Rep. Devin Nunes' Hypocrisy On Display In 'Concerns' Over NSA Surveillance

from the let's-try-this-again... dept

We've talked about the astounding hypocrisy of Rep. Devin Nunes a few times in the past. He heads the House Intelligence Committee, which is supposed to be conducting "oversight" of the intelligence community, but has generally been a cheerleader for mass surveillance in recent years. Nunes, in fact, has regularly slammed any attempt to cut back on surveillance, to the point of actively misleading the public in making false claims about how NSA surveillance programs work. The hypocrisy became clear when Nunes flipped out following the firing/resignation of Mike Flynn as National Security Advisor, arguing that it was somehow unprecedented that an American's phone calls with Russian officials were recorded by the intelligence community. Of course, that suggests either near total ignorance of the programs he's supposedly in charge of overseeing, or just blatant political pandering.

And now it's getting worse. Reporter Katie Bo Williams got her hands on an interesting letter that Nunes, along with ranking member Rep. Adam Schiff, just sent to the heads of the CIA, NSA and FBI, continuing to dig in on the whole "recorded Mike Flynn" thing. The target now is Executive Order 12333, which we've spoken about quite a lot. That's the executive order signed by President Reagan, that more or less gives the intelligence community total free rein in conducting surveillance overseas. As an ex-State Department official revealed back in 2014, the vast majority of NSA surveillance actually is done under 12333, and it just uses other programs -- like Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act -- to fill in the gaps of what they can't get via 12333. Executive Order 12333, for example, was used to hack into Yahoo and Google's servers overseas, allowing the NSA to scoop up lots of info without any oversight by US courts.

Anyway, based on the letter that Nunes has sent, he's suddenly quite concerned about 12333. And this demonstrates his massive hypocrisy, because another letter he sent a few years ago has him arguing that there should be less oversight on 12333... but we'll get to that. This new letter suggests that the Flynn recording came under 12333, and so he's demanding all sorts of data on how 12333 is used on US Persons.

Of course, what's interesting here is that the Congressional intelligence committees have long stated that they don't really have much oversight into anything under 12333. Dianne Feinstein (who was a top member of the Senate Intelligence Committee) admitted in the past that the committees get zero insight into 12333 intelligence collection:

“The other programs do not (have the same oversight as FISA). And that’s what we need to take a look at,” she said, adding that her committee has not been able to “sufficiently” oversee the programs run under the executive order. “Twelve-triple-three programs are under the executive branch entirely.”

Feinstein has also said the order has few, if any, privacy protections. “I don’t think privacy protections are built into it,” she said. “It’s an executive policy. The executive controls intelligence in the country.”

Got that? Good. At least when Feinstein was bringing it up, she was bringing it up to argue that the Intel Committees should be getting more insight into what 12333 is used for.

However, Devin Nunes, apparently wanted it to be kept in the dark. And wanted the public kept in the dark. That's because I just received in a surprisingly well-timed FOIA response, a letter that Nunes, along with Senate Intel Committee boss Richard Burr, sent a letter to the Privacy and Civil Liberties Oversight Board (PCLOB) back in 2015, basically telling the PCLOB to stop looking into 12333, because it was outside its purview. As you may recall, after doing detailed reports on Sections 215 and 702, the PCLOB announced that it was going to do a detailed study on 12333 to determine if it was violating the privacy and civil liberties of Americans. While that was announced way back in 2014, nothing final ever came out -- and it's unlikely to ever come out because the PCLOB is effectively dead.

But Nunes and Burr were apparently so concerned that the PCLOB might find actual problems with 12333 and how it violates the rights of Americans, that they made it clear that the PCLOB should knock it off:

As we are sure you are aware, intelligence activities conducted under E.O. 12333 address a broad range of national security issues beyond counterterrorism, including significant and important foreign intelligence matters that fall well outside of the PCLOB's limited statutory charter. Many intelligence activities conducted under E.O. 12333 predate the creation of the PCLOB and were not within the scope that the 9/11 Commission or Congress envisioned when PCLOB was established. The purpose is clear and specifically defined by Congress.

We trust you will keep in mind the finite statutory authority as you move forward and work with the Intelligence Community to limit appropriately your review only to those matters which Congress has specifically authorized you to review.

