Recent Discussions of Neoliberalism

People seem to have trouble defining neoliberalism adequately, and especially when it comes to labeling Hillary Clinton as a neoliberal. In a recent article at Jacobin Corey Robins gives a short history of the neoliberal version of the Democratic Party, specifically aimed at the Clinton/DLC/Third Way. Billmon discussed this article in this storify piece, in which he describes three current factions in the practice of neoliberalism, There is the Neo-Keynesian version, as with Krugman; the Monetarist version, that of Milton Friedman and his many followers;, and the Supply Side version, like Paul Ryan and his economic advisors. Each of the factions has attached itself to a political ideology. Both of these pieces should be read by anyone seeking to clarify their thinking about neoliberalism.

Underlying all of them is the broader program described by Michel Foucault, which turns in large part on the notion of governmentality, a point made by Mike Konzcal in this review of Philip Mirowski’s Never Let a Serious Crisis Go to Waste. After I read that book, I wrote several pieces at FDL trying to comprehend the idea of governmentality and make it comprehensible. Here are links to several of those posts.

1. How We Govern Our Selves and Ourselves.

2. The Panoptic Effect.

3. Discipline for the Benefit of the Rich.

4. Control of Markets in Foucault’s The Birth of Biopolitics.

5. Liberalism and the Neoliberal Reaction.

The idea of governability is present in the texts I’ve been looking at. In Polanyi, we saw the transformation of the farm-dwelling peasant into the city-dwelling factory worker. Arendt touches on it with her discussion of people who cannot find a place in the productive sector of society, the superfluous people. Veblen writes about the enormous productivity of machine culture, and the changes it demanded of the worker, about which more later. The great problem is that machine culture required a tremendous amount of self-discipline from the workers to make factories function. The principal institutions of society were remade to enforce that self-discipline, from the Army to the schools to the government. Other tools included prisons and mental institutions.

In one way or another, all of these writers on neoliberalism seem to agree that the goal of neoliberalism is to replace the notion of the self as reasonably free citizen, responsible for the self, the family, the community and the state, with the notion of the self as a buyer and seller engaged in zero-sum competition with all other buyer/sellers. We are consumers of any and all goods and services, and entrepreneurial sellers of the self seen as a bundle of skills on offer to the highest bidder. Each separate transaction, buying and selling, is an opportunity for judgment by the all-knowing market. If we are successful, it’s because we are winners. If we are losers, we are superfluous. It’s an even harsher transformation of the human being than the one from peasant to factory worker.

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Notorious “FOIA Terrorist” Jason Leopold “Saves” FBI Over $300,000

Last week, Jim Comey suggested the FBI paid more for the vulnerability that helped it break into Syen Rizwan Farook’s phone than he will be paid for the 7 years he’ll remain at FBI. The WSJ then did this math.

Speaking at the Aspen Security Forum in London, FBI Director James Comey didn’t cite a precise figure for how much the government paid for the solution to cracking the phone but said it was more than his salary for the seven-plus years remaining in his term at the FBI.

His annual salary is about $180,000 a year, so that comes to $1.26 million or more.

“[We] paid a lot’’ for the hacking tool, Mr. Comey said. “But it was worth it.’’

Over 600 outlets covered that story, claiming — without further confirmation — that FBI paid over $1 million for the hack, with many accounts settling on $1.3 million.

I noted at the time that 1) Jim Comey has a history of telling untruths when convenient and 2) he had an incentive to exaggerate the cost of this exploit, because it would pressure Congress to pass a bill, like the horrible Burr-Feinstein bill, that would force Apple and other providers to help law enforcement crack phones less expensively. I envisioned this kind of exchange at a Congressional hearing:

Credulous Congressperson: Wow. $1M. That’s a lot.

Comey: Yes, you’ll need to triple our budget or help me find a cheaper way.

Lonely sane Congressperson: But, uh, if we kill security won’t that be more expensive?

Comey: Let me tell you abt time I ran up some steps.

I then mused that, because Comey had officially acknowledged paying that kind of figure, it would make it a lot easier to FOIA the exact amount. By the time I tweeted that thought, of course, Jason Leopold had already submitted a FOIA for the amount.

Sure enough, the outcome I figured has already happened: without offering an explanation for the discrepancy, Mark Hosenball reported today that the figure was actually under $1 million, and FBI will be able to use it on other phones.

The FBI paid under $1 million for the technique used to unlock the iPhone used by one of the San Bernardino shooters – a figure smaller than the $1.3 million the agency’s chief initially indicated the hack cost, several U.S. government sources said on Thursday.

