Tag: FBI

Mar 14

Decrypting the Encryption Battle

President Barack Obama became the first president to address the annual technology and music festival, South by South West (SXSW), in Austin, Texas. Without mentioning the FBI’s battle with Apple over access to an encrypted i-Phone, his attempt at “healing the rift” between the tech industry and the government fell more than flat and he …

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Feb 12

#OregonStandoff has Ended

After 40 days and several hours of negotiation with the last militant, that could be heard on a YouTube livestream, the illegal occupation of the Malheur National Wildlife Refuge has peacefully ended. The last four holdouts in the armed occupation of a wildlife refuge in eastern Oregon surrendered peacefully Thursday morning, 40 days after the …

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Jan 13

Oregon Terrorist Occupation Enters 2nd Week

The armed occupation of the Malheur National Wildlife Refuge by a group of white terrorists from other state has entered its second week with no clear end in site. The FBI, who took over operations, has so far done nothing, allowing these heavily armed men freedom to come and go as they please and destroy …

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Jul 27

Another Shooting By Another White Extremist

Cross posted from The Stars Hollow Gazette

Last night a 59 year old white man with a criminal record and history of mental illness entered a movie theater in Lafayette, Louisiana, killed two people wounded nine others before turning the gun on himself.

In the search for a motive, what police are now being found out about this man are quite disturbing. It put into question gun control and the lack of focus by law enforcement on America’s white supremacists.

Houser has allegedly posted messages to numerous online forums, suggesting that he held extreme right-wing views and sympathized with white supremacists. It cannot be independently confirmed that these online postings were made by Houser himself before the shooting. The postings on politicalforums.com seem to match based on his age and location. There is less to connect Houser to the postings on Twitter and Golden Dawn that are cited below by the Southern Poverty Law Center.

An individual who went by “John Russell Houser” created a profile on politicalforums.com, on which he included the phrases “believe media/gov’t censoring” and “believe US will be MAD MAX < 5 years.” Under the “Family” category, Houser wrote that “no family safe in US environment.” The profile identified the user as a 59-year-old male residing in Phenix City. [..]

An individual who used the username “Rusty Houser” also posted comments on a forum for Golden Dawn, a neo-Nazi political party in Greece, as the Southern Poverty Law Center noted.

“Do not mistake yourselves for one minute, the enemy sees all posted on this website. I do not want to discourage the last hope for the best, but you must realize the power of the lone wolf, is the power that can come forth in ALL situations.Look within yourselves,” he wrote in one comment.

He also made racist comments in comments on the Golden Dawn forum. [..]

An individual who went by the name Rusty Houser posted on usmessageboard.com that, “Hitler accomplished far more than any other,” according to the Southern Poverty Law Center.

And a Twitter handle for “john russell houser” published messages about the Westboro Baptist Church and censorship. [..]

Houser also served as the guest host on the “Rise and Shine” show on the Columbus, Ga. television station WLTZ, where he “invited political controversy on every one of them, and loved every minute of it,” according to LinkedIn. A former host for the station confirmed to the Associated Press that Houser appeared on his show, where he allegedly advocated for people to commit violence against those involved in abortion.

Houser has a criminal record — he was arrested for arson and selling alcohol to minors, but he had not had any run-ins with law enforcement in the past few years, according to police.

CNN reported that Houser was denied a conceal carry permit in 2006 and was treated for mental health issues in 2008 and 2009. The suspect’s wife sought a restraining order against Houser in 2008 because he “exhibited extreme erratic behavior and has made ominous as well as disturbing statements,” according to the Associated Press.

So, how and where did he get a gun? Why wasn’t this man targeted by law enforcement as a possible threat? Was it because he wasn’t Muslim?

The news that keep getting ignored by the media, law enforcement and our elected officials is that people are more likely to be killed or injured  by angry white man than they are by a Muslim jihadist.

In the 14 years since Al Qaeda carried out attacks on New York and the Pentagon, extremists have regularly executed smaller lethal assaults in the United States, explaining their motives in online manifestoes or social media rants.

But the breakdown of extremist ideologies behind those attacks may come as a surprise. Since Sept. 11, 2001, nearly twice as many people have been killed by white supremacists, antigovernment fanatics and other non-Muslim extremists than by radical Muslims: 48 have been killed by extremists who are not Muslim, including the recent mass killing in Charleston, S.C., compared with 26 by self-proclaimed jihadists, according to a count by New America, a Washington research center.

