Dear Sheldon Whitehouse: Do You Really Mean To Put Activists In Jail?

from the questions-to-ask dept

Last week, we noted that Senator Sheldon Whitehouse (who has a bit of a history of really flubbing key tech issues), was downright angry that people were pushing back on his plans to expand the possible punishment under the widely abused Computer Fraud and Abuse Act (CFAA). Whitehouse pulled out the usual tropes, saying that the DOJ supports his amendment, and he couldn't understand why anyone could possibly be against ratcheting up punishment for "cyber criminals." Except, that shows an astounding level of ignorance on the part of Senator Whitehouse, because the CFAA is regularly used against people who most would not consider to be traditional "cyber criminals."

A group of activist organizations recently sent Senator Whitehouse a letter protesting his CFAA Amendment, and noting that while he thinks it's just being used against nefarious computer hackers, that's not the case. The CFAA is regularly used against plenty of others as well, including some people that Senator Whitehouse might even support. For example, the letter points to a case from a few years ago, Pulte Homes v. Laborers' International Union, in which the 6th Circuit decided that a union telling its members to call and email a company they were protesting violated the civil portion of the CFAA. The case involved the union telling its members to call and email Pulte Homes, which apparently slowed down their computer systems, and the court ruled that was enough "intentional damage" to qualify as a CFAA violation:

The following allegations illustrate LIUNA’s objective to cause damage: (1) LIUNA instructed its members to send thousands of e-mails to three specific Pulte executives; (2) many of these e-mails came from LIUNA’s server; (3) LIUNA encouraged its members to “fight back” after Pulte terminated several employees; (4) LIUNA used an auto-dialing service to generate a high volume of calls; and (5) some of the messages included threats and obscenity. And although Pulte appears to use an idiosyncratic e-mail system, it is plausible LIUNA understood the likely effects of its actions—that sending transmissions at such an incredible volume would slow down Pulte’s computer operations. LIUNA’s rhetoric of “fighting back,” in particular, suggests that such a slow-down was at least one of its objectives. The complaint thus sufficiently alleges that LIUNA—motivated by its anger about Pulte’s labor practices—intended to hurt Pulte’s business by damaging its computer systems.

This seems notable, because sending lots of calls and emails is a pretty standard activist/protest mechanism, used all the time. The idea that it might be considered a CFAA violation is immensely troubling. And it should be doubly so for Senator Whitehouse, given that he's received tremendous support from unions in the past. According to Open Secrets, two of his largest funders are the Service Employees International Union and the Teamsters. He's also received lots of money from Ocean Champions, an activist group focused on protecting our oceans. And, yet, at the same time, he seems to be ratcheting up a law that might be used against some of their activism. Meanwhile, his PAC has received lots of support from unions as well, including the Sheet Metal Workers Union and the International Brotherhood of Electrical Workers.

As the letter from the activist groups note:

No government that respects the public's right to speak and organize should ban such behavior, yet that is precisely what the CFAA has been interpreted to do. That activists must work under fear of such exposure redounds to the benefit of corporations that are exploitative of their workers, polluters, and others who stand opposed to our shared progressive values.

The letter further notes that one of the key parts of Senator Whitehouse's amendment, about "botnets," will almost certainly be used against online activists, who seek to bring a bunch of internet users together to speak out. Given the way Senator Whitehouse reacted last week, it seems unfortunately likely that this letter will fall on deaf ears. But it's important to recognize that just because you claim a law will be used against "cyber criminals" doesn't mean that it won't be used to stifle things like activism that you might actually support.

Filed Under: activists, cfaa, hacking, sheldon whitehouse, unions

Anti-Whistleblower 'Ag-Gag' Law Ruled Unconstitutional

from the go-free-speech! dept

We've written a few times about the ridiculousness of so-called ag-gag laws, that prohibit photographing or videotaping farms (sometimes even from public land). These laws were pushed for heavily by large industrial farmers who were sick of animal rights advocates getting images and videos of the conditions in farms and slaughterhouses that were questionable. Whatever you might think of the practices of those advocates, banning taking photographs or videos seemed like a really questionable move -- which would have a chilling effect on whistleblowers of all kinds. It seemed like it had to be unconstitutional -- and a court in Idaho agrees, declaring that state's law unconstitutional.

