China Google Attack and the Terrorist Surveillance Program

thumb.phpAs you may know, there was quite a lot of buzz this week about Google potentially leaving China over the hacking of Google’s system. From MSNBC/Reuters:

Google, the world’s top search engine, said on Tuesday it might shut down its Chinese site,, after an attack on its infrastructure it believed was primarily aimed at accessing the Google mail accounts of Chinese human rights activists.

Unlike ordinary viruses that are released into cyberspace and quickly spread from computer to computer, the type of attack launched against Google and at least 20 other companies were likely handcrafted uniquely for each targeted organization.

It appears to be a problem that is quite deep according to an in depth article in MacWorld:

Google, by implying that Beijing had sponsored the attack, has placed itself in the center of an international controversy, exposing what appears to be a state-sponsored corporate espionage campaign that compromised more than 30 technology, financial and media companies, most of them global Fortune 500 enterprises.

The U.S. government is taking the attack seriously. Late Tuesday, U.S. Secretary of State Hillary Clinton released a statement asking the Chinese government to explain itself, saying that Google’s allegations “raise very serious concerns and questions.”

But the Macworld article goes on to explain why the United States government may be taking this much more seriously than they let on:

“First, this attack was not just on Google. As part of our investigation we have discovered that at least twenty other large companies from a wide range of businesses – including the Internet, finance, technology, media and chemical sectors – have been similarly targeted,” wrote Google Chief Legal Officer David Drummond in a Tuesday blog posting.

“Second, we have evidence to suggest that a primary goal of the attackers was accessing the Gmail accounts of Chinese human rights activists.”

Drummond said that the hackers never got into Gmail accounts via the Google hack, but they did manage to get some “account information (such as the date the account was created) and subject line.”

That’s because they apparently were able to access a system used to help Google comply with search warrants by providing data on Google users, said a source familiar with the situation, who spoke on condition of anonymity because he was not authorized to speak with the press.

“Right before Christmas, it was, ‘Holy s***, this malware is accessing the internal intercept [systems],'” he said.

Uh, “account information”, “subject line”, “search warrants” and “intercept systems”. That ring a bell? This appears to indicate that the state-sponsored Chinese hackers have hacked into the portion of the Google infrastructure that deals with government warrants, intercepts, national security letters and other modalities pertinent to the Terrorist Surveillance Program. That, if true, could be very problematic, one would think.

Now, this is based upon information and belief, but it is my understanding that Google doesn’t store any gmail data in China, which means that this search warrant/intercept machine was located in the US, likely in Mountain View California

That is, if Google’s Mountain View HQ search warrant search interface/computer was hacked, we are probably talking about the same computer used by the Google Legal Department to perform queries in response to DOJ warrants, subpoenas, national security letters, and FISA orders.

Yeah, if that is the case it could be a problem.

Judge White Thumps The DOJ On EFF FOIA Case

Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!

This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.

The EFF describes what transpired next in their press release:

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.

Judge White’s five page Order has some really sweet passages:

There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.

White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.

Then White sets the table for dissection of the DOJ specimen: Read more

Vaughn Walker Dismisses Challenge to Retroactive Immunity

Wired reports that Vaughn Walker has dismissed EFF’s challenge to retroactive immunity. (h/t scribe) Plus, Wired will probably be reporting on how Anthony Coppolino recovered from his long week of dancing in the al-Haramain suit. So by the end of the day, we should have a better idea of whether we’ll ever hold the government responsible for violating FISA.

I’ll be reading Walker’s order as I drink my pre-flight beer (I’m going home!! We’ll see whether MI has survived a bruising week.) I’ll update as I’ve got more to say.

Update: We’re discussing in threads that Walker seems to set this decision against the Jewel case which sues Bush personally. I’ve been arguing that we might get a positive ruling from Walker in one or the other case, but not both, based on the legislative record. This is an example of what I mean:

The SSCI Report included among the committee’s recommendations for legislation amending FISA that “narrowly circumscribed civil immunity should be afforded to companies that may have participated in the President’s program based on written requests or directives that asserted the program was determined to be lawful.”

Jello Jay also maintained that this left open suits against the government. Which means I think Walker sees them (and the legislative record) as the way to move forward on one.

Update: Walker also dismissed the state suits. Here’s the order. And the conclusion.

