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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 › Reflections on U.S. Economic Espionage, Post-Snowden
Topic: Miscellaneous 12:41 pm EST, Dec 10, 2013

Jack Goldsmith paints a picture of a US IC that targets private companies in order to collect intelligence - an Occidental Persistent Threat:

If the suggestion is that the USG does not generally collect against foreign firms, it is wrong... Given the USG’s broad economic interests, and the tight link between economics and national security, one can assume that NSA collection of commercial and economic information is very robust.

He then goes on the argue that the US should not back down in targeting these firms:

It will also be interesting to see, if this scale-back comes to pass, how the USG will credibly convey that it has scaled back its global snooping.  It is not obvious to me that it can credibly convey this information, even if the restraints were embodied in public law.  And that fact might be the best argument that it should not scale back, since little concrete credibility can be gained (for the USG or U.S. IT firms), and much can be lost on the intelligence front.

In other words, there is no point in passing laws that constrain our intelligence services because no one believes that we obey our own laws anyway.

If the US isn't going to back down in targeting private companies, than foreign countries aren't going to back down either. The result is going to be a cyber cold war in which everyone who uses the Internet is a target. Over the long term this will have dramatic effects on the architecture of computer networks and the openness of the Internet in general as a platform for collaboration. People are already removing data from foreign cloud services because they are worried that it is exposed. If their systems are constantly targeted by spies when they use the Internet, they are going to use the Internet less often.

Good fences make good neighbors. We aren't going to have a global village if we can't respect each others privacy. We may be standing at the high-water mark - the place where the great wave of human interaction and interconnectivity that has been unleashed over the past few decades by the development of the Internet has finally broken, and is beginning to roll back.

Lawfare › Reflections on U.S. Economic Espionage, Post-Snowden

Talking to Strangers: An Introvert Hits the Streets: The NSA according to NCIS: Just a Few Bad Apples
Topic: Miscellaneous 9:26 pm EST, Dec  9, 2013

Whoever in the NSA has drinks with Donald Bellasario is counting on Ellie.

The television show NCIS appears to be part of the NSA's post Snowden charm offensive.

I'm looking forward to the episode where an investigation of a team member's 4 year old call records awakens ghosts from their past.

Talking to Strangers: An Introvert Hits the Streets: The NSA according to NCIS: Just a Few Bad Apples

Lawfare › N.S.A.: “Not (So) Secret Anymore”
Topic: Miscellaneous 9:18 am EST, Dec  9, 2013

I have rearranged the content linked blog post in order to make a point:

Why didn’t we just amend FISA and do it under statute?  It would’ve been easy at that time.

The answer I got from intelligence professionals was that we could not amend FISA without a public debate on why we needed to do it, and the public debate would’ve tipped off some of our targets.

The true answer was that the Bush-Cheney administration hated FISA.  They thought it impinged on Executive authority, and they were intent on exercising untrammeled Presidential power under Article II of the Constitution – as if Congress didn’t also have power to regulate interstate and foreign commerce under Article I.

We keep getting told that bulk meta-data collection needed to be kept secret because if terrorists knew that this was going on, they would change tactics in order to avoid it. I don't think there is any truth to this assertion. Everyone knows that the government has the ability to monitor telecommunications. Any terrorist operative has to assume that his phone might be monitored. Everyone knows that the telecoms store meta data. That meta-data can be requested by the government.

What tactical advantage is conveyed to terrorists by informing them that data which they know to be stored in a phone company database is copied into another database that the government operates? The simple truth is that there is no tactical advantage conveyed by this information.

The reason these programs weren't publicly disclosed is because they are illegal, because the American people don't approve of them, and because the bulk-meta data program in particular may violate Constitutional guarantees of Freedom of Association.

If you're the sort of person who believes in the virtue of maximalization of state power, and you don't have a lot of respect for constraints upon that power, whether legal or Constitutional, than proceeding without regard for public policy is the kind of thing you're apt to do. We should stop trying to rationalize this behavior as having some practical motivation.

This was the problem from the beginning with the Bush/Cheney approach to the GWOT. What is unfortunate, is that Obama ran as an alternative to that approach, and yet we find that he does not represent an alternative. In this respect Obama is far more sinister a character than Bush & Cheney. At least the conservatives are open about their embrace of totalitarianism.

Lawfare › N.S.A.: “Not (So) Secret Anymore”

Don’t Sanitize Nelson Mandela: He’s Honored Now, But Was Hated Then
Topic: Miscellaneous 2:08 pm EST, Dec  6, 2013

As with King, it is this subversive aspect of Mandela’s legacy that is most in danger of being erased as he enters America’s pantheon of sanitized moral icons. But it is precisely the aspect that Americans most badly need. American power and human freedom are two very different things. Sometimes they intersect; sometimes they do not. Walking in Nelson Mandela’s footsteps requires being able to tell the difference.

