In April 2015, President Obama issued Executive Order 13694 declaring a national emergency to deal with the threat of hostile cyber activity against the United States.
But six months later, the emergency powers that he invoked to punish offenders had still not been used because no qualifying targets were identified, according to a newly released Treasury Department report.
It certainly sounded scary enough. Obama said things about "cyber threats" being a serious threat to national security and the US economy. The state of emergency, according to the President, would create a "targeted tool" for combating our cyber-enemies.
This state of emergency is just one more in a line of uninterrupted states of emergencies dating back to the mid-1970s. A perpetual state of emergency is far more useful to the government than a "targeted tool," so a declaration of (cyber) war against a bunch of noncombatants still served a purpose, if only indirectly.
It started the ball rolling on the CISPA/CISA resurgence, which eventually "passed" after being attached to the coattails of a budget bill with far more momentum and support, as few legislators were willing to stare down the barrel of a government shutdown just to prevent a badly-written cyber-bill from passing.
More importantly, the president's statement and executive order gave the administration permission to do things it doesn't normally get to do.
Under the powers delegated by such statutes, the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.
Declaring a state of emergency allows for the potential wreaking of havoc in taxpayers' lives. And even if these powers go unexercised (or anything), it still costs the taxpayers money.
Even though it generated no policy outputs, implementation of the executive order nevertheless incurred costs of “approximately $760,000, most of which represent wage and salary costs for federal personnel,” the Treasury report said.
The expenses of national states of emergency aren't being offset by seized funds or assets related to the targets of the executive order. The Treasury Department's report logically notes that zero targets means zero seizures. According to another report quoted by Steven Aftergood of the Federation of American Scientists, the long-running "state of emergency" prompted by various North Korean actions is resulting in less than ~$60,000 a year -- compared to an operational cost of at least $125,000/month (presumably the North Korean state of emergency is more expensive than the "cyberwar" one). No one really expects a "break even" government, but it's inarguable that targeting known or unknown entities via executive orders really isn't doing much to cripple their operations.
Freedom of Information Act (FOIA) requests are a popular topic here on Techdirt. We've discussed how important FOIA rules are... and how the government seems to go out of its way to try to ignore both the letter and spirit of the law. Because that's just how secretive governments act. However, it's certainly true that some FOIA requests are a little more ridiculous than others. Take, for example, Refinery29 reporter Vanessa Golembewski's amusing decision to file a FOIA request for Game of Thrones Screeners after finding out that the producers have been sending advance screeners to President Obama. Showrunners David Benioff and Dan Weiss admitted in an interview that they sent the screeners:
“I think, for both of us, finding out the President wanted advanced copies of the episodes was an ‘ah-ha’ moment,” Weiss said. “That was a very strange moment.”
And did they say yes?
“Yes,” Weiss replied. “He’s the leader of the free world.”
Benioff added: “When the commander-in-chief says, ‘I want to see advanced episodes,’ what are you gonna do?”
So Golembewski decided that if the President had them, she could (and should!) FOIA them:
I decided this was a perfect opportunity to test the limits of the Freedom Of Information Act. If the president — and by extension, our government — is in possession of a file, surely that file is subject to my request to see it as a U.S. citizen.
Golembewski is pretty upfront in recognizing the chances of this actually working are slim to none, but still decided to go through with the process. Of course, it's going to get rejected. In fact, we've seen similar requests in the past. Back in 2013, we wrote about a (more legit) attempt to FOIA the backing track to Beyonce's rendition of the Star Spangled Banner at the inauguration. The composition was in the public domain, and the performance, recorded by the Marine Corps. Band, should also be public domain, as it's a work of the federal government, which is not subject to copyright.
And, indeed, the government did provide the music in question, but also warned that some of the other songs that were sent may have other copyright issues. More importantly, the government flat out rejected the request for any Beyonce related music, noting that the copyright was held by her, and not the government: "Please note that Ms. Beyonce Knowles-Carter's vocals/music do not belong to the Marine Corps. Therefore, you will have to send your request directly to Ms. Knowles-Carter's attorney..." Though, they did helpfully provide that attorney's name and contact info. I imagine that Golembewski may receive a similar note, since the President does not also get the copyright in those screeners.
I guess the real accomplishment of "The Most Transparent Administration" is how much it exposed Americans to domestic surveillance. I suppose that's its own form of "transparency."