The Federal Bureau of Investigation will be able to use the technique to unlock other iPhone 5C models running iOS 9 – the specifications of the shooter’s phone – without additional payment to the contractor who provided it, these people added.

Just one FOIA submission later (and, probably, the calls of a bunch of outraged members of Congress wondering why FBI paid $1.3 million for a hack they claimed, in explaining why they would not submit the hack to the Vulnerabilities Equity Process that might require them to share it with Apple nine months after Apple patched it, they didn’t understand at all), and all of a sudden this hack is at least $300,000 less expensive (and I’m betting a lot more than that).

You see how effective a little aggressive FOIAing is at reining in waste, fraud, and abuse?

A pity it can’t reverse the impact of all those credulous reports repeating Comey’s claim.

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Friday Morning [?!]: Chamber of Delights

It’s Friday. FINALLY. And it’s jazz exploration day, too. Today we sample some chamber jazz, here with Meg Okura and the Pan Asian Chamber Ensemble.

It. Me. That is to say, of all genres, this one feels most like a part of myself. Here’s another chamber jazz favorite — Quarter Chicken Dark from The Goat Rodeo Sessions. And another — Model Trane, the first cut in this linked video by Turtle Island Quartet.

You can see and hear for yourself what makes chamber jazz different from other genres: chamber instruments used in classical music to perform jazz.

Whew, I needed this stuff. Hope you like it, too, though I know it’s not everybody’s cup of tea.

My morning was overbooked, only have time today for a few things that caught my eye.

Encryption and privacy issues

Go To Jail Indefinitely card for suspect who won’t unlock hard drives (Naked Security) — Seems odd this wasn’t the case the USDOJ used to force cracking of password-protected accounts on devices, given the circumstances surrounding a less-than-sympathetic defendant.

Amicus brief by ACLU and EFF for same case (pdf – Ars Technica)

Supreme Court ruling extends reach of FBI’s computer search under Rule 41 (Bloomberg) — Would be nice if the Email Privacy Act, now waiting for Senate approval, addressed this and limited law enforcement’s overreach.

Climate change and its secondary effects

India’s ongoing drought now affects 330 million citizens, thousands have died from heat and dehydration (Oneindia) — 330 million is slightly more people than the entire U.S. population. Imagine what could happen if even one or two percent of these affected fled the country as climate refugees.

Tiger poaching in India dramatically increased over last year (Phys.org) — Have to ask if financial stress caused by drought encouraged illegal killing of tigers, now that more tigers have been poached this year to date compared to all of last year. Are gains in tiger population now threatened by primary and secondary effects of climate change?

Though severe El Nino deepened by climate change causes record drought now, an equally deep La Nina could be ahead (Phys.org) — Which could mean dramatic rains and flooding in areas where plant growth has died off, leaving little protection from water runoff. Are any governments planning ahead even as they deal with drought?

Hope your weekend is pleasant — see you Monday morning!

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Rosemary Collyer’s Worst FISA Decision

In addition to adding former National Security Division head David Kris as an amicus (I’ll have more to say on this) the FISA Court announced this week that Rosemary Collyer will become presiding judge — to serve for four years — on May 19.

Collyer was the obvious choice, being the next-in-line judge from DC. But I fear she will be a crummy presiding judge, making the FISC worse than it already is.

Collyer has a history of rulings, sometimes legally dubious, backing secrecy and executive power, some of which include,

2011: Protecting redactions in the Torture OPR Report

2014: Ruling the mosaic theory did not yet make the phone dragnet illegal (in this case she chose to release her opinion)

2014: Erroneously freelance researching the Awlaki execution to justify throwing out his family’s wrongful death suit

2015: Serially helping the Administration hide drone details, even after remand from the DC Circuit

I actually think her mosaic theory opinion from 2014 is one of her (and FISC’s) less bad opinions of this ilk.

The FISC opinion I consider her most troubling, though, is not a FISC decision at all, but rather a ruling from last year in an EFF FOIA. Either Collyer let the government hide something that didn’t need hidden, or it has exploited EFF’s confusion to hide the fact that the Internet dragnet and the Upstream content programs are conducted by the same technical means, a fact that would likely greatly help EFF’s effort to show all Americans were unlawfully spied on in its Jewell suit.

Back in August 2013, EFF’s Nate Cardozo FOIAed information on the redacted opinion referred to in this footnote from John Bates’ October 3, 2011 opinion ruling that some of NSA’s upstream collected was illegal.

