All too often, we discuss cases of apparent police abuse and instances of law enforcement organizations closing ranks around the abusers. Far too many stories of police destroying evidence of misconduct, massively dismissing complaints against officers, and the violation of some of our most basic rights as citizens have resulted in the permeation of a culture of mistrust. Now, despite these highlighted stories, I'm of the belief that the vast majority of law enforcement officers perform their admittedly difficult duties admirably. That said, when the organizational bureaucracies that run these fraternal orders undermine the public trust, even at a punctuated pace, the resulting public culture is immensely harmed. Citizens are demanding more transparency and accountability from their public servants, perhaps none more so than those that are charged with serving and protecting us.

Well, in an apparent attempt to meet that demand, one police chief in Dallas is taking to social media to publicly announce when his officers are disciplined.

Dallas Police Chief David O. Brown has fired or disciplined 27 officers and employees in the last year. And every time he brings down the hammer, he announces it on Facebook and Twitter, specifying exactly who the men and women are and what they did. On Dec. 30, it was five officers and a 911 call operator.

Each tweet and post outline what the nature of the misconduct was, the punishment, and always notes that the officers have rights as accused, including appeal. But don't let that fool you. Chief Brown is very direct, very specific, and names the accused fully. For instance:

I have terminated SC Frank Della for public intoxication, damaging a person's property, and making offensive contact with a person. — Chief David O. Brown (@DPDChief) December 30, 2013

Under Civil Service rules, SC Della has a right to appeal his discipline. — Chief David O. Brown (@DPDChief) December 30, 2013

I'll admit, this is an interesting way to achieve some transparency, and for those that might distrust or dislike law enforcement in general it may be a tantalizing policy to publicly shame such bad actors, but I'm not finding within me the desire to cheer gleefully for this type of thing. Public shaming is a powerful thing. And that's true whether the accused ends up being guilty or innocent. I wonder if this might be a step too far. True, these officers are public servants, they work for us, and any effort at transparency to the public is a good thing, but I'm not certain there's a great deal of value in this beyond a public spectacle and some feel-goods.

Feel-goods aren't what we need. I'm more interested in more substantive reform to the entire relationship between LEOs and the public than forcing a few of them to wear the social media scarlet letter.

Government code-cracking projects are usually depicted in movies as super-secret endeavors where brilliant minds create amazing algorithms that are decades ahead of anything else out there. The truth is probably closer to a room full of monkeys typing away randomly, occasionally getting bits of Shakespeare, combined with some average IT folks just collecting as much data as they can from the software backdoors that have been put in place in the most commonly-used applications. (So much for Area 51 conspiracy theorists and their ilk.) Brute force methods might be the best we can do, and here are just a few links related to breaking some encryption schemes.

• The NSA has been openly working on developing a quantum computer that could crack codes much faster than conventional high performance computing efforts. Experts predict true quantum computing is anywhere from 3 to 25 years away... and it's probably further away since state-of-the-art spying techniques seem to use backdoors and wrenches rather than any super-sophisticated algorithms. [url]
• Quantum computing isn't quite magic. It still has physical limits, such as requirements for ultra-precise time keeping and complex maintenance of the quantum states of sizable arrays of atoms/molecules/particles. There ain't no such thing as a free lunch. [url]
• Some mathematicians once thought that the NSA could secretly have a way to factor large numbers in polynomial time. Academic mathematicians are probably not lagging their peers in classified government research, but there might still be some secret algorithms known only to the NSA that are better than concepts like Karmarkar's algorithm. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

There's an incredible story that recently played on On the Media's awesome off-shoot TLDR podcast, talking about a guy who basically spends all of his free time writing and recording songs on pretty much every topic imaginable, and then uploading them to Spotify and iTunes, just in case someone is magically looking for a song about any particular topic. He's already recorded 14,000 songs, and says last year he made about $23,000 from royalties. Many of the songs seem quirky, and I'm not sure many people would consider them to be any good, but that's not really the point. The point is to have some music on pretty much any topic.

The more I thought about this, I realized this is yet another unique outcome of the modern digital era. In our Sky is Rising report from a few years ago, one of things we noted was the massive explosion in books (mostly ebooks), but we carefully noted that many of them were these odd automated productions, pulling feeds of information and releasing them in book form. That kind of thing is designed to be created cheaply and never sell many copies, but still might be incredibly useful for the 2 or 3 people who need exactly what's in that book. If you can produce enough things like that, perhaps it's worthwhile.