Like Yoo, the Obama administration has argued that Americans have a “greatly reduced” expectation of privacy in their international communications — so diminished, in fact, that no warrant is necessary for the government to intercept and search those communications. That might come as a surprise to the millions of Americans who regularly engage in personal or confidential communications with family, friends, business associates, and others overseas. When you pick up the phone to call a family member abroad, there is no reason to believe that your communication is any less private than calling a friend across town. The Supreme Court has certainly never said any such thing. Indeed, Yoo eventually admitted in his memo that the case law did not support the suspicionless interception of “the contents of telephone or other electronic communication[s]” — though he then proceeded to ignore his own conclusion.
But that has not stopped the government from making the same claims in the Section 702 cases now moving through the courts. The government has embraced Yoo’s position, arguing that the privacy interests of US persons in international communications are “significantly diminished, if not completely eliminated,” when those communications are sent to or from foreigners abroad.
Going further, this administration has decided to believe that any communication traveling outside of US borders is a communication with a foreigner, even if it's a domestic-to-domestic conversation taking an extremely circuitous route. If it crosses one of the overseas backbones the NSA has tapped into, it's fair game, no matter who the ultimate recipient of the communication actually is, or where they reside.
This is the NSA's upstream collection under Section 702, which now goes much, much further than Yoo's version ever did. Toomey notes Yoo assured FISA Court Judge Kollar-Cotelly that this collection was not the Bush administration giving itself permission to seize and search every international communication. But that's exactly how the Obama administration has chosen to interpret its powers.
As the ACLU recently explained in Wikimedia v. NSA, this surveillance is the digital analogue of having a government agent open every letter that comes through a mail processing center to read its contents before determining which letters to keep. In other words, today the Obama administration is defending surveillance that was a bridge too far for even John Yoo.
So, John Yoo, the architect of what was once thought to be the greatest expansion of government surveillance powers, is now just the guy who laid the foundation for the intelligence community today. What the Bush administration considered to be too far is the Obama administration's starting point. Considering the breathtaking reach of the NSA under this administration, it's hardly surprising a few leakers have taken it upon themselves to reveal to the public what's being done to them by their government in the name of national security.
How do we know whether information is classified? Well, because the government tells us it is. But what does that mean? It turns out it means whatever the government wants it to mean, subject to time, place, personnel involved, etc.
Classified material handed over to movie producers by Leon Panetta? Probably not a big deal. Classified material handed over to journalists by whistleblowers? That's a prosecutin'.
“There’s classified, and then there’s classified,” the president said.
That clears everything up. Clinton sent, received and stored classified info on a private email server. This cannot be disputed. But some classified info is more equal than others. It all depends on who has it and how the current administration feels about that person.
It's also about how the current administration feels about whistleblowers. It doesn't like them. So, Clinton playing fast and loose with classified info is subject to an entirely different standard than the large number of whistleblowers the Obama administration has prosecuted over the years.
Obama, again, digs deep into his feels to provide a technical explanation of this dichotomy.
President Obama said in an interview broadcast on Sunday that while Hillary Clinton had been careless in managing her emails as secretary of state, she would never intentionally do anything to endanger the country.
I believe this is true. Hillary Clinton does love this country -- or at least the part of its she's intimately familiar with: the highly-insulated Beltway interior. She certainly would never do anything intentionally to harm her position of power or her chances of a November promotion. We can tell how much she wants to keep the country safe by how much effort she's put into keeping her communications out of the hands of the public. This is the Administration Way. There's nothing more dangerous to the US government than transparency and accountability. Clinton knows this. Obama definitely knows this.
The problem is, as Trevor Timm points out, violating the Espionage Act doesn't require an intent to harm. Handling classified material carelessly can open one up to charges… provided you're not part of the government's inner circle.
Obama's interview also explained why government agencies redact or withhold information already in the public domain. It all traces back to "classified" being an almost-entirely subjective term when deployed by the government.
“There’s stuff that is really top-secret top-secret, and there’s stuff that is being presented to the president or the secretary of state that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open-source.”
Classification: all things to all people, as long as it allows officials and agencies to control narratives and disrupt public accountability. No matter what the FBI concludes from its investigation into Hillary Clinton, Obama has already granted her a pardon.