The slaying of nine African-Americans in a Charleston church last week, with an avowed white supremacist charged with their murders, was a particularly savage case.

But it is only the latest in a string of lethal attacks by people espousing racial hatred, hostility to government and theories such as those of the “sovereign citizen” movement, which denies the legitimacy of most statutory law. The assaults have taken the lives of police officers, members of racial or religious minorities and random civilians.

It’s time this is put in their proper perspectives and start keeping America safe from its homegrown terrorists.

Jul 24

The Slaughter of Nine African Americans an Act of Terrorism

Cross Posted from The Stars Hollow Gazette

Attorney General Loretta Lynch announced a 33 count indictment against Dylann Roof on federal hate-crime charges for the June 17 killing of nine African American worshipers in Charleston, South Carolina This leaves a bigger question that was asked by Jenna McLaughlin at “The Intercept,” why wasn’t Roof charged with terrorism?

Some media outlets, lawyers, public figures and activists have called for Roof to be charged not just with a hate crime, an illegal act “motivated in whole or in part by an offender’s bias,” but with the separate label of domestic terrorism. Critics contend that the label of terrorism is too often only applied to Islamic extremists, and not white supremacists or anti-government anarchists. Many were outraged after FBI Director James Comey balked at the term during a June 20 press conference, telling reporters he didn’t see the murders “as a political act,” a requirement he designated as necessary for terrorism.

Roof’s crime certainly seems to fit the federal description of domestic terrorism, which the FBI defines as “activities … [that] involve acts dangerous to human life that violate federal or state law … appear intended to (i) intimidate or coerce a civilian population, (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.” [..]

It turns out there was one major obstacle in charging Roof with domestic terrorism: The crime does not exist. [..]

Even when the USA Patriot Act, post 9/11, redefined terrorism to include domestic crimes, the provision simply allowed the government to investigate more broadly what it called “terrorism.” Actually charging someone with domestic terrorism remains a separate matter. Even criminals who use bombs or send money to ISIS – or Boston Marathon bomber Dzhokhar Tsarnaev – are not charged with the crime of terrorism. [..]

But shootings, regardless of motivation, intention or number of deaths, likely don’t count. “It doesn’t seem like a shooting would fit,” says Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “Or else a lot of crime would get caught up” in the terrorism net, she tells me.

There are, however, “aggravating factors” to be considered during sentencing, which prosecutors usually list on a formal indictment, and which can be used to determine whether the death penalty is justified, and those include “substantial planning and premeditation,” to”cause the death of a person” or “commit an act of terrorism.”

In Roof’s case, the DOJ did not mention terrorism as an aggravating factor, but did reference (pdf) “substantial planning and premeditation to cause the death of a person” for several of his charges.[..]

Lynch did not explain why “terrorism” was not listed as an aggravating factor in Roof’s indictment, though she did emphasize that the DOJ views hate crimes as “the original domestic terrorism.” She noted that Roof’s case, including his “discriminatory views towards African Americans” and his decision to target “parishioners at worship,” made his crime a clear-cut case of a federal hate crime. [..]

Lynch was asked whether or not there should be a federal domestic terrorism penalty to help bridge the gap between crimes like the shooting of five military personnel in Chatanooga, Tennessee – which was immediately branded as terrorism, by law enforcement and media alike – and Roof’s case, which was not. Lynch acknowledged the argument that leaving out the word terrorism may cause people to feel like the government “doesn’t consider those crimes as serious.”

Ms. McLaughlin is incorrect in her statement that “domestic terrorism” does not exist in the law. This FBI’s definition of 18 U.S.C. § 2331 which defines “international terrorism” and “domestic terrorism” for purposes of Chapter 113B of the Code, entitled “Terrorism”:

“International terrorism” means activities with the following three characteristics:

   Involve violent acts or acts dangerous to human life that violate federal or state law;

   Appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

   Occur primarily outside the territorial jurisdiction of the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.*

“Domestic terrorism” means activities with the following three characteristics:

   Involve acts dangerous to human life that violate federal or state law;

   Appear intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination. or kidnapping; and

   Occur primarily within the territorial jurisdiction of the U.S.

18 U.S.C. § 2332b defines the term “federal crime of terrorism” as an offense that:

   Is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and

   Is a violation of one of several listed statutes, including § 930(c) (relating to killing or attempted killing during an attack on a federal facility with a dangerous weapon); and § 1114 (relating to killing or attempted killing of officers and employees of the U.S.)