The United States’ motion for summary judgment in United States v Clayton, C 07-1242; United States v Reishus, C 07-1323; United States v Farber, C 07-1324; United States v Palermino, et al, C 07-1326; United States v Volz, et al, C 07-1396 is GRANTED. The state proceedings at issue in each of those cases are prohibited by section 803 (50 USC § 1885b) and are hereby enjoined pursuant to this court’s authority under that statute. Clayton et al v AT&T Communications of the Southwest, Inc, et al, C 07-1187 is DISMISSED with prejudice.

The United States is directed to submit a proposed form of judgment in accordance with this order.

Update: To add to what JimWhite said in comments, this ruling is pretty much a warning shot across George W. Bush’s bow.

The United States and the telecommunications company defendants counter that while suits against telecommunications companies are foreclosed, neither the statute nor the government’s actions prevent plaintiffs from seeking redress for their constitutional claims against the government actors and entities. Doc Read more

What Did BushCo Hide By Not Revealing Surveillance Activities?

Via Threat Level, I see the EPIC has written a letter to Pat Leahy complaining about the Bush Administration’s failure to comply with requirements that it release details on the number of "pen register" and "trap and trace" orders.

As a reminder, "pen registers" are when the government collects the metadata from your telecom contacts–the phone numbers you call and the length of calls, as well as whom you email–to figure out who you’re talking to. And "trap and trace" orders are when the government figures out who is calling (or emailing) you. In addition, the EPIC letter explains that law enforcement has recently been using "hybrid" orders to pinpoint cell phone (and therefore, your) location.

Law enforcement agents use "hybrid" orders for cellular location information. Hybrid orders seek to determine a suspect’s past and future location based on non-content data transmitted by the suspect’s cellular phone. The government has engaged in this type of surveillance by invoking a combination of authorities under the Pen Register Act and the Stored Communications Act.

For pen registers and trap and trace, the government doesn’t have to get a warrant (the hybrid stuff is still up in the air). Instead, since 1986, DOJ has been required to report how much of this stuff is going on.

But, as EPIC explains, DOJ didn’t release the report publicly for the years 1999 through 2003, and only gave incomplete information to Congress at all in November 2004. And DOJ  appears not to have released reports at all since 2004.

You probably see where I’m going with this. 

We know, of course, that Bush’s illegal wiretap program involved some kind of data mining aspect.  It appears that they were doing pattern analysis based on things like length and recipient of call–precisely the kind of thing you get from pen registers–to determine whom to further wiretap.

Yet we have only incomplete information from the first three years of Bush’s illegal wiretap program. EPIC explains that DOJ did not include the suspected offenses that law enforcement officers were trying to investigatre, nor did it list which officers were doing the investigations.

And then we have nothing–no data–for the years after Jim Comey and Jack Goldsmith supposedly put the illegal wiretap program back on legal footing (and remember–the data mining aspect of the program was reportedly one of the things that Comey et al went crazy over). 

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Lichtblau and Risen Report Illegal Wiretapping of Americans … Again

It’s pretty pathetic that, three years after they first broke the story of the Bush’s illegal wiretap program, Eric Lichtblau and James Risen are still reporting on illegal warrantless wiretapping of Americans.

Their story has two main revelations. First, in preparation for Holder’s first semi-annual certification of the FISA program to the FISC, NSA realized it was not complying with the law.

In recent weeks, the eavesdropping agency notified members of the congressional intelligence committees that it has encountered operational and legal problems in complying with the new wiretapping law, according to congressional officials .

Officials would not discuss details of the over-collection problem because it involves classified intelligence-gathering techniques. But the issue appears focused in part on technical problems in the N.S.A.’s inability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mails.

One official said that led the agency to inadvertently “target” groups of Americans and collect their domestic communications without proper court authority.

Sort of funny how this illegal collection wasn’t discovered six months ago, while Bush was still in charge, huh?

From the sounds of things, though, this was not just a technical violation–it flouted the few protections included in the FISA Amendment Act for civil liberties (which almost certainly means minimization, because there aren’t many other civil liberties protections in FAA). 

Notified of the problems by the N.S.A., officials with both the House and Senate intelligence committees said they had concerns that the N.S.A. had ignored civil liberties safeguards built into last year’s wiretapping law.

In addition to these ongoing violations of Americans’ privacy, the ongoing Inspector General investigation has discovered more troubling incidents when the warrantless wiretapping program was deliberately used under Bush to target–among other people–a Congressman traveling overseas.

As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as allegations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those allegations are said to involve the question of whether the N.S.A. targeted Americans in eavesdropping operations based on insufficient evidence tying them to terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, according to a U.S. intelligence official with direct knowledge of the matter.