Screen Shot 2015-10-31 at 6.52.30 PM

Here’s how Cardozo described his FOIA request (these documents are all attached as appendices to this declaration).

Accordingly, EFF hereby requests the following records:

1. The “separate order” or orders, as described in footnote 15 of the October 3 Opinion quoted above, in which the Foreign Intelligence Surveillance Court “address[ed] Section 1809(a) and related issues”; and,

2. The case, order, or opinion whose citation was redacted in footnote 15 of the October 3 Opinion and described as “concluding that Section 1809(a)(2) precluded the Court from approving the government’s proposed use of, among other things, certain data acquired by NSA without statutory authority through its ‘upstream collection.’”

Request 2 was the only thing at issue in Collyer’s ruling. By my read, it would ask for the entire opinion the citation to which was redacted, or at least identification of the case.

EFF, of course, is particularly interested in upstream collection because it’s at the core of their many years long lawsuit in Jewell. To get an opinion that ruled upstream collection constituted unlawful collection sure would help in EFF’s lawsuit.

In her opinion, Collyer made a point of defining “upstream” surveillance by linking to the 2012 John Bates opinion resolving the 2011 upstream issues (as well as to Wikipedia!), rather than to the footnote he used to describe it in his October 3, 2011 opinion.

The opinion in question, referred to here as the Section 1809 Opinion, held that 50 U.S.C. § 1809(a)(2) precluded the FISC from approving the Government’s proposed use of certain data acquired by the National Security Agency (NSA) without statutory authority through “Upstream” collection. 3

3 “Upstream” collection refers to the acquisition of Internet communications as they transit the “internet backbone,” i.e., principal data routes via internet cables and switches of U.S. internet service providers. See [Caption Redacted], 2012 WL 9189263, *1 (FISC Aug. 24, 2012); see also https://en.wikipedia.org/wiki/Upstream_collection (last visited Oct. 19, 2015); https://en.wikipedia.org/wiki/Internet_backbone (last visited Oct. 19, 2015).

As it was, Collyer paraphrased where upstream surveillance comes from as ISPs rather than telecoms, which was redacted in the opinion she cited. But by citing that and not Bates’ 2011 opinion, she excluded an entirely redacted sentence from the footnote Bates used to explain it, which in context may have described a little more about the underlying opinion.

Screen Shot 2016-04-28 at 11.38.32 AM

Having thus laid out the case, Collyer deferred to NSA declarant David Sherman’s judgment — without conducting a review of the document — that releasing the document would reveal details about the implementation of upstream surveillance.

Specifically, the release of the redacted information would disclose sensitive operational details associated with NSA’s “Upstream” collection capability. While certain information regarding NSA’s “Upstream” collection capability has been declassified and publicly disclosed, certain other information regarding the capability remains currently and properly classified. The redacted information would reveal specific details regarding the application and implementation of the “Upstream” collection capability that have not been publicly disclosed. Revealing the specific means and methodology by which certain types of SIGINT collections are accomplished could allow adversaries to develop countermeasures to frustrate NSA’s collection of information crucial to national security. Disclosure of this information could reasonably be expected to cause exceptionally grave damage to the national security.

[snip]

With respect to the FISC opinion withheld in full, it is my judgment that any information in the [Section 1809 Opinion] is classified in the context of this case because it can reasonably be expected to reveal classified national security information concerning particular intelligence methods, given the nature of the document and the information that has already been released. . . . In these circumstances, the disclosure of even seemingly mundane portions of this FISC opinion would reveal particular instances in which the “Upstream” collection program was used and could reasonably be expected to encourage sophisticated adversaries to adopt countermeasures that may deprive the United States of critical intelligence. [my emphasis]

Collyer found NSA had properly withheld the document as classified information the release of which would cause “grave damage to national security.”

Continue reading

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The Shell Game the Government Played During Yahoo’s Protect America Act Challenge

In his opinion finding Protect America Act constitutional, Judge Reggie Walton let his frustration with the way the government kept secretly changing the program at issue show.

For another, the government filed a classified appendix with the Court in December 2007, which contained the certifications and procedures underlying the directives, but the government then inexplicably modified and added to those certifications and procedures without appropriately informing the Court or supplementing the record in this matter until ordered to do so. These changes and missteps by the government have greatly delayed the resolution of its motion, and, among other things, required this Court to order additional briefing and consider additional statutory issues, such as whether the P AA authorizes the government to amend certifications after they are issued, and whether the government can rely on directives to Yahoo that were issued prior to the amendments.

