Group items matching

in title, tags, annotations or url

This is classic lawyerly understatement. My hunch is that if you were to visit the legal departments of many internet companies today you would find people changing their underpants at regular intervals. For the big names of the search and social media worlds this is a nightmare scenario. For those of us who take a more detached view of their activities, however, it is an encouraging development. For one thing, it provides yet another confirmation of the sterling service that Snowden has rendered to civil society. His revelations have prompted a wide-ranging reassessment of where our dependence on networking technology has taken us and stimulated some long-overdue thinking about how we might reassert some measure of democratic control over that technology. Snowden has forced us into having conversations that we needed to have. Although his revelations are primarily about government surveillance, they also indirectly highlight the symbiotic relationship between the US National Security Agency and Britain’s GCHQ on the one hand and the giant internet companies on the other. For, in the end, both the intelligence agencies and the tech companies are in the same business, namely surveillance.

And both groups, oddly enough, provide the same kind of justification for what they do: that their surveillance is both necessary (for national security in the case of governments, for economic viability in the case of the companies) and conducted within the law. We need to test both justifications and the great thing about the European court of justice judgment is that it starts us off on that conversation.

“We can’t assume that anything is now safe,” Brian Hengesbaugh, a privacy lawyer with Baker & McKenzie in Chicago who helped to negotiate the original safe harbor agreement. “The ruling is so sweepingly broad that any mechanism used to transfer data from Europe could be under threat.”At issue is the sort of personal data that people create when they post something on Facebook or other social media; when they do web searches on Google; or when they order products or buy movies from Amazon or Apple. Such data is hugely valuable to companies, which use it in a broad range of ways, including tailoring advertisements to individuals and promoting products or services based on users’ online activities.The data-transfer ruling does not apply solely to tech companies. It also affects any organization with international operations, such as when a company has employees in more than one region and needs to transfer payroll information or allow workers to manage their employee benefits online.

But it was unclear how bulletproof those treaties would be under the new ruling, which cannot be appealed and went into effect immediately. Europe’s privacy watchdogs, for example, remain divided over how to police American tech companies.France and Germany, where companies like Facebook and Google have huge numbers of users and have already been subject to other privacy rulings, are among the countries that have sought more aggressive protections for their citizens’ personal data. Britain and Ireland, among others, have been supportive of Safe Harbor, and many large American tech companies have set up overseas headquarters in Ireland.

“For those who are willing to take on big companies, this ruling will have empowered them to act,” said Ot van Daalen, a Dutch privacy lawyer at Project Moore, who has been a vocal advocate for stricter data protection rules. The safe harbor agreement has been in place since 2000, enabling American tech companies to compile data generated by their European clients in web searches, social media posts and other online activities.

The case arose when Maximillian Schrems, a Facebook user, lodged a complaint with the Irish Data Protection Commissioner, arguing that — in the light of the revelations by ex-CIA contractor Edward Snowden of mass surveillance by the US National Security Agency (NSA) — the transfer of data from Facebook’s Irish subsidiary onto the company’s servers in the US does not provide sufficient protection of his personal data. The court ruled that: “the Safe Harbor Decision denies the national supervisory authorities their powers where a person calls into question whether the decision is compatible with the protection of the privacy and of the fundamental rights and freedoms of individuals.”

Hogan also admitted that the PRISM programme of surveillance was wrong by the letter of Irish law, which protects people’s data and the inviolability of their homes.“It is very difficult to see how the mass and undifferentiated accessing by state authorities of personal data generated perhaps especially with the home… could survive constitutional scrutiny,” he said.“The potential for abuse in such cases would be enormous and might even give rise to the possibility that no facet of private or domestic life with the home would be immune from potential state scrutiny.“Such a state of affairs – with its gloomy echoes of the mass state surveillance programmes conducted in totalitarian states such as the German Democratic Republic of Ulbricht and Honecker – would be totally at odds with the basic premises and fundamental values of the Constitution.”