Emphasis mine

And just as a note, to those in this piece who don’t think that guns are not “dangerous weapons,” well, they are

By his own statement and the fact that Rev. Clementa Pinckney was an elected state official, Dylann Roof’s acts, under this definition, is clearly an act of terrorism.

The argument against the charge of terrorism by a young white man who was clearly influenced by the politics of racial hatred is specious. It is clearly indicative of the Obama administration and its Justice Department think that black lives do not matter as much as instilling the fear in US citizens of attacks by those who have been influenced by Islamic extremism. Racism is political and it is an extremist view and it is endemic in this country. it is long past time that the law is brought down to bear on the greater threat that racism is to Americans and our democracy.  

Jul 10

FBI’s Lastest Ploy to Spy on Everyone: ISIS

Torture authorizer and current FBI director, James Comey trotted out the latest “bogeyman” to justify unlocking encryption of private digital messages: ISIS. Apparently trying to scare people with kidnappers and child abusers failed.

(In) a preview of his appearance Wednesday before the Senate Intelligence Committee, Comey is playing the ISIS card, saying that it is becoming impossible for the FBI to stop their recruitment and planned attacks. (He uses an alternate acronym, ISIL, for the Islamic State.)

“The current ISIL threat… involves ISIL operators in Syria recruiting and tasking dozens of troubled Americans to kill people, a process that increasingly takes part through mobile messaging apps that are end-to-end encrypted, communications that may not be intercepted, despite judicial orders under the Fourth Amendment,” Comey wrote on Monday in a blog post on the pro-surveillance website Lawfare.

While providing no specific, independently confirmable examples, Comey has claimed that FBI agents are currently encountering problems because of encrypted communications as they track potential ISIS sympathizers and radicals.

Comey has long argued that sophisticated encryption technology being implemented by tech giants, including Google and Apple, will make it harder and harder for the FBI to track its targets. Encryption scrambles the contents of digital communications, making it impossible for users without the “key” to read messages in plain language.

The major problem with Comey’s argument, giving law enforcement a backdoor key to private encrypted communications, would be an open door for hackers and criminals.

On Tuesday, the group – 13 of the world’s pre-eminent cryptographers, computer scientists and security specialists – released the paper (pdf), which concludes there is no viable technical solution that would allow the American and British governments to gain “exceptional access” to encrypted communications without putting the world’s most confidential data and critical infrastructure in danger. [..]

The authors of the report said such fears did not justify putting the world’s digital communications at risk. Given the inherent vulnerabilities of the Internet, they argued, reducing encryption is not an option. Handing governments a key to encrypted communications would also require an extraordinary degree of trust. With government agency breaches now the norm – most recently at the United States Office of Personnel Management, the State Department and the White House – the security specialists said authorities cannot be trusted to keep such keys safe from hackers and criminals. They added that if the United States and Britain mandated backdoor keys to communications, it would spur China and other governments in foreign markets to do the same.

Keys Under Doormats: Mandating insecurity by requiring government access to all data and communications

Twenty years ago, law enforcement organizations lobbied to require data and communication services to engineer their products to guarantee law enforcement access to all data. After lengthy debate and vigorous predictions of enforcement channels going dark, these attempts to regulate the emerging Internet were abandoned. In the intervening years, innovation on the Internet flourished, and law enforcement agencies found new and more effective means of accessing vastly larger quantities of data. Today we are again hearing calls for regulation to mandate the provision of exceptional access mechanisms. In this report, a group of computer scientists and security experts, many of whom participated in a 1997 study of these same topics, has convened to explore the likely effects of imposing extraordinary access mandates. We have found that the damage that could be caused by law enforcement exceptional access requirements would be even greater today than it would have been 20 years ago. In the wake of the growing economic and social cost of the fundamental insecurity of today’s Internet environment, any proposals that alter the security dynamics online should be approached with caution. Exceptional access would force Internet system developers to reverse forward secrecy design practices that seek to minimize the impact on user privacy when systems are breached. The complexity of today’s Internet environment, with millions of apps and globally connected services, means that new law enforcement requirements are likely to introduce unanticipated, hard to detect security flaws. Beyond these and other technical vulnerabilities, the prospect of globally deployed exceptional access systems raises difficult problems about how such an environment would be governed and how to ensure that such systems would respect human rights and the rule of law.

