Supporters Say All The Wrong Things to Try and Pass CISPA

By Mark M. Jaycox | EFF | April 8, 2013

Ever since reintroducing CISPA, the so-called “cybersecurity bill,” its supporters promote the bill with craftily worded or just plain misleading claims. Such claims have been lobbed over and over again in op-eds, at hearings, and in press materials.  One “fact sheet” by Rep. Rogers and Ruppersberger titled “Myth v. Fact” is so dubious that we felt we had to comment.

Here are some of the statements supporters of CISPA are pushing and why they’re false:

Supporters of CISPA say, “There are no broad definitions”

Supporters are keen to note that the bill doesn’t have broad definitions. In the “Myth v. Fact” sheet, the authors of CISPA specifically point to the definition of “cyber threat information.” Cyber threat information is information about an online threat that companies can share with each other and with any government agency—including the NSA. In hearings, experts have said that they don’t need to share personally identifiable information to combat threats. But the definition in the bill allows for any information related to a perceived threat or vulnerability—including sensitive personal information—to be shared. Cyber threat information should be a narrowly defined term.

Another example of a broad (or missing) definition is the term “cybersecurity system.”  Companies can use a “cybersecurity system” to “identify or obtain” information about a potential threat (“cyber threat information”). The definition is critical to understanding the bill, but is circular.  CISPA defines a “cybersecurity system” as “a system designed or employed” for a cybersecurity purpose (i.e. to protect against vulnerabilities or threats). The language is not limited to network security software or intrusion detection systems, and is so broadly written that one wonders if a “system” involving a tangible item—e.g., locks on doors—could be considered a “cybersecurity system.”  In practical terms, it’s unclear what is exactly covered by such a “system,” because the word “system” is never defined.

The best example of a dangerous undefined term in the bill is found within the overly broad legal immunity for companies. The clause grants a company who acts in “good faith” immunity for “any decisions made” based off of the information it learns from the government or other companies. Does this cover decisions to violate other laws, like computer crime laws? Or privacy laws intended to protect users? Companies should not be given carte blanche immunity to violate long-standing computer crime and privacy law. And it is notoriously hard to prove that a company acted in bad faith, in the few circumstances where you would actually find out your privacy had been violated.

Supporters of CISPA say, “The bill is not a government surveillance program”

Supporters are adamant CISPA doesn’t create a wide-ranging “government surveillance program.” It’s true the bill doesn’t create such a surveillance program like the one described in the ongoing warrantless wiretapping lawsuits.

But the trick here is what is meant by “government surveillance.”  We think that if the bill aims at having our information flow to the government, it’s tantamount to government surveillance, whether or not the government initially collected the information.

The bill creates a loophole in the privacy laws that prevented companies from disclosing your information to the government and gives companies broad legal immunity for sharing information with the government. As a result, CISPA makes it more likely that companies will surveil their own users and then disclose that information.  The sly wording dodges the key issue: that CISPA encourages companies to conduct surveillance on their networks and hand “cyber threat information” to the government. In short, the bill encourages a de facto private spying regime, with the same end result.

Supporters of CISPA say, “The government can’t read your private email”

Reps. Rogers and Ruppersberger are adamant CISPA doesn’t grant the government access to read private emails. The claim was recently repeated by James Lewis, a fellow at the Center for Strategic and International Studies. But the broad definitions do allow for personal information to be gathered by companies and then sent to the government without any mandatory minimization of personal information. And under the vague definitions an aggressive company could claim that private messages are related to the threat, obtain them, and share then with the government.  If Reps. Rogers and Ruppersberger did want content of emails disclosed under CISPA, it would be easy enough to exclude them explicitly.

Supporters say, “CISPA follows advice from privacy and civil liberty advocates”

In his introduction of the bill, Rep. Rogers assured the audience that he has listened to the privacy and civil liberties community.

This year’s CISPA does contain some language added after privacy and civil liberties advocates complained in 2012.  But those changes didn’t address some big issues that were raised last year, and this year’s privacy and civil liberties complaints about CISPA remain unaddressed.

Let’s Stop CISPA

Reps. Rogers and Ruppersberger are on a strong publicity offensive to make sure the bill passes. The American public deserves full explanations and clear meanings about what CISPA can do and the extent to which it can do it. The public doesn’t need carefully worded messaging materials that obfuscate and mislead a discussion on CISPA. The issues at stake—like the broad legal immunity and new spying powers that allow for companies to collect private, and sensitive, user information—are too serious.

To stop this type of misinformation—and to stop CISPA—we urge you to tell your members of Congress to stand up for privacy.

Related articles

• CISPA, the Privacy-Invading Cybersecurity Spying Bill, is Back in Congress (eff.org)
• The CISPA Government Access Loophole (eff.org)

The Ugly Truth Behind Obama’s Cyber-War

By ALFREDO LOPEZ | CounterPunch | March 22, 2013

Last week, a top U.S. government intelligence official named James Clapper warned Congress that the threat of somebody using the Internet to attack the United States is “even more pressing than an attack by global terrorist networks”. At about the same time, Keith Alexander, the head of the National Security Agency, announced that the government is forming 13 teams to conduct an international “cyber offensive” to pre-empt or answer “Internet attacks” on this country.

This, as they say, means war.

Clapper issued his melodramatic assessment during an appearance before the Senate Intelligence Committee. As Director of National Intelligence, he testified jointly with the heads of the CIA and FBI as part of their annual “Threat To the Nation” assessment report.

While undoubtedly important, these “threat assessment” appearances are usually a substitute for sleeping pills. The panel of Intelligence honchos parades out a list of “threats” ranked by a combination of potential harm and probability of attack. Since they began giving this report (shortly after 9/11), “Islamic fundamentalist terrorist networks” have consistently ranked number one. Hence the sleep-provoking predictability of it all.

But Clapper’s ranking of “cyber terrorism” as the number one threat would wake up Rip Van Winkle.

“Attacks, which might involve cyber and financial weapons, can be deniable and unattributable,” he intoned. “Destruction can be invisible, latent and progressive.” After probably provoking a skipped heartbeat in a Senator or two, he added that he didn’t think any major attack of this type was imminent or even feasible at this point.

So why use such “end of the world” rhetoric to make an unfeasible threat number one?

The answer perhaps was to be found in the House of Representatives where, on that same day, Gen. Alexander was testifying before the Armed Services Committee about, you got it, “cyber-war”.

Besides being head of the NSA, Alexander directs the United States Cyber Command. I’m not joking. Since 2010, the United States military has had a “Cyber Command”, comprised of a large network of “teams” some of whose purpose is to plan and implement what he called “an offensive strategy”.

Up to now, the Obama Administration’s stated policy has been to prioritize protection and defense of its own Internet and data systems and, unsurprisingly, those of U.S. corporations. Now we realize that the President has been cooking another dish on the back burner. When these military leaders talk about “offensive strategy”, they mean war and in warfare, the rules change and warriors see democracy as a stumbling block at least and a potential threat at worst.

Is there a “cyber threat”? Sure, just like there’s a “personal security threat” at your front door. You live among other humans and a few of them sometimes rob people. The Internet is a neighborhood of two billion people in constant communication. To do what it was developed to do, it has to be an open, world-wide communications system and people can exploit that by harming your website or stealing your data if you don’t protect these things adequately. Developing protections is part of what technologists in every setting, including government services, do every day and they do it well, minimizing the incidence of an on-line hack.

That’s contemporary society. You lock the door to your house, turn on your car alarm on and protect your computer’s data. Most of the time it’s unnecessary but you do it for those rare occasions that it might be called for.

You do not, however, break into a thief’s home, kill him or her and wipe out everyone in the house. That’s what President Obama is proposing. No longer is this Administration interested in just “protection of data”; it now plans to pre-emptively attack data operations and Internet systems in other countries. The non-euphemistic term for this kind of “offensive strategy” is hacking and hacking takes two forms: data theft and disruption of service. In other words, the government plans to do what it throws people in jail for doing.

Clearly, this isn’t only about data theft or service disruption. It’s entwined with the political conflicts Washington has with other countries like China and Iran. The Internet is now another battlefield and this offensive strategy gives our government another weapon in its ceaseless war on the world.

While this weapon might sound benign, almost game-like, compared to other military adventures, it is actually a vicious and punishing strategy promising a festival of unavoidable collateral damage.

