Senators Dianne Feinstein and Richard Burr have been talking about legislation that forces tech companies to help law enforcement break into encrypted devices for quite a while now. Nearly a month ago, they suggested it was almost ready to be formally introduced, but indicated that the White House's response would determine when exactly that happened.
Although the White House has reviewed the text and offered feedback, it is expected to provide minimal public input, if any, the sources said.
Its stance is partly a reflection of a political calculus that any encryption bill would be controversial and is unlikely to go far in a gridlocked Congress during an election year, sources said.
A White House spokesman declined to comment on the pending legislation, but referred to White House press secretary Josh Earnest's statements on encryption legislation. Last month, Earnest said the administration is "skeptical" of lawmakers' ability to resolve the encryption debate given their difficulty in tackling "simple things."
This isn't entirely surprising, as the administration has suggested it won't support such legislation since as far back as September when a leaked document outlined their options for responding to the debate. That document, too, seemed primarily concerned with "political calculus" and what the reaction would be in the public and congress to different versions of "not supporting" the bill, ranging from standing up for the actual truth to punting on the whole issue. In October, they decided to stay silent, though the President has since trotted out the same problematic arguments about compromise and absolutism that we've heard from many politicians.
Now, with the issue refusing to die and Burr and Feinstein's bill perpetually on the horizon, it looks like the White House is going to stick to its silence with "minimal public input" and see what happens. Given the current political climate, and the fact that any such bill almost certainly doesn't stand a chance of passing, this isn't exactly shocking — but it's still disappointing. As we noted last year, when your options include "take a clear stance on the right side of the issue", you shouldn't really need to consider alternatives. The President's open disapproval may not be necessary to prevent the bill from moving forward, but it would go a long way to convincing technology companies and the privacy-aware public that the administration genuinely understands the issue and will fight for what's right.
We've been among those who have pointed out how laughable the Obama administration's claims to be "the most transparent administration in history" are, when, from nearly every angle, it appears that the Obama administration is ridiculously secretive -- beyond any previous administration. So, it's interesting to see that it's not just us who thinks that. The NYT's executive editor, Jill Abramson, who worked in Washington DC for decades, has noted that the Obama administration is, by far, the most secretive she's ever dealt with.
"I would say it is the most secretive White House that I have ever been involved in covering, and that includes — I spent 22 years of my career in Washington and covered presidents from President Reagan on up through now, and I was Washington bureau chief of the Times during George W. Bush's first term," Abramson told Al Jazeera America in an interview that will air on Sunday.
"I dealt directly with the Bush White House when they had concerns that stories we were about to run put the national security under threat. But, you know, they were not pursuing criminal leak investigations," she continued. "The Obama administration has had seven criminal leak investigations. That is more than twice the number of any previous administration in our history. It's on a scale never seen before. This is the most secretive White House that, at least as a journalist, I have ever dealt with."
I guess that's what happens when you declare that whistleblowers are "aiding the enemy" even as you pretend to support them. Your administration clams up.
Whenever this issue comes up, I keep going back to the speculation from Daniel Ellsberg a few years ago, in which he noted that while President Bush (the younger) abused his power and bulked up the surveillance state in secretive ways, when push came to shove, he believed that Bush was proud of doing that. President Obama, on the other hand, seems to be embarrassed about the way he's abused the power of the Presidency, and goes to tremendous lengths to try to hide those abuses and excesses. It's pure speculation on the part of Ellsberg, but it certainly rings true on multiple levels.
But the Obama administration, while declining to comment on the specific order, said the practice was "a critical tool in protecting the nation from terrorist threats to the United States".
Uh, that's really not the point. Under that standard, there is no Constitution. There are lots of things that could be very useful tools in stopping crime and attacks, but we don't allow them because they violate the public's rights. We don't allow the FBI to walk up and down the street, enter every house and search it for weapons, for example. While that might be a "critical tool" in stopping the use of those weapons, it's also incredibly unconstitutional on a whole variety of levels. Saying that it's okay to ignore the 4th Amendment entirely because there are terrorists out there is no excuse at all.
