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The James Rosen Affidavit Was the 20th Document in the Docket

Screen shot 2013-05-20 at 3.45.46 PMThe is sort of a weedy point.

But if you look at the docket associated with DOJ’s attempt to get James Rosen’s communications, you’ll see it is listed as document 20 in the docket.

Yet no other documents — aside from the order approving the warrant — appear, unsealed, in the docket.

We can’t be sure, but I wonder whether the 19 earlier, still-sealed documents in the docket constitute unsuccessful efforts to get this material. For example, I wonder whether Google initially balked at supplying the material based on the Privacy Protection Act, so DOJ invented the language claiming Rosen was a co-conspirator in Espionage which (at pages 4-5) exempted the materials in question from privacy protection.

In addition, the return associated with the affidavit shows how Google would narrow the search to just those communications between Rosen and Stephen Jin-Yoo Kim. Which suggests some of those 19 earlier documents may have been Google’s successful attempt to limit an earlier much broader request including all of Rosen’s communications.

Particularly given Kim’s quoted blame for being snookered on Rosen, I wonder whether DOJ initially really was going to claim he was responsible for the leak?

In any case, if I were Fox News, I would move to unseal the docket.

Future Forecast: Roundup of Scattered Probabilities

[The Crystal Ball by John William Waterhouse, c. 1902]

While thinking about forecasting the future, I collected a few short-term predictions for the year ahead worth kicking around a bit. After gazing deeply into my crystal ball, I added a few predictions of my own.

The National Weather Service’s Climate Prediction Center at NOAA forecasts below-average precipitation in the Pacific Northwest along with higher than average temperatures in the Southwest through Summer 2013. Looks like rainfall across areas stricken by drought in 2012 might be normal, but this will not overcome the soil moisture deficit.

My prediction: Beef, pork, and milk prices will remain high or increase — and that’s before any weirdness in pricing due to changes in federal regulations after the so-called “fiscal cliff.” And the U.S. government, both White House and Congress, will continue to do even less than the public expects when it comes to climate change.

The European Commission predicted the UK will lead economic recovery in the EU with a meager 0.9% growth rate anticipated in 2013. The southern portion of the EU is expected to continue to struggle while the rest of the EU stagnates.

My prediction: More mumbling about breaking up the EU, with just enough growth to keep at bay any action to that effect. Silvio Berlusconi will continue to provide both embarrassment and comedic relief to Italy and the EU. (What are they putting in that old freak’s pasta? Or are they doping his hair color?)

In September, the Federal Reserve Bank forecast slowish growth in the U.S. through 2013. Did they take into account the lame duck status of an already lethargic and incompetent Congress in this prediction? Did the Fed Reserve base this forecast on a Romney or an Obama win? This forecast seems oddly optimistic before November’s election.

My prediction: All bets are off now, since the over-long backbiting and quibbling over the so-called fiscal cliff has eroded public sentiment. Given the likelihood of increased food prices due to the 2012 global drought, the public will feel more pain in their wallet no matter the outcome of fiscal cliff negotiations, negatively affecting consumer sentiment. The only saving grace has been stable to lower gasoline prices due to lower heating oil demand–the only positive outcome of a rather warm winter to date.

An analyst forecast Apple sales of iPads will equate nearly 60 percent of the total tablet market in 2013. As an owner of AAPL stock, I rather liked this. Unfortunately, that prediction was made in October, before the release of the iPad Mini. The stock market had something entirely different to say about the forecast–more like a bitchslap to the tune of nearly $200 decline per share between October and year-end. *Ouch!* Not all of that was based on the market’s rejection of the forecast on iPad Mini sales, though; much of that fall was related to the gross failure of Apple’s map application launched alongside the iPhone 5.

My prediction: I will continue to bemoan the failure to sell some AAPL stock in September 2012, while many of you will continue to buy Apple products. I thank you buyers in advance for trying so hard to boost my spirits and bolster my kids’ college fund in the coming year. Oh, and Google Maps will continue to eat at market share; it’s going to be a while before Apple recovers from its epic map failures. Conveniently, there’s GOOG stock in the kids’ college fund, too.

What about you? Are any of these predictions worth the pixels with which they’re presented?  What do you predict for the year ahead? Do tell.

Political Giving and Willingness to Cave to Law Enforcement

When Jason Leopold linked to a WSJ report titled, “Obama breaks bread with Silicon Valley execs,” I quipped, “otherwise known as, Obama breaks bread w/our partners in domestic surveillance.” After all, some of the companies represented–Google, Facebook, Yahoo–are among those that have been willingly sharing customer data with federal law enforcement officials.

Which is why I found this Sunlight report listing lobbying and political donations of the companies so interesting.

