Author Archives: emptywheel

Obama: My Overseas Spying Not Constrained by the Law I Passed as Senator

By:  Friday December 6, 2013 8:09 am

In a democracy in which separation of powers still functioned as intended, this would be a deliberate provocation (my transcription):

The Snowden disclosures have identified areas of legitimate concern. Some of it has also been highly sensationalized and has been painted in a way that’s not accurate. I’ve said before and I will say again: the NSA actually does a very good job about not engaging in domestic surveillance. Not reading people’s emails, not listening to the content of their phone calls. Outside of our borders, the NSA is more aggressive. It’s not constrained by laws. And part of what we’re trying to do over the next month or so is having done an independent review — brought a bunch of folks, civil libertarians, lawyers, and others, to examine what’s being done — I’ll be proposing some self-restraint on the NSA and to initiate some reforms that can give people some more confidence.

Where to start?

First, it is false to say NSA does a very good job of not engaging in domestic surveillance. They’ve been caught doing so, on a programmatic scale, under Obama’s Administration, twice. At least one of those programs simply moved overseas after being caught. The President basically said that being caught twice illegally wiretapping thousands (under the upstream collection) and millions (under the Internet dragnet) of Americans domestically is a good job!

Add in the fact that NSA can read the content of collected US person communications with no Reasonable Articulable Suspicion, with no reporting requirements. That certainly amounts to the authority to conduct fairly unlimited amounts of domestic surveillance via the back door loophole.

And to suggest NSA is “not constrained by laws” overseas is equally false.

First, there’s the Constitution. Under that, even EO 12333 activity should come at the direction of the President. In this passage, the President says Snowden’s disclosures have raised legitimate concerns. I know ODNI and NSA will point to the National Intelligence Priorities Framework as their authorization on these activities the President now finds problematic. But if they’re doing things overseas that raise concerns, then it is an admission from the White House it has inadequate control of the NSA.

More importantly, it is false to say even that NSA is not constrained by mere laws overseas. Section 703 of the FISA Amendments Act — a law which Obama played a crucially important role in passing as a Senator — says NSA can’t wiretap Americans overseas without specific authority from FISC. Section 704 limits physical searches, which NSA uses to authorize collection from servers. As far as I know, no one has considered whether the deliberate collection of US person content overseas — albeit in bulk — complies with Section 703 and 704. But it at least lays out some limits on NSA’s overseas spying.

To all this, Obama’s solution is to propose self-restraint on the NSA.

Again, it is the role of the President — and the White House more generally — to oversee activities conducted under Article II authority. The language Obama uses here suggests an NSA unbound by his control, one he “proposes” to rein in rather than “orders” to do so.

That equates to NSA operating beyond the law, both here and abroad.


How Does a Competent Jihadi Act after 21 Months of Solitary Confinement?

By:  Thursday December 5, 2013 11:07 am

I would be shocked if, after today’s appeal hearing in Umar Farouk Abdulmutallab’s trial, he were granted a new trial on competency grounds. On the panel, David McKeague seemed completely skeptical on legal grounds, Jane Branstetter Stranch seemed skeptical on the central competency issue, leaving Curtis Collier (a District Judge on loan from E TN) with the only apparent sympathy for the argument at hand in the least.

As I explained back in May, The central question was whether Abdulmutallab was competent to defend himself. He had fired his federal defenders in September 2010 and the court named a standby counsel, Anthony Chambers, for him. In August of the next year, Chambers submitted a sealed motion arguing Abdulmutallab was not competent. Judge Nancy Edmunds had a hearing on August 17, 2011 and while she addressed several questions to Abdulmutallab, she did not have him evaluated for competency. When he plead guilty on October 12, 2012, she asked standby counsel if he thought Abdulmutallab was competent to plead guilt and after he assented, she accepted the guilty plea.