And, of course, as we noted last night, there's nothing new about this. Already it's been confirmed that the order to Verizon was not a special case, but rather a "renewal of an ongoing practice." Senator Feinstein has admitted that this has been going on consistently for the past seven years, and this latest leak is just the "renewal" for another three months. And if anyone thinks that only Verizon got this order and has been doing this for the past seven years, you're not paying attention. As we've noted, we've had multiple whistleblowers who have flat out said that this was happening for years. Mark Klein, who worked at AT&T, revealed in 2006 that he'd helped hook up NSA machines to record all data flowing over the AT&T network. Meanwhile former NSA employee William Binney also blew the whistle on this activity from the NSA side. We've known all of this for years... and no one seemed to care until now.
Even more incredible, is that the NSA has no problem directly lying about all of this. Because last week, before all of this came out, and before the Obama administration 'fessed up to using this "critical tool," General Keith Alexander, the head of the NSA, ridiculously claimed the following:
"The great irony is we're the only ones not spying on the American people," he quipped.
Just days after that was said, we have written proof that this claim is 100% false. So, now, what do we do about it?
President Barack Obama appears to look at the state secrets privilege in the United States the same way past Presidents have: it's a horrific injustice all the way up to the exact moment when it becomes available to them to use. For instance, after publicly campaigning against the Bush administration's use of state secrets exemptions to block litigation over the Patriot Act, he then leaned on them over something as relatively benign as copyright treaties. When it comes to state secrets, there are two related but slightly different issues at play. First, the government tends to be somewhat paranoid when it comes to classifying information in general. Second, but related, is the fact that state secrets are usually invoked domestically under the idea that United States citizens need to be protected against information coming out in the course of legal proceedings. What you end up with from those two issues is a government that keeps pertinent information hidden from its own constituency, often with that information being over-classified. The results of that intersection can often seem laughably paranoid.
Such is the case in a suit brought against the government by a Malaysian citizen, Rahinah Ibrahim, who had been a student at Stanford when she was denied air travel and detained in San Francisco in 2005, the apparent result of being on the no-fly list. U.S. District Judge William Alsup has sharply diverted from his peers in the case, challenging the government's assertion of state-secrets exemptions for evidence in the case.
In an order issued earlier this month and made public Friday, Alsup instructed lawyers for the government to "show cause" why at least nine documents it labeled as classified should not be turned over to Ibrahim's lawyers. Alsup said he'd examined the documents and concluded that portions of some of them and the entirety of others could be shown to Ibrahim's attorneys without implicating national security.
"After a careful review of the classified materials by the Court, this order concludes that a few documents could potentially be produced with little or no modifications to them," Alsup wrote in an April 2 order (posted here). "This order independently determines that in addition to correspondence between the parties, the two internal training documents are eligible for production to plaintiff’s counsel without implicating national security."
For the most part, Alsup's reasoning appears as banal as it does just. Several of the documents requested by Ibrahim's lawyers are antiquated to the point that their being revealed should pose no danger to national security. This would still be important, since judges as a rule shy away from challenging the White House over classification on national security grounds. Alsup offers his reasons for the challenge, stating that the documents are highly pertinent to the case, that the suit on constitutional grounds is proper, and that the information contained within the documents cannot be obtained anywhere else. In other words, any minimal risk in exposing the documents is trumped by Ibrahim's rights as the plaintif in seeking justice.
But the real highlight of how silly this all can get is that the government is attempting to include correspondence between Ibrahim and the government as classified. This, Judge Alsup points out, simply cannot be the case. Driving the hypocrisy of the matter home is that Attorney General Eric Holder filed a declaration in the case, supporting the states-secrets claims. Holder, it should be noted, is an appointee of President Obama, who promised reforms in the use of state-secrets.
In summary, past administrations were vilified for doing exactly what Obama is doing now. That is, unless Judge Alsup's challenge succeeds.
