It’s a term that resonates with people, even people with only a cursory grasp of technology. As we strive to make the public and our elected representatives understand what’s at stake, let’s expand that pathogen/epidemiology metaphor. We’d never allow MI5 to suppress information on curing typhus so they could attack terrorists by infecting them with it. We need to stop allowing the NSA and GCHQ to suppress information on fixing bugs in our computers, phones, cars, houses, planes, and bodies.If GCHQ wants to improve the national security of the United Kingdom – if the NSA want to impove the American national security – they should be fixing our technology, not breaking it. The technology of Britons and Americans is under continuous, deadly attack from criminals, from foreign spies, and from creeps. Our security is better served by armouring us against these threats than it is by undermining security so that cops and spies have an easier time attacking “bad guys.”
Paul Merrell

Half of Federal Agencies Still Use Outdated Freedom of Information Regulations - 0 views

www2.gwu.edu/...NSAEBB460

transparency Obama FOIA-regulations

shared by Paul Merrell on 15 Mar 14 - No Cached
  • Nearly half (50 out of 101) of all federal agencies have still not updated their Freedom of Information Act regulations to comply with Congress's 2007 FOIA amendments, and even more agencies (55 of 101) have FOIA regulations that predate and ignore President Obama's and Attorney General Holder's 2009 guidance for a "presumption of disclosure," according to the new National Security Archive FOIA Audit released today to mark Sunshine Week. Congress amended the Freedom of Information Act in 2007 to prohibit agencies from charging processing fees if they missed their response deadlines, to include new online journalists in the fee waiver category for the media, to order agencies to cooperate with the new FOIA ombudsman (the Office of Government Information Services, OGIS), and to require reports of specific data on their FOIA output, among other provisions co-authored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX). But half the government has yet to incorporate these changes in their regulations, according to the latest National Security Archive FOIA Audit. After President Obama's "Day One" commitments to open government, Attorney General Eric Holder issued new FOIA guidance on March 19, 2009, declaring that agencies should adopt a "presumption of disclosure," encourage discretionary releases if there was no foreseeable harm (even if technically covered by an exemption), proactively post the records of greatest public interest online, and remove "unnecessary bureaucratic hurdles" from the FOIA process. But five years later, the Archive found a majority of agencies have old regulations that simply ignore this guidance.
  • The Archive's FOIA Audit also highlights some good news this Sunshine Week: New plans from both the House of Representatives and White House have the potential to compel delinquent agencies to update their regulations. "Both Congress and the White House now recognize the problem of outdated FOIA regulations, and that is something to celebrate," said Archive director Tom Blanton. "But new regs should not follow the Justice Department's terrible lead, they must follow the best practices already identified by the FOIA ombuds office and FOIA experts." "If and when this important FOIA reform occurs, open government watchdogs must be vigilant to ensure that the agencies' updated regulations are progressive, rather than regressive, and embrace best practices to ensure that more documents are released to requesters, more quickly" said Nate Jones, the Archive's FOIA coordinator.
  • In 2011, the back-to-back Rosemary Award-winning Department of Justice proposed FOIA regulations that would have — among many other FOIA setbacks — allowed the Department to lie to FOIA requesters, eliminated online-only publications from receiving media fee status, and made it easier to destroy records. After intense pushback by openness advocates, the DOJ temporarily pulled these regulations, and Pustay claimed, "some people misinterpreted what we were trying to do, misconstrued some of the provisions, and didn't necessarily understand some of the fee guidelines." Pustay also claimed — to an incredulous Senate Judiciary Committee — that updating FOIA regulations to conform with the 2007 OPEN Government Act was merely optional and "not required." National Security Archive director Tom Blanton warned in his own 2013 Senate testimony that these terrible "vampire" regulations were not gone for good. This year, Pustay testified that the Department of Justice has indeed resubmitted its FOIA regulations for OMB approval; their content is unknown to the public.
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  • The House of Representatives recently unanimously passed the bipartisan Freedom of Information Act Implementation Act (H.R. 1211), which includes a provision compelling agencies to update their FOIA regulations. The House bill — which now awaits Senate approval — would require each agency to update its FOIA regulations "not later than 180 days after the enactment of this Act." The White House is also addressing the problem of outdated FOIA regulations, albeit in a different manner. In its latest Open Government Partnership National Action Plan, the White House has committed (on paper, at least) to creating one "core FOIA regulation and common set of practices [that] would make it easier for requesters to understand and navigate the FOIA process and easier for the Government to keep regulations up to date." Transparency watchdogs went on alert this week after the Department of Justice's Director of Information Policy Melanie Pustay announced during her Senate testimony on March 11, 2014 that, "My office is leading that project" to create the White House-backed common regulation which, she estimated will be, "a one or two year project." Despite Pustay's pledge that she would accept input from OGIS and the requester community, her Department's history of crafting FOIA regulations has been anything but stellar.
  • As the Department of Justice and other agencies have demonstrated, new regulations do not necessarily make good regulations. As such, the National Security Archive has recommended that any updated FOIA regulations must: mandate that FOIA officers embrace direct communications with requesters; require agencies to receive requests by e-mail and post all responses and documents online; direct agencies to update their FOIA processing software so documents can be posted to any online repository, including the government-sponsored FOIAonline; encourage agencies to join FOIAonline to make their FOIA processing more cost-effective and efficient; stream-line inter and intra-agency "referral" black holes — and keep requesters abreast of where their requests are if the agency does have to refer them; include language encouraging use of the OGIS, which can help requesters and agencies mediate disputes to avoid animosity and costly litigation; end the practice of using fees to discourage FOIA requesters. The Office of Government Information Services — which reviews and comments on agency regulations as they are proposed — has also compiled a list of best practices for agencies to consider while crafting regulations. These include: "let the Freedom of Information Act itself" — and its presumption for disclosure — "be your guide;" bring attorneys, FOIA processors, records managers and IT pros to the table; include your plan for records management and preservation; and alert requesters of their option to contact OGIS for mediation and dispute resolution services.
  • A useful compilation of current agency FOIA regulation language — already on the books — put together by the Center of Effective Government also includes helpful guidelines on preventing the destruction of requested records; narrowly interpreting claims of confidential business information; and clarifying fee waivers and procedures. FOIA experts are currently working to craft model, pro-transparency, CFR-ready language that agencies — or the drafters of government-wide common regulations — can use to bring agencies' Freedom of Information Act regulations up to standard. Watch this space, and then watch the Code of Federal Regulations (CFR). "As the staffer who waded through every single federal agencies' FOIA website and CFR chapter to locate their — sometimes hidden — regulations, I learned FOIA officials often say they view their FOIA requesters as customers," said Archive researcher Lauren Harper, "I think easy to find, updated model FOIA regulations are the best way for agencies to demonstrate they truly value their customer service, and the spirit of the FOIA."
  • The National Security Archive has conducted thirteen FOIA audits since 2002. Modeled after the California Sunshine Survey and subsequent state "FOI Audits," the Archive's FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Archive FOIA Audits have led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests. The surveys include:
  • Paul Merrell on 15 Mar 14
     
