Tag Archives: civil liberties

Everyone Is Happy About the Surveillance Debate

by Abe Johnson Posted on September 13, 2013

Mother Jones

Here is James Clapper, the director of national intelligence, talking about the disclosure of NSA surveillance programs by Edward Snowden:

I think it’s clear that some of the conversations this has generated, some of the debate, actually needed to happen.

And here is FISA judge Dennis Saylor, ordering the government to conduct a declassification review of court rulings related to the NSA’s phone records program:

The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215. Publication of FISC opinions relating to this provision would contribute to an informed debate….Publication would also assure citizens of the integrity of this Court’s proceedings.

And, of course, here is President Obama shortly after the first Snowden disclosures:

I welcome this debate. And I think it’s healthy for our democracy.

It’s unanimous! Everyone thinks that Snowden’s disclosures have generated a useful and much needed debate. So when do we actually get to have this debate?

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Everyone Is Happy About the Surveillance Debate

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NSA Shares Raw Surveillance Data With Israel

by wjtydf3g Posted on September 11, 2013

Mother Jones

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Another day, another Snowden document released by the Guardian. But this one involves Israeli intelligence, which should guarantee an extra frisson of outrage, especially given the context: starting in 2009, the NSA began to routinely hand over raw data—some of which includes surveillance of U.S. citizens—to the Israeli SIGINT National Unit (INSU).

The memo that confirmed this arrangement is crystal clear that Israeli use of NSA data must be “consistent with the requirements placed upon NSA by U.S. law and Executive Order to establish safeguards protecting the rights of U.S. persons under the Fourth Amendment to the United States Constitution.” There follow numerous paragraphs setting out the rules of the road, which basically say that Israel isn’t permitted to use this data to target U.S. persons in any way. Whether this comforts you probably depends on whether you think Israel takes these rules seriously, or whether it was strictly a wink-wink-nudge-nudge sort of arrangement, where everyone knows perfectly well that once it has its hands on this stuff the Israelis will use it any way they please. It’s not as if they’re famous for their reluctance to spy on Americans, after all. In fact, another document seen by the Guardian noted that “A NIE National Intelligence Estimate ranked them as the third most aggressive intelligence service against the US.”

As for me, I’m just going to straight-up admit that this stuff is coming too fast and furious for me to truly digest it all. On the one hand, it’s not as if it comes as any surprise that we share intelligence with friendly countries. On the other hand, raw, unminimized intelligence? With a country whose previous efforts to spy on America are pretty well known? I honestly have no idea how seriously to take the promises in this memo that NSA’s raw data will never, ever be used to target Americans, cross our hearts and hope to die. I wonder if NSA deliberately inserts test cases in the data they hand over just to find out if INSU reports them back, as they’re supposed to?

For now, then, I’ll just highlight the part of the memo below. Note that Israel is allowed to hold files that contain the identities of U.S. persons for a year. But files that contain the identities of government officials? Incinerate on contact and salt the earth behind them. Priorities, priorities.

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NSA Shares Raw Surveillance Data With Israel

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FISA Judge Reggie Walton Is Skeptical that NSA’s Phone Record Program Has Much Value

by 7GrittonMaine146 Posted on September 10, 2013

Mother Jones

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As we all know, the NSA collects records of every telephone call made in the United States. Even if the rules governing the use of this information are highly restrictive, this still represents an enormous intrusion on the privacy rights of American citizens—something that FISA judge Reggie Walton acknowledged in a court opinion written in 2009. No court would ordinarily allow such bulk collection, he wrote, but the program had nonetheless been authorized due to the government’s insistence that it was “vital to the security of the United States.”

But is it? Plenty of people have wondered about this, especially since the NSA has never provided any public confirmation of a terrorism case in which the call record database played a key role. In fact, in a statement earlier this year, NSA director Keith Alexander was only willing to say that NSA’s surveillance programs had made a “contribution” to “our understanding” of 50 terrorist plots over the past dozen years. That’s pretty cagey, and it’s cagier still when you realize that he’s referring to multiple programs. He didn’t address the value of the phone record program by itself at all.

So what about it? Senators Ron Wyden and Mark Udall, who have seen classified briefings of all 50 plots, said in June that the call record program appeared to have “played little or no role” in most of these cases. Today, with the release of Judge Walton’s 2009 opinion, we learn that he has plenty of doubts too:

This was written in 2009, and as of that point the government could point to virtually nothing positive that had come out of the phone record program. The best it could point to was three (!) preliminary (!) investigations opened by the FBI.

