Leaving Motown

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Bs7J-LDCAAAe9Z2.jpg-largeHi there Wheelhouse denizens,how ya doing? Jim White and I are both in the air right now on our way home from yet another Netroots wild weekend. We were dropped off at the airport by Marcy, who is on the actual road on her way home to Grand Rapids.

A great time was had by all, and, yes, we are all a little worse for the wear. We had a rocking good time. The picture above is from Marcy’s NSA Surveillance panel yesterday afternoon. Normal content and posting should resume tomorrow, thanks for bearing with us. You are all the greatest, see you soon. Until then, rock on and chat amongst yourselves!

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The Anglo-American Data Empire

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In a piece for Salon today, I note that both in US domestic warrants for Stored Communication and in the law the UK will push through, DRIP, the US and the Brits are asserting they should be able to demand data stored anywhere in the world. Here’s the US part:

The U.S. data grab started back in December, when the Department of Justice applied for a warrant covering an email account Microsoft held in Ireland as part of a drug-trafficking investigation. Microsoft complied with regards to the information it stored in the U.S. (which consisted of subscriber information and address books), but challenged the order for the content of the emails. After Magistrate Judge James Francis sided with the government – arguing, in part, that Mutual Legal Assistance Treaties, under which one country asks another for help on a legal investigation, were too burdensome — Microsoft appealed, arguing the government had conscripted it to conduct an extraterritorial search and seizure on its behalf.

As part of that, Microsoft Vice President Rajesh Jha described how, since Snowden’s disclosures, “Microsoft partners and enterprise customers around the world and across all sectors have raised concerns about the United States Government’s access to customer data stored by Microsoft.” Jha explained these concerns went beyond NSA’s practices. “The notion of United States government access to such data — particularly without notice to the customer — is extremely troubling to our partners and enterprise customers located outside of the United States.” Some of those customers even raised Magistrate Francis’ decision specifically.

[snip]

The government’s response, however, argued U.S. legal process is all that is required. DOJ’s brief scoffed at Microsoft for raising the real business concerns that such big-footing would have on the U.S. industry. “The fact remains that there exists probable cause to believe that evidence of a violation of U.S. criminal law, affecting U.S. residents and implicating U.S. interests, is present in records under Microsoft’s control,” the government laid out. It then suggested U.S. protection for Microsoft’s intellectual property is the tradeoff Microsoft makes for complying with legal process. “Microsoft is a U.S.-based company, enjoying all the rights and privileges of doing business in this country, including in particular the protection of U.S. intellectual property laws.” It ends with the kind of scolding usually reserved for children. “Microsoft should not be heard to complain that doing so might harm its bottom line. ”

Click through to find out why the UK data grab is even worse.

Effectively, both English speaking behemoths are arguing that borders don’t matter, they can have any data in the world. And while we know NSA and GCHQ were doing that for spying purposes, here they’re arguing they can do it for crime prevention.

Breathtaking claims, really.

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On Laughter and Forgetting Our EU Spying

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I’ve long been intrigued by the response to the discovery of CIA spies in Germany, starting last week when seemingly everyone wanted to admit that the alleged spy was CIA’s. Unlike the Pakistani, Mexican, Afghan, and other precedents, the government either didn’t succeed or didn’t care to prevent Americans from learning about our overseas spies.

Now we’ve got competing explanations for why we spy in Germany.

According to Eli Lake source David Albright (whom Jim regularly embarrasses for his Iran propaganda), we spy on Germany because AQ Khan got much of his plans for Pakistan’s nuclear program in Germany. Lake also points to Germany’s close relations with Russia. The CIA has to spy on Germany, then, because Germany is not very good at spying on others, including Russian spies.

And of course, the forerunners to Russia’s modern spy services had plenty of experience operating on German soil. Vladimir Putin famously ran agents for the KGB from 1985 to 1990 out of Dresden, which was then in communist East Germany. His successors are still in the country, albeit on less friendly terms. “There is a huge Russian presence in Germany,” said the senior U.S. intelligence official.

Part of the current concern about Russia’s activities in Germany stems from unease about Berlin’s equivalent of the FBI, known as the Bundesamt für Verfassungsschutz (BFV). One former U.S. intelligence officer who worked on European issues said the BFV had a strong reputation for identifying and neutralizing domestic threats inside Germany, but was not very good hunting so-called “moles” – foreign agents burrowed into their spy services. “I can tell you they never watched us very carefully at all,” this official said. “That is almost definitely going to change now.”