    Article includes tables indicating which agencies are out of compliance with which FOIA directives. 
Paul Merrell

Top-Secret Document Reveals NSA Spied On Porn Habits As Part Of Plan To Discredit 'Radi... - 0 views

www.huffingtonpost.com/...sa-porn-muslims_n_4346128.html

surveillance state NSA NSA-porn COINTELPRO FBI must-read

shared by Paul Merrell on 28 Nov 13 - No Cached
  • WASHINGTON -- The National Security Agency has been gathering records of online sexual activity and evidence of visits to pornographic websites as part of a proposed plan to harm the reputations of those whom the agency believes are radicalizing others through incendiary speeches, according to a top-secret NSA document. The document, provided by NSA whistleblower Edward Snowden, identifies six targets, all Muslims, as “exemplars” of how “personal vulnerabilities” can be learned through electronic surveillance, and then exploited to undermine a target's credibility, reputation and authority. The NSA document, dated Oct. 3, 2012, repeatedly refers to the power of charges of hypocrisy to undermine such a messenger. “A previous SIGINT" -- or signals intelligence, the interception of communications -- "assessment report on radicalization indicated that radicalizers appear to be particularly vulnerable in the area of authority when their private and public behaviors are not consistent,” the document argues. Among the vulnerabilities listed by the NSA that can be effectively exploited are “viewing sexually explicit material online” and “using sexually explicit persuasive language when communicating with inexperienced young girls.”
  • The Director of the National Security Agency -- described as "DIRNSA" -- is listed as the "originator" of the document. Beyond the NSA itself, the listed recipients include officials with the Departments of Justice and Commerce and the Drug Enforcement Administration. "Without discussing specific individuals, it should not be surprising that the US Government uses all of the lawful tools at our disposal to impede the efforts of valid terrorist targets who seek to harm the nation and radicalize others to violence," Shawn Turner, director of public affairs for National Intelligence, told The Huffington Post in an email Tuesday. Yet Jameel Jaffer, deputy legal director of the American Civil Liberties Union, said these revelations give rise to serious concerns about abuse. "It's important to remember that the NSA’s surveillance activities are anything but narrowly focused -- the agency is collecting massive amounts of sensitive information about virtually everyone," he said. "Wherever you are, the NSA's databases store information about your political views, your medical history, your intimate relationships and your activities online," he added. "The NSA says this personal information won't be abused, but these documents show that the NSA probably defines 'abuse' very narrowly."
  • None of the six individuals targeted by the NSA is accused in the document of being involved in terror plots. The agency believes they all currently reside outside the United States. It identifies one of them, however, as a "U.S. person," which means he is either a U.S. citizen or a permanent resident. A U.S. person is entitled to greater legal protections against NSA surveillance than foreigners are. Stewart Baker, a one-time general counsel for the NSA and a top Homeland Security official in the Bush administration, said that the idea of using potentially embarrassing information to undermine targets is a sound one. "If people are engaged in trying to recruit folks to kill Americans and we can discredit them, we ought to," said Baker. "On the whole, it's fairer and maybe more humane" than bombing a target, he said, describing the tactic as "dropping the truth on them." Any system can be abused, Baker allowed, but he said fears of the policy drifting to domestic political opponents don't justify rejecting it. "On that ground you could question almost any tactic we use in a war, and at some point you have to say we're counting on our officials to know the difference," he said.
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  • In addition to analyzing the content of their internet activities, the NSA also examined the targets' contact lists. The NSA accuses two of the targets of promoting al Qaeda propaganda, but states that surveillance of the three English-speakers’ communications revealed that they have "minimal terrorist contacts." In particular, “only seven (1 percent) of the contacts in the study of the three English-speaking radicalizers were characterized in SIGINT as affiliated with an extremist group or a Pakistani militant group. An earlier communications profile of [one of the targets] reveals that 3 of the 213 distinct individuals he was in contact with between 4 August and 2 November 2010 were known or suspected of being associated with terrorism," the document reads. The document contends that the three Arabic-speaking targets have more contacts with affiliates of extremist groups, but does not suggest they themselves are involved in any terror plots. Instead, the NSA believes the targeted individuals radicalize people through the expression of controversial ideas via YouTube, Facebook and other social media websites. Their audience, both English and Arabic speakers, "includes individuals who do not yet hold extremist views but who are susceptible to the extremist message,” the document states. The NSA says the speeches and writings of the six individuals resonate most in countries including the United Kingdom, Germany, Sweden, Kenya, Pakistan, India and Saudi Arabia.
