From Politico: House intel committee looks into eavesdropping on Congress

I bet this story has legs. Great separated powers conflict - in addition to foreign policy.

- Click here for the article.

A House panel on Wednesday announced it is seeking information from the Obama administration on U.S. intelligence collection that may have swept up members of Congress. 

The House Permanent Select Committee on Intelligence’s announcement comes after a Wall Street Journal report that the U.S. collected information on private exchanges between Israeli Prime Minister Benjamin Netanyahu and members of Congress during ongoing negotiations for a nuclear deal with Iran.

“The House Intelligence Committee is looking into allegations in the Wall Street Journal regarding possible Intelligence Community (IC) collection of communications between Israeli government officials and members of Congress,” Chairman Devin Nunes (R-Calif.) said in a statement. “The Committee has requested additional information from the IC to determine which, if any, of these allegations are true, and whether the IC followed all applicable laws, rules, and procedures.”

In response, a senior administration official suggested on Wednesday afternoon that lawmakers on designated committees may already have been informed of the data collection now in the news. "The Intelligence Community is required to keep Congressional oversight committees fully informed of intelligence activities," the official said in a statement.

Although the information collected by intelligence officials apparently included comments from members of Congress, there's no evidence yet that those American lawmakers were the intended targets of the surveillance, as opposed to the Israeli premier and his aides.

For more:

- The National Interest: The NSA-Israel Scandal: Who Cares?
- Wall Street Journal: U.S. Spy Net on Israel Snares Congress.

From FP: Citing Paris Attack, CIA Director Criticizes Surveillance Reform Efforts

The Paris attacks will almost certainly have an impact on surveillance policy. The revelation that massive amounts of private data were collected, stored and analyzed led to backlash against it, but the fact that they are designed - primarily - to determine whether attacks are being planned might lead to a backlash against the backlash.

Consider this part of the agenda setting part of the public policy process, or policy evaluation, or some connection between the two.

- Click here for the article.

CIA Director John Brennan said Monday he suspects the Islamic State is currently working on more terrorist plots against the West following Friday’s attack in Paris that killed at least 129 people and injured hundreds more. He also criticized new privacy protections enacted after Edward Snowden’s disclosures about U.S. government surveillance practices.

“I would anticipate that this is not the only operation ISIL has in the pipeline,” Brennan told a crowd at the Center for Strategic and International Studies. “It’s not going to content itself with violence inside of the Syrian and Iraqi borders.”

Brennan’s remarks come on the heels of a new Islamic State video released Monday proclaiming all countries playing a role in air strikes against the group in Iraq and Syria would be a target. The video specifically pinpointed Washington as in its crosshairs.

“We swear that we will strike America at its center in Washington,” says a man in the video, which surfaced on a site the Islamic State uses to post its messages. The authenticity of the video could not be immediately verified.

In his remarks, Brennan said the attacks should serve as a “wake-up call” for those misrepresenting what intelligence services do to protect innocent civilians. He cited “a number of unauthorized disclosures, and a lot of handwringing over the government’s role in the effort to try to uncover these terrorists.”

He added that “policy” and “legal” actions that have since been taken now “make our ability collectively, internationally, to find these terrorists much more challenging.” In June, President Barack Obama signed into law legislation reforming a government surveillance program that vacuumed up millions of Americans’ telephone records. Passage of the USA Freedom Act was the result of a compromise between privacy advocates and the intelligence community.

Brennan’s remarks immediately sparked criticisms from civil liberties advocates who have fought for greater privacy protections from government surveillance and now fear the Paris attacks could roll them back.

From the NYT: How a Court Secretly Evolved, Extending U.S. Spies’ Reach

In 2305 - when we discuss the judiciary - we talk about the growth of judicial independence and how this was established at least party by minimizing the ability of the executive to establish secret courts, like the Star Chamber - which they could then control.

Apparently secret courts are still in use. The New York Times details how one such court developed after the 9/11 attacks.

- Click here for the article:

Ten months after the Sept. 11 attacks, the nation’s surveillance court delivered a ruling that intelligence officials consider a milestone in the secret history of American spying and privacy law. Called the “Raw Take” order — classified docket No. 02-431 — it weakened restrictions on sharing private information about Americans, according to documents and interviews.

