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Don't worry, we only spy on terrorists (worry, because everyone we don't like is a "terrorist")

Bruce Schneier has a great essay about the fact that NSA spying apologists say that dragnet surveillance is limited to cases of terrorism: but "terrorism" is now synonymous with "whatever it is people we want to spy on are doing."

Back in 2002, the Patriot Act greatly broadened the definition of terrorism to include all sorts of "normal" violent acts as well as non-violent protests. The term "terrorist" is surprisingly broad; since the terrorist attacks of 9/11, it has been applied to people you wouldn't normally consider terrorists.

The most egregious example of this are the three anti-nuclear pacifists, including an 82-year-old nun, who cut through a chain-link fence at the Oak Ridge nuclear-weapons-production facility in 2012. While they were originally arrested on a misdemeanor trespassing charge, the government kept increasing their charges as the facility's security lapses became more embarrassing. Now the protestors have been convicted of violent crimes of terrorism -- and remain in jail.

Meanwhile, a Tennessee government official claimed that complaining about water quality could be considered an act of terrorism. To the government's credit, he was subsequently demoted for those remarks.

Mission Creep: When Everything Is Terrorism (Thanks, Bruce!)

EFF files huge lawsuit against NSA on behalf of broad coalition

The Electronic Frontier Foundation has filed suit against the NSA for its surveillance program on behalf of a wide, diverse set of actors, from the First Unitarian Church of Los Angeles to the Bill of Rights Defense Committee, Calguns Foundation, Greenpeace, Human Rights Watch, People for the American Way, and TechFreedom.

Robot-voice Obama explains the difference between his administration and Bush's

Here's an Xtranormal Obama explaining the difference between his NSA spying and Bush's NSA spying:

Another important difference between my administration and the Bush administration is that when the Bush administration secretly spied on you, the Bush administration could not point to a single judge willing to say their program was legal. We, on the other hand, can point to such a judge. I'm not going to tell you who this judge is, or why he or she thinks our program is legal. If I did that, it would, obviously be harder for me to convince you that the program is legal. Instead, I'm just going to tell you that we secretly found one judge who was willingly to secretly say that it was legal for us to collect all of your data....

President Obama Address NSA Surveillance Concerns (via Techdirt)

NSA's catch-22: we can't tell you anything, because everything we do is a secret

Clayton Seymour, a Navy vet, was outraged to discover that his Freedom of Information Act request to the NSA to see his file was rejected because telling him what information they'd gathered in secret would expose their secret information-gathering techniques. Obama's 2009 Executive Order 13526 requires all government agencies to make all records public, other than in exceptional circumstances. The NSA has effectively crammed all of its information into an exceptional circumstance because to disclose anything would lead to disclosure of its methods. This is the basis on which it is rejecting all FOIA requests.

Podcast: reasons to care about surveillance in the era of Prism

Here's a read-aloud of my recent Guardian column, "The NSA's Prism: why we should care," which sets out the reasons for caring about the recent revelations of bulk, warrantless, suspicionless, indiscriminate surveillance. It's mastered by John Taylor Williams, and you can hear it (and more) in my podcast feed.

Privacy International sues UK govt over Tempora

Privacy International has filed a lawsuit in the UK against the government, claiming that the GCHQ spy-agency's Tempora programme violates UK spying regulations. The programme's existence was leaked by the NSA whistleblower Edward Snowden, whose documents showed that GCHQ was harvesting all communications on undersea cables that landed on UK shores and storing it for 30 days.

EPIC wants to sue NSA at the Supreme Court

The Electronic Privacy Information Center (EPIC) has asked the Supreme Court to allow it to sue the US government over NSA spying; EPIC argues that only the Supreme Court has jurisdiction over the secret Foreign Intelligence Surveillance Court, and so they should be able to start with the Supremes and skip the lower courts.

Secret rulings from America's shadow Supreme Court legalizes spying in one-sided hearings

America's 11-judge Foreign Intelligence Surveillance Court (FISC) has made more than a dozen classified rulings that vastly expanded the powers of America's spy agencies, operating under an obscure legal doctrine called "special needs." Under this doctrine, established in 1989 in a Supreme Court case over drug testing railway workers, a "minimal intrusion on privacy" is allowed in order to help the state mitigate "overriding public danger." FISC's rulings have widened this ruling to allow for wholesale spying in the name of preventing "nuclear proliferation," as well as terrorism. The NYT calls this a "shadow Supreme Court" but notes that FISC proceedings only hear from the government -- no one presents alternatives to the government's arguments. Much of the expansion of surveillance turns on whether metadata collection is intrusive (I think it is):

The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

Under the new procedures passed by Congress in 2008 in the FISA Amendments Act, even the collection of metadata must be considered “relevant” to a terrorism investigation or other intelligence activities.