However, he said that Irish law is pre-empted by EU law in this case and the Court of Justice needed to assess whether the interpretation of the Safe Harbour Regime needed to be re-evaluated.Any verdict from the European court will likely apply to all US companies that have participated in PRISM and operate in the region, Schrems said of the ruling.“We did not prepare for a direct reference to the ECJ, but this is the best outcome we could have wished for,” he said. “We will study the judgment in detail and will take the next steps as soon as possible.” ®

The main players in the top-secret negotiations are the United States and all 28 members of the European Union. However, the broad scope of the treaty also includes Australia, Canada, Chile, Colombia, Costa Rica, Hong Kong, Iceland, Israel, Japan, Liechtenstein, Mexico, New Zealand, Norway, Pakistan, Panama, Paraguay, Peru, South Korea, Switzerland, Taiwan and Turkey. Combined they represent almost 70 percent of all trade in services worldwide. An explicit goal of the TiSA negotiations is to overcome the exceptions in GATS that protect certain non-tariff trade barriers, such as data protection. For example, the draft Financial Services Annex of TiSA, published by Wikileaks in June 2014, would allow financial institutions, such as banks, the free transfer of data, including personal data, from one country to another. As Ralf Bendrath, a senior policy advisor to the MEP Jan Philipp Albrecht, writes in State Watch, this would constitute a radical carve-out from current European data protection rules:

The Moody’s downgrade spurred some of Merrill’s partners to ask that contracts be moved to the retail unit, which has a higher credit rating, according to people familiar with the transactions. Transferring derivatives also can help the parent company minimize the collateral it must post on contracts and the potential costs to terminate trades after Moody’s decision, said a person familiar with the matter. Bank of America estimated in an August regulatory filing that a two-level downgrade by all ratings companies would have required that it post $3.3 billion in additional collateral and termination payments, based on over-the-counter derivatives and other trading agreements as of June 30. The figure doesn’t include possible collateral payments due to “variable interest entities,” which the firm is evaluating, it said in the filing.

Derivatives are financial instruments used to hedge risks or for speculation. They’re derived from stocks, bonds, loans, currencies and commodities, or linked to specific events such as changes in the weather or interest rates. Dodd-Frank Rules Keeping such deals separate from FDIC-insured savings has been a cornerstone of U.S. regulation for decades, including last year’s Dodd-Frank overhaul of Wall Street regulation. The legislation gave the FDIC, which liquidates failing banks, expanded powers to dismantle large financial institutions in danger of failing. The agency can borrow from the Treasury Department to finance the biggest lenders’ operations to stem bank runs. It’s required to recoup taxpayer money used during the resolution process through fees on the largest firms.

Bank of America’s holding company -- the parent of both the retail bank and the Merrill Lynch securities unit -- held almost $75 trillion of derivatives at the end of June, according to data compiled by the OCC. About $53 trillion, or 71 percent, were within Bank of America NA, according to the data, which represent the notional values of the trades. That compares with JPMorgan’s deposit-taking entity, JPMorgan Chase Bank NA, which contained 99 percent of the New York-based firm’s $79 trillion of notional derivatives, the OCC data show.

Moving derivatives contracts between units of a bank holding company is limited under Section 23A of the Federal Reserve Act, which is designed to prevent a lender’s affiliates from benefiting from its federal subsidy and to protect the bank from excessive risk originating at the non-bank affiliate, said Saule T. Omarova, a law professor at the University of North Carolina at Chapel Hill School of Law. “Congress doesn’t want a bank’s FDIC insurance and access to the Fed discount window to somehow benefit an affiliate, so they created a firewall,” Omarova said. The discount window has been open to banks as the lender of last resort since 1914. As a general rule, as long as transactions involve high- quality assets and don’t exceed certain quantitative limitations, they should be allowed under the Federal Reserve Act, Omarova said.

In 2009, the Fed granted Section 23A exemptions to the banking arms of Ally Financial Inc., HSBC Holdings Plc, Fifth Third Bancorp, ING Groep NV, General Electric Co., Northern Trust Corp., CIT Group Inc., Morgan Stanley and Goldman Sachs Group Inc., among others, according to letters posted on the Fed’s website. The central bank terminated exemptions last year for retail-banking units of JPMorgan, Citigroup, Barclays Plc, Royal Bank of Scotland Plc and Deutsche Bank AG. The Fed also ended an exemption for Bank of America in March 2010 and in September of that year approved a new one. Section 23A “is among the most important tools that U.S. bank regulators have to protect the safety and soundness of U.S. banks,” Scott Alvarez, the Fed’s general counsel, told Congress in March 2008.