In other words, just two years ago, Devin Nunes was telling the one body in the government specifically tasked with reviewing intelligence collection programs to see how they're being used on Americans, that they should stop doing that. And now, today, he's suddenly demanding to know how the intelligence community uses 12333 to spy on Americans -- as if it had never crossed his mind before that the program was used this way.

This is not effective oversight. This is a hypocritical joke by the name of Rep. Devin Nunes.

Filed Under: 12333, adam schiff, cia, devin nunes, executive order 12333, fbi, mike flynn, nsa, pclob, richard burr, surveillance

White House Tells Feinstein CIA Torture Report Will Be 'Preserved' But Not Declassified

from the because-of-course-not dept

Over the last few weeks, we've noted that Senator Dianne Feinstein has pushed for the CIA Torture Report that she originally commissioned be declassified (beyond the 500 page, heavily redacted, executive summary that was declassified). And then we wrote about two former Senators asking for President Obama to make sure that he preserve the report as a federal record. This is important. The full report, approaching 7,000 pages and costing $40 million to prepare, apparently details all sorts of wrongdoing by the CIA in torturing people in the Middle East. It's a comprehensive look into not just the horrific program by the CIA, but its failure to produce anything useful and the details of how the CIA lied about it. And here's the problem: Feinstein's colleague on the Senate Intelligence Committee, the current chair, Senator Richard Burr, wants the report destroyed.

Burr is claiming that the report is a Congressional Record and not a federal record, and thus has asked for all copies to be returned, where he can make sure they are destroyed and never to be read by anyone. This dispute has resulted in people in the Executive Branch being told not to read the report and not to enter it as a federal record, thus keeping it away from being subject to FOIA requests, and while everyone figures out what to do about Burr's request.

In response to Feinstein's more comprehensive request for declassification, top White House lawyer Neil Eggleston has written a letter saying two things: first that the document will be preserved under the Presidential Records Act, even if the copies at various agencies are returned to the Senate. This is good. It means that even if Burr gets the document back, he can't destroy every single copy, and also that it's likely that someday there will be a release of a declassified version.

I write to notify you that the full Study will be preserved under the Presidential Records Act (PRA). The determination that the Study will be preserved under the PRA has no bearing on copies of the Study currently stored at various agencies.

Then there's the bad news: that day won't be any day soon. Eggleston also informs Feinstein that there is no effort underway to declassify the report, meaning that it's simply not going to happen under this President at all. He does note that under the PRA, the information should be classified for twelve years:

Consistent with the authority afforded to him by the PRA, the President has informed the Archivist that access to classified material, among other categories of information, should be restricted for the full twelve years allowed under the Act. At this time, we are not pursuing declassification of the full Study.

This is a ridiculously weak cop-out. The study deserves to be declassified -- especially as the incoming President elect has said that he plans to reintroduce elements of the torture program and even push for it to go further than it did in the past. Having the public recognize the problems of the program -- not to mention other government officials, seems like it would be fairly important.

Of course, given that Trump and his team have suddenly picked a fight with the CIA -- including accusing the CIA of lying, perhaps he'll actually be more interested in exposing the CIA's lies detailed in the report. In this age of topsy-turvy news where everything has been flipped upside down, stranger things have happened...

Filed Under: archived, cia, cia torture report, dianne feinstein, neil eggleston, president obama, richard burr, torture report

Two Former Senators Call On Obama To Save The Full CIA 'Torture Report' From Being Buried

from the stay-of-obfuscation-requested dept

So far, very little has been done with the Senate Intelligence Committee's 6,700-page "Torture Report." Some agencies haven't even read it (and have blocked others from doing so). Others have been completely careless in the handling of their copies. Most of the federal government -- especially the White House -- just seems to want it to go away.

Dianne Feinstein, who helped keep the full document from being made public (costing requesters like Jason Leopold thousands in legal fees), now wants the report declassified. The Obama administration has shown little interest in doing so.

Two former long-term Senators, Carl Levin and Jay Rockefeller (who both retired last year) -- taking a look at the incoming administration -- say it's basically now or never if the full report is going to be saved. And these are two Senators who had plenty of experience and exposure to these issues. Rockefeller chaired the Senate Intelligence Committee at one point and Levin chaired the Senate Armed Services Committee.