Tim Wu has an excellent article in the New Yorker, talking about the Computer Fraud and Abuse Act (CFAA), and specifically about how it was used against Aaron Swartz, declaring it the worst law in technology. Much of it covers similar ground to what we've covered before, but it also makes some really good points towards the end about how the Obama administration really needs to pull back on its reliance on the law in so many cases. First, he notes that simply relying on "prosecutorial discretion" is not enough, since we've seen that doesn't work:
The broadest provision, 18 U.S.C. §1030(a)(2)(c), makes it a crime to “exceed authorized access, and thereby obtain… information from any protected computer.” To the Justice Department, “exceeding authorized access” includes violating terms of service, and “any protected computer” includes just about any Web site or computer. The resulting breadth of criminality is staggering. As Professor Kerr writes, it “potentially regulates every use of every computer in the United States and even many millions of computers abroad.” You don’t have to be a raving libertarian to think that might be a problem. Dating sites, to borrow an example from Judge Alex Kozinski, usually mandate that you tell the truth, making lying about your age and weight technically a crime. Or consider employer restrictions on computers that ban personal usage, like checking ESPN or online shopping. The Justice Department’s interpretation makes the American desk-worker a felon.
When judges or academics say that it is wrong to interpret a law in such a way that everyone is a felon, the Justice Department has usually replied by saying, roughly, that federal prosecutors don’t bother with minor cases—they only go after the really bad guys. That has always been a lame excuse—repulsive to anyone who takes seriously the idea of a “a government of laws, not men.” After Aaron Swartz’s suicide, the era of trusting prosecutors with unlimited power in this area should officially be over.
He notes (as we have) that it doesn't look like Congress is really taking the matter that seriously yet. But he also notes that we don't have to wait for Congress. The DOJ should make it a stated policy not to interpret the law in such a ridiculous manner.
There is a much more immediate and effective remedy: the Justice Department should announce a change in its criminal-enforcement policy. It should no longer consider terms-of-service violations to be criminal. It can join more than a dozen federal judges and scholars, like Kerr, who adopt a reasonable and more limited interpretation. The Obama Administration’s policy will have no effect on civil litigation, so firms like Oracle will retain their civil remedies. President Obama’s DREAM Act enforcement policy, under which the Administration does not deport certain illegal immigrants despite Congress’s inability to make the act a law, should be the model. Where Congress is unlikely to solve a problem, the Administration should take care of business itself.
All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This states that ambiguous criminal laws should be construed in favor of a defendant. As the Supreme Court puts it, “When choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” So far, at least thirteen federal judges have rejected the Justice Department’s interpretation of the Computer Fraud and Abuse Act. If that’s not a sign that the law is unclear and should be interpreted with lenity, I don’t know what is.
Failing that -- and we've rarely seen a law enforcement agency take a weapon out of its own arsenal by choice -- Wu suggests that it's President Obama's responsibility to speak up and tell the DOJ to change its policies. He notes, "with just one speech, the President can set things right."
The internet is filled with strange memes, but a recurring theme seems to be asking a simple question about "who would win in a fight?" given various outrageous scenarios. Here are just a few amusing examples.
Right after the election, we noted the stories showing how Obama's technology advantage was impressive, while the get-out-the-vote technology that the Romney campaign built up appeared to fail spectacularly. However, there's an interesting post mortem to this, which shows how techies and politicians still usually come from very, very different worlds. The world class team of technologists who helped build up Obama's campaign tech are trying to release their work as open source -- but Democratic Party operatives are trying to keep it secret, believing (almost certainly incorrectly) that this gives them a proprietary advantage:
But in the aftermath of the election, a stark divide has emerged between political operatives and the techies who worked side-by-side. At issue is the code created during the Obama for America (OFA) 2012 campaign: the digital architecture behind the campaign’s website, its system for collecting donations, its email operation, and its mobile app. When the campaign ended, these programmers wanted to put their work back into the coding community for other developers to study and improve upon. Politicians in the Democratic party felt otherwise, arguing that sharing the tech would give away a key advantage to the Republicans. Three months after the election, the data and software is still tightly controlled by the president and his campaign staff, with the fate of the code still largely undecided. It’s a choice the OFA developers warn could not only squander the digital advantage the Democrats now hold, but also severely impact their ability to recruit top tech talent in the future.
