Chris Wray’s DodgeBall and Trump’s Latest Threats

Though I lived-tweeted it, I never wrote up Christopher Wray’s confirmation hearing to become FBI Director. Given the implicit and explicit threats against prosecutorial independence Trump made in this interview, the Senate should hold off on Wray’s confirmation until it gets far more explicit answers to some key questions.

Trump assails judicial independence

The NYT interview is full of Trump’s attacks on prosecutorial independence.

It started when Trump suggested (perhaps at the prompting of Michael Schmidt) that Comey only briefed Trump on the Christopher Steele dossier so he could gain leverage over the President.

Later, Trump called Sessions’ recusal “unfair” to the President.

He then attacked Rod Rosenstein by suggesting the Deputy Attorney General (who, Ryan Reilly pointed out, is from Bethesda) must be a Democrat because he’s from Baltimore.

Note NYT goes off the record (note the dashed line) with Trump in his discussions about Rosenstein at least twice (including for his response to whether it was Sessions’ fault or Rosenstein’s that Mueller got appointed), and NYT’s reporters seemingly don’t think to point out to the President that he appeared to suggest he had no involvement in picking DOJ’s #2, which would seem to be crazy news if true.

Finally, Trump suggested (as he has elsewhere) Acting FBI Director Andrew McCabe is pro-Clinton.

Having attacked all the people who are currently or who have led the investigation into him (elsewhere in the interview, though, Trump claims he’s not under investigation), Trump then suggested that FBI Directors report directly to the President. In that context, he mentioned there’ll soon be a new FBI Director.

In other words, this mostly softball interview (though Peter Baker made repeated efforts to get Trump to explain the emails setting up the June 9, 2016 meeting) served as a largely unfettered opportunity for Trump to take aim at every major DOJ official and at the concept of all prosecutorial independence. And in that same interview, he intimated that the reporting requirements with Christopher Wray — who got nominated, ostensibly, because Comey usurped the chain of command requiring him to report to Loretta Lynch — would amount to Wray reporting directly to Trump.

Rosenstein does what he says Comey should be fired for

Close to the same time this interview was being released, Fox News released an “exclusive” interview with Rod Rosenstein, one of two guys who acceded to the firing of Jim Comey ostensibly because the FBI Director made inappropriate comments about an investigation. In it, the guy overseeing Mueller’s investigation into (in part) whether Trump’s firing of Comey amounted to obstruction of justice, Rosenstein suggested Comey acted improperly in releasing the memos that led to Mueller’s appointment.

And he had tough words when asked about Comey’s recent admission that he used a friend at Columbia University to get a memo he penned on a discussion with Trump leaked to The New York Times.

“As a general proposition, you have to understand the Department of Justice. We take confidentiality seriously, so when we have memoranda about our ongoing matters, we have an obligation to keep that confidential,” Rosenstein said.

Asked if he would prohibit releasing memos on a discussion with the president, he said, “As a general position, I think it is quite clear. It’s what we were taught, all of us as prosecutors and agents.”

While Rosenstein went on to defend his appointment of Mueller (and DOJ’s reinstatement of asset forfeitures), he appears to have no clue that he undermined his act even as he defended it.

Christopher Wray’s dodge ball

Which brings me to Wray’s confirmation hearing.

In fact, there were some bright spots in Christopher Wray’s confirmation hearing, mostly in its last dregs. For example, Dick Durbin noted that DOJ used to investigate white collar crime, but then stopped. Wray suggested DOJ had lost its stomach for such things, hinting that he might “rectify” that.

Similarly, with the last questions of the hearing Mazie Hirono got the most important question about the process of Wray’s hiring answered, getting Wray to explain that only appropriate people (Trump, Don McGahn, Reince Priebus, Mike Pence) were in his two White House interviews.

But much of the rest of the hearing alternated between Wray’s obviously well-rehearsed promises he would never be pressured to shut down an investigation, alternating with a series of dodged questions. Those dodges included:

  • What he did with the 2003 torture memo (dodge 1)
  • Whether 702 should have more protections (dodge 2)
  • Why did Trump fire Comey (dodge 3)
  • To what extent the Fourth Amendment applies to undocumented people in the US (dodge 4)
  • What we should do about junk science (dodge 5)
  • Whether Don Jr should have taken a meeting with someone promising Russian government help to get Trump elected (dodge 6)
  • Whether Lindsey Graham had fairly summarized the lies Don Jr told about his June 9, 2016 meeting (dodge 7)
  • Can the President fire Robert Mueller (dodge 8)
  • Whether it was a good idea to form a joint cyber group with Russia (dodge 9)
  • The role of tech in terrorist recruitment (dodge 9 the second)
  • Whether FBI Agents had lost faith in Comey (dodge 10)
  • Who was in his White House interview — though this was nailed down in a Hirono follow up (dodge 11)

Now, don’t get me wrong, this kind of dodge ball is par for the course for executive branch nominees in this era of partisan bickering — it’s the safest way for someone who wants a job to avoid pissing anyone off.

But at this time of crisis, we can’t afford the same old dodge ball confirmation hearing.

Moreover, two of the these dodges are inexcusable, in my opinion. First, his non-responses on 702. That’s true, first of all, because if and when he is confirmed, he will have to jump into the reauthorization process right away, and those who want basic reforms let Wray off the hook on an issue they could have gotten commitments on. I also find it inexcusable because Wray plead ignorance about 702 even though he played a key role in (not) giving defendants discovery on Stellar Wind, and otherwise was read into Stellar Wind after 2004, meaning he knows generally how PRISM works. He’s not ignorant of PRISM, and given how much I know about 702, he shouldn’t be ignorant of that, either.

But the big one — the absolutely inexcusable non answer that would lead me to vote against him — is his claim not to know the law about whether the President can fire Robert Mueller himself.