This was a bad idea in 1997 and still a bad idea today.

Apr 24

Framing the Innocent and Vulnerable

Cross posted from The Stars hollow Gazette

The Federal Bureaus of Investigation has been in the news lately for a couple of reasons and none of it very good. The FBI sting operations, which on a whole dubious since it most often involves entrapment, have not actually infiltrated criminal enterprises or terrorist plots. In other words, the vast majority of the victims of FBI stings are the vulnerable who are disenfranchised or mentally unstable who have neither the means or mental capability to even hatch a plot or be a real threat.

The FBI Informant Who Mounted a Sting Operation Against the FBI

By Trevor Aaronson, The Intercept

When you’re introduced to Saeed Torres in the new documentary (T)ERROR, you hear him bickering with the filmmaker, Lyric Cabral. The screen is black. [..]

The blackness lifts. Torres is dressed in a chef’s apron and a white headscarf, making hot dogs at an amateur basketball game, as if he were an all-American guy. [..]

Torres isn’t an all-American guy. He’s an FBI informant, one of more than 15,000 domestic spies who make up the largest surveillance network ever created in the United States. During J. Edgar Hoover’s COINTELPRO operations, the bureau had just 1,500 informants. The drug war brought that number up to about 6,000. After 9/11, the bureau recruited so many new informants – many of them crooks and convicts, desperate for money or leniency on previous crimes – that the government had to develop software to help agents track their spies. [..]

Informants represent the manpower behind the FBI’s controversial stings, which are intended to find would-be terrorists before they attack. In the decade after 9/11, 158 defendants were prosecuted following these undercover operations, which are usually led by an informant and provide the means and opportunity for someone to attempt to commit an act of terrorism. A Human Rights Watch report in 2014 criticized the FBI for targeting “particularly vulnerable people, including those with intellectual and mental disabilities and the indigent.” Late last week, for example, the FBI arrested a mentally troubled 20-year-old in Topeka, Kansas, after he allegedly attempted to bomb Fort Riley with the help of two undercover FBI informants.

While there are more than 15,000 FBI informants, most are low-level operatives who provide scraps of information or tips about people in their community. Only a few of them at any time are high-level operators like Torres – professional liars who travel the country as agents provocateur in elaborate stings. [..]

There’s no shortage of embarrassing moments for the FBI in its dozens of counterterrorism stings since 9/11. In Boston, an FBI informant who was working a counterterrorism case was caught on an FBI camera purchasing heroin, which wasn’t part of his assignment. In case after case, the FBI experiences so-called “recorder malfunctions” – usually at the most unfortunate time for the defendant, such as at the very beginning of the sting or, as in an operation involving a Baltimore teenager, when the target was attempting to back out of the plot. More recently, FBI agents accidentally recorded themselves calling the subject of their undercover investigation a “retarded fool” whose terrorist ambitions were “wishy-washy.”

Democracy Now!‘s Amy Goodman interviews the independent documentary filmmakers, Lyric R. Cabral and David Felix Sutcliffe, who co-directed the documentary film (T)Error. Along with Steve Downs, executive director of the National Coalition to Protect Civil Freedoms, Khalifah al-Akili, a Muslim-American victim of an FBI sting from Pittsburgh, and Marlene, mother of Tarik Shah, who was arrested in 2005 after a joint FBI-NYPD sting operation, they discuss these oprations.

FBI Informant Exposes Sting Operation Targeting Innocent Americans in New “(T)ERROR” Documentary



Transcript can be read here.

Apr 21

TBC: Morning Musing 4.21.15

Howdy! I have 3 articles for your perusal this morning!

First up, some stark news:

Corporations now spend more lobbying Congress than taxpayers spend funding Congress

Corporations now spend about $2.6 billion a year on reported lobbying expenditures – more than the $2 billion we spend to fund the House ($1.16 billion) and Senate ($820 million).

Jump!

Oct 14

Your Privacy Matters

The NSA, FBI and DOJ are upset with the new Apple and Google encryption apps that they can’t hack. The poor Director of the FBI, James Comey is “concerned” so he plays the “fear card”

“I am a huge believer in the rule of law, but I also believe that no one in this country is beyond the law,” Comey told reporters at FBI headquarters in Washington. “What concerns me about this is companies marketing something expressly to allow people to place themselves beyond the law.”