Mrs. Reding — who has irked U.S. authorities in the past by threatening companies like Google for overstepping E.U. privacy standards — suggested Mr. Holder’s responses could shape the outcome of important trans-Atlantic initiatives like trade talks. Europe has been a frequent critic of the United States in recent years for jeopardizing individual liberties by filtering vast volumes of information on European bank transfers and in airline passenger records to fight terror plots. Mrs. Reding’s letter is another sign that the growth of government surveillance that began under the Bush administration after Sept. 11, 2001, and has expanded under the Obama administration, continues to touch raw nerves far beyond the United States.

The revelations have prompted members of the European Parliament, a directly elected body of representatives from across the Union that meets in Brussels and Strasbourg, to demand that data protection be included in upcoming U.S.-European talks on a long sought trade pact. Any “trade pact will have to fully ensure the highest standards of data privacy for all citizens,” and an ongoing reform of Europe’s data protection law “must guarantee these standards for E.U. citizens when using U.S.-based Internet companies,” Hannes Swoboda, an Austrian member of the parliament who is president of the Socialists & Democrats group, said in a statement on Tuesday. “It is no good the E.U. having strict regulation on data protection if those standards are not guaranteed when using U.S.-based Internet companies,” he said.

The talks are expected to be conducted by Mrs. Reding's colleague, Karel De Gucht, the E.U. trade commissioner — but the Parliament would have a final say over any such deal under its right, in force since 2009, to veto treaties with third countries. In the strongest demonstration against U.S. policy, the Parliament in 2010 blocked an agreement allowing U.S. authorities access to European banking data from a cooperative responsible for routing trillions of dollars daily among banks, brokerage houses, stock exchanges and other institutions.

In a thinly veiled warning to Mr. Holder about the trade pact, Ms. Reding said relations between the United States and Europe could be undermined by concerns about privacy, which many in Europe regard as an inviolable right. In her letter, Mrs. Reding said she “is accountable before the European Parliament, which is likely to assess the overall trans-Atlantic relationship also in the light of your responses.” In nine detailed questions, Ms. Reding asked Mr. Holder how much data-sifting the United States is conducting, whether those activities target individuals, and whether the surveillance involves issues beyond national security. Mrs. Reding also pushed Mr. Holder to tell her “what avenues” are available to citizens of countries in the European Union to obtain information about whether their personal information has been examined under the Prism program and other programs, and whether Europeans have similar access to that information as Americans.

For Mrs. Reding, the chance to push back against Washington is a welcome opportunity. Two years ago, she was forced to soften her initial proposals for data privacy rules in order to accommodate U.S. intelligence gathering. That followed intense pressure on the European Commission, the E.U.’s governing body, from the Obama administration.

More importantly however, is what kind of message an US statement like that sends to ISIS, as well as Al Nusra and other terrorist brigades inside Syria, which is basically, “we do not need to worry about US air strikes, only Syrian Army and Russian strikes.” This situation really sums up the utter fraud and contempt of the US deception in Syria, and it’s no surprise that the Russian Foreign Ministry are reticent to extend themselves any more where the US is concerned. Then, in March 2016, when ISIS fled Palmyra, back across the desert towards Deir ez-Zor and Raqqa – the great and powerful US ‘Coalition’ airforce actually helped ISIS in a number of ways, including allowing them free passage once more. In late August, we were told that the Turkish Army, alongside “allied Syrian rebels” (terrorist group Faylaq al-Sham) backed by the US air cover, invaded Syria in order to capture the “ISIS-held” town of Jarabulus, Syria, this supposedly to cut off ISIS’s last open route into Turkey. But what happened to ISIS? The NYT even admitted that, “… it appeared that most of the militants had fled without a fight.” Here, ISIS appears to have been given advanced warning – by either US or Turkish intelligence, as they left the contested town of Jarabulus quietly, but in droves. In reality, Turkey twisted this operation in order to attack and degrade Kurdish militias including the US-backed artificial construct called the Syrian Democratic Forces (SDF), and pro-Kurdish People’s Protection Units (YPG) and Kurdish Democratic Union Party (PYD), the Syrian affiliate of the militant Kurdistan Workers’ Party (PKK) in Iraq and Turkey – all of whom are meant to be fighting ISIS. Instead, they are now busy dodging Turkish artillery rounds. Confusing, yes, but true nonetheless.

