In my piece on the loopholes in the new Stingray policy, I noted that public safety applications for Stingray use might fall under what the policy calls the “exceptional circumstances” that aren’t exigent but nevertheless don’t require a warrant.

I’m not sure whether the exigent/emergency use incorporates the public safety applications mentioned in the non-disclosure agreements localities sign with the FBI, or if that’s included in this oblique passage.

There may also be other circumstances in which, although exigent circumstances do not exist, the law does not require a search warrant and circumstances make obtaining a search warrant impracticable. In such cases, which we expect to be very limited, agents must first obtain approval from executive-level personnel at the agency’s headquarters and the relevant U.S. Attorney, and then from a Criminal Division DAAG. The Criminal Division shall keep track of the number of times the use of a cell-site simulator is approved under this subsection, as well as the circumstances underlying each such use.

In short, many, if not most, known uses are included in exceptions to the new policy.

We know there are public safety applications, because they are permitted even to localities by FBI’s Non-Disclosure Agreements.

I suspect these uses are for public events to both track the presence of known targets and to collect who was present in case of any terrorist event or other serious disruption. Indeed, for a lot of reasons — notably the odd testimony of FBI’s telecom forensics witness, the way FBI’s witnesses were bracketed off from investigators, and some oddness about when and how they found the brothers’ phones (and therefore the brothers) — I suspect someone was running Stingrays at the Boston Marathon. A Stingray (or many) deployed at public events to help protect them (assuming, of course, the terrorists that attack such an event aren’t narcs for the DEA, as people have speculated Tamerlan Tsarnaev was).

Newsweek asked DOJ whether that exceptional circumstances paragraph covered the use of Stingrays in public places included in a policy released by the FBI in December and they confirmed it is (here’s my post on the December release, which anticipates all the loopholes in the policy I IDed the other day).

In December 2014, the FBI, which falls under Justice Department’s new policy, explained to members of Congress the situations in which it does not need a warrant to deploy the technology. They include: “(1) cases that pose an imminent danger to public safety, (2) cases that involve a fugitive, or (3) cases in which the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy.”

Newsweek reached out to the Justice Department to determine whether its new policy allows the FBI to continue using stingrays without warrants in public places. In short, it does, fitting within the policy’s “exceptional circumstances” category.

“If somebody is in a public park, that is a public space,” Patrick Rodenbush, a Justice Department spokesman, says as an example, adding the condition that “circumstances on the ground make obtaining a warrant impracticable,” though he did not elaborate on what “impracticable” entails. But the dragnet nature of stingray collection means cellphone data of a person sitting in a nearby house may be picked up as well. “That’s why we have the deletion policy that we do,” Rodenbush responds. “In some cases it’s everyday that [bystander information] is deleted, it depends what they are using it for.… In some cases it is a maximum of 30 days.”

He adds: “The circumstances under which this exception will be granted will be very limited. Agents operating under this exception are still required to obtain a court order pursuant to the Pen Register Statute, and comply with the policy’s requirements to obtain senior-level department approval.”

Equally important as admitting that DOJ will use this in public places (like big sporting events) is Rodenbush’s confirmation that DOJ will obtain only Pen Registers for these uses.

That means they’ll virtually never get noticed to defendants, because the government will claim the evidence did not get introduced in court (just as no evidence collected from a Stingray was introduced, if they were used, in Dzhokhar’s case; in Dzhokhar’s case there was always another GPS device that showed his location).

The more I review this new policy and the December one the more I’m convinced they change almost nothing except the notice to the judge and the minimization (both still important improvements), except insofar as they recreate ignorance of Stingray use precisely in cases like public safety operations.

After previous reporting had already claimed US credit for the kill,

A Cardiff man who is one of three from the city to have joined a jihadist group in Syria has died, BBC Wales has been told.

Reyaad Khan, 21, was killed in a US drone strike at the end of August.

And after the WaPo rolled out claims that our latest “secret” drone killing theater operates under new-and-improved rules,

The CIA and U.S. Special Operations forces have launched a secret campaign to hunt terrorism suspects in Syria as part of a targeted killing program that is run separately from the broader U.S. military offensive against the Islamic State, U.S. officials said.

[snip]

Hussain, the 21-year-old British militant killed last month, was moved toward the top of the target list after being linked to one of two gunmen killed in Garland, Tex., this year after opening fire at a cartoon contest that invited participants to draw pictures of the prophet Muhammad.

Hussain is not known to have been directly involved in the Islamic State’s gruesome beheadings of Western hostages or other violence. The decision to kill him makes clear that even militants involved only in the Islamic State’s media efforts are regarded as legitimate U.S. military targets.

In the past, the Obama administration has stressed that it was not targeting terrorism suspects involved only in propaganda. When Anwar al-Awlaki, an American cleric, was killed in Yemen in 2011, officials emphasized that he had become directly involved in terrorist operations.

A senior administration official said that Hussain “was more than a propagandist. He was actively involved in recruiting [Islamic State] sympathizers in the West to carry out attacks, and he was specifically focused on orchestrating operations targeting U.S. service members as well as government officials.”