Apple said last week that it would no longer be technically feasible to unlock encrypted iPhones and iPads for law enforcement because the devices would no longer allow user passcodes to be bypassed. The move comes as tech companies struggle to manage public concerns in the aftermath of last year’s leak of classified National Security Agency documents about government access to private user data. [..]

“Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data,” the company said. “So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.”

Comey said that while he understood the need for privacy, government access to mobile devices may be needed in extreme circumstances, such as in the event of a terror attack.

“I like and believe very much that we should have to obtain a warrant from an independent judge to be able to take the content of anyone’s closet or their smart phone,” he said. “The notion that someone would market a closet that could never be opened — even if it involves a case involving a child kidnapper and a court order — to me does not make any sense.”

Comey said FBI officials have had conversations with both Apple and Google about the marketing of their devices.

“Google is marketing their Android the same way: Buy our phone and law-enforcement, even with legal process, can never get access to it,” he said.

Why anyone would think that the guy who approved torture believes in the rule of law is beyond me. Trevor Timm at The Guardian dissects what Comey said:

Comey began:

  I am a huge believer in the rule of law, but I also believe that no one in this country is beyond the law. … What concerns me about this is companies marketing something expressly to allow people to place themselves beyond the law.

First of all, despite the FBI director’s implication, what Apple and Google have done is perfectly legal, and they are under no obligation under the “the rule of law” to decrypt users’ data if the company itself cannot access your stuff. From 47 U.S. Code § 1002 (emphasis mine):

   A telecommunications carrier shall not be responsible for decrypting, or ensuring the government’s ability to decrypt, any communication encrypted by a subscriber or customer, unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication.

Comey continued:

   I like and believe very much that we should have to obtain a warrant from an independent judge to be able to take the content of anyone’s closet or their smart phone.

That’s funny, because literally four months ago, the United States government was saying the exact opposite (pdf) before the US supreme court, arguing that, in fact, the feds shouldn’t need to get a warrant to get inside anyone’s smartphone after you’re arrested. In its landmark June ruling in the case, Riley v California, the court disagreed. So it’s great to see that Jim Comey, too, has come around to the common sense conclusion that cops need a warrant to search your cellphone data, but it would’ve been nice for him to express those sentiments when they actually mattered.

Comey doubled down in another statement with the absurd fear that criminals, like child kidnappers would be able to evade the law. On its face that’s insanely ridiculous since law enforcement has numerous ways tools to access your data. The Intercept‘s Micah Lee points out that Apple still has access to plenty of your data to feed to the Feds. He went on how bemoan the NSA leaks by Edward Snowden has caused the need to protect a person’s private information may have gone too far. How so, Mr. Comey? As Timm notes in his article

Congress has not changed surveillance law at all in the the nearly 16 months since Edward Snowden’s disclosures began, mostly because of the vociferous opposition from intelligence agencies and cops. The pendulum is still permanently lodged squarely on law enforcement’s side. If it has swung at all, it’s because of the aforementioned ruling by the supreme court of the United States, along with tech companies implementing more privacy protections unilaterally because US tech companies are losing billions of dollars because of the government’s spying scandals.

A week ago, The Intercept‘s Glenn Greenwald gave a Ted Talk in Rio de Janeiro on why your privacy matters

Crypto wars redux: why the FBI’s desire to unlock your private life must be resisted

In 1995, the US government tried – and failed – to categorise encryption as a weapon. Today, the same lines are being drawn and the same tactics repeated as the FBI wants to do the same. Here’s why they are wrong, and why they must fail again

Eric Holder, the outgoing US attorney general, has joined the FBI and other law enforcement agencies in calling for the security of all computer systems to be fatally weakened. This isn’t a new project – the idea has been around since the early 1990s, when the NSA classed all strong cryptography as a “munition” and regulated civilian use of it to ensure that they had the keys to unlock any technological countermeasures you put around your data.

In 1995, the Electronic Frontier Foundation won a landmark case establishing that code was a form of protected expression under the First Amendment to the US constitution, and since then, the whole world has enjoyed relatively unfettered access to strong crypto. [..]

The arguments then are the arguments now. Governments invoke the Four Horsemen of the Infocalypse (software pirates, organised crime, child pornographers, and terrorists) and say that unless they can decrypt bad guys’ hard drives and listen in on their conversations, law and order is a dead letter.