Given President-elect Donald J. Trump’s unconscionable campaign pledge to “bring back waterboarding” and “a hell of a lot worse” — acts that would be illegal if carried out — President Obama’s leadership on this issue has never been more important.

Drawing on our decades of work in the Senate and our chairmanships of the Armed Services and Intelligence Committees, we are calling on President Obama to preserve the full torture report as a matter of profound public interest. We are not asking him to necessarily agree with all of the report’s findings, though we certainly hope he does, but we are asking him to protect it as an important piece of history.

The president could do this simply by allowing departments and agencies that already possess the document to enter it as a federal record, making it much more difficult for a future administration to erase.

So far, the public has only seen a summary of the report. While the summary, at 500 pages, is much better than nothing, the entire report could be buried forever by the new White House. If anyone owes the public some last-minute transparency, it's President Obama. Despite frequently claiming to head up the "most transparent" administration in history, the Obama White House has presided over more whistleblower prosecutions than all others combined and a steady increase in FOIA request denials by federal agencies.

Entering it into the public record would head off future attempts to memory-hole this important report, something that's already been attempted.

Senator Richard Burr... took the unusual step of trying to recall the full report that Senator Feinstein had distributed — to prevent it from ever being widely read or declassified. In this effort, Senator Burr has written to President Obama, insisting that the full report not only be returned but that it “should not be entered into any executive branch system of records.”

Since then the full report has been locked in limbo, with the Obama administration unwilling to even open the document, but also unwilling to return it to Senator Burr.

Even if Donald Trump hadn't already vocalized his support of the tactics the report condemned, the temptation to turn this into a partisan issue (Sen. Burr is a Republican) could possibly see this request granted. If it is, the report will be assigned to the historical dustbin. The executive summary will always point to its existence, but no one outside of a select few will ever have a chance to see the report in its entirety -- and the $40 million in taxpayer funds that was spent to research and write the report will go up in smoke too. That will make it that much easier for the incoming administration, and those beyond it, to start revising the CIA's history by whitewashing the details that were never made public in the first place.

Filed Under: carl levin, cia, cia torture report, donald trump, jay rockefeller, president obama, richard burr, torture report

Senator Feinstein Asks President Obama To Declassify Senate's CIA Torture Report

from the last-chance dept

Could President Obama actually declassify and release the full 6,800 page report on the massive failures of the CIA's torture program from a decade ago? While it seems unlikely, Senator Dianne Feinstein is urging the President to release the document, fearing that the massive report may disappear into the memory hole soon.

Some background: While Feinstein has been historically awful on basically anything having to do with reining in the US intelligence community, the one area that really seemed to get her attention and raise concerns was the CIA's torture regime. She assigned Senate Intelligence Committee staffers to work on a massive and detailed report on the CIA's torture program after it came out that a key official involved in the program had deliberately deleted videotape evidence about the program. The research and writing of the report went on for years and cost millions of dollars, and then resulted in another big fight over releasing a heavily redacted version of just the executive summary of the report (not to mention that the CIA also broke into the staffers' computers after it realized it had accidentally given the staffers a really damning document). The fight over releasing the paper was really, really ridiculous.

There were fights over what ridiculous things to redact, and then the White House put on a full court press against releasing the document, insisting that publicly releasing even a heavily redacted executive summary would inspire terrorist attacks. Even after an agreement was reached on the redactions, John Kerry still tried to block the release, again warning of potential attacks in response.

Eventually the heavily redacted executive summary was released, revealing what many had suspected: the CIA's torture program was a complete waste, providing nothing in terms of valuable intelligence, and also involved the CIA lying to Congress. Since then, though, there have been ongoing battles over the report. Also revealed: what a bunch of bullshit the claims were that the release of the report would inspire new attacks. It's been two years and there's no evidence the report inspired any hatred beyond what was already present.

While Feinstein made sure copies of the full report were delivered to various parts of the executive branch, insisting that the report should be read so that we don't repeat the mistakes of the past, most of them claim they never read it and also that there was nothing to learn from it. Then, after Senator Richard Burr took over the Senate Intelligence Committee he began to demand that the various copies of the report all be returned so they could be completely destroyed, erasing all of that evidence and reporting on the CIA's torture program. The CIA claims it "accidentally" deleted one of its own copies.