Hussain was tracked in part by monitoring his online activities, according to officials who said that the British government had been consulted on the decision to make him a target.

David Cameron has now claimed credit for killing.

The UK government ordered an RAF drone strike which targeted and killed two British Islamic State fighters in Syria last month, David Cameron has said.

Cardiff-born Reyaad Khan was targeted in Raqqa on 21 August and died alongside Ruhul Amin, from Aberdeen, and another fighter, the PM told MPs.

Khan, 21, had been plotting “barbaric” attacks on British soil, he said.

The “act of self defence” was lawful, Mr Cameron said, despite MPs previously ruling out UK military action in Syria.

Khan was killed in a precision strike by a remotely piloted aircraft, “after meticulous planning”, while he was travelling in a vehicle, the prime minister said.

Another British national, Junaid Hussain, from Birmingham, was killed in a separate air strike by US forces in Raqqa on 24 August, the prime minister confirmed.

Both had been planning to attack “high-profile public commemorations” taking place in the UK this summer, he said.

Lawyers on both sides of the Atlantic are already raising questions about the legality of this strike (and given European Human Rights law, it’s at least possible Cameron will have to offer more of an explanation than Obama has offered for killing Anwar al-Awlaki). I’m also interested in what has changed from the time when the UK stripped people of their nationality so we could drone kill them (as we’ve done repeatedly in Somalia). And why a country that was so sensitive about British Telecom’s role in drone operations in Djibouti is proudly announcing this now.

Is it because this strike helps to lay the case for more war-making in Syria?

But there’s something else I’m wondering. Who is flying what over Syria? The US and UK can’t fly drones without either Bashar al-Assad’s blessing or certainty what used to be considerable air defenses have been neutralized.

Moon of Alabama has been wondering the same thing too.

[T]he most curious issue in the piece is the description of the “drone” attack that helped to fend off attacking Nusra fighters. No drone I am aware of and certainly not the “Predator” are equipped with automatic weapons like machine guns. The Drones carry fire-and-forget missiles or bombs but no drone has the necessarily heavy rotating tower and swiveling weapon holder that would allow the use of automatic weapons. “Automatic fire from the sky” as the reporter describes from the video he has seen can only have come from manned helicopters. Or is there some other explanation that I miss?

If there were helicopters who’s birds were these? U.S. or Turkish? Are there more of these flying over Syria and to what purpose? And what would be the Search & Rescue assets that could be used should such a bird come down involuntarily?

Something we are not told about is happening at the Turkish-Syrian border. Is that the reason why the Russians, despiteU.S. efforts to hinder them, prepare air fields for the delivery of new air assets to the Syrian army?

Russia is being painted as the aggressor here. But the story of trans-Atlantic drone successes, whatever the underlying truth, suggests some outside force has been successful at doing more than winning ground battles.

Update: Meant to include this, from the WaPo story, because I find it interesting a story about drones introduces ambiguity both about where the drones might have been launched, but also an acknowledgement there’s more coming out of Jordan (and presumably Turkey).

The U.S. military and European allies operate fighter jets and other aircraft from the Muwaffaq Salti Air Base in Jordan, a highly secured compound that was used earlier this year by a Jordanian pilot who was captured by the Islamic State and burned alive.

The United States also flies drones from bases in Turkey, Kuwait, Saudi Arabia, the United Arab Emirates and Qatar, where the al-Udeid Air Base serves as the Middle East headquarters of the U.S. Special Operations Command.

Update: In his tweet on this, Cameron said the Brits used an RAF “aircraft;” he didn’t say drone (which uses fewer characters).

Update: Though in Cameron’s statement, he clearly says it was a remotely piloted aircraft.

Mr Speaker, in recent weeks it has been reported that 2 ISIL fighters of British nationality who had been plotting attacks against the UK and other countries have been killed in airstrikes. Both Junaid Hussain and Reyaad Khan, were British nationals based in Syria who were involved in actively recruiting ISIL sympathisers and seeking to orchestrate specific and barbaric attacks against the West, including directing a number of planned terrorist attacks right here in Britain, such as plots to attack high profile public commemorations, including those taking place this summer.

We should be under no illusion. Their intention was the murder of British citizens. So on this occasion we ourselves took action. Today I can inform the House that in an act of self-defence and after meticulous planning Reyaad Khan was killed in a precision air strike carried out on 21 August by an RAF remotely piloted aircraft while he was travelling in a vehicle in the area of Raqqah in Syria.

In addition to Reyaad Khan who was the target of the strike, 2 ISIL associates were also killed, 1 of whom – Ruhul Amin, has been identified as a UK national. They were ISIL fighters and I can confirm there were no civilian casualties.

Mr Speaker, we took this action because there was no alternative. In this area, there is no government we can work with. We have no military on the ground to detain those preparing plots. And there was nothing to suggest that Reyaad Khan would ever leave Syria or desist from his desire to murder us at home. So we had no way of preventing his planned attacks on our country without taking direct action.