. . . Previously, with narrow exceptions, an intelligence agency was permitted to disseminate information gathered from court-approved wiretaps only after deleting irrelevant private details and masking the names of innocent Americans who came into contact with a terrorism suspect. The Raw Take order significantly changed that system, documents show, allowing counterterrorism analysts at the N.S.A., the F.B.I. and the C.I.A. to share unfiltered personal information.

The leaked documents that refer to the rulings, including one called the “Large Content FISA” order and several more recent expansions of powers on sharing information, add new details to the emerging public understanding of a secret body of law that the court has developed since 2001. The files help explain how the court evolved from its original task — approving wiretap requests — to engaging in complex analysis of the law to justify activities like the bulk collection of data about Americans’ emails and phone calls.

“These latest disclosures are important,” said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. “They indicate how the contours of the law secretly changed, and they represent the transformation of the Foreign Intelligence Surveillance Court into an interpreter of law and not simply an adjudicator of surveillance applications.”

If I'm following this correctly, the FISA court has assumed the power to be able to - secretly - expand the power of the executive branch. This raises the obvious constitutional, separation of powers questions.

From the Washington Post: Department of Homeland Security cancels national license-plate tracking plan

Here's some good news:

Homeland Security Secretary Jeh Johnson on Wednesday ordered the cancellation of a plan by the Immigration and Customs Enforcement agency to develop a national license-plate tracking system after privacy advocates raised concern about the initiative.

The order came just days after ICE solicited proposals from companies to compile a database of license-plate information from commercial and law enforcement tag readers. Officials said the database was intended to help apprehend fugitive illegal immigrants, but the plan raised concerns that the movements of ordinary citizens under no criminal suspicion could be scrutinized.

The data would have been drawn from readers that scan the tags of every vehicle crossing their paths, and would have been accessed only for “ongoing criminal investigations or to locate wanted individuals,” officials told The Washington Post this week.

“The solicitation, which was posted without the awareness of ICE leadership, has been cancelled,” ICE spokeswoman Gillian Christensen said in a statement. “While we continue to support a range of technologies to help meet our law enforcement mission, this solicitation will be reviewed to ensure the path forward appropriately meets our operational needs.”

Lawmakers and privacy advocates reacted with approval.

From the Hill: Five major NSA recommendations

Here's a close up look at the basic proposals made to change the NSA's surveillance program:

The basics:

1- End the government’s bulk data collection
2 - Give public advocates a voice on surveillance court
3 - Prevent agencies from forcing disclosure of information
4 - Put a civilian in charge of the NSA
5 - Clamp down on leaks

Liberty and Security in a Changing World

That's the title of the recently released report from the task force assembled by President Obama to make proposals for how NSA should adjust its surveillance operations.

Click here for the report.

For commentary click here:
- NYT.
- National Journal.
- Washington Post.

These are the members of the commission:

- Richard A. Clarke 
- Michael J. Morell
- Geoffrey R. Stone
- Cass R. Sunstein
- Peter Swire

From the Washington Post: Judge: NSA’s collecting of phone records is probably unconstitutional

As reported by Ellen Nakashima and Ann E. Marimow:

A federal judge ruled Monday that the National Security Agency’s daily collection of virtually all Americans’ phone records is almost certainly unconstitutional.

U.S. District Judge Richard J. Leon found that a lawsuit by Larry Klayman, a conservative legal activist, has “demonstrated a substantial likelihood of success” on the basis of Fourth Amendment privacy protections against unreasonable searches.
Leon granted the request for an injunction that blocks the collection of phone data for Klayman and a co-plaintiff and orders the government to destroy any of their records that have been gathered. But the judge stayed action on his ruling pending a government appeal, recognizing in his 68-page opinion the “significant national security interests at stake in this case and the novelty of the constitutional issues.”

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, a judge on the U.S. District Court for the District of Columbia. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

The strongly worded decision stands in contrast to the secret deliberations of 15 judges on the nation’s surveillance court, which hears only the government’s side of cases and since 2006 has held in a series of classified rulings that the program is lawful. It marks the first time a federal judge in open court has opined on the collection of lawfulness in a case not involving a criminal defendant.

A Justice Department spokesman, Andrew Ames, said Monday that the government was reviewing Leon’s decision. “We believe the program is constitutional as previous judges have found,” he said.