The ACLU tried to FOIA the full document but was rejected... and the courts refused to force the government to release the document.

There's every indication that a President Trump would have zero interest in releasing such a report, and probably would support the destruction of the remaining copies. And, because of that, it appears that Senator Feinstein is calling on the President to declassify the whole thing.

I think people need to see the full facts of the report. I believe they stand on their own. And I think it's very important, particularly since there is discussion or talk or allegations about - well, we're going to resume waterboarding, and, yes, we can torture people.

As the report at NPR notes, during the campaign, Trump eagerly endorsed bringing back the torture program, specifically calling out waterboarding and suggesting going even further than that.

Once again, here's an opportunity for President Obama to actually do something that would make a powerful statement before handing over the White House. Not only would it help provide tremendous transparency into a shameful episode in our very recent history -- a shameful episode that is at great risk of being repeated -- it would also prevent the report from being totally destroyed. As the NPR piece notes, Senator Burr is still fighting to get back the document to destroy it. That means there's a very good chance that if President Obama doesn't get the full torture report declassified, it will disappear forever. Of course, given the White House's (ridiculous) attempts to block the release of the exec summary, combined with Obama's terrible track record in letting the intelligence community get away with all sorts of stuff, I wouldn't hold my breath.

Filed Under: cia, dianne feinstein, donald trump, richard burr, torture report, waterboarding

Senators Burr & Feinstein Look To Bring Back Bill To Outlaw Real Encryption

from the apparently-they-didn't-get-the-message dept

Back in May we noted that the ridiculous and terrible anti-encryption bill from Senators Richard Burr and Dianne Feinstein was dead in the water. The bill had all sorts of problems with incredibly broad and vague requirements, but the quick summary was that tech companies would have to figure out a way to backdoor all encryption, because if they received a warrant, they'd be required to decrypt any communication.

Rather than get the message that this was a really, really bad idea, it appears that Burr and Feinstein have just gone back to the drawing board, trying to recraft the bill. Julian Sanchez got his hands on one of a few prospective new drafts that are being floated around and has an analysis of the update. The draft that Sanchez has seen tries to fix some of the problems, but doesn't really fix the main problems of the bill. As Sanchez points out he sees four major changes in the draft:

(1) Narrower scope

The original discussion draft required a “covered entity” to render encrypted data “intelligible” to government agents bearing a court order if the data had been rendered unintelligible “by a feature, product, or service owned, controlled, created, or provided, by the covered entity or by a third party on behalf of the covered entity.” This revision would delete “owned,” “created,” and “provided”—so the primary mandate now applies only to a person or company that “controls” the encryption process.

(2) Limitation to law enforcement

A second change would eliminate section (B) under the bill’s definition of “court order,” which obligated recipients to comply with decryption orders issued for investigations related to “foreign intelligence, espionage, and terrorism.” The bill would then be strictly about law enforcement investigations into a variety of serious crimes, including federal drug crimes and their state equivalents.

(3) Exclusion of critical infrastructure

A new subsection in the definition of the “covered entities” to whom the bill applies would specifically exclude “critical infrastructure,” adopting the definition of that term from 42 USC §5195c.

(4) Limitation on “technical assistance” obligations

The phrase “reasonable efforts” would be added to the definition of the “technical assistance” recipients can be required to provide. The original draft’s obligation to provide whatever technical assistance is needed to isolate requested data, decrypt it, and deliver it to law enforcement would be replaced by an obligation to make “reasonable efforts” to do these things.

The first change seems like a big deal, but it also is hard to parse out and seems rather meaningless. Changing the requirement from covered entities to those who "control" the encryption? So what. That basically still means backdooring encryption, it just might mean going up a step or two in the ladder. Sanchez reads this as possibly being an attempt to effectively backdoor future types of encryption, less so than what we have today. I won't repeat his whole argument here -- go read it yourself -- but as he notes, this might be a way to calm people down to pass this bill:

If this interpretation of idea behind the proposed narrowing is right, it’s particularly politically canny. You declare you’re going to saddle every developer with a backdoor mandate, or break the mechanism everyone’s Web browser uses to make a secure connection, and you can expect a whole lot of pushback from both the tech community and the Internet citizenry. Tell people you’re going to mess with technology their security already depends upon—take away something they have now—and folks get upset. But, thanks to a well-known form of cognitive bias called “loss aversion,” they get a whole lot less upset if you prevent them from getting a benefit (here, a security improvement) most aren’t yet using. And that will be true even if, in the neverending cybersecurity arms race, it’s an improvement that’s going to be necessary over the long run even to preserve current levels of overall security against increasingly sophisticated attacks.