The politicians who want to keep it locked up are making a huge mistake for a very large number of reasons that people who are steeped in technology understand. Let's list out some of the ways in which it's stupid to keep this secret:
It basically makes the technology useless. As one of the techies who worked on the project notes, the software "will be mothballed," meaning that four years from now it'll be useless. What the politicians see as keeping an advantage is really just squandering a useful framework.
It completely misunderstands how technology advances and works. No one expects software from today to be the same four years from now. By mothballing the tech, it will mean that the next campaign will effectively be starting from scratch. Open sourcing it would allow additional work to continue on this.
You can learn from others as well. The really shortsighted part is this insistence that open sourcing it "helps the other side." Again, what will be used four years (or even two years) from now will be quite different as the technology advances. And having it open sourced means that lots of folks can jump in and build on the tech in the meantime. And, yes, even Republican techies might work on it, and the Dems can learn from them as well.
Keeping it closed pisses off the techies, who will be less likely to contribute or join the team next time around.
If the Democrats believe they have stronger technologists, then next election they should still be able to make innovations faster than their opponents.
It quite possibly violates some open source licenses, since much of the code was built on open source software, some of which requires any additional work to also be open sourced.
Keeping the tech secret also means that other campaigns (beyond just elections) can't make use of the technology as well, which could actually hurt causes that the Democrats support.
In many ways this is the same old battle we've seen from legacy companies vs. more open upstarts for years. The legacy players think their advantage is in keeping the code secret. The upstarts know that's wrong: the pace of innovation and the rate of change means that by being open you can better keep up and do more. Keeping it closed guarantees stagnation and falling behind.
As we've discussed in the past, works created by the federal government are automatically in the public domain under section 105 of US copyright law:
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
So... that would suggest that musical works created by the federal government should be in the public domain, right? And... according to the Times of London, the performance of the Star Spangled Banner by Beyonce at President Obama's inauguration, was actually pre-recorded by the Marine Corp. Band, and then lip synced by Beyonce. Last we checked, the Marine Corp. Band is a part of the US government, meaning that recordings it creates should be in the public domain.
This is a request under the Freedom of Information Act. I hereby request the following records:
A copy of the backing track used during Beyonce's Inauguration performance, as well as copies of other backing tracks created in preparation for Inauguration events, whether or not they were actually used.
The existence of these documents was disclosed by a spokeswoman for the Marine Corp Band to The Times of London
The performance by Beyonce could still be covered by copyright, since she is not an employee of the government, but that backing track almost certainly should be in the public domain. Of course, it's unclear to me if, even if the track is in the public domain, the federal government has an obligation to hand it over as part of FOIA request, but it seems like it's at least reasonable to ask.
Congress should fund research into the effects that violent video games have on young minds.
While it may seem like a shot across the bow of videogames to score some cheap political points, what Obama actually has in mind is a bit more subtle. (Make no mistake, though: this subject wouldn't have been broached if not for the Newtown shooting.)
Conduct research on the causes and prevention of gun violence, including links between video games, media images, and violence: The President is issuing a Presidential Memorandum directing the Centers for Disease Control and scientific agencies to conduct research into the causes and prevention of gun violence. It is based on legal analysis that concludes such research is not prohibited by any appropriations language. The CDC will start immediately by assessing existing strategies for preventing gun violence and identifying the most pressing research questions, with the greatest potential public health impact. And the Administration is calling on Congress to provide $10 million for the CDC to conduct further research, including investigating the relationship between video games, media images, and violence.