The US administration has also confirmed that Junaid Hussain was killed in an American airstrike on 24 August in Raqqah.

President Obama’s at a labor breakfast in Boston today. He offered this message.

Clearly, the President is pandering to his audience. Bostoners like Brady, unlike much of the country.

But it’s an important point, one which has been missing from a lot of the coverage of DeflateGate. Brady will play on Thursday not just because he had better lawyers than the NFL, nor because Roger Goodell is a douchebag who’s not even competent at being a tyrant, but also because he’s a member of a union that had negotiated certain rules with the bosses, one of which was that certain kinds of violations get treated a certain way (in this case, that equipment violations involve a team fine, but no suspensions).

Mind you, I keep wondering why the NFL, after having been embarrassed with the BountyGate, Ray Rice, and Adrian Peterson disciplinary procedures, would adopt an even more abusive approach with Brady, when they were dealing with an alleged crime that wasn’t even as serious or as politically unpopular as the others (setting aside how much most people hate the Pats, of course). It’s possible they did so because they got so far ahead of themselves when they launched an investigation — and leaked highly derogatory and false information — in response to rumors about overinflated balls that they were left with no choice but to double down. But partly, the serial leaks feel like part of the plan here. In which case, I think it at least possible the NFL went after Brady so hard because he has always been active in the Players Association, and was the named plaintiff in 2011 when the players sued the NFL on anti-trust grounds.

Tom Brady may look like a hero, a badass quarterback, or a cheat to fans (depending on whom you’re asking), but maybe to every owner not named Kraft, he looks like a union rabble rouser?

I don’t know the answer to that, but as the league appeals Judge Berman’s ruling, I hope some people ask whether the NFL is just acting so stupid because they are that stupid, or whether there’s something more going on.

In any case, the President may have been pandering. But his point is sound. If even millionaire workers like Tom Brady need a union — need solidarity with other workers to achieve some measure of justice — then we all probably could use more of it.

Happy Labor Day! Go Patriots!

Update: As a number of people are noting, the NFL released a graphic asking which QB will be in next year’s Super Bowl that left the reining champ off.

I really shouldn’t waste my time making fun of Steve Rattner, but I will.

He just tweeted a map showing the most popular vehicle in each state last year. He noted that in the Big 12 Ford rules, the Big 10 Chevy rules. If you ignore current conference memberships such a claim might be mostly true.

Then he said that on the coasts, “Honda/Toyota (imports) rule.”

Only, for the two main vehicles he was discussing, Camry and Accord (and to a lesser degree, CR-V), those vehicles aren’t imports. They’re made in the US.

• F-150: Dearborn, MI and Kansas City, MO
• Silverado: Flint, MI, Fort Wayne, IN and Silao, Mexico
• Ram Truck: Warren, MI
• Camry: Georgetown, KY
• Accord: Marysville, OH
• Outback: Lafayette, IN
• CR-V: East Liberty, OH, Jalisco, Mexico, Saitama, Japan
• GMC Sierra: Fort Wayne, IN
• Corolla: Ontario, Canada (moving to Mexico)
• Forester: Japan

In fact, if you account for the source of the parts in a vehicle, Camry has been — for several years — the most “American” car.

Indeed, of the cars he was discussing, only the Forester is primarily assembled in Japan — other “imports” are made in North America (Subaru keeps talking about bringing that production to IN, too, but it seems more likely they’ll just keep increasing Outback production there).

Maybe Rattner was just being sloppy, using the word “import” for the term “transplant” used within the industry. Though the comment seemed to be central his point — he added the word “import” to explain why this was interesting, it seemed.

Unless he was making a distinction about unionization — the transplants remain non-union, though UAW is working hard to change that — his comment was an odd betrayal of how unfamiliar he is with cars, even after serving as Obama’s Car Czar.

Friday, Saudi Arabia’s King Salman came to DC to meet with Obama, renting out the entire Four Seasons hotel in a lavish display of extravagance as our joint policies in the Middle East foster a refugee crisis in Europe.

In a joint appearance on Friday, King Salman likened this meeting to the 1945 meeting on an aircraft carrier cruiser with FDR that laid the foundation for the oil-dollar-anti-Communist axis that has dominated post-war power.

I intended to make my first official visit to the United States as a symbol of the deep and strong relationship that we have with the United States that’s indeed historical relations that go back to the day when King Abd alAziz met with President Roosevelt in 1945.

Our relationship is beneficial not only to our two countries, but to the entire world and to our region. And this is significant, and we must always affirm that and deepen such relations.

Obama was more circumspect in his comments (I’ve put the transcript below as I didn’t find it posted on the White House site), speaking of specific things he’d like to accomplish in partnership with Saudi Arabia, several of which KSA has been only lukewarm at best in supporting. The official statement was even crazier, promising that KSA and the US would work on climate change together!