The court does not mince words, noting that under this law, Upton Sinclair's The Jungle would likely have been illegal:

The story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating expose of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act.... Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042.

The State responds that § 18-7042 is not designed to suppress speech critical of certain agricultural operations but instead is intended to protect private property and the privacy of agricultural facility owners. But, as the story of Upton Sinclair illustrates, an agricultural facility’s operations that affect food and worker safety are not exclusively a private matter. Food and worker safety are matters of public concern. Moreover, laws against trespass, fraud, theft, and defamation already exist. These types of laws serve the property and privacy interests the State professes to protect through the passage of § 18- 7042, but without infringing on free speech rights.

With this background and context, the Court finds that § 18-7042 violates the First Amendment right to free speech. In addition, the Court finds that § 18-7042 violates the Equal Protection Clause because it was motivated in substantial part by animus towards animal welfare groups, and because it impinges on free speech, a fundamental right.

The ruling also highlights how the politicians behind this bill barely hid their desire to shut up those darn animal rights activists, who they sometimes referred to as "terrorists" in explaining why this bill was necessary.

A review of the legislative record in search of a legitimate purpose does nothing to help the State’s cause.... The overwhelming evidence gleaned from the legislative history indicates that § 18-7042 was intended to silence animal welfare activists, or other whistleblowers, who seek to publish speech critical of the agricultural production industry. Many legislators made their intent crystal clear by comparing animal rights activists to terrorists, persecutors, vigilantes, blackmailers, and invading marauders who swarm into foreign territory and destroy crops to starve foes into submission. Other legislators accused animal rights groups of being extreme activists who contrive issues solely to bring in donations or to purposely defame agricultural facilities.

As the Supreme Court has repeatedly said, “a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest if equal protection of the laws is to mean anything.” ... As a result, a purpose to discriminate and silence animal welfare groups in an effort to protect a powerful industry cannot justify the passage of § 18-7042.

It also points out that, for all the talk of animal rights advocates "misrepresenting" things on farms, there's a perfectly good solution to that: counterspeech.

The State has not shown why counterspeech would not suffice to achieve its interest of protecting agricultural production facilities from interference by wrongful conduct.... If an undercover investigator “staged a video” at an agricultural production facility, as some Idaho legislators fear, ... not only could the facility owner sue the investigator for fraud or defamation, but the facility owner could launch its own public relations campaign to refute the video.

The remedy for misleading speech, or speech we do not like, is more speech, not enforced silence....

The court also laughs off the idea that the bill was narrowly tailored or that this particular law was necessary. In fact, the court points out ridiculous things that are illegal under the law:

Indeed, § 18-7042 not only restricts more speech than necessary, it poses a particularly serious threat to whistleblowers’ free speech rights. To convict a whistleblower under the statute, the State does not need to prove that the whistleblower entered a production facility under false pretenses or trespass. Thus, as discussed above, if a diligent and trusted longtime employee witnesses animal abuse or life-threatening safety violations and records it without authorization, the employee could face up to a year in jail and be forced to pay damages to agricultural production facility owner for “twice” the economic loss the owner suffers because of the employee’s whistleblowing activity, even if everything depicted on the video is true and accurate.... In other words, the statute circumvents long-established defamation law and whistleblowing statutes by punishing employees for publishing true and accurate recordings on matters of public concern. The expansive reach of this statute is hard to reconcile with basic speech, whistleblower, and press rights.

And finally, with all the questionable reasons for this bill to exist, one of the least commented on is the fact that this is clearly the state picking industries to give special protections to -- and the court doesn't even let that point slide:

Likewise, the State fails to provide a legitimate explanation for why agricultural production facilities deserve more protection from these crimes than other private businesses. The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.

Of course, there are still seven other states with ag-gag laws on the books, and hopefully they're about to go down as well. There is still a decent chance that the state will appeal and waste more taxpayer money defending an unconstitutional bill that spits on the First Amendment, but it's difficult to see how the courts could come to any conclusion different than the one here by Judge Lynn Winmill.