Both Judge McKeague, to a lesser degree Stranch, and prosecutor Jonathan Tukel emphasized that last point in their discussion: given that the same standby counsel who had submitted the motion on competence did not re-raise it at the plea, they argued, it suggests the counsel agreed with Edmunds’ determination that Adbulmutallab was competent. Abdulmutallab’s attorney Travis Rossman argued that the Chambers could not, at that point, argue his client was totally crazy. Moreover, he argued, the standard for a defendant representing himself was higher and must be concurrent determination (meaning if he were crazy in August 2012 but competent in October 2012, it would still be an issue for a defendant representing himself). But that detail will almost certainly be the one the judges point to to reject this appeal.

Judges McKeague and Stranch also examined a different question. Some of the most obviously crazy things Abdulmutallab did (though this wasn’t and couldn’t have been Chambers’ original argument) came leading up to trial, most notably his bid to wear a Yemeni dagger to his trial. Abdulmutallab intended to martyr himself, Stranch noted, couldn’t these actions be interpreted as an effort to use the trial to make a point of his faith? McKeague pointed out that Abdulmutallab had done some pretty “well thought out logical things” leading up to his attack. He later asked whether his conduct at trial wasn’t consistent with what you’d expect a jihadi to do, to use the trial as a platform to present his views?

Rossman contested that point — noting that had Abdulmutallab let the trial play out, he would have had many more opportunities to parade his jihadi views. McKeague responded that refusing counsel left Abdulmutallab more empowered to make jihadi statements rather than mount a defense. Rossman correctly pointed out this was all getting into speculation about how a competent jihadi would act.

While it didn’t come up in the hearing, remember that the statement Abdulmutallab ultimately made was remarkably muted and took up less than 15 minutes, so by measure of his exploitation of his soapbox, the UndieBomber failed.

All that’s a way of saying that much of the hearing focused on how a competent jihadi would use his decision to represent himself to further his goals of jihad.

There is, however, a significant weakness in the government’s case, one Tukel made obvious with the central ploy he made in his argument.

Continue reading →


Why NSA Can’t Count How Many Americans’ Cell Location They Collect

By:  Wednesday December 4, 2013 10:26 pm

As bmaz noted, WaPo reported today that NSA has been collecting billions of phone records a day, including cell location information. Once again, when the NSA says it has stopped or doesn’t conduct a practice, it means only it has stopped the practice in the US, even though it still collects US person data overseas.

But the NSA refuses to reveal how many Americans’ data are being swept up.

The number of Americans whose locations are tracked as part of the NSA’s collection of data overseas is impossible to determine from the Snowden documents alone, and senior intelligence officials declined to offer an estimate.

“It’s awkward for us to try to provide any specific numbers,” one intelligence official said in a telephone interview. An NSA spokeswoman who took part in the call cut in to say the agency has no way to calculate such a figure.

An intelligence lawyer, speaking with his agency’s permission, said location data are obtained by methods “tuned to be looking outside the United States,” a formulation he repeated three times. When U.S. cellphone data are collected, he said, the data are not covered by the Fourth Amendment, which protects Americans against unreasonable searches and seizures.

A number of tech people are wondering if there’s some secret technical reason why NSA can’t or won’t estimate the number.

But the reason is almost certainly far more cynical.

In 2010 (sometime between July and October), John Bates told the NSA if they knew they were collecting content of US persons, they were illegally wiretapping them. But if they didn’t know, then they weren’t in violation.

When it is not known, and there is no reason to know, that a piece of information was acquired through electronic surveillance that was not authorized by the Court’s prior orders, the information is not subject to the criminal prohibition in Section 1809(a)(2). Of course, government officials may not avoid the strictures of Section 1809(a)(2) by cultivating a state of deliberate ignorance when reasonable inquiry would likely establish that information was indeed obtained through unauthorized electronic surveillance.

Then in 2011, Bates made them count some of their collection of US person content (he deemed it intentional collection, though they and their Congressional overseers still like to claim, legal opinion notwithstanding, it was not; the use of “tuned to be looking outside the US” is probably more of the same). And using the threat of labeling that US person content, he forced them to purge the information. But they somehow refused to count the larger amount of US person data collected intentionally, and NSA was permitted to keep that.