And, with digital music becoming so common, it's not such a crazy idea to basically try to thrive on search engine optimizing (SEO'ing) music searches. I say this as someone who has created Spotify playlists about trains, bananas and (just last week) "the ABCs" for my son. As I was setting those up, I thought about just how incredibly different the world my son will grow up in is than what everyone else has experienced. When he says, "I want to hear songs about trains!" it's actually not that difficult to do exactly that. This goes beyond just what many people thought the rise of digital music would bring about, which is the breakdown of the need for "albums" as people move to singles, but the opportunity to create songs on a theme or topic for those people who are looking for it. There may not be that many people actually searching for any such particular song, but if you can make enough of them, covering enough topics that when someone needs just any song on a particular topic, there's now an opportunity to do that.

This isn't "the future of music" or anything of that sort. It's just one of those wonderful, tangential things enabled by our digital world, filling a need that is actually quite useful for some, in a way that really wasn't possible not too long ago.

Hidden in the 1,500+ pages of the $1.1 trillion federal funding bill is a stipulation aimed at giving the NSA's much-heralded oversight some actual oversight. The wording specifically targets the NSA's bulk collection programs, and if passed along with the rest of the bill (which is expected to pass shortly), will be the first Congressional action taken against the agency. (There are many, many more in the pipeline.)

Here's how the accompanying "explanatory statement" breaks it down:

The Director of the National Security Agency (NSA) is directed to provide the following to the congressional intelligence committees, the Senate Committee on the Judiciary, and the House Committee on the Judiciary, not later than 90 days after the enactment of this Act:

1) A report, unclassified to the greatest extent possible, which sets forth for the last five years, on an annual basis, the number of records acquired by the NSA as part of the bulk telephone metadata program authorized by the Foreign Intelligence Surveillance Court, pursuant to section 215 of the USA PATRIOT Act, and the number of such records that have been reviewed by NSA personnel in response to a query of such records. Additionally, this report shall provide, to the greatest extent possible, an estimate of the number of records of United States citizens that have been acquired by NSA as part of the bulk telephone metadata program and the number of such records that have been reviewed by NSA personnel in response to a query.

2) A report, unclassified to the greatest extent possible and with a classified annex if necessary, describing all NSA bulk collection activities, including when such activities began, the cost of such activities, the types of records that have been collected in the past, the types of records that are currently being collected, and any plans for future bulk collection.

3) A report, unclassified to the greatest extent possible and with a classified annex if necessary, listing terrorist activities that were disrupted, in whole or in part, with the aid of information obtained through NSA's telephone metadata program and whether this information could have been promptly obtained by other means.

The agency has been extremely resistant to the notion of quantifying its bulk collection efforts. The "incidental" collection of American data and communications has been discussed at length, but so far, the agency has refused to offer even an estimate at how much "incidental collection" actually occurs. While it has noted how many RAS-approved numbers it actually searches in its Section 215 database, it has not specified how many of those intersect with wholly domestic communications.

This stipulation goes further than the 215 program, which would add to the body of knowledge needed for Congressional overseers to provide something closer to actual oversight. Much of what's being collected under other authorities (Section 702, Executive Order 12333) remains somewhat of a mystery. Obviously, the NSA would like it to remain this way, hence its oft-used tactic of purposefully reframing questions about these collections as questions about Section 215.

It's a small push but it does ask for a level of transparency and accountability the NSA hasn't experienced to date. The usual "national security" dodge has lost a lot of its effectiveness over the past several months as it's been repeatedly shown that vast, untargeted metadata collections are next to useless when it comes to preventing terrorist attacks. The other claims that exposing the inner workings will allow the nation's enemies to route around surveillance are equally weak considering the vast amount of documents Ed Snowden has released to journalists. Chances are, the inner workings will be exposed sooner or later. It would be better to get out ahead of the leaks and allow the Congressional oversight to do its job for a change.

The leaks have exposed the NSA's true motivations. It doesn't fear exposure nearly as much as it fears losing any of its surveillance programs, no matter how ineffective they are and how much they add to the problem of too much data.

