DHS Interrogates NY Times Reporters At Border, Then Denies Having Any Records About Them

from the right,-sure dept

Thought it was just officials at UK airports detaining and interrogating journalists? According to a new lawsuit from two NY Times reporters, they were also pulled aside and interrogated by Homeland Security officials multiple times concerning their own reporting efforts. The two reporters, Mac William Bishop and Christopher Chivers were apparently pulled out for special interrogation at JFK.

Among other things, Plaintiffs seek records used or created by DHS employees in respect to the questioning of Plaintiffs at JFK Airport earlier this year. Plaintiffs were subject to segregated questioning by DHS employees at JFK on May 24, 2013, as they prepared to board an international flight for a work assignment as journalists. Subsequently, on June 6, 2013, Mr. Bishop was subjected to further segregated questioning by DHS employees at JFK as he returned to the United States.

Given this, the two journalists filed Freedom of Information Act (FOIA) requests on records pertaining to themselves... and got back absolutely nothing. After playing hot potato with the FOIA requests between different DHS agencies, the reporters basically got back messages saying that there were no records on either.

On September 27, 2013, ICE denied the Bishop Request. ICE reported in a "final response" that the unite had conducted a search and found no responsive documents.

On October 28, 2013, Mr. Bishop appealed ICE's denial. In his appeal letter, Mr. Bishop said it was "inconceivable that DHS has no records pertaining to [him]" as someone who is "a frequent international traveler." He pointed out that on June 6, 2013 he had answered questions for DHS employees in a private room at JFK, and those answers were recorded on a computer.

On November 18, 2013, ICE denied Mr. Bishop's administrative appeal, finding that the agency had done an adequate search.

As for the TSA, that unit of DHS informed Mr. Bishop by letter on July 31, 2013 that his "request was too broad in scope." TSA required more information before processing the request.

On August 9, 2013, Mr. Bishop, through counsel, responded by letter. He restated the initial request and asserted that no legal authority supports the proposition that TSA could simply refuse to do the search.

More than two months later, on October 23, 2013, TSA told Mr. Bishop's counsel that it could not find the August 9, 2013 letter. Counsel subsequently provided a new copy of the letter and additional information about the June 6, 2013 questioning at JFK. There has been no further response from TSA.

Remember how Eric Holder insisted that the feds weren't going to keep intimidating journalists? Yeah, right.

Filed Under: cbp, christopher chivers, customs and border patrol, detention, dhs, foia, ice, intimidation, journalism, mac william bishop, reporters
Companies: ny times

Witness In No Fly List Trial, Who Was Blocked From Flying To The Trial, Shows That DOJ Flat Out Lied In Court

from the incredible dept

On Friday the case against the US government, brought by Rahinah Ibrahim over her being placed on the "no fly list," officially concluded with closing arguments, but that may have been the least interesting part of everything. Apparently, the day got off to a rocky start, after Ibrahim's lawyers informed the DOJ that they intended to file bar complaints against some of the DOJ legal team for their actions in court, specifically concerning "misrepresentations" made to the court. It seems clear that this was mainly about the DOJ denying that the US government (mainly DHS) had done anything to prevent Ibrahim's daughter, Raihan Mustafa Kamal, an American citizen, from coming to the US to be a witness in the trial. As you may recall, on Monday it had come out that she had been denied in her attempt to board her flight in Malaysia, and the DOJ claimed, flat out, that Kamal had merely missed her flight and rebooked on another flight.

It appears that none of that was true.

Instead, while Kamal had been rebooked by her travel agent earlier in the week to a different flight (because Expedia informed her that her original flight was full and she wouldn't be able to travel on it), she arrived at the airport with nearly 3 hours to spare for her own flight, and was then denied the ability to board. There was a lot of back and forth, but eventually she obtained the email that had first been sent to Philippines Airlines (she was flying from Malaysia to the Philippines and then on to San Francisco), warning that Kamal was "a possible no board request." While that's not a full on "denial" it was enough to have the airline deny her passage, and clearly shows that, contrary to the DOJ's claims, DHS specifically had targeted Kamal and was hinting very strongly to airlines not to let her fly. It seems unlikely that they ever expected that email to get out. Either way, Kamal had spent nearly $2,000 of her own money on the original flight, and noted in her own deposition that she was unable to afford another immediate flight to the US (especially given that it's holiday travel season).