On Monday, President Obama gave a speech about journalism in Washington DC, in which he bemoaned the state of investigative journalism today, suggesting that the lack of good investigative journalism is partly to blame for the mess that is this year's Presidential election season:
A job well done is about more than just handing someone a microphone. It is to probe and to question, and to dig deeper, and to demand more. The electorate would be better served if that happened. It would be better served if billions of dollars in free media came with serious accountability, especially when politicians issue unworkable plans or make promises they can’t keep. (Applause.) And there are reporters here who know they can't keep them. I know that's a shocking concept that politicians would do that. But without a press that asks tough questions, voters take them at their word. When people put their faith in someone who can’t possibly deliver on his or her promises, that only breeds more cynicism.
There's plenty in the speech that I certainly agree with. The state of media coverage that has moved towards shallow entertainment and he said/she said journalism is sad. And it's good that the President called out that kind of stuff as well:
I think the electorate would be better served if we spent less time focused on the he said/she said back-and-forth of our politics. Because while fairness is the hallmark of good journalism, false equivalency all too often these days can be a fatal flaw. If I say that the world is round and someone else says it's flat, that's worth reporting, but you might also want to report on a bunch of scientific evidence that seems to support the notion that the world is round. And that shouldn’t be buried in paragraph five or six of the article.
He also highlighted some strong investigative reporting from the past and claims he's dismayed that we're seeing less of that today:
Whether it was exposing the horrors of lynching, to busting the oil trusts, to uncovering Watergate, your work has always been essential to that endeavor, and that work has never been easy. And let's face it, in today’s unprecedented change in your industry, the job has gotten tougher.
But he leaves out his own administration's actions as a big part of why the job of reporting has "gotten tougher." While he came into office promising "the most transparent administration in history" and one of his first official actions as President was to tell the entire federal government to default to revealing information in response to Freedom of Information Act (FOIA) requests, as we've detailed over and over again, the administration has actually been one of the most opaque, setting records for denying FOIA requests, and making it nearly impossible to get any information out of the government without a lawsuit.
Former NY Times Executive Editor, Jill Abramson, who's worked in journalism in DC for decades, noted that the Obama administration was the most secretive, by far.
"I would say it is the most secretive White House that I have ever been involved in covering, and that includes — I spent 22 years of my career in Washington and covered presidents from President Reagan on up through now, and I was Washington bureau chief of the Times during George W. Bush's first term," Abramson told Al Jazeera America in an interview that will air on Sunday.
And part of her complaint was not just in how the administration refuses to reveal anything, but also in how vindictive the White House was against reporters and sources.
The AP's Washington chief of bureau, Sally Buzbee, said the Obama administration's efforts to control information extend even to agencies not directly involved in intelligence gathering. Some sources, she said, have reportedly been warned they could be fired for even talking to a reporter.
"Day-to-day intimidation of sources is also extremely chilling," she said.
Buzbee said she's frequently asked if the Obama administration, when it comes to transparency, is worse than the administration of President George W. Bush.
"Bush was not fantastic," she said. She added, "The (Obama) administration is significantly worse than previous administrations."
And then, of course, there are the criminal lawsuits. The Obama administration has used the Espionage Act against more journalists and leakers than every other President in history combined... and doubled. And, as of two years ago, he had put media leakers in jail for nearly 50 times as long as all other administrations combined.
That is not supporting investigative reporting. That is threatening and intimidating journalists and their sources. Creating true chilling effects and scaring people away from doing the very work that the President insists the media should be practicing.
Way back in 2011, I saw Daniel Ellsberg speak, and he speculated that a key reason why President Obama was so incredibly hostile to a free and open press was because he was embarrassed by his own actions that they were investigating. Ellsberg pointed out that the previous president, George W. Bush was known for widely abusing the power of his position, but he seemed proud of doing so. President Obama, on the other hand, got elected with promises of moving away from such abuses and restoring civil liberties. But that didn't happen. Things went in the other direction under his watch and his command. So you could understand why the President remains less than keen about leaks and the media digging into things like mass surveillance of Americans, or secret drone bombing campaigns.
It's a shame that the President feels the need to berate reporters over failing to do real investigative reporting, when a big part of the issue is his own administration's concerted effort to make that much more difficult.
This is not all that surprising, but President Obama, during his SXSW keynote interview, appears to have joined the crew of politicians making misleading statements pretending to be "balanced" on the question of encryption. The interview (the link above should start at the very beginning) talks about a variety of issues related to tech and government, but eventually the President zeroes in on the encryption issue. The embed below should start at that point (if not, it's at the 1 hour, 16 minute mark in the video). Unfortunately, the interviewer, Evan Smith of the Texas Tribune, falsely frames the issue as one of "security v. privacy" rather than what it actually is -- which is "security v. security."
