Much has happened since we last caught up with the snoops (see “Keeping Up with the Snoops 9: Junk in the PRISM Trunk,” 17 April 2015). Congress has been busy crafting new bills, a new surveillance program has been revealed, more presidential candidates have entered the race, law enforcement’s battle with Silicon Valley has escalated, and a high-profile leaker has faced a judge.
The Bills, They Are A-Moving -- When we last left you, the Patriot Act was crawling toward a quiet death and the USA Freedom Act was long dead. Since then, Congress has been busy.
Senate Majority Leader Mitch McConnell (R-KY) introduced a bill on 21 April 2015 that would extend the Patriot Act until 2020. That would also extend Section 215, which is often cited as the legal basis for mass phone record collection.
A few days later, on 30 April 2015, the House Judiciary Committee brought the USA Freedom Act back from the dead. The previous version was defeated last year (see “Keeping Up with the Snoops 7: Too Many Snoops,” 21 November 2014).
The new bipartisan version of the USA Freedom Act would take several steps to end mass surveillance, allow legal challenges to national security letter gag orders, and help make the FISA court more transparent. But it also includes items to appease those in favor of mass surveillance, such as creating a new call records program operated by private telecom firms, giving the government more authority to track foreigners who enter the United States, and increasing the maximum prison sentence for those aiding terrorists, among other concessions.
Reactions to the new USA Freedom Act are mixed. The Electronic Frontier Foundation called it “far from ideal,” but “a step in the right direction.” The American Civil Liberties Union said that, “Though an improvement over the status quo in some respects, the USA Freedom Act does not go far enough to rein in NSA abuses and contains several concerning provisions.” Civil liberties journalist Marcy Wheeler is entirely skeptical of the bill, saying, “Effectively, by outsourcing the spying to providers, the government aims to evade that law to monitor people who have only tenuous ties to terrorism, and do so with none of the checks against abuse such spying would get in a criminal context.”
As I write this, the House has voted in favor of the new USA Freedom Act.
However, the House also passed the Protecting Cyber Networks Act on 22 April 2015, which encourages information sharing between corporations and the government. A letter signed by 55 civil liberties groups and security experts said, “PCNA would significantly increase the National Security Agency’s (NSA’s) access to personal information, and authorize the federal government to use that information for a myriad of purposes unrelated to cybersecurity.”
But even as Congress debates these bills, the legal interpretations of existing law continue to shift. The Court of Appeals for the Eleventh Circuit on 5 May 2015, reversed an earlier decision, proclaiming that the government doesn’t need a warrant to search wireless carriers’ cell phone records.
However, the Court of Appeals for the Second Circuit, on 7 May 2015, ruled that bulk collection of domestic call records under section 215 is illegal. “We do so comfortably in the full understanding that if Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously,” the judges said.
While Congress continues to debate mass surveillance, it should be noted that multiple reports have declared it useless, at best. A recently declassified government report on the NSA’s Stellarwind program found that mass surveillance and secrecy only hampered efforts to track terrorists. Across the pond, Europe’s Parliamentary Assembly of the Council of Europe declared, “Mass surveillance does not appear to have contributed to the prevention of terrorist attacks, contrary to earlier assertions made by senior intelligence officials. Instead, resources that might prevent attacks are diverted to mass surveillance, leaving potentially dangerous persons free to act.”
While the European Union has slammed mass surveillance, France is pushing its own Patriot Act. The law would not only enable American-style mass surveillance, but would also allow law enforcement to plant hidden microphones in the homes and vehicles of French citizens.
We’re Listening to Your Phone Calls -- President Obama once remarked, “When it comes to telephone calls, nobody is listening to your telephone calls.” Well, that might not be entirely true…
The Intercept has released more Snowden documents, revealing that the NSA developed a system to convert phone calls to written transcripts about a decade ago. Internal documents referred to it as “Google for Voice.” How widely the technology was used is unclear, and it’s unclear if it was ever used against domestic targets.
An Update on Presidential Candidates -- Last time, we examined the positions of the official 2016 candidates in regards to government mass surveillance, including Hillary Clinton, Ted Cruz, Rand Paul, and Marco Rubio. There hasn’t been much movement from these politicians since, but a few important developments have come from others.