As for the other changes, saying that this can't be used for intelligence purposes, but just law enforcement, is also kind of meaningless. The intel community has actually been somewhat opposed to the Burr Feinstein bill anyway -- in part because they can already break into lots of encryption. And if this new backdoor is required, then they'll be able to break into more. The warrants are meaningless to the intel community for the most part, so this "limitation" is no limitation at all.

The final change about "reasonable efforts" is clearly an attempt to appease the tech companies that spoke out loudly against the bill. It's definitely better than the "you must decrypt" kind of language in the original, but it's hardly comforting. Remember, the FBI/DOJ insisted that what it was asking of Apple in the San Bernardino iPhone case was a perfectly "reasonable" effort as well.

Either way, this shouldn't be much of a surprise, but it's clear that the whole push to outlaw real encryption may have had a setback, but is far from dead.

Filed Under: dianne feinstein, encryption, going dark, richard burr

Why Are The Congressional Intelligence Committees So Quiet On The NSA Malware Leaks?

from the speak-up,-feinstein,-we-can't-hear-you dept

Last week, we wrote about the leak of various NSA hacking tools, that showed it had zero-day exploits for a bunch of hardware, including some from Cisco. This has raised some concerns about how long the NSA sat on these vulnerabilities without telling companies -- along with reaffirming what many people already suspected: that the supposed "Vulnerabilities Equities Program" (VEP), in which the NSA is supposed to disclose the vulnerabilities it finds to the companies to patch, is a complete joke.

But Marcy Wheeler has another important point about all of this. When the Snowden documents originally leaked three plus years ago, the various top members of the House and Senate Intelligence Committees -- the so-called Gang of Four -- were quick to speak out (and condemn) the leak. But, oddly, this time they're staying pretty quiet.

Within hours of the first Snowden leak, Dianne Feinstein and Mike Rogers had issued statements about the phone dragnet. As far as I’ve seen, Adam Schiff is the only Gang of Four member who has weighed in on this

U.S. Rep. Adam Schiff, the ranking Democrat on the House Intelligence Committee, also spoke with Mary Louise. He said he couldn’t comment on the accuracy of any reports about the leak.

But he said, “If these allegations were true, I’d be very concerned about the impact on the intelligence community. I’d also obviously want to know who the responsible parties were. … If this were a Russian actor — and again, this is multiple ‘ifs’ here — we’d have to ask what is causing this escalation.”

Say, Congressman Schiff. Aren’t you the ranking member of the House Intelligence Committee and couldn’t you hold some hearings to get to the bottom of this?

Meanwhile, both Feinstein (who is the only Gang of Four member not campaigning for reelection right now) and Richard Burr have been weighing in on recent events, but not the Shadow Brokers release.

If the House and Senate Intelligence Committees were really about "oversight" of the NSA, then shouldn't they have jumped on this immediately? Shouldn't they be looking into how the NSA manages the VEP? Shouldn't they be looking into how these tools got out? Why are they just staying silent or giving meaningless statements like Schiff's?

Filed Under: 0days, adam schiff, devin nunes, dianne feinstein, house intelligence committee, leak, malware, nsa, richard burr, senate intelligence committee, vep, vulnerabilities

Kudos To Senator Leahy: Fighting To Keep Privacy & Civil Liberties Board From Being Hobbled

from the keep-at-it dept

While I think that Senator Patrick Leahy has been ridiculously and dangerously wrong on copyright issues for years, he's actually quite good on a number of other issues that are of interest to us here at Techdirt. In particular, he's been a strong supporter of civil liberties on the internet and protecting the 4th Amendment (it's unfortunate that he doesn't see how his desired copyright policies might undermine some of that, but that's another post for another day). Thankfully, his latest move is to push back against a plan by the Senate and House Intelligence Committees to strip the federal government's Privacy and Civil Liberties Board (PCLOB).