Presumably, the laws would be different on overseas collection, which would not count as “electronic surveillance.” Except that with Section 703 of FISA — which requires an order for collection on US person content overseas — there may be similar levels of protection, just via different statutes.

One thing the NSA has learned through experience with John Bates and FISC is that if you claim you don’t know you’ve collected US person data, a judge will not declare it legal. But if you admit you’ve collected US person data, then that same judge may threaten you with sanctions or force you to purge your data.

So there’s a very good reason why it’s “awkward” for NSA “to try to provide any specific numbers.” Doing so would probably make the collection illegal.


Scary Terror Metrics: Do Indicted “Terrorists” Really Measure Back Door Spying?

By:  Wednesday December 4, 2013 10:27 am

Screen shot 2013-12-04 at 9.02.37 AM

Given how often fellow Michigander Juan Cole and I demonstrate what a mendacious hack Mike Rogers is…

Mike Rogers voted to give arms to the Syrian rebels. And while he may hope they don’t go to the al-Qaeda affiliates (as happened when Ronald Reagan gave $5 billion to the Afghan Mujahidin in the 1980s), he has no guarantee that won’t happen and is willing to take the risk. If Rogers were really, really concerned about the Jabhat al-Nusra, he wouldn’t be risking upping its firepower with Americans’ tax dollars as a justification for monitoring who your 15 year old daughter calls on her cell phone.

Let us say that again. Feinstein and Rogers just came on television to scaremonger the American people with the Syrian jihadis, and both of them voted to give the Syrian rebels millions of dollars in arms.

… You’d think some of the MI press might look into it.

Thankfully, Cole and I are no longer the only ones asking substantive questions about Rogers and Dianne Feinstein’s fearmongering on this Sunday’s shows. Peter Bergen has a piece that — like Cole — looks at actual numbers to challenge their claims. He relies on a New America Foundation study of Americans and residents indicted or killed over the last decade, showing that those numbers show terrorism to be going down (and be propagated by smaller, less capable groups).

But is there any real reason to think that Americans are no safer than was the case a couple of years back? Not according to a study by the New America Foundation of every militant indicted in the United States who is affiliated with al Qaeda or with a like-minded group or is motivated by al Qaeda’s ideology.

In fact, the total number of such indicted extremists has declined substantially from 33 in 2010 to nine in 2013. And the number of individuals indicted for plotting attacks within the United States, as opposed to being indicted for traveling to join a terrorist group overseas or for sending money to a foreign terrorist group, also declined from 12 in 2011 to only three in 2013.

Of course, a declining number of indictments doesn’t mean that the militant threat has disappeared. One of the militants indicted in 2013 was Dzhokhar Tsarnaev, who is one of the brothers alleged to be responsible for the Boston Marathon bombings in April. But a sharply declining number of indictments does suggest that fewer and fewer militants are targeting the United States.

Recent attack plots in the United States also do not show signs of direction from foreign terrorist organizations such as al Qaeda, but instead are conducted by individuals who are influenced by the ideology of violent jihad, usually because of what they read or watch on the Internet.

None of the 21 homegrown extremists known to have been involved in plots against the United States between 2011 and 2013 received training abroad from a terrorist organization — the kind of training that can turn an angry, young man into a deadly, well-trained, angry, young man.

Of these extremists, only Tamerlan Tsarnaev, one of the alleged Boston bombers, is known to have had any contact with militants overseas, but it is unclear to what extent, if any, these contacts played in the Boston Marathon bombings. [my emphasis]

The post got me thinking about the validity of this metric. Are the number of people indicted since 2009 a reflection of the actual threat, or that Federal officials have exhausted all the leads they’ve gotten from backdoor searches of existing COMINT collections?

Consider what one anonymous source said in the months after Anwar al-Awlaki was killed.

U.S. intelligence analysts miss the publication, too, at least to the extent that it provided a window into the thinking of al-Qaeda in the Arabian Peninsula, as the Yemen-based group is known.

“It was something that helped us gain insight into the group,” said a U.S. defense official involved in tracking AQAP, who spoke on the condition of anonymity. The publication’s apparent demise is “an intelligence loss for us,” the official said.