The one item with which KSA surely agreed was that the US would continue to help it to “counteract[] Iran’s destabilizing activities in the region,” which is actually code for the US continuing to help KSA to extend its influence at the expense of Iran, even in spite of the fact that KSA is a more destabilizing influence in the Middle East.

So amidst a showy meeting at which the US promised to continue to side with KSA against Iran, all while paying mere lip service to fixing the humanitarian disasters that result (most urgently in Yemen), Salman pitched the meeting in geostrategic terms: the KSA would continue to exert outsized influence on world affairs because of its special relationship with the US (which of course would be impossible if the two were to work toward any positive response to climate change).

Meanwhile, al-Arabiya emphasized something else: an ambitious plan to expand commercial partnerships between the countries, masterminded in part by intelligence contractor Booz Allen Hamilton.

Saudi Arabia on Friday unveiled a giant raft of investment and partnership potential opportunities in sectors including oil and gas, civil infrastructure, and banking as part of a 21st century vision of the cooperation between the two long-term allies, sources told Al Arabiya News on Saturday.

[snip]

With the Saudi government ramping up investment in free zones, roads, and communication networks, the kingdom will soon “aim to employ and rely completely on U.S. construction companies,” sources told Al Arabiya News.

The proposals were based on studies conducted by leading business and technology consultants, including Booz Allen Hamilton and BCG.

I’m interested in this because of the way in which joint economic partnership have formed the core of relations between KSA and the US — which was based on, and largely replaced, a similar partnership with Iran. It’s partly a vehicle for laundering petrodollars. It always pretended to be about bringing development to KSA. But it also seems to be about ensuring US bodies were present and exposed in the region, in case anything goes haywire.

As I’ve noted, back in 2013, the US prematurely extended the current version of that agreement when Mohammed bin Nayef came to welcome in Obama’s second-term cabinet. State was coy about releasing the terms of the agreement (underlying documents of which may show curious reporting structures for Americans in KSA), but eventually they did release what I suspect is a now-outdated agreement that nevertheless extends for 10 years (to 2023).

None of this is surprising. To placate the Saudis specifically, and the Gulf states generally, Obama is at least claiming he will sustain the preferential relationship with them, ignoring the damage that results. He is reassuring the Saudis they’ll continue to be our favored petro-weapon — we won’t pull a switcheroo like we did to the Iranians in 1976. And in response, Salman will bless the Iranian agreement (all while heating up the arms war in the Middle East that will expand instability).

But it is worth noting how Salman wants this to be perceived: as a continuation of KSA’s ability to demand idiotic interventions from the US at its behest.

Update: Corrected cruiser for carrier, per b.

PRESIDENT OBAMA: Well, it’s a great pleasure to welcome His Majesty, King Salman, to the Oval Office. This is the latest of several meetings that I’ve had with His Majesty. And the fact that he has chosen to take this first visit to the United States is indicative of the longstanding friendship between the United States and Saudi Arabia.

This is obviously a challenging time in world affairs, particularly in the Middle East, and so we expect this to be a substantive conversation across a wide range of issues. We share a concern about Yemen and the need to restore a functioning government that is inclusive and that can relieve the humanitarian situation there.

We share concerns about the crisis in Syria, and we’ll have the opportunity to discuss how we can arrive at a political transition process within Syria that can finally end the horrific conflict there.

We continue to cooperate extremely closely in countering terrorist activity in the region and around the world, including our battle against ISIL. And we’ll discuss the importance of effectively implementing the deal to ensure that Iran does not have a nuclear weapon, while counteracting its destabilizing activities in the region.

We’ll also have an opportunity to discuss the world economy and energy issues. And I look forward to continuing to deepen our cooperation on issues like education and clean energy and science and climate change because His Majesty is interested, obviously, ultimately in making sure that his people, particularly young people, have prosperity and opportunity into the future. And we share those hopes and those dreams for those young people, and I look forward to hearing his ideas on how we can be helpful.

So, Your Majesty, welcome, and let me once again reaffirm not only our personal friendship but the deep and abiding friendship between our two peoples.

HIS MAJESTY KING SALMAN: (As interpreted.) Thank you, Mr. President, and thank you for allowing us to enjoy your hospitality. I intended to make my first official visit to the United States as a symbol of the deep and strong relationship that we have with the United States that’s indeed historical relations that go back to the day when King Abd alAziz met with President Roosevelt in 1945.

Our relationship is beneficial not only to our two countries, but to the entire world and to our region. And this is significant, and we must always affirm that and deepen such relations. We always emphasize that we want to deepen our relations and further our cooperation in all fields.

As you know, Mr. President, our economy is a free economy, and therefore we must allow opportunities for businesspeople to exchange opportunities, because if people see that there are common interests, they will further themselves the relations between them. And our relationship must be beneficial to both of us, not only on the economic field but on the political and military and defense field, as well.

Once again, Mr. President, I’m happy to come to a friendly country to meet a friend. And we want to work together for world peace. Our region must achieve stability, which is essential for the prosperity of its people. And in our country, thank God we are prosperous, but we want prosperity for the entire region. And we are willing to cooperate with you in order to achieve that.