Oh, those poor, poor FISA Court (FISC) judges. The court, which has a habit of approving every single request to spy on Americans (though, sometimes asking for minor modifications) has already complained about how unfair it is that everyone thinks they're just a rubber stamp. And, to be fair, some of the documents that have been revealed have shown that there are a few times that the FISA Court has become quite angry about how the NSA and DOJ have basically lied. And, it's even ordered certain programs be (temporarily) stopped or changed. But, in the long run, it's still pretty much allowed the NSA to keep on keeping on. And, the FISC judges have admitted that they're not particularly able to do real oversight, since they're entirely reliant on what the NSA tells them. There's also the fact that all of the FISC judges are appointed by Supreme Court Chief Justice John Roberts, leading to a very specific political leaning in all of them.

And, now, it appears, that the FISC judges are speaking out against any actual reforms or changes to the FISC, because (and I'm not making this up), it might mean they have a bit more work to do. Judge John Bates has sent a letter to Senator Dianne Feinstein basically saying that they'd prefer not to do any more work, and making some crazy claims about how the reforms might "disrupt" the ability of the court to protect national security.

Even if additional financial, personnel, and physical resources were provided, any substantial increase in workload could nonetheless prove disruptive to the Courts' ability to perform their duties, including responsibilities under FISA and the Constitution to ensure that the privacy interests of United States citizens and others are adequately protected.

Yes, did you get that? Any attempt to better protect the privacy interests of the public -- which is what these reforms are designed to do -- might actually hinder the FISC's ability to protect the privacy interests of the public. Talk about doublespeak. First, there's no evidence that the FISC ever actually protected the privacy interests of the public, and the idea that reforms to protect the privacy interests of the public would somehow undermine the FISC's ability to protect those privacy interests is laughable.

What about the idea of an advocate for the public in certain cases -- someone to make sure that hearings are actually conducted on an adversarial basis? Oh boy, does the FISC hate that idea too:

The participation of a privacy advocate is unnecessary-and could prove counterproductive--in the vast majority of FISA matters, which involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interests of few persons other than the specified target. Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation. Advocate involvement in run-of-the--mill FISA matters would substantially hamper the work of the Courts without providing any countervailing benefit in terms of privacy protection or otherwise; indeed, such pervasive participation could actually undermine the Courts' ability to receive complete and accurate information on the matters before them.

Got that? Having an advocate for the public's interest might mean that the court can't dig and get as much info as possible, thereby... um... harming the privacy interests of the public. Really?

Oh, and if there must be an "advocate" for the public, he or she should apparently be really designed to help the judges rather than an independent voice for the public interest:

In those matters in which an outside voice could be helpful, it is critical that the participation of an advocate be structured in a manner that maximizes assistance to the Courts and minimizes disruption to their work. An advocate appointed at the discretion of the Courts is likely to be helpful, whereas a standing advocate with independent authority to intervene at will could actually be counterproductive.

Okay, how about requiring the FISC to actually review national security letters (NSLs), instead of just allowing the FBI and others to issue them willy-nilly with no oversight, despite long standing evidence of massive abuses on an astounding scale? Again, too much work:

Drastically expanding the FISC's caseload by assigning to it in excess of 20,000 administrative subpoena-type cases NSLS) per year -- even with a corresponding injection of resources and personnel -- would fundamentally transform the nature of the FISC to the detriment of its current responsibilities.

The plan to change how the judges are appointed, so that it's no longer a court shaped in the vision of Justice John Roberts exclusively? No dice, says Judge Bates.

It is important that the process for selection of FISC and Court of Review judges remain both expeditious and fully confidential; the Chief Justice is uniquely positioned to select qualified judges for those Courts.

He doesn't explain why any of that makes sense. There's no reason why FISC judges can't be approved in a more diverse manner. Yes, the Senate has certainly made judicial nomination approvals a political football lately, but appointing already approved judges to FISC can certainly be done by Congress rather than by a single guy appointed to a lifetime position.

What about more transparency on when the FISC rules on things? Oh no, says Judge Bates, actually telling the public about what the FISC rules might confuse those stupid idiotic people who make up the public:

In many cases, public disclosure of Court decisions is not likely to enhance the public's understanding of FISA implementation if the discussion of classified information within those opinions is withheld. Releasing freestanding summaries of Court opinions is likely to promote confusion and misunderstanding.

There you have it: let's keep important court rulings secret, because the public are morons. Brought to you by the former chief judge of FISC.

Given that the FISC has taken a lot of the attacks for its weak to non-existent oversight of the NSA, it's no surprise that they're a little touchy about all of this, including the idea that some reforms might suggest that they really did an incredibly crappy job for the past decade or more. But the reasoning given in this letter amounts to little more than (1) we don't want to do any more work, even if you let us hire a lot more people and (2) the public is stupid and annoying, please keep us shielded from them.