Back in May, we wrote about this effort, whereby Congress appeared to be deliberately stripping powers from the PCLOB in order to limit the board's ability to actually make sure that the intelligence community wasn't abusing its powers. Senator Leahy has now sent a fairly direct letter to Senate Intelligence chair Senator Richard Burr and vice chair Senator Dianne Feinstein calling out how terrible this plan is.

The letter calls out the "pattern" that has been put in place by both the House and Senate Intelligence Committees to one by one by one strip powers from the PCLOB. After giving a bunch of examples of this playing out, with the language stripping the powers being agreed upon in secret (of course), Leahy notes:

The PCLOB has served a valuable role in reviewing government surveillance programs and recommending reforms that have largely been implemented by the executive branch. It is particularly inappropriate to debate and report legislation in a closed markup that is designed to diminish the authority of a public, independent oversight board. Congress should b enhancing its role, not undercutting it.

It then asks them to remove these PCLOB-undermining provisions from the intel re-authorization bill. Of course, Feinstein and Burr want to hobble the PCLOB because they've long been cheerleaders for widespread surveillance, and have actively fought against any real or significant oversight. There's a reason why these riders undermining the PCLOB keep showing up, and it's because Senators like Feinstein and Burr are deliberately trying to protect the intelligence community from oversight. So unless some bigger force comes along, it's doubtful this letter will have much of a direct impact. But, even so, kudos to Leahy for sending the letter as a starting point. Hopefully he follows through and continues to keep the pressure up.

Filed Under: congress, dianne feinstein, oversight, patrick leahy, pclob, richard burr

Burr-Feinstein Anti-Encryption Bill Has No Support, Won't Be Moving Forward Anytime Soon

from the but-a-corpse-can-always-be-exhumed-and-'Weekend-at-Bernied'-back-into-ac dept

Some good news has arrived: the Feinstein-Burr anti-encryption bill is now little more than a cooling corpse in the legislative mortuary.

Draft legislation that Senators Richard Burr and Dianne Feinstein, the Republican and Democratic leaders of the Intelligence Committee, had circulated weeks ago likely will not be introduced this year and, even if it were, would stand no chance of advancing, the sources said.

Key among the problems was the lack of White House support for legislation in spite of a high-profile court showdown between the Justice Department and Apple Inc over the suspect iPhone, according to Congressional and Obama Administration officials and outside observers.

But, as Miracle Max pointed out, "mostly dead" is still "slightly alive." There are caveats hidden in Reuters' eulogy. Taking the bill out of the running for "this year" doesn't necessarily mean Burr/Feinstein won't take it out of cold storage after the regime change. It also doesn't rule out revived interest in backdooring encryption should an exploitable tragedy occur in the coming months. Never bet against the House/Senate. Bad ideas -- along with ECPA/FOIA reform attempts -- are perennial, but only the former draw strength from the deaths of US citizens. And you can never count out the undying support of law enforcement agencies, which have quite a bit of pull in national and state legislatures.

But even the usual supporters of government surveillance had their problems with the anti-encryption effort. Senator Lindsey Graham backed away hurriedly once he became aware of what was actually at stake.

“I was all with you until I actually started getting briefed by the people in the Intel Community,” Graham told Attorney General Loretta Lynch during an oversight hearing in the Senate Judiciary Committee. “I will say that I’m a person that’s been moved by the arguments about the precedent we set and the damage we might be doing to our own national security.”

This is what happens when you actually converse with the "smart people" at tech companies. This explains why FBI Director James Comey would rather talk about "smart people," rather than to them. (Shorter Comey: "Nerd harder, nerds.") Nothing chills anti-encryption fervor more than the cold water of reality. Comey would rather be guided by faith and his belief in his own "rightness" than take the chance of being informed about how wrong he actually is.

Feinstein and Burr have a lot of pull and are in the intelligence community's inner circle. But if they can't get this done -- even in the wake of a mass shooting that dovetailed into a legal battle over iPhone access -- it's unlikely they'll be able to round up the support they need until after a new president is in place. And even that's no guarantee. But for now, the bill is going nowhere, and that's something.

