Russian President Vladimir Putin gave a big press conference on Thursday, and spent some time talking about President Obama, Ed Snowden and the various US surveillance programs that have been revealed. Putin appeared to be quite supportive of the surveillance programs, saying that he believes that the US’s surveillance programs are a “necessity” and “mainly directed at fighting terrorism,” so there’s not a real problem with them. He even defended collecting data on everyone “because you have to monitor not only a specific terrorist suspect, but rather his whole network of relationships.” That Vladimir Putin would appreciate vast spying power is hardly a surprise. But this claim is raising some eyebrows:
“How do I feel about Obama after Snowden’s revelations? I envy him because he can do this without incurring any consequences.”
Did you catch that? Putin, the former head of the KGB, and very well known for using Russian intelligence services to his strong advantage is envious that President Obama has all this surveillance capabilities at his fingertips and that all of this can be revealed “without incurring any consequences.” It seems like there should be a general rule of thumb: when Vladimir Putin is envious of your surveillance state, you’ve gone too far.
There was an earlier report in the Washington Post that one of the tech execs who met with President Obama on Tuesday had directly said that the President should issue a pardon for Ed Snowden — something the President immediately said he could not do. There had been some speculation on which exec said that, but according to CNN, it was Mark Pincus, the founder of social gaming company Zynga:
A source familiar with the meeting told CNN Chief Washington Correspondent Jake Tapper that one of the executives, Mark Pincus, founder of Zynga, which makes on-line social games, suggested to the President that he pardon NSA leaker Edward Snowden, but Obama said he could not do that. The suggestion of the pardon was first reported by the Washington Post.
Hopefully other execs will follow on that lead and start speaking out. Given everything that’s happened in the past six months, the idea that the US is still trying to arrest Snowden and charge him under the Espionage Act is a growing travesty that makes the administration look ridiculously petty. A true leader knows when to admit to making mistakes. The President has an opportunity that he’s squandering.
What we have below is actually a ProPublica post by Kara Brandeisky, posted back in August of this year, but republished here under ProPublica’s Creative Commons license. However, given the White House task force’s recommendations, we thought it might be useful to be reminded what Senator Obama fought for concerning surveillance before he was President. Many of these look remarkably similar to what the task force proposes…
When the House of Representatives recently considered an amendment that would have dismantled the NSA’s bulk phone records collection program, the White House swiftly condemned the measure. But only five years ago, Sen. Barack Obama, D-Ill. was part of a group of legislators that supported substantial changes to NSA surveillance programs. Here are some of the proposals the president co-sponsored as a senator.
As a senator, Obama wanted to limit bulk records collection.
The measure Obama supported in 2007 is actually similar to the House amendment that the White House condemned earlier this month. That measure, introduced by Reps. Justin Amash, R-Mich., and John Conyers, D-Mich., would have ended bulk phone records collection but still allowed the NSA to collect records related to individual suspects without a warrant based on probable cause.
The amendment failed 35-63. Obama later reversed his position and supported what became the law now known to authorize the PRISM program. That legislation — the FISA Amendments Act of 2008 — also granted immunity to telecoms that had cooperated with the government on surveillance.
The law ensured the government would not need a court order to collect data from foreigners residing outside the United States. According to the Washington Post, analysts are told that they can compel companies to turn over communications if they are 51 percent certain the data belongs to foreigners.
Powerpoint presentation slides published by the Guardian indicate that when analysts use XKeyscore — the software the NSA uses to sift through huge amounts of raw internet data — they must first justify why they have reason to believe communications are foreign. Analysts can select from rationales available in dropdown menus and then read the communications without court or supervisor approval.
Finally, analysts do not need court approval to look at previously-collected bulk metadata either, even domestic metadata. Instead, the NSA limits access to incidentally collected American data according to its own “minimization” procedures. A leaked 2009 document said that analysts only needed permission from their “shift coordinators” to access previously-collected phone records. Rep. Stephen Lynch, D-Mass., has introduced a bill that would require analysts to get special court approval to search through telephone metadata.
As a senator, Obama wanted the executive branch to report to Congress how many American communications had been swept up during surveillance.