Yet Inspire probably wasn’t just a window onto AQAP’s thinking (if it really was that). Particularly given the indications NSA had some access to its code (if I were NSA I would have attached some kind of flag to the code used to decrypt the document, and I would also search on that code in upstream collection), I would assume Inspire was a major source of leads. So did killing Awlaki and Samir Khan simply make it harder for US officials to find Muslims to trap in stings over time?

NAF’s data is inconclusive on this point.  Continue reading →


“Bandar is now clearly the tip of the spear”

By:  Wednesday December 4, 2013 6:28 am

Back in October, in response to the Saudis taking their toys and going home from the UN, I warned, “I worry they disengaged from the UN because they are considering alternative means of pursuing their interests, means that would be loudly condemned in that body.”

Yesterday, Dick Cheney lackey John Hannah wrote a remarkable screed about Saudi complaints. It starts by warning that Obama’s Iran deal’s “greatest impact is not ensuring that Iran doesn’t get the bomb, but that the Saudis will.” In part to support this, he describes Mr. Tip of the Spear’s close consultations with the Pakistanis (who not only have the bomb but have thousands of our troops held hostage to supply lines through Pakistan).

Bandar is now clearly the tip of the spear in King Abdullah’s efforts to combat the Iranian threat around the region — not to mention the principal point of contact in the kingdom’s thick relationship with Pakistan’s military and intelligence establishment.

Then after laying out the Saudi complaints (basically, that the US is not serving as meat in its efforts to extend its hegemony over the region), and after condemning John Kerry with a mix of emasculation and Saudi distrust, Hannah issues the threat Bandar likely suggested he issue:

An atmosphere this poisonous is dangerous, to say the least. The incentive for the Saudis to engage in all kinds of self-help that Washington would find less than beneficial, even destructive, is significant and rising. Driven into a corner, feeling largely abandoned by their traditional superpower patron, no one should doubt that the Saudis will do what they believe is necessary to ensure their survival. It would be a mistake to underestimate their capacity to deliver some very unpleasant surprises: from the groups they feel compelled to support in their escalating proxy war with Iran, to the price of oil, to their sponsorship (and bankrolling) of a much expanded regional role for Russia and China at America’s expense.

Ultimately, Hannah is warning that the Saudis will get — and, the suggestion is, with his language about “a very, very high price in blood, treasure, and U.S. interests,” use — the bomb.

But I can’t help but return to his focus on Bandar bin Sultan, who had financial ties (via donations to charities) and potential foreknowledge of Saudi ties to the 9/11 attacks. Former Senator Bob Graham has renewed his effort to bring attention to the Saudi role in the attack, though that never seems to go anywhere. And whether you consider ops like Iran-Contra terrorism or not, Bandar is clearly the master of covert ops.

What kind of self-help has Bandar insinuated to Hannah he plans to pursue?


Federated Queries and EO 12333 FISC Workaround

By:  Tuesday December 3, 2013 2:45 pm

Particularly given the evidence NSA started expanding its dragnet collection overseas as soon as the FISA Court discovered it had been breaking the law for years, I’ve been focusing closely on the relationship between the FISA Court-authorized dragnets (which NSA calls BR FISA — Business Records FISA — and PR/TT — Pen Register/Trap and Trace — after the authorities used to collect the data) and those authorized under Executive Order 12333.

This document — Module 4 of a training program storyboard that dates to late 2011 — provides some insight of how NSA trained its analysts to use international collections to be able to share data otherwise restricted by FISC.

The module lays out who has access to what data, then describes how analysts look up both the Reasonable Articulable Suspicion (RAS) determinations of identifiers they want to query on, as well as the BR and PR/TT credentials of those they might share query results with. It also describes how “EAR” prevents an analyst from querying BR or PR/TT data with any non-RAS approved identifier. So a chunk of the module shows how software checks should help to ensure the US-collected data is treated according to the controls imposed by FISC.

But the module also describes how a software interface (almost certainly MARINA, the metadata database) manages all the metadata collected from all over the world.

All of it, in one database.