It’s crazy that we permit this. The phone record program is (a) expensive, (b) prone to abuse, (3) a massive intrusion on privacy rights, and (d) not very successful. And that’s not all. It’s also the program that would be the easiest to shut down with virtually no ill effects. All we have to do is require phone companies to keep their call data for five years and require the NSA to get an individual warrant whenever they want to do a search of the database.

Would this be less convenient for the NSA? Sure. But for far less than we’re spending on the current program, NSA and the phone companies could almost certainly put together procedures and staffing that would provide close to the same level of service NSA gets now. We’d once again have true oversight, and since FISA judges are available 24 hours a day, even in an emergency there would be little risk of losing time simply because a warrant is required.

It’s a mystery to me why this hasn’t at least gotten serious discussion. Of all the NSA programs at the heart of the current controversies, this seems like the easiest call to make.

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FISA Judge Reggie Walton Is Skeptical that NSA’s Phone Record Program Has Much Value

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In 2009, the FISA Court Shut Down an NSA Program for 6 Months Because It Had "Frequently and Systemically" Violated the Rules

by Arkady549e Posted on September 10, 2013

Mother Jones

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Last month we learned that in 2011 a FISA judge slammed the NSA for “the third instance in less than three years” in which an NSA surveillance program had been misrepresented to the court. Today, the Obama administration released a set of documents that describes one of the previous instances. It involves the NSA’s collection of phone records, which are supposed to be governed by strict minimization procedures that prevent analysts from illegally accessing the records of U.S. persons who are not reasonably suspected of terrorist ties. But it turned out that for three years, from 2006 to 2009, NSA had been routinely breaking its own rules; had been routinely providing false affirmations to the court; and apparently had no one on their staff who even understood how their own systems worked. Here is Judge Reggie Walton’s conclusion:

The NSA’s explanation for how these violations occurred “strained credulity,” Walton wrote, and because of that he shut down the phone record program entirely until the government put in place safeguards against abuse that satisfied him. Six months later, he finally allowed the program to retstart.

Josh Gerstein has more details here. The main takeaway, however, is the obvious one: no agency can perform oversight on itself. NSA was violating the court’s rules for three years, and only discovered the problem because a spot check happened to turn up a violation, which in turn prompted them to do a broader investigation. That’s no way to ensure compliance with legal and constitutional standards.

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In 2009, the FISA Court Shut Down an NSA Program for 6 Months Because It Had "Frequently and Systemically" Violated the Rules

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105 Years in Jail for Posting a Link?

by Polly Browder Posted on September 9, 2013

Mother Jones

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A few months ago I passed along the story of Barrett Brown, a young journalist/activist who relentlessly followed up on documents leaked by Anonymous, was targeted for this by the FBI, and who was eventually harassed enough that he cracked—which took the unfortunate form of recording a YouTube rant promising to “destroy” one of his tormentors.

Brown was indicted for posting the YouTube threats, and there’s no question that it was an ill-advised rant regardless of the FBI instigation. But David Carr follows up with more today. It turns out that only three of the charges against Brown are related to the video. Twelve more are related to a link he posted in a chat room:

In December 2011, approximately five million e-mails from Stratfor Global Intelligence, an intelligence contractor, were hacked by Anonymous and posted on WikiLeaks. The files contained revelations about close and perhaps inappropriate ties between government security agencies and private contractors. In a chat room for Project PM, Mr. Brown posted a link to it.

Among the millions of Stratfor files were data containing credit cards and security codes, part of the vast trove of internal company documents….According to one of the indictments, by linking to the files, Mr. Brown “provided access to data stolen from company Stratfor Global Intelligence to include in excess of 5,000 credit card account numbers, the card holders’ identification information, and the authentication features for the credit cards.”

….But keep in mind that no one has accused Mr. Brown of playing a role in the actual stealing of the data, only of posting a link to the trove of documents….“The YouTube video was a mistake, a big one,” said Gregg Housh, a friend of Mr. Brown’s who first introduced him to the activities of Anonymous. “But it is important to remember that the majority of the 105 years he faces are the result of linking to a file. He did not and has not hacked anything, and the link he posted has been posted by many, many other news organizations.”