A “cyber offensive” can target just about anything in a country (like the computers running an Iranian power plant) and, depending on how the Internet systems are inter-connected, almost automatically cut service to people, schools, hospitals, security services and governments themselves. This is the digital version of nuclear warfare, horrific for its impact and its fundamental immorality.

When the announcements were made, the mainstream media flew into a frenzy of evaluation and analysis. Is this cyber threat real, commentators asked? Most of them found that, at this point, it isn’t. But that’s not the point and it isn’t the real threat.

The carefully planned and coordinated Clapper/Alexander testimony provides a pretext for the array of repressive Internet-governing laws, strategies and programs the Administration already has in place. Their purpose is a ratcheting control of the Internet by the government, a redefinition of our constitutional rights and the eviscerating of our, and the world’s, freedoms. Now, with this “cyber war” scenario, these measures can be more easily defended and made permanent.

We can group those laws and programs into three categories.

 ”Extreme Data Collection”

The Obama Administration is building a huge data center in Bluffdale, Utah whose role is to capture and store all data everyone in this country (and most of the world) transmits. You read that right.

“Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication,” wrote James Bamford in Wired Magazine, “including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails — parking receipts, travel itineraries, bookstore purchases, and other digital ‘pocket litter.’”

While having your entire on-line life tracked and stored in Utah is pretty creepy, the more pressing issue is how government officials plan to use this data and how they are collecting it. To mine its value, they need to order it to make searches, filtering and lists possible. You need a strategy and while Obama officials have been pretty open about what they’re building, they are closed-mouth about what they intend to do with it.

We know they are working hard on developing code-breaking technology which would allow them to read data which is super-encrypted, the last wall of privacy and protection we have. We also know that, to get this data, they have a remarkable system of surveillance that includes direct capture (capturing data from your on-line sessions), satellite surveillance and the tapping (through easily available data captures) of major information gatherers like Google and Yahoo. The fact that they plan to open this center in September, 2013 means that the intense surveillance and data gathering is in place. You are now never alone.

This is the kind of information on “the enemy” they need in a cyber-war but this information is about us and so the question pertains: who is the enemy here?

“Internet Usage Restriction”

If you’re conducting a war, you can’t have people running around the battlefield trading information and distributing it because, after all, you need secrecy. But collecting and distributing information is entirely what the Internet is about.

No reasonable person expects the entire shut-down of the Internet but the curtailment of on-line expression is now happening and getting worse, re-defining the meaning of free speech and making it an embattled concept.

Under the law, for instance, any corporation or individual can claim you are violating their copyright and demand you remove offending material from a website. You can challenge and litigate that but it doesn’t really matter because, under the Digital Millenium Copyright Act your web hosting service faces huge penalties if they keep the site on-line and the copyright violation is proven. So, to avoid the legal fees and the risk, they’ll just wipe your website. This happens all the time.

If the hosting service stands strong — as some progressive providers do — the people claiming the violation will just go “upstream” to the company that provides your web hosting service’s connection to the Internet and, to avoid legal problems, that “upstream provider” will just unplug the server. Servers host many websites, sometimes in the hundreds, and other services and so not only do you lose your site but everyone else on the server has theirs taken off-line. And this happens without even going in front of a judge.

Sure, there is still robustly exercised “freedom of speech” on the Internet. But the laws are in place to curtail it and, if the government wants, it can (and will) curtail. It’s a modern-day version of benevolent dictatorship which can, as history demonstrates, become pretty darn malevolent pretty fast.

“Selective Repression”

There are hundreds of criminal cases against Internet activists world-wide right now and scores in the United States. The ones most of us are most familiar with, those involving Aaron Swartz and Bradley Manning, are only the tip of the frightening iceberg.

A day after the testimony before Congress, for example, federal authorities announced the case of a techie named Matthew Keys . Keys, who worked for a TV station in Los Angeles owned by the Tribune Company, is accused of leaking a username and password to an activist from the well-known hacker organization Anonymous. Authorities say the Anonymous activist used that user/password combo to satirically alter a headline on the website of the Tribune-owned Los Angeles Times.

Keys is now charged with conspiracy to transmit information to damage a protected computer; transmitting information to damage a protected computer and attempted transmission of information to damage a protected computer. Each count carries a 10 year jail sentence, three years of supervised release and a fine of $250,000. For giving someone who changed a headline a username and password!

Last year, we at May First/People Link were raided by the FBI which literally stole a server from one of our server installations in New York City. They were investigating terroristic emails from some lunatic to people at the University of Pittsburgh and the dozens of servers this bozo used included one of ours. We have some anonymous servers which means there are no records of who used them, no traces… no information about the person sending the email; it’s to protect whistle-blowers and others needing total anonymity.

The FBI knew this but they stole the server anyway and then, about a week later, put it back. They never informed us of any of this. We found out because one of our techies went into the server installation and found one of the servers gone and installed a hidden camera which caught the agents when they returned the machine.

If all these developments seem disturbing to you, that’s justified. These repressive and intrusive measures target the very essence and purpose of the Internet. Created as a way for people to communicate with each other world-wide, this marvel of human interaction is now being turned into a field across which countries shoot programming bombs at each other while repressing and even punishing ordinary people’s communication: dividing us, perpetuating the feeling of loneliness that’s a constant in today’s societies and crippling the struggles for change that combat the division and loneliness and depend on the Internet to do it.

The Internet’s true purpose is to bring the world’s people closer to each other. The Obama Administration is doing just the opposite. It would advisable for those of us who have consistently opposed and fought against wars of all kinds to view this “cyber war” as an equally dangerous and destructive threat.

ALFREDO LOPEZ is the newest member of the TCBH! collective. A long-time political activist and radical journalist, and founding member of the progressive web-hosting media service MayFirst/PeopleLink, he lives in Brooklyn, NY

Related articles

• NSA chief says America is ready to cyberattack
• Obama’s cybersecurity plan: Monitor more of the Internet

Obama’s cybersecurity plan: Monitor more of the Internet

RT | March 21, 2013

President Barack Obama’s plan to protect the United States’ critical infrastructure against cyberattacks is accelerating quickly as more private sector businesses are signing on to share information with the federal government.

When Pres. Obama rolled out his ‘Improving Critical Infrastructure Cybersecurity’ executive order last month, he asked that classified cyber threat and technical information collected by the government be given to eligible commercial service providers that offer security services to businesses linked to the country’s critical infrastructure.

But in the few short weeks since the order was announced during the president’s annual State of the Union address, warnings of an imminent attack have only increased. CIA Director John Brennan told a panel last week that “the seriousness and the diversity of the threats that this country faces in the cyber domain are increasing on a daily basis,” and US national intelligence chief James Clapper claims there is “a remote chance of a major cyberattack against US critical infrastructure systems during the next two years that would result in long-term, wide-scale disruption of services, such as a regional power outage.”

Upon announcement of the executive order, a handful of defense contractors and telecom companies — namely Lockheed Martin, Raytheon, AT&T and CenturyLink — confirmed that they’d be voluntarily sharing information back and forth with the country’s top intelligence agencies in order to closely monitor any threats that could collapse the country’s critical infrastructure, a vaguely defined category assumed to include the nation’s power systems, telecommunication wires and other major utilities.

“The demand is there. I think the priority is there, and the threat is serious,” Steve Hawkins, vice president of information and security solutions for Raytheon, told Bloomberg earlier in the month.

As warnings of a cyberattack increase, however, the latest news out of Washington is that even more private sector companies with ties to critical infrastructure will be participating in the program. In a report published on Thursday by Reuters, the newswire notes that the framework first outlined during last month’s executive order is already quickly shaping up, with tasks being delegated throughout the US so that threat information can be adequately passed to applicable persons.

According to Reuters’ latest write-up, the executive order will require the National Security Agency to collect classified intelligence on serious hacking attempts aimed at American businesses, which will then be handed over to the Department of Homeland Security to pass on to the telecom and cybersecurity providers — Raytheon, AT&T and others — where employees holding security clearances will scan incoming emails and routine Web traffic for threats to the infrastructure.

But while the government has long asked the entities to open up lines of communication with the NSA and other offices, smaller private-sector businesses could soon be signing on. According to Joseph Menn and Deborah Charles of Reuters, the government is already expanding their cybersecurity program so that even more Web traffic heading into and out of defense contractors will be scanned to include far more of the country’s private, civilian-run infrastructure.