It’s also common knowledge now, that top of the line US weaponry is being used by ISIS, both in Iraq, in Afghanistan and in Syria as well. In fact, if not for US weapons and supplies (along with US air intervention, or noninterventions), ISIS would have struggled to maintain many of the strategic positions it enjoys today. For the last 3 years, US officials have been dodging this issue, and when they do admit this is true, their patronizing party line is that, “this must be a mistake, if they do have US weapons, we didn’t mean it.” As if the world was born yesterday. Perhaps the most flagrant violation by the US-led forces in aiding and abetting ISIS took place on Sept 17, 2016, when the US-led Coalition bombed Syrian Army positions outside of Deir ez-Zor near al-Tharda Mountain, killing some 80 soldiers and injuring 100 more.  As if by design, an ISIS offensive began immediately following the US massacre of Syrian soldiers. Clearly, this bold move by the Pentagon paved the way for a major ISIS advance. To any normal observer, the US attack was a belligerent act of war that effective destroyed an already fragile bilateral ceasefire agreement, and yet the US response was to somehow blame Russia for calling an emergency UNSC meeting to discuss the incident. Judging by this response, it’s pretty clear that US wants to see the Syrian Conflict carry on for a while, and it will need groups like ISIS to make that happen.

The other problem with Washington’s hollow righteousness in the Middle East is that there are key members of the US-led “Coalition” who are financing ISIS, Al Nusra Front, Nour al Din Zinki, and Arar al Sham (all ‘moderate’ terrorists we’re told) militants in Syria, Iraq and beyond. This fact was recently admitted by former US Secretary of State and Democratic candidate Hillary Clinton, as revealed in this week’s batch of Wikileaks emails. Clinton writes: “While this military/para-military operation is moving forward, we need to use our diplomatic and more traditional intelligence assets to bring pressure on the governments of Qatar and Saudi Arabia, which are providing clandestine financial and logistic support to ISIL and other radical Sunni groups in the region.”  Add to that the multiple exposures over the last 3 years of the US CIA illegally trafficking lethal arms to Al Nusra and other terrorists through covert operations like Timber Sycamore. Still, US and NATO member state officials and their media gatekeepers continue to deny it and play dumb, rather than come clean that the United States and its ‘partners’ in the region are helping, not hindering ISIS terrorism. Some might ask: why would they do a thing like that? By now, the answer should be simple, but threefold:

ISIS is still one of Washington’s best hope for continuing instability, and “regime change” in Syria. The existence of ISIS in Syria and Iraq guarantees that Washington can invite itself to the party.  The ISIS brand has been a boon for the global military industrial complex and all of its bottom-feeder businesses and ‘security’ contract firms. What’s so comical yet even more tragic, is how prominent the topic of “ISIS” factors into all of the vapid ‘national security’ debates and media panels in this year’s US Presidential election, and in the dumbed-down ‘coverage’ of the delusional US mainstream media, led by Pentagon surrogate CNN, and hopeless FOX News. Judging by their prosaic ‘coverage’, neither the networks, nor Hillary Clinton or Donald Trump have the slightest clue of what the reality on the ground is. Instead we here, “My ISIS plan is better than yours!” The US political conversation has gone beyond ridiculousness. The corps of US military and CIA media spokesman aren’t much better. The sad part is some of them do know what is really happening, but would rather lie to the American public. With so much double dealing, who can you trust? Certainly not anyone in Washington. More on the White House’s latest dangerous proposition….