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Decius
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"I don't think the report is true, but these crises work for those who want to make fights between people." Kulam Dastagir, 28, a bird seller in Afghanistan

FBI Drops Law Enforcement as 'Primary' Mission
Topic: Miscellaneous 7:35 am EST, Jan  7, 2014

"We rank our top 10 priorities and CT [counterterrorism] is first, counterintel is second, cyber is third," he said. "So it is certainly accurate to say our primary function is national security."

The FBI certainly plays an important role in Cyber, but I am surprised to hear that its a higher priority than organized crime, theft, and securities fraud. On the one hand, this could reflect the changing nature of crime - perhaps criminal gangs are making more money online than through traditional kinds of criminal activity. However, the statement I'm quoting here indicates that "cyber" is seen more as a national security issue than a law enforcement issue. Furthermore, even Foreign Policy seems to be concerned that a de-emphasis on financial crimes could be connected with the subprime mortgage crisis.

FBI Drops Law Enforcement as 'Primary' Mission


The domestic public policy of the United States is not a black bag job!
Topic: Miscellaneous 10:30 am EST, Jan  2, 2014

Another round of editorials about how Snowden should be judged has set off some discussion threads that touched a nerve with me. I'm cross posting my response to a series of comments that included this observation:

The only people who didn't know what they learned from Snowden are IDIOTS who didn't WANT to know. The general information that he released was already widely-known by anyone who cared to know. The specifics that he released, pose a very serious threat to our national security, by revealing delicate intelligence information, the presence of which on the internet, makes us all LESS SAFE.

There is a significant difference between THINKING that something is true and KNOWING that it is true. Many people thought the NSA was collecting all phone records, particularly after the USA Today published a story to this effect in 2006, but the President denied it and the phone companies denied it. As I'm sure you know, DNI Clapper was asked this question under oath in a Senate hearing in 2013 and he denied it.

Some people took the POTUS and the phone companies at their word, particularly when this word was given as testimony in public hearings where it is supposed to be illegal to lie. People who had faith in the integrity of our domestic political process should not be cast as "IDIOTS." Furthermore, everyone who wished to challenge the Constitutionality of this program in a court of law was denied standing to do so because they could not prove that their records were being collected. Therefore, you can count the federal court system among the "IDIOTS" who took the executive at its word.

There is no public policy that authorizes the program. The statutory argument here is that when Congress authorized the collection of only those business records that were "relevant" to a foreign intel or terrorism investigation, they really meant to authorize the collection of all business records everywhere all the time because everything is relevant. Several prominent experts in this policy area expressed surprise at this interpretation, including Orin Kerr, Benjamin Wittes, and Robert Chesney.

So why are we being told that everyone who paid attention to this policy area knew that this had been authorized all along? That is a lie and it is just as dishonest as Clapper's statements under oath in the Senate.

This meta-data collection program is not some targeted operation that should be kept secret from the American people. This is a major, domestic public policy matter that is far beyond the scope of the sort of things that government secrecy ought to encompass.

The American people have a right to decide whether or not we want all of this meta-data collection to happen, and we were robbed of that right through dishonesty on the part of this country's leadership. Furthermore, the American people have a right to expect that our public policy process should operate with integrity, and that the Pr... [ Read More (0.4k in body) ]


The meaning of the latest border search decision
Topic: Miscellaneous 9:20 am EST, Jan  1, 2014

I'm linking to an essay by Jennifer Granick, which I first saw last night through the haze of new years libations. The essay was the first news I'd heard of a ruling in the ACLU's case over border searches of electronics, and given that the ACLU appears to have lost the case, I was surprised by the apparent optimistic tone in Granick's essay. In the light of day I read the decision, and it actually does offer a ray of hope.

Basically, the court bought into the government's current argument about border searches, which is that there is some level of suspicion involved in forensic examination of laptops and other electronics, because the government doesn't have the resources to do it randomly, but creating a legal requirement for some standard of suspicion would be too much of an operational burden on the government.

Judge Korman then goes on to say, “I would agree with the Ninth Circuit that, if suspicionless forensic computer searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required.”  Korman just doesn’t think that’s factually true right now.

Thats an important qualification. It removes from the table the threat that automated forensic inspection of electronics will become operationalized at some point. It also pretty much puts CBP on notice that they should avoid the random use of forensic searches. These things are victories.