The EFF is still uncovering more usage of CBP (Customs and Border Protection) drones by other agencies and far away from what anyone would consider to be the "border." The CBP apparently "forgot" to list several other flights on the tally sheet forced out of its hands by the EFF's FOIA lawsuit.

Customs & Border Protection recently “discovered” additional daily flight logs that show the agency has flown its drones on behalf of local, state and federal law enforcement agencies on 200 more occasions more than previously released records indicated.

Last July we reported, based on daily flight log records CBP made available to us in response to our Freedom of Information Act lawsuit, that CBP logged an eight-fold increase in the drone surveillance it conducts for other agencies. These agencies included a diverse group of local, state, and federal law enforcement—ranging from the FBI, ICE, the US Marshals, and the Coast Guard to the Minnesota Bureau of Criminal Investigation, the North Dakota Bureau of Criminal Investigation, the North Dakota Army National Guard, and the Texas Department of Public Safety.

The new data brings the number of flights up from 500 to 700 over a two-year period and adds several new names to the list of patrons of the CBP's drone lending library. Unfortunately, lawsuit or not, the CBP still refuses to release the names of some of the law enforcement agencies which have borrowed its drones, claiming (of course) that doing so would "jeopardize ongoing investigations." In some cases, this may be true, but as the EFF points out, there are others where naming names wouldn't do much to narrow down when and where the drones were used.

[A]s we pointed out in our summary judgment brief, disclosing that CBP was working with, for example, the Pima County, Ariz. Sheriff’s Department would not be specific enough to affect any particular criminal operation. It would hardly be surprising that CBP was working with Pima County because it shares a border with Mexico. It is also—at 9,200 square miles—one of the larger counties in Arizona and has one of the highest crime rates of any county in the country—a rate of 4,983 crimes per 100,000 people. Given the large geographic size of and crime rate in this county and others like it, it is hard to imagine that releasing information about which county sheriff’s department CBP is working with would enable suspected criminals in the area to link CBP’s drone surveillance to their particular criminal activity.

Not only is the usage more widespread than previously indicated by the CBP's first response, but the use of sophisticated technology meant for war zones has been deployed along our borders as well as potentially far inland. The EFF notes that the VADER surveillance system, which was developed for use in the war in Afghanistan and can detect the presence of people from 25,000 feet in the air, has been in use by the CBP since 2011 and has been used by 30 other agencies since that point.

Equally as troubling, considering the growing number of agencies using the CBP's drones, is the fact that data and info gathered is likely being held onto indefinitely.

CBP states in its PIA [Privacy Impact Assessment] that it stores data unassociated with a particular investigation for no more than 30 days, but much, if not most of this data will be associated with an investigation and may therefore be stored indefinitely—even if it includes footage of property, vehicles and people unassociated with the investigation.

As we've covered before, many law enforcement agencies are deploying drones and other surveillance technology well ahead of crafting usage guidelines and privacy considerations. Borrowing a drone indicates the agency likely doesn't already have one -- which also indicates it doesn't have anything in place to govern its use or disposal of unneeded or incidental data. Anything deemed potentially relevant will be kept and agencies -- especially those without rules on the books about drone usage -- are under no self-imposed obligation to rid themselves of incidental data.

The EFF has released an updated compilation of CBP drone flights based on the CBP's "discoveries" with the new information helpfully highlighted, including the addition of a mysterious entity designated only as "Local PD Officer." The CBP's inability to include all "responsive" info in its first release (back in July of last year) means this new data dump probably isn't complete either. Refusing to release names of the law enforcement agencies taking advantage of the CBP's seemingly indiscriminate loaning program does nothing to prevent future abuse by providing cover for agencies without surveillance guidelines or controls in place.

The very first copyright law in the US was officially called "An Act for the Encouragement of Learning." Indeed, that was the actual stated purpose of copyright law at the time. It wasn't supposed to be a system for protecting the revenue of artistic folks. In fact, it didn't even cover most artistic works at the time. It was limited to "maps, charts and books." Music? Not protected. Paintings? Not protected. Sculpture? Not protected. That's because it wasn't about artwork, but about the spread of knowledge through learning. Yes, the idea was to provide a limited monopoly to incentivize the initial creation, and the exchange was that it would then be given into the public domain soon after, such that everyone could learn from it. Yesterday, we covered the importance of the public domain, and today's topic for Copyright Week goes hand in hand with it: the idea of open access.