Oh, sure, as FBI Director, Wray won’t be in the loop in any firing. But by not answering a question the answer to which most people watching the hearing had at least looked up, Wray avoided going on the record on an issue that could immediately put him at odds with Trump, the guy who thinks Wray should report directly to him.

Add to that the Committee’s failure to ask Wray two other questions I find pertinent (and his answers on David Passaro’s prosecution either revealed cynical deceit about his opposition to torture or lack of awareness of what really happened with that prosecution).

The first question Wray should have been asked (and I thought would have been by Al Franken, who instead asked no questions) is the circumstances surrounding Wray’s briefing of John Ashcroft about the CIA Leak investigation in 2003, including details on Ashcroft’s close associate Karl Rove’s role in exposing Valerie Plame’s identity.

Sure, at some level, Wray was just briefing his boss back in 2003 when he gave Ashcroft details he probably shouldn’t have. The fault was Ashcroft’s, not Wray’s. But being willing to give an inappropriate briefing in 2003 is a near parallel to where Comey found himself, being questioned directly by Trump on a matter which Trump shouldn’t have had access to. And asking Wray to explain his past actions is a far, far better indication of how he would act in the (near) future than his rehearsed assurances he can’t be pressured.

The other question I’d have loved Wray to get asked (though this is more obscure) is how, as Assistant Attorney General for the Criminal Division under Bush, he implemented the July 22, 2002 Jay Bybee memo permitting the sharing of grand jury information directly with the President and his top advisors without notifying the district court of that sharing. I’d have asked Wray this question because it was something he would have several years of direct involvement with (potentially even with the Plame investigation!), and it would serve as a very good stand-in for his willingness to give the White House an inappropriate glimpse into investigations implicating the White House.

There are plenty more questions (about torture and the Chiquita settlement, especially) I’d have liked Wray to answer.

But in spite of Wray’s many rehearsed assurances he won’t spike any investigation at the command of Donald Trump, he dodged (and was not asked) key questions that would have made him prove that with both explanations of his past actions and commitments about future actions.

Given Trump’s direct assault on prosecutorial independence, an assault he launched while clearly looking forward to having Wray in place instead of McCabe, the Senate should go back and get answers. Trump has suggested he thinks Wray will be different than Sessions, Rosenstein, Comey, and McCabe. And before confirming Wray, the Senate should find out whether Trump has a reason to believe that.

Update: I did not realize that between the time I started this while you were all asleep and the time I woke up in middle of the night Oz time SJC voted Wray out unanimously, which is a testament to the absolute dearth of oversight in the Senate.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Yevgeniy Nikulin Writes The Donald

Back in July, I noted that Vladimir Putin started waxing about independent hackers’ “art” as it looked more and more likely that Yevgeniy Nikulin, the guy DOJ has accused of hacking Linked In and MySpace, among others, would be extradited to the US.  Nikulin also made some news by alleging that back in February, the FBI Agent who had interrogated him in Prague had asked him about the election hack.

Now Nikulin has gone one better, writing to President Trump with his claim that he was asked to perjure himself by claiming credit for the DNC hack. (h/t ME)

Obviously, this might just be a ploy to garner attention and give Russia some ammunition to bolster their (thus far reportedly losing) claim that they should get custody of Nikulin for a minor hack rather than the US for a number of very major ones. It is a good way to get attention, especially given the way Trump keeps raising doubts about who hacked the DNC.

But it is actually not crazy to think Nikulin had a role in the DNC hack. One fairly credible alternative theory for the source of the DNC emails dealt to WikiLeaks is that someone used easily cracked credentials from Nikulin’s alleged breaches to obtain the email boxes of about 9 people at the DNC. If that were the case, it would raise the stakes for the logic behind the hacks Nikulin is alleged to have committed and the timing of the more public release of the stolen credentials.

In which case Nikulin’s appeal to Trump (who of course has shown zero interest in the plight of unjust DOJ claims for anyone else, even American citizens, since being elected) would be far more interesting — a way for Trump to personally intervene to prevent potentially damning information from landing in the hands of American prosecutors.

It’s the kind of thing that might come up in hour long conversations on the sidelines of meetings between Putin and Trump.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Be Careful How You Define Collusion: On the Veselnitskaya Bombshell and the Steele Dossier

See update, below, which provides evidence that was not present when I wrote this post. 

The NYT has a new bombshell showing that Don Jr. was willing to meet with someone to get Russian dirt on Hillary. It is damning. But Democrats should be very careful about calling it collusion, yet.

On Saturday, the NYT reported that Don Jr, Paul Manafort, and Jared Kushner met on June 9 with Natalia Veselnitskaya, a Russian lawyer who has worked to overturn the Magnitsky sanctions. In Don Jr’s first response to the NYT, he admitted to the meeting, but said it focused primarily on adoptions (which means it focused on the sanctions).

Then, yesterday, NYT reported that Don Jr took the meeting because he was promised Russia-related dirt on Hillary. With that new detail, Don Jr changed his story, admitting that’s why he took the meeting, though he claimed that the information Veselnitskaya offered “made no sense.”

In a statement on Sunday, Donald Trump Jr. said he had met with the Russian lawyer at the request of an acquaintance. “After pleasantries were exchanged,” he said, “the woman stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton. Her statements were vague, ambiguous and made no sense. No details or supporting information was provided or even offered. It quickly became clear that she had no meaningful information.”

He said she then turned the conversation to adoption of Russian children and the Magnitsky Act, an American law that blacklists suspected Russian human rights abusers. The law so enraged President Vladimir V. Putin of Russia that he retaliated by halting American adoptions of Russian children.

“It became clear to me that this was the true agenda all along and that the claims of potentially helpful information were a pretext for the meeting,” Mr. Trump said.