I'm still not entirely comfortable with the border search regime as it stands, but the fact is that the courts are going to do very little to carve out a right to privacy in this context absent action from the other two branches.

The meaning of the latest border search decision


Opinion: Would NSA surveillance have stopped 9/11 plot? - CNN.com
Topic: Miscellaneous 2:13 pm EST, Dec 30, 2013

The overall problem for U.S. counterterrorism officials is not that they don't gather enough information from the bulk surveillance of American phone data but that they don't sufficiently understand or widely share the information they already possess that is derived from conventional law enforcement and intelligence techniques.

Opinion: Would NSA surveillance have stopped 9/11 plot? - CNN.com


Three things I learned from the Snowden files » Pressthink
Topic: Miscellaneous 9:51 am EST, Dec 30, 2013

The mere fact of there being surveillance takes away liberty. The response of those who are worried about surveillance has so far been too much couched, it seems to me, in terms of the violation of the right to privacy. Of course it’s true that my privacy has been violated if someone is reading my emails without my knowledge. But my point is that my liberty is also being violated, and not merely by the fact that someone is reading my emails but also by the fact that someone has the power to do so should they choose. We have to insist that this in itself takes away liberty because it leaves us at the mercy of arbitrary power. It’s no use those who have possession of this power promising that they won’t necessarily use it, or will use it only for the common good. What is offensive to liberty is the very existence of such arbitrary power.

Three things I learned from the Snowden files » Pressthink


For surveillance program, a lifeline — and limbo - Jonathan Allen and Josh Gerstein - POLITICO.com
Topic: Miscellaneous 8:47 am EST, Dec 30, 2013

In short, the NSA can keep running the program for now. The president could soon alter it enough to render the legal cases against it moot. Congress has to make a decision in the next year about whether to extend it temporarily or permanently. And if it’s still in effect in 2015 and beyond, the high court is expected to make a final determination about its legality.

For surveillance program, a lifeline — and limbo - Jonathan Allen and Josh Gerstein - POLITICO.com


The Dawning of the Surveillance Age
Topic: Miscellaneous 8:07 am EST, Dec 30, 2013

I think that the court challenges to the NSA meta-data surveillance program are going to work out as follows. There are three key arguments. The statutory argument - the argument that the program is illegal, the Fourth Amendment argument - the argument that the program is an unreasonable search, and the First Amendment argument - the argument that the program places a chill upon the exercise of the right to freedom of association.

On the statutory front, I think the argument that the program is legal is pretty weak. However, the statue was also written in such a way that ordinary citizens are prohibited from raising statutory questions about it in court. I'm somewhat aghast that Judge Pauley saw fit to call the program legal, but he did so after saying that the ACLU had no standing to raise the issue anyway. I think higher courts will stop with the standing analysis. They will avoid a messy issue that they don't have to engage in.

On the Fourth Amendment front, I think that the courts will adopt the more traditional view of the Fourth Amendment presented in Judge Pauley's decision authorizing the surveillance program, rather than adopting the mosaic analysis that Judge Leon presented. There might be a minority dissent that embraces the mosaic approach, but that approach is just too new - it hasn't had the right amount of analysis and currency within the legal profession for the Supreme Court to use it to strike down a major government program. Furthermore, there are experts on the Fourth Amendment who have looked carefully at the mosaic approach and are advising the courts not to adopt it.

That leaves the First Amendment. I honestly believe that the First Amendment arguments against the meta-data surveillance program are stronger than the Fourth Amendment arguments. It seems clear that constant collection of data about people's associations would have a chilling effect on their exercise of their right to freedom of association. Furthermore, chilling effects are not a novel approach to First Amendment analysis, the courts have struck down laws based on chilling effects for many decades. The court need merely recognize the reality of the situation here and apply existing precedent properly in order to find that this program violates the First Amendment.

However, there are various reasons to think that this will not happen. The First Amendment issue doesn't seem to be as well understood within the legal profession and it hasn't been taken as seriously in general as I think it should. Judge Pauley wrote it off with a few paragraphs based on the idea that you can only speculate about whether or not your data will be analyzed by an NSA agent. I think that Pauley's argument is wrong - the certain and constant coll... [ Read More (0.4k in body) ]


Lauren Weinstein's Blog: Unintended Consequences: How NSA Revelations May Lead to Even More Surveillance
Topic: Miscellaneous 7:11 am EST, Dec 30, 2013

This then may be the ultimate irony in this surveillance saga. Despite the current flood of protests, recriminations, and embarrassments -- and even a bit of legal jeopardy -- intelligence services around the world (including especially NSA) may come to find that Edward Snowden’s actions, by pushing into the sunlight the programs whose very existence had long been dim, dark, or denied -- may turn out over time to be the greatest boost to domestic surveillance since the invention of the transistor.

