It’s part of the public record that the NSA has engaged in an industry-wide campaign to weaken cryptographic protocols and insert back doors into hi-tech products sold by U.S. companies. We also know that NSA officials have privately congratulated each other in successfully undermining privacy and security across the Internet. Hence it’s only logical to assume that the NSA’s numerous subversion programs extend into foreign “commercial entities”. Thanks to documents recently disclosed by the Intercept we have unambiguous confirmation.
Hi-tech subversion underscores the fact that the whole tired debate regarding cryptographic keys held in escrow for so-called lawful interception (what the Washington Post called “secret golden keys”) only serves to distract the public from programs aimed at wielding covert back doors. In other words, by reviving the zombie idea of an explicit back door the editorial board at the Washington Post is conveniently ignoring all of the clandestine techniques that already exist to sidestep encryption. In a nutshell: zero-day bugs and malware often trump strong crypto.
On an aside it’s interesting to observe the citadel of free thinkers at the Electronic Frontier Foundation continue to promote cryptographic tools as a privacy tonic with a faith that’s almost religious while conspicuously neglecting other important aspects of operational security. The EFF cheerfully provides a litany of alleged success stories. Never mind all of the instances in which the users of said cryptographic tools were compromised, even users who specialized in computer security.
Infiltrating the Media
The NSA’s campaign to undermine software and hardware is mirrored by parallel efforts in other domains. Specifically, the Church Committee and Pike Committee investigations of the 1970s unearthed secret programs like Operation Mockingbird which were conducted to infiltrate the media and develop an apparatus, a Mighty Wurlitzer of sorts, that allowed government spies to quietly influence public perception. The findings of congressional investigators have been substantiated by writers like Deborah Davis and Carl Bernstein.
Though much of the documented evidence is decades old the CIA continues to maintain its long-standing relationship with the press. For example in March of 2010 WikiLeaks published a classified CIA analysis which described a propaganda recipe for the “targeted manipulation of public opinion” in Germany and France to bolster support for NATO military action in Afghanistan. Also, here in the United States New York Times editor Bill Keller admitted to delaying the story on Bush-era warrantless wiretapping in direct service to the powers that be.
So don’t think for a minute that the CIA didn’t have a hand in the media’s assault on journalist Gary Webb after Webb exposed the CIA’s connections to the international drug trade. Gary caught U.S. intelligence with its pants down and spymasters had their operatives in the press destroy him.
More recently, the former editor of Frankfurter Allgemeine Zeitung revealed that he worked for the CIA. In a televised interview Udo Ulfkotte described Germany as an American client state, noting the role of the CIA in the origins of German intelligence. He warned that powerful interests in the United States were pushing for war with Russia and that American spies have widespread links to foreign news outlets:
“Is this only the case with German journalists? No, I think it is especially the case with British journalists, because they have a much closer relationship. It is especially the case with Israeli journalists. Of course with French journalists. … It is the case for Australians, [with] journalists from New Zealand, from Taiwan, well, there is many countries, … like Jordan for example. …”
A Question for Ed Snowden
While media subversion enables political manipulation through indirect means, U.S. intelligence has been known to employ more direct means to impose its agenda in places like Angola, Chile, Guatemala, Iran, Nicaragua, and Ukraine. In fact, stepping back to view the big picture, one might be tempted to posit that U.S. intelligence has established clandestine footholds globally in any institution seen as vital to the interests of the corporate factions that drive the American Deep State.
All of this subversion raises a question: are covert programs compatible with democracy? Can the public allow secrecy, propaganda, and infiltration to blossom while simultaneously expecting to be immune from their effects? Former CIA officers who went public, intrepid whistleblowers like Philip Agee and John Stockwell, answered this question with a resounding “no.” As would millions of people in third-world countries who suffered through the bloody proxy battles of the Cold War. For instance, Philip Agee stated in his book CIA Diary:
“When the Watergate trials end and the whole episode begins to fade, there will be a movement for national renewal, for reform of electoral practices, and perhaps even for reform of the FBI and the CIA. But the return to our cozy self-righteous traditions should lure no one into believing that the problem has been removed. Reforms attack symptoms rather than the disease”
Hence it’s unsettling to hear Edward Snowden, despite his commendable admonishments for an open debate on mass surveillance, maintain the underlying legitimacy of government subterfuge:
“We can have secret programs. You know, the American people don’t have to know the name of every individual that’s under investigation. We don’t need to know the technical details of absolutely every program in the intelligence community. But we do have to know the bare and broad outlines of the powers our government is claiming … and how they affect us and how they affect our relationships overseas.”
You’re witnessing the power of framing the narrative. Society has been encouraged to discuss the legitimacy of what spies do and how they do it. But the problem with this well-intentioned dialogue is that “we the people” are led away from the more fundamental question of whether society needs spies and their covert ops to begin with.
Author’s Note: In the past I’ve posed a question to Glenn Greenwald and was met with silence. Exceptional behavior for someone who is famous for responding vocally. Now we’ll see how Mr. Snowden replies.