WaPo revealed that the meeting was set up by music publicist Rob Goldstone, and hints that he may have done so at the behest of Emin Agalarov (which Goldstone has since confirmed).

He did not name the acquaintance, but in an interview Sunday, Rob Goldstone, a music publicist who is friendly with Trump Jr., told The Washington Post that he had arranged the meeting at the request of a Russian client and had attended it along with Veselnitskaya.

Goldstone has been active with the Miss Universe pageant and works as a manager for Emin Agalarov, a Russian pop star whose father is a wealthy Moscow developer who sponsored the pageant in the Russian capital in 2013.

This news is damning for several reasons. Kushner failed to disclose it at first in his clearance application, and Don Jr didn’t reveal it in past interviews about meeting with Russians. Everyone tried to hide this at first.

But thus far, it is not evidence of collusion, contrary to what a lot of people are saying.

That’s true, most obviously, because we only have the implicit offer of a quid pro quo: dirt on Hillary — the source of which is unknown — in exchange for sanctions relief. We don’t (yet) have evidence that Don Jr and his co-conspirators acted on that quid pro quo.

But it’s also true because if that’s the standard for collusion, then Hillary’s campaign is in trouble for doing the same.

Remember: A supporter of Hillary Clinton paid an opposition research firm, Fusion GPS, to hire a British spy who in turn paid money to Russians — including people even closer to the Kremlin than Veselnitskaya — for Russia-related dirt on Don Jr’s dad.

Yes, the Clinton campaign was full of adults, and so kept their Russian-paying oppo research far better removed from the key players on the campaign than Trump’s campaign, which was run by incompetents. But if obtaining dirt from Russians — even paying Russians to obtain dirt — is collusion, then a whole bunch of people colluded with Russians (and a bunch of other foreign entities, I’m sure), including whatever Republican originally paid Fusion for dirt on Trump.

Breaking: Our political process is sleazy as fuck (but then, so are most of our politicians).

The claim that merely meeting with Veselnitskaya is collusion is all the more dangerous given that it invokes some weird details about the Fusion dossier. Most importantly, as Trump’s lawyer’s spox has pointed out (incoherently, at first), like whatever Clinton supporter retained the oppo research firm, Veselnitskaya also employed Fusion. An update to NYT’s Friday story laid some of this out, in the form of Mark Corallo’s more clever than you actually might think suggestion that the Democrats might have paid Fusion to set up this meeting.

In an interview, Mr. [Mark] Corallo explained that Ms. Veselnitskaya, in her anti-Magnitsky campaign, employs a private investigator whose firm, Fusion GPS, produced an intelligence dossier that contained unproven allegations against the president. In a statement, the firm said, “Fusion GPS learned about this meeting from news reports and had no prior knowledge of it. Any claim that Fusion GPS arranged or facilitated this meeting in any way is false.”

[snip]

One of Ms. Veselnitskaya’s clients is Denis Katsyv, the Russian owner of a Cyprus-based investment company called Prevezon Holdings. He is the son of Petr Katsyv, the vice president of the state-owned Russian Railways and a former deputy governor of the Moscow region. In a civil forfeiture case prosecuted by Mr. Bharara’s office, the Justice Department alleged that Prevezon had helped launder money tied to a $230 million corruption scheme exposed by Mr. Magnitsky by parking it in New York real estate and bank accounts. As a result, the government froze $14 million of its assets. Prevezon recently settled the case for $6 million without admitting wrongdoing.

[snip]

Besides the private investigator whose firm produced the Trump dossier, the lobbying team included Rinat Akhmetshin, an émigré to the United States who once served as a Soviet military officer and who has been called a Russian political gun for hire.

Republicans have already pointed to Akhmetshin’s work with Fusion as a way to discredit the Steele dossier. Now they are (or at least were, before the really damning bits came out) using it to attempt to discredit the most damning detail about Trump’s ties to Russians.

But there in one other interesting detail.

The first report (that we have) reflecting Christopher Steele’s work (and also the first report that some unknown Democrat paid for after earlier oppo research had been paid for by some Republican) is dated June 20.

The report, dated 11 days after the Veselnitskaya meeting, states that the Kremlin has a dossier on Clinton, but that it has not as yet been distributed abroad.

That claim is seemingly contradicted by the claims of Source A (a senior Russian Foreign Ministry figure) and Source D. Indeed, Source D appears to have claimed, in June, that dirt from Russia was helpful.

Ultimately, though, the memo seems to credit Source B, “a former top level Russian intelligence officer” and Source G, a senior Kremlin official, who said the dossier, attributed here to the FSB, had not yet been shared with Trump or anyone else in America.

Consider: First, Akhmetshin himself qualifies as a former intelligence officer (though it’s not clear how senior he was). He might have reason to deny that intelligence he tried to pass was the intelligence in question. And he’d likely be right, given that the Clinton dossier was purportedly a FSB, not a GRU, product. But it’s even possible that he didn’t want Hillary to know that he or a colleague was dealing dirt, however bad.

Nevertheless, the senior-most Russian quoted in the dossier compiled for Hillary Clinton claimed — and Steele appears to have believed — that Russia’s dirt on Hillary Clinton had not yet been released.

Which doesn’t really help the treatment of this as a scandal.

Don’t get me wrong. I suspect there is more to this story. But I also note that Democrats should be really careful not to get too far ahead of this one, for fear of where it will lead.

Update: NYT’s latest provides evidence that gets you far closer to collusion than the previous evidence.

Mr. Goldstone’s message, as described to The New York Times by the three people, indicates that the Russian government was the source of the potentially damaging information. It does not elaborate on the wider effort by Moscow to help the Trump campaign. There is no evidence to suggest that the promised damaging information was related to Russian government computer hacking that led to the release of thousands of Democratic National Committee emails.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

James Clapper Updated Rules on Congressional Notice the Day before He Retired

On his very last full day in office on January 19, in the middle of an investigation that included then Senator Jeff Sessions’ discussions with the Russian Ambassador, James Clapper updated the rules on dissemination of the identities of members or staffers of Congress in intelligence reports.