Filed Under: activists, ag gag, ag-gag, farms, first amendment, idaho, upton sinclair, whistleblowers

FBI Spied On Activists Because Protecting Corporate Interests Is Roughly Equivalent To Ensuring National Security

from the our-disregarded-internal-policies-trump-your-First-Amendment-rights dept

That whole thing about the FBI not surveilling people based solely on First Amendment activity? The thing that's been in all the (FISA) papers (and agency policies)? Yeah, the FBI hasn't heard of it either.

The FBI breached its own internal rules when it spied on campaigners against the Keystone XL pipeline, failing to get approval before it cultivated informants and opened files on individuals protesting against the construction of the pipeline in Texas, documents reveal.

Internal agency documents show for the first time how FBI agents have been closely monitoring anti-Keystone activists, in violation of guidelines designed to prevent the agency from becoming unduly involved in sensitive political issues.

"Unduly involved" is right. First of all, a majority of what was monitored was First Amendment activity, something no federal intelligence or investigative agency is supposed to be doing. Certainly, there can be law enforcement monitoring of protests as they occur, but there's no provision in the law that allows the FBI to monitor people solely because of their activism.

Unless, of course, these activists are declared "extremists." Then all bets (and Constitutional protections) are off.

“Many of these extremists believe the debates over pollution, protection of wildlife, safety, and property rights have been overshadowed by the promise of jobs and cheaper oil prices,” the FBI document states.

"Extremists" are often mentioned in the same breath as "domestic terrorists," so with a little bit of rebranding, the FBI is now able to surveill people solely for their First Amendment-protected activities. That's handy and not totally unexpected, given the agency's long history of eyeballing activists who run contrary to its view on How Things Should Be. At one point, it was uppity blacks and encroaching homosexuals. Now, it's people who don't want an oil pipeline running through their neighborhoods.

And, even though we know the FBI has clearly taken a stance on controversial issues in the past and shaped its surveillance activities accordingly, it's rather jarring to see an investigative agency decide who's right and wrong by issuing a statement (wrapped in a self-justifying plan of action) on behalf of one side of the issue.

“The Keystone pipeline, as part of the oil and natural gas industry, is vital to the security and economy of the United States.”

Having decided that protecting corporate interests was roughly aligned with its "national security" purview, agents then routed around any internal controls that might have restricted its plans to break FBI policy.

[T]he partially redacted documents reveal the investigation into anti-Keystone activists occurred without prior approval of the top lawyer and senior agent in the Houston field office, a stipulation laid down in rules provided by the attorney general.

But, hey, no problem because the FBI totally fixed things in-house and in post.

Confronted by evidence contained in the cache of documents, the agency admitted that “FBI approval levels required by internal policy were not initially obtained” for the investigation, but said the failure was remedied and later reported internally.

The supposed extremists it monitored the longest were part of an organization known as the Tar Sands Blockade, a group committed to nonviolent protest. While minor crimes such as trespassing were committed by members of the group, nothing rose to the level of what one would normally associate with an FBI investigation. And it went on for 11 months after the "error" that allowed the investigation to exist in the first place was discovered.

Mike German, former FBI agent and fellow at the Brennan Center for Justice lays out the obvious problem with the FBI's behavior:

“It is clearly troubling that these documents suggest the FBI interprets its national security mandate as protecting private industry from political criticism,” he said.

That is troubling. Just as troubling is the agency's determination that the surveillance it never should have initiated resulted in no "adverse effects." But for who? Obviously, the FBI walked away from this with little more than another dent in its now-heavily damaged reputation. But what about those who were surveilled? Or those who might be in the future when they exercise their First Amendment rights? The FBI's self-assessment doesn't factor in these consequences and because it doesn't, it will likely make the same (intentional) "mistakes" in the future.

Filed Under: activists, corporate interests, doj, fbi, first amendment, keystone, surveillance

No One Can Bait A Cop Into Doing Something He Didn't Already Want To Do, So Let's Stop Worrying About Activist Recorders

from the punch-UP,-officers dept

Cops and camera-wielding citizens are still getting to know each other and there's been some… awkwardness. Hardly a day goes by that some peace officer isn't caught doing something he or she shouldn't be doing by a citizen armed with a camera. Certainly, hundreds of police officers all over the nation are "caught" doing their jobs professionally as well, but those videos rarely surface, largely because the market for non-outrage remains largely depressed. On top of that, we expect our public servants to behave professionally while on the clock, so video of someone doing their job competently is seldom interesting.