Bill Blunden is an independent investigator whose current areas of inquiry include information security, anti-forensics, and institutional analysis. He is the author of several books, including The Rootkit Arsenal , and Behold a Pale Farce: Cyberwar, Threat Inflation, and the Malware-Industrial Complex. Bill is the lead investigator at Below Gotham Labs.
European Union member states have called on the EU Parliament to adopt legislation on new data protection as soon as next year.
The new regulations proposed by the member states in March 2014 include protecting the data of European citizens from espionage, illegal transfer to intelligence services, and illicit use of their information by business.
The new legislation has been seen as a necessary step in the wake of revelations leaked to media in June 2013 by CIA whistle-blower Edward Snowden about the National Security Agency’s (NSA) global espionage and communication monitoring scheme, known as Prism.
The legislation also appeared to take on greater significance following reports from Austrian media, which published a number of photographs claiming they proved that the Washington-based NSA was operating a secret listening post a short distance from the Vienna International Centre (VIC).
The photos depict a listening post atop a skyscraper in the Austrian capital Vienna, located next door to the VIC which is considered the third United Nations headquarters after New York and Geneva, and regularly hosts meetings.
While not immediately independently verified, the Austrian media reports have alleged that an air-conditioned hut atop the building picks up transmissions from ‘bugs’ installed in the VIC.
Listening posts and their stealth implications have affected relations between US and European allies.
In November last year, the German government called in the British ambassador to explain a story published in The Independent claiming that London had a “top secret listening post” operated from the roof of the British embassy in Berlin.
The story was based on information leaked to the daily by Snowden.
While the newspaper said that the US closed down its spying base atop its embassy in Berlin, the British continued with their covert operation.
One evening over drinks in Ethiopia, during his tour as a CIA officer back in the 1960s, John Stockwell expressed reservations about covert operations to a senior fellow officer named Larry Devlin. Stockwell worried that the CIA was infiltrating governments and corrupting leaders to no useful end. Devlin, well-known in spy circles for his work in the Congo, berated Stockwell[i]:
“You’re trying to think like the people in the NSC back in Washington who have the big picture, who know what’s going on in the world, who have all the secret information, and the experience to digest it. If they decide we should have someone in Bujumbura, Burundi, and that person should be you, then you should do your job, and wait until you have more experience, and you work your way up to that point, then you will understand national security, and you can make the big decisions. Now, get to work, and stop, you know, this philosophizing.”
It’s a compelling argument: trust me, I know secrets. In fact it’s the same sort of argument that a federal informant named Hector Xavier Monsegur used to convince an activist named Jeremy Hammond to break into a whole slew of servers belonging to foreign governments[ii]. Monsegur assured Hammond: “Trust me, everything I do serves a purpose.” Hammond didn’t realize that he was actually part of an elaborate intelligence campaign being run by the FBI. Pimped out to other American three-letter agencies as it were.
Trust Me: I’m an Insider
John Stockwell was patient. He stayed on with the CIA and rose through the ranks, ultimately garnering enough clout to sit in on subcommittee meetings of the National Security Council. What he witnessed shocked him. Stockwell saw fat old men like senior ambassador Ed Mulcahy who fell asleep[iii] and petty officials like Henry Kissinger who got into embarrassing spats when someone else sat in their chair.[iv] All the while decisions were made that would kill people.
Quelle surprise! There were no wise men making difficult decisions based on dire threats to national security. Merely bureaucrats in search of enemies whose covert programs created more problems than they solved.
There’s a lesson in this story that resonates very strongly. A security clearance is by no means a guarantee of honesty or integrity. The secrets that spies guard don’t necessarily justify covert programs. Rather the veil of the government’s classification system is often leveraged to marginalize the public, to exclude people from policy making, and conceal questionable activity that would lead to widespread condemnation and social unrest if it came to light.
Past decades offer an endless trail of evidence: Operation Gladio, Operation Mockingbird, Project MKUltra, Operation Wheeler/Wallowa, Watergate, Operation CHAOS, COINTELPRO, Operation Northwoods, P2OG (the Proactive, Preemptive Operations Group), Iran-Contra, etc.
Cryptome’s John Young describes how this dynamic literally unwinds democracy[v]:
“Those with access to secret information cannot honestly partake in public discourse due to the requirement to lie and dissimulate about what is secret information. They can only speak to one another never in public. Similarly those without access to secret information cannot fully debate the issues which affect the nation, including alleged threats promulgated by secret keepers who are forbidden by law to disclose what they know.”
The Parade of Lies
In light of Ed Snowden’s revelations, and the remarkably flat-footed response of our political leaders, society is witnessing a crisis of trust. Time after time we’ve been lied to by ostensibly credible government officials. Not little white lies, but big scandalous ones. Lies that bring into question the pluralistic assumptions about American democracy and suggest the existence of what political analysts from Turkey would call a “Deep State[vi].”
For instance, both former NSA director Keith Alexander and House Intelligence Chair Mike Rogers claimed that NSA mass interception was instrumental in disrupting over 50 terror plots, a claim that dissolved quickly upon closer scrutiny[vii].