Lobbying (2010) Contributions to Obama (2008)
Apple $1,610,000.00 $92,141.00
Google $5,160,000.00 $803,436.00
Facebook $351,390.00 $34,850.00
Yahoo $2,230,000.00 $164,051.00
Cisco Systems $2,010,000.00 $187,472.00
Twitter $0.00 $750.00
Oracle $4,850,000.00 $243,194.00
NetFlix $130,000.00 $19,485.00
Stanford University $370,000.00 $448,720.00
Genentech $4,922,368.00 $97,761.00
Westly Group $0.00 $0.00

Just one of the companies represented at the meeting, after all, has recently challenged the government’s order in its pursuit of WikiLeaks to turn over years of data on its users: Twitter. And the difference between Twitter’s giving and the others’ is stark.

Does Twitter have the independence to challenge the government WikiLeaks order because it hasn’t asked or owed anyone anything, politically?

Mind you, there’s probably an interim relationship in play here, as well. Those companies that invest a lot in politics also have issues–often regulatory, but sometimes even their own legal exposure–that they believe warrant big political investments. Which in turn gives the government some issue with which to bargain on.

Maybe this is all a coinkydink. And maybe having broken bread with Obama, Twitter will cave on further government orders.

But I do wonder whether there’s a correlation between those telecommunication companies that try to buy political favors and those that offer federal law enforcement favors in return.

Obama’s Kabuki Jobs Council, Brought to You By “Nut on China” Jeff Immelt

When Google announced that Eric Schmidt was stepping down yesterday, I joked that Schmidt must be leaving to lead Obama’s campaign economy — the one he’ll use to get re-elected with. After all, Schmidt is one of the Obama’s closest CEO buddies, and he’s leaving at the same time as Jim Messina and Patrick Gaspard are leaving to take over the campaign infrastructure. The decision to close the Office of Political Affairs seems to indicate a decision to stop governing and start spinning wildly to ensure re-election. There’s no area where Obama will need to spin more wildly than with the economy, right?

Turns out, I wasn’t far off.

What else can you conclude from the news that Obama is replacing his President’s Economic Recovery Advisory Board, led by Paul Volcker, with a President’s Council on Jobs and Competitiveness, led by General Electric CEO Jeff “Nut on China” Immelt?

President Obama has asked me to chair his new President’s Council on Jobs and Competitiveness. I have served for the past two years on the President’s Economic Recovery Advisory Board, and I look forward to leading the next phase of this effort as we transition from recovery to long-term growth. The president and I are committed to a candid and full dialogue among business, labor and government to help ensure that the United States has the most competitive and innovative economy in the world.

Aside from the tired DC trick of renaming the Council with the latest buzzwords — jobs and competitiveness — there’s all the things GE has done under Immelt that make the U.S. less competitive. I noted the other day that GE had signed a big deal with China that will involve us sharing our jet technology with China, which will ultimately help China compete with both GE and — China has said explicitly — Boeing. Then there’s the fact that, even as Immelt has been calling for manufacturing in the U.S., his company has been shutting U.S. plants to move the work to China.

While Immelt was calling for manufacturing to stay in the U.S., his company was at the same time shipping manufacturing jobs overseas by canceling an order with an American-based wind turbine maker, ATI Casting Service in LaPorte, Ind., so that GE could instead buy the parts from a factory in China.

Recently, ATI made $30 million worth of investments to buy, convert, and modernize a shuttered factory in economically ravaged Michigan so the company could provide more parts to GE as the green economy expands with federal stimulus funding. But a Chinese firm underbid ATI, and the factory faced having to lay off 302 union workers and shutter the plant.

In an aggressive bid to keep the factory open, ATI offered to match the price of the Chinese producers. GE once again said they would prefer to buy from China. The ATI plant is now closed, the jobs gone.

Then there is Immelt’s call for Free — not Fair — Trade in his op-ed announcing the Kabuki Council.

Free trade: America cannot expand its manufacturing base without greatly increasing the volume of goods it sells overseas. That is why I applaud the free-trade agreement recently concluded between the United States and South Korea, which will eliminate barriers to U.S. exports and support export-oriented jobs. We should seek to conclude trade and investment agreements with other fast-growing markets and modernize our systems for export finance and trade control. Those who advocate increasing domestic manufacturing jobs by erecting trade barriers have it exactly wrong.

And then, finally, there’s the little detail that GE managed, alone of “manufacturing companies” in the U.S., to turn itself into a Too Big To Fail overleveraged finance company in need of a $16 billion bailout from the government (as has happened with all the TBTF finance companies, bailouts have made GE’s financing business profitable again).

In short, no matter how many times Immelt gets up on a podium or in an op-ed and feigns an interest in American jobs, his actions make him the poster child for everything wrong with the U.S. economy right now.

And that’s what Obama is rolling out, as he moves into campaign mode, to convince Americans he’s going to do a damn thing about jobs.