A $52 billion dollar budget for spying

The latest revelation from the documents released by Edward Snowden. These has been classified for years.

U.S. spy agencies have built an intelligence-gathering colossus since the attacks of Sept. 11, 2001, but remain unable to provide critical information to the president on a range of national security threats, according to the government’s top secret budget.

The $52.6 billion “black budget” for fiscal 2013, obtained by The Washington Post from former intelligence contractor Edward Snowden, maps a bureaucratic and operational landscape that has never been subject to public scrutiny. Although the government has annually released its overall level of intelligence spending since 2007, it has not divulged how it uses those funds or how it performs against the goals set by the president and Congress.

The 178-page budget summary for the National Intelligence Program details the successes, failures and objectives of the 16 spy agencies that make up the U.S. intelligence community, which has 107,035 employees.

Here's a link to the document.

Partisan positions on NSA tracking have shifted since 2006

This is not a surprising finding. Partisanship matters in forming opinions on certain events.

The Washington Post finds that partisan attitudes about NSA surveillance shift when there is partisan change in the White House. Party identification remains a lense through which the public determines whether it approves of disapproves of governmental activity.

Overall, 56 percent of Americans consider the NSA’s accessing of telephone call records of millions of Americans through secret court orders “acceptable,” while 41 percent call the practice “unacceptable.” In 2006, when news broke of the NSA’s monitoring of telephone and e-mail communications without court approval, there was a closer divide on the practice — 51 percent to 47 percent.

General priorities also are similar to what they were in 2006: Sixty-two percent of Americans now say it’s more important for the government to investigate terrorist threats, even if those investigations intrude on personal privacy, while 34 percent say privacy should be the focus, regardless of the effect on such investigations.

But with a Democratic president at the helm instead of a Republican, partisan views have turned around significantly.

Sixty-nine percent of Democrats say terrorism investigations, not privacy, should be the government’s main concern, an 18-percentage-point jump from early January 2006, when the NSA activity under the George W. Bush administration was first reported. Compared with that time, Republicans’ focus on privacy has increased 22 points.

The reversal on the NSA’s practices is even more dramatic. In early 2006, 37 percent of Democrats found the agency’s activities acceptable; now nearly twice that number — 64 percent — say the use of telephone records is okay. By contrast, Republicans slumped from 75 percent acceptable to 52 percent today.

From Wired: Big Data and Analytics

There was talk in class today - in relation to the assigned book on the 2012 election - about whether data and analytics were good for campaigns. Is the public better served when candidates have such detailed information about what makes them tick? Should candidates have to physically confront potential voters in order to determine what their preferences are? Does data and analytics make manipulation more possible?
Its a legitimate subject.

This Wired author points out that the brave new world of big data and the analytical ability to process it provides all sorts of possibilities - some good, some bad. But you can't have one without the other:

If you think about all the hype generated about consumer privacy and enterprises collating and analyzing information for a more targeted and personal experience, customer segmentation and demographics, location-based and real-time marketing what the NSA exposure has taught us is that there really is no privacy in the 21st century and we should just get used to it. Our data is anonymized unless it’s being used specifically for our purpose and benefit but the fact is we are happily generating it for them to use in any case.

But Big Data is no longer creepy. Sorry but it’s not. You must live in painful ignorance if you think that every nuance of a digital interaction hasn’t been collected by someone and analyzed. What’s clear is that analytics and big data seem to be labelled as only for marketers to hound us with or for banks to sell us more debt laden products. We forget, for example, about the medical and scientific boundaries being broken that rely on data analytics and human generated information to help it along.

At some point there will be consumer based tools affordable enough for people to make sense of the data they generate themselves, and why not, it’s all part of the equation. Personal graph analysis will become a reality as much as its parent will be wielded by enterprises.

So, you see, we have heroes and villains even in data analytics but it’s all a matter of perspective. The NSA are deemed evil for breaching our liberties and analyzing data without our consent to understand terrorist activities, and medical science is a force of good for helping us cure diseases using data sourced from all manner of places.

Is data mining helping reduce the number of murders in Chicago?

This is topical since the NSA surveillance issue is all about obtaining information to efficiently solve a problem (that puts it mildly I suppose).