This is almost a textbook case of prosecutorial overreach. As Carr points out, the guy who actually stole the Stratfor information is facing a sentence of only ten years. So why is Brown facing 105 years? Certainly not for a video posted while he was in withdrawal from heroin addiction. More likely, it’s because the government considers him a thorn in their side and wants to send a message to anyone else planning to follow in Brown’s footsteps. That just ain’t right. As Carr says, “Punishment needs to fit the crime and in this instance, much of what has Mr. Brown staring at a century behind bars seems on the right side of the law, beginning with the First Amendment of the Constitution.”

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105 Years in Jail for Posting a Link?

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Court Decision Allows NSA to Search its Database for American Records Without a Warrant

by Traci B. Jackson Posted on September 8, 2013

Mother Jones

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Ellen Nakashima has an oddly downplayed story in the Washington Post today. As we all know, the NSA collects massive amounts of both domestic and foreign communications, which it stores for years. It’s allowed to search this database, but under the Bush administration they could only search for names and email addresses of foreign targets. Two years ago, however, the Obama administration got permission to perform searches using the names and email addresses of American residents:

The court decision allowed the NSA “to query the vast majority” of its e-mail and phone call databases using the e-mail addresses and phone numbers of Americans and legal residents without a warrant, according to Bates’s opinion. The queries must be “reasonably likely to yield foreign intelligence information.” And the results are subject to the NSA’s privacy rules.

The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

Senators Ron Wyden and Mark Udall have issued warnings about this, but secrecy rules kept their warnings vague. Now, however, it’s public knowledge:

“The surveillance Court documents declassified recently show that in late 2011 the court authorized the NSA to conduct warrantless searches of individual Americans’ communications using an authority intended to target only foreigners,” Wyden said in a statement to The Washington Post. “Our intelligence agencies need the authority to target the communications of foreigners, but for government agencies to deliberately read the e-mails or listen to the phone calls of individual Americans, the Constitution requires a warrant.”

Senior administration officials disagree. “If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

So there you have it. When the NSA sweeps up this data in the first place, it says no individualized warrant is necessary because it’s merely storing the information, not “collecting” it. Collection only happens when an analyst performs a search and looks at the stored content. But now they’re saying that even when analysts explicitly search for U.S. names and get some hits, this means they just “happen to” have collected the communications of Americans. And once that’s happened, why should they have to go back and get a warrant for records they just “happen to” have collected? As long as they think it’s “reasonably likely” to yield foreign intelligence information, they should be able to go right ahead. And now they can. Lovely.

UPDATE: One reason this might not have gotten a lot of play from the Post is that much of it has been previously reported. There’s some new stuff in the Post account, but the basics were reported last month by James Ball and Spencer Ackerman in the Guardian. Click here for the story.

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Court Decision Allows NSA to Search its Database for American Records Without a Warrant

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Google Redoubles Effort to Thwart NSA Surveillance

by Aaron Slot Posted on September 7, 2013

Mother Jones

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The Washington Post reports today on the first of what I assume will be many announcements from tech companies worldwide:

Google is racing to encrypt the torrents of information that flow among its data centers around the world in a bid to thwart snooping by the NSA and the intelligence agencies of foreign governments, company officials said Friday. The move by Google is among the most concrete signs yet that recent revelations about the National Security Agency’s sweeping surveillance efforts have provoked significant backlash within an American technology industry that U.S. government officials long courted as a potential partner in spying programs.

….Security experts say the time and energy required to defeat encryption forces surveillance efforts to be targeted more narrowly on the highest-priority targets — such as terrorism suspects — and limits the ability of governments to simply cast a net into the huge rivers of data flowing across the Internet. “If the NSA wants to get into your system, they are going to get in . . . . Most of the people in my community are realistic about that,” said Christopher Soghoian, a computer security expert at the American Civil Liberties Union. “This is all about making dragnet surveillance impossible.”

….Google officials declined to provide details on the cost of its new encryption efforts, the numbers of data centers involved, or the exact technology used. Officials did say that it will be what experts call “end-to-end,” meaning that both the servers in the data centers and the information on the fiber-optic lines connecting them will be encrypted using “very strong” technology. The project is expected to be completed soon, months ahead of the original schedule.

Eric Grosse, vice president for security engineering at Google echoed comments from other Google officials, saying that the company resists government surveillance and has never weakened its encryption systems to make snooping easier — as some companies reportedly have, according to the Snowden documents detailed by the Times and the Guardian on Thursday.