So if you do what’s called a “federated” query with full BR and/or PR/TT credentials — meaning it searches on all collections the analyst has credentials for, with BR and PR/TT being the most restrictive — you may pull metadata collected via a range of different programs. Alternately, you can choose just to search some of the collections.

When launching analysts with [redacted] the appropriate BR or PR/TT credentials have the option to check a box if they wish to include BR or PR/TT metadata in their queries. If an analyst checks the “FISABR Mode” or “PENREGISTRY Mode” box when logging into [redacted] will perform a federated query. This means that in addition to either BR or PR/TT metadata, [redacted] will also query data collected under additional collection authorities, depending on the analyst’s credentials. Therefore, when performing a query of the BR or PR/TT metadata, analysts will potentially receive results from all of the above collection sources. Users of more recent versions of [redacted] do have the option, however, to “unfederate” the query, and pick and choose amongst the collection sources that they would like to query (10)

Back in 2009, when NSA was still working through disclosures of dragnet problems to FISC, analysts apparently had to guess where the data they were querying came from (which of course is an implicit admission that BR data had been improperly treated with weaker EO 12333 protections for years). But by 2011 they had worked it out so queries showed both what SIGAD (collection point) the metadata came from, as well as (using a classification mark) its highest classification.

It is possible to determine the collection source or sources of each result within the chain by examining the Producer Designator Digraph (PDDG)/SIGINT Activity Designator (SIGAD) and collection source(s) at the end of the line.

If at least one source of a result is BR or PR/TT metadata, the classification at the beginning of the line will contain the phrases FISABR or PR/TT, respectively. In addition, in the source information at the end of the line, the SIGAD [redacted] BR data can be recognized by SIGADs beginning with [redacted] For PR/TT, data collected after October 2010 is found [redacted] For a comprehensive listing of all the BR and PR/TT SIGADs as well as information on PR/TT data collected prior to November of 2009, contact your organization’s management or subject matter expert.

Since it is possible that one communication event will be collected under multiple collection authorities (and multiple collection sources), not all of the results will be unique to one collection authority (or collection source). Keep in mind that the classification at the beginning of each result only indicates the highest level classification of that result, and does not necessarily reflect whether a result was unique to one collection authority (or collection source). If a result was obtained under multiple authorities (or sources), you will see more [redacted] (15-16)

In other words, analysts will be able to see from their results where the results come from. If a query result includes data only from BR or PR/TT sources, then the analyst can’t share the result with anyone not cleared into those programs without jumping some hoops. But if a query result showed other means to come up with the same results from a BR or PR/TT search (that is, if EO 12333 data would return the same result), then the result would not be considered a BR- or PR/TT-unique result, meaning the result could be shared far more widely. (Note, this passage also provides more details about the timing of the Internet metadata shutdown, suggesting it may have lasted from November 2009 to October 2010.)

Sharing restrictions in the FISC Orders only apply to unique BR or PR/TT query results. If query results are derived from multiple sources and are not unique to BR and PR/TT alone, the rules governing the other collection authority would apply. (17)

After noting this, the training storyboard spends 5 pages describing the restrictions on dissemination or further data analysis of BR and PR/TT results, even summaries of those results.

Then it returns to the point that such restrictions only hold for BR- or PR/TT-unique results and encourages analysts to run queries under EO 12333 so as to be able to get a result that can be shared and further exploited.

 However, as we’ve discussed, not all BR or PR/TT results are unique. If a query result indicates it was derived from another collection source in addition to BR or PR/TT, the rules governing the other collection authority would apply to the handling an d sharing of that query result. For example, this result came from both BR and E.O. 12333 collection; therefore, because it is not unique to BR information, it would be ok to inform non- BR cleared individuals of the fact of this communication, as well as task, query, and report this information according to standard E.O. 12333 guidelines.