The court has indicated that while individual pieces of data may not appear “relevant” to a terrorism investigation, the total picture that the bits of data create may in fact be relevant, according to the officials with knowledge of the decisions.

In Secret, Court Vastly Broadens Powers of N.S.A. [Eric Lichtblau/NYT]

(via Hacker News)

Explaining metadata collection with Alan Turing, Theresa May and Winston Churchill

My latest Guardian column is a one-act historical drama about metadata, starring Winston Churchill, Alan Turing and UK Home Secretary Theresa May:

May: Mr Turing and his colleagues have laboured hard with every hour that God has sent, but try as they might, they can extract nothing of use from the Enigma cipher.

Churchill: (roaring) Nothing? All these years, all this work, and you have nothing?

May: Well, not precisely nothing, prime minister. The lads have got far enough that they are able to extract "meta-data," but I stress again that this is of no strategic import and would in no way help us to compromise the foe.

Churchill: Meta-data? Tell me more of this meta-data? Is it a Greek word?

(May turns to Turing, who wipes his palms on his trousers)

Metadata – a wartime drama

How to talk to the NSA when they come recruiting

When the NSA came recruiting at a University of Wisconsin language program, the students and teachers pushed back, hard. The transcribed recording of their discussion is a model for the dialog that we should be having with our spooks everywhere we encounter them: "So, 'adversary' is basically what any of your so-called 'customers' as you call them -- which is also a strange term to use for a government agency -- decide if anybody wants, any part of the government wants something about some country, suddenly they are now internally considered or termed an 'adversary.' That’s what you seem to be saying."

US Army adds The Guardian to its internal censorwall

Lest its personnel find out about the ways in which the NSA has gone on a campaign of lawlessness, the US Army has begun to censor The Guardian's website on its networks.

Ecuador calls Congressional Snowden threats blackmail, backs out of US trade agreement

After US powerful US members of Congress started to threaten Ecuador with trade sanctions should it offer asylum to the NSA whistleblower Edward Snowden, Ecuador pre-emptively canceled its trade agreement with the US, backing out of the Andean Trade Preference Act. They called the US threats blackmail. ""Ecuador does not accept pressure or threats from anyone, nor does it trade with principles or submit them to mercantile interests, however important those may be." -Fernando Alvarado, communications secretary, government of Ecuador.

Washington Statement: activists around the world ask the EU for model privacy rules

Activists from around the world have signed onto the Washington Statement, in which they call upon the EU to pass strong, meaningful privacy legislation, pushing back against aggressive corporate lobbying. In the wake of NSA leaks about Prism and other mass-surveillance programs, they see a good EU privacy directive as a lighthouse for good privacy policy around the world. You can sign on too, just by leaving a comment on the site:

We therefore call on EU policy makers:

• to oppose corporate lobbying and to prevent the erosion of privacy protections in the European Union,
• to set a high standard and ensure that EU data protection law sets a global standard for privacy;
• to ensure specific rights of individuals are being preserved, such as explicit consent to personal data processing, the right to access, rectification and certain rights to erasure that are in the existing European legal framework,
• to ensure basic principles that would help protect citizens against untargeted and disproportionate surveillance measures, such as data minimization, purpose limitation, limited storage periods and notification procedures,
• to ensure that personal data processed in the EU is not transferred to third country authorities without a determination that there are adequate privacy safeguards.

The Washington Statement" In Support of Data Protection

Obama (candidate) vs Obama (president) on NSA spying

Here's Obama the Presidential Candidate debating Obama the Second Term President on surveillance; note how Obama the younger smashes through the cheap "privacy vs security" rhetoric of Obama the elder, showing the man for a thoroughly co-opted cynic who'll let the nation's spooks run wild. Here's Mike Masnick's take:

Not only is there a massive difference in what's being said, but also in how it's being said. The Candidate Obama spoke clearly, directly strongly and without equivocation about protecting civil liberties and not giving up our freedoms. President Obama's speech, on the other hand, sounds weak, vague and unpresidential in comparison.