Judge Alsup held a closed hearing about all of this, so it's not entirely clear what he's going to do, though from the public statements he has made to date, he did not appear to be happy about all of this. During the closing arguments -- some of which involved kicking the public out -- he even noted how ridiculous it was that they had to have a closed session since he didn't think any of the "sensitive security information" was really that sensitive. He also challenged the government's argument that they can properly review people who "appeal" their status without ever letting anyone know if or why they're on the list. From Edward Hasbrouck's transcript of the exchange:

JUDGE ALSUP: That's just going back to the same sources that were wrong in the first place, and of course they are going to say, “We were right the first time.”

That troubles me.

Do you know what happened to Robert Oppenheimer?

He was denied his clearance. It was totally unjust. The information was bogus. They suspected him of being a Communist, but that was wrong.

It was a low point for America, to do that wrongly to an American hero.

You’re not seeing the other side of what can happen.

DEFENDANTS’ COUNSEL: TRIP is a continually improving process…

JUDGE ALSUP: We know that there’s going to be mistakes in your system, in any system, and people are going to get hurt.

What do we need? Should there be some sort of follow-up FBI interview to find out if there is contrary evidence?

DEFENDANTS’ COUNSEL: When a TRIP letter is sent, the recipient is offered the possibility of review by a Court of Appeals. Review by a Court of Appeals would reveal any improper basis for the decision.

JUDGE ALSUP: How could the Court of Appeals tell that from the file it is handed up by the agency?

Even if it includes the derogatory information, how is the Court of Appeals going to know from looking at the face of the document whether it’s true?

Couldn’t there be some process where you tell the person the nature of the allegations (”You contributed money to Al Qaeda”) without revealing the specific sources or methods for the information containing those allegations?

DEFENDANTS’ COUNSEL: We can say more in closed session, but we can’t do that.

The government also appeared to admit in its closing that the original no fly determination on Dr. Ibrahim was a mistake, but then seems to bend over backwards not to take responsibility for all the additional fallout from that incorrect designation -- including the repeated denial of a visa to go back to the US (even for this very trial).

Filed Under: cbp, dhs, doj, no fly list, rahinah ibrahim, raihan mustafa kamal, william alsup

Feds Insist It Must Be Kept Secret Whether Or Not Plaintiff In No Fly List Trial Is Actually On The No Fly List

from the kafkaesque dept

In the latest update in the ongoing trial concerning the legality of the US's "no fly list" brought by Stanford grad school student Rahinah Ibrahim after what appears to be a series of monumentally stupid actions by the US government, the feds continue to try to play games that Judge William Alsup isn't interested in playing. Edward Hasbrouck at the Identity Project continues his fine reporting with detailed coverage of Thursday's events. Apparently, the DOJ lawyers tried to insist that the mere fact of whether or not Ibrahim is on the "no fly list" has to be kept secret, including from Ibrahim herself. Judge Alsup pointed out that the mere status of someone -- on the list or off -- wasn't listed anywhere in the list the government provided him of "sensitive security information" (SSI):

Why can’t we tell the party [to the lawsuit] what her status is?

This depends on our saying that national security depends on us having this information, but not her having it. I question whether that is true….

Something’s going on in this case that’s strange, and I mean on the part of the government.

I don’t understand why you’re fighting so hard to avoid having this poor plaintiff know what her status [on the no-fly list] is.

It’s easy for anyone to buy a ticket and try to get on an airplane. If they’re allowed to fly, they know they’re not on the no-fly list. If they’re stopped and handcuffed and sent to jail in the back of a police car, they know they’re on the list.

It’s so easy to find out what your status is by trying to get on an airplane — at least for the no-fly list. That’s a lot easier than months of litigation.

Later, as the government presented its case, it included a discussion of how the State Department later pulled Ibrahim's visa after she was back in Malaysia (it's not entirely clear how this helps their case, since the no fly issue is separate from the visa). But, even there, the statements from the government didn't make much sense to Judge Alsup who called out a witness for saying something that didn't appear to be true -- arguing that Ibrahim could have asked for a special waiver on the visa issue, but didn't. Just one problem: as Judge Alsup noticed, there's a box on the form saying if you're eligible to apply for a waiver -- and the form sent to Ibrahim did not have that box checked.