Don’t Sanitize Nelson Mandela: He’s Honored Now, But Was Hated Then

RE: everyone quits so much
Topic: Miscellaneous 4:54 pm EST, Dec  4, 2013

noteworthy wrote:
Chris Loux:

People don't quit companies -- they quit managers.

I don't see that quote in the underlying article, but I've heard it before, and I want to say that I think thats utter bullshit. Its one of those memes that becomes popular with executive managers because it makes them feel good about themselves and sends a message that they want to send.

It makes them feel good because it makes them blameless - when talented people leave their company, its not REALLY because of the company's direction or the overall work environment, regardless of what they are saying when they go out the door. Executives can repeat this meme to remind themselves that the little people they lead don't really understand big things like corporate direction and strategy and the real reason they are leaving is because their first line manager isn't doing his job.

Corporate executives expect a certain amount of incompetency from first line management, because they think of themselves as being smarter than and better than first line managers, and this meme provides them a little confirmation of that feeling, every time the organization looses a talented person. It also allows them to ignore criticism of corporate strategy that is coming from below, especially when that criticism is so dire that people are looking for another job. In that sense, this meme is the sort of rationalization that bad leaders wrap themselves in as the ship goes down. It serves to isolate them from thinking about criticism and increases the rate of descent.

It also sends a message that they want to send - that first line managers, not executives, are at fault if the company cannot retain talented people and first line managers should feel that responsibility and fear the consequences of failure. It enables executives to put first line managers where they want them - with their backs against the wall, bearing all of the responsibility for what happens, but with no power to effect change.

I would line it up against: "Vision without Execution is Hallucination," alternatively attributed to either Edison or Einstein or Henry Ford, which is generally used in a "you employees better get to work on my vision like that smart guy once said" kind of way by executives. Anyone with two brain cells to rub together ought to realize that none of those people would have said something like that, and its absolutely cringe worthy to see such a modern phrase attributed to an ancient person by someone who expects to be taken seriously as a leader. The quote actually came from IBM executive Danny Sabbah in 2005.

RE: everyone quits so much

Lawfare › The Foreign Policy Essay: Erik Gartzke on “Fear and War in Cyberspace”
Topic: Miscellaneous 11:35 am EST, Dec  2, 2013

Cyberwar is a weapon of the strong, not the weak.  States with capable conventional militaries or economic clout are best positioned to exploit windows of opportunity created by cyber attack.  Capable states are also best equipped to deter or defend against cyber attack through asymmetric threats or uses of force.  The internet age thus increases, not undermines, existing hierarchies.

Lawfare › The Foreign Policy Essay: Erik Gartzke on “Fear and War in Cyberspace”

Antonin Scalia expects NSA wiretaps to end up in court - Associated Press -
Topic: Miscellaneous 5:54 pm EST, Dec  1, 2013

Scalia said the high court originally ruled that there were no constitutional prohibitions on wiretaps because conversations were not explicitly granted privacy protection under the Fourth Amendment, which protects against Americans against unreasonable search and seizure of "their persons, houses, papers, and effects."

That 1928 opinion, in Olmstead v. U.S., was overturned nearly 40 years later by the Warren court, which found, Scalia said, "there's a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage."

"The consequence of that is that whether the NSA can do the stuff it's been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed," he said.

Sure sounds like a guy who really cares about Constitutional rights and takes his obligation to adjudicate them seriously.

This idea that the courts are the least equipped body to address these issues is "blah, blah, blah, garbage." The fact is that individual rights supposedly protected by the Constitution were not taken seriously in this country until the Supreme Court started taking them seriously.

The Court has a better process of evaluating issues related to Constitutional rights than the other two branches, because the members of the court are experts on the Constitution, and the court has a formal process for evaluating different perspectives on issues that makes it difficult to ignore inconvenient information or disfavored points of view.

If only the hearings and testimony that occur in the Senate were taken half as seriously as the filings that the Supreme Court receives. In fact they are theater, in which predetermined outcomes are justified through stacked witness lists and phony questions.

We know that formal, adversarial processes produce carefully considered results - we should leverage that knowledge more, not less.

Antonin Scalia expects NSA wiretaps to end up in court - Associated Press -

Americans are blinded by partisanship
Topic: Miscellaneous 9:02 am EST, Nov 25, 2013

After screaming for years about the PATRIOT Act...

Democrats, protective of the Obama administration, are less critical of the NSA; 37 percent say it “goes too far,” for example, vs. 47 percent of Republicans and 51 percent of independents. And Democrats are a broad 18 points less likely than Republicans and independents to think the NSA intrudes unjustifiably on some Americans’ privacy rights.

On the other hand..

Conservatives, and especially strong conservatives, are much more likely than moderates or liberals to think the NSA intrudes on privacy without justification.

I wonder what those conservatives thought about the NSA back in 2006...