In case you can't watch that, the President says he won't comment directly on the Apple legal fights, but then launches into the standard politician talking point of "yes, we want strong encryption, but bad people will use it so we need to figure out some way to break in."
If you watch that, the President is basically doing the same thing as all the Presidential candidates, stating that there's some sort of equivalency on both sides of the debate and that we need to find some sort of "balanced" solution short of strong encryption that will somehow let in law enforcement in some cases.
This is wrong. This is ignorant.
To his at least marginal credit, the President (unlike basically all of the Presidential candidates) did seem to acknowledge the arguments of the crypto community, but then tells them all that they're wrong. In some ways, this may be slightly better than those who don't even understand the actual issues at all, but it's still problematic.
Let's go through this line by line.
All of us value our privacy. And this is a society that is built on a Constitution and a Bill of Rights and a healthy skepticism about overreaching government power. Before smartphones were invented, and to this day, if there is probable cause to think that you have abducted a child, or that you are engaging in a terrorist plot, or you are guilty of some serious crime, law enforcement can appear at your doorstep and say 'we have a warrant to search your home' and they can go into your bedroom to rifle through your underwear to see if there's any evidence of wrongdoing.
Again, this is overstating the past and understating today's reality. Yes, you could always get a warrant to go "rifle through" someone's underwear, if you could present probable cause that such a search was reasonable to a judge. But that does not mean that the invention of smartphones really changed things so dramatically as President Obama presents here. For one, there has always been information that was inaccessible -- such as information that came from an in-person conversation or information in our brains or information that has been destroyed.
In fact, as lots of people have noted, today law enforcement has much more recorded evidence that it can obtain, totally unrelated to the encryption issue. This includes things like location information or information on people you called. That information used to not be available at all. So it's hellishly misleading to pretend that we've entered some new world of darkness for law enforcement when the reality is that the world is much, much brighter.
And we agree on that. Because we recognize that just like all our other rights, freedom of speech, freedom of religion, etc. there are going to be some constraints that we impose in order to make sure that we are safe, secure and living in a civilized society. Now technology is evolving so rapidly that new questions are being asked. And I am of the view that there are very real reasons why we want to make sure that government cannot just willy nilly get into everyone's iPhones, or smartphones, that are full of very personal information and very personal data. And, let's face it, the whole Snowden disclosure episode elevated people's suspicions of this.
[...]
That was a real issue. I will say, by the way, that -- and I don't want to go to far afield -- but the Snowden issue, vastly overstated the dangers to US citizens in terms of spying. Because the fact of the matter is that actually that our intelligence agencies are pretty scrupulous about US persons -- people on US soil. What those disclosures did identify were excesses overseas with respect to people who are not in this country. A lot of those have been fixed. Don't take my word for it -- there was a panel that was constituted that just graded all the reforms that we set up to avoid those charges. But I understand that that raised suspicions.
Again, at least some marginal kudos for admitting that this latest round was brought on by "excesses" (though we'd argue that it was actually unconstitutional, rather than mere overreach). And nice of him to admit that Snowden actually did reveal such "excesses." Of course, that raises a separate question: Why is Obama still trying to prosecute Snowden when he's just admitted that what Snowden did was clearly whistleblowing, in revealing questionable spying?
Also, the President is simply wrong that it was just about issues involving non-US persons. The major reform that has taken place wasn't about US persons at all, but rather about Section 215 of the PATRIOT Act, which was used almost entirely on US persons to collect all their phone records. So it's unclear why the President is pretending otherwise. The stuff outside of the US is governed by Executive Order 12333, and there's been completely no evidence that the President has changed that at all. I do agree, to some extent, that many do believe in an exaggerated view of NSA surveillance, and that's distracting. But the underlying issues about legality and constitutionality -- and the possibilities for abuse -- absolutely remain.
But none of that actually has to do with the encryption fight, beyond the recognition -- accurately -- that the government's actions, revealed by Snowden, caused many to take these issues more seriously. And, on that note, it would have been at least a little more accurate for the President to recognize that it wasn't Snowden who brought this on the government, but the government itself by doing what it was doing.
So we're concerned about privacy. We don't want government to be looking through everybody's phones willy-nilly, without any kind of oversight or probable cause or a clear sense that it's targeted who might be a wrongdoer.