Or contemplate an unnamed NSA spokesman who vehemently told the Washington Post that the NSA was not engaged in economic espionage[viii], only to be contradicted by leaked top-secret documents which described how the NSA broke into networks run by the Chinese telecom giant Huawei and made off with the company’s crown jewels (i.e. product source code).
When President Obama scored some air time with Charlie Rose, in soothing tones he calmly explained to viewers that the NSA doesn’t monitor American citizens without a warrant. It’s surprising that POTUS, a man with a background in constitutional law no less, would be unaware of Section 702 of the Foreign Intelligence Surveillance Act (FISA). This legal provision contains a loophole that allows just this sort of warrantless monitoring to transpire[ix]. Never mind Executive Order 12333, which is arguable an even greater threat[x].
More recently, consider Dianne Feinstein’s claim back in March that the CIA had been monitoring a network used by the Senate Intelligence Committee. John Brennan, the CIA director, told her that she was full of it and sanctimoniously replied “when the facts come out on this, I think a lot of people who are claiming that there has been this tremendous sort of spying and monitoring and hacking will be proved wrong[xi].”
Well guess what? It turns out Brennan was on the losing side of that bet. An internal investigation showed that CIA officers had indeed been watching the Senate Committee[xii]. Stop and pause for a moment. This disclosure is a serious warning sign. What, pray tell, do you think happens to the whole notion of checks and balances when the executive branch spies on the other two branches? Do you suppose there are implications for the balance of power?
Faced with this ever expanding dearth of credibility, spies have worked diligently to maintain the appearance of integrity. Specifically, industry conferences like Black Hat and DEF CON have regularly catered to the needs of U.S. Intelligence by serving as platform for the Deep State and its talking points: that Cyberwar is imminent[xiii], that cybercrime represents an existential threat[xiv], and that mass interception is perfectly normal and perfectly healthy[xv].
“If the tariff of security is paid, it will be paid in the coin of privacy. [xvi]”
In these hacker venues high-profile members of the intelligence community like Cofer Black[xvii], Shawn Henry[xviii], Keith Alexander[xix], and Dan Greer[xx] are positioned front and center in keynote slots, as if they were glamorous Hollywood celebrities. While those who value their civil liberties might opine that they should more aptly be treated like pariahs[xxi].
“Time Out” Posturing
One would hope that the gravity of Ed Snowden’s documents would have some impact. Indeed, Jeff Moss, the organizer who currently runs DEF CON and who originally founded Black Hat (and, by the way, currently sits on the Department of Homeland Security’s Advisory Council[xxii]), did attempt to make a symbolic gesture of protest in the summer of 2013. He gently requested that feds call a “time-out” and not attend DEF CON[xxiii].
To grasp the nature of this public relations maneuver is to realize that roughly 70 percent of the intelligence budget is channeled to private sector companies[xxiv]. As Glenn Greenwald observed during the 2014 Polk Award ceremony, as far as the national security state is concerned there is little distinction between the private and public sector[xxv]. Anyone who has peered into the rack space of the data broker industry knows that the NSA is an appendage on a much larger corporate apparatus[xxvi].
So asking federal employees to stay away really doesn’t change much because the driving force behind the surveillance state, the defense industry and its hi-tech offshoots, will swarm Vegas in great numbers as they normally do. Twelve months after Moss calls his halfhearted “time-out,” Black Hat rolls out the red carpet for the Deep State[xxvii], (while the government threatens to clamp down on attendance to conferences by foreign nationals[xxviii]). This is all very telling.
Bill Blunden is an independent investigator whose current areas of inquiry include information security, anti-forensics, and institutional analysis. He is the author of several books, including The Rootkit Arsenal , and Behold a Pale Farce: Cyberwar, Threat Inflation, and the Malware-Industrial Complex. Bill is the lead investigator at Below Gotham Labs.
[i] John Stockwell, THE SECRET WARS OF THE CIA: part I, lecture given in October, 1987,
[ii] Mark Mazzetti, “F.B.I. Informant Is Tied to Cyberattacks Abroad,” New York Times, April 23, 2014, http://www.nytimes.com/2014/04/24/world/fbi-informant-is-tied-to-cyberattacks-abroad.html
[iii] John Stockwell, THE SECRET WARS OF THE CIA: part I, lecture given in October, 1987,
[iv] John Stockwell, The Praetorian Guard: The U.S. Role in the New World Order, South End Press, July 1, 1999.