It does tend to present a very one-sided picture of law enforcement. (But, I would argue, not a wholly unrepresentative picture of law enforcement.) Bad behavior makes for more interesting viewing. That's inarguable. This leads to recordings of officers who do their best to stay in control while a camera-wielding citizen does his or her best to push for a negative reaction.

An anonymous reader sent in this video along with the following commentary:

Here's a video example of what police officers have to deal with. It's clear this girl is filming the situation and trying VERY hard to bait the cop into saying or doing something untoward so she can get a viral video (and maybe settlement money).

Puts many of those videos you see into context. What level do people go to in order to get the cops to go off on them?

While I appreciate the point he's making, an officer who "goes off" on someone for this sort of thing doesn't deserve much sympathy. This example only makes the person recording it look like an idiot. The cop observed here is clearly annoyed but isn't willing to lower himself to her level. Good for him. That's how it should be handled, no matter how much "bait" is supplied.

There are a lot of videos of bad cop behavior that have an untold number of minutes excised by the uploader to make it look as though any negative reaction was unprovoked. That's unfortunate, but it's still no excuse for bad cop behavior.

Here are two instances covered previously at Techdirt where those recording did everything they could to generate some a negative response, and in both instances the officers refused to take the bait. These two videos do the same thing the above one does: make the person recording look like a tool.




The job of a law enforcement officer is generally unpleasant. Open-carry activists and "do-gooding" smartphone wielders shouting "brutality" at every slight use of force only make it worse. Because of the amount of power they wield, police officers are held to a higher standard. And they should be holding themselves to this higher standard. Part of that higher standard is not sinking to the level of camera-wielders who are hoping to generate controversy where none exists.

There will always be "trolls," but cops should be able to handle them with a minimum of effort. The interactions between activists and police officers often show cops in the worst light, but that's usually because responding officers can't seem to prevent themselves from trying to seize control of a situation that doesn't demand it.

Open-carry advocates do things like walk along busy thoroughfares with weapons hanging out everywhere. It's perfectly legal. But cops don't like it. So, they try to shut it down. And when they do, they're just taking the bait. There's no law to enforce here -- just a desire to assert authority.

The same goes for the many officers captured trying to shut down First Amendment activity -- like taking photos of government buildings from public streets. Carlos Miller at Photography Is Not A Crime has been arrested several times for this non-offense. So have many of his contributors. They call these events "audits:" checking to see whether local law enforcement and other government employees are aware of their constituents' rights. They fail this simple audit far too often. To make it worse, they tend to get very defensive when informed of their ignorance. That's when things get far uglier than they every should have been. This is "taking the bait" and it's bait that isn't even that attractive: just a person taking pictures of a public building.

So, the anonymous submitter's rhetorical question about "baiting" cops for negative reactions should be answered with, "So what?" Officers should know -- and do -- better.

Look at it this way: would people "audit" local law enforcement if they didn't have cameras rolling to document the outcome? Most likely not. A camera's presence helps protect citizens from abuse or misconduct. It doesn't always work but it's far more protection (and power) than citizens had previous to the rise of camera-equipped cell phones.

Yes, there will always be some idiot who thinks he or she can capture the violence inherent in the system by parking in a fire lane, but there will be thousands more whose "bait" is nothing more than forcing officers to respect the rights of the citizens who pay their salaries.

Officers should be "better" than the people they're policing. Let amateur trolls like this one make fools of themselves. Don't feed into their perceptions by becoming the loud, violent jerk they so very badly want you to be.

Filed Under: activists, baiting, police, recording police

Taiwan's g0v: Using Open-Source Code And Communities To Engage Citizens And Make Government More Open

from the building-on-sunflowers dept

Back in April, we wrote about massive protests that took place in Taiwan as a result of a lack of transparency during trade negotiations with mainland China. Those protests became part of what is now known as the Sunflower student movement, whose name refers to the use of sunflowers by the protesters as a symbol of hope. Techpresident has a fascinating article looking at the Taiwanese online community called g0v, which has been playing a key part in the Sunflower movement, and which is now trying to make government more open and accessible using open source tools:

g0v believes that current online participation tools like social media outlets and online message boards fell short in creating offline action or collaboration. g0v places itself at the center of open-sourced, hands-on, and public-spirited activism with a desire to engage citizens to create real social change.

g0v's work is proving that open-source communities can successfully open up and improve government. Ideologically, g0v does not believe that its activism needs to create an enemy out of government, but rather that everyone -- the government and the people -- wins when creative solutions improve existing public structures.