Thank you, Mr. President, for your hospitality. And I look forward to seeing you in Riyadh and seeing American officials coming to see us in Riyadh, and also Saudi officials coming to the United States.

PRESIDENT OBAMA: Thank you very much, everybody.

Last week, Muckrock’s Shawn Musgrave wrote a piece showing that, in the wake of Katrina and a slew of other 2005 hurricanes, in 2006 FBI’s Wireless Intercept and Tracking Team said they needed more equipment from Harris Corporation, the maker of Stingrays. They justified it because the hurricanes degraded the capabilities of something, which remains redacted. But as Musgrave notes, the storms took out a lot of the telecom infrastructure, which may be what the redacted passages describe.

“In the summer of 2005, the U.S. Gulf Coast bore the brunt of several hurricanes, including Hurricane Katrina which severely degraded the capabilities of the [redacted],” the memo reads in part. Subsequent, heavily redacted sentences suggest that the storm crippled the FBI’s capacity to conduct certain types of cell phone tracking operations via equipment on-hand at the time of landfall.

[snip]

Hurricane Katrina incapacitated wide swaths of telecommunications infrastructure along the Gulf Coast, including thousands of cell phone towers. Power outages also meant many people were unable to recharge their mobile devices. It’s thus unclear which Harris Corporation product the FBI’s cell phone tracking team identified as a critical solution.

In other words, it appears that almost a year after Katrina, the FBI used the 2005 damage to telecom infrastructure as justification for getting an urgent purchase of Harris equipment, possibly Stingrays, approved.

I find the timing curious. After all, Congress approved a slew of funding right after Katrina. And Congress was debating budgetary issues in October 2005. While there’s nothing that ties this request to a budget request, it just seems odd that FBI would have identified a need in September 2005, and then sat on that urgent request until the following July. Though that July request specifically mentioning Katrina seems to be the same request that got filed in March and was in process in April that did not mention Katrina in unredacted sections. That’s not as distant from the hurricanes that purportedly identified the need, but still an odd delay for something urgent.

There’s something else that was happening in 2005 and 2006, though, that may have been as central in creating a need for Stingrays as damage to telecom equipment caused by hurricanes.

On October 14, 2005, a magistrate judge in Texas refused a request to yoke a Pen Register order onto a subscriber record subpoena to obtain location data from a telecom. Then some other magistrates started joining in. This created two problems. First, how would FBI get that location information in criminal cases. But also, in December 2005, Congress moved towards limiting the use of Section 215 orders to things that may be obtained with a subpoena, a move that would become official with the renewal of the PATRIOT Act on March 9, 2006. So even while magistrates were hashing out how the FBI might obtain such information from telecoms in garden variety criminal cases (a debate that is currently before SCOTUS), FISC and the government appear to have been having the same debate behind closed doors. In February 2006, FISC required briefing on what appears to be a parallel use of PRTT combined with a subpoena — a FISA PRTT yoked to a Section 215 order. And while the exact timing isn’t clear, we know those combined orders ended in 2006.

In other words, hurricanes may have damaged telecom infrastructure leading FBI to rely more on Stingrays. But at the same time, the legal landscape for location requests was changing, perhaps even more dramatically on the FISA side than on the criminal side.

And we know — yesterday’s change in policy admitted to FISA uses for Stingrays, though we knew this already — that FBI does use Stingrays to obtain location data under FISA as well as under criminal cases.

Katrina may have created part of the need for FBI to do more Do It Yourself location tracking, bypassing the telecoms. But legal issues created a need too, and I’d be willing to bet that the big urgency to expand FBI’s DIY location tracking abilities in 2006 had quite a bit to do with the need to find another way of location tracking, preferably one with a lot fewer people reviewing the paperwork involved.

If I’m right, then it would suggest some interesting things about the fluctuations in PRTTs (I stole the table above from EPIC). That is, in 2006, there were significant drops in PRTTs, followed by a huge drop in 2008.

On the criminal side, FBI still gets PRTT orders when it uses a Stingray. I assume the same is true on the FISA side (though it would be a lot harder to enforce here, especially because no defendant would ever get notice). But we also know the government has been hiding bulk collection under single orders, so it wouldn’t take too many orders to incorporate a lot of people.

Did FBI stock up on Harris equipment because of the weather, or because of the law?

Matthew Aid linked to FOIAed State Department documents on the ambush of two intelligence officials in August 2012 (the documents were actually released to John Dyer in 2014).

They provide a number of interesting new details about the assault (see my earlier coverage here, here, here, and here).