It’s possible for someone deemed ineligible for a visa to apply for a waiver of that ineligibility. Had Dr. Ibrahim failed to exhaust her administrative remedies by failing to apply for such a waiver?

It was Judge Alsup who pointed out that the box on the notice given to Dr. Ibrahim marked “You are eligible to apply for a waiver of in eligibility” had not been checked. “If there’s a box for that, and the box isn’t checked, wouldn’t that imply to you that she couldn’t apply for a waiver?” the judge asked Mr. Cooper.

“You could infer that,” Cooper replied from the witness box, with an inflection that suggested, “….but you would be wrong.”

“It would certainly imply that to me,” Judge Alsup shot back.

The trial should be wrapping up today, and it's not looking good for the US government at this point.

Filed Under: dhs, doj, no fly list, rahinah ibrahim, william aslup

Case Over No-Fly List Takes Bizarre Turn As Gov't Puts Witness On List, Then Denies Having Done So

from the shameless dept

As you my have heard, there's a trial going on here in San Francisco about the legality of the complete lack of any sort of due process concerning the US's "no fly" list. The NY Times has a good background article on the case, which notes that somewhere around 700,000 people appear to be on the list, where there's basically no oversight of the list and no recourse if you happen to be placed on the list. This lawsuit, by Rahinah Ibrahim (who had been a Stanford PhD student) is challenging that.

In that case, a Stanford University Ph.D. student named Rahinah Ibrahim was prevented from boarding a flight at San Francisco International Airport in 2005, and was handcuffed and detained by the police. Ultimately, she was allowed to fly to Malaysia, her home country, but she has been unable to return to the United States because the State Department revoked her student visa.

According to court filings, two agents from the Federal Bureau of Investigation visited Ms. Ibrahim a week before her trip and asked about her religious activities (she is Muslim), her husband and what she might know of a Southeast Asian terrorist organization. A summary of that interview obtained by Ms. Ibrahim’s lawyer includes a code indicating that the visit was related to an international terrorism investigation, but it is not clear what other evidence — like email or phone records — was part of that inquiry.

The Identity Project blog is covering the trial, which kicked off earlier this week with a ridiculous situation, highlighted by BoingBoing. Apparently, one of the people set to testify in the case, Ibrahim's oldest daughter, Raihan Mustafa Kamal (an American citizen, born in the US), was blocked from boarding her flight to the US to appear at the trial, and told that she was on the no fly list as well. Kamal, a lawyer, was an eye witness to her mother being blocked from boarding her flight. The US knew that Kamal was set to testify and from all indications, in a move that appears extremely petty, appears to have purposely blocked her from flying to the US. Kamal was directly told by the airline that DHS had ordered them not to let Kamal to board. The airline even gave her a phone number for a Customs and Border Patrol office in Miami, telling her to call that concerning her not being able to board.

Judge William Alsup, who is known for his rather no-nonsense approach in court (and his willingness to dig very deep into understanding the issues), quickly noted that this apparent blocking of Kamal was ridiculous, and demanded that the government explain what happened. When they insisted they knew nothing about it, Alsup wasn't satisfied. Nor was he satisfied with the story they eventually came back with. As Edward Hasbrouck at the Identity Project reports:

Judge Alsup ordered the government defendants’ lawyers to investigate and report back. “You’ve got ten lawyers over there on your side of the courtroom. You can send one of them out in the hall to make a phone call and find out what’s going on.”

At the end of the first day’s session of the trial (more on that below), the governments’ lawyers told Judge Alsup that they had made inquiries and had been told that “the plaintiff’s daughter just missed her flight” and was rebooked on a flight tomorrow (Tuesday) afternoon.

Needless to say, that story strains credulity. If Ms. Mustafa Kamal had merely missed her flight, why would she have been given a CBP phone number in Miami to call for information about what had happened? The governments’ lawyers insisted that, “That’s what we have been told”, but Judge Alsup wasn’t satisfied.

“We may have to have a separate evidentiary hearing about this,” Judge Alsup said, and ordered the defendants to provide further information tomorrow... “I want to know whether the government did something to obstruct a witness, a U.S. citizen.”