The post goes on to describe g0v's hackathons, its first conference, and the Open Political Donation Project. This brought together 9,000 volunteers to digitize 300,000 political donation records as a pointed response to Taiwan's old Campaign Donation Act of 2004, which allowed the public access to campaign donation documents, but only as a paper copy, or in person at a government office.

What's fascinating here is to see how the people involved in the Sunflower student movement have moved on from simply protesting against something -- Taiwan's secret trade negotiations with China -- to creating new tools to open up government and engage citizens. As the Techpresident piece concludes:

g0v's brand of activism is about making sure government does its job better. g0v explains on its website, it substituted the "o" in gov for a "0" to change the way we see government working. Through civic tech, hacktivism, and a belief that government can and should work, g0v is already showing that it can change the way that government sees itself and the way that people can interact with their government.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: activists, communities, engagement, g0v, open government, politics, taiwan

Privacy International Files Criminal Complaint Against FinFisher Spyware Company

from the accessories-and-abettors dept

Techdirt has been reporting on the disturbing rise in the use of malware by governments around the world to spy on citizens. One name that keeps cropping up in this context is the FinFisher suite of spyware products from the British company Gamma. Its code was discovered masquerading as a Malay-language version of Mozilla Firefox, and is now at the center of a complaint filed in the UK:

Privacy International today has made a criminal complaint to the National Cyber Crime Unit of the National Crime Agency, urging the immediate investigation of the unlawful surveillance of three Bahraini activists living in the UK by Bahraini authorities using the intrusive malware FinFisher supplied by British company Gamma.

Here's why Privacy International is acting now:

While it's long been known that Gamma has provided surveillance capabilities to Bahrain, amongst other countries, the extent of Gamma's complicity in Bahrain's unlawful surveillance of individuals located abroad has only recently been confirmed. Two months ago, a number of internal Gamma documents were published revealing that Gamma is both aware of, and actively facilitating, the Bahraini regime's surveillance of targets located outside Bahrain through the provision of intrusion technology called FinFisher to the Bahraini authorities.

The analysis by Bahrain Watch clearly shows that, amongst the Gamma documents published online, those targeted by the Bahraini government with FinFisher technology were [the activists] Mohammed, Jaafar, and Saeed, along with prominent Bahraini opposition politicians, democracy activists and human rights lawyers.

Privacy International believes that this alleged surveillance of Bahraini activists while in the UK constitutes an unlawful interception of communications under the UK's Regulation of Investigatory Powers Act 2000 -- the infamous RIPA -- and further argues that Gamma is "liable as an accessory under the Accessories and Abettors Act 1861 and/or encouraged and assisted the offence under the Serious Crime Act 2007." If this reasoning is accepted, it could create an important precedent, at least in the UK.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: activists, bahrain, finfisher, human rights, privacy, surveillance
Companies: gamma, privacy international

US Used Bogus HIV 'Education' Campaign As A Way To Recruit Anti-Government Activists In Cuba

from the another-bad-idea dept

Following the revelation that USAID built a special "Twitter for Cuba" in an effort to foment dissent in that country, it's now come out, via some AP reporting, that USAID also sent a bunch of Latin American youths from other countries to Cuba on a bogus "HIV prevention" campaign, which was really a cover for recruiting young Cubans to be anti-government activists.

Of course, remember that a bogus Polio vaccination campaign in Pakistan has resulted in people there no longer trusting such vaccinations and a rapid return of polio. While it's not likely that this campaign will directly lead to people totally ignoring HIV prevention advice, just the fact that the US government seems to be trying to make use of important health campaigns as part of a strategy to undermine others will have significant consequences, making people who need such information a lot less willing to actually pay attention to it. This doesn't seem like a good thing.