“This is a just a point of personal honor,” Grosse said. “It will not happen here.”

The question here is, Who do you trust? Google says they’re going to use strong encryption and will never install back doors or hand over encryption keys to the NSA. At least, that’s what they seem to be saying.

On the other hand, if the NSA gets a court order that forces Google to turn over encryption keys and prohibits them from talking about it, who would ever find out?

So which do you trust more? Google’s desire to give its customers what they want, or the NSA’s ability to get what they want? Good question. The vast majority of people won’t care about this at all, but I suspect that more than a few will decide that NSA has more power than Google and will simply decline to do business in the future with American companies if it involves storage of information on the cloud. Whether that eventually has a noticeable impact on American tech companies is hard to predict.

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Google Redoubles Effort to Thwart NSA Surveillance

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In Which I Muddy the Waters on the Edward Snowden Crypto Bombshell

by adndeu13da Posted on September 7, 2013

Mother Jones

Earlier today, in a post about the latest Edward Snowden leak, I wrote that “I’m a lot less certain that this one should have seen the light of day.” After some further thought and conversation, I’m now a lot less certain I should have said that.

Here’s the problem. The Guardian and New York Times stories basically revealed two things:

The NSA has been working to deliberately weaken commercial crypto standards and insert back doors that only they have privileged access to. This is horrific public policy for at least a couple of reasons. First, the NSA tried to do this publicly in the mid-90s with the Clipper chip and export restrictions on crypto technology, and they lost. Now they’re covertly doing what Congress refused to let them do overtly. Second, deliberately weakening commercial crypto exposes everyone who uses it to possible interception from bad actors who manage to discover the NSA’s handiwork. There’s no way the NSA can guarantee that other groups won’t learn the weaknesses it’s introduced (indeed, it’s already happened in some cases) or somehow get access to its back doors. I have no problem at all with the Times and the Guardian disclosing this, and I’d very much like Congress to put a stop to it.

In addition, the NSA has been working to to improve its decryption capabilities in ways that don’t degrade commercial crypto for anyone else. The details are unclear. It might involve new mathematical techniques. It might involve new computational techniques or improved computational power. It might involve old school hacking. It might involve stealing encryption keys or getting companies to give them up. It might involve the discovery of weaknesses that already exist. This is all stuff that NSA is chartered to do, and it does nothing to harm general use of commercial cryptography. However, revealing the extent of NSA’s success in this area might indeed warn terrorists and others away from commercial crypto that they thought was safe, and thus degrade NSA’s ability to track them. I have a hard time believing that the public interest in this outweighs the damage done to U.S. intelligence efforts.

Needless to say, not everyone agrees with my second bullet. Judging from my Twitter stream, there are people who seem to think that it’s illegal for the NSA to engage in decryption. Others apparently believe that foreign surveillance serves no actual purpose and is really just a sham to keep the power elite in power. Still others seem to think that governments should never keep anything secret. There’s not much to say to these people except to disagree with them.

But for the rest of us, this is a tough issue. If NSA is actively weakening internet security in ways that could blow back on us all, it absolutely ought to be reported. But to the extent that NSA is simply figuring out new decryption techniques that don’t weaken security, they’re just doing the job we’ve asked them to do. I don’t see much sense in alerting anyone to the details or scope of how successful they’ve been.

The problem is that a close reading of the Times and Guardian stories makes it really hard to figure out how much of these two things the NSA is doing. The Guardian says categorically that inserting back doors and vulnerabilities into commercial crypto systems is the “key component” of the NSA’s efforts. The Times is more circumspect, and the documents available to the Guardian and the Times are apparently fairly vague on this point. In 2010, for example, NSA says it developed “groundbreaking capabilities” against web encryption. Is this the product of a decade-long effort to insert vulnerabilities into commercial systems? Or something else?

We don’t know, though there are several hints that NSA is spending an awful lot of time and money on decryption capabilities that have no connection to back doors or inserted weaknesses. And the companies that have responded so far to this story have mostly denied having allowed anything like this.

For now, then, I’ll just say that I’m more uncertain about this than I was yesterday when I first read these stories. Some of the stuff they revealed I have no problem with. Some of it I think I do. I realize I’m breaking the pundit code that says we should all have absolute and unchangeable views on every subject, but I just don’t this time. I need to learn more, and unfortunately I’m not likely to.