[v] John Young, “Wall Street Journal Secrecy,” Cryptome, August 22, 2014, http://cryptome.org/0002/wsj-secrecy.htm
[vi] Peter Dale Scott, “The Deep State and the Wall Street Overworld”, Asia-Pacific Journal: Japan Focus, March 10, 2014, http://japanfocus.org/-Peter_Dale-Scott/4090
[vii] Cindy Cohn and Nadia Kayyali, “The Top 5 Claims That Defenders of the NSA Have to Stop Making to Remain Credible,” Electronic Frontier Foundation, June 2, 2013, https://www.eff.org/deeplinks/2014/06/top-5-claims-defenders-nsa-have-stop-making-remain-credible
[viii] Barton Gellman and Ellen Nakashima, “, U.S. spy agencies mounted 231 offensive cyber-operations in 2011, documents show” Washington Post, August 30, 2013
[ix] Nadia Kayyali, “The Way the NSA Uses Section 702 is Deeply Troubling. Here’s Why,” Electronic Frontier Foundation, May 7, 2014, https://www.eff.org/deeplinks/2014/05/way-nsa-uses-section-702-deeply-troubling-heres-why
[x] John Napier Tye, “Meet Executive Order 12333: The Reagan rule that lets the NSA spy on Americans,” Washington Post, July 18, 2014, http://www.washingtonpost.com/opinions/meet-executive-order-12333-the-reagan-rule-that-lets-the-nsa-spy-on-americans/2014/07/18/93d2ac22-0b93-11e4-b8e5-d0de80767fc2_story.html
[xi] Mark Mazzetti And Jonathan Weisman, “Conflict Erupts in Public Rebuke on C.I.A. Inquiry,” New York Times, March 11, 2014, http://www.nytimes.com/2014/03/12/us/cia-accused-of-illegally-searching-computers-used-by-senate-committee.html
[xii]Mark Mazzetti, “C.I.A. Admits Penetrating Senate Intelligence Computers,” New York Times, July 31, 2014, http://www.nytimes.com/2014/08/01/world/senate-intelligence-commitee-cia-interrogation-report.html
[xiii] Molly Mulrain, “Former CIA Official: ‘Cyber Will Be Key Component of Any Future Conflict’”, ExecutiveBiz, August 4, 2011, http://blog.executivebiz.com/2011/08/former-cia-official-cyber-will-be-a-key-component-of-any-future-conflict/
[xiv] Gerry Smith, “Cyber-Crimes Pose ‘Existential’ Threat, FBI Warns,” Huffington Post, January 12, 2012, http://www.huffingtonpost.com/2012/01/12/cyber-threats_n_1202026.html
[xv] “U.S. Cyber Command Head General Alexander To Keynote Black Hat USA 2013,” Dark Reading, May 14, 2013, http://www.darkreading.com/risk/us-cyber-command-head-general-alexander-to-keynote-black-hat-usa-2013/d/d-id/1139741
[xvi] Daniel E. Geer, “Cybersecurity and National Policy,” Harvard Law School National Security Journal, Volume 1 – April 7, 2010, http://harvardnsj.org/2011/01/cybersecurity-and-national-policy/
[xix] Jim Finkle, “Defcon 2012 Conference: Hackers To Meet With U.S. Spy Agency Chief,” Reuters, July 20, 2012, http://www.huffingtonpost.com/2012/07/20/defcon-2012_n_1691246.html
[xx] Spencer Ackerman, “NSA keeps low profile at hacker conventions despite past appearances,” Guardian, July 31, 2014, http://www.theguardian.com/world/2014/jul/31/nsa-hacker-conventions-recruit-def-con-black-hat/print
[xxi] George Smith, “Computer Security for the 1 Percent Day,” Escape From WhiteManistan, May 19, 2014, http://dickdestiny.com/blog1/?p=18011
[xxiii] Dan Goodin, “For first time ever, feds asked to sit out DefCon hacker conference,” Ars Technica, July 11, 2013, http://arstechnica.com/security/2013/07/for-first-time-ever-feds-asked-to-sit-out-defcon-hacker-conference/
[xxiv] Tim Shorrock, “Put the Spies Back Under One Roof,” New York Times, June 17, 2013, http://www.nytimes.com/2013/06/18/opinion/put-the-spies-back-under-one-roof.html
[xxv] “”We Won’t Succumb to Threats”: Journalists Return to U.S. for First Time Since Revealing NSA Spying,” Democracy Now! April 14, 2014, http://www.democracynow.org/2014/4/14/we_wont_succumb_to_threats_journalists#
[xxvi] “Inside the Web’s $156 Billion Invisible Industry,” Motherboard, December 18, 2013, http://motherboard.vice.com/blog/inside-the-webs-156-billion-invisible-industry
[xxvii] Spencer Ackerman, “NSA keeps low profile at hacker conventions despite past appearances,” Guardian, July 31, 2014, http://www.theguardian.com/world/2014/jul/31/nsa-hacker-conventions-recruit-def-con-black-hat/print
[xxviii] Andrea Shalal and Jim Finkle, “U.S. may act to keep Chinese hackers out of Def Con hacker event,” Reuters, May 24, 2014, http://www.reuters.com/article/2014/05/24/us-cybercrime-usa-china-idUSBREA4N07D20140524
China’s Foreign Ministry Spokeswoman Hua Chunying
China has dismissed the recent allegation by the US that the Chinese military has been involved in hacking a US security firm, describing Washington’s approach on the issue as unconstructive.