What makes it even more complicated is that we also want really strong encryption. Because part of us preventing terrorism or preventing people from disrupting the financial system or our air traffic control system or a whole other set of systems that are increasingly digitalized is that hackers, state or non-state, can just get in there and mess them up.
So we've got two values. Both of which are important.... And the question we now have to ask is, if technologically it is possible to make an impenetrable device or system where the encryption is so strong that there's no key. There's no door at all. Then how do we apprehend the child pornographer? How do we solve or disrupt a terrorist plot? What mechanisms do we have available to even do simple things like tax enforcement? Because if, in fact, you can't crack that at all, government can't get in, then everybody's walking around with a Swiss bank account in their pocket. So there has to be some concession to the need to be able get into that information somehow.
The answer to those questions in that final paragraph are through good old fashioned detective work. In a time before smartphones, detectives were still able to catch child pornographers or disrupt terrorist plots. And, in some cases, the government failed to stop either of those things. But it wasn't because strong enforcement stymied them, but because there are always going to be some plots that people are able to get away with. We shouldn't undermine our entire security setup just because there are some bad people out there. In fact, that makes us less safe.
Also: tax enforcement? Tax enforcement? Are we really getting to the point that the government wants to argue that we need to break strong encryption to better enforce taxes? Really? Again, there are lots of ways to go after tax evasion. And, yes, there are lots of ways that people and companies try to hide money from the IRS. And sometimes they get away with it. To suddenly say that we should weaken encryption because the IRS isn't good enough at its job just seems... crazy.
Now, what folks who are on the encryption side will argue, is that any key, whatsoever, even if it starts off as just being directed at one device, could end up being used on every device. That's just the nature of these systems. That is a technical question. I am not a software engineer. It is, I think, technically true, but I think it can be overstated.
This is the part that's most maddening of all. He almost gets the point right. He almost understands. The crypto community has been screaming from the hills for ages that introducing any kind of third party access to encryption weakens it for all, introducing vulnerabilities that ensure that those with malicious intent will get in much sooner than they would otherwise. The President is mixing up that argument with one of the other arguments in the Apple/FBI case, about whether it's about "one phone" or "all the phones."
But even assuming this slight mixup is a mistake, and that he does recognize the basics of the arguments from the tech community, to have him then say that this "can be overstated" is crazy. A bunch of cryptography experts -- including some who used to work for Obama -- laid out in a detailed paper the risks of undermining encryption. To brush that aside as some sort of rhetorical hyperbole -- to brush aside the realities of cryptography and math -- is just crazy.
Encryption expert Matt Blaze (whose research basically helped win Crypto War 1.0) responded to this argument by noting that the "nerd harder, nerds" argument fundamentally misunderstands the issue:
Figuring out how to build the reliable, secure systems required to "compromise" on crypto has long been a central problem in CS.
If you can't read that, Blaze is basically saying that all crypto includes backdoors -- they're known as vulnerabilities. And the key focus in crypto is closing those backdoors, because leaving them open is disastrous. And yet the government is now demanding that tech folks purposely put in more backdoors and not close them, without recognizing the simple fact that vulnerabilities in crypto always lead to disastrous results.
So the question now becomes that, we as a society, setting aside the specific case between the FBI and Apple, setting aside the commercial interests, the concerns about what could the Chinese government do with this, even if we trust the US government. Setting aside all those questions, we're going to have to make some decisions about how do we balance these respective risks. And I've got a bunch of smart people, sitting there, talking about it, thinking about it. We have engaged the tech community, aggressively, to help solve this problem. My conclusions so far is that you cannot take an absolutist view on this. So if your argument is "strong encryption no matter what, and we can and should in fact create black boxes," that, I think, does not strike the kind of balance that we have lived with for 200, 300 years. And it's fetishizing our phones above every other value. And that can't be the right answer.
This is not an absolutist view. It is not an absolutist view to say that anything you do to weaken the security of phones creates disastrous consequences for overall security, far beyond the privacy of individuals holding those phones. And, as Julian Sanchez rightly notes, it's ridiculous that it's the status quo on the previous compromise that is now being framed as an "absolutist" position:
CALEA--with obligations on telecoms to assist, but user-side encryption protected--WAS the compromise. Now that's "absolutism".