Filed Under: activists, cuba, hiv education, usaid
Companies: zunzuneo

Consume, Conform, Obey: What Homeland Security's Targeting Of Anti-Consumerist Activities Says About The Government's Desires

from the cited:-Piper,-'Rowdy'-R.,-1988 dept

At some point in time, the DHS and members of its Joint Terrorism Task Force must have viewed Joe Dante's John Carpenter's cult classic "They Live" and saw in it a blueprint for future actions. If you're not familiar with the premise, an average guy construction worker is given a pair of sunglasses that reveal the world for what it actually is -- controlled by aliens who pacify the populace by subliminally pushing them to obey, conform and consume.

Remember a few weeks back when we discussed the DHS Fusion Centers' use of powerful investigative tools like Twitter searches and The Google to investigate such harmful Occupy Wall Street-related activities like not participating in Black Friday sales or cutting up people's credit cards (at their request). Anti-consumerist is anti-government, apparently. It makes for a great conspiracy theory -- one that implies the government is actually run by corporations.

It doesn't seem to be much of a "theory," though. Given the number of active revolving doors that accomodate lobbyists, representatives and board members every time someone shouts "Change places!" there's little evidence out there to dispel this perception. The business of government is apparently business. The FBI worked with banks and Wall Street itself to ferret out certain Occupy protesters, going so far as to keep an assassination plot against Occupy leaders under wraps. The Fusion Centers' ability to treat nearly every submission with complete credulity has only added to the mismanaged mess, which resulted in the agency's underlings breathlessly exchanging Facebook links to planned disruptions like protests of irresponsible lending processes and the singing of Christmas carols at a "high-profile, undisclosed location."

But back to the conspiracy theory and "They Live." Does the government want you to obey and consume? Remember, George Bush said one of the best ways we could show the terrorists that the 9/11 attacks didn't destroy our spirit was to get out there and spend money. The government and businesses go hand-in-hand, and not simply in order to maintain mutually-beneficial relationships.

Frank Pasquale argues at Balkinization that one reason the government views anti-consumerist behavior as a threat is because it also hurts the government's bottom line.

You may think: "wait--how is the 'Church of Stop Shopping' a national security threat?" There's an economic answer: namely, that any defense advantage the US has over other countries is epiphenomenal of taxation of a vast and growing national economy. Anti-consumerism undermines economic growth and, indirectly, military might.

There's a huge security state -- one that often operates in concert with the military-industrial complex -- that desires constant (and constantly increasing) funding. There has been nearly no effort made in the 12 years since the 9/11 attacks to scale back the reach of the DHS. The FBI's move towards counterterrorism (and away from law enforcement) has given it new revenue streams, one it's likely unwilling to give up. So, the government wants you to shop, because taxes fund operations that target people who tell citizens not to shop.

The connection isn't entirely sound. Federal taxes, not state sales taxes, fund the military. But the DHS and other government agencies need a steady stream of "threats" to justify budget increases and their continued existence.

Saying this sort of thing out loud is bound to make many people question your sanity. While there's no doubt the government views nearly any sort of protest with suspicion, it's tough to believe it actively promotes consumerist behavior with an eye on the bottom line of its favored agencies. Tin foil hats all around, or so it would appear, until you realize that a 30-page report tracking the Occupy Movement, which was passed along by DHS Fusion Centers as a warning about upcoming Black Friday protests, was authored by the International Council of Shopping Centers.

Who's answering to whom? The ICSC says, "Jump." The DHS says "how high?" and recommends everyone down the line do likewise.

Consume. Conform. OBEY.

The last part also fits into increasingly pervasive surveillance. Having "nothing to hide" simply isn't good enough any more. Any deviations from the expected can seem suspicious, especially when well-funded government entities are fishing around in their data streams for any signs of potential wrongdoing. Pasquale quotes a Kate Crawford essay on big data.

If we take [the] twinned anxieties — those of the surveillers and the surveilled — and push them to their natural extension, we reach an epistemological end point: on one hand, the fear that there can never be enough data, and on the other, the fear that one is standing out in the data. These fears reinforce each other in a feedback loop, becoming stronger with each turn of the ratchet. As people seek more ways to blend in — be it through normcore dressing or hardcore encryption — more intrusive data collection techniques are developed.

"Collect it all" meets "nothing to hide."