• Although the State Department hesitated to use the word “ambush” publicly for some time after the event, internal documents used that term immediately
• The Federal Police — the same people who conducted the ambush! — brought the Americans to a hospital in Cuernavaca, though there were also army and navy individuals present (note, there had been a shooting in Cuernavaca the previous day)
• There were 152 shots fired at the American car — far more than reported in initial reports; 40% of those were focused on the front seat windows, which not only (according to a cable) are the most vulnerable spots in the armor on the SUV, but also happened to be where the Americans were sitting
• There’s a reference to pictures from the phones of the “agents,” which seems to be a reference to the victims; this is the one instance where the cables drop the charade that these were general Embassy employees
• Both DIA and CIA were copied immediately on the first cables (DEA was not copied on anything, I don’t think)
• An early cable said that our escaping vehicle may have run over one or two of the assailants
• Unsurprisingly, the FBI had the lead on investigating the incident from very early on, despite a public focus on Mexico’s Attorney General’s role
• A mostly redacted cable complaining about the slow pace of the investigation includes discussion of the US refusing to provide the victims for witness testimony (remember one of the two was on Temporary Duty in Mexico, meaning they hadn’t approved him as a credentialed Embassy employee working under official cover)
• The police commander who ordered the culprits to lie about whether they were wearing uniforms or not had been in appropriately promoted, suggesting he’s someone’s fixer

More generally, the cables seem concerned with measuring the seriousness with which President Felipe Calderón responded to the attack. For example, this partly redacted discussion relays someone’s explanation of Calderón’s instructions the day of the attack.

Then, a cable relaying the public apology Calderón gave four days after the attack included these details, including that the apology was not in his written speech.

A description of Ambassador Anthony Wayne’s meeting with Calderón on early September is mostly redacted (it also includes details of meetings with Mexico’s AG). That description went to — among others — CIA Director David Petraeus, as well as John Brennan (who was still in the White House). And once Enrique Peña Nieto was elected, the Americans seemed pretty enthusiastic about cooperating when them going forward rather than Calderón.

A number of the cables tie the attack closely to the Merida initiative.

For some reason, people continue to believe Administration leaks that they will retaliate against China (and Russia!) for cyberattacks — beyond what are probably retaliatory moves already enacted.

I think Jack Goldsmith’s uncharacteristically snarky take is probably right. After cataloging the many past leaks about sanctions that have come to no public fruition, Goldsmith talks about the cost of this public hand-wringing.

As I have explained before, figuring out how to sanction China for its cyber intrusions is hard because (among other reasons) (i) the USG cannot coherently sanction China for its intrusions into US public sector (DOD, OPM, etc.) networks since the USG is at least as aggressive in China’s government networks, and (ii) the USG cannot respond effectively to China’s cyber intrusions in the private sector because US firms and the US economy have more to lose than gain (or at least a whole lot to lose) from escalation—especially now, given China’s suddenly precarious economic situation.

But even if sanctions themselves are hard to figure out, the public hand-wringing about whether and how to sanction China is harmful.  It is quite possible that more is happening in secret.  “One of the conclusions we’ve reached is that we need to be a bit more public about our responses, and one reason is deterrence,” a senior administration official in an “aha” moment told Sanger last month.  One certainly hopes the USG is doing more in secret than in public to deter China’s cybertheft.   Moreover, one can never know what cross-cutting machinations by USG officials lie behind the mostly anonymous leaks that undergird the years of stories about indecisiveness.

This performance seems to be directed at domestic politics, because the Chinese aren’t impressed.

A still crazier take, though, is this one, which claims DOJ thought indicting 5 PLA connected hackers last year would have any effect.

But nearly a year and a half after that indictment was unveiled, the five PLA soldiers named in the indictment are no closer to seeing the inside of a federal courtroom, and China’s campaign of economic espionage against U.S. firms continues. With Chinese President Xi Jinping set to arrive in Washington for a high-profile summit with President Barack Obama later this month, the question of how — and, indeed, if — the United States can deter China from pilfering American corporate secrets remains very much open. The indictment of the PLA hackers now stands out as a watershed moment in the escalating campaign by the U.S. government to deter China from its aggressive actions in cyberspace — both as an example of the creative ways in which the United States is trying to fight back and the limits of its ability to actually influence Chinese behavior.

[snip]

In hindsight, the indictment seems less like an exercise in law enforcement than a diplomatic signal to China. That’s an argument the prosecutor behind the case, U.S. Attorney David Hickton, resents. “I believe that’s absolute nonsense,” Hickton told Foreign Policy. “It was not the intention, when we brought this indictment, to at the same time say, ‘We do not intend to bring these people to justice.’”

But it’s unclear exactly what has happened to the five men since Hickton brought charges against them. Their unit suspended some operations in the aftermath of the indictment, but experts like Weedon say the group is still active. “The group is not operating in the same way it was before,” she said. “It seems to have taken new shape.”

Hickton, whose office has made the prosecution of cybersecurity cases a priority, says he considers the law enforcement effort against hackers to be a long-term one and likens it to indictments issued in Florida against South American drug kingpins during the height of the drug war. Then, as now, skeptics wondered what was the point of bringing cases against individuals who seemed all but certainly beyond the reach of U.S. law enforcement. Today, Hickton points out, U.S. prisons are filled with drug traffickers. Left unsaid, of course, is that drugs continue to flow across the border.