Read more

Again on the al-Haramain Stuff

The WaPo has a front page article blaring about Obama’s horrible record on state secrets.

I agree with the article that Obama’s record on state secrets has been disappointing. But I’m really tired of reporting that misses key facts about the case.  Here’s the theme of the WaPo article.

The first signs [that Obama is "forsaking" campaign rhetoric about openness] have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama’s Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but also escalated the standoff — proposing that government lawyers might take classified documents from the court’s custody to keep the charity’s representatives from reviewing them. 

The article says that there is a "standoff" that Obama’s DOJ has "escalated" that pertains to state secrets.


As a reminder, the question that Vaughn Walker answered on January 5 was whether or not FISA pre-empted state secrets. Ultimately, Walker said it did, and he ruled that he would review the documents submitted in the case to determine whether al-Haramain was an aggrieved party that could sue the government for violating FISA. The Bush Administration appealed that decision–basically arguing that state secrets trumps FISA–and the Obama Administration supported that appeal.

They lost that appeal.

Now, if it were true that Obama were "escalating" a "standoff" about state secrets, then he would have appealed the 9th Circuit decision–I’m not a lawyer, but unless I’m wildly mistaken, that’s how one "escalates" a legal matter. But Obama did not appeal that decision, meaning that Walker’s decision that FISA trumps state secrets stands. With the 9th Circuit decision, this case moved onto the next stage of the proceedings, where Walker would look at the classified filings and made a decision about al-Haramain’s standing. And, as far as the unclassified record in the case shows, that’s where the case stands now (it’s possible Walker has ruled and is allowing the Administration to do a classification review of his ruling, but my gut feel is that Walker hasn’t decided yet).

And there’s another hint that Obama is not "escalating" this "standoff"–one that we here at emptywheel appear to be the only people in creation that are remotely interested in. First, Obama admitted that some of the information submitted earlier in this suit was "inaccurate." And Obama’s DOJ submitted four new filings that corrected this inaccuracy.

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

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Did Bush Lie to Vaughn Walker?

Yesterday, after the 9th Circuit refused the Obama/Dead-Ender appeal in al-Haramain case, the Obama Administration filed two documents to try to minimize the damage of Judge Walker’s presumably imminent review of whether or not George Bush broke the law when it wire-tapped al-Haramain’s lawyers. I discussed this filing, which warned Walker that they intend to fight his efforts to make information available so al-Haramain’s lawyers can litigate the suit, here

Sometime after the Obama Administration posted that filing yesterday, they posted this one, which mostly fulfills an order Judge Walker gave them on January 5 to determine whether any of the materials entered in the case thus far could be declassified.

The Government hereby reports, as set forth in the attached public declarations, that the classified information at issue in this case remains classified and is not subject to declassification under Executive Order (“E.O.”) 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), as amended by E. O. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003).

Not to be picky, but they missed the 45-day deadline Walker gave them by 8 days.

That news from the filing–that they maintain this information is still classified–is not surprising.

But this is:

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

Given that Obama has not yet submitted classified information in this case, this almost certainly means that the Bush Administration submitted "inaccurate" information in one of its past representations to Walker.

Or, to put it another way, now that Walker is going to look at the wiretap log from al-Haramain and assess whether or not the wiretapping was legal, the Obama Administration is changing the record in some meaningful way.

Obviously, we don’t get to know what Bush either lied or hid, but here are three possibilities:

  1. Bush withheld something (to use WO’s speculation, perhaps something like proof that they not only wiretapped al-Haramain’s lawyers’ conversations with al-Haramain, but that they also wiretapped the lawyers’ conversations with others?) and it is now being advanced as an "inaccuracy"
  2. Obama is introducing something new (perhaps some evidence that might go further to support an otherwise nonexistent probable cause determination) in an effort to limit the damage of the impending Walker review Read more

Obama’s Two “Ifs” on FISA: Heads I Win, Tails You Lose

Briefs on FISA are coming out in Northern California so fast and furious it’s hard to keep them straight. Just as a reminder there are two main cases:

  • al-Haramain, in which the Bush (and now Obama) Administration has invoked State Secrets to prevent lawyers for the defunct charity al-Haramain from using clear evidence that Bush wiretapped them illegally to prove that Bush wiretapped them illegally
  • Retroactive immunity (Jewel/EFF), in which the Electronic Frontier Foundation is challenging the retroactive immunity statute Congress passed last year on Constitutional grounds

The Obama stance on these two cases is worth looking at in conjunction because the Obama position toward congressionally-passed law is perfectly crafted to gut civil liberties (and Article III authority), all based on Obama’s interpretation of "if."