Filed Under: dianne feinstein, encryption, going dark, richard burr

District Attorney Arguing Against Encryption Handed Out Insecure Keylogging 'Monitoring' Software To Parents

from the let-them-eat-post-breach-free-credit-monitoring dept

Beyond James Comey, there are still a few law enforcement officials beating the anti-encryption drum. Manhattan DA Cyrus Vance is one of those. He's been joined in this fight by some like-minded district attorneys from the other coast, seeing as New York and California both have anti-encryption bills currently working their way through local legislatures. Vance, along with Los Angeles County DA Jackie Lacey and San Diego County DA Bonnie Dumanis, penned an op-ed against encryption for the LA Times. In it, they argue that tech companies have set them up as "gatekeepers" of communications and data, which they believe law enforcement should always have access to, no matter what.

DA Dumanis goes even further in a press release issued by her office. Tech companies aren't just gatekeepers standing between law enforcement and data. They're "gatekeepers of justice," apparently standing between victims of crime and punishment of wrongdoers.

The EFF's Dave Maass has fired back, via a post of the Voice of San Diego, pointing out that Dumanis especially shouldn't be inserting herself into the encryption debate -- not with her general disdain for the security of her constituents.

It opens with this:

The last person San Diego should trust with their computers and smartphones is District Attorney Bonnie Dumanis.

And goes on to clearly articulate why Dumanis has no business attempting to legislate computer security. Dumanis spent public money acquiring and pushing a horrendously insecure piece of "parental monitoring" software.

In 2012, Dumanis spent $25,000 in public money on 5,000 copies of a piece of “parental monitoring” software called ComputerCop. This CD-ROM, which was distributed to families throughout the county for free, included a video from Dumanis promoting the program as the “first step” in protecting your children online.

This first step, however, involved parents installing keylogger software on their home computers. This type of technology is a favorite tool of malicious hackers, since it captures everything a user types, including personal information such as passwords and credit card numbers. Not only did ComputerCop store keylogs in an unencrypted file on the person’s computer, but it also transmitted some of that information over unsecured connections to a mysterious third-party server.

Two years later, Dumanis finally pulled the plug on the publicly-funded program, admitting the monitoring software was faulty and telling parents to disable the insecure keylogging function. Dumanis was hardly the only DA to recommend this terrible software, but she's one of the few who's stuck her head above the encryption parapet to offer her support of the Feinstein-Burr anti-encryption bill.

But that's not all. Dumanis and her office won't even secure their own website.

The district attorney’s website fails to use HTTPS, the protocol that has become the industry standard for secure browsing online. This means that residents, including crime victims, whistleblowers and witnesses, cannot visit her site with confidence that their browsing won’t be intercepted or manipulated by third parties.

Dumanis -- like Vance, Comey, and others -- would rather sacrifice the safety of the public for a few more criminal prosecutions. The "greater good" apparently means nothing when a very small percentage of cases might involve encrypted communications or devices.

Law enforcement has never had more access to communications and data that it does now. In the past, files were burned, papers were shredded, people passed notes and spoke in person -- all of which rendered these inaccessible to law enforcement. Now that these files and communications are conveniently stored en masse on cellphones and personal computers does not mean the government is somehow entitled to 100% access. A warrant that runs into encryption is a small price to pay for the security of millions of cellphone users. Despite maintaining the narrative that criminals are moving toward encrypted platforms, law enforcement reps and officials have yet to deliver any evidence that this is so widespread that backdooring or banning encryption is the only option. And the loudest law enforcement voices protesting tech companies and their "gates" are often those who care the least about protecting innocent people from criminals.

[Dave Maass pointed out on Twitter that Suffolk County (MA) District Attorney Dan Conley -- who spent a lot of time displaying his ignorance during the Congressional hearing about device encryption -- has also stumped for the insecure monitoring software.]

Filed Under: bonnie dumanis, dianne feinstein, encryption, going dark, richard burr, sand diego

CIA Inspector General Claims It Accidentally Deleted CIA Torture Report After Being Asked To Retain It

from the keystone-cops dept

The saga of the CIA torture report continues to get stranger and stranger. As we noted, last week, the appeals court shot down a FOIA lawsuit from the ACLU to get the full report released. If you remember, only the heavily redacted ~500 page executive summary of the report had been released, with another ~6,500 pages or so still locked away. And we do mean locked away. The Justice Department has basically told the entire executive branch not to open the report, and Senate Intelligence Committee boss Richard Burr has been demanding the report be sent back to the Senate so it can be destroyed. Senator Feinstein had actually distributed copies fairly widely throughout the administration, with the goal being that the full report would get read and, you know, the US government wouldn't torture people again.