Copyright law was supposed to encourage greater access to knowledge to have a better educated populace. But the current setup of the law appears to do the exact opposite of that much of the time. When it comes to newly discovered knowledge, our copyright law (and the way it's used by some giant companies) seems almost entirely focused on making knowledge more expensive and less open thereby massively hindering the ability to share knowledge and better educate the public.

This has been seen most recently in the publishing giant Reed Elsevier's effective war on access to knowledge, using copyright law as a sort of weapon to block researchers from sharing their own research. However, as we've discussed for many years, the whole system is rigged against knowledge access and sharing, and in favor of giant publishers locking up knowledge -- often including research that was funded almost entirely by your tax dollars.

Here's how the privitization of knowledge works, thanks to copyright:

1. Professor wants to do some research, and files for some grants (usually from the government) to pay for that research. If that professor works for a state school, at least part of their salary is already partially paid for by public funds.
2. Government agrees to grant, provides taxpayer money to the researcher to conduct important research.
3. Research is completed, and the professor and some grad students/assistants write up the results in a paper.
4. Because academics are still (stupidly) judged on how often they "publish" in "prestigious" journals, the professor submits the paper to a few well known journals. In some (though not all) fields, the journals make the professor pay a submission fee.
5. The journals send the paper out to two peer reviewers, who do not get paid. They basically provide an editorial function to the publisher for free.
6. The journal "accepts" the paper, and demands that the professor hand over every possible copyright on the work and related research. I even know some academics who had to recreate their own research for later research, because they felt they were barred from using a chart they had created in a previous work without violating the copyright.
7. The publisher then sells the journal to academic libraries at absolutely insane prices. A freedom of information request at one university a few years ago showed that the university paid £688,093 -- or $1.1 million -- over a five year period for just three products from Elsevier, and only one of those products included full access to all of the published papers. The other two were merely for "abstracts and statistics." For just the popular 'Science Direct,' this one university paid between $150,000 to about $200,000 per year, for a subscription to just one journal.
8. Even when, as with the National Institute of Health, there's a requirement for "open access" publishing after one year, many journals will try to charge a very high fee (often thousands of dollars) to pay for "submitting" the paper to an open access repository.

In short, we have taxpayer funded research for which the publisher pays nothing, but gets the entire copyright, and then they sell the journals back to academic institutions for subscriptions often well over $100,000 per year -- and the research is completely locked up. Even more insulting in all of this, copyright was never the reason that the research was done in the first place. Remember, the purpose of original copyright law was to create an incentive for these individuals to do the research and publish the results -- but here, researchers are academics who are getting paid via grants, so the copyright is not the incentive at all.

It can be argued that copyright was at one point part of the incentive for the publishers to set up the peer review process, and then to help publish and distribute the works, but is that a process that is needed any more? It's difficult to see how. The things that publishers do (peer review, distribution) can be done much more effectively and efficiently these days, without the gatekeeper status or the insanely high prices. Oh yeah, and without locking up the knowledge.

Learning and scientific knowledge increases when we share knowledge, data and information widely and freely, allowing others to learn from it, to build on it and to continue to educate others and themselves. Today's copyright law does the opposite in almost every way. That's why radically changing how open access works and when it's expected is so important if we're to bring copyright law back anywhere near its initial intended purpose.

Wikileaks, who had already leaked out the Intellectual Property chapter of the TPP has now leaked the Environment Chapter as well. And, as had been expected by many civil society groups, it is now clear that the USTR, in particular, has "retreated from previous demands of strong international environmental protections." The USTR likes to talk big about how things like the TPP would actually increase environmental protections, but it looks like (as many expected) this was just a negotiating position, to be traded away to get other benefits for big corporate donors (such as corporate sovereignty and intellectual property issues). As Wikileaks notes:

When compared against other TPP chapters, the Environment Chapter is noteworthy for its absence of mandated clauses or meaningful enforcement measures. The dispute settlement mechanisms it creates are cooperative instead of binding; there are no required penalties and no proposed criminal sanctions. With the exception of fisheries, trade in 'environmental' goods and the disputed inclusion of other multilateral agreements, the Chapter appears to function as a public relations exercise.

It is clear that the US was pushing for some environmental controls, nearly all of which were opposed by various emerging nations in Asia, who fear that things like pollution controls will make it more difficult for them to develop their economies. Rather than figure out a way to still protect the environment, it appears that the USTR treated these as issues that can be bargained away in favor of other more important aspects of the deal, like exporting extreme copyright polices.