Candidate Obama Debating President Obama On Civil Liberties vs. Government Surveillance

US charges NSA whistleblower Snowden with espionage, asks Hong Kong to detain him


Image: The Guardian

In a sealed criminal complaint announced late Friday, federal prosecutors have charged Edward Snowden, a former National Security Agency contractor who leaked a documents about the top-secret Prism surveillance programs, with espionage, theft and conversion of government property. The US government is asking the government of Hong Kong to detain Snowden on a provisional arrest warrant. The sealed complaint was filed in the Eastern District of Virginia, where Booz Allen Hamilton, his former employer, is based. The district has a history of prosecuting national security cases.

Read the rest

NSA boss wants companies to be immunized from liability if they follow illegal orders from the NSA

General Keith Alexander, who is in charge of the NSA, has asked Congress to pass legislation immunizing companies from liability if they break the law following NSA spying orders. While on its face this seems reasonable -- if the government orders you to do something, it seems unfair for its judicial branch to prosecute you -- it's really a tacit admission of NSA lawbreaking. Much more reassuring would be a promise from Alexander that his agency will limits its requests of companies to strictly lawful behavior, and a Congressional law immunizing companies that turn down NSA requests if they have a good faith basis for believing that the NSA is asking them to break the law.

Otherwise, as Mike Masnick points out, this is an invitation for companies and the NSA to conspire together for a campaign of lawless, criminal spying:

And, of course, rather than narrowly target this immunity, it appears that Alexander would like it as broad as possible.

One former White House aide told POLITICO that Alexander has been asking members of Congress for some time to adopt bill language on countermeasures that’s “as ill-defined as possible” — with the goal of giving the Pentagon great flexibility in taking action alongside Internet providers. Telecom companies, the former aide said, also have been asking Alexander for those very legal protections.

Given the revelations of the past few weeks, this seems like the exact wrong direction for Congress to be heading. We should want companies to push back against overaggressive demands from the government for information. Giving them blanket immunity would be a huge mistake and only enable greater privacy violations.

NSA Boss Asks Congress For Blanket Immunity For Companies That Help NSA Spy On Everyone

NSA leaks forcing more official transparency

Trevor Timm wrote a piece for Freedom of the Press Foundation about how much more we're learning not just from the NSA leaks themselves, but from the response to those leaks. "Both companies and the government have been forced into a corner where their only move is to release more information they previously fought to keep secret," Trevor says.

What would it cost to store all of America's phone calls?

The Internet Archive's Brewster Kahle has done the math on building a data-center that could hold all of America's voice-calls, and concluded that this it wouldn't quite fit within the $20M price-tag reported for Prism, though it's not far off.

These estimates show only $27M in capital cost, and $2M in electricity and take less than 5,000 square feet of space to store and process all US phonecalls made in a year.   The NSA seems to be spending $1.7 billion on a 100k square foot datacenter that could easily handle this and much much more.    Therefore, money and technology would not hold back such a project– it would be held back if someone did not have the opportunity or will.

Another study concluded about 4x my data estimates others have suggested the data could be compressed 10:1, and the power bill would be lower in Utah.  

Here's a shared spreadsheet with Kahle's calculations.

Cost to Store All US Phonecalls Made in a Year in Cloud Storage so it could be Datamined

UPDATED: NSA admits it listens in on US phone calls and reads US emails without a warrant


It's a pity that so many senators skipped the NSA's classified briefing on its secret spying program, because if they'd attended, they'd have heard something shocking: the NSA can and does access the content of emails and phone calls of Americans on US soil without a warrant. It's an important insight into the President's secret interpretation of FISA, one of America's most notorious spying laws.


Update: Rep. Nadler has denied that this is what he meant: “I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans’ phone calls without a specific warrant.”

However, he does not deny that the NSA can access the contents of the call, not ruling out the possibility of the NSA using contractors, or speech-to-text, or some other indirect method, to accomplish "listening in" by other means.


Rep. Jerrold Nadler, a New York Democrat, disclosed this week that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed "simply based on an analyst deciding that."

If the NSA wants "to listen to the phone," an analyst's decision is sufficient, without any other legal authorization required, Nadler said he learned. "I was rather startled," said Nadler, an attorney and congressman who serves on the House Judiciary committee.

Not only does this disclosure shed more light on how the NSA's formidable eavesdropping apparatus works domestically, it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.

Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, Nadler's disclosure indicates the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.

The NSA is supposed to only spy on us dirty foreigners. As sketchy as it is to divide the world into the spied-upon and the un-spied-upon, it is nevertheless the law, and should be comforting to those the latter category. This revelation confirms that the Obama administration has doubled down on GW Bush's project of lawless, authoritarian surveillance, treating the Constitution and Congress's laws as mere formalities. So much for "the most transparent administration in history."