The unsealed classified appendix released today (the earlier released documents are here) provides a lot more details on the shell game the government played during the Yahoo litigation, even with Walton. (It also shows how the government repeatedly asked the court to unseal documents so it could share them with Congressional Intelligence Committees or other providers it wanted to cooperate with PAA).

I mean, we expected the government to demand that Yahoo litigate blind, as it did in this February 26, 2008 brief arguing Yahoo shouldn’t be able to see any classified information as it tried to represent the interests of its American customers. (PDF 179)

In the approximately thirty years since the adoption of FISA, no court has held that disclosure of such documents is necessary to determine the legality of electronic surveillance and physical search. Similarly, there is of course a long history of ex parte and in camera proceedings before this Court. For almost three decades, this Court has determined, ex parte and in camera, the lawfulness of electronic surveillance and physical search under FISA. See 50 U.S.C. § 1805(a) (“the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance” upon making certain findings); 50 U.S.C. § 1824(a) (same with respect to physical search).

Under the Protect America Act, then, the government has an unqualified right to have the Court review a classified submission ex parte and in camera which, of course, includes the unqualified right to keep that submission from being disclosed to any party in an adversarial proceeding before this Court.

But we shouldn’t expect a FISC judge presiding over a key constitutional challenge to have to beg to learn what he was really reviewing, as Walton had to do here. (PDF 159-160)

The Court is issuing this ex parte order to the Government requiring it to provide clarification concerning the impact on this case of various government filings that have been made to the FISC under separate docket.

[snip]

lt is HEREBY ORDERED that the government shall file a brief no later than February 20. 2008, addressing the following questions: 1. Whether the classified appendix that was provided to the Court in December 2007 constitutes the complete and up-to-date set of certifications and supporting documents (to include affidavits, procedures concerning the location of targets, and minimization procedures) that are applicable to the directives at issue in this proceeding. If the answer to this question is .. yes,'” the government” s brief may be filed ex parte. If the government chooses to serve Yahoo with a copy of the brief~ it shall serve a copy of this Order upon Yahoo as well.

2. If the answer to question number one is “no,” the Government shall state what additional documents it believes are currently in effect and applicable to the directives to Yahoo that are at issue in this proceeding. The government shall file copies of any such documents with the Court concurrent with filing its brief. The government shall serve copies of this Order, its brief, and any additional documents upon Yahoo, unless the government moves this Court for leave to file its submission ex parte, either in whole or in part. If the government files such a motion with the Court, it shall serve a copy of its motion upon Yahoo. The government shall also serve a copy of this Order upon Yahoo, unless the government establishes good cause for not doing so within the submission it seeks to file ex parte.

This is what elicited the government’s indignant brief about actually telling Yahoo what it was arguing about.

As a result of the government’s successful argument Yahoo had to argue blind, it did not learn — among other things — that CIA would get all the data Yahoo was turning over to the government, or that the government had basically totally restructured the program after the original expiration date of the program, additional issues on which Yahoo might have challenged the program.

Perhaps more interesting is that it wasn’t until Walton ruled on March 5 that he would not force the government to share any of these materials with Yahoo that the government finally provided the last relevant document to Judge Walton, the Special Procedures Governing Communications Metadata Analysis. (PDF 219)

On January 3, 2008, the Attorney General signed the “Department of Defense Supplemental Procedures Governing Communications Metadata Analysis,” which purported to supplement the DoD Procedures (“Supplement to DoD Procedures”), a copy of which is attached hereto as Exhibit A. The Supplement to DoD Procedures concerns the analysis of communications metadata that has already been lawfully acquired by DoD components, including the National Security Agency (NSA). Specifically, the Supplement to DoD Procedures clarifies that NSA may analyze communications metadata associated with U.S. persons and persons believed to be in the United States. The Supplement to DoD Procedures does not relate to the findings the Attorney General must make to authorize acquisition against a U.S. person overseas

This is particularly suspect given that one of the changes implemented after the original certification was to share data with CIA, something directly addressed in the memo justifying SPCMA to the Attorney General’s office (and a detail the government is still trying to officially hide).

Now, to be fair, in the original release, it was not clear that the government offered this much explanation for SPCMA, making it clear that the procedural change involved making American metadata visible. But the government very clearly suggested — falsely — that SPCMA had no Fourth Amendment implications because they didn’t make Americans overseas more likely to be targeted (which the government already knew was the key thrust of Yahoo’s challenge).