  • The NSA possesses embarrassing sexually explicit information about at least two of the targets by virtue of electronic surveillance of their online activity. The report states that some of the data was gleaned through FBI surveillance programs carried out under the Foreign Intelligence and Surveillance Act. The document adds, "Information herein is based largely on Sunni extremist communications." It further states that "the SIGINT information is from primary sources with direct access and is generally considered reliable." According to the document, the NSA believes that exploiting electronic surveillance to publicly reveal online sexual activities can make it harder for these “radicalizers” to maintain their credibility. "Focusing on access reveals potential vulnerabilities that could be even more effectively exploited when used in combination with vulnerabilities of character or credibility, or both, of the message in order to shape the perception of the messenger as well as that of his followers," the document argues. An attached appendix lists the "argument" each surveillance target has made that the NSA says constitutes radicalism, as well the personal "vulnerabilities" the agency believes would leave the targets "open to credibility challenges" if exposed.
  • One target's offending argument is that "Non-Muslims are a threat to Islam," and a vulnerability listed against him is "online promiscuity." Another target, a foreign citizen the NSA describes as a "respected academic," holds the offending view that "offensive jihad is justified," and his vulnerabilities are listed as "online promiscuity" and "publishes articles without checking facts." A third targeted radical is described as a "well-known media celebrity" based in the Middle East who argues that "the U.S perpetrated the 9/11 attack." Under vulnerabilities, he is said to lead "a glamorous lifestyle." A fourth target, who argues that "the U.S. brought the 9/11 attacks on itself" is said to be vulnerable to accusations of “deceitful use of funds." The document expresses the hope that revealing damaging information about the individuals could undermine their perceived "devotion to the jihadist cause." The Huffington Post is withholding the names and locations of the six targeted individuals; the allegations made by the NSA about their online activities in this document cannot be verified. The document does not indicate whether the NSA carried out its plan to discredit these six individuals, either by communicating with them privately about the acquired information or leaking it publicly. There is also no discussion in the document of any legal or ethical constraints on exploiting electronic surveillance in this manner.
  • While Baker and others support using surveillance to tarnish the reputation of people the NSA considers "radicalizers," U.S. officials have in the past used similar tactics against civil rights leaders, labor movement activists and others. Under J. Edgar Hoover, the FBI harassed activists and compiled secret files on political leaders, most notably Martin Luther King, Jr. The extent of the FBI's surveillance of political figures is still being revealed to this day, as the bureau releases the long dossiers it compiled on certain people in response to Freedom of Information Act requests following their deaths. The information collected by the FBI often centered on sex -- homosexuality was an ongoing obsession on Hoover's watch -- and information about extramarital affairs was reportedly used to blackmail politicians into fulfilling the bureau's needs. Current FBI Director James Comey recently ordered new FBI agents to visit the Martin Luther King, Jr. Memorial in Washington to understand "the dangers in becoming untethered to oversight and accountability."
  • James Bamford, a journalist who has been covering the NSA since the early 1980s, said the use of surveillance to exploit embarrassing private behavior is precisely what led to past U.S. surveillance scandals. "The NSA's operation is eerily similar to the FBI's operations under J. Edgar Hoover in the 1960s where the bureau used wiretapping to discover vulnerabilities, such as sexual activity, to 'neutralize' their targets," he said. "Back then, the idea was developed by the longest serving FBI chief in U.S. history, today it was suggested by the longest serving NSA chief in U.S. history." That controversy, Bamford said, also involved the NSA. "And back then, the NSA was also used to do the eavesdropping on King and others through its Operation Minaret. A later review declared the NSA’s program 'disreputable if not outright illegal,'" he said. Baker said that until there is evidence the tactic is being abused, the NSA should be trusted to use its discretion. "The abuses that involved Martin Luther King occurred before Edward Snowden was born," he said. "I think we can describe them as historical rather than current scandals. Before I say, 'Yeah, we've gotta worry about that,' I'd like to see evidence of that happening, or is even contemplated today, and I don't see it."
  • Jaffer, however, warned that the lessons of history ought to compel serious concern that a "president will ask the NSA to use the fruits of surveillance to discredit a political opponent, journalist or human rights activist." "The NSA has used its power that way in the past and it would be naïve to think it couldn't use its power that way in the future," he said.
  • Paul Merrell on 28 Nov 13
     