Senator Bernie Sanders (I-VT) has officially thrown his hat into the ring. While the socialist senator has worse odds of winning the nomination than a pet rock, his anti-surveillance stance is strong. He has consistently voted against the Patriot Act and voted for the original USA Freedom Act.
Retired neurosurgeon Ben Carson announced on 3 May 2015 that he’ll seek the Republican nomination for the presidency. While he has remained quiet lately about his thoughts on mass surveillance, he offered a balanced take on Edward Snowden in a Fox News segment, decrying his methods but saying, “It is absolutely important that we know what’s being done and what’s being monitored. The secrecy that’s going on right now, coupled with the apparent dishonesty in government, has obviously dampened the enthusiasm for people about the veracity of their government.”
Former HP CEO Carly Fiorina, who has also thrown her hat into the Republican ring, doesn’t have a defined position on mass surveillance, though she did wonder how to hold the NSA accountable on NBC’s Meet the Press. She has worked with the CIA and NSA in the past. CNN said of Fiorina:
“She was very helpful to the NSA when she was head of Hewlett,” said Robert L. Deitz, a former NSA general counsel and former senior councillor to the director of the CIA. Deitz supports Fiorina’s presidential bid.
“I think Edward Snowden has been terribly destructive,” she told CNN, but added that agencies could be more transparent. “He has been less than forthcoming. It was a very slanted portrayal about what the NSA does, and he knows it.”
Mike Huckabee officially launched his campaign for the Republican nomination on 5 May 2015. As the former Arkansas governor is a Washington outsider, he doesn’t have a clear voting record to evaluate. In a segment on his Fox News show, Huckabee, though he remained neutral, appeared skeptical of mass surveillance, and asked some smart questions of his guests, two former NSA officials.
While not officially a candidate, Jeb Bush is planning to raise over $100 million in the first half of 2015, so we’ll assume he’s running for the Republican nomination too. He recently praised President Obama’s expansion of surveillance saying, “I would say the best part of the Obama administration would be his continuance of the protections of the homeland using the big metadata programs, the NSA being enhanced.” So you know where he stands.
With a number of candidates to evaluate now, I’ll take a crack at ranking them according to their opposition to mass surveillance. This is an admittedly subjective list, and the candidates’ positions could change at any time, but I’ll try to justify my reasoning:
Bernie Sanders (a consistent opponent of the Patriot Act and he voted for the USA Freedom Act)
Rand Paul (voted against the Patriot Act, joined a lawsuit against the Obama administration over mass surveillance, but voted against the USA Freedom Act)
Ted Cruz (voted for the Patriot Act, but also for the USA Freedom Act)
Ben Carson (record unclear, but has spoken out strongly against NSA mass surveillance)
Mike Huckabee (record unclear, but appears skeptical of NSA mass surveillance)
Hillary Clinton (consistent supporter of the Patriot Act, a critic of Edward Snowden, but has recently questioned mass surveillance)
Carly Fiorina (position unclear, but she has close ties to intelligence agencies)
Marco Rubio (voted for the Patriot Act, against the USA Freedom Act, and has spoken in favor of surveillance)
Jeb Bush (has views similar to Rubio’s, and is also the brother of George W. Bush, whose administration kick started the NSA’s surveillance program)
Something for the Kids -- As I reported all the way back in the original “Keeping Up with the Snoops,” the NSA has been seeking to recruit college journalism majors and even high school students with attractive internships and work study programs. While those efforts are understandable, it turns out that the NSA is also trying to win the hearts of even young children.
PandoDaily’s Dan Raile visited the NSA booth at the RSA conference, and found that the NSA is distributing materials aimed at children, including NSA-branded Post-it Note kits and a coloring book called “America’s CryptoKids.”
In “America’s CryptoKids,” children can follow the adventures of T.Top (a turtle), Joules (a squirrel engineer), Decipher Dog (a signals intelligence analyst), and Crypto Cat (an information assurance analyst) as they crack codes, jam on guitars, and electrocute mice.
Why does the NSA want to reach kids young enough to like coloring books? Do other federal law enforcement agencies offer coloring books? I’m sure the Drug Enforcement Administration’s (DEA) coloring book would be interesting.
But pre-adolescents aren’t the only ones the government is trying to win over…
As I Walk Through the Valley in the Shadow of Snoops -- Washington is looking to expand its presence to the West Coast. The Department of Homeland Security is planning to open a satellite office in Silicon Valley to recruit tech workers and “strengthen critical relationships in Silicon Valley.”
