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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

Lawfare › The Shameful Revisionism of Rep. James Sensenbrenner
Topic: Miscellaneous 9:52 pm EST, Nov  3, 2013

Sensenbrenner, rather, is almost surely something else: A politician who learned this year that the public now knows what he has long known or should have known about how the government was using a law he helped to write. He has been dishonorably protecting himself ever since by feigning ignorance and by sloughing off responsibility for his own policy choices onto others.


Lawfare › The Shameful Revisionism of Rep. James Sensenbrenner

Lawfare › The Legislative Dynamics of FISA Reform
Topic: Miscellaneous 9:50 pm EST, Nov  3, 2013

This combination of broad agreement over lots of important little stuff, deep disagreement over the big stuff, and default rules that favor different sides at different times sets up a fascinating and complicated legislative dynamic in which both sides have many cards to play but also big potential downside risk to not reaching some kind of deal. They thus may favor structurally some sort of compromise, though the ultimate choice between having a 215 program and not having a 215 program is—as I said—pretty binary. 

Lawfare › The Legislative Dynamics of FISA Reform

Topic: Miscellaneous 10:23 am EDT, Nov  2, 2013

Gregory Clark:

The surprising thing about the National Security Agency spy scandal reports oozing out of Washington is that people are surprised.

Kelly Burdick:

Is it possible that these people just weren’t paying attention?

Professor Ed Felton:

It is not surprising, then, that intelligence and law enforcement agencies often turn first to metadata. Examining metadata is generally more cost-effective than analyzing content.

September, 2003:

Section 215 is one of the surprising lightning rods of the Patriot Act, engendering more protest, lawsuits, and congressional amendments than any other.

The DOJ argued to Congress that 215 is no big deal, since grand juries could always subpoena private records in the past.

To be sure, the ACLU is doing a bit of fearmongering when it says the DOJ can rifle through your records if they don't like what you're reading. If you're a U.S. citizen and not otherwise suspicious, you're probably safe, so long as all you do is read.

DOJ: 2007 - from A Review of the FBI's Use of Section 215 Orders (emphasis mine)

This standard, referred to as the relevance standard, permits the FBI to seek information concerning persons not necessarily under investigation but who are connected in some way to a person or entity under investigation...

As part of this review, Congress directed the OIG to identify "any noteworthy facts or circumstances concerning the use of business records requests, including any illegal or improper use of the authority..."

In the second instance of improper use, the FBI inadvertently collected certain telephone numbers pursuant to a pen register/trap and trace order because the telephone company did not advise the FBI that the target had discontinued using the telephone line until several weeks after the fact. The FBI identified the improperly collected information, removed it from its databases, and provided it to OIPR.

DOJ: 2013

Unlike ordinary criminal investigations, the sort of national security investigations with which Section 215 is concerned often have a remarkable breadth—spanning long periods of time, multiple geographic regions, and numerous individuals, whose identities are often unknown to the intelligence community at the outset. The investigative tools needed to combat th... [ Read More (0.5k in body) ]

We Are All Foreign Nationals — Even Orin Kerr : Just Security
Topic: Miscellaneous 7:59 pm EDT, Nov  1, 2013

In short, there’s a reason Article 17 of the International Covenant on Civil and Political Rights says “No one shall be subjected to arbitrary or unlawful interference with his privacy.”  It doesn’t say “no citizen.”  It says “no one.”  We need to do a lot of work if we are to begin to honor that commitment.

We Are All Foreign Nationals — Even Orin Kerr : Just Security

How Edward Snowden Escalated Cyber War - Newsweek
Topic: Miscellaneous 4:52 pm EDT, Nov  1, 2013

"Certainly no one cares anymore about our whining about Chinese espionage. The time we had for making the case on that is long gone. Internationally, I don't see how we recover.''

This article argues that Snowden's focus on International espionage has undermined diplomatic efforts to address Chinese spying. The unstated subtext is that the Snowden affair might be a response to Mandiant's APT1 report.