Also, the idea that this is about "fetishizing our phones" is ridiculous. No one is even remotely suggesting that. No one is even suggesting -- as Obama hints -- that this is about making phones "above and beyond" what other situations are. It's entirely about the nature of computer security and how it works. It's about the risks to our security in creating deliberate vulnerabilities in our technologies. To frame that as "fetishizing our phones" is insulting.
There's a reason why the NSA didn't want President Obama to carry a Blackberry when he first became President. And there's a reason the President wanted a secure Blackberry. And it's not because of fetishism in any way, shape or form. It's because securing data on phones is freaking hard and it's a constant battle. And anything that weakens the security puts people in harm's way.
I suspect that the answer is going to come down to how do we create a system where the encryption is as strong as possible. The key is as secure as possible. It is accessible by the smallest number of people possible for a subset of issues that we agree are important. How we design that is not something that I have the expertise to do. I am way on the civil liberties side of this thing. Bill McCraven will tell you that I anguish a lot over the decisions we make over how to keep this country safe. And I am not interested in overthrowing the values that have made us an exceptional and great nation, simply for expediency. But the dangers are real. Maintaining law and order and a civilized society is important. Protecting our kids is important.
You suspect wrong. Because while your position sounds reasonable and "balanced" (and I've seen some in the press describe President Obama's position here as "realist"), it's actually dangerous. This is the problem. The President is discussing this like it's a political issue rather than a technological/math issue. People aren't angry about this because they're "extremists" or "absolutists" or people who "don't want to compromise." They're screaming about this because "the compromise" solution is dangerous. If there really were a way to have strong encryption with a secure key where only a small number of people could get in on key issues, then that would be great.
But the key point that all of the experts keep stressing is: that's not reality. So, no the President's not being a "realist." He's being the opposite.
So I would just caution against taking an absolutist perspective on this. Because we make compromises all the time. I haven't flown commercial in a while, but my understanding is that it's not great fun going through security. But we make the concession because -- it's a big intrusion on our privacy -- but we recognize that it is important. We have stops for drunk drivers. It's an intrusion. But we think it's the right thing to do. And this notion that somehow our data is different and can be walled off from those other trade-offs we make, I believe is incorrect.
Again, this is not about "making compromises" or some sort of political perspective. And the people arguing for strong encryption aren't being "absolutist" about it because they're unwilling to compromise. They're saying that the "compromise" solution means undermining the very basis of how we do security and putting everyone at much greater risk. That's ethically horrific.
And, also, no one is saying that "data is different." There has always been information that is "walled off." What people are saying is that one consequence of strong encryption is that it has to mean that law enforcement is kept out of that information too. That does not mean they can't solve crimes in other ways. It does not mean that they don't get access to lots and lots of other information. It just means that this kind of content is harder to access, because we need it to be harder to access to protect everyone.
It's not security v. privacy. It's security v. security, where the security the FBI is fighting for is to stop the 1 in a billion attack and the security everyone else wants is to prevent much more likely and potentially much more devastating attacks.
Meanwhile, of all the things for the President to cite as an analogy, TSA security theater may be the worst. Very few people think it's okay, especially since it's been shown to be a joke. Setting that up as the precedent for breaking strong encryption is... crazy. And, on top of that, using the combination of TSA security and DUI checkpoints as evidence for why we should break strong encryption with backdoors again fails to recognize the issue at hand. Neither of those undermine an entire security setup.
We do have to make sure, given the power of the internet and how much our lives are digitalized, that it is narrow and that it is constrained and that there's oversight. And I'm confident this is something that we can solve, but we're going to need the tech community, software designers, people who care deeply about this stuff, to help us solve it. Because what will happen is, if everybody goes to their respective corners, and the tech community says "you know what, either we have strong perfect encryption, or else it's Big Brother and Orwellian world," what you'll find is that after something really bad happens, the politics of this will swing and it will become sloppy and rushed and it will go through Congress in ways that have not been thought through. And then you really will have dangers to our civil liberties, because the people who understand this best, and who care most about privacy and civil liberties have disengaged, or have taken a position that is not sustainable for the general public as a whole over time.
I have a lot of trouble with the President's line about everyone going to "their respective corners," as it suggests a ridiculous sort of tribalism in which the natural state is the tech industry against the government and even suggests that the tech industry doesn't care about stopping terrorism or child pornographers. That, of course, is ridiculous. It's got nothing to do with "our team." It has to do with the simple realities of encryption and the fact that what the President is suggesting is dangerous.