    By Glenn Greenwald, Ryan Gallagher, and Ryan Grim, 26 November 2013. I will annotate later. But this is by far the most important NSA disclosure from Edward Snowden's leaked documents thus far. A report originated by Gen. Alexander himself revealing COINTELPRO like activities aimed at destroying the reputations of non-terrorist "radicalizers," including one "U.S. person." This is exactly the kind of repressive activity that the civil libertarians among us warn about. 
  • Paul Merrell on 28 Nov 13
     
    By Glenn Greenwald, Ryan Gallagher, and Ryan Grim, 26 November 2013. I will annotate later. But this is by far the most important NSA disclosure from Edward Snowden's leaked documents thus far. A report originated by Gen. Alexander himself revealing COINTELPRO like activities aimed at destroying the reputations of non-terrorist "radicalizers," including one "U.S. person." This is exactly the kind of repressive activity that the civil libertarians among us warn about. 
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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  • 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.
  • 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.
  • 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

Most Agencies Falling Short on Mandate for Online Records - 0 views

www2.gwu.edu/...NSAEBB505

eFOIA FOIA audit National-Security-Archives agency-compliance

shared by Paul Merrell on 14 Mar 15 - No Cached
  • Nearly 20 years after Congress passed the Electronic Freedom of Information Act Amendments (E-FOIA), only 40 percent of agencies have followed the law's instruction for systematic posting of records released through FOIA in their electronic reading rooms, according to a new FOIA Audit released today by the National Security Archive at www.nsarchive.org to mark Sunshine Week. The Archive team audited all federal agencies with Chief FOIA Officers as well as agency components that handle more than 500 FOIA requests a year — 165 federal offices in all — and found only 67 with online libraries populated with significant numbers of released FOIA documents and regularly updated.
  • Congress called on agencies to embrace disclosure and the digital era nearly two decades ago, with the passage of the 1996 "E-FOIA" amendments. The law mandated that agencies post key sets of records online, provide citizens with detailed guidance on making FOIA requests, and use new information technology to post online proactively records of significant public interest, including those already processed in response to FOIA requests and "likely to become the subject of subsequent requests." Congress believed then, and openness advocates know now, that this kind of proactive disclosure, publishing online the results of FOIA requests as well as agency records that might be requested in the future, is the only tenable solution to FOIA backlogs and delays. Thus the National Security Archive chose to focus on the e-reading rooms of agencies in its latest audit. Even though the majority of federal agencies have not yet embraced proactive disclosure of their FOIA releases, the Archive E-FOIA Audit did find that some real "E-Stars" exist within the federal government, serving as examples to lagging agencies that technology can be harnessed to create state-of-the art FOIA platforms. Unfortunately, our audit also found "E-Delinquents" whose abysmal web performance recalls the teletype era.
  • E-Delinquents include the Office of Science and Technology Policy at the White House, which, despite being mandated to advise the President on technology policy, does not embrace 21st century practices by posting any frequently requested records online. Another E-Delinquent, the Drug Enforcement Administration, insults its website's viewers by claiming that it "does not maintain records appropriate for FOIA Library at this time."
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  • "The presumption of openness requires the presumption of posting," said Archive director Tom Blanton. "For the new generation, if it's not online, it does not exist." The National Security Archive has conducted fourteen FOIA Audits since 2002. Modeled after the California Sunshine Survey and subsequent state "FOI Audits," the Archive's FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Archive FOIA Audits have led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests. The surveys include:
  • The federal government has made some progress moving into the digital era. The National Security Archive's last E-FOIA Audit in 2007, " File Not Found," reported that only one in five federal agencies had put online all of the specific requirements mentioned in the E-FOIA amendments, such as guidance on making requests, contact information, and processing regulations. The new E-FOIA Audit finds the number of agencies that have checked those boxes is now much higher — 100 out of 165 — though many (66 in 165) have posted just the bare minimum, especially when posting FOIA responses. An additional 33 agencies even now do not post these types of records at all, clearly thwarting the law's intent.
  • The FOIAonline Members (Department of Commerce, Environmental Protection Agency, Federal Labor Relations Authority, Merit Systems Protection Board, National Archives and Records Administration, Pension Benefit Guaranty Corporation, Department of the Navy, General Services Administration, Small Business Administration, U.S. Citizenship and Immigration Services, and Federal Communications Commission) won their "E-Star" by making past requests and releases searchable via FOIAonline. FOIAonline also allows users to submit their FOIA requests digitally.
  • THE E-DELINQUENTS: WORST OVERALL AGENCIES In alphabetical order
  • Key Findings
  • Excuses Agencies Give for Poor E-Performance
  • Justice Department guidance undermines the statute. Currently, the FOIA stipulates that documents "likely to become the subject of subsequent requests" must be posted by agencies somewhere in their electronic reading rooms. The Department of Justice's Office of Information Policy defines these records as "frequently requested records… or those which have been released three or more times to FOIA requesters." Of course, it is time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breach of the law. Troublingly, both the current House and Senate FOIA bills include language that codifies the instructions from the Department of Justice. The National Security Archive believes the addition of this "three or more times" language actually harms the intent of the Freedom of Information Act as it will give agencies an easy excuse ("not requested three times yet!") not to proactively post documents that agency FOIA offices have already spent time, money, and energy processing. We have formally suggested alternate language requiring that agencies generally post "all records, regardless of form or format that have been released in response to a FOIA request."
  • Disabilities Compliance. Despite the E-FOIA Act, many government agencies do not embrace the idea of posting their FOIA responses online. The most common reason agencies give is that it is difficult to post documents in a format that complies with the Americans with Disabilities Act, also referred to as being "508 compliant," and the 1998 Amendments to the Rehabilitation Act that require federal agencies "to make their electronic and information technology (EIT) accessible to people with disabilities." E-Star agencies, however, have proven that 508 compliance is no barrier when the agency has a will to post. All documents posted on FOIAonline are 508 compliant, as are the documents posted by the Department of Defense and the Department of State. In fact, every document created electronically by the US government after 1998 should already be 508 compliant. Even old paper records that are scanned to be processed through FOIA can be made 508 compliant with just a few clicks in Adobe Acrobat, according to this Department of Homeland Security guide (essentially OCRing the text, and including information about where non-textual fields appear). Even if agencies are insistent it is too difficult to OCR older documents that were scanned from paper, they cannot use that excuse with digital records.
  • Privacy. Another commonly articulated concern about posting FOIA releases online is that doing so could inadvertently disclose private information from "first person" FOIA requests. This is a valid concern, and this subset of FOIA requests should not be posted online. (The Justice Department identified "first party" requester rights in 1989. Essentially agencies cannot use the b(6) privacy exemption to redact information if a person requests it for him or herself. An example of a "first person" FOIA would be a person's request for his own immigration file.) Cost and Waste of Resources. There is also a belief that there is little public interest in the majority of FOIA requests processed, and hence it is a waste of resources to post them. This thinking runs counter to the governing principle of the Freedom of Information Act: that government information belongs to US citizens, not US agencies. As such, the reason that a person requests information is immaterial as the agency processes the request; the "interest factor" of a document should also be immaterial when an agency is required to post it online. Some think that posting FOIA releases online is not cost effective. In fact, the opposite is true. It's not cost effective to spend tens (or hundreds) of person hours to search for, review, and redact FOIA requests only to mail it to the requester and have them slip it into their desk drawer and forget about it. That is a waste of resources. The released document should be posted online for any interested party to utilize. This will only become easier as FOIA processing systems evolve to automatically post the documents they track. The State Department earned its "E-Star" status demonstrating this very principle, and spent no new funds and did not hire contractors to build its Electronic Reading Room, instead it built a self-sustaining platform that will save the agency time and money going forward.
Paul Merrell