From the NYT:

So far in 2013, Chicago homicides, which outnumbered slayings in the larger cities of New York and Los Angeles last year, are down 34 percent from the same period in 2012. As of Sunday night, 146 people had been killed in Chicago, the nation’s third-largest city — 76 fewer than in the same stretch in 2012 and 16 fewer than in 2011, a year that was among the lowest for homicides during the same period in 50 years.

In recent months, as many as 400 officers a day, working overtime, have been dispatched to just 20 small zones deemed the city’s most dangerous. The police say they are tamping down retaliatory shootings between gang factions by using a comprehensive analysis of the city’s tens of thousands of suspected gang members, the turf they claim and their rivalries. The police also are focusing on more than 400 people they have identified as having associations that make them the most likely to be involved in a murder, as a victim or an offender.

From The Atlantic: Secrecy Undermines the Ability of Congress to Function as the Framers Intended

Does the surveillance state - or the "deep state" - undermine the system of checks and balances?

Congress cannot act as a check on the executive branch in the way the Framers intended when hugely consequential policies it is overseeing are treated as state secrets. The Senate, intended as a deliberative body, cannot deliberate when only the folks on the right committees are fully briefed, and the Ron Wyden types among them think what's happening is horribly wrong, but can't tell anyone why because it's illegal just to air the basic facts.

Our senators have literally been reduced to giving dark hints.

And the House of Representatives? Members are up for reelection every two years because the body is supposed to respond to the will of the people. But by some accounts, the people are only now finding out about surveillance that some House members signed off on three or four election cycles in the past.

Not that we know all the details even now.

It's one thing to keep the identities of CIA agents and the location of our nuclear arsenal classified. But this is something different. The national-security state, as currently constituted, is removing many of the most important moral and strategic policy questions we face from the realm of democratic debate and accountability. In a real sense, our current approach is preventing our system of government from functioning in very basic ways that the Framers intended.

Metadata is not protected by the Fourth Amendment.

Foreign Policy magazine finds this troubling.

The mere collection of data about telephone and internet usage is not a violation of the 4th Amendment. That only becomes an issue when that data is searched for patterns of usage.

Is a surveillance state compatible with civil liberties and democratic governance?

This question has become increasingly important following 9/11 and has resonated more with the revelations of the gathering of telephone and internet records by the NSA.

The wikipedia entry on surveillance state points out that such states have existed in the past, but are far easier to establish given technological developments:

Examples of fully realised surveillance states are the Soviet Union, and the former East Germany, which had a large network of informers and an advanced technology base in computing & spy-camera technology.

But they did not have today's technologies for mass surveillance, such as the use of databases and pattern recognition software to cross-correlate information obtained by wire tapping, including speech recognition and telecommunications traffic analysis, monitoring of financial transactions, automatic number plate recognition, the tracking of the position of mobile telephones, and facial recognition systems and the like which recognise people by their appearance, gait, etc.

The Washington Post points out the inevitability of the development of surveillance apparatus and discusses a paper (The Constitution in the National Surveillance State) highlighting two types of surveillance states authoritarian and democratic an suggest that we living under the former rather than the latter.

What do authoritarian surveillance states do? They act as “information gluttons and information misers.” As gluttons, they take in as much information as possible. More is always better, indiscriminate access is better than targeted responses, and there’s a general presumption that they’ll have access to whatever they want, at any time.

But authoritarian surveillance states also act as misers, preventing any information about themselves from being released. Their actions and the information they gather are kept secret from both the public and the rest of government.

. . . A democratic surveillance state would limit the data it collects to the bare minimum. Meanwhile, maximum transparency and accountability across branches would be emphasized. Congress and the public would need to be far more involved.

A democratic surveillance state would also place an emphasis on destroying the data that the government collects. Amnesia used to be the first line of defense against surveillance. People just forgot things with time, giving citizens a line of defense against intrusion. In the age of digital technology, however, amnesia no longer exists, so it needs to be mandated by law.

A democratic surveillance state would also require public accountability for the proper conduct of private companies that deal and sell in private information. It’s easy for people to be cynical about not being able to control their privacy when it comes to the government when they also feel powerless against private agents as well.