That was Monday. Tuesday morning, Ibrahim's lawyer proved that the DOJ was flat out lying the day before by presenting the "no-board" instructions that DHS had sent to Malaysia Airlines to the court:

“None of that was true,” Ms. Pipkin told the court this morning. “She didn’t miss the flight. She was there in time to check in. She has not been rebooked on another flight.” And most importantly, it was because of actions by the DHS — one of the defendants in Dr. Ibrahim’s lawsuit — that Ms. Mustafa Kamal was not allowed to board her flight to SFO to attend and testify at her mother’s trial.

Ms. Pipkin said that Ms. Mustafa Kamal had sent her a copy of the “no-board” instructions which the DHS gave to Malaysia Airlines, and which the airline gave to Ms. Mustafa Kamal to explain as much as it knew about why it was not being allowed to transport her. Ms. Pipkin handed Judge William Alsup a copy of the DHS “no-board” instructions to Malaysia Airlines regarding Ms. Mustafa Kamal.

As Hasbrouck notes, the airline deserves kudos for handing over that info. Many airlines would simply keep it a secret. Judge Alsup, however, will not consider the document yet, noting that there isn't evidence to its authenticity and it's not part of a sworn record. Thus, he said that when Kamal arrives in SF to testify, that can be a part of her testimony. While the lawyer pointed out that Kamal was hesitant to buy another ticket if she wouldn't be able to board again, Judge Alsup made it clear that she needs to come, and also appears to have made it quite clear to the DHS that if she is blocked again, there will be consequences:

“Get her on an airplane and get her here,” Judge Alsup responded. “She’s a U.S. citizen. She doesn’t need a visa. I’m not going to believe that she can’t get on a plane until she tries again. ” And Mr Freeborne, with disingenuous faux-solicitude, claimed that the government is “willing to do whatever we can to facilitate” Ms. Mustafa Kamal’s ability to board a flight to the U.S.

Judge Alsup wasn’t willing to take any action today on unproven allegations or unverified documents. But he made clear that, “I am disturbed by this…. We’ll hear from her [Ms. Mustafa Kamal] when she gets here. If it turns out that the DHS has sabotaged a witness, that will go against the government’s case. I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here.”

The report from Monday also describes other ridiculous claims by the DOJ, including trying to argue that information that was publicly available could not be included in the case because it was "sensitive security information" (SSI). Once again, Judge Alsup saw through the DOJ's bullshit and called them out on it:

That’s ridiculous. Are you saying that if the president makes a speech, TSA can retroactively make it a secret what he said? It cannot be the law that something that is publicly known later becomes hidden…

Here’s my ruling: If it’s in a document that’s SSI, but it’s also available from some other publicly available source, it’s public information, and cannot be withheld from the public in this courtroom…. The government is taking such an unreasonable position on how to run a trial. If it’s been in the public domain for years, you’re barred from making the argument that the plaintiff’s counsel cannot “disclose” it….

Trials are important. Trials are supposed to be public.

I want to categorically reject one thing: If information is publicly available in some other way, the government does not have the right to retroactively clamp it down and remove it from the public record. Even if it could have been protected as SSI within the government, if the plaintiff obtains this information independently, the government can’t clamp that down.

The plaintiff has the right to prove her case. If she can prove it through publicly available admissible evidence, she can do so even if that information is also included in internal government documents designated as SSI.

That’s the way I feel. That’s the law, that ought to be the law, and that’s the only way to run this country. That’s my ruling, and if the government disagrees, I invite you to take an emergency writ to the Ninth Circuit Court of Appeals.

It would be an understatement to suggest that Judge Alsup is not impressed with the US government's actions so far. The notes from day two in the trial provide a lot more background on what happened. It would appear that the lawyers for Ibrahim are making a (rather compelling, from the evidence) case that bumbling US law enforcement officials confused two very different Malaysian organizations with similar names: Jemaah Islamiyah Malaysia, which is a terrorist organization, and Jamaah Islah Malaysia, "a non-profit professional networking group for Muslims who have returned to Malaysia after post-secondary schooling in the U.S. and Europe." The two organizations are, as you would imagine, quite different. Ibrahim is involved in the latter, and has no connection to the former, but it sounds like the FBI agents who interviewed her were unaware of the difference.