“As a result, more private sector employees than ever before, including those at big banks, utilities and key transportation companies, will have their emails and Web surfing scanned as a precaution against cyberattacks,” they write.

Once those participating companies sign on to get data from Homeland Security, the DHS will send them computer threat “signatures” obtained by the NSA that will offer a list of red flags to be watching out for as huge amounts of Web data is scanned second-by-second and bit-by-bit.

“The companies can use this intelligence to strengthen cybersecurity services they sell to businesses that maintain critical infrastructure,” Bloomberg News reports.

That intelligence, including but not limited to cyber timestamps, indicators and the critical sector potentially, can then be monitored to search for malicious code and viruses sent through America’s Internet with the intent of causing harm. In exchange, the critical infrastructure companies that could be targeted by cyberterrorists will pay the contractors and telecoms for their help.

The threat of a cyberwar crippling America’s power grid and communication systems has been ramped-up in recent weeks, particularly in light of a highly-touted report that linked Chinese state actors with repeated attempts to sabotage US businesses and conduct espionage to steal secrets.

“Increasingly, US businesses are speaking out about their serious concerns about sophisticated, targeted theft of confidential business information and proprietary technologies through cyber intrusions emanating from China on an unprecedented scale,” National Security Adviser Thomas Donilon told the Asia Society in New York last week. “The international community cannot afford to tolerate such activity from any country.”

Under CISPA, Who Can Get Your Data?

By Rainey Reitman | EFF | March 20, 2013

Under CISPA, companies can collect your information in order to “protect the rights and property” of the company, and then share that information with third parties, including the government, so long as it is for “cybersecurity purposes.” Companies aren’t required to strip out personally identifiable information from the data they give to the government, and the government can then use the information for purposes wholly unrelated to cybersecurity – such as “national security,” a term the bill leaves undefined.

One question we sometimes get is: Under CISPA, which government agencies can receive this data? For example, could the FBI, NSA, or Immigration and Customs Enforcement receive data if CISPA were to pass?

The answer is yes. Any government agency could receive data from companies if this were to pass, meaning identifiable data could be flowing to the Bureau of Alcohol, Tobacco, Firearms and Explosives, the National Security Agency, or even the Food and Drug Administration.

Below is a list of agencies that could get your data under CISPA (Thanks, Wikipedia!). Note that this is just agencies we’ve identified; it’s possible there are even more we haven’t listed here.

Find this offensive and deeply concerning? Email Congress today to oppose CISPA.

Under CISPA, which government agencies can get your data?

Executive Office of the President

Agencies within the Executive Office of the President:

Council of Economic Advisers
Council on Environmental Quality
Domestic Policy Council
National Economic Council
National Security Council
Office of Administration
Office of Faith-Based and Neighborhood Partnerships
Office of Management and Budget
Office of National AIDS Policy
Office of National Drug Control Policy
Office of Intergovernmental Affairs and Public Engagement
Office of Science and Technology Policy
Office of the President
Office of the First Lady
Office of the First Children
Office of the Vice President
Office of the Second Lady
Office of the Second Children
President’s Economic Recovery Advisory Board
President’s Intelligence Oversight Board
President’s Intelligence Advisory Board
United States Trade Representative
White House Office
White House Military Office

United States Department of Agriculture

Agencies within the Department of Agriculture:

Agricultural Marketing Service
Agricultural Research Service
Animal and Plant Health Inspection Service
Center for Nutrition Policy and Promotion
Economic Research Service
Farm Service Agency
Commodity Credit Corporation
Food and Nutrition Service
Food Safety and Inspection Service
Foreign Agricultural Service
Forest Service
Grain Inspection, Packers and Stockyards Administration
Marketing and Regulatory Programs
National Agricultural Statistics Service
National Institute of Food and Agriculture
4-H
Natural Resources Conservation Service
Risk Management Agency
Federal Crop Insurance Corporation
Rural Business and Cooperative Programs
Office of Rural Development
Research, Education and Economics
Rural Housing Service
Rural Utilities Service

United States Department of Commerce

Agencies within the Department of Commerce:

Census Bureau
Bureau of Economic Analysis
Bureau of Industry and Security
Economic Development Administration
Economics and Statistics Administration
Export Enforcement
Import Administration
International Trade Administration
Office of Travel and Tourism Industries
Invest in America
Manufacturing and Services
Marine and Aviation Operations
Market Access and Compliance
Minority Business Development Agency
National Oceanic and Atmospheric Administration
NOAA Commissioned Corps
National Environmental Satellite, Data, and Information Service
National Marine Fisheries Service
National Oceanic Service
National Weather Service
National Telecommunications and Information Administration
Patent and Trademark Office
National Institute of Standards and Technology
National Technical Information Service
Trade Promotion and the U.S. And Foreign Commercial Service

United States Department of Defense

Agencies within the Department of Defense:

Department of the Army
United States Army
Army Intelligence and Security Command
Army Corps of Engineers
Department of the Navy
United States Navy
Office of Naval Intelligence
U.S. Naval Academy
Marine Corps
Marine Corps Intelligence Activity
Department of the Air Force
United States Air Force
Civil Air Patrol
Air Force Intelligence, Surveillance and Reconnaissance Agency
Joint Chiefs of Staff
J-2 Intelligence
National Guard Bureau
Natural Disaster and Disaster Help Program
J-2 Intelligence Directorate
Air National Guard
Army National Guard
America Citizen Militia
America Citizen Militia Intelligence
Defense Advanced Research Projects Agency
Defense Commissary Agency
Defense Contract Audit Agency
Defense Contract Management Agency
Defense Finance and Accounting Service
Defense Information Systems Agency
Defense Intelligence Agency
Defense Logistics Agency
Defense Security Cooperation Agency
Defense Security Service
Defense Technical Information Center
Defense Threat Reduction Agency
Missile Defense Agency
National Security Agency
Central Security Service
National Reconnaissance Office
National Geospatial-Intelligence Agency
Naval Criminal Investigative Service
Pentagon Force Protection Agency
United States Pentagon Police
American Forces Information Service
Defense Prisoner of War/Missing Personnel Office
Department of Defense Education Activity
Department of Defense Dependents Schools
Defense Human Resources Activity
Office of Economic Adjustment
TRICARE Management Activity
Washington Headquarters Services
West Point Military Academy

United States Department of Education

Agencies within the Department of Education:

Federal Student Aid
Institute of Education Sciences
National Center for Education Statistics
National Center for Education Evaluation and Regional Assistance
Education Resources Information Center
National Center for Education Research
National Center for Special Education Research
National Assessment Governing Board
National Assessment of Educational Progress
Office for Civil Rights
Office of Elementary and Secondary Education
Office of Safe and Healthy Students
Office of Postsecondary Education
Office of Special Education and Rehabilitative Services
National Institute on Disability and Rehabilitation Research
Office of Special Education Programs
Rehabilitation Services Administration
Special institutions
American Printing House for the Blind
National Technical Institute for the Deaf
Gallaudet University
Office of Vocational and Adult Education

United States Department of Energy

List of agencies within the Department of Energy:

Energy Information Administration
Federal Energy Regulatory Commission
National Laboratories & Technology Centers
University Corporation for Atmospheric Research
National Nuclear Security Administration
Power Marketing Administrations:
Bonneville Power Administration
Southeastern Power Administration
Southwestern Power Administration
Western Area Power Administration

United States Department of Health and Human Services

Agencies within the Department of Health and Human Services:

Administration on Aging
Administration for Children and Families
Administration for Children, Youth and Families
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
National Institute for Occupational Safety and Health
Epidemic Intelligence Service
National Center for Health Statistics
Centers for Medicare and Medicaid Services
Food and Drug Administration
Reagan-Udall Foundation
Health Resources and Services Administration
Patient Affordable Healthcare Care Act Program {to be implemented fully in 2014}
Independent Payment Advisory Board
Indian Health Service
National Institutes of Health
National Health Intelligence Service
Public Health Service
Federal Occupational Health
Office of the Surgeon General
United States Public Health Service Commissioned Corps
Substance Abuse and Mental Health Services Administration