In summary, if a query result has multiple collection authorities, analysts should source and/or report the non-BR or PR/TT version of that query result according to the rules governing the other authority. But if it is unique to either the BR or PR/TT authority then it is a unique query result with all of the applicable BR and PR/TT restrictions placed on it. In both cases, however, analysts should not share the actual chain containing BR or PR/TT results with analysts who do not have the credentials to receive or view BR or PR/TT information. In such an instance, if it is necessary to share the chain, analysts should re-run the query in the non-BR or non-PR/TT areas of [redacted] and share that .cml. (22)

Let me be clear: none of this appears to be illegal (except insofar as it involves a recognition it is collecting US person data overseas, which may raise issues under a number of statutes). It’s just a kluge designed to use the US-based dragnet programs to pinpoint results, then use EO 12333 results to disseminate widely.

It does, obviously, raise big questions about whether the numbers reported to Congress on dragnet searches reflect the real number of searches and/or results, which will get more pressing if new information sharing laws get passed.

Mostly, though, it shows how NSA uses overseas collection to collect the same data on Americans without the restrictions on sharing it.

There are a lot of likely reasons to explain why the NSA stopped collecting Internet metadata in the US in 2011 (seemingly weeks after this version of the storyboard, though they would still be able to access the PR/TT metadata for 5 years). But it is clear the overseas collection serves, in part, to get around FISC restrictions on dissemination and further analysis.

Updated: Added explanation for BR FISA and PR/TT abbreviations.


Home Affairs Committee MPs Worry about Minimization Procedures — of Newspaper, not Spy Service

By:  Tuesday December 3, 2013 11:46 am

I just finished watching Guardian editor Alan Rusbridger’s testimony before the House of Commons Home Affairs Committee, which the Guardian live-blogged here. My overall impression is that, whatever else has happened to America’s former colonial overlords, Brits still maintain the ability to be utter blowhards while maintaining a facade of politeness far better than, say, our blowhards on the House Intelligence Committee.

Those who really wanted to attack Rusbridger and the Guardian, though, appear to have no sense of irony.

They latched not primarily on the Guardian’s publication of news about the NSA-GCHQ dragnet, which several MPs agreed showed the spy services had too few limits. Rather, MPs like Keith Vaz and Mark Reckless suggested Rusbridger had broken the law by sending 50,000 files to the NYT without first redacting the names of GCHQ’s spies. From the Guardian liveblog:

Has he communicated information contrary to the Terrorism Act?

Rusbridger says the government has known for many months that the material Snowden leaked included names of security people at the NSA andGCHQ and he told the cabinet secretary in July that the Guardian was sharing with the NYT. Self-evidently they work in New York. Rusbridger holds up the book Spycatcher by Peter Wright, a former MI5 agent, and recalls the ridiculous sight of the UK trying to stop publication of something being published elsewhere in the world. That was the point of giving the files to the NYT – to avoid a similar situation.

You have I think admitted a criminal offence there, Reckless says. Should Rushbridger be prosecuted?

Admittedly, this was mostly an attempt to intimidate Rusbridger (and he said as much).

But it was also a query about whether the Guardian used adequate minimization procedures before sharing bulk data collected in the course of reporting.

To one question, Rusbridger admitted he hadn’t gone through all 50,000 documents before handing them to the NYT, but he knew the NYT would also protect the names of any spies.

He effectively was taking precisely the same stance on minimization that GCHQ and NSA adopt with their bulk collection. The services share unminimized bulk collected data back and forth with each other. They agree (though sometimes let each other ignore that agreement) to minimize the data of British or US subjects before using that data in finished intelligence reports, the equivalent of a newspaper’s publication.

Pass on the data in bulk, with the understanding none of it will be published with the legally protected identities unmasked (unless needed to understand the intelligence, the spy services allow). That is the practice used by both the Guardian with NYT and GCHQ with NSA.

Spy overseers have repeatedly pointed to minimization procedures as an adequate protection for the privacy of their citizens, to hide information unless it was necessary. Usually, they ignore the danger of having those identities tied to the data in secret archives somewhere.

But at least MPs Vaz and Reckless admit, without meaning to do so, that such minimization procedures might not adequately protect sensitive identities.

But as Rusbridger quipped (and has quipped, elsewhere), the only one who is known to have lost control of data here was the NSA, not the newspapers.