By creating pressures for a publicly acknowledged, commercially operated, "privatized" but government mandated data collection and retention regime, the ease with which new categories of long-sought data could be added to this realm -- especially in the wake of a terrorist attack that could be used as an ostensible justification -- seems significant to say the least.

Without having to worry so much about surreptitious programs being discovered, the government can concentrate on making its public case for the mandated retention of ever more forms of data -- which is already typically being collected in the course of business -- while vastly reducing or eliminating firms’ flexibility to delete and destroy such data on a more rapid and privacy-friendly schedule.

Lauren Weinstein's Blog: Unintended Consequences: How NSA Revelations May Lead to Even More Surveillance


Imagine if Congress passed an encrypted law...
Topic: Miscellaneous 10:57 am EST, Dec 29, 2013

Imagine if Congress passed an encrypted law. Everyone could see that a bill had been passed, and the President had signed it into law, but the text was unintelligible - a bunch of random characters. There are a few people who have access to the decryption key, and know what the law says. The President knows, as do judges on the Foreign Intelligence Surveillance Court, but their proceedings are secret.

Members of Congress were given access to the plaintext, but only AFTER they passed the bill into law. Some members of Congress have never been given access to the plaintext, and its not clear how many members of Congress have actually read it.

The member of Congress who sponsored the bill has told a federal judge that when he voted for it, he hadn't seen the plaintext and he was under the impression that the plaintext said something different from what it actually says. As a result, several commentators have accused that member of Congress of failing in his duty to read the plaintext when it was made available to him.

A young person who works in the government got access to the plaintext, and released it to news media. Now everybody knows what the law says. Some hail that young person as a hero. Others are angry at him for revealing the plaintext, and point out that he has also revealed a large amount of other information, unrelated to this encrypted law, and some of that information undermines U.S. strategic interests.

Should the Supreme Court uphold this law?

A civil liberties group asked the Supreme Court to overturn the law, and they refused, without explanation.

Two lower courts have noted that the law was written in such a way that ordinary citizens aren't allowed to make arguments in court about the law. One of the judges wrote the following:

Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have gotten access to the plaintext of this law but for the unauthorized disclosures by Edward Snowden. Congress did not intend that ordinary people would ever learn what this law says. And the statutory scheme also makes clear that Congress intended to preclude suits by ordinary people even if they discovered the true meaning of the law. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets - including the text of encrypted laws - could frustrate Congress's intent.

This is the situation in which we find ourselves.


A blast from the past.
Topic: Miscellaneous 9:19 am EST, Dec 29, 2013

Justice William O. Douglas, dissenting - 1972:

The present controversy is not a remote, imaginary conflict. Respondents were targets of the Army's surveillance.... the surveillance was not casual, but massive and comprehensive...

Surveillance of civilians is none of the Army's constitutional business...

This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance.

When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image, depicted in Appendix III to this opinion.

APPENDIX III TO OPINION OF DOUGLAS, J., DISSENTING

Alexander I. Solzhenitsyn, the noted Soviet author, made the following statement March 30, 1972, concerning surveillance of him and his family (reported in the Washington Post, Apr. 3, 1972):

"A kind of forbidden, contaminated zone has been created around my family, and to this day, there are people in Ryazan [where Solzhenitsyn used to live] who were dismissed from their jobs for having visited my house a few years ago. A corresponding member of the Academy of Sciences, T. Timofeyev, who is director of a Moscow institute, became so scared when he found out that a mathematician working under him was my wife that he dismissed her with unseemly haste, although this was just after she had given birth and contrary to all laws. . . ."

"It happens that an informant [for his new book on the history of pre-revolutionary Russia] may meet with me. We work an hour or two, and, as soon as he leaves my house, he will be closely followed, as if he were a state criminal, and they will investigate his background, and then go on to find out who this man meets, and then, in turn, who that [next] person is meeting."

"Of course, they cannot do this with everyone. The state security people have their schedule, and their own profound reasoning. On some days, there is no ... [ Read More (1.3k in body) ]


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