On the other side, virtually every security and cryptography expert tries patiently to explain that there’s no such thing as “a back door that only the good guys can walk through” (hat tip to Bruce Schneier). Designing a computer that bad guys can’t break into is impossible to reconcile with designing a computer that good guys can break into.

If you give the cops a secret key that opens the locks on your computerised storage and on your conversations, then one day, people who aren’t cops will get hold of that key, too. The same forces that led to bent cops selling out the public’s personal information to Glen Mulcaire and the tabloid press will cause those cops’ successors to sell out access to the world’s computer systems, too, only the numbers of people who are interested in these keys to the (United) Kingdom will be much larger, and they’ll have more money, and they’ll be able to do more damage.

Long live The Republic.

Aug 01

Democracy Under Fire

Cross posted from The Stars Hollow Gazette

In a joint statement, the ACLU and Human Rights Watch released a 120 page report documenting how mass surveillance by the US is undermining constitutional rights to freedom of the press and legal council

The 120-page report, “With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy,” is based on extensive interviews with dozens of journalists, lawyers, and senior US government officials. It documents how national security journalists and lawyers are adopting elaborate steps or otherwise modifying their practices to keep communications, sources, and other confidential information secure in light of revelations of unprecedented US government surveillance of electronic communications and transactions. The report finds that government surveillance and secrecy are undermining press freedom, the public’s right to information, and the right to counsel, all human rights essential to a healthy democracy.

Amy Goodman and Aaron Mate sat down with Alex Sinha, Aryeh Neier fellow at Human Rights Watch and the American Civil Liberties Union, and Jeremy Scahill, staff reporter with The Intercept to discuss the threat to Americans’ liberties.

In a new report, Human Rights Watch and the American Civil Liberties Union warn that “large-scale surveillance is seriously hampering U.S.-based journalists and lawyers in their work.” The report is based on interviews with dozens of reporters and lawyers. They describe a media climate where journalists take cumbersome security steps that slows down their reporting. Sources are afraid of talking, as aggressive prosecutions scare government officials into staying silent, even about issues that are unclassified. For lawyers, the threat of surveillance is stoking fears they will be unable to protect a client’s right to privacy. Some defendants are afraid of speaking openly to their own counsel, undermining a lawyer’s ability provide the best possible defense.



Transcript can be read here

Journalism under fire: America’s freedom of the press is in danger

By Heather Digby Parton, Salon

If there’s one thing that civil libertarians across the American political spectrum tend to agree upon, it’s that the Bill of Rights is a guiding document. It doesn’t say everything but it says a lot. The various political factions do sometimes differ in their emphasis and interpretation, with the right’s civil libertarians often tending to focus more closely on the 1st Amendment’s establishment clause and the 2nd Amendment while the left-leaning civil libertarians take a harder line on freedom of speech and the 4th amendment. This is of course a sweeping generalization which can be disproved in dozens of individual cases, but for the sake of argument, it can probably be stipulated that those who concern themselves with the civil liberties enshrined in the Constitution all agree on the Bill of Rights’ importance to our constitutional order.  And they tend to agree across the board, with equal fervor, on the necessity of a free press to a functioning democracy. [..]

Considering the reaction of many people in the government toward reporters involved in the NSA revelation, it’s clear they have reason to be paranoid. There are government officials awho consider them to be spies and have said they should be punished as such. Even fellow journalists have brought up the question of “aiding and abetting” as if it’s a legitimate line of inquiry.

The atmosphere of mistrust is also rampant within the government, as with the administration having cracked down on contacts between the intelligence community and issuing threats of legal action even before the Snowden revelations. The institutionalized, government-wide initiative called the Insider Threat Program could have any federal employee looking over his  shoulder and worrying that his innocent behavior might be construed as suspicious. [..]

And it’s not just national security agencies that are subject to this program. They are in effect in departments as disparate as the Department of Education and the Peace Corps.

Top Journalists and Lawyers: NSA Surveillance Threatens Press Freedom and Right to Counsel

By Dan Froomkin, The Intercept

Not even the strongest versions of NSA reform being considered in Congress come anywhere close to addressing the chilling effects on basic freedoms that the new survey describes.

“If the US fails to address these concerns promptly and effectively,” report author  G. Alex Sinha writes, “it could do serious, long-term damage to the fabric of democracy in the country.”

Even before the Snowden revelations, reporters trying to cover important defense, intelligence and counter-terrorism issues were reeling from the effects of unprecedented secrecy and attacks on whistleblowers.