Stealing US Person Data Overseas: A Fox Source and Method

By:  Tuesday December 3, 2013 10:00 am

Catherine Herridge, one of Fox’s national security journalists, is usually fairly credible.

But yesterday, she gave House Intelligence Chair Mike Rogers an opportunity to claim evidence suggested Edward Snowden had help — without providing any evidence.

The evidence surrounding the case of former NSA contractor Edward Snowden suggests he did not act alone when he downloaded some 200,000 documents, according to the Republican head of the House Intelligence Committee.

“We know he did some things capability-wise that was beyond his capabilities. Which means he used someone else’s help to try and steal things from the United States, the people of the United States. Classified information, information we use to keep America safe,”  Rep. Mike Rogers, R-Mich., told Fox News.  [my emphasis]

To Herridge’s credit, she balances Rogers’ evidence-free claim with Glenn Greenwald’s statement noting that Rogers and others keep making such claims but have never provided any evidence.

That’s when things go south quickly. Herridge claims that a review of the Snowden leaks “shows the majority of the leaks since June now deal with sources, methods and surveillance overseas.”

A review of the NSA leaks by Fox News shows the majority of the leaks since June now deal with sources, methods and surveillance activities overseas, rather than the privacy rights of American citizens.

Now, perhaps she conducted a strict count, including every report on the extensiveness of NSA spying on various countries, to come up with this assertion.

But I find it bizarre that, less than a week after the report that NSA has been spying on the smut habits of 6 non-terrorists, including one US person, she deems this spying not to infringe on the privacy rights of American citizens (though we admittedly don’t know whether the US person is a permanent resident or a citizen).

More importantly, Herridge seems to dismiss the bulk of the recent reports — on deeply concerning dragnets overseas that don’t discriminate on US person data — because they happen overseas.

Now perhaps it’s because she’s doing a flyby on this reporting, and is unfamiliar with the evidence that that collection went overseas at precisely the time similar collection was deemed illegal within the US. Perhaps she’s not considering what it means that NSA steals from Google and Yahoo’s cables overseas in addition to the legally sanctioned spying they’re doing via PRISM. Perhaps she hasn’t reflected on the fact that, when NSA spies on US persons overseas, they get far less protection under EO 12333, no FISC oversight, and almost no Congressional oversight, than they would under FISA Amendments Act.

Perhaps she hasn’t thought through all the ways that this overseas spying may be a far bigger privacy violation than the spying it does in the US, not to mention evidence of NSA’s ongoing refusal to abide by the laws protecting Internet content.

And all that’s before you consider the secondary disclosures — such as the RAS-free searches of Americans’ data via back door searches — that we’re getting because of earlier Snowden leaks.

So perhaps there is a way to count all this up and dismiss worries about US privacy. But real reporting on it says recent leaks provide more cause for concern than most of the early ones.

 


NSA: We Steal Industry Secrets, But Not for Competitive Advantage

By:  Monday December 2, 2013 3:59 pm

Kudos to Kevin Gosztola, who liberated the propaganda the NSA sent workers home with for Thanksgiving to use with family and friends.

I find 3 of the bullet points particularly interesting (all of which Gosztola also touches on).

NSA: we steal secrets, we just use them differently

NSA does not and will not steal industry secrets in order to give U.S. companies a competitive advantage.

The NSA has uttered various versions of this claim since the Snowden leaks started. But I find this formulation particularly telling. NSA is not denying they steal industry secrets (nor could they, since we know they’ve stolen data from corporations like Petrobras and have stolen secrets from a range of hacking targets).

They’re just denying they steal secrets in order to give US companies a competitive advantage.

Of course, they’re not calculating the advantage that having the world’s most voracious COMINT spy might have for owners of IP. They’re not talking about how intelligence on opposition to US products (like GMO or untested chemicals) translates into industrial advantage. They’re not talking about how spying influences the work of Defense Contractors (who do, of course, also sell on the international market). They’re not talking about how larger financial spying ultimately gives American companies an advantage.

But so long as NSA’s workers can tell their mother-in-law they’re not facilitating US cheating (which they are), it’s all good, I guess.