One minor change to the previous procedures involved adding the Director of National Intelligence to the list of people whose requests to identify a MoC’s identity in a report don’t have to go through the same approval process as other people (which, in any case, involves approval by the DNI).

Here’s what that provision looked like in 2013.

As I suggested after Clapper most recently testified, his answers about unmasking the identity of a member of Congress or a Trump associate logically suggest he may have unmasked the identity of Jeff Sessions (though this process would involve someone else sharing the name of a member of Congress with Clapper, not Clapper unmasking the name).

LINDSEY GRAHAM: You made a request for unmasking on a Trump associate and maybe a member of Congress? Is that right, Mr. Clapper?

CLAPPER: Yes.

As I noted, the DNI is the person who has to approve the most sensitive requests. So by adding himself, Clapper only closed a loop, giving himself (or his successor) permission to ask for and receive information he himself had the authority to ask and receive in any case.

But I find the timing of the change interesting.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Maddow’s Forgery and Mistaken Timing

Much of Rachel Maddow’s reporting on the Russian scandal has been overly drawn out and breathless. But you should watch this piece (which is not only overly drawn out and breathless, but doesn’t emphasize the most important point).

Rachel describes how, on June 7, her tip line received a smoking gun document, appearing to be a Top Secret NSA document, laying out collusion between a Trump campaign official she doesn’t name (I’m going to wildarseguess, for a lot of reasons, it is Mike Flynn) and the Russians who hacked the election. She describes multiple reasons her team determined the document to be a fake: some misspellings, a declassification date that is wrong, some spacing weirdness, and that the campaign official is actually named, rather than masked as US Citizen 1.

But she also describes how the printer dots and a seeming crease on the document appear to replicate those that appear in the document Reality Winner is alleged to have provided to the Intercept.

Which is interesting, because as she shows about 14 minutes in (but doesn’t emphasize enough), the document sent to her tip line appears to have been created between the time Reality Winner went to jail and the time the Intercept published the document (unless I missed it, she doesn’t say precisely when they got the document, just that it was the same week as the Intercept published it Update: Corrected above). The creation date appears to be three and a half hours before the publication date at the Intercept. [Update: but not the creation date for the document, see below.]

Rachel surmises, correctly, I think, that the person sent the document both to discredit her own reporting (in much the same way reliance on fake documents discredited Dan Rather’s reporting of George Bush’s real Air National Guard scandal) as well as to discredit the notion that the Trump campaign, and the person named in particular, colluded with the Russians. This was an attempt to undercut potentially real news with deliberately faked news, fed through a selected outlet.

That would mean one of two things. Either the person who created the document faked the metadata (or created the document from Alaska or someplace west of there). Or the person received a copy of the very same document, including the crease, either from Reality Winner or from the Intercept or one of their sources, and then used it as a template to create a fake NSA document (or had visibility into the FBI’s investigation about this document). If it’s the latter, then the number of people who might be involved is rather small.

I’ve suggested there are reasons to wonder whether Winner was directed towards this document. I’d say there are more questions now about whether that’s the case.

Update: as PaulMD notes on Twitter, the document Rachel received actually has the very same creation time as the document the Intercept uploaded.

Update: Glenn Greenwald is pretty pissed about Rachel’s insinuations.

Update: Changed the title given the mistaken timing in the Rachel story.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Did NSA Start Using Section 702 to Collect from VPNs in 2014?

I’ve finally finished reading the set of 702 documents I Con the Record dumped a few weeks back. I did two posts on the dump and a related document Charlie Savage liberated. Both pertain, generally, to whether a 702 “selector” gets defined in a way that permits US person data to be sucked up as well. The first post reveals that, in 2010, the government tried to define a specific target under 702 (both AQAP and WikiLeaks might make sense given the timing) as including US persons. John Bates asked for legal justification for that, and the government withdrew its request.

The second reveals that, in 2011, as Bates was working through the mess of upstream surveillance, he asked whether the definition of “active user,” as it applies for a multiple communication transaction, referred to the individual user. The question is important because if a facility is defined to be used by a group — say, Al Qaeda or Wikileaks — it’s possible a user of that facility might be an unknown US person user, the communications of which would only be segregated under the new minimization procedures if the individual user were reviewed (not that it mattered in the end; NSA doesn’t appear to have implemented the segregation regime in meaningful fashion). Bates never got a public answer to that question, which is one of a number of reasons why Rosemary Collyer’s April 26 702 opinion may not solve the problem of upstream collection, especially not with back door searches permitted.

As it happens, some of the most important documents released in the dump may pertain to a closely related issue: whether the government can collect on selectors it knows may be used by US persons, only to weed out the US persons after the fact. In 2014, a provider challenged orders (individual “Directives” listing account identifiers NSA wanted to collect) that it said would amount to conducting surveillance “on the servers of a U.S.-based provider” in which “the communications of U.S. person will be collected as part of such surveillance.” The provider was prohibited from reading the opinions that set the precedent permitting this kind of collection. Unsurprisingly, the provider lost its challenge, so we should assume that some 702 collection collects US person communications, using post-tasking process rather than pre-targeting intelligence to protect American privacy.

The documents

The documents that lay out the failed challenge are:

2014, redacted date: ACLU Document 420: The government response to the provider’s filing supporting its demand that FISC mandate compliance.

2014, redacted date: EFF Document 13: The provider’s challenging the Directives asked for access to two opinions the government relied on in their argument. Rosemary Collyer refused to provide them, though they have since been released.

