Without Copyright Infringement, Deadpool Doesn't Get Made

from the killing-creativity,-eh? dept

Copyright infringement kills creativity. It's killing artists and depriving future generations of a variety of works that -- if they could even be made in this era of lawlessness -- should rightfully be withheld from the public until long after the future generation is dead and next generation fully grown. So. They. Say.

Kids, I'm sure you've heard about this "Deadpool," the fourth-wall-breaking, foul-mouthed "superhero" currently raking in $$$ at the megaplexes. For years, it was a pet project passed back and forth between interested shepherds and less-interested studios. Everyone loved the idea but no one wanted to put their money behind it.

For one thing, the licensing alone was a nightmare. While Deadpool belongs to the Marvel "universe," the licensing for Deadpool as a movie character belongs to 20th Century Fox. Nearly everything else belongs to entertainment megagiant Disney. The licensing situation alone should have been enough to keep Deadpool from making it to the big screen. Very few entities want to tangle with Disney's lawyers and put millions of production dollars on the line.

But the movie still made it out into the wild, even with this potentially litigious entanglement. In fact, this weird licensing fact plays into the movie's very self-aware take on the comic book movie genre, as Ars Technica's Sam Machkovech points out:

Should you arrive at a Deadpool screening with high hopes for X-Men or X-Force character cameos or other strides toward comics continuity, you've got another thing coming. 20th Century Fox is behind this film, though Marvel Studios/Disney own most of Marvel's intellectual property, and the result is a world seemingly disconnected from the greater Marvel universe.

There are even disconnects with the Deadpool comics themselves, much to the movie's detriment. Ajax, for example, is a much more toothless supervillain than the one who brutalized the comic version of Wade Wilson, which negatively affects that entire portion of Deadpool's origin tale by opening up gaping plot and logic holes. In fact, the entire "how Wade turned into Deadpool" portion of the movie drags in both length and pacing so much that it borders on the edge of satire in practice.

Whether or not it's "satire in practice" or just the burden of dumping exposition on newcomers to better serve the franchise, Deadpool is still somewhat tangled up in licensing limitations. Crossover appeal is likely limited. And actual crossovers likely next to impossible. If only 20th Century Fox could have been as bold as those who somehow brought this film -- one that had been pronounced DOA repeatedly over the past several years -- to life.

What put this in motion is the same sort of behavior the MPAA works endlessly to prevent: the leaking of footage.

Ben Kuchera at Polygon notes that someone realized the best way to get this project underway was to show its potential audience how they (the actor, writers and director) would handle the subject matter. Fans have wanted a dark, sarcastic, fully-nihilistic Deadpool movie for a long, long time. Some test footage shot three years ago could have languished unseen on some shelf/hard drive somewhere in Hollywood and the unmade project would still be cruising from rejection to rejection. But one of these people decided to perform an action no studio would ever condone.

"I've been trying to get it made for 11 years, which is crazy," star Ryan Reynolds said in an interview with Jimmy Fallon. "We developed the script six years ago, wrote this fantastic script, it leaked online, Deadpool fans went nuts for it, so the studio granted us a small amount of money to make test footage. This test footage that we shot then sat on the shelf for four years, as it does, they didn't do anything with it, then just a little under two years ago it leaked, accidentally, onto the internet."

We, like just about every other outlet concerned with pop culture, ran the story. Everyone loved the footage, and the film went into full production.

"Here's the thing, the fans freaked out and overwhelmed Fox, and Fox basically had to greenlight the movie," Reynolds said. "The problem is the footage was owned by Fox so it was kind of illegal ... I know that one of us did it."

While no one will admit to leaking the footage, everyone involved couldn't be happier this act of copyright infringement has resulted in an actual Deadpool film.

"Oh my god, we were absolutely thrilled," Paul Wernick, one of the film's writers, told Variety. "If you go back and look at our emails after the test footage was made in 2012, we had said back and forth, 'How do we leak this? How do we get the groundswell support from our fans?' When it finally leaked in 2014 and got the reaction we hoped for, we were like, 'Here it goes!' This is confirmation we are not crazy to be passionate about this. There’s a whole fanbase of people clamoring for this movie."

That leak was, in fact, crucial. It was the film's last chance to be made.

"Had it not gotten that reaction, it would have been a disaster and the project would have been dead," Wernick continued. "We knew it in our bones this would be the reaction. We were thrilled and still to this day don’t know who did it. There is a very short list of suspects."