When people express their concerns with massive, unchecked surveillance, it isn't always about whether or not they've got "something to hide." Sometimes the real worry is that those caught in the web of untargeted surveillance have no idea what the fuck these agencies view as "suspicious." Efforts made to avoid "standing out" may just make someone look like they're trying too hard to "fit in." The standing assumption is that everyone has something to hide, even those who loudly state they don't and welcome the growth of the surveillance state. "Hiding" something may be an active effort. Or it may simply be a sin of omission. It all depends on the entity/person parsing the data.

Stray too far from the binary of Democratic & Republican politics, and you risk the watchlist. Protest shopping on Black Friday, and you risk the watchlist. Take a different route to work on a given day, and maybe that'll flag you ("what is she trying to avoid?"). Read the wrong blogs or tweets, and an algorithm like Squeaky Dolphin is keeping a record.

There probably isn't an overarching conspiracy guiding the government towards this end. More likely, it's the just the natural progression of the consolidation of two powers into a central location. Corporations and government entities are nearly inseparable. Both seem to have the same ends in mind, even if one relies on advertising and the other on control. Both dip into massive amounts of data and both watch carefully for patterns and anomalies. It's a natural synergy that feels eerily like constant pressure to conform, obey, consume. Both sides benefit heavily from orderly consumption and activities that neither rock the boat nor trouble the waves below it.

Filed Under: activists, dhs, dhs fusion centers, homeland security, occupy wall street, police state, surveillance, terrorism

Shameful Business: Corporate Giants Target Activists And Non-profits For Corporate Espionage

from the can't-take-the-heat dept

It's no secret that big companies, especially the giant multinationals, often have very advanced corporate espionage teams (sometimes staffed by former government spooks). The practices can sometimes be extreme and problematic, like when HP used its corporate espionage team to spy on board members and journalists. However, it seems that with the rise of consumer interest groups and very effective activists, many of these giant companies are using their corporate espionage team to spy on those non-profits and activists instead.

Many of the world’s largest corporations and their trade associations — including the U.S. Chamber of Commerce, Walmart, Monsanto, Bank of America, Dow Chemical, Kraft, Coca-Cola, Chevron, Burger King, McDonald’s, Shell, BP, BAE, Sasol, Brown & Williamson and E.ON – have been linked to espionage or planned espionage against nonprofit organizations, activists and whistleblowers.

Many different types of nonprofit organizations have been targeted with corporate espionage, including environmental, anti-war, public interest, consumer, food safety, pesticide reform, nursing home reform, gun control, social justice, animal rights and arms control groups.

Corporations and their trade associations have been linked to a wide variety of espionage tactics against nonprofit organizations. The most prevalent tactic appears to be infiltration by posing a volunteer or journalist, to obtain information from a nonprofit. But corporations have been linked to many other human, physical and electronic espionage tactics against nonprofits. Many of these tactics are either highly unethical or illegal.

The full report includes plenty of examples, including the famous HBGary Federal/Hunton & Williams/Bank of America attempt to infiltrate Anonymous (and Wikileaks). It also includes stories about Stratfor, Monstanto and others. There was one example in there that I was unaware of, involving the giant pharmaceutical lobbying group PhRMA trying to spy on Jamie Love and Knowledge Ecology International. Love is a friend and KEI has done amazing work in informing the world about dangerous efforts by PhRMA and others to use international trade agreements to push through rules and laws that harm the public around both copyright and patent issues. So, perhaps it's not a surprise that they'd spy on him, but it's still quite troubling. The same report notes that a bunch of others, including Microsoft, hired another company closely associated with former IP czar Victoria Espinel to try to spy on Love and KEI:

Shortly after the passage of the Affordable Care Act, Love says he received a visit in his offices from a man who said he was recently let go from his job at Pharmaceutical Research and Manufacturers of America (PhRMA). “He said his job involved monitoring what I was doing, every day.” Love said. “He told me that PhRMA had hired a private investigator to investigate us, from the West Coast.” Separately, from 2007 to 2008, Love says that PhRMA and some companies in the copyright sector funded efforts to investigate the sources of funding for NGOs working on intellectual property issues, and to press those foundations to end their support of consumer advocacy.