United States Department of Homeland Security

Agencies

Federal Emergency Management Agency
FEMA Corps
U.S. Fire Administration
National Flood Insurance Program
Federal Law Enforcement Training Center
Transportation Security Administration
United States Citizenship and Immigration Services
United States Coast Guard (Transfers to Department of Defense during declared war or national emergency)
Coast Guard Intelligence
National Ice Center
United States Ice Patrol
United States Customs and Border Protection
Office of Air and Marine
Office of Border Patrol
U.S. Border Patrol
Border Patrol Intelligence
Office of Field Operations
United States Immigration and Customs Enforcement
United States Secret Service
Secret Service Intelligence Service

Offices

Domestic Nuclear Detection Office
Office of Health Affairs
Office of Component Services
Office of International Affairs and Global Health Security
Office of Medical Readiness
Office of Weapons of Mass Destruction and Biodefense
Office of Intelligence and Analysis
Office of Operations Coordination
Office of Policy
Homeland Security Advisory Council
Office of International Affairs
Office of Immigration Statistics
Office of Policy Development
Office for State and Local Law Enforcement
Office of Strategic Plans
Private Sector Office

Management

Directorate for Management

National Protection and Programs

National Protection and Programs Directorate
Federal Protective Service
Office of Cybersecurity and Communications
National Communications System
National Cyber Security Division
United States Computer Emergency Readiness Team
Office of Emergency Communications
Office of Infrastructure Protection
Office of Risk Management and Analysis
United States Visitor and Immigrant Status Indicator Technology (US-VISIT)

Science and Technology

Science and Technology Directorate
Environmental Measurements Laboratory

Portfolios

Innovation/Homeland Security Advanced Research Projects Agency
Office of Research
Office of National Laboratories
Office of University Programs
Program Executive Office, Counter Improvised Explosive Device
Office of Transition
Commercialization Office
Long Range Broad Agency Announcement Office
Product Transition Office
Safety Act Office
Technology Transfer Office

Divisions

Border and Maritime Security Division
Chemical and Biological Division
Command, Control and Interoperability Division
Explosives Division
Human Factors Division
Infrastructure/Geophysical Division

Offices and Institutes

Business Operations Division
Executive Secretariat Office
Human Capital Office
Key Security Office
Office of the Chief Administrative Officer
Office of the Chief Information Officer
Planning and Management
Corporate Communications Division
Interagency and First Responders Programs Division
International Cooperative Programs Office
Operations Analysis Division
Homeland Security Studies and Analysis Institute
Homeland Security Systems Engineering and Development Institute
Strategy, Policy and Budget Division
Special Programs Division
Test & Evaluation and Standards Division

United States Department of Housing and Urban Development

Agencies

Federal Housing Administration
Federal Housing Finance Agency

Offices

Center for Faith-Based and Neighborhood Partnerships (HUD)
Departmental Enforcement Center
Office of Community Planning and Development
Office of Congressional and Intergovernmental Relations
Office of Equal Employment Opportunity
Office of Fair Housing and Equal Opportunity
Office of Field Policy and Management
Office of the General Counsel
Office of Healthy Homes and Lead Hazard Control
Office of Hearings and Appeals
Office of Labor Relations
Office of Policy Development and Research
Office of Public Affairs
Office of Public and Indian Housing
Office of Small and Disadvantaged Business Utilization
Office of Sustainable Housing and Communities

Corporation

Government National Mortgage Association (Ginnie Mae)

United States Department of the Interior

Agencies:

Bureau of Indian Affairs
Bureau of Land Management
Bureau of Reclamation
Fish and Wildlife Service
Bureau of Ocean Energy Management (formerly Minerals Management Service)
Bureau of Safety and Environmental Enforcement (formerly Minerals Management Service)
National Park Service
Office of Insular Affairs
Office of Surface Mining
National Mine Map Repository
United States Geological Survey

United States Department of Justice

Agencies:

Antitrust Division
Asset Forfeiture Program
Bureau of Alcohol, Tobacco, Firearms and Explosives
Civil Division
Civil Rights Division
Community Oriented Policing Services
Community Relations Service
Criminal Division
Diversion Control Program
Drug Enforcement Administration
Environment and Natural Resources Division
Executive Office for Immigration Review
Executive Office for Organized Crime Drug Enforcement Task Forces
Executive Office for United States Attorneys
Executive Office for United States Trustees
Federal Bureau of Investigation
Federal Bureau of Prisons
UNICOR
Foreign Claims Settlement Commission
INTERPOL – United States National Central Bureau
Justice Management Division
National Crime Information Center
National Drug Intelligence Center
National Institute of Corrections
National Security Division
Office of the Associate Attorney General
Office of the Attorney General
Office of Attorney Recruitment and Management
Office of the Chief Information Officer
Office of the Deputy Attorney General
Office of Dispute Resolution
Office of the Federal Detention Trustee
Office of Information Policy
Office of Intergovernmental and Public Liaison
Office of Intelligence and Analysis
Office of Justice Programs
Bureau of Justice Assistance
Bureau of Justice Statistics
Community Capacity Development Office
National Criminal Justice Reference Service
National Institute of Justice
Office of Juvenile Justice and Delinquency Prevention
Office for Victims of Crime
Office of Legal Counsel
Office of Legal Policy
Office of Legislative Affairs
Office of the Pardon Attorney
Office of Privacy and Civil Liberties
Office of Professional Responsibility
Office of Public Affairs
Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking
Office of the Solicitor General
Office of Special Counsel
Office of Tribal Justice
Office on Violence Against Women
Professional Responsibility Advisory Office
Tax Division
United States Attorneys
United States Marshals
United States Parole Commission
United States Trustee Program

United States Department of Labor

Agencies and Bureaus

Bureau of International Labor Affairs
Bureau of Labor Statistics
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Related articles

• 34 Civil Liberties Groups Speak Out Against CISPA in Lead Up to Hearings (eff.org)
• Firm firewall: Reddit, Craigslist head anti-CISPA online protest (rt.com)

Supreme Court Dismisses Challenge to FISA Amendments Act; EFF’s Lawsuit Over NSA Warrantless Wiretapping Remains

By Cindy Cohn and Trevor Timm | EFF | February 27, 2013

Yesterday, the Supreme Court sadly dismissed the ACLU’s case, Clapper v. Amnesty International, which challenged the FISA Amendments Act (FAA)—the unconstitutional law that allows the government to wiretap Americans communcating with people overseas. Under the FAA, the government can conduct this surveillance without naming individuals and without a traditional probable cause warrant, as the Fourth Amendment requires.

The court didn’t address the constitutionality of the FAA itself, but instead ruled that the plaintiffs—a group of lawyers, journalists, and human rights advocates who regularly communicate with likely “targets” of FAA wiretapping—couldn’t prove the surveillance was “certainly impending,” so therefore didn’t have the “standing” necessary to sue. In other words, since the Americans did not have definitive proof that they were being surveilled under the FAA—a fact the government nearly always keeps secret—they cannot challenge the constitutionality of the statute.

EFF’s Warrantless Wiretapping Case, Jewel v. NSA, Is Not Affected by Clapper

It’s shameful that the courts again have cut off another avenue for accountability regarding the NSA’s warrantless and unconstitutional surveillance activities. But as disappointing as the Clapper decision is, the good news is the decision likely won’t adversely affect our Jewel v. NSA lawsuit, which we argued in district court in December of 2012. Indeed, the Clapper decision makes the Jewel case one of the last remaining hopes for a court ruling on the legality of the warrantless surveillance of Americans, now conducted for over a decade.

The Ninth Circuit has already ruled that the Jewel plaintiffs have standing under settled law. The court’s decision is based on solid ground because we have presented the court with evidence that dragnet warrantless surveillance has already occurred, through testimony and documents from AT&T and NSA whistleblowers. In fact, the court specifically differentiated the two cases in its Jewel opinion: “Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications.”

Clapper v. Amnesty’s Catch-22

Nonetheless, the Supreme Court’s requirement in Clapper that a future harm must be “certainly impending” to allow a case to go forward is very troubling, especially in the context of cases involving secret surveillance.

As Justice Stephen Breyer’s dissent points out, future conduct can never be predict anything with 100% certainty, and if certainty was a requirement for standing, then virtually no cases would ever reach conclusion. Justice Breyer runs through dozens of cases where standing has been found for plaintiffs in situations where plaintiffs had a reasonable fear of harm, and in many of those cases, the plaintiffs were much less certain than the lawyers, human rights workers and journalist in Clapper.