One of the entities who's likely happy the footage was leaked is the studio behind the film. Deadpool wasn't given much of a budget ($58 million) but it's already well on its way to turning a good-sized profit.*

*Non-Hollywood accounting methods only.

According to industry estimates this morning, 20th Century Fox’s Marvel pic, Deadpool whipped Fifty Shades’ Friday figure by 57% with a projected daily haul of $47.5M (that includes $12.7M in Thursday previews) on its way to a mindblowing 3-day opening of $118.4M-$123M and a 4-day between $129.6M-$136M.

Sure, leaking test footage isn't like leaking an entire film, but without that happening, nothing else does. The movie is never made and Fox doesn't have almost three times the budget grossed within the first four days of ticket sales. But because this leak happened, the studio is likely in control of a promising franchise, provided it can keep the lightning bottled and push forward without discarding everything that makes Deadpool Deadpool. And everyone involved can thank the unnamed person they won't rat out for shrugging off the insular "power" of copyright and mobilizing a fan base that is now making good on its promise to support the movie.

Filed Under: copyright, deadpool, leak, licensing, movies
Companies: 20th century fox, disney, marvel

Leaked Documents Expose The US Government's Cell Phone Surveillance Options

from the and-they-are-legion-(and-expensive) dept

The Intercept has done it again. An anonymous source "concerned about the militarization of domestic law enforcement" has handed the site a catalog of cell phone surveillance equipment. Many of the products discussed in the pages are making their public debut, presumably to the deep chagrin of the manufacturers and the government agencies that use them.

While much of the equipment's capabilities has been sussed out with FOIA requests and the occasional courtroom disclosure, the leaked documents confirm that many law enforcement agencies not only have the technology to sweep up cell phone information in bulk, but also to intercept phone calls and text messages.

There is also a long list of newly-exposed product names that will be making their way into a host of future FOIA requests: Deerpark, Radiance, Carman, Garuda, Gilgamesh, Twister, Nebula…

Interesting (and disturbing) details are contained in data sheets on the products, including what the government feels are the potential drawbacks of the equipment. Harris' Blackfin, for instance, can intercept GSM voice communications as well as SMS messages from "preloaded target lists." In addition, the Blackfin can perform denial-of-service attacks on local phone networks and geolocate targeted phones. Perhaps the biggest surprise? The Blackfin is small enough to be worn surreptitiously by the operator.

Digital Receiver Technology, manufacturer of the US Marshals Service's flying "DRTboxes," also has some impressive technology on display. Its equipment supports "target lists of up to 10,000 entries" and can intercept (and record) voice communications over both digital and analog signals.


KeyW sells a product that tracks locations of cell phone users, targeting up to 500 cell phones at a time. Bonus: it can also negatively affect GSM networks to better track targets. (Referred to on the item's page as "Deny, Disrupt, Degrade and Deceive.")

Then there's this device, which is apparently an "in-house" offering produced by the NSA's Tailored Access Operations team.


This little spy box is built for use in "fixed-wing aircraft," like the FBI's Cessnas or unmanned drones. Bonus: it can be upgraded in the field, which presumably means firmware/software updates can be pushed to the system remotely.

Other notes of interest:

The government considers Deerpark's inability to wreak havoc on phone service a drawback ("does NOT cause denial of service").

The NSA-developed Nebula can "lock and hold traffic from 12 miles away."

AST's airborne ICARUS can geolocate Push-To-Talk handsets and RF tags.

Boeing's S-100 helicopter drone's fact sheet contains the warning that it cannot be armed with weapons.

This page shows just how low-profile some of this cell phone tracking hardware is.


Or, if it makes more sense logistically, you can just cram $180k worth of tracking equipment into a backpack.


Most of the pages note what authority is needed to deploy the equipment, with most citing Title 10/Title 50. The statutes pertain to military operations (Title 10) and military intelligence efforts (Title 50), with the latter sometimes encompassing the CIA's efforts. However, the documents contain fact sheets for equipment now being used by US law enforcement agencies, suggesting the transfer to domestic surveillance use occurred before law enforcement-specific rules were in place. The years of secrecy surrounding the devices further suggest domestic guidance trailed deployment by a sizable margin.

Finally, there are the forensic devices. The NSA SigDev team's CYBERHAWK basically cracks cell phones open and empties them of their contents.