Meanwhile, German Die Zeit editor Jochen Bittner relied on CIA’s former German Station Chief Joseph Wippl for explanation; Wippl provided a bizarre suggestion that CIA was accidentally treating Germany like it treats “Third World” countries, and anyway the Germans aren’t willing to do the dirty work to gain full membership in a Five Eyes like relationship.

I asked Joseph T. Wippl, who was the C.I.A.’s Berlin station chief in the early 2000s, why the agency had recruited German sources. “The C.I.A. has developed strongly in the direction of a third world agency, in that its officers work in places where the U.S. has great leverage over others and where there is no rule of law,” he said. “They are not used to or have not been trained to work in countries with similar democratic, constitutional institutions.” At the same time, he went on, the Germans had never seemed interested in the level of cooperation that might obviate this sort of unilateral snooping — the sort of treaty relationship that America has with Australia, Britain, Canada and New Zealand, the so-called Five Eyes intelligence alliance.

To suggest that the Germans could be treated as a Sixth Eye is a flattering idea. Yet I doubt the Germans would accept the honor. As is the case with America’s nuclear umbrella, we’re happy to have the protection while being still happier not to have to carry the responsibility. If Germany entered into a real intelligence alliance with America, the government would have to deal with a load of dirty knowledge — and lose the benefit of plausible deniability.

As you read Wippl’s comments, remember his own rather dubious exploits in Germany.

This whole conversation feels a lot like Keith Alexander’s spectacularly successful effort to use a few journalists to cover up his admission that we do spy in Europe, but only for targets — Chinese, Russian, and al Qaeda — that can be deemed not-European.

But it ignores the great deal of spying we do on the European Union, which has long served to strengthen Germany, but the recent collapse of which has eliminated the most viable competing reserve currency in the world.

There has been a tremendous adjustment in the European power base in recent years, which largely stems from the EU, which in turn largely stems from Germany’s successful effort at making the rest of the EU absorb the pain of the financial crisis. I guarantee you we were aggressively spying on that, all in the name of preparing for instability (but surely using that intelligence to preserve the dollar’s competitive advantages).

Meanwhile, all this takes place against the background of negotiations on the TTIP, in which the US would demand concessions from Europe that gut many of the better policies of the EU.

We may be concerned that the Germans have good reason to want closer relations with Russia than we want them to have. But we also have a financially competitive relationship with Germany, and there’s no reason to believe we’re not doing a ton of spying to our advantage. Key details of that spying has not (yet) been fully revealed. But I do wonder if that’s part of the issue here.

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Did They Call Wiley Gill “Mohammed Raghead” Before Claiming Videogame Was a Flight Simulator?

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The ACLU is suing the Federal Government for the standards it uses in Suspicious Activity Reports, which can record completely innocent actions. A lot of people are citing James Prigoff — an 86-year old photographer and retired business executive, who got tracked to his Sacramento, CA home for taking a picture of a well-known Boston landmark.

But given the denials about the tracking of Muslims in response to the Intercept story on NSA’s surveillance of 5 Muslim leaders, the SAR complaint of of Wiley Gill, a convert to Islam, deserves as much attention.

Gill describes how the cops in Chico, CA, had been tracking him both online and at the local mosque, when they invented the pretense of a domestic violence complaint to search his home without a warrant. They found something on video games loaded on his computer and deemed it a flight simulator.

The SAR was created on or about May 23, 2012, and purports to document an encounter between Mr. Gill and the Chico Police Department (“CPD”) on or about May 20, 2012. The SAR states that a CPD officer was investigating a domestic violence incident and believed the suspect may have fled into Mr. Gill’s residence. The SAR states that this was later discovered to be unfounded. It acknowledges that the CPD officer searched Mr. Gill’s home. The SAR asserts that Mr. Gill’s computer displayed a screen titled something to the effect of “Games that fly under the radar,” which appeared to be a “flight simulator type of game.” The SAR concludes by describing Mr. Gill’s “full conversion to Islam as a young WMA [white, male adult],” “pious demeanor,” and “potential access to flight simulators via the internet” as “worthy of note.”

Admittedly, the bias inherent to Gill’s SAR came from local cops, not the FBI or NSA. But I’d be willing to bet it responded to alerts (FBI and DHS both release them) about white converts to Islam.

The Intercept story, remember, described an internal document referring to targets as “Mohammed Raghead.” NSA has disclaimed any tie to that — even more aggressively than FBI did its own totally racist documents.