Breyer summed absurdity of the “certainly impending” standard by saying, “One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical).”

This standard is especially problematic when the harm is illegal surveillance conducted via secret government programs.  Unlike physical searches of the home, communications surveillance is by its nature hidden from the people affected, and national security surveillance is rarely made public or used in domestic criminal prosecutions. Thus, under the Supreme Court’s rule, regardless of whether its surveillance was legal or constitutional, the government can deny standing to a victim of illegal surveillance just by never revealing its illegal actions to the person affected. Essentially, one can’t challenge the government’s surveillance unless the government agrees.

Indeed, in arguing that its ruling does not mean that government surveillance under the FAA can never be reviewed by the courts, the Court could only point to situations in which the government intentionally revealed its surveillance.1

Allowing the Executive broad unfettered powers to “turn the Constitution on and off at will,” is exactly what the Supreme Court refused to do in Boumediene v. Bush, but what it appears to have allowed here.

It’s not even clear that the majority even understands the real scope of the FAA. In the opinion’s first sentence, Justice Alito refers to “individuals” that can be warrantlessly surveilled, but as we’ve explained many times, and the dissent notes, one of the most odious parts of the law is that it allows the government to get one court order for groups or categories of people—potentially thousands of people can be affected at a time.

The Shrinking Ranks of Warrantless Wiretapping Cases

This is the second ruling in the past year in which the government has convinced the court to dismiss challenges to the NSA warrantless wiretapping program on technical grounds, when there is ample evidence of wrongdoing. In 2012, the Ninth Circuit reluctantly dismissed the Al-Haramain case on “sovereign immunity” grounds despite a lower court ruling the government had violated the Fourth Amendment. The court reasoned that because of a glitch in the language of FISA statute, the plaintiffs had to sue individuals in the government in their personal capacities and couldn’t sue government agencies themselves or government officials in their official capacities.

We look forward to the district court in Jewel v. NSA determining that our case can move forward, and that the government can, once and for all, be held to account for the NSA’s unlawful and unconstitutional warrantless wiretapping program.

• 1. The court also noted that a provision of the FAA allows a service provider, presumably in a fit of patriotic fervor and a willingness to pay expensive attorneys for its customers, challenges the government on its own, in secret. Yet even under this provision, the victim of the surveillance is unable to seek judicial review.

Related article

• US Supreme Court refuses to let Americans challenge FISA eavesdropping law

‘US a police state, Obama consciously allows torture’ – CIA veteran John Kiriakou

RT | February 1, 2013

Ten years ago, the idea of the US government spying on its citizens, intercepting their emails or killing them with drones was unthinkable. But now it’s business as usual, says John Kiriakou, a former CIA agent and torture whistleblower.

Kiriakou is now awaiting a summons to start a prison sentence. One of the first to confirm the existence of Washington’s waterboarding program, he was sentenced last week to two-and-a-half years in jail for revealing the name of an undercover agent. But even if he had another chance, he would have done the same thing again, Kiriakou told RT.

­RT: The judge, and your critics all seem to believe you got off lightly. Would you say you got off lightly?

JK: No, I would not say I got off lightly for a couple of very specific reasons. First of all, my case was not about leaking, my case was about torture. When I blew the whistle on torture in December 2007 the justice department here in the US began investigating me and never stopped investigating me until they were able to patch together a charge and force me into taking a plea agreement. And I’ll add another thing too, when I took the plea in October of last year, the judge said that she thought the plea was fair and appropriate. But once the courtroom was packed full of reporters last Friday she decided that it was not long enough and if she had had the ability to she would have given me ten years.

RT: And why did you, a decorated CIA officer, take such a strong stance against an agency policy? Did you not consider that there might be some come-back?

JK: I did. I took a strong stance and a very public one and that’s what got me into trouble. But honestly the only thing I would do differently is I would have hired an attorney before blowing the whistle. Otherwise I believe firmly even to this day I did the right thing.

RT: You have called it ironic that the first person to be convicted with regards to the torture program is the man who shed light on it. Do you believe the others, who put the program together, will ever face justice?

JK: I don’t actually. I think that president Obama just like president Bush has made a conscious decision to allow the torturers, to allow the people who conceived of the tortures and implemented the policy, to allow the people who destroyed the evidence of the torture and the attorneys who used specious legal analysis to approve of the torture to walk free. And I think that once this decision has been made – that’s the end of it and nobody will be prosecuted, except me.

RT: When you initially came out against torture, you said it was impractical and inefficient. Did you consider it immoral initially?

JK: I said in 2002 that it was immoral. When I returned from Pakistan to CIA headquarters early in the summer 2002, I was asked by a senior officer in the CIA’s counter-terrorist center if I wanted to be trained in the use of torture techniques, and I told him that I had a moral problem with these techniques. I believed that they were wrong and I didn’t want to have anything to do with the torture program.

RT: It’s no secret that Obama’s administration has been especially harsh on whistleblowers. But can the US afford leniency, in these security-sensitive times?

JK: I think this is exactly what the problem is. In this post 9/11 atmosphere that we find ourselves in we have been losing our civil liberties incrementally over the last decade to the point where we don’t even realize how much of a police state the United States has become.

Ten years ago the thought of the National Security Agency spying on American citizens and intercepting their emails would have been anathema to Americans and now it’s just a part of normal business.

The idea that our government would be using drone aircraft to assassinate American citizens who have never seen the inside of a courtroom, who have never been charged with a crime and have not had due process which is their constitutional right would have been unthinkable. And it is something now that happens every year, every so often, every few weeks, every few months and there is no public outrage. I think this is a very dangerous development.

RT: Obama’s tough stance, and harsh punishments for whistleblowers, has sent a message. Is he winning his fight against those who speak out?

JK: I don’t think he is winning this fight against whistleblowers, at least not over the long term, and I’ll tell you why.

President Obama has now charged seven people with violations of the Espionage Act. All previous presidents in American history combined only charged three people with violating the Espionage Act. And the Espionage Act is a WWI-era act that was meant to deter German saboteurs during that First World War. And now it is being used to silence critics of the government.

But so far all seven of these cases that have made their way into a courtroom have either collapsed of have been dismissed, including mine. All of the three espionage charges against me were dropped.

So, I think frankly the Obama administration is cheapening the Espionage Act. The Espionage Act should be used to prosecute spies and traitors, not to prosecute whistleblowers or people who are exercising their first amendment right to free speech.

RT: Do we still need whistleblowers? Are we going to see more of them coming out?

JK: I think we will see more whistleblowers and I think we need whistleblowers now more than ever before. Whether it’s in national security or whether it is in the banking industry, the American people have a right to know when there is evidence of waste, fraud, abuse, or illegality. If the Justice Department is not going to prosecute these cases, at the very least the American people need to know.

Homeland Security’s Napolitano invokes 9/11 to push for CISPA 2.0

RT | January 25, 2013

In an attempt to scare the public with a looming cyber attack on US infrastructure, US Homeland Security Secretary Janet Napolitano is once again pushing Congress to pass legislation allowing the government to have greater control over the Internet.

Napolitano issued the warnings Thursday, claiming that inaction could result in a “cyber 9/11” attack that could knock out water, electricity and gas, causing destruction similar to that left behind by Hurricane Sandy.

Napolitano said that in order to prevent such an attack, Congress must pass legislation that gives the US government greater access to the Internet and cybersecurity information from the private sector. Such a bill, known as CISPA or Cyber Intelligence Sharing and Protection Act, was already introduced last year, but failed to pass in Congress due to concerns expressed by businesses and privacy advocates.

“We shouldn’t wait until there is a 9/11 in the cyber world. There are things we can and should be doing right now that, if not prevent, would mitigate the extent of the damage,” Napolitano said in a speech at the Wilson Center, a Washington, DC think tank.

Defense Secretary Leon Panetta has also been a strong advocate for increased governmental grip on the web and in October warned that the US is facing a possible “cyber-Pearl Harbor” by foreign hackers.

“A cyber attack perpetuated by nation states or violent extremist groups could be as destructive as the terrorist attack of 9/11,” he said during a speech. “Such a destructive cyber terrorist attack could paralyze the nation.”

Last September, Napolitano reiterated disappointment with Congress for failing to pass the cybersecurity legislation in August.

“Attacks are coming all the time,” she said in a speech at the Social Good Summit. “They are coming from different sources, they take different forms. But they are increasing in seriousness and sophistication.”