"Exploitation includes phonebook, names, SMS, media files, text, deleted SMS, calendar items and notes."

The only drawback is that the operator must have possession of the handset to extract all of this information. It can't be collected "over the air." A competing product offered by TEEL (Cellbrite) does the same thing, but works on "95% of phones," encompassing more than the GSM handsets CYBERHAWK is limited to.

The obvious problem is we don't know how much of this military equipment has ended up in the hands of law enforcement. We do know most of Harris' products have, thanks to the waiver it acquired (by lying) from the FCC. We also know Digital Receiver Technology is, at minimum, selling its products to federal law enforcement.

Local law enforcement agencies are using equipment developed for military use in war zones as domestic surveillance devices. When seeking these products (or the financial aid to acquire them), law enforcement agencies routinely mention the threat of terrorism… before using them to track people suspected of petty crimes. As the EFF's Jennifer Lynch points out in The Intercept article, there is no public record of any law enforcement agency using these devices to apprehend a terrorist or disrupt a terrorist attack.

Federal agency policies pertaining to these devices now contain warrant requirements, but with large enough loopholes, warrants will rarely have to be sought. The rules governing the use at the local level are still mostly secret. What has been divulged suggests agencies are still obscuring the use of the devices through the use of parallel construction or stretching pen register statutes to cover the large scale interception of connection and location data and, potentially, the communications themselves.

Filed Under: catalog, cia, leak, nsa, phones, police, police militarization, surveillance

Leaked Documents Show US Drone Killings Racking Up Collateral Damage, Damaging Future Intelligence Efforts

from the death-from-above dept

The Intercept has just published an incredible article (in five parts) on the United States' drone-strike programs. Based on documents handed over by yet another leaker, the article contains some very disturbing information about the CIA's targeted killing activities -- including the fact that targeted killings are rarely well-targeted.

To begin with, there's the problem of distance. The drone strikes in Yemen and Somalia attack targets much further away than those targeted in the Iraq and Afghanistan. Because strikes routinely occur on the outer limits of the Predator drones' range (up to ~1000km), surveillance is abandoned in favor of attacks. When a drone strike does occur, it usually utilizes multiple drones to ensure the target has been killed (the "Find, Fix and Finish" or "F3" cited in the documents). Because of this, lots of "blinking" occurs (gaps in surveillance coverage) that snowballs into future intel gaps that make other "targeted" strikes even less targeted.

Added to this is the fact that blowing someone up doesn't leave much for analysts to sort through.

Deadly strikes thus truncate the find, fix, finish cycle without exploitation and analysis — precisely the components that were lacking in the drone campaign waged in East Africa and Yemen. That shortfall points to one of the contradictions at the heart of the drone program in general: Assassinations are intelligence dead ends.

The ISR study shows that after a “kill operation” there is typically nobody on the ground to collect written material or laptops in the target’s house, or the phone on his body, or capture suspects and ask questions. Yet collection of on-the-ground intelligence of that sort — referred to as DOMEX, for “document and media exploitation,” and TIR, for “tactical interrogation report” — is invaluable for identifying future targets.

Stating that 75 percent of operations in the region were strikes, and noting that “kill operations significantly reduce the intelligence available from detainees and captured material,” the study recommended an expansion of “capture finishes via host-nation partners for more ‘finish-derived’ intelligence.”

The "host-nation partners" are also part of the problem. They have their own needs and desires and aren't above having the CIA do their dirty work for them.

In 2011, for example, U.S. officials told the Wall Street Journal that they had killed a local governor because Yemeni officials didn’t tell them he was present at a gathering of al Qaeda figures. “We think we got played,” one official said.

Even in Afghanistan, where surveillance coverage was better and signals intelligence stronger, drone strikes still resulted in the deaths of several non-targets.

[D]ocuments detailing a special operations campaign in northeastern Afghanistan, Operation Haymaker, show that between January 2012 and February 2013, U.S. special operations airstrikes killed more than 200 people. Of those, only 35 were the intended targets. During one five-month period of the operation, according to the documents, nearly 90 percent of the people killed in airstrikes were not the intended targets.

The US government marginalizes this collateral damage by referring to nearly everyone it kills -- targeted or not -- as "combatants," "military-aged males," or simply "enemies killed in action." Very rarely has it been forced to confront the reality of its inaccurate attacks.