Senators accuse government of using 'secret law' to collect Americans' data | World new... - 0 views

www.guardian.co.uk/...es-clapper-nsa-data-collection

surveillance state NSA blowback senators Clapper

shared by Paul Merrell on 30 Jun 13 - No Cached
  • A bipartisan group of 26 US senators has written to intelligence chiefs to complain that the administration is relying on a "secret body of law" to collect massive amounts of data on US citizens.The senators accuse officials of making misleading statements and demand that the director of national intelligence James Clapper answer a series of specific questions on the scale of domestic surveillance as well as the legal justification for it.In their strongly-worded letter to Clapper, the senators said they believed the government may be misinterpreting existing legislation to justify the sweeping collection of telephone and internet data revealed by the Guardian."We are concerned that by depending on secret interpretations of the Patriot Act that differed from an intuitive reading of the statute, this program essentially relied for years on a secret body of law," they say.
  • "This and misleading statements by intelligence officials have prevented our constituents from evaluating the decisions that their government was making, and will unfortunately undermine trust in government more broadly."This is the strongest attack yet from Congress since the disclosures began, and comes after Clapper admitted he had given "the least untruthful answer possible" when pushed on these issues by Senators at a hearing before the latest revelations by the Guardian and the Washington Post.In a press statement, the group of senators added: "The recent public disclosures of secret government surveillance programs have exposed how secret interpretations of the USA Patriot Act have allowed for the bulk collection of massive amounts of data on the communications of ordinary Americans with no connection to wrongdoing."
  • They said: "Reliance on secret law to conduct domestic surveillance activities raises serious civil liberty concerns and all but removes the public from an informed national security and civil liberty debate." A spokesman for the office of the director of national intelligence (ODNI) acknowledged the letter. "The ODNI received a letter from 26 senators this morning requesting further engagement on vital intelligence programs recently disclosed in the media, which we are still evaluating. The intelligence and law enforcement communities will continue to work with all members of Congress to ensure the proper balance of privacy and protection for American citizens."The letter was organised by Oregan Democrat Ron Wyden, a member of the intelligence committee, but includes four Republican senators: Mark Kirk, Mike Lee, Lisa Murkowski and Dean Heller.
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  • The senators said they were seeking public answers to the following questions in order to give the American people the information they need to conduct an informed public debate. The specific questions include:• How long has the NSA used Patriot Act authorities to engage in bulk collection of Americans' records? Was this collection underway when the law was reauthorized in 2006?• Has the NSA used USA Patriot Act authorities to conduct bulk collection of any other types of records pertaining to Americans, beyond phone records?• Has the NSA collected or made any plans to collect Americans' cell-site location data in bulk?• Have there been any violations of the court orders permitting this bulk collection, or of the rules governing access to these records? If so, please describe these violations.
  • They ask Clapper to publicly provide information about the duration and scope of the program and provide examples of its effectiveness in providing unique intelligence, if such examples exist.The senators also expressed their concern that the program itself has a significant impact on the privacy of law-abiding Americans and that the Patriot Act could be used for the bulk collection of records beyond phone metadata."The Patriot Act's 'business records' authority can be used to give the government access to private financial, medical, consumer and firearm sales records, among others," said a press statement.In addition to raising concerns about the law's scope, the senators noted that keeping the official interpretation of the law secret and the instances of misleading public statements from executive branch officials prevented the American people from having an informed public debate about national security and domestic surveillance.
  • A bipartisan group of 26 US senators has written to intelligence chiefs to complain that the administration is relying on a "secret body of law" to collect massive amounts of data on US citizens.The senators accuse officials of making misleading statements and demand that the director of national intelligence James Clapper answer a series of specific questions on the scale of domestic surveillance as well as the legal justification for it.In their strongly-worded letter to Clapper, the senators said they believed the government may be misinterpreting existing legislation to justify the sweeping collection of telephone and internet data revealed by the Guardian."We are concerned that by depending on secret interpretations of the Patriot Act that differed from an intuitive reading of the statute, this program essentially relied for years on a secret body of law," they say."This and misleading statements by intelligence officials have prevented our constituents from evaluating the decisions that their government was making, and will unfortunately undermine trust in government more broadly."