Furthermore, it's not necessarily the "Orwellian/big brother" issue that people are afraid of. That's a red herring from the "privacy v. security" mindset. People are afraid of this making everyone a lot less safe. No doubt, the President is right that if there's "something really bad" happening then the politics moves in one way -- but it's pretty ridiculous for him to be saying that, seeing as the latest skirmish in this battle is being fought by his very own Justice Department, he's the one who jumped on the San Bernardino attacks as an excuse to push this line of argument.
If the President is truly worried about stupid knee-jerk reactions following "something bad" happening, rather than trying to talk about "balance" and "compromise," he could and should be doing more to fairly educate the American public, and to make public statements about this issue and how important strong encryption is. Enough of this bogus "strong encryption is important, but... the children" crap. The children need strong encryption. The victims of crimes need encryption. The victims of terrorists need encryption. Undermining all that because just a tiny bit of information is inaccessible to law enforcement is crazy. It's giving up the entire ballgame to those with malicious intent, just so that we can have a bit more information in a few narrow cases.
President Obama keeps mentioning trade-offs, but it appears that he refuses to actually understand the trade-offs at issue here. Giving up on strong encryption is not about finding a happy middle compromise. Giving up on strong encryption is putting everyone at serious risk.
You may have heard that, in early December, amid great fanfare, President Obama replaced the terrible No Child Left Behind law and replaced it with the "Every Student Succeeds Act" which, among other things, gave more power to the states when it came to educational standards, moving them away from the federal government. There's actually a lot of good things in ESSA (mainly getting away from the really horrible parts of NCLB), but there were plenty of little "gifts" to various lobbyists. And, apparently, that includes Hollywood's lobbyists.
Honestly, I wouldn't have ever spotted this if the MPAA front-group Creative Future hadn't blasted out a "thank Congress for ESSA" campaign page, which talked about the important "copyright education" parts included in ESSA. Hollywood lobbyists are somewhat famous for having their fingers in just about everything, so is it really a surprise that they got some bogus propaganda buried in a childhood education bill? But, indeed, search through ESSA and you'll find ridiculous copyright propaganda requirements for no reason other than because the MPAA lobbied heavily on it:
So what did the MPAA lobbying get? Well, basically it says that anywhere where the bill talks about providing better training and understanding of technology, it also must include some one-sided propaganda about copyright law. Really. Over and over again you see it:
If you can't read those, basically, each one says that any time there's a mention of integrating technology or getting better technology training, the law includes a silly misleading parenthetical "(including education about the harm of copyright piracy)." Of course, it's hard to see what that has to do with education standards, or better educating people about the role of technology.
But, most importantly, it's the latest in a long and increasingly sad and desperate attempt by Hollywood to inject copyright propaganda into public schools -- an effort that, even when it's been successful tends to result in kids mocking the hamfisted attempts that not only appear totally out of touch with reality, but tend to actually make students respect copyright even less. Trying to jam in one-sided propaganda that ignores things like fair use, or the abuses of the copyright system, is so blatantly and obviously ridiculous to kids these days that this will be laughed away as propaganda, as with each of their previous "educational" campaigns.
"In January 2014, CIA personnel conducted an unauthorized, unprecedented search of Senate committee files, including the emails and other files of Senate staff investigating the CIA's use of torture," says the letter...
"The CIA Inspector General stated in a July 2014 report that this search involved 'improper agency access to [Senate Intelligence Committee] files.' A review board selected by CIA Director Brennan concluded in December 2014 that this CIA search 'resulted in inappropriate access to [Senate Intelligence Committee] work product'."
[...]
"We believe that it is necessary for you to ensure that senior officials in your administration recognize the importance of adhering to the rule of law," the lawmakers wrote to Obama. "We ask that you instruct Director Brennan to acknowledge that the CIA's unauthorized search of Senate files was improper and will not be repeated."
The White House and CIA have yet to comment on the letter and there's nothing in the history of the incident that suggests either will move forward on this. Obama's on short time and the CIA already cleared itself of all wrongdoing with an in-house "investigation" and further showed its disdain for independent oversight by throwing its Inspector General and his report on the spying efforts under the bus.
Jason Leopold and Vice obtained hundreds of documents through FOIA requests that appeared to show the opposite of what the CIA's internal investigation claimed. But it was the CIA that had the last word, proclaiming itself innocent and simultaneously accusing Senate staffers of improperly accessing restricted documents.