2014, redacted date: EFF Document 6 (ACLU 510): Unsurprisingly, Collyer also rejected the challenge to the individual Directives, finding that post-tasking analysis could adequately protect Americans

The two opinions the providers requested, but were refused, are:

September 4, 2008 opinion: This opinion, by Mary McLaughlin, was the first approval of FAA certifications after passage of the law. It lays out many of the initial standards that would be used with FAA (which changed slightly from PAA). As part of that, McLaughin adopted standards regarding what kinds of US person collection would be subject to the minimization procedures.

August 26, 2014 opinion: This opinion, by Thomas Hogan, approved the certificates under which the providers had received Directives (which means the challenge took place between August and the end of 2014). But the government also probably relied on this opinion for a change Hogan had just approved, permitting NSA to remain tasked on a selector even if US persons also used the selector.

The argument also relies on the October 3, 2011 John Bates FAA opinion and the August 22, 2008 FISCR opinion denying Yahoo’s challenge to Protect America Act. The latter was released in a second, less redacted form on September 11, 2014, which means the challenge likely post-dated that released.

The government’s response

The government’s response consists of a filing by Stuart Evans (who has become DOJ’s go-to 702 hawk) as well as a declaration submitted by someone in NSA that had already reviewed some of the taskings done under the 2014 certificates (which again suggests this challenge must date to September at the earliest). There appear to be four sections to Evans’ response. Of those sections, the only one left substantially unredacted — as well as the bulk of the SIGINT declaration — pertain to the Targeting Procedures. So while targeting aren’t the only thing the provider challenged (another appears to be certification of foreign intelligence value), it appears to be the primary thing.

Much of what is unredacted reviews the public details of NSA’s targeting procedure. Analysts have to use the totality of circumstances to figure out whether someone is a non US person located overseas likely to have foreign intelligence value, relying on things like other SIGINT, HUMINT, and (though the opinion redacts this) geolocation information and/or filters to weed out known US IPs. After a facility has been targeted, the analyst is required to do post-task analysis, both to make sure that the selector is the one intended, but also to make sure that no new information identifies the selector as being used by a US person, as well as making sure that the target hasn’t “roamed” into the US. Post-task analysis also ensures that the selector really is providing foreign intelligence information (though in practice, per PCLOB and other sources, this is not closely reviewed).

Of particular importance, Evans dismisses concerns about what happens when a selector gets incorrectly tasked as a foreigner. “That such a determination may later prove to be incorrect because of changes in circumstances or information of which the government was unaware does not render unreasonable either the initial targeting determination or the procedures used to reach it.”

Evans also dismisses the concern that minimization procedures don’t protect the providers’ customers (presumably because they provide four ways US person content may be retained with DIRNSA approval). Relying on the 2008 opinion that states in part…

The government argues that, by its terms, Section 1806(i) applies only to a communication that is unintentionally acquired,” not to a communication that is intentionally acquired under a mistaken belief about the location or non-U.S. person status of the target or the location of the parties to the communication. See Government’s filing of August 28, 2008. The Court finds this analysis of Section 1806(i) persuasive, and on this basis concludes that Section 1806(i) does not require the destruction of the types of communications that are addressed by the special retention provisions.”

Evans then quotes McClaughlin judging that minimization procedures “constitute a safeguard against improper use of information about U.S. persons that is inadvertently or incidentally acquired.” In other words, he cites an opinion that permits the government to treat stuff that is initially targeted, even if it is later discovered to be an American’s communication, differently than it does other US person information as proof the minimization procedures are adequate.

The missing 2014 opinion references

As noted above, the provider challenging these Directives asked for both the 2008 opinion (cited liberally throughout the unredacted discussion in the government’s reply) and the 2014 one, which barely appears at all beyond the initial citation.  Given that Collyer reviewed substantial language from both opinions in denying the provider’s request to obtain them, the discussion must go beyond simply noting that the 2014 opinion governs the Directives in question. There must be something in the 2014 opinion, probably the targeting procedures, that gets cited in the vast swaths of redactions.

That’s especially true given that on the first page of Evans’ response claims the Directives address “a critical, ongoing foreign intelligence gap.” So it makes sense that the government would get some new practice approved, then serve Directives ostensibly authorized by the new certificate, only to have a provider challenge a new type of request and/or a new kind of provider challenge their first Directives.

One thing stands out in the 2014 opinion that might indicate the closing of a foreign intelligence gap.

Prior to 2014, the NSA could say an entity — say, Al Qaeda — used a facility, meaning they’d such up any people that used that facility (think how useful it would be to declare a chat room a facility, for example). But (again, prior to 2014) as soon as a US person started using that facility — the word use here is squishy as someone talking to the target would not count as “using” it, but as incidental collection — then NSA would have to detask.

The 2014 certifications for the first time changed that.

The first revision to the NSA Targeting Procedures concerns who will be regarded as a “target” of acquisition or a “user” of a tasked facility for purposes of those procedures. As a general rule, and without exception under the NSA targeting procedures now in effect, any user of a tasked facility is regarded as a person targeted for acquisition. This approach has sometimes resulted in NSA’ s becoming obligated to detask a selector when it learns that [redacted]

The relevant revision would permit continued acquisition for such a facility.

[snip]

For purposes of electronic surveillance conducted under 50 U.S.C. §§ 1804-1805, the “target” of the surveillance ‘”is the individual or entity … about whom or from whom information is sought.”‘ In re Sealed Case, 310 F.3d 717, 740 (FISA Ct. Rev. 2002) (quoting H.R. Rep. 95-1283, at 73 (1978)). As the FISC has previously observed, “[t]here is no reason to think that a different meaning should apply” under Section 702. September 4, 2008 Memorandum Opinion at 18 n.16. It is evident that the Section 702 collection on a particular facility does not seek information from or about [redacted].