Feingold’s 2008 amendment, which Obama supported, would have also required the Defense Department and Justice Department to complete a joint audit of all incidentally collected American communications and provide the report to congressional intelligence committees. The amendment failed 35-63.
The Inspector General of the Intelligence Community told Senators Ron Wyden, D-Ore., and Mark Udall, D-Co. last year that it would be unfeasible to estimate how many American communications have been incidentally collected, and doing so would violate Americans’ privacy rights.
As a senator, Obama wanted to restrict the use of gag orders related to surveillance court orders.
Obama co-sponsored at least two measures that would have made it harder for the government to issue nondisclosure orders to businesses when compelling them to turn over customer data.
One 2007 bill would have required the government to demonstrate that disclosure could cause one of six specific harms: by either endangering someone, causing someone to avoid prosecution, encouraging the destruction of evidence, intimidating potential witnesses, interfering with diplomatic relations, or threatening national security. It would have also required the government to show that the gag order was “narrowly tailored” to address those specific dangers. Obama also supported a similar measure in 2005. Neither measure made it out of committee.
The Obama administration has thus far prevented companies from disclosing information about surveillance requests. Verizon’s surveillance court order included a gag order.
Meanwhile, Microsoft and Google have filed motions with the Foreign Intelligence Surveillance Court seeking permission to release aggregate data about directives they’ve received. Microsoft has said the Justice Department and the FBI had previously denied its requests to release more information. The Justice Department has asked for moretime to consider lifting the gag orders.
As a senator, Obama wanted to give the accused a chance to challenge government surveillance.
Until recently, federal prosecutors would not tell defendants what kind of surveillance had been used.
The New York Times reported that in two separate bomb plot prosecutions, the government resisted efforts to reveal whether its surveillance relied on a traditional FISA order, or the 2008 law now known to authorize PRISM. As a result, defense attorneys had been unable to contest the legality of the surveillance. Sen. Dianne Feinstein, D-Calif., later said that in both cases, the government had relied on the 2008 law, though prosecutors now dispute that account.
On July 30, the Justice Department reversed its position in one bomb plot prosecution. The government disclosed that it had not gathered any evidence under the 2008 law now known to authorize sweeping surveillance.
But that’s not the only case in which the government has refused to detail its surveillance. When San Diego cab driver BasaalySaeedMoalin was charged with providing material support to terrorists based on surveillance evidence in Dec. 2010, his attorney, Joshua Dratel, tried to get the government’s wiretap application to the Foreign Intelligence Surveillance Court. The government refused, citing national security.
Dratel only learned that the government had used Moalin’s phone records as the basis for its wiretap application — collected under Section 215 of the Patriot Act — when FBI Deputy Director Sean Joyce cited the Moalin case as a success story for the bulk phone records collection program.
As a senator, Obama wanted the attorney general to submit a public report giving aggregate data about how many people had been targeted for searches.
Under current law, the attorney general gives congressional intelligence committees a semiannual report with aggregate data on how many people have been targeted for surveillance. Obama co-sponsored a 2005 bill that would have made that report public. The bill didn’t make it out of committee.
Despite requests from Microsoft and Google, the Justice Department has not yet given companies approval to disclose aggregate data about surveillance directives.
As a senator, Obama wanted the government to declassify significant surveillance court opinions.
Currently, the attorney general also gives congressional intelligence committees “significant” surveillance court opinions, decisions and orders and summaries of any significant legal interpretations. The 2005 bill that Obama co-sponsored would have released those opinions to the public, allowing redactions for sensitive national security information.
Before Edward Snowden’s disclosures, the Obama Justice Department had fought Freedom of Information Act lawsuits seeking surveillance court opinions. On July 31, the Director of National Intelligence released a heavily redacted version of the FISA court’s “primary order” compelling telecoms to turn over metadata.
In response to a request from Yahoo, the government also says it is going to declassify court documents showing how Yahoo challenged a government directive to turn over user data. The Director of National Intelligence is still reviewing if there are other surveillance court opinions and other significant documents that may be released. Meanwhile, there are severalbills in Congress that would compel the government to release secret surveillance court opinions.