In 2006, 75 percent of Republicans said the NSA program was "acceptable."

Most Americans trust the leaders of the party they are affiliated with, and their opinion on civil liberties issues flip-flops depending on whether or not a member of their party is in the Whitehouse. This is why we can't have a rational political dialog about anything. People in America believe what their party leadership tells them to believe.

Americans are blinded by partisanship

The Lawyer Game
Topic: Miscellaneous 7:32 am EST, Nov 22, 2013

The Lawyer Game has three kinds of players:

1. Honest Lawyers
2. Dishonest Lawyers
3. Clients

At the start of the game, each Client is assigned to a Lawyer and each Lawyer only serves a single Client.

The rounds of the game have three phases, an Advice Phase, a Judgement Phase, and a Hiring Phase.

During the Advice Phase, each Client asks their Lawyer a question. The questions have yes or no answers. Dishonest Lawyers always answer yes. Honest Lawyers answer yes 50% of the time and no 50% of the time.

Each time a Client receives a yes answer, the Client receives a point. Clients do not receive a point if they receive a no answer.

When the Advice Phase is complete, the game enters the Judgement Phase. During the Judgement Phase a certain percentage of the Clients who received a yes answer from a Dishonest Lawyer will be Punished. When a Client is Punished, it loses all of its points.

When the Judgement Phase is over, the game enters the Hiring Phase. During the Hiring Phase, each Client may choose to hire a different Lawyer. Clients may choose to hire any Lawyer they want, but they may only hire one Lawyer at a time. Lawyers may serve an unlimited number of Clients.

The game continues for a fixed number of rounds. The objective of Clients is to accumulate as many points as possible.

The most important variable in game play is the percentage of Clients of Dishonest Lawyers who are Punished during the Judgement Phase. The most effective Client strategy will depend on this percentage. If the risk of being Punished is high, Clients will accumulate more points over the long term by hiring Honest Lawyers. If the risk of being Punished is low, Clients will accumulate more points over the long term by hiring Dishonest Lawyers.

The game is meant to illustrate the economic incentives that influence lawyers, particularly when they are being asked questions that are open to interpretation. If the risk associated with providing bad advice is low, lawyers are rewarded for telling their clients what they want to hear. In the low Punishment scenario, Dishonest Lawyers will accumulate large numbers of Clients, and Honest Lawyers will not.

A slightly more complicated version of the game can be crafted by allowing Dishonest Lawyers to answer "no" a certain percentage of the time, in exchange for a comparable reduction in the risk that their Clients will be Punished. This variation could identify optimal strategies for Dishonest Lawyers when various levels of Punishment are occurring.

Now, imagine a real world scenario where you are a lawyer, you are being asked by your client whether or not it is legal for them to do something that they want to do, there is no risk of your client being punished for it, and your advice will never be read by anyone else. This scenario is the FISA court.

Some say that if you were paying attention to U.S. public policy, you would have already known everything that Edward Snowden revealed.
Topic: Miscellaneous 8:38 am EST, Nov 20, 2013

Kurt Eichenwald: Contributing editor, Vanity Fair; senior writer, Newsweek; New York Times bestselling author.

snowdens leak did nothing but reveal some details about what anyone who paid attention 2 FISA amendment debate already knew

Trevor Timm: EFF at 12:58 PM on Nov 18th, 2013

Later today, the govt will pretend they're voluntarily releasing more NSA and FISA docs. They're actually being forced to by @EFF's lawsuit.

Director of National Intelligence at 8:26 PM on Nov 18th, 2013

Release of these documents reflects the Executive Branch’s continued commitment to making information about this intelligence collection program publicly available when appropriate and consistent with the national security of the United States.

Orin Kerr, Law Professor at 2:35 AM on Nov 19, 2013

Yesterday afternoon, the DNI declassified an 87-page FISC opinion authored by Judge Kollar-Kotelly that had allowed a bulk Internet metadata collection...

I’ve read the opinion, and I find its analysis quite strange...

The opinion largely overlooks the statutory clues that the pen register statute was written for the micro scale, not the macro scale. In particular, key words of the pen register statute are written in the singular not the plural. The statute authorizes the judge to issue an order requiring the installation of “a” pen register to monitor “the person who is the subject of the investigation.” This is written in the singular, suggesting that each pen register requires a subject.

Judge Kollar-Kotelly hints at this problem around pages 21-24, but as far as I can tell she never dwells on it or addresses the issue squarely. That seems like a surprising oversight for a statute based on mere certification.

If the statute allows bulk collection of all Internet metadata, it allows bulk collection of all Internet metadata purely on the AG’s say-so with no review by the FISC. And because the criminal law version of the pen register statute uses the same language but allows any AUSA to get a pen register order, the court’s reasoning would seem to allow the same bulk collection of all Internet metadata simply on the say-so of any random AUSA.

Is that really what Congress authorized?

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