Two things worth noting in this paragraph:
The "Presidential Memorandum" lifts a moratorium on this sort of research by the CDC, something that has been in place for over 15 years. Kyle Orland at Ars Technica explains:
[T]he federal Centers for Disease Control have been prohibited from funding studies that "advocate or promote gun control" since 1996, when Congress cut the $2.6 million the organization had been using to fund gun injury research through its Center for Injury Prevention and Control. Further moves since then have prevented the CDC from even receiving federal crime data for gun research, and prohibited the National Institute of Health from doing gun violence research as well.
And why was this research prohibited? Depending on who you ask, it's either because the NRA didn't like guns being tied to injuries and death (Orland calls it a "chilling effect" brought on by Arthur Kellerman's study) or the study itself was severely flawed and skewed to fit the pre-existing bias of the director of the National Center for Injury Prevention and Control, which operated under the CDC's direction.
Secondly, the wording directs the CDC to focus on areas with the "greatest potential public health impact." The administration may namecheck current hot buttons like videogames and violent media, but as it's worded, the CDC has no instruction to start its work by assessing these areas. As Orland states, this one sentence is likely nothing more than a brief concession to the current political climate:
Making a brief mention of video game studies as a part of a $10 million funding request is a good way to pay lip service to these political concerns on both the left and the right without really making it a priority. If studying video game and media violence were actually a major focus of the president's gun control agenda, it would have a much more prominent place in both his remarks and his official funding requests. Instead, the real money the president is asking from Congress will go to more important things: $20 million for the National Violent Death Reporting System, $14 million for police and security training, $150 million for in-school mental health counselors, $30 million to develop school emergency management plans, and so on.
Overall, putting the CDC in charge is probably (in the parlance of government works) the "least worst" way to handle this. The CDC will have access to more mental health-related data than other existing entities, a factor that definitely needs to be considered. (But this factor also presents its own problems: it's entirely too easy to write off mass murderers as mentally defective. The idea of taking someone's life, much less multiple lives, is so repulsive to "normal" human beings that the kneejerk reaction is to blame it on mental illness. It's safe to say that normal people would never commit mass murder, but it's way too simplistic to assume that every perpetrator is mentally defective.) It should also have access to demographic and other environmental factors, which should give it a more rounded picture than the limited sample sizes and variables of smaller studies and surveys.
Another factor that makes the CDC a preferable choice is the fact that it's an existing agency. Turning this task over to a special committee would result in a room filled to capacity with appointees and their predispositions. (The argument can also be made that the CDC carries its own predispositions, but expecting a government directive, especially an executive order, to conjure up a completely impartial study is to show a level of faith the government simply doesn't deserve.)
Now, the downside.
Any conclusions the CDC comes to will be immediately suspect. No matter what it finds, the conclusions will be disputed. The presence or absence of a link between violent media and gun violence will only exacerbate the divide between both sides of the debate. To date, no link has been conclusively proven. This study's outcome will likely be more of the same. It's nearly impossible isolate people and "violent media" from the other factors that affect the equation. The CDC should be able to incorporate its existing knowledge in regards to risk factors, but the answers it comes up with will fail to satisfy everyone. Ultimately, it will change nothing, but it will have the power to inform government policy going forward and, depending on the political climate, it's likely that gossamer-thin correlation will be enough to justify legislation.
Then there's the tangled issue of gun control policy, something the CDC has waded into in the past. Again, any conclusions drawn will be contrasted against its history with the National Center for Injury Prevention and Control and its biased approach to the study of gun violence. (Particularly troublesome is a 1987 CDC report, in which the director of the NCIPC thought enough evidence existed to "confiscate all firearms from the general population" in order to prevent 8,600 homicides a year.) The administration has done a disservice to both groups (video game fans, gun owners) by making this study inseparable from a larger gun control proposal.
The best case scenario, like so much in government, is that nothing happens. The studies are proposed, the climate shifts and, like so much before it, it's discarded in favor of What's Ailing the Nation Now. While it would be interesting to see the CDC perform an in-depth study (especially if the data collected is made available to the public), the chance of a negative outcome (in terms of misguided legislation, etc.) is way too high.