Paul Merrell

Secret Law Isn't the Public's Fault | Just Security - 0 views

www.justsecurity.org/...secret-law-isnt-publics-fault

secret-law OLC-opinions disclosures FOIA

shared by Paul Merrell on 13 Nov 15 - No Cached
  • Officials in this administration have a funny way of blaming the victim. Did the CIA spy on Senate intelligence committee staffers who were investigating the agency’s torture program? No. OK, yes, you caught us — but the staffers were poking their nose into the CIA’s business. Are communities in some cities suffering from an uptick in crime rates? That must be because they were critical of police practices, and so the police are afraid to do their job. Are American Muslims disproportionately singled out for law enforcement scrutiny? It wouldn’t be necessary if they did a better job of identifying and rooting out the terrorists in their midst. Did a drone strike kill a 16-year-old boy who wasn’t on any target list but happened to be the son of alleged al-Qaeda operative Anwar al-Aulaqi? I guess he “should have had a more responsible father,” as then-White House press secretary Robert Gibbs helpfully explained. At the annual conference of the American Bar Association’s Standing Committee on National Security Law, officials were at it again. Both the CIA’s General Counsel, Caroline Krass, and the acting head of the Justice Department’s Office of Legal Counsel (OLC), Karl Thompson, observed that agencies are issuing fewer requests for formal OLC opinions and are seeking “informal,” unwritten advice from OLC instead. This trend undermines the public’s ability to obtain OLC opinions through FOIA requests. And, according to Krass, we have no one to blame but ourselves:
  • I do think one reason is a focus the office has gotten [in] the past 10 years or so in the public which has now led to Freedom of Information Act requests pretty much anytime the administration adopts a position in the context of domestic law or national security that could be [or] seems a little bit edgy or slightly controversial, immediately the request for the OLC opinion comes. What were we thinking? Well, we might have had in mind OLC officials’ own acknowledgment that their opinions constitute the working law of the executive branch, and are binding on agencies in the same manner that a court’s decision would be. When the public expresses interest in a controversial court opinion, that isn’t cited as a reason to move the judicial system into the shadows. To the contrary, it’s well-understood that the public has a right to know how judges are interpreting the law. That’s true regardless of whether the law deals with the rights and obligations of private parties or (as is usually the case with OLC opinions) the authorities of the government.  It’s high time we stop pretending that OLC opinions are merely attorneys’ advice, and thereby entitled to confidentiality. A private person is free to accept or reject her attorney’s advice. By contrast, as Thompson recognized, OLC opinions — even informal, unwritten ones — are “binding by custom and practice . … People are supposed to and do follow [them].” Moreover, in ordinary circumstances, it is no defense to criminal charges that the defendant’s lawyer gave bad advice. OLC opinions, on the other hand, confer effective immunity, as the Justice Department will not prosecute any official who acted in reliance on OLC’s conclusions.
  • The government nonetheless argues, and many courts have agreed, that OLC opinions are exempt from disclosure under FOIA because they are “deliberative” and “pre-decisional.” This assessment conflates two distinct decisions: the decision of an agency whether to adopt a course of conduct, and OLC’s decision regarding how to interpret the law. The latter decision may be one factor — along with other, non-legal factors, such as political viability, financial cost, and the existence of competing priorities — in the agency’s “deliberations” on the former. The agency ultimately must decide whether to move forward with a policy. But on the question of how the law should be interpreted, it is OLC, not the agency, which has the final word. If the agency were to issue a different legal interpretation, there is no question that OLC’s would take precedence, and the agency would be courting legal jeopardy by adopting a course of action in tension with OLC’s reading of the law. Perhaps the solution is simply to require the government to abide by its own characterization. If OLC opinions are to be given the status of deliberative documents and/or legal advice, so be it; but in that case, they cannot be binding on any agency or official, nor can they mitigate any official’s criminal or civil liability (unless they genuinely negate a required state of mind). If, on the other hand, the government wishes to treat OLC opinions as authoritative and a shield against prosecution or civil suit, then they must be called what they are — law — and made available to the public. Until that happens, the public will remain a victim of secret law, and there will be no one but the administration to blame.
Paul Merrell