But the CIA is sold on the program and it has been for years. Drone strikes may cause a lot of collateral damage and are prone to manipulation by local governments, but the US considers this program to be the most "efficient" way to "eliminate" terrorist threats. It has almost completely eradicated an essential component of its counterterrorism efforts, though. Dead men provide no HUMINT. At one time, capturing suspected terrorists used to be part of the equation. That's no longer the case.

“The drone campaign right now really is only about killing. When you hear the phrase ‘capture/kill,’ capture is actually a misnomer. In the drone strategy that we have, ‘capture’ is a lower case ‘c.’ We don’t capture people anymore,” Lt. Gen. Michael Flynn, former head of the Defense Intelligence Agency, told The Intercept. “Our entire Middle East policy seems to be based on firing drones. That’s what this administration decided to do in its counterterrorism campaign. They’re enamored by the ability of special operations and the CIA to find a guy in the middle of the desert in some shitty little village and drop a bomb on his head and kill him.”

Surveillance now appears to be used mainly for targeting, rather than intelligence. Data and communications acquired by the NSA feeds into drone strike operations -- not to provide information on potential attacks -- but to locate targets. Money and man-hours are poured into surveillance, only to have a possible source of future intel killed off, rather than made use of.

Take the case of Bilal er-Berjawi, known to the US government as "Objective Peckham." British and US intelligence surveilled Berjawi for six years, without ever making a serious move to "capture" him. Once it was decided he was supplying terrorists with weapons and money, the UK government stripped him of his citizenship and a CIA drone strike in Somalia took his life.

The entire Intercept piece is more than "worth reading." It's an essential, damning look at a program the US government has long touted as a success. The leaked documents suggest otherwise. Instead, they point towards an "extrajudicial killing" regime that sanitizes the carnage and deprives collateral damage of its humanity. While the program may have eliminated a few terrorism suspects, the program is predicated on the notion that only those who present an "immediate threat" will be killed. As we can see from the case of Berjawi, this "immediate" threat lasted more than six years and included multiple, unchallenged reentries to the UK.

This is part of who we are as a country: judge, jury and executioner, divorced from the humanity at the other end of the drone strikes by lines of code and thousands of miles.

Filed Under: drone strikes, drones, extrajudicial killing, intelligence, killing, leak, targeted assassination

Remember How The DMCA 'Stopped' The Release Of Ashley Madison Cheaters Data? About That...

from the boom-goes-the-dynamite dept

Last month, you may recall, the news broke that the "dating site for people who want to cheat on their spouse," Ashley Madison, had its systems hacked, and all its data leaked. For rather obvious reasons, this had a lot of people rather worried about what would be revealed. However, the company insisted that there was no problem at all, because it had used the DMCA to take down all leaked copies. We pointed out how ridiculous this was on multiple levels. First, that's not what the DMCA is for, and as embarrassing as this was for Ashley Madison's parent company Avid Life Media, it does not hold the copyright in such data. Second, the idea that this would actually stop the data from reaching the public was ludicrous.

And... it took longer than expected, but less than a month later, the data file has leaked online, and you can bet that lots of people -- journalists, security researchers, blackmailers and just generally curious folks -- have been downloading it and checking it out.

Maybe, next time, rather than claiming copyright, the company will do a better job of protecting its systems.

Filed Under: cheating, copyright, dmca, infidelity, leak
Companies: ashley madison, avid life media

TPP Leaks Shows US Stands Firm That Companies Should Be Free To Abuse Patents & Copyrights

from the go-home-ustr,-you're-drunk dept

Last week, as you might have heard, negotiators on the Trans Pacific Partnership (TPP) agreement gathered in Maui to try to finalize the agreement. Many believed that negotiators would more or less finish things up in that meeting. Earlier reports had suggested that everyone was "weeks away" from finishing, and many had said that the only thing holding back a final agreement was fast track authority (officially "trade promotion authority") from the US government to make sure that the USTR could negotiate an agreement without further interference from Congress. And, as you'll recall, Congress voted in favor of fast track after a long fight.

However, a funny thing happened in Maui: they didn't reach a final agreement. And it doesn't sound like negotiators are really that close either -- leading many to wonder if the TPP may be running out of time.

Either way, the good folks over at KEI have now started releasing a leaked copy of the "intellectual property chapter" as it stood on May 11th (i.e., the latest draft prior to last week's meeting). The IP chapter had leaked in the past, but only an older version. KEI called out how the US's proposals in the TPP are horrible:

The May 11, 2015, text includes country positions, and reveals extensive disagreements among parties, as well as the isolation of the United States as the country that continues to be the most aggressive supporter of expanded intellectual property rights for drug companies, publishers and other companies.