On the whole, though, it is refreshing to see videogames treated as part of the media, rather than a wholly distinct scapegoat capable of destroying society on its own. Unfortunately, even with its rather brief appearance in the administration's set of proposals, it appears the government still wants to control media (as opposed to "the media") and this single paragraph could help rationalize unconstitutional measures.
from the unfettered-power:-good-for-me,-not-so-much-for-thee dept
The US government's "targeted strike" drone program has been around since George W. Bush's first presidential term. Despite being nearly a decade old, the program has largely operated in a gray area of legality, with no codified set of rules governing drone strikes. So, what does it take to get some guidelines applied to the executive branch-controlled remote-control merchants of death? The threat of having to turn control over to the "other side," apparently.
Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.
So, when the control is in your hands, it's ok to direct long distance killings without "clear standards and procedures." But, if the other guy is being handed the power, it's suddenly time to "develop explicit rules." This doesn't come across as genuine concern. It sounds more like a last-minute effort to hobble the program by throwing in a handful of cursory checks and balances. This quote from an anonymous administration official put its all in perspective:
“There was concern that the levers might no longer be in our hands,” said one official, speaking on condition of anonymity. With a continuing debate about the proper limits of drone strikes, Mr. Obama did not want to leave an “amorphous” program to his successor, the official said. The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace, the official said.
Again, this sounds nothing like genuine concern about "doing the right thing" by implementing strict guidelines and otherwise easing the transition between presidents. It sounds more like "Well, if we have to give up this power, let's make it as limited as possible."
Now, maybe that's just the way I'm hearing it. But those sentences aren't very comforting, either. Rules -- explicit rules -- should already be in place. Now that Obama's safely back in office, the team's just going to ease off the gas pedal?
This isn't very surprising, considering the wall of secrecy surrounding the targeted strike program -- and how far away the program has drifted from its original purpose.
Despite public remarks by Mr. Obama and his aides on the legal basis for targeted killing, the program remains officially classified. In court, fighting lawsuits filed by the American Civil Liberties Union and The New York Times seeking secret legal opinions on targeted killings, the government has refused even to acknowledge the existence of the drone program in Pakistan.
But by many accounts, there has been a significant shift in the nature of the targets. In the early years, most strikes were aimed at ranking leaders of Al Qaeda thought to be plotting to attack the United States. That is the purpose Mr. Obama has emphasized, saying in a CNN interview in September that drones were used to prevent “an operational plot against the United States” and counter “terrorist networks that target the United States.”
No one's looking to declassify any information about this program anytime soon. The Defense Department and the CIA are pushing for "greater latitude" to carry out strikes. Other government officials have argued against the drone program, but to date, the administration seems willing to continue the program "as is," without returning it to its original focus. At this point, the targeted strike program has expanded to include strikes on militants not engaged directly with US forces. Acceptable targets also include individuals unknown to those requesting or clearing the strikes.
Then there's the matter of strikes against people whose identities are unknown. In an online video chat in January, Mr. Obama spoke of the strikes in Pakistan as “a targeted, focused effort at people who are on a list of active terrorists.” But for several years, first in Pakistan and later in Yemen, in addition to “personality strikes” against named terrorists, the C.I.A. and the military have carried out “signature strikes” against groups of suspected, unknown militants.
Originally that term was used to suggest the specific “signature” of a known high-level terrorist, such as his vehicle parked at a meeting place. But the word evolved to mean the “signature” of militants in general — for instance, young men toting arms in an area controlled by extremist groups. Such strikes have prompted the greatest conflict inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.
As the New York Times article points out, the US is setting the precedent for countries currently developing their own drone programs. And that precedent seems to be that these programs should be operated autonomously, secretly and unhampered by explicit rules and regulations. The same country that has decried targeted killings by other countries (namely, Israel) is now showing the rest of the world that all you really need to pull off long distance assassinations is the will and the way.