In other words, for the first time in 2014, the FISC bought off on letting the NSA target “facilities” that were used by a target as well as possibly innocent Americans, based on the assumption that the NSA would weed out the Americans in the post-tasking process, and anyway, Hogan figured, the NSA was unlikely to read that US person data because that’s not what they were interested in anyway.

Mind you, in his opinion approving the practice, Hogan included a bunch of mostly redacted language pretending to narrow the application of this language.

This amended provision might be read literally to apply where [redacted]

But those circumstances fall outside the accepted rationale for this amendment. The provision should be understood to apply only where [redacted]

But Hogan appears to be policing this limiting language by relying on the “rationale” of the approval, not any legal distinction.

The description of this change to tasking also appears in a 3.5 page discussion as the first item in the tasking discussion in the government’s 2014 application, which Collyer would attach to her opinion.

Collyer’s opinion

Collyer’s opinion includes more of the provider’s arguments than the Reply did. It describes the Directives as involving “surveillance conducted on the servers of a U.S.-based provider” in which “the communications of U.S. person will be collected as part of such surveillance.” (29) It says [in Collyer’s words] that the provider “believes that the government will unreasonably intrude on the privacy interests of United States persons and persons in the United States [redacted] because the government will regularly acquire, store, and use their private communications and related information without a foreign intelligence or law enforcement justification.” (32-3) It notes that the provider argued there would be “a heightened risk of error” in tasking its customers. (12) The provider argued something about the targeting and minimization procedures “render[ed] the directives invalid as applied to its service.” (16) The provider also raised concerns that because the NSA “minimization procedures [] do not require the government to immediately delete such information[, they] do not adequately protect United States person.” (26)

All of which suggests the provider believed that significant US person data would be collected off their servers without any requirement the US person data get deleted right away. Ands something about this provider’s customers put them at heightened risk of such collection, beyond (for example) regular upstream surveillance, which was already public by the time of this challenge.

Collyer, too, says a few interesting things about the proposed surveillance. For example, she refers to a selector as an “electronic communications account” as distinct from an email — a rare public admission from the FISC that 702 targets things beyond just emails. And she treats these Directives as an “expansion of 702 acquisitions” to some new provider or technology. Finally, Collyer explains that “the 2014 Directives are identical, except for each directive referencing the particular certification under which the directive is issued.” This means that the provider received more than one Directive, and they fall under more than one certificate, which means that the collection is being used for more than one kind of use (counterterrorism, counterproliferation, and foreign government plus cyber). So the provider is used by some combination of terrorists, proliferators, spies, or hackers.

Ultimately, though, Collyer rejected the challenge, finding the targeting and minimization procedures to be adequate protection of the US person data collected via this new approach.

Now, it is not certain that all this relied on the new targeting procedure. Little in Collyer’s language reflects passing familiarity with that new provision. Indeed, at one point she described the risk to US persons to involve “the government may mistakenly task the wrong account,” which suggests a more individualized impact.

Except that after her almost five pages entirely redacted of discussion of the provider’s claim that the targeting procedures are insufficient, Collyer argues that such issues don’t arise that frequently, and even if they do, they’d be dealt with in post-targeting analysis.

The Court is not convinced that [redacted] under any of the above-described circumstances occurs frequently, or even on a regular basis. Assuming arguendo that such scenarios will nonetheless occur with regard to selectors tasked under the 2014 Directives, the targeting procedures address each of the scenarios by requiring NSA to conduct post-targeting analysis [redacted]

Similarly, Collyer dismissed the likelihood that Americans’ data would be tasked that often.

[O]ne would not expect a large number of communications acquired under such circumstances to involve United States person [citation to a redacted footnote omitted]. Moreover, a substantial proportion of the United States person communications acquired under such circumstances are likely to be of foreign intelligence value.

As she did in her recent shitty opinion, Collyer appears to have made these determinations without requiring NSA to provide real numbers on past frequency or likely future frequency.

However often such collection had happened in the past (which she didn’t ask the NSA to explain) or would happen as this new provider started responding to Directives, this language does sound like it might implicate the new case of a selector that might be used both by legitimate foreign intelligence targets and by innocent Americans.

Does the government use 702 collection to obtain VPN traffic?

As I noted, it seems likely, though not certain, that the new collection exploited the new permission to keep tasking a selector even if US persons were using it, in addition to the actual foreigners targeted. I’m still trying to puzzle this through, but I’m wondering if the provider was a VPN provider, being asked to hand over data as it passed through the VPN server. (I think the application approved in 2014 would implicate Tor traffic as well, but I can’t see how a Tor provider would challenge the Directives, unless it was Nick Merrill again; in any case, there’d be no discussion of an “account” with Tor in the way Collyer uses it).

What does this mean for upstream surveillance

In any case, whether my guesstimates about what this is are correct, the description of the 2014 change and the discussion about the challenge would seem to raise very important questions given Collyer’s recent decision to expand the searching of upstream collection. While the description of collection from a provider’s server is not upstream, it would seem to raise the same problems, the collection of a great deal of associated US person collection that could later be brought up in a search. There’s no hint in any of the public opinions that such problems were considered.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The [Publicly] Unanswered John Bates Question about How You Define an Active User of a Targeted Facility

In this post, I showed how sometime in fall 2010, the government tried to get the FISA Court to let it use Section 702 to spy on Americans. Specifically, it defined one of the terms used in its application (presumably its targeting certification) “to include US persons,” which Bates took to understand as a request to undertake the “intentional acquisition of communications of US persons reasonably believed to be located outside the United States.”

In addition to the big dump of 702 related documents released last week, Charlie Savage liberated some of the documents pertaining to upstream surveillance from 2011. One of the documents included a set of questions John Bates asked on November 7, in advance of approving the new minimization procedures. And one of the questions is one I asked — and for the same reason — in my post on Rosemary Collyer’s recent upstream opinion: how you define an “active user.”