It came out yesterday that President Obama was scheduled to meet privately with a group of “tech” execs officially about the status of the healthcare.gov website. However, as some expected, it appeared that the meeting focused much more on the NSA’s overreach and the need for reforms. While somewhat disappointing that the meeting was held privately, it looks like the execs made it clear that the NSA surveillance efforts were doing a lot more harm than good and something needed to change.
Schmidt, of Google, opened the meeting and laid out industry officials’ concerns. Obama seemed sympathetic to the idea of allowing more disclosure of government surveillance requests by technology companies, according to a tech industry official who was briefed on the meeting. The official asked to remain anonymous because the meeting was private.
Mayer, the Yahoo! executive, brought up concerns about the potentially negative impact that could be caused if countries, such as Brazil, move forward with legislation that would require service providers to ensure that data belonging to a citizen of a certain country remain in the country it originates, the official said.
That would require technology companies to build data centers in each country — a costly problem for American Internet companies, the official said. The White House noted in a statement after the meeting that the group discussed the “economic impacts of unauthorized intelligence disclosures.”
We’ve been saying since the Snowden leaks first came out that the tech industry needed to be a lot more vocal about how bad the NSA’s actions are for pretty much everyone, so it’s good to see at least some effort to continue to push that story. Of course, the list of attendees also includes AT&T’s Randall Stephenson — and AT&T has been one of the companies most complicit in the NSA’s activities, something the company refuses to talk about, and unlike the actual tech companies, seems completely unwilling to address.
Remember the supposedly “independent, outside experts” that President Obama had invited to be on a task force to review the NSA’s surveillance? The same task force that was actually set up by and reported to director of national intelligence James Clapper? The one that was actually made up of intelligence community insiders, who kicked things off by having two of its key members not bother to to show up for a meeting with civil libertarian groups?
Right. So their report is “due” to be delivered this Sunday, and some of the details have leaked. While the Wall Street Journal suggested that the recommendations would “constitute a sweeping overhaul of the National Security Agency”, almost everyone looking at the details suggests something completely different. Instead, it’s looking a lot more like some stern language accompanied by cosmetic changes that “leave spying programs largely unchanged.” For example, it appears to recommend that bulk collection of metadata continue, but potentially with that data residing at the telcos, instead of in the NSA’s own databases.
If that sounds familiar, it’s because this is exactly the “concession” that NSA boss Keith Alexander himself proposed. When the task force is directly pitching the same “solution” the NSA’s own boss has proposed, that’s hardly a “sweeping overhaul”.
Oh, and what appears to be one somewhat substantive move suggested in the report — definitively splitting the NSA and the US Cyber Command — has already been pre-rejected by the White House. If you don’t recall, these are supposedly two different organizations — but they’re currently both run by Keith Alexander and are housed in the same place. The NSA is supposed to just be obtaining “signals intelligence”, not conducting offensive operations. US Cyber Command, on the other hand, does conduct offensive operations, launching numerous attacks on computing systems around the globe. Many, many people see significant problems with this, as the roles of the two can be merged in dangerous ways — such as rather than having the groups protect the US from computer attacks, having them help to create new vulnerabilities for their own purposes (basically, exactly what’s happening).
Many have argued that Cyber Command should have civilian rather than military leadership, and the task force is rumored to support this. But without the report officially being delivered, the White House has already flatly rejected the idea.
“Following a thorough interagency review, the administration has decided that keeping the positions of NSA Director and Cyber Command Commander together as one, dual-hatted position is the most effective approach to accomplishing both agencies’ missions,” White House spokeswoman Caitlin Hayden said in an e-mail
So, we end up with a task force report that has cosmetic changes to the surveillance program, and one big change they’re going to recommend has already been dismissed out of hand before the recommendation was even made. In other words, this whole task force was as much of a farce as everyone expected.
Remember how, when President Obama set it up, the main purpose was to supposedly “restore the trust” of the American public in what the NSA is doing? That doesn’t seem to be working.