The proposals contained in the TPP will harm consumers and in some cases block innovation. In countless ways, the Obama Administration has sought to expand and extend drug monopolies and raise drug prices. The astonishing collection of proposals pandering to big drug companies make more difficult the task of ensuring access to drugs for the treatment of cancer and other diseases and conditions.

The widely reported dispute over the number of years of protection for biologic drug test data is only one of dozens of measures that significantly expand the power of big drug companies to charge high prices. Taken together these provisions will take the public down a road of more and more rationing of medicines, and less and less equality of access. It could have and still can be different. Rather than focusing on more intellectual property rights for drug companies, and a death-inducing spiral of higher prices and access barriers, the trade agreement could seek new norms to expand the funding of medical R&D as a public good, an area where the United States has an admirable track record, such as the public funding of research at the NIH and other federal agencies. Many people reading the provisions released today will appreciate how misguided and wrong are the USTR’s values and negotiating objectives.

Looking through the documents, you can see some real ridiculous and aggressive positions by the US on intellectual property. In particular, the US seems to push back against any attempt by other negotiating countries to allow for the punishment of those who abuse patents or copyrights. Every time the issue comes up, many other countries are on board, but the US (and sometimes Japan) is against. The discussion below is about the parts of the IP chapter that KEI released yesterday. Just as I was finishing up this post, it released the other sections as well, but we'll save those for another post.

For example, there is one proposal put forth by Australia, arguing that countries should be able to "cancel, revoke or nullfy" a patent if "the patent is used in a manner determined to be anti-competitive, or abusive, in a judicial or administrative proceeding...." This actually seems like a pretty good idea. And, basically all of the countries agree... except for the US and Japan. Similarly, the US and Japan again appear to be in favor of patent trolling later in the document, opposing a provision that appears to allow countries to pass anti-trolling legislation: Those are on the patent side. Well, how about copyright? Here, even Japan supports a plan that would allow courts to order those who abuse takedown provisions to pay up against those they unfairly targeted. But the US opposes it: One other thing that caught my eye. Throughout the enforcement part, other countries repeatedly propose the use of the word "predominantly" when it comes to things like destroying equipment used in the creation of infringing works. That is, there are proposals like "judicial authorities shall have the authority to order the forfeiture or destruction of materials and implements that have been predominantly used in the creation of pirated goods or counterfeit trademark goods." The US repeatedly asks for the word "predominantly" to be removed from such sentences. In other words, while other countries recognize that you shouldn't just go around destroying computers that maybe incidentally were used to infringe, the US wants to retain such a right.

I'm sure more questions will be raised as people have more time to go through these documents, but for now, it appears that the US is still pushing for extremist copyright and patent policies and working hard to protect those who deliberately abuse such tools. It's fairly incredible how the USTR wants to deliberately support those who admittedly abuse those laws for anti-competitive purposes. Wouldn't you think the USTR should be encouraging blocking such abuses? I guess when your main advisors have a long history of abusing the laws, you don't think such abuse is that bad...

Filed Under: abuse, copyright, enforcement, ip chapter, leak, patents, tpp, us

Second OPM Hack Revealed: Even Worse Than The First

from the the-federal-government,-ladies-and-gentlemen dept

Oh great. So after we learned late yesterday that the hack of all sorts of data from the federal government's Office of Personnel Management (OPM) was likely much worse than originally believed -- including leaking all Social Security numbers unencrypted -- and that the so-called cybersecurity "experts" within the government weren't even the ones who discovered the hack, things are looking even worse. That's because, late today, it was revealed that there was likely a separate hack, also by Chinese state actors, accessing even more sensitive information:

The forms authorities believed may have been stolen en masse, known as Standard Form 86, require applicants to fill out deeply personal information about mental illnesses, drug and alcohol use, past arrests and bankruptcies. They also require the listing of contacts and relatives, potentially exposing any foreign relatives of U.S. intelligence employees to coercion. Both the applicant's Social Security number and that of his or her cohabitant is required.

In a statement, the White House said that on June 8, investigators concluded there was "a high degree of confidence that ... systems containing information related to the background investigations of current, former and prospective federal government employees, and those for whom a federal background investigation was conducted, may have been exfiltrated."