And while I presume whatever alerts to local cops led them to track Gill’s non-suspicious behavior said nothing explicitly racist, at some point the system reinforces a system under which Muslims get tracked, and others do not.

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How is Abdullah Obtaining So Many Tapes of Phone Calls?

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It is looking more and more likely that Abdullah Abdullah will continue his boycott of the vote-counting process in Afghanistan. As I noted Friday, thousands of his supporters took to the streets to protest the expected outcome and to call for fraudulent votes to be discarded. Abdullah’s camp released even more evidence Saturday, consisting of two audiotapes of conversations among officials in Paktika province regarding 20 ballot boxes which were found to be already stuffed with ballots on the night before the election. ToloNews informs us that one of the tapes was a conversation between the Paktika provincial Independent Election Commission (IEC) head and the executive assistant of Zia-ul-Haq Amarkhail (the head of the IEC, who resigned after Abdullah released the first set of tapes). The second tape purports to be yet another recording of Amarkhail himself, this time participating in a discussion (again with the provincial IEC head) of how to deflect blame for the stuffed ballot boxes found in Paktika:

Amarkhail begins by stressing his frustration about the situation with the ANA commander revealing information to the media about the ballot stuffing. The provincial IEC head told Amarkhail that a video was made of the men stuffing 20 ballot boxes with 12,000 votes and in each box exactly 600 votes were stuffed and that the ANA wants to “broadcast this through TOLO TV.”

Concerned and upset about their position, the provincial IEC head suggests to Amarkhail that they hold a press conference defaming the ANA commander by stating that these frauds were conducted by the commander and his men.

After proposing the idea, the Gov. of Paktika, Muhebullah Samim, takes the phone approving the idea of holding a press conference expressing to Amarkhail that this is their only way out is by blaming the commander that he forced the “boys to do this and the boys will admit to it. The boys are willing to say that the ANA commander has forced them to stuff boxes.”

Content with the idea, Amarkhail agrees to the plan and begins to tell the men what needs to be done and how.

In a followup article, ToloNews provides the most incriminating part of the discussion and notes that they had reported the discovery of the stuffed ballot boxes before the election on the day they were found by the army: Read more →

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Sonia Sotomayor, John Roberts, and the Riley Decision

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In a piece just published at Salon, I look at John Roberts’ citation in his Riley v. California decision of Sonia Sotomayor’s concurrence in US v. Jones, the opinion every privacy argument has invoked since she wrote it two years ago. I argue Roberts uses it to adopt her argument that digital searches are different.

A different part of Sotomayor’s concurrence, arguing that the existing precedent holding that you don’t have a privacy interest in data you’ve given to a third party “is ill suited to the digital age,” has been invoked repeatedly in privacy debates since she wrote it. That’s especially true since the beginning of Edward Snowden’s leaks. Lawsuits against the phone dragnet often cite that passage, arguing that the phone dragnet is precisely the kind of intrusion that far exceeds the intent of old precedent. And the courts have – with the exception of one decision finding the phone dragnet unconstitutional – ruled that until a majority on the Supreme Court endorses this notion, the old precedents hold.

Roberts cited from a different part of Sotomayor’s opinion, discussing how much GPS data on our movements reveals about our personal lives. That appears amid a discussion in which he cites things that make cellphones different: the multiple functions they serve, the different kinds of data we store in the same place, our Web search terms, location and apps that might betray political affiliation, health data or religion. That is, in an opinion joined by all his colleagues, the chief justice repeats Sotomayor’s argument that the sheer volume of this information makes it different.

Roberts’ argument here goes beyond both Antonin Scalia’s property-based opinion and Sam Alito’s persistence-based opinion in US v. Jones.

Which seems to fulfill what I predicted in my original analysis of US v. Jones — that the rest of the Court might come around to Sotomayor’s thinking in her concurrence (which, at the time, no one joined).

Sotomayor, IMO, is the only one ready to articulate where all this is heading. She makes it clear that she sides with those that see a problem with electronic surveillance too.

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

[snip]

I would also consider the appropriateness of entrusting to the, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent“a too permeating police surveillance,”

And in a footnote, makes a broader claim about the current expectation of privacy than Alito makes.

Owners of GPS-equipped cars and smartphones do not contemplate that these devices will be used to enable covert surveillance of their movements.

Ultimately, the other Justices have not tipped their hand where they’ll come down on more generalized issues of cell phone based surveillance. Sotomayor’s opinion actually doesn’t go much further than Scalia claims to when he says they can return to Katz on such issues–but obviously none of the other Republicans joined her opinion. And all those who joined Alito’s opinion seem to be hiding behind the squishy definitions that will allow them to flip flop when the Administration invokes national security.