I cannot say enough good things about Ryan Lizza’s comprehensive article about the NSA’s surveillance programs and the legal mess and political fights they’ve created. There’s nothing particularly new in the article, but it does an astoundingly good job putting everything that we’ve learned into context. Even as someone who’s been following all of this very closely, it was still a bit of a jumbled puzzle in my mind, but Lizza’s piece took all of it and laid out the entire picture. It goes through all of the details of how and why the NSA began the program, its regular and repeated (often egregious) abuses, and the questionable legal defenses to protect the program. It goes into great detail on Senator Ron Wyden’s long fight against these programs and in favor of civil liberties and the Constitution. It details how and why President Obama flip-flopped from his position as Senator and kept the programs, despite multiple opportunities to dump them. Even crazier, it discusses how a proposal Obama made as Senator might have stopped these programs years ago:
Even without a full picture of the programs, two senators who were not on the Intelligence Committee became intense critics of N.S.A. domestic surveillance: Barack Obama and Joe Biden. In May, 2006, after the USA Today article appeared, Biden said it was frightening to learn that the government was collecting telephone records. “I don’t have to listen to your phone calls to know what you’re doing,” he told CBS News. “If I know every single phone call you made, I’m able to determine every single person you talked to. I can get a pattern about your life that is very, very intrusive.”
Obama’s objections to domestic surveillance stretched back even further. In 2003, as a Senate candidate, he called the Patriot Act “shoddy and dangerous.” And at the 2004 Democratic Convention, in the speech that effectively launched his eventual campaign for President, he took aim at the “library records” provision of the law. “We worship an awesome God in the blue states, and we don’t like federal agents poking around our libraries in the red states,” he declared. In 2005, when he arrived in Washington, Obama became one of Wyden’s new allies in his attempts to reform the law. The Patriot Act was up for reauthorization, and, at Wyden’s urging, the Senate was trying to scale back the “library records” section. One of the first bills that Obama co-sponsored, the Security and Freedom Enhancement Act, would have required that the government present “specific and articulable facts” if it wanted a court order for records, a much higher standard than the existing one.
Obama and several other senators, including John Kerry, now the Secretary of State, and Chuck Hagel, the current Secretary of Defense, laid out their legal case against the provision in a letter to colleagues on December 14, 2005. The government could “obtain library, medical and gun records and other sensitive personal information under Section 215 of the Patriot Act on a mere showing that those records are relevant to an authorized intelligence investigation,” they wrote. It allowed “government fishing expeditions targeting innocent Americans. We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy.” The following day, on the Senate floor, Obama said that the provision “seriously jeopardizes the rights of all Americans and the ideals America stands for.”
The Bush White House fought Obama’s changes, but offered a few minor concessions. Most notably, a business that received a demand for records could challenge in court a nondisclosure agreement that accompanied the demand. That was enough to placate some Democrats, including Obama. Wyden objected that the change did nothing to address Obama’s concerns, but the reauthorization of the Patriot Act passed the Senate on March 1, 2006. Wyden, eight other Democrats, and one Independent voted against it; Obama and Biden voted for it. Bush signed the law on March 9th.
Wyden later learned that, while he and Obama were fighting to curtail Section 215, the N.S.A.’s lawyers were secretly arguing before the FISA court that the provision should allow the N.S.A. to legally collect the phone records of all Americans. The lawyers, encouraged by their success in retroactively legalizing the Internet-metadata program, believed that they could persuade the FISA court to force phone companies to regularly hand over their entire databases. At the FISA court, there are no lawyers challenging the government’s arguments; all the N.S.A. needed to do was convince a single judge. Had Obama’s language been adopted, the N.S.A.’s case would have collapsed.
It’s a long but fascinating article that you owe it to yourself to read, no matter where you stand on these issues. It paints the whole picture that hasn’t been clear to many, and highlights just how dysfunctional the oversight has been of the NSA. And, if you weren’t already impressed enough by Senator Wyden, the article presents even more reasons to be impressed by him (and depressed that there’s only one of him).
On Twitter last week, after the Snowden leaks showing that, yes, as Wyden had been hinting all along, the NSA has been collecting location data on tons and tons of people, there was a great tweet by Kade Ellis, saying:
New rule: when Ron Wyden asks “NSA, do you do this spying?” HE ALREADY KNOWS THE ANSWER AND THE ANSWER IS ALWAYS YES
Unfortunately, as the article details, Wyden very rarely is even allowed to ask these questions, and the intelligence community stonewalls at every opportunity. Senator Dianne Feinstein, who should be managing oversight of the intelligence community appears to believe her job is rather to defend and support the intelligence community.