Once again, we see exactly why the USTR has flat out admitted that if the American public was fully aware of what was in the TPP all along that it would never get approved. And, once again, we're reminded that if the USTR can't get a transparent deal approved, then it shouldn't be supporting that deal in the first place.

The expectation all along was that the President's intelligence task force was likely to recommend cosmetic changes while leaving the worst abuses in place. And, in fact, many of us were quite surprised to see the panel's actual recommendations had more teeth than expected (though, certainly did not go nearly far enough). It was pretty quickly suggested that President Obama wouldn't support the most significant changes, and now that he's set to announce his plan on Friday, it's already leaked out that he's going to support very minimal reforms that leave the problematic spying programs of the NSA effectively in place as is.

Mr. Obama plans to increase limits on access to bulk telephone data, call for privacy safeguards for foreigners and propose the creation of a public advocate to represent privacy concerns at a secret intelligence court. But he will not endorse leaving bulk data in the custody of telecommunications firms, nor will he require court permission for all so-called national security letters seeking business records.

As the NY Times says, he's taking the political way out, making sure not to upset the surveillance hawks:

The emerging approach, described by current and former government officials who insisted on anonymity in advance of Mr. Obama’s widely anticipated speech, suggested a president trying to straddle a difficult line in hopes of placating foreign leaders and advocates of civil liberties without a backlash from national security agencies. The result seems to be a speech that leaves in place many current programs, but embraces the spirit of reform and keeps the door open to changes later.

Yeah, but embracing "the spirit of reform" is not actually doing any reform. It's a bullshit approach guaranteed not to win anyone's approval, which seems to be the way the president often operates. Say you're going to do something, then offer a weakly compromised version of the plan and pretend you've actually done something big. It's not leadership, it's "let's talk big, and do little."

As the NY Times says, this "largely codifies existing practices."

Basically, this whole charade simply dumps the whole thing back into Congress's hands to try to push through real reform -- meaning that rather than letting President Obama decide what to do, we need to get things like the USA Freedom Act passed as a starting point, followed by more significant surveillance freforms.

As Mike reported recently, the NSA has presented no credible evidence that its bulk metadata collection is stopping terrorist attacks, or keeping people safe. Instead, the argument in support of the secret activities of the NSA and its friends abroad has become essentially: "Trust us, we really have your best interests at heart." But that raises the question: Can we really do that? New revelations from The Independent newspaper about massive and thorough-going corruption of the UK police and judiciary a decade ago show that we can't:

The entire criminal justice system was infiltrated by organised crime gangs, according to a secret Scotland Yard report leaked to The Independent.

In 2003 Operation Tiberius found that men suspected of being Britain's most notorious criminals had compromised multiple agencies, including [UK tax and customs services] HM Revenue & Customs, the Crown Prosecution Service, the City of London Police and the Prison Service, as well as pillars of the criminal justice system including juries and the legal profession.

If an entire criminal justice system can be corrupted so completely, there's no reason to believe that agencies like the NSA or the UK's GCHQ are immune. After all, they have the same ethos of serving the public that supposedly prevents them from betraying the trust placed in them (but didn't in the case of the UK police), and the same kind of privileged access to important and valuable information that inevitably makes them attractive targets for blackmail and bribery.

Snowden showed us in a dramatic fashion just how easy it is for an individual to access and copy top secret material. In his case, we are fortunate that his strong moral principles led him to reveal the abuses he found, rather than selling them to the highest bidder. Next time we may not be so lucky, so we need to build a system that assumes people are weak or corrupt, and make it as hard as possible for them to get away with any unauthorized use of the system. Despite what the NSA and GCHQ would like, that requires not trust, but its exact opposite.

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The TSA finally appears to be doing something to trim down the runtime of security theater performances. The PreCheck program, which sold travelers' rights back to them for a smallish fee is now being applied randomly to people waiting in line. And not just certain somebodies as the TSA did randomly over the holiday season in an effort to appear slightly less annoying. A whole lot of somebodies, according to this report from The Consumerist.

[A]s I approached the checkpoint to have my ID checked and my boarding pass scanned, a man who appeared to be a TSA supervisor stood and declared that my line and the one next to it are now PreCheck lanes.

The initial reaction from those around me was confusion — mutterings of “Why did they put me in the wrong line? What is PreCheck? Do I have to get in another line?” — but then the supervisor just continued telling us that we didn’t need to take off our shoes, remove laptops from their bags, and the other perks of being a PreCheck traveler.