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In Which I Muddy the Waters on the Edward Snowden Crypto Bombshell

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Snowden Disclosures Finally Hit 12 on a Scale of 1 to 10

by slodka_elkra Posted on September 6, 2013

Mother Jones

A few days ago, NBC News quoted a former intelligence official about the fallout from Edward Snowden’s NSA leaks. “The damage, on a scale of 1 to 10, is a 12,” he said.

At the time, I thought it was an odd thing to say. Obviously Snowden’s leaks have been damaging to the NSA, and just as obviously they’ve caused the NSA enormous PR problems. Still, we’ve known for years that they were collecting telephone metadata. We’ve known they were subpoenaing email and online documents from tech providers like Google and Microsoft. We’ve known they were monitoring switching equipment and fiber optic cables. We certainly know a lot more details about this stuff than we used to, but the basic outline of NSA’s capabilities hasn’t really come as much of a surprise.

So what was this former intelligence official talking about? I suspect it was this:

The agency has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the e-mails, Web searches, Internet chats and phone calls of Americans and others around the world, the documents show.

….Some of the agency’s most intensive efforts have focused on the encryption in universal use in the United States, including Secure Sockets Layer, or SSL; virtual private networks, or VPNs; and the protection used on fourth-generation, or 4G, smartphones.

….By this year, the Sigint Enabling Project had found ways inside some of the encryption chips that scramble information for businesses and governments, either by working with chipmakers to insert back doors or by exploiting security flaws, according to the documents. The agency also expected to gain full unencrypted access to an unnamed major Internet phone call and text service; to a Middle Eastern Internet service; and to the communications of three foreign governments.

….In 2010, a briefing document claims that the agency had developed “groundbreaking capabilities” against encrypted Web chats and phone calls. Its successes against Secure Sockets Layer and virtual private networks were gaining momentum.

But the agency was concerned that it could lose the advantage it had worked so long to gain, if the mere “fact of” decryption became widely known. “These capabilities are among the Sigint community’s most fragile, and the inadvertent disclosure of the simple ‘fact of’ could alert the adversary and result in immediate loss of the capability,” a GCHQ document warned.

That’s a 12 on a scale of 1 to 10. The Snowden documents don’t make clear precisely what NSA’s capabilities are, or exactly what kind of encryption it can break. Nor is it clear how many of its new capabilities are truly due to mathematical breakthroughs of some kind, and how many are more prosaic hacking exploits that have given them more encryption keys than in the past.

Nonetheless, this is truly information that plenty of bad guys probably didn’t know, and probably didn’t have much of an inkling about. It’s likely that many or most of them figured that ordinary commercial crypto provided sufficient protection, which in turn meant that it wasn’t worth the trouble to implement strong crypto, which is a bit of a pain in the ass. (Recall, for example, Glenn Greenwald’s admission that he “almost lost one of the biggest leaks in national-security history” because Snowden initially insisted on communicating with strong crypto and Greenwald didn’t want to be bothered to install it.)

But now that’s all changed. Now every bad guy in the world knows for a fact that commercial crypto won’t help them, and the ones with even modest smarts will switch to strong crypto techniques that remain unbreakable. It’s still a pain in the ass, but it’s not that big a pain in the ass.

For what it’s worth, this is about the point where I get off the Snowden train. It’s true that some of these disclosures are of clear public interest. In particular, I’m thinking about the details of NSA efforts to infiltrate and corrupt the standards setting groups that produce commercial crypto schemes.

But the rest of it is a lot more dubious. It’s not clear to me how disclosing NSA’s decryption breakthroughs benefits the public debate much, unlike previous disclosures that have raised serious questions about the scope and legality of NSA’s surveillance of U.S. persons. Conversely, it’s really easy to see how disclosing them harms U.S. efforts to keep up our surveillance on genuine bad guys. Unlike previous rounds of disclosures, I’m a lot less certain that this one should have seen the light of day.

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Snowden Disclosures Finally Hit 12 on a Scale of 1 to 10

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WATCH: Suzie’s Summer Job at the Obama White House Fiore Cartoon

by Julie Plunkett Posted on September 5, 2013

Mother Jones

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Mark Fiore is a Pulitzer Prize-winning editorial cartoonist and animator whose work has appeared in the Washington Post, the Los Angeles Times, the San Francisco Examiner, and dozens of other publications. He is an active member of the American Association of Editorial Cartoonists, and has a website featuring his work.

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WATCH: Suzie’s Summer Job at the Obama White House Fiore Cartoon

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