How Edward Snowden Escalated Cyber War - Newsweek

My letter to my Senators regarding the FISA Improvements Act
Topic: Miscellaneous 10:33 am EDT, Nov  1, 2013

Mr Senator, I am writing to urge you not to support the FISA Improvements Act that recently cleared the Senate Intelligence Committee. The text of the Act would authorize the bulk collection of Internet meta-data, and not just phone records. Internet meta-data does not just record who I have talked to, it also records what web sites I have visited. This sort of meta-data is not normally stored by Internet Service Providers for extended lengths of time and doing so would be a significant change. People do much of their consumption of news and information via the Internet today. If the government begins keeping records of everything that everyone is reading, this will have negative consequences down the road.

Respectfully, Tom Cross

Sen. Dianne Feinstein’s New NSA Bill Will Codify and Extend Mass Surveillance of Americans | Electronic Frontier Foundation
Topic: Miscellaneous 10:32 am EDT, Nov  1, 2013

Sen. Dianne Feinstein, the chairman of the Senate Intelligence Committee and one of the NSA’s biggest defenders, released what she calls an NSA “reform” bill today.

Don’t be fooled: the bill codifies some of the NSA’s worst practices, would be a huge setback for everyone’s privacy, and it would permanently entrench the NSA’s collection of every phone record held by U.S. telecoms. We urge members of Congress to oppose it.

Sen. Dianne Feinstein’s New NSA Bill Will Codify and Extend Mass Surveillance of Americans | Electronic Frontier Foundation

New FAA PED Regulations are being misreported by the press
Topic: Miscellaneous 12:56 pm EDT, Oct 31, 2013

The new FAA guidelines regarding PEDs are an improvement, but unfortunately they are being misreported by the press.

The actual guideline is that PEDs can be left on in good visibility conditions, but pilots can ask people to shut them off in fly-by-instrument situations when electromagnetic interference could be catastrophic. Under the circumstances thats a good balance as reported incidents of interference are rare, but unfortunately most of the news media reports aren't mentioning that detail, and are instead spewing technically inaccurate nonsense about airplanes being impervious to interference, thus setting the stage for inevitable arguments from passengers in the future when people are asked to turn PEDs off on a rainy day.

Here is what the FAA's FAQ about the new reg says. (You can read the whole FAQ by clicking through the link below.)

At certain times — for example, a landing in reduced visibility — the Captain may tell passengers to turn off their devices to make absolutely sure they don't interfere with onboard communications and navigation equipment.

A few relevant facts:

1. All electronic devices emit electromagnetic fields. All. Even if they don't have a transmitter or the transmitter is off or the thing is in "airplane mode." There are other emissions at other frequencies. Digital electronics emit powerfully at their clock cycle frequency, for example.

2. Interference between a device and an airplane is some combination of the device malfunctioning and the airplane shielding being damaged. Both of these things can occur as devices and airplanes age, but the perfect combination is rare, which means that most of the time most devices don't interfere. This is why the plane didn't crash that time you left your device on accidentally.

3. It does not follow from that fact that your device didn't cause that plane to crash that time you accidentally left it on that no device could ever cause any plane to crash under any circumstances.

New FAA PED Regulations are being misreported by the press

Excerpts of Rumsfeld Testimony (
Topic: Miscellaneous 5:42 pm EDT, Oct 29, 2013

We're functioning in a - with peacetime restraints, with legal requirements in a wartime situation, in the information age, where people are running around with digital cameras and taking these unbelievable photographs and then passing them off, against the law, to the media, to our surprise, when they had not even arrived in the Pentagon.

Abu Ghraib

Excerpts of Rumsfeld Testimony (

Topic: Miscellaneous 11:06 pm EDT, Oct 28, 2013

Ed Felton's clear evisceration of the government's claims about the necessity of the NSA meta-data program is an example of the reason I like the judicial process - it enables a discussion of issues in a forum where there isn't as much room for bullshit as there is in the legislature.


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