We don’t demand, we ask nicely

NSA does not and will not demand changes by any vendor to any product, nor does it have any authority to demand such changes.

Again, watch the language carefully. NSA denies it demands changes (presumably meaning to the security of software and hardware producers). It doesn’t deny it sometimes asks for changes. It doesn’t deny it sometimes negotiates unfairly to get those changes. It doesn’t deny it steals data on those changes.

It just doesn’t demand those changes.

We perform exceptionally well if you ignore cybersecurity

NSA performs its mission exceptionally well. We strive to be the best that we can be, because that’s what America requires as part of its defense in a dangerous world.

Signals intelligence improves our knowledge and understanding of terrorist plans and intentions. It is one of the most powerful tools we have to protect our citizens, soldiers, and allies.

Fundamentally, NSA and partner foreign intelligence agencies work together to protect the world’s citizens from a range of threats like terrorism, weapons proliferation, and cyber attacks. Terrorists and weapons proliferators use the same technology many of us do, such as e-mail. That is why the U.S. Government compels providers to provide webmail for these carefully identified threats.

In the original, the first of these two bullets is bolded, on top of the emphasis to exceptionally well.

But note how carefully the document dances around NSA’s failures in cybersecurity? Elsewhere, the document admits its helps DOD with cybersecurity, but says nothing about targeting cyber attackers more generally.

It then pretends it only uses Section 702 for collection directly from Internet providers, ignoring the upstream collection and its focus on cybersecurity targets. It also pretends it only uses Section 702 for counterproliferation and terrorist targets, though ODNI has admitted to targeting cyberattackers under Section 702 before.

No lesser expert than Keith Alexander has equated the cybertheft of American companies to colonial plunder. It is his job to combat those cyberthieves who’ve plundered the country. And yet, he says he has done his job exceptionally well.

I guess that’s why he only wanted to talk about terrorism?


China Rivaling British in Crackdown on Critical Journalism

By:  Monday December 2, 2013 2:34 pm

The American press is (rightly) outraged by the news that Chinese officials showed up unannounced to “inspect” Bloomberg’s Chinese bureaus.

In what appears to be a conspicuous show of displeasure, Chinese authorities conducted unannounced “inspections” at Bloomberg News bureaus in Beijing and Shanghai in the final days of November, Fortune has learned. The visits followed media reports that Bloomberg cancelled a year-long investigation on financial ties between a Chinese billionaire and government officials.

[snip]

Details of the inspections, conducted on the same day at the news bureaus in Beijing and Shanghai, are sketchy. It’s unclear how many officials were present or what government agency they represented. Different sources say, variously, that the visits were characterized as “security inspections” or “safety inspections.” But journalists inside Bloomberg view the appearance by civil government officials (they weren’t police) as an act of intimidation—precisely the reaction Bloomberg was eager to avoid.

And David Cameron told his Chinese hosts he was unhappy that Bloomberg reporter Robert Hutton was excluded from a joint press conference with him and Li Keqiang.

Downing Street has protested to the Chinese authorities about a “completely inappropriate” decision to bar a British journalist from a press conference in Beijing with David Cameron and his Chinese counterpart, Li Keqiang.

No 10 raised “deep concerns” on two occasions with Chinese officials after the foreign ministry excluded Robert Hutton, a political journalist with the US wire service Bloomberg, from the event at the Great Hall of the People on Monday.

Really, though, Cameron might have instead offered the Chinese tips about how satisfying it is to force a transnational journalistic outlet to destroy its hard drives with a power drill when shadowy figures show up in the name of “security.” For all the outrage directed at China, after all, the UK is not above aggressive censorship of damning information about its own government.

While the home of the Magna Carta chooses to use such persecution when a newspaper threatens to expose that it is really a surveillance state, the “Communist” leaders in China need to squelch stories of their own enrichment and corruption. But both are engaged in a similar paranoid suppression of news stories that goes to the heart of the fictions mobilized to rationalize their rule.

Which makes it rather telling that the Chinese example is getting so much more attention.