But the most damning document -- at least in the context of a demand for an official apology from the CIA -- was the apology the agency unofficially disavowed when it cleared itself of hacking allegations.
[T]he documents turned over to VICE News included a July 28, 2014 letter from Brennan that was addressed to Feinstein and Saxby Chambliss, who was then the ranking Republican on the Intelligence Committee, in which he apologized to them and admitted that the CIA's penetration of the computer network used by committee staffers reviewing the agency's torture program was improper.
The thing is, Brennan never signed or sent this apology. It just sat in a Torture Report-related file until it was FOIAed. Brennan even offered a closed-door, off-the-record apology to Dianne Feinstein, but to date, the final official word remains the CIA's: we did nothing wrong.
As you probably heard, President Obama gave his final State of the Union Address a little while ago, and it was likely pretty much what you expected. A lot of vague pronouncements and not a whole ton of substance. I was surprised that the TPP got very little mention at all (it was basically mentioned in passing), but found it especially odd that the internet was mentioned just twice — and in ways that seemed to contradict each other. First, the President gave a brief mention of how his administration has "protected the open internet":
We’ve protected an open internet, and taken bold new steps to get more students and low-income Americans online. We’ve launched next-generation manufacturing hubs, and online tools that give an entrepreneur everything he or she needs to start a business in a single day.
The second mention comes a few paragraphs down, when he suddenly whines about terrorists using that very same open internet:
Priority number one is protecting the American people and going after terrorist networks. Both al Qaeda and now ISIL pose a direct threat to our people, because in today’s world, even a handful of terrorists who place no value on human life, including their own, can do a lot of damage. They use the Internet to poison the minds of individuals inside our country; they undermine our allies.
Both points have an element of truth in them, but the whole thing seems pretty silly. If you have an open internet, then part of the point is that anyone can use it — even people you don't like. Fighting ISIS and other terrorists is certainly important, but even mentioning the fact that they use the internet is silly. Some of them drive cars too. It's not really all that relevant.
Beyond that, there really wasn't much related to stuff that we're interested in around here. It talks about bringing back our innovative spirit (did it really go away?), but (unlike in past States of the Union) chooses not to mention patent reform (even though the President's suggested reforms haven't gone anywhere).
It's silly to expect too much from the State of the Union Address, which gets a lot more buzz than it's worth, but as a first pass, the idea that the two mentions of the internet contradict each other more or less summed up one of the big problems with the way this administration has treated the internet. It tends to talk out of both sides of its mouth on these issues, and never really take a stand. There truly are a number of really great people working in the White House on tech policy, looking to maintain a free and open internet, but there are plenty of others who are trying to undermine it, and to give in to FUD about the "dangers" of an open internet. It's a bit disappointing that the President never really came out with a strong leadership position on this and made it clear that we're not going to undermine a free and open internet out of fear -- but instead continues to give lip service to the free and open internet, while hinting at a willingness to toss it out the window.
Following Congress passing the Omnibus spending bill, it of course did not take long for President Obama to sign the bill, meaning that the fake cybersecurity bill/actual surveillance bill, is now law. Particularly ridiculous is that in his little speech about it, Obama talked about how he "wasn't wild about everything in it" but that he was happy that it was a bill "without ideological provisions." Except, you know, for the many ones that did get in there.
But, what do you expect with a 2000+ page bill that Congress was only given a couple of days to look at before voting on. Zach Carter, over at Huffington Post has examples of a couple of ridiculous provisions in the omnibus, starting with a ban on giving any funding to ACORN, the organization that was the target of scorn from Republicans a few years back. So what's so ridiculous about that? Following the pile on against ACORN years ago the organization shut down. It hasn't existed in years. Preventing funding for it seems, you know, kinda pointless, as it doesn't exist.
But it's the other wacky provision that caught my attention. Apparently this provision is in the omnibus no less than four times in different places:
"None of the funds made available in this Act may be used to maintain or establish a computer network unless such network blocks the viewing, downloading, and exchanging of pornography."
Apparently, this little clause has become so standard, you can find it in earlier funding bills as well. It's the 2013 funding bill the the 2012 funding bill and many more, I assume.
And, as Carter notes, this language is "completely meaningless," but it's still in there four times. Just because.
So Congress can't seem to get much of anything done, but it does pass an omnibus bill that includes a weird meaningless porn filter requirement four times... and a damaging surveillance bill. And you wonder why people dislike and distrust Congress.