Edward Snowden comes forward as source of NSA leaks - The Washington Post - 0 views

www.washingtonpost.com/...2-a73e-826d299ff459_print.html

security state NSA digital surveillance leaks

shared by Paul Merrell on 10 Jun 13 - No Cached
  • A 29-year-old man who says he is a former undercover CIA employee said Sunday that he was the principal source of recent disclosures about ­top-secret National Security Agency programs, exposing himself to possible prosecution in an acknowledgment that had little if any precedent in the long history of U.S. intelligence leaks. Edward Snowden, a tech specialist who has contracted for the NSA and works for the consulting firm Booz Allen Hamilton, unmasked himself as a source after a string of stories in The Washington Post and the Guardian that detailed previously unknown U.S. surveillance programs. He said he disclosed secret documents in response to what he described as the systematic surveillance of innocent citizens.In an interview Sunday, Snowden said he is willing to face the consequences of exposure.“I’m not going to hide,” Snowden told The Post from Hong Kong, where he has been staying. “Allowing the U.S. government to intimidate its people with threats of retaliation for revealing wrongdoing is contrary to the public interest.”
  • Asked whether he believes that his disclosures will change anything, he said: “I think they already have. Everyone everywhere now understands how bad things have gotten — and they’re talking about it. They have the power to decide for themselves whether they are willing to sacrifice their privacy to the surveillance state.”Snowden said nobody had been aware of his actions, including those closest to him. He said there was no single event that spurred his decision to leak the information, but he said President Obama has failed to live up to his pledges of transparency.“My sole motive is to inform the public as to that which is done in their name and that which is done against them,” he said in a note that accompanied the first document he leaked to The Post.The Guardian was the first to publicly identify Snowden, at his request.The White House said late Sunday that it would not have any comment on the matter.
  • In a brief statement, a spokesman for the Office of the Director of National Intelligence said the intelligence community is “reviewing the damage” the leaks have done. “Any person who has a security clearance knows that he or she has an obligation to protect classified information and abide by the law,” said the spokesman, Shawn Turner.Snowden said he is seeking “asylum from any countries that believe in free speech and oppose the victimization of global privacy,” but the law appears to provide for his extradition from Hong Kong, a semiautonomous territory of China, to the United States.
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  • Snowden’s name surfaced as top intelligence officials in the Obama administration and Congress pushed back against the journalists responsible for revealing the existence of sensitive surveillance programs and called for an investigation into the leaks.Clapper, in an interview with NBC that aired Saturday night, condemned the leaker’s actions but also sought to spotlight the journalists who first reported the programs, calling their disclosures irresponsible and full of “hyperbole.” Earlier Saturday, he issued a statement accusing the media of a “rush to publish.”“For me, it is literally — not figuratively — literally gut-wrenching to see this happen because of the huge, grave damage it does to our intelligence capabilities,” Clapper said.
  • A chief critic of the efforts, Sen. Rand Paul (R-Ky.), said he is considering filing a lawsuit against the government and called on 10 million Americans to join in.“I’m going to be asking all the Internet providers and all of the phone companies, ask your customers to join me in a class-action lawsuit,” Paul said on “Fox News Sunday.”
  • Paul Merrell on 10 Jun 13
     
    A new national hero springs forth, Edward Snowden. In related news, those who conduct surveillance for the government seem to object for some reason to being surveilled themselves. 
Paul Merrell

As Clapper Stalls on 28 Pages, New Poll Shows Americans Want Complete 9/11 Disclosure |... - 0 views