Sotomayor’s importance to this decision likely goes beyond laying this groundwork two years ago.

There’s evidence that Sotomayor had a more immediate impact on this case. In a recent speech — as reported by Adam Serwer, who recalled this comment after yesterday’s opinion — Sotomayor suggested she had to walk her colleagues through specific aspects of the case they didn’t have the life experience to understand.

The Supreme Court has yet to issue opinions on many of its biggest cases this term, and Sotomayor offered few hints about how the high court might rule. She did use an example of a recent exchange from oral argument in a case involving whether or not police can search the cell phones of arrestees without a warrant to explain the importance of personal experience in shaping legal judgments.
“One of my colleagues asked, ‘who owns two cell phones, why would anybody?’ In a room full of government lawyers, each one of them has two cell phones,” Sotomayor said to knowing laughter from the audience. “My point is that issue was remedied very quickly okay, that misimpression was.”
The colleague was Chief Justice John Roberts, who along with Justice Antonin Scalia,seemed skeptical during oral arguments in Wurie v. United States that anyone but a drug dealer would need two cell phones.

“That’s why it’s important to have people with different life experiences,” Sotomayor said. ”Especially on a court like the Supreme Court, because we have to correct each other from misimpressions.”

In my Salon piece, I suggest that some years from today, some Court observer (I had Jeffrey Toobin in mind) will do a profile of how Sotomayor has slowly brought her colleagues around on what the Fourth Amendment needs to look like in the digital age.

I come away from this opinion with two strong hunches. First, that years from now, some esteemed court watcher will describe how Sonia Sotomayor has gradually been persuading her colleagues that they need to revisit privacy, because only she would have written this opinion two years ago.

Of course, it likely took Roberts writing the opinion to convince colleagues like Sam Alito. Roberts wrapped it up in nice originalist language, basically channeling James Madison with a smart phone. That’s something that surely required Roberts’ stature and conservatism to pull off.

But if this does serve as a renewed Fourth Amendment, with all the heft that invoking the Founders gives it, I’ll take it.

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Unanimous: Cops Need a Warrant to Access Your Phone Data

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SCOTUS just unanimously held that cops generally need a warrant to access your cell phone data. Chief Justice Roberts wrote the opinion. The opinion is here.

I’m reading now to figure out what it means. Will update accordingly.

This passage is getting widely cited:

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that  the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such  phones.

I’m amused by the way Roberts deals with the government’s belated encryption argument.

Encryption isa security feature that some modern cell phones use in addition to password protection. When such phones lock, data becomes protected by sophisticated encryption that  the password. Brief for United States as Amicus Curiae in No. 13–132, p. 11.

[snip]

And data encryption is even further afield. There, the Government focuses on the ordinary operation of a phone’s security features,apart from any active attempt by a defendant or his associates to conceal or destroy evidence upon arrest.

We have also been given little reason to believe that either problem is prevalent.

[snip]

Similarly, the opportunities for officers to search a password-protected phone before data becomes encrypted are quite limited. Law enforcement officers are very unlikely to come upon such a phone in an unlocked state because most phones lock at the touch of a button or, as a default, after some very short period of inactivity. See, e.g., iPhone User Guide for iOS 7.1 Software 10 (2014) (default lock after about one minute). This may explain why the encryption argument was not made until the merits stage in this Court, and has never been considered by the Courts of Appeals

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The Law and EO-Breaking Report

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One of the things I was most surprised about in the House Intelligence Authorization was a requirement that the Director of National Intelligence report violations of law or EO 12333 to the Intelligence Committees.

SEC. 510. ANNUAL REPORT ON VIOLATIONS OF LAW OR EXECUTIVE ORDER.

(a) Annual Reports Required.–The Director of National Intelligence shall annually submit to the congressional intelligence committees a report on violations of law or executive order by personnel of an element of the intelligence community that were identified during the previous calendar year.
(b) Elements.–Each report required under subsection (a) shall include a description of, and any action taken in response to, any violation of law or executive order (including Executive Order 12333 (50 U.S.C. 3001 note)) by personnel of an element of the intelligence community in the course of such employment that, during the previous calendar year, was determined by the director, head, general counsel, or inspector general of any element of the intelligence community to have occurred.
(b) Initial Report.–The first report required under section 510 of the National Security Act of 1947, as added by subsection (a), shall be submitted not later than one year after the date of the enactment of this Act.