A private US cyber security firm accused a unit of China’s military on Monday of hacking attempts to access information on US satellite and aerospace programs, Xinhua reported.
China’s Foreign Ministry Spokeswoman Hua Chunying rejected the allegation at a press briefing on Tuesday.
“I have noticed the report you mentioned, its wording and style looks familiar, citing the names of the hackers and their claims of their military identity,” she said, responding to a question about US reports alleging Chinese hacking attempts. “Have you ever seen thieves bearing a name tag saying ‘thieves?’” she said.
Washington had issued an indictment against five Chinese military officers on charges of cyber theft earlier on May 19.
The Chinese Foreign Ministry spokeswoman further challenged the integrity of the US allegations against her country, referring to the massive American espionage efforts across the globe as part of its PRISM program under the US National Security Agency (NSA).
The program, which was revealed by former NSA contract employee Edward Snowden in 2013, showed that the US was spying on the phone and email communications of top world leaders, including those of Washington’s allied countries as well as China.
“The US is a hacking empire,” Hua said. “It is not constructive for the US to attack others instead of repenting and correcting its own mistakes.”
The Chinese official further pointed out that cyber attacks are a global challenge – transnational and anonymous in nature – requiring cooperation among all countries to be countered.
Former NSA counsel and surveillance/security state hypeman Stewart Baker has had just about enough of Techdirt making “distorted claims” about his statements for the “purposes of making money.” To counter this, he’s sent a “right to be forgotten” request to Google stating the following:
Reason this link violates the right to be forgotten:
This link is inappropriate. It compiles stories making many distorted claims about my political views. Political views are a particularly sensitive form of personal data. The stories are written by men who disagree with me, and they are assembled for the purpose of making money for a website, a purpose that cannot outweigh my interest in controlling the presentation of sensitive data about myself.
Baker’s certainly not hoping for Techdirt’s posts on him to be de-listed (although I imagine he’d indulge in a chuckle or two if they went down). He’s mocking the ridiculousness of the “right to be forgotten” ruling Google is now attempting to comply with. He has submitted other requests as well over such things as outdated photos and “inaccurate” statements as the kickoff to an informal “hack” of a bad law.
I feel bad for Google, which is stuck trying to administer this preposterous ruling. But that shouldn’t prevent us from showing quite concretely how preposterous it is.
I propose a contest. Let’s all ask for takedowns. The person who makes the most outrageous (and successful) takedown request will win a “worst abuse of privacy law” prize, otherwise known as a Privy.
Stewart’s takedown request targeting Techdirt is mostly tongue-in-cheek, but it does highlight the sort of abuse that should be expected when government bodies attempt to force the internet to bend to their will. Granting a “right to be forgotten” pretty much ensures that a majority of the requests will be no more legitimate than Baker’s.
Multiple advocates for the law have compared it with the infamous DMCA takedown notice, something that has also been routinely abused. But at least the DMCA takedown carries with it the (almost never enforced) charge of perjury for issuing bogus takedowns. The RTBF form simply asks for a copy of the submitter’s identification. There’s nothing in it to discourage abuse of the system. If you don’t like something someone has said about you on the web, just fill out a webform.
While we at Techdirt disagree with most of what Stewart Baker says, at least his position on privacy remains consistent. His “Privys” — an “award” given to the worst or most hypocritical abuser of privacy laws — have generally been awarded to worthy recipients, usually people who tend to think these laws exist to save them from their own embarrassments.
As for the “right to be forgotten,” it appears as though requests may be forwarded to Chilling Effects. On June 6th, this test post showed up in the database.
A request has been made to remove one or more links from a search page under European “right to be forgotten” rules, following Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez.
The body of the post contains nothing but the word “TEST” but this seems to indicate that an attempt will be made to publish takedown attempts. At this point, it’s impossible to say how much information will be redacted, or if the European Commission will even allow this sort of transparency. Google is also toying with appending messages to the bottom of search results pages indicating that link(s) may have been removed due to “RTBF” requests. If this works like DMCA requests do, then a link to Chilling Effects database will be provided. These measures won’t necessarily deter abuse, but they will make it much easier to track.
The German government has been trying to avoid upsetting either the US by denouncing the large-scale surveillance being carried out by the NSA in its country, or the German people by not denouncing it. It finds itself in the same quandary as regards opening a formal investigation into the spying, which is probably why it has held off for so long. But now, the German authorities have come up with a sort of compromise, as GigaOM reports:
Germany’s federal prosecutor has launched the country’s first formal investigation into the activities of the NSA in Germany, specifically the U.S. intelligence agency’s reported bugging of Chancellor Angela Merkel’s mobile phone.
Harald Range said on Wednesday that the other potential avenue of investigation — that of the surveillance of the German people — remained open, though no investigation was being launched yet due to a lack of evidence.
Leaving aside the question just how much evidence the federal prosecutor needs before he investigates whether the German people have been subjected to US surveillance — a signed confession from President Obama perhaps? — the other issue here is the astonishing lack of sensitivity this move displays. The German government seems to be saying that spying is outrageous and must be investigated immediately if it’s directed against the powerful; but if it’s against the little people, then, well, sorry: we need more evidence before we could possibly risk upsetting the US.