Part of the reason why the DOJ instructed everyone in the executive branch not to read it was to play a game with the whole FOIA process. Only documents held by the executive branch are subject to FOIA requests. Things in Congress are exempt. So Burr has been making sure that everyone believes the report is "a Congressional record" and the DOJ is arguing that by not opening the report, the executive branch doesn't run the risk of accidentally making the document subject to FOIA requests. But, as part of that, the DOJ also told everyone in the executive branch not to destroy their copies either -- asking it to "preserve the status quo" during the course of the FOIA lawsuit.

According to a detailed report at Yahoo, the CIA's Inspector General's Office then destroyed its copy of the report, but insists it was all an accident, and they'd like another copy... to lock up and not read:

[L]ast August, a chagrined Christopher R. Sharpley, the CIA’s acting inspector general, alerted the Senate intelligence panel that his office’s copy of the report had vanished. According to sources familiar with Sharpley’s account, he explained it this way: When it received its disk, the inspector general’s office uploaded the contents onto its internal classified computer system and destroyed the disk in what Sharpley described as “the normal course of business.” Meanwhile someone in the IG office interpreted the Justice Department’s instructions not to open the file to mean it should be deleted from the server — so that both the original and the copy were gone.

At some point, it is not clear when, after being informed by CIA general counsel Caroline Krass that the Justice Department wanted all copies of the document preserved, officials in the inspector general’s office undertook a search to find its copy of the report. They discovered, “S***, we don’t have one,” said one of the sources briefed on Sharpley’s account.

Sharpley was apologetic about the destruction and promised to ask CIA director Brennan for another copy. But as of last week, he seems not to have received it; after Yahoo News began asking about the matter, he called intelligence committee staffers to ask if he could get a new copy from them.

Feinstein is apparently none too pleased about all of this and has just sent a letter to CIA director John Brennan, asking him to give the Inspector General's office a copy:

As you may be aware. the office of the CIA Inspector General has misplaced and/or accidentally destroyed its electronic copy and disk of the Senate Select Committee on lntelligence's full 6,700-page classified Study of the CIA Detention and Interrogation Program. I write to request that as Director of the CIA, you provide a new copy of the Study to the office of the CIA IG immediately.

Your prompt response will allay my concern that this was more than an "accident." The CIA IG should have a copy of the full Study because the report includes extensive information directly related to the ongoing oversight of the CIA.

Furthermore, on February 5, 2015, as part of ongoing FOIA litigation, the Department of Justice declared to a federal judge that "it can assure the Court that it will preserve the status quo regarding the Full Report absent either leave of court or resolution of this litigation in the government's favor." Therefore, providing the CIA IG with a copy of the full report immediately will also ensure that DOJ lawyers can inform federal judges that the status quo was adhered to and has been restored.

The Yahoo report also notes that the CIA and the Justice Department apparently never bothered to tell the judge that this copy had been destroyed, despite promising that it wouldn't be months earlier. The DOJ apparently told Yahoo reporter Michael Isiskoff that since the Inspector General's Office is a part of the CIA, and the CIA itself still had a copy, it felt that the status quo had been retained.

And, yes, while the Inspector General's office is a part of the CIA, it's the part that's supposed to be overseeing the rest of the organization to make sure it doesn't violate the law in this manner. As the qrticle notes:

“It’s breathtaking that this could have happened, especially in the inspector general’s office — they’re the ones that are supposed to be providing accountability within the agency itself,” said Douglas Cox, a City University of New York School of Law professor who specializes in tracking the preservation of federal records. “It makes you wonder what was going on over there?”

It certainly does make you wonder...

Meanwhile, there's also some dark irony in the fact that the only reason this report exists in the first place was as a response to the Senate's discovery that the CIA illegally destroyed videotapes detailing the CIA's torture program.

Filed Under: cia, cia inspector general, dianne feinstein, john brennan, richard burr, torture report