While the TSA would probably prefer this random largesse to be greeted with relief and gratitude, its normal day-to-day enforcement of petty, illogical policies ensures that this sort of thing is only greeted with suspicion.

Chris Morran was naturally perplexed by the TSA's implicit admission that its security theater was, in fact, security theater. After all, if whole lines can be declared "not terrorists," then why all the shoeless jumping through hoops the other 99.99% of the time? He reached out to the TSA, which responded with this:

“TSA also utilizes these lanes during certain times for other low-risk passengers who are identified through a real-time threat assessment process,” explained a TSA rep who then directed me to this TSA.gov page on what the agency calls “Managed Inclusion.”

The infamous "threat assessment program" (as performed by barely-trained "Behavioral Detection Officers" [BDOs] and overseen by Passenger Screening Canines), which the GAO referred to as little better than a "coin flip" at detecting terrorists is now being used as the justification for granting dozens of fliers instant PreCheck approval.

Morran has a good reason to be suspicious of this move. Not only does it undercut the TSA's arguments for pretty much everything else that it does, it also contorts itself to give itself a pat on the back for being so damn good at detecting terrorists. This allows the TSA to give its Threat Assessment Program a veneer of legitimacy it hasn't earned. Morran points out that he didn't see a single "screening dog" anywhere and nothing indicating the decision was being made with any sort of "assessment" being involved. It was just business as usual and then, suddenly, everyone swept through the security process with shoes and laptops intact.

While I'm sure the travelers appreciated the expedited process, the real danger here is that the TSA -- which is supposed to be ensuring our airplanes are terrorist-free -- is now arbitrarily deciding to drop 90% of the process on a whim. Even if the infamous BDOs (and their pet friends) are performing some sort of en masse "assessment," that process has been deemed no more likely to net a terrorist than the randomly dragging every other person off for extra screening. Either the TSA needs to drop the many pretenses that "support" its procedures or it needs to stand by the very things it has claimed for years are essential to preventing terrorist activity. What if this had nothing to do with assessment and had everything to do with agents feeling less than motivated? It would look exactly the same and would have the same amount of "threat detection" behind it.

I would like to see the TSA drop the "theater" part and return to actual security, but trying to half-ass it with crowd-pleasing "everyone is pre-approved!" tactics like this is the agency trying to have it both ways -- and it's hugely disingenuous.

The latest report from the NY Times based on Snowden's revelations seems to jump all over the place, talking about a variety of efforts by the NSA to spy on people. Much of it seems to repeat earlier claims about the NSA's malware program, codenamed QUANTUM. It updates the earlier claims that there are 50,000 QUANTUM-infected computers to claim that the number is now 100,000. However, it also notes that most of the targets are exactly the kinds of things you'd expect the NSA to be spying on: the Chinese and Russian militaries, mainly.

Perhaps more interesting is that it builds on the reporting in Der Spiegel concerning the NSA's catalog of tech tools to infiltrate computers, to tie those back to the QUANTUM program, and note that many of the tools rely not on an internet connection, but on a secretly inserted radio transmitter, which can be picked up by a device in an "oversized suitcase" that can be placed miles away. By itself, none of this is all that surprising, but the documents certainly suggest the NSA is doing this on a larger scale than suspected in the past:

“What’s new here is the scale and the sophistication of the intelligence agency’s ability to get into computers and networks to which no one has ever had access before,” said James Andrew Lewis, the cybersecurity expert at the Center for Strategic and International Studies in Washington. “Some of these capabilities have been around for a while, but the combination of learning how to penetrate systems to insert software and learning how to do that using radio frequencies has given the U.S. a window it’s never had before.”

Again, these activities certainly seem more in line with what you'd expect the NSA to be doing, and raise (yet again) the question of why the NSA needs to "collect it all" when it appears that programs like these can be quite effective in doing targeted surveillance against those actually seeking to attack the US in some manner?

Separately, as the article notes, this has made the US's moral high ground concerning claims that China is doing similar surveillance on the US seem quite questionable. As the article notes, the US's attempted distinction between "national security" and "economic espionage" doesn't make much sense to many.

When the Chinese place surveillance software on American computer systems — and they have, on systems like those at the Pentagon and at The Times — the United States usually regards it as a potentially hostile act, a possible prelude to an attack. Mr. Obama laid out America’s complaints about those practices to President Xi Jinping of China in a long session at a summit meeting in California last June.