Astoundingly, both al-Haramain and retroactive immunity are almost certainly headed for the Appeals Court to rule on the meaning of two "if’s" (and one "shall") appearing in FISA-related law.

"If" the Attorney General Wants the President to Avoid Penalty for Illegal Wiretapping

Here’s the language Judge Walker just reviewed in FISA 1806(f) in the al-Haramain case:

Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance. [my emphasis]

The government (under both Bush and Obama) has argued that the "shall" in 1806(f)–requiring the District Court Judge to review in camera and ex parte the materials relating to the surveillance to see if was legal–only kicks in after the "if" tied to the Attorney General in it. That is, the District Court Judge only reviews the underlying materials if the Attorney General files an affidavit saying that an adversary hearing would harm national security.

Judge Walker thinks that’s bullshit. Read more

A Whole Heap of Bad Faith in al-Haramain

The Obama Administration has filed its latest brief in the al-Haramain case. In its effort to shield the Bush Administration from liability for their crimes, it engages in a whole host of bad faith so as to prevent Judge Walker from actually making a determination that the al-Haramain lawyers were illegally spied on.

 As a reminder, Judge Walker’s January 5 order did three things. First, it answered the question the Appeals Court had remanded the case back to Walker to answer: does FISA, which imposes criminal penalties for illegal wiretapping, pre-empt state secrets claims? Walker answered that question in the affirmative: he reasoned that, if Congress passed a law imposing penalties on the executive for breaking the law, the executive couldn’t very well restrict access to the evidence that provides proof that the executive broke the law. Congress wouldn’t have provided for penalties if it didn’t intend for it to be possible to litigate those penalties.

Next, Walker said he would review the wiretap log that proves the government spied on al-Haramain illegally to see whether it proves the government spied on al-Haramain illegally. Very important: he said he would conduct this review in secret!!

Finally, Walker laid the groundwork for talking about how the case would proceed going forward, if, on review of the document proving the government spied on the al-Haramain lawyers illegally, he determined that the government spied on the al-Haramain lawyers illegally (frankly, I think this was a mistake on Walker’s part, but nevermind). Here’s the most important passage in which he does this:

To be more specific, the court will review the Sealed Document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed —— that is, whether the Sealed Document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA. As the court understands its obligation with regard to classified materials, only by placing and maintaining some or all of its future orders in this case under seal may the court avoid indirectly disclosing some aspect of the Sealed Document’s contents. Unless counsel for plaintiffs are granted access to the court’s rulings and, possibly, to at least some of defendants’ classified filings, however, the entire remaining course of this litigation will be ex parte. This outcome would deprive plaintiffs of due process to an extent inconsistent with Congress’s purpose in enacting FISA’s sections 1806(f) and 1810. Read more

That’s Why They Call It “Domestic” Surveillance

One of my favorite parts in the EFF brief arguing that the retroactive immunity passed by Congress last year is unconstitutional is their response to the telecom brief’s claim that the President has inherent authority over foreign affairs, and so doesn’t need specific details regarding which telecoms should get immunity for having broken the law on President Bush’s orders.

EFF points out that, if this were just about foreign affairs, we wouldn’t be here.

Nor can the standardless delegation of section 802 be justified, as the carriers suggest (Carriers’ Br. at 3-6), by reference to cases involving the President’s exercise of inherent constitutional power over foreign relations with other nations or his inherent power to regulate and control the military forces. First, despite the efforts of the government and the carriers to blur the difference, the President’s inherent powers over foreign relations and the military do not extend to the warrantless dragnet electronic surveillance and interception within the United States of the domestic communications of millions of American citizens who have no connection to any foreign power. The President has no inherent constitutional authority to conduct such activities, as this Court has held, Hepting v. AT&T Corp., 439 F. Supp.2d 974, 1006 (N.D. Cal. 2006); see also In re Nat’l Security Agency Telecom. Records Litig., 564 F. Supp.2d 1109, 1121 (N.D. Cal. 2008), nor to order the courts to terminate litigation challenging such activities.

This is about domestic surveillance, not foreign intelligence, dummies.

Now, we know that the Bush Administration did, at one point, claim its inherent authority tied to foreign affairs extends right into the apartment buildings of average Americans.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

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