Having a “democratic surveillance” state sounds like an oxymoron, like having a cuddly hand grenade. Perhaps it would be better to just dismantle the surveillance state entirely and be done with it. And indeed removing the laws associated with the Global War on Terror would do much to remove the authoritarian elements of this state.

What is the National Security Agency?

Here's the introductory paragraph from NSA's Wikipedia page:

The National Security Agency (NSA) is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S. government communications and information systems,[1] which involves information security and cryptanalysis/cryptography.

Histories and descriptions can be found in multiple other places online:

- Time Topics: NSA.
- Federaltion of American Scientists: NSA.
- Here is the FAS's history of the NSA.
- Electronic Frontier Foundation: NSA.
- And the official website here.

The World According to Boundless Informant

Click here for a larger map - it wont fit on this screen. Here's the caption in the Guardian:

The color scheme ranges from green (least subjected to surveillance) through yellow and orange to red (most surveillance). Note the '2007' date in the image relates to the document from which the interactive map derives its top secret classification, not to the map itself.

And more:

The focus of the internal NSA tool is on counting and categorizing the records of communications, known as metadata, rather than the content of an email or instant message.

The Boundless Informant documents show the agency collecting almost 3 billion pieces of intelligence from US computer networks over a 30-day period ending in March 2013. One document says it is designed to give NSA officials answers to questions like, "What type of coverage do we have on country X" in "near real-time by asking the SIGINT [signals intelligence] infrastructure."

An NSA factsheet about the program, acquired by the Guardian, says: "The tool allows users to select a country on a map and view the metadata volume and select details about the collections against that country."

Nice to know that Wikipedia already has pages on both PRISM and Boundless Informant.

PRISM and Boundless Informant

The Washington Post and the Guardian seem primarily responsible for revealing that the National Security Agency, and its British counterpart, has been collecting data from the servers of nine Internet companies that allow it to track phone records and computer activity.

Here's the description in the WaPo:

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets, according to a top-secret document obtained by The Washington Post.

The program, code-named PRISM, has not been made public until now. It may be the first of its kind. The NSA prides itself on stealing secrets and breaking codes, and it is accustomed to corporate partnerships that help it divert data traffic or sidestep barriers. But there has never been a Google or Facebook before, and it is unlikely that there are richer troves of valuable intelligence than the ones in Silicon Valley.

Equally unusual is the way the NSA extracts what it wants, according to the document: “Collection directly from the servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.”

Here are the previously top secret files which describe PRISM.

And a description of Boundless Informant.

The NYT provides background on the program - which can be traced back to 9/11 and has its defenders in Congress.









http://www.nytimes.com/2013/06/07/us/nsa-verizon-calls.html?smid=pl-share

Can we have a reasonable public debate about the proper extent of surveillance in a free society?

I promise to have some useful links up soon related to the National Security Agency's access to telephone and computer records, but since we've touched on the role of an educated population in a republic I thought this 2007 David Foster Wallace quote highlighted by the Dish recently raises an important question the ability the public to have this debate:

“In the absence of such a conversation, can we trust our elected leaders to value and protect the American idea as they act to secure the homeland? What are the effects on the American idea of Guantánamo, Abu Ghraib, Patriot Acts I and II, warrantless surveillance, Executive Order 13233, corporate contractors performing military functions, the Military Commissions Act, NSPD 51, etc., etc.? Assume for a moment that some of these measures really have helped make our persons and property safer—are they worth it? Where and when was the public debate on whether they’re worth it? Was there no such debate because we’re not capable of having or demanding one? Why not? Have we actually become so selfish and scared that we don’t even want to consider whether some things trump safety? What kind of future does that augur?”

Notice that he's not saying that we are prevented from having such a debate (though one could argue that that is the case if certain facts are kept from the public) but whether we can have such a debate. This seems to lie at the heart of some of the material I tried to present in the introductory lectures.

Read the short article this is pulled from - might make good fodder for conversation Monday.

Here's a provocative start:

What if we chose to regard the 2,973 innocents killed in the atrocities of 9/11 not as victims but as democratic martyrs, “sacrifices on the altar of freedom”?* In other words, what if we decided that a certain baseline vulnerability to terrorism is part of the price of the American idea? And, thus, that ours is a generation of Americans called to make great sacrifices in order to preserve our democratic way of life—sacrifices not just of our soldiers and money but of our personal safety and comfort?