The Court’s Memorandum defined “active user” to be “the individual using the electronic communications account/address/identifier to interact with his/her Internet service provider.” See Oct. 3, 2011 Memorandum Opinion at 35 n. 34 (emphasis added). However, the amended minimization procedures state that NSA will identify and segregate through technical means MCTs where “the active user of the transaction (i.e., the electronic communications account/address/identifier used to send or receive the Internet transaction to or from a service provider) is reasonably believed to be located in the United States; or the location of the active user is unknown.” See Section 3(b)(5)(a). Please confirm that NSA’s “technical means” for identification and segregation will focus on the location of the individual using the account.

Taken in the wake of the government’s 2010 effort to target a group that includes Americans, the importance of the answer is obvious. If, for example, the active user of a selector is the targeted group rather than a specific individual, then the Americans that are part of that targeted group would also have their communications collected and those communications wouldn’t get segregated as a result. For example, if the NSA were targeting the encryption keys that ISIS uses, and an American were also using that key to talk to other Americans, that communication would be collected but not segregated. So Bates, a year after backing the government down off its effort to use 702 to spy on Americans only to find that the government had been collecting on Americans for 4 years, seemed to be trying to make sure that the government didn’t achieve the same goal via different means.

Except, nowhere in the public record, did he explicitly force the government to integrate this focus on individual users into the minimization procedures. In his November 30, 2011 opinion approving the new MCT scheme, he cited of the requirement that MCTs including the communications of possible US persons get segregated, he added “the [user of]” to the language he cited from the minimization procedures.

Under the amended NSA minimization procedures, NSA must segregate and restrict access to certain portions of its upstream collection following acquisition.3 Section 3(b)(5)(a) requires NSA to

take reasonable steps post-acquisition to identify and segregate through technical means Internet transactions that cannot be reasonably identified as containing single, discrete communications where: the active user of the transaction (i.e., the [user of] the electronic communications account/address/identifier used to send or receive the Internet transaction to or from a service provider) is reasonably believed to be located in the United States; or the location of the active user is unknown.

But he didn’t specify that that user had to be an individual. In the same passage, he cited what are probably the responses to his November 7 questions, without citing the language used to respond to him.

Then, in restating the requirement to segregate such communications, Bates cited to his earlier opinion, but not the page he cited in his question invoking “individual” users.

Unlike the measures previously proposed by the government for MCTs, the new procedures require NSA, following acquisition, to identify and segregate the two categories of Internet transactions that are most likely to contain discrete wholly domestic communications and non-target communications to or from United States persons or persons located in the United States: (1) those as to which the “active user” is located inside the United States; and (2) those as to which the location of the active user is unknown. See Amended NSA Minimization Procedures at 4 (§ 3(b)(5)(a)); see also Oct. 3 Opinion at 37-41.

And neither the September 2012 opinion authorizing the next year’s certificates and clearing the government of ongoing violation of 1809(a)(2) doesn’t appear to mention active users.

I raised this issue with respect to Collyer’s opinion because, if the government can treat a group as a target and the group’s communication methods as a facility, then upstream surveillance will still collect entirely domestic communications that will newly be available via back door search (though in reality, NSA never fully implemented the scheme laid out in the 2011 opinion). Yet nowhere is this made clear.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

A Touch To Much Of DOJ Politicization: Rosenstein Above Brand

I have been somewhat beyond stunned at the Emm Ess Emm rich to yammer and bloviate about the necessity of Rod Rosenstein to “recuse” because he is “conflicted”.

It is a stupid load of nonsense. First off, the discussion appears to be lead by media voices that would no know actual criminal law if it hit them in their bloviating ass. But, hey, they have a voice, right? Sure. Thing is, it ought be for the informed and intellectual, not the idiot reactionary adverse.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

Garden of Fallen Leaders

On a recent trip to Moscow, we visited the Garden of the Fallen Leaders, in Muzeon Park near the New Tretyakov Gallery. The Park displays a number of statues of leaders of the former Soviet Union. Here’s an example.

For more pictures and details about the Park, see this travel post by my wife, Janet Eyler. Although most monuments to Soviet leaders have been removed, many destroyed, and others moved to Muzeon Park, there are still monuments to these leaders. There is a very large statue of Lenin in Uglich, one of the small towns we visited, and we saw several in St. Petersburg, and at least one of Stalin.

All around the US today, something similar is happening with monuments to those who fought for and who led the Confederacy. The recent removal of statues in New Orleans caused a lot of dissent and more discussion. Here’s an example from the New York Times. The Garden of the Fallen Leaders provides a model for what to do with all those unwanted memorials, unwanted, that is, by a substantial majority.

Each state should designate a historical park area, and as it removes its monuments, they can be re-mounted in the park, with whatever ceremony and explanation the state thinks proper. There should be only one rule. This is a recent work found in the Garden:

I think it’s meaning is clear. Something similar must be in each such park, a clear demonstration of the individual agonies suffered by slaves. It will serve to remind people that, as Lincoln put it in his Second Inaugural Address:

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war.

Maybe we should require the posting of the entire Second Inaugural Address to remind us that we are all Americans and bound together by history and belief.

Notre Dame undergrad (math); JD, Indiana University at Bloomington; 1st Lieutenant, US Army.; private practice in corporate and securities law; Assistant AG in Tennessee for consumer protection and securities; Blue Sky Securities Commissioner, Tennessee; private practice, bankruptcy and corporate law.

I have had a lifelong interest in economics. For most of my career, that interest was practical, focused on the problems in front of me. Lately I have been more interested in economics as a theory, especially its impact on the lives of people like those I met in my bankruptcy practice, and on the politics of money in the US. I also enjoy reading philosophers, starting in college and steadily expanding my reading ever since. I wrote at FireDogLake for a number of years.