Still, the most disappointing aspects of the article really focus on how President Obama and his advisors, many of whom had spoken out against the Patriot Act and various aspects of the program now in place, suddenly changed positions once they were in power, and it was their power to abuse. The repeated stories of intelligence industry insiders coming up with the flimsiest of reasons why these programs must continue are plenty troubling. However, the fact that no one in the government seems to think that the American public can even be trusted with their basic reasoning and interpretations of the laws of the land is just ridiculous.
Either way, as stated, you owe it to yourself to find some time to read the whole thing — but prepare to be outraged.
In an interview on Thursday, President Obama said that he’s going to propose some “self-restraint on the NSA” and to “initiate some reforms that can give people more confidence.” Of course, he’s the boss of the NSA. He doesn’t need to “propose” anything — he can order them to stop. Furthermore, it appears that nearly everything else he talked about was supporting the actions of the NSA, so it’s a bit difficult to take seriously this idea that there will be any significant decrease in NSA activity.
“The challenge is…we do have people who are trying to hurt us. And they communicate through these same systems,” Obama said. “And if we’re going to do a good job preventing a terrorist attack in this country, a weapon of mass destruction getting on the New York subway system, etc., we do want to keep eyes on some bad actors.”
“I want to everybody to be clear: the people at the NSA, generally, are looking out for the safety of the American people. They are not interested in reading your emails. They’re not interested in reading your text messages. And that’s not something that’s done. And we’ve got a big system of checks and balances, including the courts and Congress, who have the capacity to prevent that from happening,” the president added.
That’s misleading to inaccurate, depending on your perspective. The checks and balances are not all they’re cracked up to be, with everyone pretty much reliant on the NSA telling the truth, combined with the fact that many of those responsible for “oversight” are so close with the NSA that they’re more co-conspirators than actual overseers.
Separately, can we drop this whole “they’re not interested in reading your emails” bullshit? All people are saying there is “look you’re a peon so shut up and deal with the fact that you have no privacy.” That’s ridiculous. Clearly the NSA is reading lots of people’s emails (and getting data about them and what they do). While they might not make use of it today to spy on you in particular, that doesn’t mean that it won’t change in the future when suddenly you become “a person of interest” for whatever reason. It’s easy for some people to think that the government won’t ever care what they’re doing — but that can always change in a hurry and by the time it does, it’s too late to start “worrying” about your privacy.
On top of that, recent revelations have made it clear that the NSA has no qualms at all about using information it gathers on non-terrorists that it doesn’t like to try to destroy their lives. Sure, the NSA might not want to read your email today. But, piss off the wrong person tomorrow…
Separately, if they don’t want to spy on me, let’s make a simple deal then: stop doing it. It’s hard to square this claim from NSA defenders that it’s okay to spy on all of us because they don’t want to spy on all of us. The right response is to stop spying on all of us. You want to go after the so-called “bad people,” okay, then target those people but not everyone in hopes you might find some bad people mixed in there.
Oh, and once again, it’s incredibly insulting how completely unconcerned the President and other NSA defenders seem to be about the rest of the world. Once again the message is basically: if you’re not American, fuck you.
“The N.S.A. actually does a very good job about not engaging in domestic surveillance, not reading people’s emails, not listening to the contents of their phone calls. Outside of our borders, the NSA’s more aggressive. It’s not constrained by laws,” Obama said.
But it can be constrained by their boss, who happens to be the President. Will he actually do anything?
Help them improve their relationship with the tech industry.
Push forward with the various maximalist copyright proposals found in the TPP (Trans Pacific Partnership) agreement.
Apparently, these studio bosses don’t realize that point number two is a big part of the reason why they’re having trouble with point number one. Of course, the reality is they don’t want “better relationships” with Silicon Valley, they want Silicon Valley to do exactly what they want, which is to try to kill off or block innovations that challenge their legacy business models, even if they provide better services to artists and the public alike. Furthermore, pushing bogus concepts like the maximalist copyright rules that the US has been seeking in the TPP agreement — basically as a way to backdoor in much of their legal agenda — is hardly the way to get Silicon Valley to be more friendly with Hollywood. It’s just their way of trying to screw over the very industry that keeps providing them with the innovations that they need to adapt and to provide better services to consumers.