The language was inserted into the bill by Jim Himes (who also added very laudable language requiring Senate approval for the NSA’s Inspector General).

The language appeared in the RuppRoge NSA “reform” bill; I presumed then that it was meant as false transparency — an effort to show off that just one NSA cleared individual  a year gets caught stalking an ex-girlfriend using its authorities.

And it may well be.

But I’m intrigued that Mike Rogers dedicated most of a Manager’s Amendment to the bill to tighten language from that section (in part limiting the reporting to actions “relating to intelligence activities”). And the hackish Ted Yoho submitted an amendment requiring a version of the report be shared with the House Oversight and Senate Homeland Security and Government Affairs Committees. I can’t imagine Yoho asking for it unless there were partisan hay to make out of it.

Now I want that report!

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Mike Rogers’ Senior NSA Retiree Working For Foreign Government Cooling Off

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I’m still working through the Intelligence Authorization and proposed amendments, which have been posted but which may or may not get a vote.

I’m particularly puzzled by an Amendment Mike Rogers submitted at the last minute, after having proposed it in committee but withdrawn it. The description of what he proposed reads,

Chairman Rogers offered an amendment to the amendment in the nature of a substitute to require a “cooling off” period before former Intelligence Community senior employees could work for a foreign government or a company controlled by a foreign government. The amendment would also establish notification and reporting requirements for former IC senior employees. He subsequently withdrew the amendment.

After having withdrawn that he submitted this amendment, but did not list it as a Manager’s Amendment (see below for the text).

Effectively, the Amendment seems to do two things. First, it requires high ranking intelligence community personnel (and this includes Congress, presumably up to and including Rogers himself) to tell their Agency when they start negotiating a new job with a company with foreign ties.

It would also prohibit those high ranking people from working for a company with foreign ties for a year — or two, if it pertains to something they worked on. It also requires former employees to disclose any payment they get from a foreign country or foreign owned company.

Now, this Amendment seems like a total no-brainer (indeed, the reporting requirements should be in place for all employers). It’s a measure to prevent top IC officials to go work for foreign governments.

So why didn’t this pass through committee? And why is Rogers submitting it now? What former high ranking official went to work for a foreign entity, raising the need for such a no-brainer law?

One more question: I wonder whether Israel will be included among the covered countries. Sure, it’s a close ally — precisely the kind that might hire away top IC talent. But it’s also an aggressive spy targeting the US. Precisely the kind of country that would make this kind of amendment even remotely controversial.

Update: Via Matt Stoller and billmon, this is presumably what this about:

A longtime adviser to the U.S. Director of National Intelligence has resigned after the government learned he has worked since 2010 as a paid consultant for Huawei Technologies Ltd., the Chinese technology company the U.S. has condemned as an espionage threat, The Associated Press has learned.

Theodore H. Moran, a respected expert on China’s international investment and professor at Georgetown University, had served since 2007 as adviser to the intelligence director’s advisory panel on foreign investment in the United States. Moran also was an adviser to the National Intelligence Council, a group of 18 senior analysts and policy experts who provide U.S. spy agencies with judgments on important international issues.

Though I’m not convinced Moran would be covered under this law. Plus, he disclosed his tie to Huawei.

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Republicans Refuse to Expand Climate Change Analysis in Intelligence Authorization

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I will have a few posts on the Intelligence Authorization that passed the House Intelligence Committee last week.  (h/t Steven Aftergood)

But before I talked about what made it into the bill, I’d like to highlight what isn’t in it: language requiring the Intelligence Community to consider climate change. The minority views reveal,

One of the bill’s weaknesses is that it does not do enough to enhance analysis of the national security implications of climate change, which the Intelligence Community refers to as environmental indications and warning. Whether by driving competition for scare [sic] resources, by opening the Arctic, or by increasing sea level and storm surge near our naval installations, climate change will have profound, destabilizing effects which need to be understood, anticipated, and accounted for. There may be disagreement about the causes of climate change, but the national security consequences are so significant that they cannot be ignored.

The intelligence community has been delving into this area in recent years (and appear to have renamed climate change “environmental indications and warning”). But thus far, the IC has stopped short of treating climate change as the threat to the US it clearly represents.

It appears Democrats on HPSCI tried to change that. And Republicans refused.

Someday the climate deniers will be held responsible for leaving our country vulnerable. And the Democrats will have left a record of those who should be held responsible.

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