Despite Homeland Security’s constant warnings that hackers could shut down critical US infrastructure, the Cybersecurity Act of 2012 was shot down by the Senate in August, even though the Obama administration had pushed for the bill in numerous hearings and briefings.

Privacy advocates had expressed concern that the US government would be able to read Americans’ personal e-mails, online chat conversations, and other personal information that only private companies and servers might have access to. The head of the National Security Agency promised it wouldn’t abuse its power, but critics have remained skeptical.

A coalition of Democrats this year pledged to make this legislation a priority.

“Given all that relies on a safe and secure Internet, it is vital that we do what’s necessary to protect ourselves from hackers, cyber thieves, and terrorists,” said Sen. Tom Carper (D-Del.), the new chairman of the Homeland Security Committee.

The White House is also working on an executive order that would encourage companies to meet government cybersecurity standards.

NSA Whistleblower: Everyone in US under virtual surveillance, all info

RussiaToday | December 2, 2012

The FBI has the e-mails of nearly all US citizens, including congressional members, according to NSA whistleblower William Binney. Speaking to RT he warned that the government can use information against anyone it wants.

­One of the best mathematicians and code breakers in NSA history resigned in 2001 because he no longer wanted to be associated with alleged violations of the constitution.

He asserts, that the FBI has access to this data due to a powerful device Naris.

This year Binney received the Callaway award. The annual award was established to recognize those, who stand out for constitutional rights and American values at great risk to their personal or professional lives.

RT: In light of the Petraeus/Allen scandal while the public is so focused on the details of their family drama one may argue that the real scandal in this whole story is the power, the reach of the surveillance state. I mean if we take General Allen – thousands of his personal e-mails have been sifted through private correspondence. It’s not like any of those men was planning an attack on America. Does the scandal prove the notion that there is no such thing as privacy in a surveillance state?

William Binney: Yes, that’s what I’ve been basically saying for quite some time, is that the FBI has access to the data collected, which is basically the e-mails of virtually everybody in the country. And the FBI has access to it. All the congressional members are on the surveillance too, no one is excluded. They are all included. So, yes, this can happen to anyone. If they become a target for whatever reason – they are targeted by the government, the government can go in, or the FBI, or other agencies of the government, they can go into their database, pull all that data collected on them over the years, and we analyze it all. So, we have to actively analyze everything they’ve done for the last 10 years at least.

RT:And it’s not just about those, who could be planning, who could be a threat to national security, but also those, who could be just…

WB: It’s everybody. The Naris device if it takes in the entire line, so it takes in all the data. In fact they advertised they can process the lines at session rates, which means 10 gigabit lines. I forgot the name of the device (it’s not the Naris) – the other one does it at 10 gigabits. That’s why the building Buffdale, because they have to have more storage, because they can’t figure out what’s important, so they are just storing everything there. So, e-mails are going to be stored there for the future, but right now stored in different places around the country. But it is being collected – and the FBI has access to it.

RT:You mean it’s being collected in bulk without even requesting providers?

WB:Yes.

RT:Then what about Google, you know, releasing this biannual transparency report and saying that the government’s demands for personal data is at an all-time high and for all of those requesting the US, Google says they complied with the government’s demands 90% of the time. But they are still saying that they are making the request, it’s not like it’s all being funneled into that storage. What do you say to that?

WB: I would assume, that it’s just simply another source for the same data they are already collecting. My line is in declarations in a court about the 18-T facility in San Francisco, that documented the NSA room inside that AST&T facility, where they had Naris devices to collect data off the fiber optic lines inside the United States. So, that’s kind of a powerful device, that would collect everything it was being sent. It could collect on the order over one hundred billion one thousand character e-mails a day. One device.

RT:You say they sift through billions of e-mails. I wonder how do they prioritize? How do they filter it?

WB: I don’t think they are filtering it. They are just storing it. I think it’s just a matter of selecting when they want it. So, if they want to target you, they would take your attributes, go into that database and pull out all your data.

RT:Were you on the target list?

WB: Oh, sure! I believe I’ve been on it for quite a few years. So I keep telling them everything I think of them in my e-mail. So that when they want to read it they’ll understand what I think of them.

RT:Do you think we all should leave messages for the NSA mail box?

WB: Sure!

RT:You blew the whistle on the agency when George W. Bush was the President. With President Obama in office, in your opinion, has anything changed at the agency – in the surveillance program? In what direction is this administration moving?

WB: The change is it’s getting worse. They are doing more. He is supporting the building of the Buffdale facility, which is over two billion dollars they are spending on storage room for data. That means that they are collecting a lot more now and need more storage for it. That facility by my calculations that I submitted to the court for the electronic frontiers foundation against NSA would hold on the order of 5 zettabytes of data. Just that current storage capacity is being advertised on the web that you can buy. And that’s not talking about what they have in the near future.

RT:What are they going to do with all of that? Ok, they are storing something. Why should anybody be concerned?

WB: If you ever get on the enemies list, like Petraeus did or… for whatever reason, than you can be drained into that surveillance.

RT:Do you think they would… General Petraeus, who was idolized by the same administration? Or General Allen?

WB: There are certainly some questions, that have to be asked, like why would they target it (to begin with)? What law were they breaking?

RT:In case of General Petraeus one would argue that there could have been security breaches. Something like that. But with General Allen  – I don’t quite understand, because when they were looking into his private e-mails to this woman.

WB: That’s the whole point. I am not sure what the internal politics is… That’s part of the program. This government doesn’t want things in the public. It’s not a transparent government. Whatever the reason or the motivation was, I don’t really know, but I certainly think, that there was something going on in the background, that made them target those fellows. Otherwise why would they be doing it? There is no crime there.

RT:It seems that the public is divided between those, who think that the government surveillance program violates their civil liberties, and those, who say: “I’ve nothing to hide. So, why should I care?” What do you say to those, who think that it shouldnt concern them.

WB: The problem is if they think they are not doing anything that’s wrong, they don’t get to define that. The central government does, the central government defines what is right and wrong and whether or not they target you. So, it’s not up to the individuals. Even if they think they are doing something wrong, if their position on something is against what the administration has, then they could easily become a target.

RT:Tell me about the most outrageous thing that you came across during your work at the NSA.

WB: The violations of the constitution and any number of laws that existed at the time. That was the part that I could not be associated with. That’s why I left. They were building social networks on who is communicating and with whom inside this country. So that the entire social network of everybody, of every US citizen was being compiled overtime. So, they are taking from one company alone roughly 320 million records a day. That’s probably accumulated probably close to 20 trillion over the years. The original program that we put together to handle this to be able to identify terrorists anywhere in the world and alert anyone that they were in jeopardy. We would have been able to do that by encrypting everybody’s communications except those, who were targets. So, in essence you would protect their identities and the information about them until you could develop probable cause, and once you showed your probable cause, then you could do a decrypt and target them. And we could do that and isolate those people all alone. It wasn’t a problem at all. There was no difficulty in that.

RT:It sounds very difficult and very complicated. Easier to take everything in and…

WB: No. It’s easier to use the graphing techniques, if you will, for the relationships for the world to filter out data, so that you don’t have to handle all that data. And it doesn’t burden you with a lot more information to look at, than you really need to solve the problem.

RT:Do you think that the agency doesn’t have the filters now?

WB: No.

RT:You have received the Callaway award for civic courage. Congratulations! On the website and in the press release it says: “It is awarded to those, who stand out for constitutional rights and American values at great risk to their personal or professional lives.” Under the code of spy ethics (I don’t know if there is such a thing) your former colleagues, they probably look upon you as a traitor. How do you look back at them?

WB: That’s pretty easy. They are violating the foundation of this entire country. Why this entire government was formed? It’s founded with the constitution and the rights were given to the people in the country under that constitution. They are in violation of that. And under executive order 13526, section 1.7 (governing classification) – you can not classify information to just cover up a crime, which this is- and that was signed by President Obama. Also President Bush signed it earlier executive order, a very similar one. If any of this comes into Supreme court and they rule it unconstitutional, then the entire house of cards of the government falls.

RT:What are the chances of that? What are the odds?

WB: The government is doing the best they can to try to keep it out of court. And, of course, we are trying to do the best we can to get into court. So, we decided it deserves a ruling from the Supreme court. Ultimately the court is supposed to protect the constitution. All these people in the government take an oath to defend the constitution. And they are not living up to the oath of office.