Google Boondoggle With No Such Agency

spy-who-loved-meEllen Nakashima has a startling, but I guess unsurprising, article in this morning’s Washington Post on internet giant Google’s new partnership with the NSA:

Under an agreement that is still being finalized, the National Security Agency would help Google analyze a major corporate espionage attack that the firm said originated in China and targeted its computer networks, according to cybersecurity experts familiar with the matter. The objective is to better defend Google — and its users — from future attack.

Google and the NSA declined to comment on the partnership. But sources with knowledge of the arrangement, speaking on the condition of anonymity, said the alliance is being designed to allow the two organizations to share critical information without violating Google’s policies or laws that protect the privacy of Americans’ online communications. The sources said the deal does not mean the NSA will be viewing users’ searches or e-mail accounts or that Google will be sharing proprietary data.

The article indicates Google initiated the matter by approaching the NSA after the recent discovery of intrusive attacks by Chinese interests last month, which is interesting in light of the fact Google made a point of publicly stating in 2008 they had never cooperated with the NSA on the Terrorist Surveillance Program.

Nakashima also notes that NSA is also soliciting involvement of the FBI and Department of Homeland Security. You have to wonder exactly what the FBI and DHS are going to lend that NSA cannot if this is truly just technical advice, because neither agency is particularly known for its geeky brilliance with computers. You would have to wonder is this is not a step in the direction of the “cyber protection” program the government has been hinting at initiating for some time now.

More from Nakashima and the Post:

“As a general matter,” NSA spokeswoman Judi Emmel said, “as part of its information-assurance mission, NSA works with a broad range of commercial partners and research associates to ensure the availability of secure tailored solutions for Department of Defense and national security systems customers.”

Despite such precedent, Matthew Aid, an expert on the NSA, said Google’s global reach makes it unique.

“When you rise to the level of Google . . . you’re looking at a company that has taken great pride in its independence,” said Aid, author of “The Secret Sentry,” a history of the NSA. “I’m a little uncomfortable with Google cooperating this closely with the nation’s largest intelligence agency, even if it’s strictly for defensive purposes.”

Mr. Aid isn’t the only one a little uncomfortable with this new spirit of cooperation between the world’s most spooky governmental spy agency and the world’s most ubiquitous information technology and database company. And so the descent down the slippery slope picks up a little more speed.

(Image courtesy of SearchEngineWatch.com, a very nice resource by the way)

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, Google.cn, 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.

Hints That the FISCR Plaintiff Is an Email Provider

I’ve said in the last two threads on the FISCR opinion that the plaintiff is an email provider. Here’s why I believe that to be true.

On February 29, 2008, the Computer & Communications Industry Association wrote the Members of the House (which was then considering its own amendments to FISA, distinct from those that had been already passed in the Senate), lobbying against retroactive immunity. CCIA, recall, is the trade group for a bunch of tech companies, including email providers Yahoo, Microsoft, and Google. That letter reads:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact. !!

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

Therefore, CCIA urges you to reject S. 2248. America will be safer if the lines are bright. The perpetual promise of bestowing amnesty for any and all misdeeds committed in the name of security will condemn us to the uncertainty and dubious legalities of the past. Let that not be our future as well. [my emphasis]

On February 29, 2008, at a time when the plaintiff in this case was almost certainly actively pursuing the case (I’ll do a review of timing in a later post), the trade association for the country’s biggest free email providers was lobbying:

  • Against retroactive immunity for those companies participated in violations of federal law, suggesting that the trade organization believed earlier cooperation was clearly illegal Read more

Shorter Google:

"Don’t eliminate the competitive advantage I gained by trying to protect Americans’ privacy."

McJoan reports that the CCIA wrote a letter to Congress opposing retroactive immunity.

In strong rebuke of the Chamber’s knee jerk Republican pandering, the trade group that actually represents companies in the computer, Internet, information technology, and telecommunications industries, the Computer & Communications Industry Association (CCIA) is opposed to telco amnesty [pdf], and have weighed in with their own letter to Congress.

To the Members of the U.S. House of Representatives:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the "FISA Amendments Act of 2007," as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact.

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support. [emphasis McJoan’s]

And if I’m not mistaken, Google and Yahoo are the two primary CCIA members who would be (as the letter states) "called upon for cooperation and assistance in law enforcement" [Update: as WO points out, Evil Bill Gates is as big a player in free email, and was also asked for search queries.] As you’ll recall, both Google and Yahoo were asked to turn over vast amounts of data that would have also revealed a good deal of proprietary information (Yahoo complied, Google fought the request).

The Justice Department has asked a federal judge to compel Google, the Internet search giant, to turn over records on millions of its users’ search queries as part of the government’s effort to uphold an online pornography law.

Google has been refusing the request since a subpoena was first issued last August, even as three of its competitors agreed to provide information, according to court documents made public this week. Google asserts that the Read more