A federal judge who ordered the National Security Agency to retain all records of its secret telephone surveillance related to an ongoing case has reversed the order – just a day after it was issued.
“In order to protect national security programs, I cannot issue a ruling at this time. The Court rescinds the June 5 order,” US District Judge Jeffrey White said from the bench on Friday.
The NSA had been prohibited from destroying any of its records of communications surveillance on Thursday – specifically under the government’s Section 702 program.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) has been used by the NSA to justify widespread collection of phone calls and emails.
White first ordered that the agency retain records in March, to which the NSA responded that it was legally obliged to destroy all documents after a five year period.
White issued the temporary restraining order (TRO) in March to prevent the destruction of evidence. However, on Thursday, EFF filed an emergency motion, stating that in the past week interactions with government lawyers demonstrated that the destruction of records had continued.
Records could form a basis of evidence for two pending lawsuits posing a challenge to the surveillance program. One was filed by AT&T customers and the other by 23 Californian organizations.
The case – Jewel v. NSA the Electronic Frontier Foundation (EFF) sued the NSA and other government agencies on behalf of AT&T customers.
The Friday hearing saw lawyers from the Electronic Frontier Foundation (EFF) going up against lawyers from the Department of Justice.
The case has stagnated in the court system for several years. In 2008, the original complaint was filed against AT&T and the government, which it was alleged, was involved in “illegal and unconstitutional program of dragnet communications surveillance conducted by the National Security Agency and other Defendants in concert with major telecommunications companies.”
Evidence pre-dated Snowden’s revelations in June 2013, and was based on evidence from former San Francisco AT&T technician Mark Klein in 2006.
“I don’t want the preservation effects to get in the way of national security, but I don’t want national security to checkmate our case,” Cindy Cohn, an EFF attorney, told the court, reported arstechnica.
Justice department lawyers sought a stay. They argued that phone records and internet programs were separate. Section 702 allows the government access to emails and Facebook messages. The lawyers said that their compliance would put the program at risk.
Remember When Venezuela and Bolivia Kicked the U.S. DEA Out of Their Countries, Accusing It of Espionage? Looks Like They Were Right…
In their latest article on U.S. government spying for The Intercept, Ryan Devereaux, Glenn Greenwald and Laura Poitras review and publish leaked documents that show that the U.S. government may have used the Drug Enforcement Administration (DEA) to aid the National Security Agency (NSA) to spy on U.S. citizens and non-citizens in foreign countries. The NSA is shown to have assisted the DEA with efforts to capture narcotraffickers, but the leaked documents also refer to “a vibrant two-way information sharing relationship” between the two intelligence agencies, implying that the DEA shares its information with the NSA to aid with non-drug-related spying. This may explain how the NSA has gathered not just metadata but also the full-take audio from “virtually every cell phone conversation on the island nation of the Bahamas.”
The authors write,
The DEA has long been in a unique position to help the NSA gain backdoor access to foreign phone networks. “DEA has close relationships with foreign government counterparts and vetted foreign partners,” the manager of the NSA’s drug-war efforts reported in a 2004 memo. Indeed, with more than 80 international offices, the DEA is one of the most widely deployed U.S. agencies around the globe.
But what many foreign governments fail to realize is that U.S. drug agents don’t confine themselves to simply fighting narcotics traffickers. “DEA is actually one of the biggest spy operations there is,” says Finn Selander, a former DEA special agent who works with the drug-reform advocacy group Law Enforcement Against Prohibition. “Our mandate is not just drugs. We collect intelligence.”
What’s more, Selander adds, the NSA has aided the DEA for years on surveillance operations. “On our reports, there’s drug information and then there’s non-drug information,” he says. “So countries let us in because they don’t view us, really, as a spy organization.”
While the documents accompanying the article reveal detailed information that has never before been available to the public, this is not the first time that the DEA has faced allegations of spying.
In 2005, President Hugo Chávez of Venezuela stopped cooperating with the DEA after accusing it of espionage in his country. At the time, a State Department spokesperson responded by saying, “the accusations that somehow the Drug Enforcement Agency is involved in espionage are baseless. There’s no substance or justification for them.” Using arguments that would change very little over the next nine years, a State Department official said at the time, “I think it’s pretty clear to us that the motivation for this is not the accusation itself or not what they state is the problem. The motivation is an effort to detract from the government’s increasingly deficient record of cooperation.”
Three years later, President Evo Morales expelled the DEA from Bolivia saying, “there were DEA agents who worked to conduct political espionage.” He also said, “we can control ourselves internally. We don’t need any spying from anybody.” The State Department spokesperson said in response, “the charges that have been made are just patently absurd. We reject them categorically”, and the news agency EFE reported that “Washington has repeatedly denied that the DEA has been involved in any activities in Bolivia apart from the war on drugs.”