Around 2008 or 2009, General Electric, Microsoft, Pfizer and other firms funded an effort by the National Foreign Trade Council (NFTC) to provide intelligence on NGOs working on intellectual property issues. Love says, “They approached someone we knew, with a proposal to provide information on Knowledge Ecology International and other NGOs working on intellectual property issues, as part of a program to counter NGO advocacy efforts on behalf of consumers.” Eventually, Love says, the NFTC contracted with the Romulus Global Issues Management, an “international policy consultancy” that advises “several members of the Fortune 100.” The managing partner of Romulus is John Stubbs, whose wife is Victoria A. Espinel, a former Romulus employee. Espinel was U.S. Intellectual Property Enforcement Coordinator (IP czar) for the Obama administration, and is currently the CEO and President of the Business Software Alliance (BSA).

This is really playing dirty. While these companies may not appreciate what public interest groups like KEI do, digging into their activities and spying on them seems to go way beyond reasonable.

Filed Under: activists, anonymous, corporations, espionage, non-profits
Companies: hbgary federal, kei, phrma, us chamber of commerce, walmart

FBI Stops Responding To The Most Prolific FOIA Filer, Because He Might Actually Learn Something

from the he's-so-effective-that-they'd-like-him-to-stop dept

Mother Jones has an interesting profile of Ryan Shapiro, a punk rocker turned animal rights activist turned MIT PhD student, who is officially the "most prolific" filer of Freedom of Information Act (FOIA) requests from the FBI. At a high point, he was filing an average of two per day. In fact, he filed so many FOIA requests so successfully, that the FBI is now refusing to respond and is giving the courts a secret explanation which they won't share.

The FBI claims that it cannot discuss the case in open court "without damaging the very national security law enforcement interests it is seeking to protect." Instead, it has filed a secret declaration outlining its case. "This is an especially circular and Kafkaesque line of argument," Shapiro counters. "The FBI considers it a national security threat to make public its reasoning for considering it a national security threat to use federal law to request information about the FBI's deeply problematic understanding of national security threats."

The FBI is basically arguing that because Shapiro is filing so many requests, he might actually be able to pull enough info together from so many different responses, that it would reveal stuff that wouldn't have been revealed if it had been found in a single FOIA request. In other words, Shapiro is better at this game than the FOIA censors, figuring out ways to get a variety of information that, when put together, is actually kind of useful.

Part of the trick, apparently, is getting a ton of people to agree to sign "privacy waivers" so he can request the FBI's info on those people, which the FBI wouldn't reveal otherwise.

When he started using privacy waivers, Shapiro realized he was on to something. Suppose you and I volunteered for the animal rights group PETA. If Shapiro requested all PETA-related FBI documents, he might get something back, but any references to us would be blacked out. If he requested documents related to us, he'd probably get nothing at all. But if he filed his PETA request along with privacy waivers signed by us, the FBI would be compelled to return all PETA documents that mention us—with the relevant details uncensored.

Shapiro began calling up old friends and asking for waivers. Coming of age amid the 1990s punk scene, he'd been drawn to animal rights causes and took part in their actions. He walked into foie gras facilities to film sick and injured ducks, several of which he rescued, and locked himself to the doors of fur salons. And while he no longer does such things, he has kept in touch with people who do.

Armed with signed privacy waivers, he sent out a few experimental requests—he calls them "submarine pings"—and when the FBI returned more than 100 pages on a close friend, he knew he'd struck gold. The response included pages of information that Shapiro had requested previously, but that the FBI had claimed didn't exist. Using case details from those documents and a handful of additional waivers, he filed a new set of requests.

Later in the article, Shapiro admits that as he got more and more responses, it certainly allowed him to fill in many blanks (and also point him to where to file other requests). This, it seems, is exactly what the FBI fears the most: Shapiro has outsmarted them. While, normally, FOIA responses are done in a manner to limit what information is shared and to never, ever suggest a slightly different query that might be useful, it appears Shapiro has more or less figured out a way around that, in part via bulk requests which lead down other paths of inquiry. No wonder the FBI has stopped responding. Shapiro just plays the game better than they do, and they're used to a world where the house always wins.

Filed Under: activists, animal rights, fbi, foia, mosaic theory, privacy waiver, ryan shapiro