That’s because it fundamentally misunderstands what the five hackers got indicted for.

This indictment was not, as claimed, for stealing corporate secrets. It was mostly not for economic espionage, which we claim not to do.

Rather — as I noted at the time — it was for stealing information during ongoing trade disputes.

But the other interesting aspect of this indictment coming out of Pittsburgh is that — at least judging from the charged crimes — there is far less of the straight out IP theft we always complain about with China.

In fact, much of the charged activity involves stealing information about trade disputes — the same thing NSA engages in all the time. Here are the charged crimes committed against US Steel and the United Steelworkers, for example.

In 2010, U.S. Steel was participating in trade cases with Chinese steel companies, including one particular state-owned enterprise (SOE-2).  Shortly before the scheduled release of a preliminary determination in one such litigation, Sun sent spearphishing e-mails to U.S. Steel employees, some of whom were in a division associated with the litigation.  Some of these e-mails resulted in the installation of malware on U.S. Steel computers.  Three days later, Wang stole hostnames and descriptions of U.S. Steel computers (including those that controlled physical access to company facilities and mobile device access to company networks).  Wang thereafter took steps to identify and exploit vulnerable servers on that list.

[snip]

In 2012, USW was involved in public disputes over Chinese trade practices in at least two industries.  At or about the time USW issued public statements regarding those trade disputes and related legislative proposals, Wen stole e-mails from senior USW employees containing sensitive, non-public, and deliberative information about USW strategies, including strategies related to pending trade disputes.  USW’s computers continued to beacon to the conspiracy’s infrastructure until at least early 2013.

This is solidly within the ambit of what NSA does in other countries. (Recall, for example, how we partnered with the Australians to obtain information to help us in a clove cigarette trade dispute.)

I in no way mean to minimize the impact of this spying on USS and USW. I also suspect they were targeted because the two organizations partner together on an increasingly successful manufacturing organization. Which would still constitute a fair spying target, but also one against which China has acute interests.

But that still doesn’t make it different from what the US does when it engages in spearphishing — or worse — to steal information to help us in trade negotiations or disputes.

We’ve just criminalized something the NSA does all the time.

The reason this matters is because all the people spotting unicorn cyber-retaliation don’t even understand what they’re seeing, and why. I mean, Hickton (who as I suggested may well run for public office) may have reasons to want to insist he’s championing the rights of Alcoa, US Steel, and the Steelworkers. But he’s not implementing a sound deterrence strategy because — as Goldsmith argues — it’s hard to imagine one that we could implement, much less one that wouldn’t cause more blowback than good.

Before people start investing belief in unicorn cyber deterrence, they’d do well to understand why it presents us such a tough problem.

DOJ just announced a new policy on use of Stingrays which requires a warrant and minimization of incidentally-collected data. It’s big news and an important improvement off the status quo.

But there are a few loopholes.

Exigent and emergency uses

First, the policy reserves exigent uses. The exigent uses include most of DOJ Agencies known uses of Stingrays now.

These include the need to protect human life or avert serious injury; the prevention of the imminent destruction of evidence; the hot pursuit of a fleeing felon; or the prevention of escape by a suspect or convicted fugitive from justice.

[snip]

In addition, in the subset of exigent situations where circumstances necessitate emergency pen register authority pursuant to 18 U.S.C. § 3125 (or the state equivalent), the emergency must be among those listed in Section 3125: immediate danger of death or serious bodily injury to any person; conspiratorial activities characteristic of organized crime; an immediate threat to a national security interest; or an ongoing attack on a protected computer (as defined in 18 U.S.C. § 1030) that constitutes a crime punishable by a term of imprisonment greater than one year.

We know the US Marshals constitute the most frequent users of admitted Stingray use — they’d be covered in prevention of escape by a fugitive. DEA seems to use them a lot (though I think more of that remains hidden). That’d include “conspiratorial activities characteristic of organized crime.” And it’s clear hackers are included here, which includes the first known use, to capture Daniel Rigmaiden.

And I’m not sure whether the exigent/emergency use incorporates the public safety applications mentioned in the non-disclosure agreements localities sign with the FBI, or if that’s included in this oblique passage.

There may also be other circumstances in which, although exigent circumstances do not exist, the law does not require a search warrant and circumstances make obtaining a search warrant impracticable. In such cases, which we expect to be very limited, agents must first obtain approval from executive-level personnel at the agency’s headquarters and the relevant U.S. Attorney, and then from a Criminal Division DAAG. The Criminal Division shall keep track of the number of times the use of a cell-site simulator is approved under this subsection, as well as the circumstances underlying each such use.

In short, many, if not most, known uses are included in exceptions to the new policy.

Notice to defendants

The many known uses of Stingrays where warrants would not be necessary — and where DOJ would therefore just be using a PRTT — are of particular importance given the way new disclosure requirements work. There are, to be sure, admirable new requirements to tell judges what the fuck they’re approving and what it means. But nothing explicitly says defendants will not get noticed. DOJ has said no past or current usage of Stingrays will get noticed to defendants. And all these non-warrant uses of Stingrays will be noticed either, probably. In other words, this returns things to the condition where defendants won’t know — because they would normally expect to see a warrant that wouldn’t exist in these non-warrant uses.