Few of the press reports from 2005 or 2008 took these accusations seriously, and the State Department dismissed the allegations categorically, but in 2008, CEPR’s co-director Mark Weisbrot wrote that “To the Bolivians, the U.S. is using the “war on drugs” throughout Latin America mainly as an excuse to get boots on the ground, and establish ties with local military and police forces.” To this list, we can now add access to national phone and communication networks, and storage of the content of phone calls.
Germany’s Chancellor Merkel is in the White House for the first time since it was revealed the NSA monitored her personal communications. During bilateral talks with Barack Obama, Merkel is expected to broach sanctions on Russia and US spying.
Relations between Washington and Berlin are showing signs of tensions, as German companies call for a halt to sanctions on Russia. Furthermore, Germany is still reeling from the NSA spy revelations that affected millions of German citizens, as well as high-ranking businessmen and politicians.
Merkel reiterated earlier this week that Germany would support any further financial sanctions against Russia. However, growing calls from the German business sector may force her to change her policy in Friday’s meeting.
“The Germans are very clear they are not going to pursue factions that hurt German industry. That would be the straw that broke the camel’s back,” said Michael Hudson professor of Economics at the University of Missouri to RT.
Indeed, some major corporate figures have already spoken out against a potential escalation of the sanctions, maintaining they will do more harm than good to the German economy.
“If there’s a single message we have as business leaders, then it’s this: sit down at the negotiating table and resolve these matters peacefully,” Eckhard Cordes told a recent conference in Berlin. Cordes is a former Daimler AG executive who now heads the Ostauschuss, German industry’s branch for Eastern Europe, reported the Wall Street Journal.
So far the US, EU, Canada and Japan have imposed sanction on Russia for its alleged role in the unrest in eastern Ukraine. Moscow has denied claims it is involved in the unrest and has pointed the finger at Washington for orchestrating the situation in Ukraine as part of its geopolitical strategy in the region.
The espionage antics of the US National Security Agency remain a bone of contention between Berlin and Washington. It emerged earlier in April that Merkel had been denied access to her NSA file, following reports the agency had monitored her personal communications. The revelations had a profound effect on German society, prompting calls for Washington to account for its actions.
“First the US denied spying on Merkel’s cell phone, then admitted it, now it just continues, because Obama says ‘we reserve the right to collect information.’ I just see Angela Merkel going to the US to pick up new instructions,” Ken Jebson, Redaktion radio host told RT’s Peter Oliver.
While WikiLeaks spokesperson Kristinn Hrafsson, said the German government’s lack of resolve over the NSA spy scandal is indicative of European cowardice in the face of US dominance.
“I think the proof of the cowardice of governments and politicians and their unwillingness to tackle this in a meaningful way, despite what they say publicly, was when European countries closed their airspace and forced the presidential plane of Evo Morales to land in Austria, on a hunch that Edward Snowden was on board,” he told RT.
Earlier this year Washington pledged that it would no longer spy on world leaders, but stated it would still gather information on the intentions of foreign powers through its espionage programs.
New York – The Supreme Court announced yesterday that it would not hear Center for Constitutional Rights v. Obama, a lawsuit challenging the National Security Agency’s warrantless surveillance of people within the United States. The suit sought an injunction ordering the government to destroy any records of surveillance that it still retains from the illegal NSA program. The Center for Constitutional Rights issued the following statement in response to the Court’s decision:
The Supreme Court’s refusal to review this case guarantees that the federal courts will never address a fundamental question: Was the warrantless surveillance program the NSA carried out on President Bush’s orders legal? The Court’s decision also guarantees that the Obama administration, which has for the last five years refused to take any position on that question, will now never have to answer either.
Despite mounting evidence of government spying on attorneys’ privileged communications, the Court yesterday declined to review the lower court’s determination that CCR attorneys’ fears of surveillance under President Bush’s NSA program, which involved no review by judges or Congress and flew directly in the face of express criminal prohibitions, were too “speculative” to allow CCR to challenge the program in court.
The Court’s decision comes as increasing evidence suggests the government has been surveilling attorney-client communications for some time. The New York Times recently reported that in 2013 the NSA surveilled law firm Mayer Brown while it represented the government of Indonesia in trade talks with the United States. In 2008, The Times reported Justice Department officials had confirmed that attorney-client communications in terrorism cases were sometimes subject to surveillance. And a document accidentally released to an Islamic charity in 2004 indicated that the D.C.-based attorneys for the charity had been subject to surveillance while speaking to their clients.
A memo released by whistleblower Edward Snowden indicated that the government only excludes attorney-client communications from collection when the client is under actual indictment in the United States. Communications of attorneys not directly with a client (for example, with expert witnesses or investigators abroad), or with a client not formally charged in the United States (including, for example, the Center for Constitutional Rights’ many Guantanamo detainee clients, none of whom are charged in federal courts) might now be subject to surveillance under broad orders issued under the current FISA statute.