But newfound awareness of the numerous ways the government can follow electronic trails –  previously considered the stuff of paranoid fantasy – has led sources to grow considerably more fearful.

Jul 31

USA Freedom Act Still Won’t Protect Americans’ Liberties

Cross posted from The Stars Hollow Gazette

Senator Patrick Leahy (D-NH) introduced the version of the USA Freedom Act on Tuesday.

Leahy’s bill, like the House’s, would still provide the NSA with access to enormous amounts of American phone data. Though it would require a judge to issue an order to telecos for “call detail records” based on a “reasonable, articulable suspicion” of association with terrorism or a foreign power, the NSA will be able to use that single order to obtain the “call detail records” of a suspicious entity, as well as those of entities in “direct connection” with it and entities in connection with those.

While that would permit the NSA to yield thousands of records off of a single court order, on a daily basis for six months, the NSA and the bill’s architects contend that it bans “bulk collection.”

Leahy’s bill would go further than the House version in narrowing the critical definition of “specific selection term,” a foundational aspect of the bill defining what the government can collect. The House definition is a “term specifically identifying a person, entity, account, address, or device,” which privacy groups have lambasted as unreasonably broad.

Seeking to plug that loophole, Leahy would prevent the NSA or the FBI from accessing a service provider’s entire clientele or a wholesale “city, state, zip code, or area code.”

Although the Leahy bill has the support of several civil libertarian groups and major tech firms like Facebook and Google, it does not revive some privacy proposals that those organizations considered crucial but the intelligence agencies and their advocates in Congress stripped from the House measure.

There are still some really big loopholes, as noted by emptywheel’s Marcy Wheeler:

Leahy’s bill retains the language from USA Freedumber on contact chaining, which reads,

   (iii) provide that the Government may require the prompt production of call detail records-

   (I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and

   (II) using call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records;

Now, I have no idea what this language means, and no one I’ve talked to outside of the intelligence committees does either. It might just mean they will do the same contact chaining they do now, but if it does, why adopt this obscure language? It may just mean they will correlate identities, and do contact chaining off all the burner phones their algorithms say are the same people, but nothing more, but if so, isn’t there clearer language to indicate that (and limit it to that)? [..]

I remain concerned, too, that such obscure language would permit the contact chaining on phone books and calendars, both things we know NSA obtains overseas, both things NSA might have access to through their newly immunized telecom partners.

In addition, Leahy’s bill keeps USA Freedumber’s retention language tied to Foreign Intelligence purpose, allowing the NSA to keep all records that might have a foreign intelligence purpose.

That’s just for starters. She is also concerned about the vague language will still be used to allow bulk collection. She doesn’t think it’s strong enough

The question is whether this “agency protocol” – what Chief Justice John Roberts said was not enough to protect Americans’ privacy – is sufficient to protect Americans’ privacy.

I don’t think it is.

First, it doesn’t specify how long the NSA and FBI and CIA can keep and sort through these corporate records (or what methods it can use to do so, which may themselves be very invasive).

It also permits the retention of data that gets pretty attenuated from actual targets of investigation: agents of foreign powers that might have information on subjects of investigation and people “in contact with or known to” suspected agents associated with a subject of an investigation.

Known to?!?! Hell, Barack Obama is known to all those people. Is it okay to keep his data under these procedures?

Also remember that the government has secretly redefined “threat of death or serious bodily harm” to include “threats to property,” which could be Intellectual Property.

So CIA could (at least under this law – again, we have no idea what the actual FISC orders this is based off of) keep 5 years of Western Union money transfer data until it has contact chained 3 degrees out from the subject of an investigation or any new subjects of investigation it has identified in the interim.

In other words, probably no different and potentially more lenient than what it does now.

And one more thing from Marcy: Leahy’s version still will allow the FBI uncounted use of backdoor searches:

I strongly believe this bill may expand the universe of US persons who will be thrown into the corporate store indefinitely, to be subjected to the full brunt of NSA’s analytical might.

But that’s not the part of the bill that disturbs me the most. It’s this language:

   ‘(3) FEDERAL BUREAU OF INVESTIGATION.-

   Subparagraphs (B)(iv), (B)(v), (D)(iii), (E)(iii), and (E)(iv) of paragraph (1) of subsection (b) shall not apply to information or records held by, or queries conducted by, the Federal Bureau of Investigation.

The language refers, in part,  to requirements that the government report to Congress [..]