28pages.org/...s-want-complete-911-disclosure

war & peace 9-11 public-opinion polls 28-pages

shared by Paul Merrell on 25 Apr 16 - No Cached
  • Amid surging public interest in 28 classified pages said to link Saudi Arabia to 9/11, a new Rasmussen Reports poll finds 74% of Americans want the U.S. government to release everything it knows about the attacks, other than information that would imperil national security. Only a quarter of Americans believe they know the full truth about the September 11 attacks, and most Americans are cynical about the government’s motives for keeping some details under wraps: Among those who think the government hasn’t shared all it knows, 38% think it was withheld for political reasons and 29% say the secrecy is intended to protect allies. Just 21% think the lack of disclosure is meant to protect the country’s security.
Paul Merrell

Obama Lets N.S.A. Exploit Some Internet Flaws, Officials Say - NYTimes.com - 0 views

www.nytimes.com/...ernet-flaws-officials-say.html

surveillance state Obama NSA NSA-backdoors exploits must-read Iranian-nukes-myth Stuxnet

shared by Paul Merrell on 13 Apr 14 - No Cached
  • Stepping into a heated debate within the nation’s intelligence agencies, President Obama has decided that when the National Security Agency discovers major flaws in Internet security, it should — in most circumstances — reveal them to assure that they will be fixed, rather than keep mum so that the flaws can be used in espionage or cyberattacks, senior administration officials said Saturday.But Mr. Obama carved a broad exception for “a clear national security or law enforcement need,” the officials said, a loophole that is likely to allow the N.S.A. to continue to exploit security flaws both to crack encryption on the Internet and to design cyberweapons.
  • elements of the decision became evident on Friday, when the White House denied that it had any prior knowledge of the Heartbleed bug, a newly known hole in Internet security that sent Americans scrambling last week to change their online passwords. The White House statement said that when such flaws are discovered, there is now a “bias” in the government to share that knowledge with computer and software manufacturers so a remedy can be created and distributed to industry and consumers.Caitlin Hayden, the spokeswoman for the National Security Council, said the review of the recommendations was now complete, and it had resulted in a “reinvigorated” process to weigh the value of disclosure when a security flaw is discovered, against the value of keeping the discovery secret for later use by the intelligence community.“This process is biased toward responsibly disclosing such vulnerabilities,” she said.
  • One recommendation urged the N.S.A. to get out of the business of weakening commercial encryption systems or trying to build in “back doors” that would make it far easier for the agency to crack the communications of America’s adversaries. Tempting as it was to create easy ways to break codes — the reason the N.S.A. was established by Harry S. Truman 62 years ago — the committee concluded that the practice would undercut trust in American software and hardware products. In recent months, Silicon Valley companies have urged the United States to abandon such practices, while Germany and Brazil, among other nations, have said they were considering shunning American-made equipment and software. Their motives were hardly pure: Foreign companies see the N.S.A. disclosures as a way to bar American competitors.Continue reading the main story Continue reading the main story AdvertisementAnother recommendation urged the government to make only the most limited, temporary use of what hackers call “zero days,” the coding flaws in software like Microsoft Windows that can give an attacker access to a computer — and to any business, government agency or network connected to it. The flaws get their name from the fact that, when identified, the computer user has “zero days” to fix them before hackers can exploit the accidental vulnerability.
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  • The N.S.A. made use of four “zero day” vulnerabilities in its attack on Iran’s nuclear enrichment sites. That operation, code-named “Olympic Games,” managed to damage roughly 1,000 Iranian centrifuges, and by some accounts helped drive the country to the negotiating table.Not surprisingly, officials at the N.S.A. and at its military partner, the United States Cyber Command, warned that giving up the capability to exploit undisclosed vulnerabilities would amount to “unilateral disarmament” — a phrase taken from the battles over whether and how far to cut America’s nuclear arsenal.“We don’t eliminate nuclear weapons until the Russians do,” one senior intelligence official said recently. “You are not going to see the Chinese give up on ‘zero days’ just because we do.” Even a senior White House official who was sympathetic to broad reforms after the N.S.A. disclosures said last month, “I can’t imagine the president — any president — entirely giving up a technology that might enable him some day to take a covert action that could avoid a shooting war.”
  • But documents released by Edward J. Snowden, the former N.S.A. contractor, make it clear that two years before Heartbleed became known, the N.S.A. was looking at ways to accomplish exactly what the flaw did by accident. A program code-named Bullrun, apparently named for the site of two Civil War battles just outside Washington, was part of a decade-long effort to crack or circumvent encryption on the web. The documents do not make clear how well it succeeded, but it may well have been more effective than exploiting Heartbleed would be at enabling access to secret data.The government has become one of the biggest developers and purchasers of information identifying “zero days,” officials acknowledge. Those flaws are big business — Microsoft pays up to $150,000 to those who find them and bring them to the company to fix — and other countries are gathering them so avidly that something of a modern-day arms race has broken out. Chief among the nations seeking them are China and Russia, though Iran and North Korea are in the market as well.
  • Paul Merrell on 13 Apr 14
     
    Note that this is only an elastic policy, not law. Also notice that NYT is now reporting as *fact* that the NSA did the cyber attack on the Iranian enrichment centrifuges. By any legal measure, if true that was an act of war, a war of aggression.  So why wasn't the American public informed that we were at war with Iran? 
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