The opposite is true: by making US person metadata visible, it ensured the government would be more likely to focus on communications of those with whom Americans were communicating. These procedures — which were approved more than two months, one document dump, and one court order agreeing to keep everything secret from Yahoo earlier — were and remain the key to the Fourth Amendment exposure for Americans, as was argued just last year. And they weren’t given to even the judge in this case until he asked nicely a few times.

This was the basis for the dragnet that still exposes tens of thousands of Americans to warrantless surveillance. And it got briefed as an afterthought, well after the government could be sure it’d get no adversarial challenge.

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Thursday Morning: Mostly Cloudy with a Chance of Trouble

This video came from a random browse for new artists. I don’t know yet if I have an opinion; first minute is rocky, but improves. Think I need to sample some more by this artist. You can find Unknown Mortal Orchestra on SoundCloud.com if you want to sample more without the video — I do like the cover of Sitting on the Dock of the Bay. Verdict still out on the more experimental atmospheric stuff.

Looking for more trouble…

House passed Email Privacy Act (H.R. 699) 419-0
Sampling of reports: Phys.org | Reuters  |  Forbes

A few opinions: ACLU | EFF  |  Americans for Tax Reform

Wow. An issue everybody could love. Do read the Forbes bit as they had the most objections. Caveat: You may have to see John Stossel’s mug if you read the ATR’s opinion.

Next up: Senate, which is waffling thanks to Grassley

But it was unclear if Senate Judiciary Committee Chairman Chuck Grassley, who holds jurisdiction over the legislation, intends to move it forward during an election year.

The Iowa Republican will review the House bill, consult with stakeholders and his committee “and decide where to go from there,” a spokeswoman told Reuters in an email.

Apple crisp

  • Apple’s stock tanked yesterday falling 7% in response to a drop in demand for iPhones; Apple suppliers likewise took a hit. Come on, there’s a finite number of smartphone users, and the limit must be reached some time. Shouldn’t have rattled the market so much — not like the market didn’t notice China’s market woes and subsequent retrenchment of purchasing over the last 6 months, too.
  • FBI said it wouldn’t disclose the means by which a “grey hat hacker” cracked the San Bernardino shooter’s work-issued iPhone 5c. Wouldn’t, as in couldn’t, since the FBI didn’t acquire intellectual property rights to the method. Hmm.
  • coincidentally, FBI notified Apple of a vulnerability in older iPhones and Macs, though an unnamed source said the problem had already been fixed in iOS9 and in Mac OS C El Capitan. Nice of FBI to make an empty gesture validate the problem.
  • And because I mentioned it, Apple Crisp. I prefer to use Jonathans and Paula Reds in mine.

Malware everywhere

  • The Gundremmingen nuclear power plant in Bavaria found malware in computers added in 2008, connected to the fuel loading system. Reports say the malware has not posed any threat, though an investigation is under way to determine how the plant was infected. Not many details in German media about this situation — timing and method of discovery aren’t included in news reports.
  • A report by Reuters says the malware was identified and includes “W32.Ramnit” and “Conficker” strains. The same report implies the malware may have been injected by devices like USB sticks found in the plant, though the report does not directly attribute the infection to them.
  • BONUS: Reuters quoted cybersecurity expert Mikko Hypponen of F-Secure about the nuclear plant’s infection — but Hypponen elaborated on the spread of viruses, saying that

    he had recently spoken to a European aircraft maker that said it cleans the cockpits of its planes every week of malware designed for Android phones. The malware spread to the planes only because factory employees were charging their phones with the USB port in the cockpit.

    Because the plane runs a different operating system, nothing would befall it. But it would pass the virus on to other devices that plugged into the charger.

    Pretty sure Reuters hadn’t counted on that tidbit.

  • Give their report on Gundremmingen’s infection, it’s odd that Reuters’ op-ed on the state of nuclear safety post-Chernobyl made zero reference to cybersecurity of nuclear facilities.

Miscellania

  • Online gaming community Minecraft “Lifeboat” breach exposed 7 million accounts (NetworkWorld) — Minecraft took its tell notifying users because it says it didn’t want to tip off hackers. Wonder how many of these accounts belonged to minors?
  • On the topic of games, feckless Sony leaks like a sieve again, tipping off new game (Forbes) — Jeebus. Sony Group’s entire holding company bleeds out information all the time. This latest leak is about the next version of Call of Duty. Not certain which is more annoying: yet another Sony leak, or that “Infinite Warfare” is the name of the game.
  • Open source AI consortium OpenAI shows a bit of its future direction (MIT Technology Review) — Looks like the near term will be dedicated to machine learing.
  • Just another pretty face on Cruz’ ticket may bring conflict on H-1B visas (Computerworld) — Seems Cruz wants to limit low-cost H-1B labor, and new VP choice Fiorina is really into offshoring jobs. Commence headbutting. (By the way, I’m being snarky about ‘another pretty face.’ They deserve each other.)