NSA admits listening to U.S. phone calls without warrants [Declan McCullagh/Cnet]

Senators skip classified briefing on NSA spying so they can fly home for Father's Day weekend

A briefing offered to US senators by senior intelligence officials on the NSA surveillance programs "failed to attract even half of the Senate, showing the lack of enthusiasm in Congress for learning about classified security programs." [TheHill.com]

The secret behind NSA's Prism program? "Even bigger data seizure."

Amy Fiscus of the AP tweets, "Worried by Prism? It's actually part of a bigger effort. Not worried by Prism? It's actually part of a bigger effort." She's referring to this AP story, a good explainer of Prism and the NSA practices that preceded it post-9/11.
Inside Microsoft, some called it "Hoovering" - not after the vacuum cleaner, but after J. Edgar Hoover, the first FBI director, who gathered dirt on countless Americans. This frenetic, manual process was the forerunner to Prism, the recently revealed highly classified National Security Agency program that seizes records from Internet companies.

Related: In Vanity Fair, Eichenwald writes "I can't stand it any more," and details what he claims are "falsehoods" in coverage of the surveillance scandal, to date.

Why you should care about surveillance

I got tired of people savvying me about the revelations of NSA surveillance and asking why anyone would care about secret, intrusive spying, so I wrote a new Guardian column about it, "The NSA's Prism: why we should care."

We're bad at privacy because the consequences of privacy disclosures are separated by a lot of time and space from the disclosures themselves. It's like trying to get good at cricket by swinging the bat, closing your eyes before you see where the ball is headed, and then being told, months later, somewhere else, where the ball went. So of course we're bad at privacy: almost all our privacy disclosures do no harm, and some of them cause grotesque harm, but when this happens, it happens so far away from the disclosure that we can't learn from it.

You should care about privacy because privacy isn't secrecy. I know what you do in the toilet, but that doesn't mean you don't want to close the door when you go in the stall.

You should care about privacy because if the data says you've done something wrong, then the person reading the data will interpret everything else you do through that light. Naked Citizens, a short, free documentary, documents several horrifying cases of police being told by computers that someone might be up to something suspicious, and thereafter interpreting everything they learn about that suspect as evidence of wrongdoing. For example, when a computer programmer named David Mery entered a tube station wearing a jacket in warm weather, an algorithm monitoring the CCTV brought him to the attention of a human operator as someone suspicious. When Mery let a train go by without boarding, the operator decided it was alarming behaviour. The police arrested him, searched him, asked him to explain every scrap of paper in his flat. A doodle consisting of random scribbles was characterised as a map of the tube station. Though he was never convicted of a crime, Mery is still on file as a potential terrorist eight years later, and can't get a visa to travel abroad. Once a computer ascribes suspiciousness to someone, everything else in that person's life becomes sinister and inexplicable.

The NSA's Prism: why we should care

Glenn Greenwald's keynote at Freedom to Connect 2013

Joly sez, "On March 4-5 2013 the Internet Society's North America Bureau webcast the Freedom to Connect 2013 conference in Washington DC. One keynote speaker was Glenn Greenwald, who has recently come to international attention as the journalist who broke the NSA surveillance story. In his hour long speech, he talks about Aaron Swartz, the imbalance of justice, the growth of the surveillance state, the nature of power in the digital age, and its implications for Internet freedom. There are a couple of small glitches in the recording, for which we apologize."

VIDEO: Glenn Greenwald keynote at Freedom to Connect 2013 #f2c #netfreedom #prism (Thanks, Joly!)

Watch 2013 Obama debate 2006 Biden on NSA surveillance

Watch then-Senator Joe Biden from 2006 directly refute each point made by his now-boss, President Barack Obama, about the NSA surveillance program at a news conference last week.

Dave Maass and Trevor Timm at the Electronic Frontier Foundation write:

After a leaked FISA court document revealed that the National Security Agency (NSA) is vacuuming up private data on millions of innocent Americans by collecting all the phone records of Verizon customers, President Obama responded by saying "let's have a debate" about the scope of US surveillance powers.

At EFF, we couldn't agree more. It turns out, President Obama's most formative debate partner over the invasiveness of NSA domestic surveillance could his Vice President Joe Biden.

Read the rest

Leaked memo details NSA talking points on Prism

A leaked memo apparently sets out the NSA's "talking points" to its defenders in government who are discussing the situation with the press and critics. Mike Masnick at TechDirt has a point-by-point rebuttal of what is, overall, a very weak document. It's almost as though the NSA has grown accustomed to getting its own way by sneaking around behind America's back and doing whatever it wants, rather than by setting out its case with compelling logic:

The news articles have been discussing what purports to be a classified, lawfully-authorized order that the Foreign Intelligence Surveillance Court (FISA Court) issued under an Act of Congress – the Foreign Intelligence Surveillance Act (FISA). Under this Act, the FISA Court authorized a collection of business records. There is no secret program involved here – it is strictly authorized by a U.S. statute.