"This tells the Chinese the identities of almost everybody who has got a United States security clearance," said Joel Brenner, a former top U.S. counterintelligence official. "That makes it very hard for any of those people to function as an intelligence officer. The database also tells the Chinese an enormous amount of information about almost everyone with a security clearance. That's a gold mine. It helps you approach and recruit spies."

And yet... this is the same federal government telling us that it wants more access to everyone else's data to "protect" us from "cybersecurity threats" -- and that encryption is bad? Yikes.

Filed Under: china, hack, leak, opm, security clearance, sf-86, sf86

Snowden On Going Through 'Proper Channels': Reporting Concerns Gets You Flagged As A 'Troublemaker'

from the good-thing-he-decided-to-go-above-the-NSA's-head dept

The NSA defenders who label Ed Snowden a "traitor" (senators, congressmen and any number of former intelligence officials) often assert the whistleblower had an opportunity to use "proper channels" rather than take the route he chose: leaking documents to journalists.

Snowden's written testimony to the European Parliament, which was covered here earlier by Glyn Moody, includes in-depth responses to those who still believe he could have handled this differently. When asked if there are "adequate procedures to signal wrongdoing" inside the agency, Snowden had this to say:

Unfortunately not. The culture within the US Intelligence Community is such that reporting serious concerns about the legality or propriety of programs is much more likely to result in your being flagged as a troublemaker than to result in substantive reform...

[As noted here earlier, Snowden's negative writeup while with the CIA was a result of him bringing a security flaw in the agency's software to a supervisor's attention. He fixed the flaw and was rewarded with a critical note in his file written by the person he originally brought the problem to.]

In my personal experience, repeatedly raising concerns about legal and policy matters with my co-workers and superiors resulted in two kinds of responses. The first were well-meaning but hushed warnings not to "rock the boat," for fear of the sort of retaliation that befell former NSA whistleblowers like Wiebe, Binney, and Drake…

The second were similarly well-meaning but more pointed suggestions, typically from senior officials, that we should let the issue be someone else's problem. Even among the most senior individuals to whom I reported my concerns, no one at NSA could ever recall an instance where an official complaint had resulted in an unlawful program being ended, but there was a unanimous desire to avoid being associated with such a complaint in any form.

The world's foremost intelligence agency is nothing more than the world's most secretive cubicle farm, staffed with supervisors more interested in coasting towards retirement at the helm of the placid USS CYA then actually addressing an employee's concerns.

And it's not as though Snowden didn't make an honest effort to utilize the proper channels.

I had reported these clearly problematic programs to more than ten distinct officials, none of whom took any action to address them. As an employee of a private company rather than a direct employee of the US government, I was not protected by US whistleblower laws, and I would not have been protected from retaliation and legal sanction for revealing classified information about lawbreaking in accordance with the recommended process.

The loophole in whistleblower protection is in the process of being closed by sympathetic court decisions. Courts are granting contractors the same protection as US government employees. But this "protection" is ultimately hardly worth the paper the decision is printed on. Intelligence agencies are still excluded from this protection, and the protection itself is highly suspect. Ultimately, everything runs through the Obama administration -- the same administration that has prosecuted more whistleblowers than all other administrations combined. Snowden harbors no illusions that the US government will ever take him back on amicable terms.

There has not yet been any substantive whistleblower reform in the US, and unfortunately my government has taken a number of disproportionate and persecutory actions against me. US government officials have declared me guilty of crimes in advance of any trial, they've called for me to be executed or assassinated in private and openly in the press, they revoked my passport and left me stranded in a foreign transit zone for six weeks, and even used NATO to ground the presidential plane of Evo Morales - the leader of Bolivia - on hearing that I might attempt to seek and enjoy asylum in Latin America.

As they say, there's no "there" there. The proper channels Snowden supposedly should have used were either a) sealed off by insular officials who preferred career longevity to "rocking the boat," or b) would have resulted in prosecution thanks to a lack of whistleblower protection.

Let's not forget that one of Snowden's "proper channels" publicly compared the whistleblower to spies who sold government secrets to foreign operatives, called him a "thief" and referred to the journalists who ended up with NSA documents as "agents" in control of their "handler." When not smearing the ex-NSA contractor, this "proper channel" said he would have met Snowden's concerns with talking points and meetings with intelligence subcommittees -- the same subcommittees that have done nothing but circle the wagons around the agency since the leaks began.