Sharing with localities

The policy doesn’t apply to localities, which increasingly have their own Stingrays they permit federal agencies to use. Curiously, the language applying this policy to federal cooperation with localities would suggest the federal rules only apply if the Feds are supporting localities, not if the reverse (FBI borrowing Buffalo’s Stingray, for example) is the case.

The Department often works closely with its State and Local law enforcement partners and provides technological assistance under a variety of circumstances. This policy applies to all instances in which Department components use cell-site simulators in support of other Federal agencies and/or State and Local law enforcement agencies.

Thus, it may leave a big out for the kind of cooperation we know to exist.

National security uses

Then, of course, the policy only applies in the criminal context, though DOJ claims it will adopt a policy “consistent” with this one on the FISC side.

This policy applies to the use of cell-site simulator technology inside the United States in furtherance of criminal investigations. When acting pursuant to the Foreign Intelligence Surveillance Act, Department of Justice components will make a probable-cause based showing and appropriate disclosures to the court in a manner that is consistent with the guidance set forth in this policy.

BREAKING! FBI has been using Stingrays in national security investigations! (Told ya!)

This language is itself slippery. FISC use of Stingrays probably won’t be consistent on the FISC side (even accounting for the many ways exigent uses could be claimed in national security situations), because we know that FISC already has different rules for PRTT on the FISC side, in that it permits collection of post cut through direct dialed numbers — things like extension numbers — so long as that gets minimized after the fact. The section on minimization here emphasizes the “law enforcement” application as well. So I would assume that not only will national security targets of Stingrays not get noticed on it, but they may use different minimization rules as well (especially given FBI’s 30 year retention for national security investigation data).

Other agencies use of Stingrays for content

DOJ suggests that DOJ never collects content using Stingrays by stating that its Stingrays always get set not to collect content.

Moreover, cell-site simulators used by the Department must be configured as pen registers, and may not be used to collect the contents of any communication, in accordance with 18 U.S.C. § 3127(3). This includes any data contained on the phone itself: the simulator does not remotely capture emails, texts, contact lists, images or any other data from the phone. In addition, Department cell-site simulators do not provide subscriber account information (for example, an account holder’s name, address, or telephone number).

But the rest of the policy makes it clear that department agents will work with other agencies on Stingray use. Some of those — such as JSOC — not only would have Stingrays that get content, but can even partner within the US with FBI.  So DOJ hasn’t actually prohibited its agencies from getting content from a Stingray (domestically — it goes without saying they’re permitted to do so overseas), just that it won’t do so using its own Stingrays.

Funny definitional games

Finally, while not necessarily a loophole (or at least not one I completely understand yet), I’m interested in this definition.

In the context of this policy, the terms “collection” and “retention” are used to address only the unique technical process of identifying dialing, routing, addressing, or signaling information, as described by 18 U.S.C. § 3 I 27(3), emitted by cellular devices. “Collection” means the process by which unique identifier signals are obtained; “retention” refers to the period during which the dialing, routing, addressing, or signaling information is utilized to locate or identify a target device, continuing until tlle point at whic!h such information is deleted.

This definition (which only applies to this policy and therefore perhaps not to national security uses of Stingrays) employs an entirely different definition for collection and retention than other collection that relies on collection then software analysis. Under upstream collection, for example, the government calls this definition of “retention” something closer to “collection.” Don’t get me wrong — this is probably a better definition than that used in other contexts. But I find it funny that FBI employs such different uses of these words in very closely connected contexts.

So, in sum, this is a real victory, especially the bit about actually telling judges what they’re approving when they approve it.

But there are some pretty obvious loopholes here….

Update: ACLU also welcomes this while pointing to some of the limits of the policy.

Update: Here are some of my posts on the FISA uses of PRTT, including (we now know) Stingrays.

Faced with what will be its biggest legislative defeat ever — the passage of the Iran deal, possibly by upholding Obama’s veto — AIPAC is lashing out, blaming Bibi.

An official from the American Israel Public Affairs Committee, the leading pro-Israel lobby in the US, on Thursday blasted Prime Minister Benjamin Netanyahu for harming the opposition to the Iran nuclear deal by insisting on addressing Congress on the issue in March.

“Netanyahu’s speech in Congress made the Iranian issue a partisan one,” the AIPAC official told Israel’s Walla news. “As soon as he insisted on going ahead with this move, which was perceived as a Republican maneuver against the president, we lost a significant part of the Democratic party, without which it was impossible to block the agreement,” said the official, who asked not to be named.

Of course AIPAC has plenty to own in its loss of influence too, in part by backing Bibi’s hard right policies rather than policies that support Israel’s security.

Bibi and AIPAC deserve each other.

But if they want to start taking out each other to avoid taking responsibility for how ridiculously hard right their views have become, I can live with that.