One of the really big questions many of us have had throughout the revelations of the NSA’s scandals is how the hell have Director of National Intelligence James Clapper and NSA boss Keith Alexander kept their jobs through all of this. Clapper has been caught directly lying to Congress. Alexander has been shown to have been extraordinarily misleading, if he hasn’t outright lied. Furthermore, it’s been revealed that both have overseen massive levels of dysfunction and abuse within the NSA (even as they try to spin them as no big deal). And, even among NSA supporters, there’s an argument to be made that Alexander should be fired for having system security so weak it allowed Snowden to do what he did undetected, even months after the basics were revealed. So now it’s come out, via a report by Siobhan Gorman in the Wall Street Journal, that Alexander did, in fact, offer to resign but that the White House rejected the request, because they didn’t want to hand Snowden a victory.
Shortly after former government contractor Edward Snowden revealed himself in June as the source of leaked National Security Agency documents, the agency’s director, Gen. Keith Alexander, offered to resign, according to a senior U.S. official.
The offer, which hasn’t previously been reported, was declined by the Obama administration….
[….] When the leaks began, some top administration officials found their confidence in Gen. Alexander shaken because he presided over a grave security lapse, a former senior defense official said. But the officials also didn’t think his resignation would solve the security problem and were concerned that letting him leave would wrongly hand Mr. Snowden a win, the former defense official said.
That’s a ridiculous reason, if true. And, unfortunately, it shows the ridiculous anti-whistleblower mindset of the White House. It’s not about correcting actual problems, it’s all about making sure that we punish the whistleblower, and don’t let him get any “victory.” That’s a huge mistake that makes the White House look out of touch, out of control and unable to recognize where the real problems are.
President Obama has stated repeatedly that these revelations have resulted in a necessary discussion and that he needs to earn the trust of the American public on the NSA spying. Getting rid of Alexander and Clapper, and starting fresh, would have been a good start to doing that. Playing defense and trying to avoid Snowden “winning” just looks… childish.
A group of over 80 law professors, including many prominent and well-known ones, have now called on President Obama to open up the secretive TPP process. They point out that, especially after the recent leak of the TPP’s IP chapter, it’s shown that the closed, secretive, non-transparent process leads to bad results. Instead, they argue for an open process, like the recent Marrakesh Treaty concerning copyright issues related to the blind. In that negotiation, proposals were made publicly and shared, so that there was widespread public comment and discussion. There is simply no good reason for the US government to continue negotiating this massive, and tremendously important treaty in secret. The lawyers are clear that they’re not against the overall TPP agreement — in fact, many support it. But they cannot accept the backroom process by which it has been negotiated.
We, the undersigned intellectual property law academics and scholars, write to you to ask you to support immediately changing the secretive TPP negotiation process in law and in practice, and follow instead the example set by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, as explained below.
Intellectual property law is incredibly far reaching in its impact – implicating
everything from the price of medicines and textbooks to the ability to exercise free
expression and create new business models on the Internet. The TPP’s intellectual property
chapter would restrict Congress’s ability to legislate on these key issues, and would do so
without public input. Indeed, reported proposals in the TPP would foreclose many policy
proposals currently under consideration, including proposals to reform copyright law
proposed by the Library of Congress, proposals to reform “data exclusivity” periods for
biologic medicines included in the President’s budget, and proposals to amend exceptions
for the circumvention of technological protection measures to promote interoperability of
cell phones proposed by the Administration itself.
They also point out (nicely), that the administration should know better by now. Not only was the Marrakesh Treaty a success, but ACTA failed because of the USTR’s insistence on doing everything in backrooms, and avoiding any and all transparency. So far, it looks like they haven’t learned their lesson yet, but pushing the load of crap that is the current IP chapter on TPP seems likely to only give the USTR yet another refresher course in what happens when they decide to make deals like this in backrooms to favor Hollywood and Big Pharma, rather than having an open review in public.