Suggesting Snowden could have handled this through "proper channels" is to suggest that the NSA's overreach should never have come to light or, at best, that Snowden should be prosecuted for whistleblowing. "Proper channels" in the intelligence community are an illusion. Snowden found this out firsthand and these responses prompted his eventual document heist. The government really has no one to blame but itself for the situation it finds itself in.

Filed Under: edward snowden, european parliament, leak, nsa

Latest Leak Shows NSA Spied On A US Law Firm Representing A Foreign Government In A Trade Dispute

from the the-business-of-the-spy-business-is-apparently-business dept

Remember the limitations imposed on the NSA by the administration's minor reform efforts? Recently, ODNI director James Clapper "released" a copy-paste job on a month-old presidential directive that included this paragraph:

“in no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially;” or achieving any purpose other than those identified above.

As I noted then, the NSA must be following these guidelines going forward because the most recent leak published at the New York Times shows the agency using its powers to "afford a competitive advantage to US companies/business sectors."

A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States…

The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.

This gives the agency a bit of deniability, depending on how it phrases its response (or if a specific response ever arrives -- it only offered boilerplate earlier). It didn't spy on the US law firm, another agency did. It's just when the Australian agency offered to share the info, the NSA didn't say no. Instead, it offered "guidance" and recommended Australian intelligence keep intercepting attorney-client communication.

The Australians told officials at an N.S.A. liaison office in Canberra, Australia, that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to the document, a monthly bulletin from the Canberra office. The law firm was not identified, but Mayer Brown, a Chicago-based firm with a global practice, was then advising the Indonesian government on trade issues.

On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.”

The paths towards plausible legality are twofold. Attorney-client communications are not specifically protected from NSA surveillance by US law and the agency is more than welcome to intercept communications involving a foreign intelligence target, like Indonesian officials. At this point, minimization is supposed to kick in and remove information related to non-targeted US persons. The NSA's canned answer deliberately avoids the specifics of the leak.

In a statement, Ms. Vines, the agency spokeswoman, said: “N.S.A. works with a number of partners in meeting its foreign-intelligence mission goals, and those operations comply with U.S. law and with the applicable laws under which those partners operate. A key part of the protections that apply to both U.S. persons and citizens of other countries is the mandate that information be in support of a valid foreign-intelligence requirement, and comply with U.S. attorney general-approved procedures to protect privacy rights.”

This would seem to be an admission by omission. If there's no immediate answer or plausible deniability, simply pass along the agency's mission statement as a "response."

This isn't the first time the agency has performed surveillance on behalf of US trade entities. As we've covered earlier, evidence of economic espionage in Brazil had previously been exposed and the New York Times is apparently in possession of other documents showing more trade-related spying.

A 2004 N.S.A. document, for example, describes how the agency’s intelligence gathering was critical to the Agriculture Department in international trade negotiations.

“The U.S.D.A. is involved in trade operations to protect and secure a large segment of the U.S. economy,” that document states. Top agency officials “often rely on SIGINT” — short for the signals intelligence that the N.S.A. eavesdropping collects — “to support their negotiations.”

So, the new guidance (as of January 17th) supposedly prevents the NSA from deploying surveillance for economically-motivated reasons. That's of small comfort considering the agency has denied performing this sort of surveillance in the past, continually asserting that its interest is solely in national security, even as more evidence mounts that its intelligence "customers" include US businesses and trade groups.

Even if the NSA did nothing more than "offer guidance," there's still an object lesson in this story: no matter who you are, no matter where your country of origin, you'll always be someone else's "foreigner," and afforded none of the minimal protections that your own country grants you.

Filed Under: edward snowden, indonesia, james clapper, leak, nsa, odni

The NSA Offers Up Three Possible Contributors To Snowden's Leaks To Its Congressional Oversight

from the please-stop-asking-what-we're-doing-about-it-because-we-really-have-no-idea dept

The question has often been asked, but without a satisfactory answer: how did Snowden end up with so many sensitive documents? Further, how did he manage to do this undetected? There has been a lot of speculation, but the recent Official Leak (as compared to Snowden's "unofficial" work) confirmed what nearly everyone already suspected: Snowden used readily available tools to harvest a ton of documents while escaping detection by the NSA.