I may have to quit calling these morning roundups given all the scheduling issues I have on my hands right now. At least it’s still morning in Alaska and Hawaii. Catch you here tomorrow!

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Bob Graham Says FBI Aggressively Deceived on Sarasota 9/11 Investigation

James Clapper has suggested that the 28 pages of the Joint Congressional Inquiry may be declassified by June. I’m skeptical the pages will be entirely declassified, but look forward to them.

Meanwhile, former Senate Intelligence Chair has begun to press for an accounting on the Sarasota cell of apparent 9/11 supporters. In an interview with NPR, he stated clearly that FBI lied (um, misstated) what they knew about the Sarasota cell and called for the investigations to be reopened without the tight time limits imposed on the original commissions.

I think it’s been more than a cover up. I think it’s what I call aggressive deception: instances in which the FBI has publicly released statements which I know from personal experience were untrue. They stated that in this Sarasota situation they had completed the investigation, that the investigation determined that there were no connections between the hijackers and the prominent Saudi family and that they had turned over all of this information to the Congressional Inquiry and the 9/11 Citizen’s [sic] Commission. I know for a fact that none of those three statements are true.

[snip]

It’s more than a cover-up. The FBI misstated what is in their own records relative to the situation in Sarasota.

Of course, the FBI went even further with its aggressive deception on the anthrax attack.

Nevertheless (or perhaps, “as a result”), Robert Mueller will probably have the new FBI headquarters named after him, based on the bogus premise that his FBI didn’t engage in some of the same kinds of deceits as J Edgar Hoover’s FBI did.

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Wednesday Morning: Lüg mich an, Lügner

I admit freely my facility with the German language is poor. I hope this post’s headline reads, “Lie to me, Liar.” Which is about as close as I could get to “Lying Liars” because I can’t conjugate the verb ‘to lie.’

~shrug~

It’s not like anybody’s paying me for this, unlike the lying liars at Volkswagen who’ve been paid to deceive the public for a decade. This video presentation featuring Daniel Lange and Felix Domke — a security consultant and an IT consultant, respectively, who reverse engineered VW’s emissions control cheat — is a bit long, but it’s chock full of unpleasant truths revealing the motivations behind VW’s Dieselgate deceptions. The video underpins the cheat outlined in a 2006 VW presentation explaining how to defeat emissions tests.

The one problem I have with this video is the assumption that the fix on each of the affected vehicles will be $600. Nope. That figure is based on how much has been set aside for the entire Dieselgate fix, NOT the actual cost to repair the vehicles.

Because if VW really fixed the vehicles to match the claims they made when they marketed and sold these “clean diesel” passenger cars, it’d cost even more per vehicle. I suspect one of the motivations behind inadequate reserves for a true repair is a reluctance to disclose to competitors how much emissions standards-meeting “clean diesel” really costs.

And of course, avoiding more stringent calculations also prevents an even bigger hit to the company’s stock price, which might affect the pockets of some board members and executives rather disproportionately to the rest of the stock market.

Just how closely that figure per car hews to the agreement with the court this past week will be worth noting, since the video was published in December last year.

But now for the much bigger, even more inconvenient Lügner Lügen: This entire scandal exposes the fraud that is the U.N. Framework Convention on Climate Change Paris agreement.

We know a small nonprofit funded research by a tiny group of academics exposing VW’s emissions controls defeat. We know this set off a cascade of similar analysis, exposing even more cheating by more automobile manufacturers.

But why are we only now finding out from nonprofits and academics about this fraud? Didn’t our elected representatives create laws and the means for monitoring compliance as well as enforcement? Why aren’t governments in the U.S. and the EU catching these frauds within a year of their being foisted on the public?

These questions directly impact the Paris agreement. We’re not starting where emissions standards have been set and where the public believes conditions to be, but at real emissions levels. In other words, we are digging out of  a massive pollution hole.

Our elected officials across the world will avoid funding the dig-out; they’ll continue another layer of lies to prevent removal from office. And we can reasonably expect from them only what they’ve done so far, which Dieselgate has proven to be little.