The new office is a result of strained relationships between the tech industry and the government since the Snowden revelations. Companies such as Apple have worked to harden consumer encryption in their products, which has sparked government outrage. “Our inability to access encrypted information poses public safety challenges. In fact, encryption is making it harder for your government to find criminal activity, and potential terrorist activity,” Homeland Security Secretary Jeh Johnson said in a keynote at this year’s RSA conference on 21 April 2015.
Speaking of Jeh Johnson, Senator Rand Paul questioned him about mass surveillance in a Senate hearing on 29 April 2015. Paul asked, “Do you believe the government has the right to have bulk collection of records from millions of individuals without a warrant?” Johnson replied, “That is beyond my competence as the Secretary of Homeland Security to answer in any intelligent legal way.” Here’s the video.
Naturally, the U.S. government blames Edward Snowden for the increased tensions. Defense Secretary Ash Carter said, “The Snowden issue clouds things.” Author and blogger Cory Doctorow translated Carter’s statement as “Once they learn the truth, techies hate and fear us.”
Meanwhile, government pressure on tech firms, especially Apple, to weaken encryption is mounting. In written testimony to the House Committee on Oversight and Government Reform, Massachusetts prosecutor Daniel Conley equated Apple’s iOS encryption to a tool for perverts, saying, “If the offender’s phone can’t be searched pursuant to a warrant, then the evidence won’t be recovered and this practice will become absolutely un-chargeable as a criminal offense,” in regards to men who take “upskirt” photos of women. Conley also questioned whether the Boston Marathon bombers would have been caught if they used encryption. There’s just one problem: Dzhokar Tsarnaev did encrypt his computer, but investigators cracked his password, “AllahuAkbar1”.
In his written testimony, Conley also said, “Apple and Google are using an unreasonable, hypothetical narrative of government intrusion as the rationale for the new encryption software…” I’m not sure whether he’s merely ignorant of the past two years, or if he is willfully choosing to ignore still-classified programs.
Conley’s testimony drew the ire of Representative Ted Lieu (D-CA), one of just four representatives with a computer science degree, who said:
It’s a fundamental misunderstanding of the problem. Why do you think Apple and Google are doing this? It’s because the public is demanding it. People like me: privacy advocates. A public does not want an out-of-control surveillance state. It is the public that is asking for this. Apple and Google didn’t do this because they thought they would make less money. This is a private sector response to government overreach.
Then you make another statement that somehow these companies are not credible because they collect private data. Here’s the difference: Apple and Google don’t have coercive power. District attorneys do, the FBI does, the NSA does, and to me it’s very simple to draw a privacy balance when it comes to law enforcement and privacy: just follow the damn Constitution.
And Justice for Some -- While Edward Snowden remains out of reach in Russia, another leaker has come before a federal court: retired four-star general David Petraeus.
Petraeus was commander of the United States Central Command from 2008 to 2010, commander of the International Security Assistance Force from 2010 to 2011, and then the director of the Central Intelligence Agency from 2011 to 2012. During his military career, he became the highest profile commander of the wars in Iraq and Afghanistan.
Petraeus is also now a convicted criminal. He gave Paula Broadwell, his biographer and the woman with whom he was having an affair at the time, what the New York Times describes as “black notebooks that contained sensitive information about official meetings, war strategy and intelligence capabilities, as well as the names of covert officers.” Some of the books were described as “highly classified” by Petraeus. But despite that, he shared them with her while he was in charge of the CIA.
Is Petraeus now sitting in a jail cell like former CIA officer turned whistleblower Jeffery Sterling, who was just sentenced to three and a half years in prison? Is he hiding in Russia, living next door to Snowden? Or perhaps he’ll be serving 35 years in a military prison, like WikiLeaks informer Chelsea Manning, who also spent a full year in solitary confinement?
No. In a plea deal, Petraeus received only two years’ probation and a $100,000 fine.
Perhaps most damning are Petraeus’s own words, as the New York Times pointed out:
“Oaths do matter,” he said in October 2012 after a C.I.A. officer accepted a plea agreement for disclosing sensitive information, “and there are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy.”
The officer later received a 30-month sentence.
Until next time, encrypt your email, check your Citroën for bugs, and don’t even think about leaking classified documents unless you’re a four-star general.