RT:Thank you for this interview.

WB: You are welcome.

‘Just trust us’ – NSA to privacy advocates in court

RT | October 23, 2012

The US National Security Agency isn’t outright rejecting claims that they’ve been conducting surveillance on everyone in the country, but they want Americans to at least give them the benefit of the doubt when it comes to their intentions.

The NSA was in court again this week to challenge a potential class action lawsuit that aims to end the governmental agency’s electronic surveillance program begun by President George W. Bush in the aftermath of the September 11, 2001 terrorist attacks; but while the plaintiffs in the case want to abolish the warrantless wiretapping and spying on innocent civilians started under that administration’s Terrorist Surveillance Program, the government’s argument is now one that requires Americans to accept the agency’s insistence they’re really not up to anything worth worrying about, Courthouse News reports.

In Federal Court this week, the NSA said that the public should simply trust the government when they say they aren’t abusing any powers legally or illegally in place to engage in clandestine surveillance of each and every citizen.

A San Francisco courthouse was the venue for the latest episode in the matter of Jewel v. NSA, a 4-year-old case that charges the spy agency with once and still operating an “illegal and unconstitutional program of dragnet communications surveillance.” Lead plaintiff Carolyn Jewel brought on the suit back in 2008 with the assistance of the Electronic Frontier Foundation and on behalf of current and former customers of AT&T who say they were affected when the telecom giant allowed the NSA unfettered access to their systems to spy on the communications of any customers they wish.

The plaintiffs say that the NSA ordered the attachment of surveillance devices to AT&T’s master network in order to have the ability to divert any communication routed through their service to secure facilities to allow for “an unprecedented suspicionless general search.” When former NSA senior executive Thomas Drake condemned the agency’s overly broad and costly surveillance of innocent Americans in 2007, the government attempted to silence him by filing an indictment under the Espionage Act of 1917.

When Jewel v NSA ended up in federal court in 2010, US District Court Chief Judge Vaughn Walker originally dismissed the case, only for the Ninth Circuit Court of Appeals deciding to reinstate it last year.

“Since September 11 and now, through two administrations, the executive has engaged in unprecedented assertions of power without regard to the constitutional and statutory limits of its authority,” attorney Richard Wiebe wrote in the case’s initial filings. “It has correspondingly sought to exclude the judiciary from adjudicating whether these exercises of executive power have stayed within the limits set by the Constitution and by Congress.”

Currently, the government alleges that they do not have to respond to charges of unwarranted eavesdropping because they have immunity in instances where disclosure could disrupt national security. As Courthouse News previously reported, the federal government “claims to have invoked state secrets privileges that protects it from any litigation consequentially stemming from supposed violations of those acts.” Plaintiffs, however, say that the government waived its right to sovereign immunity when it put itself in violation of the Foreign Intelligence Surveillance Act (FISA) as well as the US Constitution’s Fourth Amendment that protects Americans from unlawful searches and seizures.

Dozens of similar lawsuits against Verizon and other telecommunication companies were initially filed during the George W. Bush administration, but amendments added to the Foreign Intelligence Surveillance Act (FISA) in 2008 granted those companies immunity to civil actions “providing assistance to an element of the intelligence community.” Now, however, plaintiffs say the government must be held accountable for their own violations of FISA and the Constitution.

Responding to the case earlier this month, the government insisted, “The Foreign Intelligence Surveillance Act does not authorize a claim against the Government defendants sued in their official capacities, the state secrets privilege bars the litigation of plaintiffs’ remaining claims and the state secrets privilege is not displaced by the FISA.”

“[T]he disclosure of sensitive intelligence sources and methods . . . reasonably could be expected to cause exceptionally grave harm to national security,” the government wrote in one of three motions filed so far to put Jewel v. NSA to rest. “The very purpose of these cases is to put at issue whether the NSA undertook certain alleged activities under presidential authorization after 9/11, and whether those activities continue today. At every stage, from standing to the merits, highly classified and properly privileged intelligence sources and methods are at risk of disclosure. The law is clear, however, that where litigation risks or requires the disclosure of information that reasonably could be expected to harm national security, dismissal is required.”

Wiebe and the plaintiffs see things another way, though, and wrote earlier that “The government here seeks to transform the state secrets privilege from a powerful but targeted evidentiary shield into a justiciability sword, preventing the Judiciary from engaging in its constitutional duty.”

The government’s goal, Wiebe continued, “is to convince this court to close its eyes to a program that impacts every American who uses a phone, email or the Internet. The judiciary must recognize the dangers of allowing the executive to distort narrow exceptions like the state secrets privilege into broad unfettered power to ‘turn the Constitution on or off at will.’ Even in the case involving war powers, the Supreme Court has confirmed that the ‘war power does not remove constitutional limitations safeguarding essential liberties.’”

This week the government did not fight back as hard to defend any surveillance practices engaged by either the George W. Bush or Obama administrations, but said innocent Americans should trust that they aren’t in danger of being watched.

“This lawsuit puts at issue alleged intelligence activities of the National Security Agency (‘NSA’) purportedly undertaken pursuant to presidential authorization since the terrorist attacks of September 11, 2001,” the NSA says in their latest response. “For the past six years, the nation’s most senior intelligence officials, in succeeding administrations, have consistently advised this court that litigation of plaintiffs’ allegations would risk exceptional damage to national security, setting forth in detail the matters at issue. Renewed invocation of the state secrets privilege in this action by the Director of National Intelligence has undergone rigorous review within the Executive Branch under a process providing that privilege will only be asserted where necessary to protect against significant harm to national security. Contrary to plaintiffs’ suggestion, in these circumstances dismissal would not constitute an abdication of judicial authority, but the exercise of judicial scrutiny of the privileged information at issue and the application of established law to protect compelling national security interests.”

US District Judge Jeffery White will consider the latest motion on November 2 and could decide to let the arguments be brought to trial. If the case is allowed and elevated to class action status as the plaintiffs hope, attorneys fear that a victory for the NSA would mean the continuation of warrantless dragnet surveillance would continue — this time on-the-books.

Related articles

• Privacy rights teeter on the scales of justice (constitutioncampaign.org)
• New Book Details the NSA’s Warrantless Wiretapping Program, As Government Moves to Avoid All Accountability in Court (eff.org)

Why The NSA Can’t Be Trusted to Run U.S. Cybersecurity Programs

By Mark M. Jaycox and Lee Tien and Trevor Timm | EFF | July 30, 2012

This week, the Senate will be voting on a slew of amendments to the newest version of the Senate’s cybersecurity bill. Senators John McCain and Kay Bailey Hutchison have proposed several amendments that would hand the reins of our nation’s cybersecurity systems to the National Security Agency (NSA). All of the cybersecurity bills that have been proposed would provide avenues for companies to collect sensitive information on users and pass that data to the government. Trying to strike the balance between individual privacy and facilitating communication about threats is a challenge, but one thing is certain: the NSA has proven it can’t be trusted with that responsibility. The NSA’s dark history of repeated privacy violations, flouting of domestic law, and resistance to transparency makes it clear that the nation’s cybersecurity should not be in its hands.

In case you need a refresher, here’s an overview of why handing cybersecurity to the NSA would be a terrible idea:

1. An executive order generally prohibits NSA from conducting intelligence on Americans’ domestic activities
   Executive Order 12333 signed by President Reagan in 1981 (and amended a few times since1), largely prohibits the NSA from spying on domestic activities:

   no foreign intelligence collection by such elements [of the Intelligence Community] may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons.

   If amended, the Cybersecurity Act would allow the NSA to gain information related to “cybersecurity threat indicators,” which would allow it to collect vast quantities of data that could include personally identifiable information of U.S. persons on American soil. Law enforcement and civilian agencies are tasked with investigating and overseeing domestic safety. The NSA, on the other hand, is an unaccountable military intelligence agency that is supposed to focus on foreign signals intelligence—and it’s frankly dangerous to expand the NSA’s access to information about domestic communications.