"There is no secret program here"? Bullshit. Why, then, have so many people, both in the Congress and the public been shocked at the extent to which the NSA is snarfing up data? This is a secret program, enabled by a secret interpretation of the FISA Amendments Act, by the FISA Court, which the DOJ and the NSA insist the public is not allowed to know. Yes, it's a secret program. Saying otherwise is simply lying.

Leaked: NSA's Talking Points Defending NSA Surveillance

Overly Attached Girlfriend on Prism

Laina, AKA "Overly Attached Girlfriend" (a YouTube comedian and memestar who trades on her ability to stare intensely while monologuing hilariously about her terrifying romantic attachment) has outdone herself with an Uncle Sam edition, commenting on Prism

Overly Attached Uncle Sam

Why Americans should be worried about state surveillance

As the Prism/NSA leaks story unfolds, many Americans are left with a cynical "are you surprised?" response that rather misses the point. Recent American history is full of stories of spies using surveillance to target civil rights heroes like Martin Luther King, who was heavily surveilled during the Kennedy administration, culminating with the FBI sending him an anonymous package with evidence of his adultery and a note telling him to kill himself.

Here's a video and transcript of an excellent Chris Hayes editorial on MSNBC in which Hayes reminds us that America's spooks can and do use intelligence to attack causes that are later seen as being on the side of justice:

In 1964, after Hoover called King the most "notorious liar in the country" in a press conference, a package was sent to King in the mail, a package the House select committee ultimately traced back to the FBI. Inside this package, one of the most remarkable artifacts in American history was an anonymous letter addressed to Martin Luther King and a copy of an electronic surveillance tape apparently to lend credence to threats of exposure of derogatory personal information made in the letter. We don't know to this day for sure what was on that tape. The heavy speculation throughout the years it was of personal and sexual nature recorded by a device planted in Dr. King's hotel room.

The letter that came with the tape read in part, "you know you are complete fraud and a great liability to all of us negroes. The American public will know you for what you are, an evil abnormal beast. King, there is only one thing left for you to do. You know what it is. You are done. There is but one way out for you. You better take it before your filthy, abnormal fraudulent self is bared to the nation." The committee considered it highly likely that Director Hoover had before the fact knowledge of the action.

So that's a letter encouraging Dr. Martin Luther King Jr. to kill himself, sent to King from the FBI. This happened in American history. It's just one example out of many of how the full weight of the surveillance state constructed to fight the cold war was used against the people working for racial equality. It may have been constructed to defeat the Russians and the genuine threat of global communism, but it was deployed on people like Carmichael and Dr. Martin Luther King Jr.

Chris Hayes: "It's not some Orwellian abstraction. It's America's history" (via Making Light)

Wired profiles NSA's Keith Alexander, the general leading America into cyberwar


Illustration for WIRED by Mark Weaver

"Infiltration. Sabotage. Mayhem. For years four-star general Keith Alexander has been building a secret Army capable of launching devastating cyberattacks. Now it's ready to unleash hell."

In this month's Wired Magazine, James Bamford profiles Keith Alexander, the man who runs cyberwar efforts for the United States, "an empire he has built over the past eight years by insisting that the US’s inherent vulnerability to digital attacks requires him to amass more and more authority over the data zipping around the globe."

The claims in Edward Snowden's leaks are the tip of one big, secret iceberg.

Read: NSA Snooping Was Only the Beginning. Meet the Spy Chief Leading Us Into Cyberwar (Wired.com)

Jack Shafer: Edward Snowden and the selective targeting of leaks

"The willingness of the government to punish leakers is inversely proportional to the leakers’ rank and status, which is bad news for someone so lacking in those attributes as Edward Snowden," writes media critic Jack Shafer at Reuters. As the US moves to prosecute Snowden, Shafer says we should ask "Why Snowden is singled out for punishment when he’s essentially done what the insider dissenters did when they spoke with Risen and Lichtblau in 2005 about an invasive NSA program. He deserves the same justice and the same punishment they received."

Verizon: Oh yeah, we can definitely hear you now.

Photo: Verizon Can Hear You Now, a Creative Commons Attribution (2.0) image from 60976844@N00's photostream, shared in the Boing Boing Flickr Pool.