The Verge had a story last week (expanding on an August report from the Chicago Tribune that I’d missed) that the Chicago police have created a list of the “400 most dangerous people in Chicago.” The Trib reported on one fellow, who had no criminal arrests, expressing surprise over having received a visit from the police and being told he was on this list. A 17-year-old girl was also shocked when told she was on the list.
The database, according to the Verge, is based on historic crime information, disturbance calls, and suspicious person reports. The CPD’s list is heavily based on social network analysis (which is interesting considering the debates now swirling around the uses of metadata and the analysis such data enables). A sociologist whose work inspired the list, Andrew Papachristos, told the author of a Chicago Magazine piece (which goes into some interesting depth on some of the theory behind the list): “It’s not just about your friends and who you’re hanging out with, it’s actually the structure of these networks that matter.”
The list was funded through a Justice Department grant known as “Two Degrees of Association.” (At least that’s one less hop than the NSA uses.)
I’m still consistently surprised how often things we worry about in the abstract actually show up in the real world. For years, privacy advocates have been warning about how databases might be mined by the authorities for information used to label, sort, and prejudge people. True, there are all too many precedents for this sort of thing, including the CAPPS II program proposed early in the Bush Administration, the nation’s terrorist watch lists, various police gang lists, and the Automated Targeting System. The TSA’s Pre-Check whitelist is also a cousin of this kind of program. All are based on using various information sources and grinding them through one or another logic engines to spit out a judgment about individuals and their supposed dangerousness or safeness as a human being. But still, this program amazes me in how starkly it replicates the kinds of things we have been warning about in many different contexts.
Just two weeks ago, for example, I was asked by several news outlets what we think about police officers using Google Glass. I told them that Glass is basically a body camera, and that the issues were the same as those outlined in our white paper on police use of that technology. The principal difference between Glass and the body cameras being marketed to police is that Glass can also display information. I said this shouldn’t be a problem—unless (I added almost apologetically because of the slightly fanciful nature of this point) the police started using them with face recognition to display some kind of rating or warning for individuals who have been somehow determined to be untrustworthy.
“Of course, that’s not a problem today,” I said, “it’s more of a futuristic concern.”
Ha! Barely a week later, that scenario doesn’t seem so futuristic any more to me, especially at a time when some want to use face recognition to warn them when someone on a blacklist tries to enter a store or school. (True, Google doesn’t currently permit FaceRec apps on Glass, but it’s unclear how long that will last.)
Some further points and questions about Chicago’s heat list:
- The principal problem with flagging suspicious individuals in this way may be the risk of guilt by association. Although we don’t know how valid, accurate, and fair the algorithm is, it’s important to note that even if its measures were valid statistically—that one particular individual really does have an increased risk of crime because of certain things about his or her life—it may still constitute guilt-by-association for a person who actually remains innocent. It is simply not fair for people to be subject to punishments and disadvantages because of the groups they belong to or what other people in similar circumstances tend to do. I keep going back to the example of the man whose credit rating was lowered because the other customers of a store where he shopped had poor repayment histories.
- Why should the police restrict their hotlist to 400? Why not 4,000 or 40,000? In fact, why not give every citizen a rating, between 1 and 100 say, of how “risky” they might be? Then the police could program their Google Glass to display that score hovering above the head of every person who comes into their field of vision. This is a path it’s all too easy to see the police sliding down, and one we should not take even the first steps towards.
- Remember too the point that (as I made here) there are a vast number of laws on the books, many complicated and obscure, and anyone who is scrutinized closely enough by the authorities is far more likely to actually be found to have run afoul of some law than a person who isn’t. In that respect inclusion on the list could become a self-fulfilling prophesy.
- Will the Chicago police carry out any kind of analysis to measure how effective this technique is? Will they look at the success of their predictions, search for any discriminatory effects, or attempt to find out whether these rankings become a self-fulfilling prophesy? The police often have little inclination to do any such things—to adopt rigorous criteria for measuring whether their new toys and gizmos are providing a good return on investment. Purely from an oversight point of view, every aspect of this program would ideally be made public so the world could scrutinize it—certainly the algorithm. Privacy concerns, however, suggest that the names of individuals who are (quite possibly totally unfairly) flagged by these algorithms not be made public, nor any personal data that is being fed into the algorithms.
- A Chicago police commander is quoted as saying, “If you end up on that list, there’s a reason you’re there.” This framing begs the question at the heart of this approach: is it valid and accurate? Such circular logic is genuinely frightening when it comes from a police officer talking about matters of guilt and innocence.
- It’s true that there could be a fine line between laudable efforts to identify and help “at-risk youth,” and efforts to tag some people with labels that are used to discriminate and stigmatize. Research on the “epidemiology of violence” could be valuable if used as part of a public health approach to crime. But if it’s part of a criminal justice “pre-crime” approach, then that’s where the problems arise.
Overall, the key question is this: will being flagged by these systems lead to good things in a person’s life, like increased support, opportunities, and chances to escape crime—or bad things, such as surveillance and prejudicial encounters with the police? Unfortunately, there are all too many reasons to worry that this program will veer towards the worst nightmares of those who have been closely watching the growth of the data-based society.