For that matter, Flint’s water crisis has much in common with Dieselgate, relying on academic research and nonprofit entities to reveal mortal threats to the community. Flint’s crisis showed us government at all levels can be even worse at writing laws, monitoring compliance, and subsequent enforcement.

If the public cannot expect government to do the job it believes it elected them to do over the last several decades, how ever can they expect their government to enact the terms of the Paris agreement? How can we expect third world countries to reduce carbon emissions to save the world from the devastation of climate change while we and our governments continue to ignore corporations’ ongoing deceptions?

No roundup today, gang. I strongly recommend watching the video above. Thanks to BoingBoing for linking to it.

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Domestic Collection and Stellar Wind

I’m in the middle of comparing John Yoo’s May 17, 2002 letter to Colleen Kollar-Kotelly (which is largely the November 2, 2001 justification he wrote for Stellar Wind) with Jack Goldsmith’s May 6, 2004 memo on Stellar Wind, which reined in some aspects of Stellar Wind. And I realized something about the authorization process.

On page 17 of his memo, Goldsmith describes the previous opinions issued by OLC. The discussion is largely redacted, but it does describe say the October 4, 2001 memo “evaluated the legality of a hypothetical electronic surveillance program,” whereas the November 2, 2001 memo “examined the authorities granted by the President in the November 2, 2001 Authorization of STELLAR WIND and concluded that they were lawful.”

Already, that’s an interesting assertion given that the Yoo letter doesn’t do that entirely. First, at least in the letter to Kollar-Kotelly, Yoo also treated the program as hypothetical.

Electronic surveillance techniques would be part of this effort. The President would order warrantless surveillance in order to gather intelligence that would be used to prevent and deter future attacks on the United States. Given that the September 11 attacks were launched and carried out from within the United States itself, an effective surveillance program might include individuals and communications within the continental United States. This would be novel in two respects. Without access to any non-public sources, it is our understanding that generally the National Security Agency (NSA) only conducts electronic surveillance outside the United States that do not involve United States persons. Usually, surveillance of communications by United States persons within the unites states is conducted by the FBI pursuant to a warrant obtained under the Foreign Intelligence Surveillance Act (“FISA”). Second, interception could include electronic messages carried through the internet, which again could include communications within the United States involving United States persons. Currently, it is our understanding that neither the NSA nor law enforcement conducts broad monitoring of electronic communications in this matter within the United States, without specific authorization under FISA.

[snip]

Thus, for example, all communications between United States persons, whether in the United States or not, and individuals in [redacted–likely Afghanistan] might be intercepted. The President might direct the NSA to intercept communications between suspected terrorists, even if one of the parties is a United States person and the communication takes place between the United States and abroad. The non-content portion of electronic mail communications also might be intercepted, even if one of parties is within the United States, or one or both of the parties are non-citizen U.S. persons (i.e., a permanent resident alien). Such operations would expand the NSA’s functions beyond the monitoring only of international communications of non-U.S. persons. [my emphasis]

Importantly, these hypothetical descriptions come from the section of Yoo’s letter before it appears to begin tracking his earlier memo closely. So it’s unclear whether this description of Stellar Wind matches the one in the November 2 memo. It’s certainly possible that Yoo gave an incomplete version of what he had in the earlier memo or even pulled in (hypothetical) language from the October 4 memo. It’s possible, too, that language on domestic content collection reflected a retroactive review Yoo did of the first authorization. (An extended discussion of how Yoo’s early memos track the Authorizations — including discussion of another hypothetical memo Yoo wrote on September 17 — starts at PDF 361.)

Of particular interest, this hypothetical description includes the possibility of intercepting entirely domestic Internet communications (see emphasized language). We know — from the unredacted NSA Stellar Wind IG Report and even from the redacted Joint IG Report — that was something included in the first presidential Authorization, but not the subsequent ones.

The wording of the first authorization could have been interpreted to allow domestic content collection where both communicants were located in the U.S. or were U.S. persons. General Hayden recalled that when the Counsel to the Vice President pointed this out, General Hayden told him that NSA would not collect domestic communications because 1) NSA was a foreign intelligence agency, 2) NSA infrastructure did not support domestic collection, and 3) his personal standard was so high that there would be no problem getting a FISC order for domestic collection.

We also know NSA did collect some domestic collection — on about 3,000 selectors, possibly triggered to non-US persons within the US — at least until Stellar Wind got transitioned to FISA in 2009.