Generally, I think the problem facing the US is the dominance of neoliberal discourse. I think it clouds the vision, and limits the kinds of problems that can be identified and solved. For example, the existence and danger of climate change can easily be identified in a scientific discussion. However, the problem does not fit the neoliberal discourse because science insists that the pursuit of individual and corporate self-interest will lead to devastation. In neoliberal discourse, the pursuit of self-interest always leads to Eden.

The neoliberal project has two prongs. One is the police function of crushing dissent and alternative views. The police function is provided by government agencies and private and institutional actors. The counterpart is the economic system , which is operated by government and by private and institutional actors. Some of these actors operate in both spheres. I focus on the second prong.

Why Did Shadow Brokers Switch Crypto Currencies to Not Make Money With?

The other day, Shadow Brokers announced its new Warez of the month club: Send 100 Zcash, over the next 30 days, and they’ll send back … goodies that have yet to be described.

Zcash is, like Bitcoin, a cryptocurrency, but with a whole lot of smart thinking about how to make it secret.

Now, if the idea were to make money, the switch to Zcash would make sense. Days before Shadow Brokers announced this new gig, someone started cashing out the measly $20K in BTC it had made thus far, and people around the world watched as the money was dispersed through a bunch of other accounts. If the theory is to make money and cash it out, Zcash is a better option. As Matthew Green, who had a hand in setting up Zcash described it, to me.

[U]nlike Bitcoin, it supports untraceable transactions. In these transactions I can send you money such that only you and I (and nobody else) can see the amount or nature of a payment. These are called “shielded transactions”, and they use zero knowledge proofs. Presumably it is this feature that ShadowBrokers are interested in — assuming they are actually interested in any part of making money, and the whole thing isn’t a sham.

It’s the last bit, though, that raises questions for me.

Shadow Brokers set up an auction that was virtually designed to fail. That provided SB the opportunity to keep bitching about it publicly, then ultimately to release more files. It then set up a crowdfunding scheme, which again failed. Which led it to release files that ultimately led to a global ransomware being let loose.

So why switch currencies? SB can fail to make money just as easily with BTC as it can with ZEC.

One possibility is that SB wants to taint the currency. In its post, SB claims ZEC has ties to the federal government.

Zcash is having connections to USG (DARPA, DOD, John Hopkins) and Israel. Why USG is “sponsoring” privacy version of bitcoin? Who the fuck is knowing? In defense, TOR is originally being by similar parties. TheShadowBrokers not fully trusting TOR either. Maybe USG is needing to be sending money outside from banking systems? If USG is hacking and watching banking systems (SWIFT) then adversaries is also hacking and watching banking systems. Maybe is for sending money to deep cover foreign assets? Maybe is being trojan horse with cryptographic flaw or weakness only NSA can exploit? Maybe is not being for money? Maybe is being for Zk-SNARKs research? Maybe fuck it, lets be finding out.

I asked Green about the DARPA, DOD, John Hopkins [sic] slam, and he pointed to the research paper that forms the basis for the currency. In the acknowledgments, the authors thank their underlying sources of funding.

This work was supported by: Amazon.com through an AWS in Education research grant; the Broadcom Foundation and Tel Aviv University Authentication Initiative; the Center for Science of Information (CSoI), an NSF Science and Technology Center, under grant agreement CCF-0939370; the Check Point Institute for Information Security; the U.S. Defense Advanced Research Projects Agency (DARPA) and the Air Force Research Laboratory (AFRL) under contract FA8750-11-2-0211; the European Community’s Seventh Framework Programme (FP7/2007-2013) under grant agreement number 240258; the Israeli Centers of Research Excellence I-CORE program (center 4/11); the Israeli Ministry of Science and Technology; the Office of Naval Research under contract N00014-11-1-0470; the Simons Foundation, with a Simons Award for Graduate Students in Theoretical Computer Science; and the Skolkovo Foundation with agreement dated 10/26/2011. The views expressed are those of the authors and do not reflect the official policy or position of the Department of Defense or the U.S. Government.

Green describes (rightly, says a girl who probably took Soros funding in several ways while an academic) this as just good academic form.

These aren’t organizations that specifically funded *this project*, they’re just organizations that had provided funding to support the various scientists involved. It’s good form to list them all. And obviously Johns Hopkins is my institution, although I don’t do spook stuff.

He also suggested that the dig at ZEC’s funding is just part of the entertainment value that SB uses to get attention.

SB seems to be very astute in the way they cultivate interest among Information Security folks on Twitter. This could be because they’re legitimately also hackers (probably true at least in part). But it also serves their larger information needs because they have a complex message to get out there — and reporters are good at ignoring the message if there are no good interpreters to process it. Entertaining and relating to the infosec community on Twitter means they have a ready-made pool of infosec experts willing to talk to reporters about whatever new thing they’ve done. More tech companies should learn from this strategy, which is sort of clever (in an evil way)!

Along the above lines, adopting a new (and technically very advanced) private cryptocurrency keeps infosec people entertained. It gets RTs and makes people ask questions. Throwing in all the nonsense about backdoors and the DoD is probably entertainment value. Just like their “Russlish” grammar is, and the whole drama about auctions and subscription services.

I’m not so sure.

I can think of at least two other possibilities.

First, currencies have been bouncing around in response to some of this stuff. So it’s possible this is an attempt to flood the market.

Certainly, too, the invocation of DARPA seems about increasing distrust, just as SB did in its efforts to increase the distrust between Microsoft and the government.

More interestingly, though, perhaps this is SB’s way of adding to the risk to NSA of any releases. While some people believe NSA has already disclosed all the vulnerabilities it believes SB to have (indeed, SB’s last post suggested as much as well), if there’s any doubt about that, by using a more secretive currency, it will add the risk to NSA of not knowing who has anything SB sells.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.