The supposedly shocking "leak" about Snowden's "web crawler" only served to make the agency look worse. How did it fail to detect this sort of activity? Once again, the question has not received a direct answer. Instead, the agency has offered up three people who may have been indirectly involved in Snowden's document scraping: a civilian NSA employee (who conveniently resigned), an active duty military member and a contractor. (The agency actually uses the word "may" in its official letter to the House judiciary and intelligence committees, suggesting it's still uncomfortable with confirming or denying anything.)

This seemingly confirms an answer given by Keith Alexander at a hearing late last year.

“Has anybody been disciplined at NSA for dropping the ball so badly?” Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., demanded of NSA Director Gen. Keith Alexander at a Dec. 11 hearing. Alexander at the time replied that the agency had three “cases” that “we’re currently reviewing.”

(NBC sought further comment on this, but again met with a refusal from an NSA spokesperson to confirm or deny whether these cases were the same cases Alexander was referring to.)

Here's the details on the civilian employee's assistance of Snowden's scraping efforts.

On 18 June 2013, the NSA civilian admitted to FBI Special Agents that he allowed Mr. Snowden to use his (the NSA civilian's) Public Key Infrastructure (PKI) certificate to access classified information on access that he knew had been denied to Mr. Snowden. Further, at Mr. Snowden's request, the civilian entered his PKI password at Mr. Snowden's computer terminal. Unbeknownst to the civilian, Mr. Snowden was able to capture the password, allowing him even greater access to classified information. The civilian was not aware that Mr. Snowden intended to unlawfully disclose classified information. However, by sharing his PKI certificate, he failed to comply with security obligations.

The other two will face whatever the military and the unnamed corporation choose to dispense as discipline. All well and good, if a little too late. And yet, what's being detailed here feels a lot like sacrificial lambs with a small side of Snowden smearing.

Snowden has denied tricking other analysts into giving him their credentials. Whether or not you find his claim believable, there's no denying the agency's overriding concern. It has stated repeatedly that it has no idea how much Snowden took and it has no real idea how he managed to get so much in the first place.

The overseers are demanding answers and they're not getting anything concrete in response. Instead, they get a lot of murmuring about the "damage" the leaks have done and a token effort to root out additional culprits. Using this one to portray Snowden as a malevolent social engineer helps the NSA's PR efforts but still doesn't address the core issue.

The NSA still hasn't figured out how to prevent the "next Snowden," something that should be at least as horrifying (to the agency) as the current Snowden. This is perhaps the world's largest and most well-funded national security agency, but a single systems administrator managed to outwit its internal protections and walk away with 10-50,000 documents, and the most substantial "answers" the agency has provided to the "how" question is three supposed leak enablers (only one of which was a direct NSA employee) and the troubling admission that its system can easily be subverted by common software tools.

Maybe more evidence will come forth in the next few months to prove this impression wrong, but right now it looks like more an attempt to stave off a little criticism rather than an indication that the NSA has its own systems under control.

Filed Under: edward snowden, leak, nsa

Ellen Degeneres: Pirate Enabler? Her Watermarked Copy Of 'Walter Mitty' Leaks Online

from the who-knew? dept

Each year, Andy Baio tracks the online leaking of various screeners for Oscar-nominated films. He apparently just noticed something interesting. On Thursday, a screener for The Secret Life of Walter Mitty, the new Ben Stiller flick, leaked online. That happens. But, there appears to be a massive watermark indicating that the screener copy belonged to talk show star Ellen Degeneres. Baio notes the likely possibilities:

There's a chance, albeit small, that this watermark was added by someone besides 20th Century Fox — by someone trying to hide the identity of the actual source, maybe.

More likely, the watermark is accurate and Ellen's screener simply ended up in the wrong hands. A postal worker, one of her employees, friend, family member, or countless others in the production and distribution chain could be responsible for ripping the DVD and putting it online.

Indeed, one of those possibilities is the most likely answer, as it's extremely doubtful that Degeneres herself suddenly decided to make a bit of a name for herself in the warez scene. Either way, I'm sure that 20th Century Fox and/or the MPAA enforcement division of the local FBI can now more easily track down the history of how this all got online. I'm sure that large sums of money will be spent tracking it down... without anyone stopping to think that the fact that this is online is unlikely to make even the slightest difference in the eventual revenue for the film, which currently has a 48% approval rating on RottenTomatoes. The film was going to leak online sooner or later no matter what. Does it really matter where it came from?

Filed Under: ellen degeneres, leak, screener, walter mitty