These are back door searches on US person identifiers of Section 702 collected data – both content (iv) and metadata (v).

In other words, after having required the government to report how many back door searches of US person data it conducts, the bill then exempts the FBI.

The FBI – the one agency whose use of such data can actually result in a prosecution of the US person in question.

We already know the government has not provided all defendants caught using 702 data notice. And yet, having recognized the need to start counting how many Americans get caught in back door searches, Patrick Leahy has decided to exempt the agency that uses back door searches the most.

And if they’re not giving defendants notice (and they’re not), then this is an illegal use of Section 702.

While the Senate version may be a good enough reason for some civil libertarians, privacy groups and technology firms to back, it still falls far short of what is needed to protect Americans’ constitutional rights and privacy.

Jul 10

Americans Spied On By NSA & FBI Without Cause

Cross posted from The Stars Hollow Gazette

The National Security Agency and the Federal Bureau if Investigation was given authorization by a judge with the top-secret Foreign Intelligence Surveillance Court to spy on five Americans because of their political activity and, umm, their Middle Eastern names:

Meet the Muslim-American Leaders the FBI and NSA Have Been Spying On

By Glenn Greenwald and Murtaza Hussain

he National Security Agency and FBI have covertly monitored the emails of prominent Muslim-Americans-including a political candidate and several civil rights activists, academics, and lawyers-under secretive procedures intended to target terrorists and foreign spies.

According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:

• Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;

• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;

• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;

• Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;

• Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

The individuals appear on an NSA spreadsheet in the Snowden archives called “FISA recap”-short for the Foreign Intelligence Surveillance Act. Under that law, the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also “are or may be” engaged in or abetting espionage, sabotage, or terrorism. The authorizations must be renewed by the court, usually every 90 days for U.S. citizens.he National Security Agency and FBI have covertly monitored the emails of prominent Muslim-Americans-including a political candidate and several civil rights activists, academics, and lawyers-under secretive procedures intended to target terrorists and foreign spies.

According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:

• Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;

• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;

• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;

• Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;

• Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

The individuals appear on an NSA spreadsheet in the Snowden archives called “FISA recap”-short for the Foreign Intelligence Surveillance Act. Under that law, the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also “are or may be” engaged in or abetting espionage, sabotage, or terrorism. The authorizations must be renewed by the court, usually every 90 days for U.S. citizens. [..]

The five Americans whose email accounts were monitored by the NSA and FBI have all led highly public, outwardly exemplary lives. All five vehemently deny any involvement in terrorism or espionage, and none advocates violent jihad or is known to have been implicated in any crime, despite years of intense scrutiny by the government and the press. Some have even climbed the ranks of the U.S. national security and foreign policy establishments.

[..]

Asim Ghafoor says his first-hand experience working on behalf of other Muslim-Americans has led him to believe that “the U.S. government embarked on a very systematic approach” to target his community.

“I saw the government specifically go after Muslim people who were involved in certain activities such as charity work, humanitarian work, political activism,” he says. “Maybe they had some website that had some speeches that nobody ever read or even noticed, maybe they had some bloodcurdling speeches. So the government just treated you like you were blowing up the next tower. They treated you like you were going to be the Manchurian Candidate, you were going to destroy America from within. There were U.S. attorneys, FBI agents, DHS agents, customs agents all over the country that were trying to find the next terror cell in their midst. If you were involved in those activities and maybe you were on a student visa and you didn’t quite fill out the paperwork, you were hosed. There is no question about it, you were worse off than a migrant worker in Dubai. You were just packed up and sent home. Life became very, very unbearable for them.”

Even a U.S. citizen like Faisal Gill, who served his country both in the armed forces and in the White House, found himself spied on by his own government. “I was a very conservative, Reagan-loving Republican,” he says. “If somebody like me could be surveilled, then [there are] other people out there I can only imagine who are under surveillance.

“I went to school here as a fourth grader – learned about the Revolutionary War, learned about individual rights, Thomas Jefferson, all these things,” he continues. “That is ingrained in you – your privacy is important. And to have that basically invaded for no reason whatsoever – for the fact that I didn’t do anything – I think that’s troubling. And I think that certainly goes to show how we need to shape policy differently than it is right now.”

As per Huffington Post‘s Ryan Grim, Glenn Greenwald received the permission of all five named in the article before printing their names.

This is the Democratic administration of Barack Hussein Obama.

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