2. NSA has a dark history of violating Americans’ constitutional rightsIn the 1960’s, a Congressional investigation, led by four-term Senator Frank Church, found that the NSA had engaged in widespread and warrantless spying on Americans citizens. Church was so stunned at what he found, he remarked that the National Security Agency’s “capability at any time could be turned around on the American people, andno American would have any privacy left, such is the capability to monitor everything.” (emphasis added) The investigation led to the passage of the Foreign Intelligence Surveillance Act, which provided stronger privacy protections for Americans’ communications—that is, until it was weakened by the USA-PATRIOT Act and other reactions to 9/11.
3. NSA has continued its warrantless wiretapping scandalIn 2005, the New York Times revealed that the NSA set up a massive warrantless wiretapping program shortly after 9/11, in violation of the Fourth Amendment and several federal laws. This was later confirmed by virtually every major media organization in the country. It led to Congressional investigations and several ongoing lawsuits, including EFF’s. Congress passed the FISA Amendments Act to granttelecom companies retroactive immunity for participating in illegal spying and severely weaken privacy safeguards for Americans communicating overseas.Since the FISA Amendments Act (FAA) passed, the NSA has continued collecting emails of Americans. A 2009 New York Times investigation described how a “significant and systemic” practice of “overcollection” of communications resulted in the NSA’s intercepting millions of purely domestic emails and phone calls between Americans. In addition, documents obtained via a Freedom of Information Act request by the ACLU, although heavily redacted, revealed “that violations [of the FAA and the Constitution] continued to occur on a regular basis through at least March 2010″— the last month anyone has public data for.
4. NSA recently admitted to violating the Constitution.Just last week, the Office of the Director of National Intelligence—which oversees the NSA—begrudgingly acknowledged that “on at least one occasion” the secret FISA court “held that some collection… used by the government was unreasonable under the Fourth Amendment.” Wired called it a “federal sidestep of a major section of the Foreign Intelligence Surveillance Act,” and it confirmed the many reports over the last few years: the NSA has violated the Constitution.
5. NSA keeps much of what it does classified and secretBecause cybersecurity policy is inescapably tied to our online civil liberties, it’s essential to maximize government transparency and accountability here.  The NSA may be the worst government entity on this score.  Much of the NSA’s work is exempt from Freedom of Information Act (FOIA) disclosure because Congress generally shielded NSA activities from FOIA2. Even aside from specific exemption statutes, much information about NSA activities is classified on national security grounds. The NSA has also stonewalled organizations trying to bring public-interest issues to light by claiming the “state secrets” privilege in court. EFF has been involved in lawsuits challenging the NSA’s warrantless surveillance program since 2006. Despite years of litigation, the government continues to maintain that the “state secrets” privilege prevents any challenge from being heard.  Transparency and accountability simply are not the NSA’s strong suit.

We remain unconvinced that we need any of the proposed cybersecurity bills, but we’re particularly worried about attempts to deputize the NSA as the head of our cybersecurity systems. And even the NSA has admitted that it does “not want to run cyber security for the United States government.”

Thankfully, new privacy changes in the cybersecurity bill heading towards the Senate floor have explicitly barred intelligence agencies like the NSA from serving as the center of information gathering for cybersecurity. We need to safeguard those protections and fend off amendments that give additional authority to the NSA. We’re asking concerned individuals to use our Stop Cyber Spying tool to tweet at their Senators or use the American Library Association’s simple tool to call Senators. We need to speak out in force this week to ensure that America’s cybersecurity systems aren’t handed to the NSA.

• 1. Executive Order 12333 was amended in 2003 by Executive Order 13284, in 2004 by Executive Order 13355, and in 2008 by Executive Order 13470. The resulting text of Executive Order 12333 is available here (pdf).
• 2. Three of the most common statutes that NSA uses to fight transparency: Section 6 of the National Security Agency Act of 1959 (Public Law 86-36, 50 U.S.C. Sec. 402 note), which provides that no law shall be construed to require the disclosure of, inter alia, the functions or activities of NSA; The Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. Sec. 403- 1(i), which requires under the Responsibilities and Authorities of the Director of National Intelligence that we protect information pertaining to intelligence sources and methods; and 18 U.S.C. Sec. 798, which prohibits the release of classified information concerning communications intelligence and communications security information to unauthorized persons.

Related articles

• Congress Must Act After US Government Admits To Unconstitutional Warrantless Wiretapping For the First Time (eff.org)
• Why won’t the Obama administration reveal how many Americans’ emails the NSA has collected and reviewed without a warrant? (eff.org)
• NSA whistle blowers allege data being collected on every American (rawstory.com)
• Why won’t the Obama administration reveal how many Americans’ emails the NSA has collected and reviewed without a warrant? (informationliberation.com)

Three NSA Whistleblowers Back EFF’s Lawsuit Over Government’s Massive Spying Program

EFF Asks Court to Reject Stale State Secret Arguments So Case Can Proceed

EFF | July 2, 2012

San Francisco – Three whistleblowers – all former employees of the National Security Agency (NSA) – have come forward to give evidence in the Electronic Frontier Foundation’s (EFF’s) lawsuit against the government’s illegal mass surveillance program, Jewel v. NSA.

In a motion filed today, the three former intelligence analysts confirm that the NSA has, or is in the process of obtaining, the capability to seize and store most electronic communications passing through its U.S. intercept centers, such as the “secret room” at the AT&T facility in San Francisco first disclosed by retired AT&T technician Mark Klein in early 2006.

“For years, government lawyers have been arguing that our case is too secret for the courts to consider, despite the mounting confirmation of widespread mass illegal surveillance of ordinary people,” said EFF Legal Director Cindy Cohn. “Now we have three former NSA officials confirming the basic facts. Neither the Constitution nor federal law allow the government to collect massive amounts of communications and data of innocent Americans and fish around in it in case it might find something interesting. This kind of power is too easily abused. We’re extremely pleased that more whistleblowers have come forward to help end this massive spying program.”

The three former NSA employees with declarations in EFF’s brief are William E. Binney, Thomas A. Drake, and J. Kirk Wiebe. All were targets of a federal investigation into leaks to the New York Times that sparked the initial news coverage about the warrantless wiretapping program. Binney and Wiebe were formally cleared of charges and Drake had those charges against him dropped.

Jewel v. NSA is back in district court after the 9th U.S. Circuit Court of Appeals reinstated it in late 2011. In the motion for partial summary judgment filed today, EFF asked the court to reject the stale state secrets arguments that the government has been using in its attempts to sidetrack this important litigation and instead apply the processes in the Foreign Intelligence Surveillance Act that require the court to determine whether electronic surveillance was conducted legally.

“The NSA warrantless surveillance programs have been the subject of widespread reporting and debate for more than six years now. They are just not a secret,” said EFF Senior Staff Attorney Lee Tien. “Yet the government keeps making the same ‘state secrets’ claims again and again. It’s time for Americans to have their day in court and for a judge to rule on the legality of this massive surveillance.”

For the full motion for partial summary judgment:
https://www.eff.org/document/plaintiffs-motion-partial-summary-judgment

For more on this case:
https://www.eff.org/cases/jewel

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

New Senate Cyber Bill No Better Than Last Version

By Michelle Richardson, Legislative Counsel, ACLU | July 2, 2012

Yesterday, Republican Senators introduced a rewrite of their cybersecurity bill, known as SECURE IT. Advocates registered their opposition to the bill last month and its CISPA-like expansion of military authority to collect sensitive information on Americans’ internet use.

Despite claims the contrary, the new bill has not been substantially amended and still does not meaningfully limit the amount or type of information that the government can collect from companies that hold very private and personal data. Most importantly,

•    SECURE IT still allows companies to give sensitive American information directly to the National Security Agency and other military agencies. The ACLU has long argued, and even the Obama administration agrees: domestic cybersecurity programs must be run by civilian agencies.

•    The bill lacks any requirement that companies first remove personally identifiable information unrelated to cybersecurity from what they share with each other or the government. That’s right – companies that have access to what we buy, what we read, and where we go don’t even have to attempt to suppress identifying information.

•    SECURE IT-collected information can be used by the government not only for cybersecurity purposes, but for undefined national security purposes and to prosecute a long list of crimes unrelated to cybersecurity.

Senate Majority Leader Harry Reid has promised cybersecurity will be brought to the floor in July. So it looks like we’ll see a vote in the next few weeks. Now’s the time to contact your Senators and tell them to vote against any legislation that lets the government start cyber spying!

Related articles

• Senate ready to move on cybersecurity legislation (blacklistednews.com)
• The Disturbing Privacy Dangers in CISPA (alethonews.wordpress.com)