At that session, Mr. Obama tried to differentiate between conducting surveillance for national security — which the United States argues is legitimate — and conducting it to steal intellectual property.

“The argument is not working,” said Peter W. Singer of the Brookings Institution, a co-author of a new book called “Cybersecurity and Cyberwar.” “To the Chinese, gaining economic advantage is part of national security. And the Snowden revelations have taken a lot of the pressure off” the Chinese.

Of course, if the US were focused on actually increasing security on US computing systems and networks, rather than undermining them with backdoors and vulnerabilities, perhaps we'd be more protected from the Chinese. It's too bad that the NSA hasn't actually been helping on that front at all.

The story is almost too good to be true for the press. Apparently, the company that owns the famous Empire State Building in NY is suing photographer Allen Henson for $1.1 million because he took a photo of a model named Shelby Carter, posing topless up on one of the ESB's observation decks. I've read nearly a dozen articles about the lawsuit, and I've noticed one thing: every one of them contains one or more of the photos of Carter topless (some pixelate or otherwise cover her breasts, some do not), and every one of them includes direct and different quotes from Henson who seemed quite willing to talk to anyone and everyone about the story and who freely admitted that it was good publicity for his ongoing efforts to photograph topless women around NYC, after a police announcement last year that it's not illegal for women to be topless in NY. However, none of them seem to include the actual lawsuit. We won't post the photos here. You can see them at basically every other link in this post. The closest to having the actual lawsuit (and this surprises me) is the NY Daily News, which at least notes that the lawsuit was filed in Manhattan Supreme Court, and at least suggests the cause of action:

In papers filed in Manhattan Supreme Court, ESRT Empire State Building says photographer Allen Henson caused "damage to its business and reputation as a safe and secure family friendly tourist attraction" by taking pictures of a woman without her shirt on there this past August 9.

I'd really like to see the actual lawsuit to see on what basis the company is making this claim. Yes, the Empire State Building is private property, so its owners can easily kick Henson off the property and even bar him from returning. But I can't see how they have any legal argument at all for demanding $1.1 million. From some of the other comments, there appears to be some allegations that the actions are "commercial" and that it cost the Empire State Building extra money to beef up security while decreasing the Empire State Building's "reputation as a safe and secure family friendly tourist attraction." I'm still not clear how that amounts to something you can sue someone over, let alone for $1 million. But, until someone actually provides the lawsuit (and Henson himself seems to suggest he hasn't even seen it either), it's difficult to understand the details. I have some emails out, and hopefully someone in the press will stop focusing on getting up photos of this woman's breasts for long enough to see if they can get a copy of the actual lawsuit to post as well.

Techdirt has already examined the issue of corporate sovereignty many times over the past year, as it has emerged as one of the most problematic areas of both TPP and TAFTA/TTIP. A fine article by Simon Lester of the Cato Institute examines a hidden assumption in these negotiations: that an investor-state dispute settlement (ISDS) mechanism is needed at all.

Most of his post is devoted to the background of corporate sovereignty, and it provides a useful primer if you're still wondering what exactly ISDS is supposed to do, and why. Having established the framework, Lester concludes by making two key points:

First, if a U.S. (or EU) company chooses to make an investment abroad, why should the U.S. (or EU) government go to bat for it at all? In the past, we used "gunboat diplomacy" to protect our companies. Now we use international lawyers. But why should we do anything? These companies have chosen another jurisdiction for their investment, which is fine. Companies should invest in whatever location makes the most economic sense. But in that situation, it is not clear why the investment is "ours" to worry about anymore. When multinationals invest all over the world, are they really "ours," or are they now just global entities?

Business is inherently about taking risks -- if there were no risk, there would be no need for entrepreneurs. So why should a nation be expected to offer a kind of free insurance policy against those risks when they are incurred abroad -- not least because commercial policies doing that are readily available? Since fans of the free market think that the government should just get out of the way, surely they should extend this to foreign investment too?

Lester's other point is one that many people have made -- that ISDS is in any case unnecessary in an agreement between the US and EU:

when the place of the investment is the EU or US, which have plenty of their own protections in domestic law, international law seems largely duplicative. International investment rules are an opportunity for lawyers to bring additional claims, but are not necessary for "protection" of foreign investment. Without some evidence that more is necessary, perhaps US-EU investment rules should be limited to a basic promise to treat each other's investors equally, let governments settle disputes between themselves, and leave the international constitutional protections out of it.

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