This is a minor, but potentially important one. Yoo was writing hypothetical authorizations for stuff the NSA later pretended not to be authorized to do, but was doing. Those earlier hypothetical authorizations didn’t go away. And therefore, no matter what the authorizations said, there’d still be that authorization sitting there.

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Tuesday Morning: Monitor

Y me lamento por no estar alla
Y hoy te miento para estar solos tu y yo
Y la distancia le gano al amor
Solo te veo en el monitor

— excerpt, Monitor by Volovan

Sweet little tune, easy to enjoy even if you don’t speak Spanish.

Speaking of monitor…

Flint Water Crisis: Michigan State Police monitoring social media
Creeptastic. MSP is following social media communications related to Flint water crisis, which means they’re watching this blog and contributors’ tweets for any remarks made about Flint. Whatever did they do in the day before social media when the public was unhappy about government malfeasance?

MDEQ personnel told Flint city water employee to omit tests with high lead readings
The charges filed last week against two Michigan Department of Environmental Quality and a Flint city employee were related to the manipulation and falsification of lead level tests. From out here it looks like Mike Glasgow did what the MDEQ told him to do; with the city under the control of the state, it’s not clear how Glasgow could have done anything else but do what the state ordered him to do. Which governmental body had higher authority under emergency management — the city’s water department, or the MDEQ? And what happens when personnel at the MDEQ aren’t on the same page about testing methodology?

MDHHS too worried about Ebola to note Legionnaire’s deaths in 2014-2015?
Michigan’s Department of Health and Human Services director Nick Lyons maintains a “breakdown in internal communication” kept information about the Legionnaire’s disease outbreak from reaching him. He also said MDHHS was focused on Ebola because of its high mortality rate overseas. There were a total of 11 cases of Ebola in the U.S. between 2014 and 2015, none of which were diagnosed or treated in Michigan. Meanwhile, 10 people died of Legionnaire’s due to exposure to contaminated Flint water in that same time frame. Not certain how MDHHS will respond to an imported biological crisis when it can’t respond appropriately to a local one created by the state.

Other miscellaneous monitoring

  • Charter Communications and Time Warner tie-up approved, with caveat (Reuters) — Charter can’t tell content providers like HBO they can’t sell their content over the internet – that’s one of a few exceptions FCC placed on the deal. I think this is just insane; the public isn’t seeing cheaper broadband or cable content in spite of allowing ISPs to optimize economies of scale. Between Charter/TWC and Comcast, they’ll have 70% of all broadband connections in the U.S.
  • Mitsubishi Motors fudged its fuel economy numbers for last 25 years (AP) — This investigation is exactly what should happen across EU, because EU-based manufacturers have done this for just as long or longer. And the EU knows this, turns a blind eye to the tricks automakers use to inflate fuel economy ratings.
  • Goldman Sachs has a brand new gig: internet-based banking (Fortune) — This is the fruit of GS’ acquisition of General Electric’s former financial arm. Hmm.
  • BAE Systems has a nice graphic outlining the SWIFT hack via Bangladesh’s central bank (BAE) — Makes it easy to explain to Grampa how somebody carted off nearly a billion dollars.

Toodledy-doo, Tuesday. See you tomorrow morning!

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Emptywheel Twitterverse

bmaz @dpottzzz Errr, just know which school will always dominate AZ collegiate football. It is written (as, apparently, basketball now is).
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bmaz @trabernlaw @VBalasubramani Good fucking gawd. What fun. Jealous.
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bmaz @dpottzzz He Wildcat boy, stifle yourself!
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bmaz @emptywheel @PhilPerspective I'd love to have a 2nd round pick. Instead, all I've got is this stud defensive end.
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emptywheel @bmaz Huh. I guess the Pats don't have much faith in Ted given their pick. @PhilPerspective
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emptywheel @bmaz I'm not watching. I'm on strike until Ted Olson #FreesTomBrady and bmaz finds us tix for the game. @PhilPerspective
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bmaz @PhilPerspective @emptywheel I am off and on. Also cruising neighborhood on beer cooler train.
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emptywheel It's true, what Jim Comey said, about there being no safe safes. https://t.co/fM4cqO70xt
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bmaz Yes, prob last time Urban Meyer team sent this many early draft choices to @NFL, some were serial killer gangsters https://t.co/jHTJNkaRMq
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bmaz Also, "know" = "Known". Spell check truly sucks. https://t.co/Mb1NDfgXTh
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bmaz Can't thank Hillary Clinton enough for representing the neocon warmonger Wall St. left wing of the Republicans https://t.co/8vGFQNBiL4
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