The further details of Ibrahim's life, her arrest and treatment, all suggest a situation where US law enforcement totally screwed up, and seriously mucked up someone's life -- and now they seem to be doing everything possible to avoid taking responsibility for it.

Filed Under: cbp, customs and border patrol, dhs, doj, no fly list, rahinah ibrahim, raihan mustafa kamal, william alsup

Lawsuit Claims ICE Officers Shot At, Arrested Wrong Man

from the close-enough-for-government-work dept

"Shoot first, be named in a lawsuit later." That seems to be the mindset of certain members of our national law enforcement agencies. Orange County resident Daniel Noriega is proving this (just made up now) adage with his suit against ICE for a cavalcade of harmful errors.

Noriega says he was dropping off his girlfriend's son at an Anaheim elementary school on Dec. 1, 2011, when "all of a sudden, a car quickly pulled up near Noriega. The tires screeched as the vehicle came to an abrupt halt. The UFA [Unknown Federal Agent], without any warning or instruction, without identifying himself as a federal agent or law enforcement officer, without any provocation whatsoever, and while wearing plain clothes, quickly exited his vehicle, pulled out a firearm as he approached Noriega, and fired it at Noriega," according to the complaint.

Noriega, scared for his life, drove around a vehicle in front of him and left the parking lot to escape from the "unidentified attacker that had tried to kill him," he says in the lawsuit.

Unfortunately for Noriega, fleeing for your life from unknown assailants looks to pursuing agents exactly like a guilty person fleeing arresting officers. Noriega then made the next logical move for a person who thought someone was trying to kill him.

Noriega, who did not have a cell phone on him, drove to a nearby gas station and used their phone to call 911. Several officers, including the immigration agent, showed up at the gas station, handcuffed Noriega, and put him in the back of a vehicle, according to the complaint.

At this point, the chain of events is rather hazy. At some point during his detainment, Noriega was accused of trying to kill a federal agent and his vehicle and house were searched. His girlfriend was apprised of these "facts" by another ICE agent during the search of his residence.

The Orange County Register has more details, including dispatch recordings indicating ICE screwed the whole thing up.

An Anaheim police dispatcher, in a recorded conversation with a Buena Park dispatcher, called the Dec. 1. shooting "all FUBAR through ICE" -- using the military expletive for " (messed) up beyond all recognition..."

In dispatch recordings, ICE agent "Nicole " tells a Buena Park dispatcher that the agency is looking for Alcala and that Noriega must be lying about his own name.

Noriega was detained for "several hours" under the pretense that he had tried to kill the federal agent who shot at him, but when all was said and done, ICE dropped the charges and picked up the tab for his impounded vehicle. Despite knowing they had grabbed the wrong guy (ICE was looking for Noriega's girlfriend's ex-boyfriend, Juan Carlos Aclala), ICE still considers Noriega a "suspect," according to his attorney.

This case seems like it might hinge on whether the agent shot at Noriega before Noriega attempted to flee. According to an Orange County D.A.'s investigation, nothing can be determined conclusively. The ICE agent apparently fired at Noriega from INSIDE his vehicle (backed up by a hole in the windshield and a shell casing on the car floor), lending more credence to the assertion that Noriega made an "aggressive" move first. Then again, having an unmarked vehicle suddenly block off yours could prompt a panicked reaction, one that would only get worse when (allegedly) followed by the sound of a gunshot.

However this does play out, the chain of event shows ICE's disregard for public safety in its quest to get its man. Surely there are better places than in front of an open school to attempt detainment, especially if there's potential for the confrontation to turn violent. Its follow-up actions were just as careless as it moved forward with searches of Noriega's vehicle and house without first determining they had the right person.

The ICE officer states in the DA's investigation that he couldn't positively identify whether he had the right person (Noriega was wearing a hat and sunglasses) before making his move to block off the vehicle. The fact that the agent made an aggressive move without positive identification is an indicator of the agency's willingness to accept a certain amount of collateral damage as being "just part of the job."

Filed Under: daniel noriega, dhs, ice

Former DHS/NSA Official Attacks Bruce Schneier With Bizarre, Factually Incorrect, Non-sensical Rant

from the anyone-can-publish-on-cnn dept

Over the years, at times, I've seen people criticize Bruce Schneier for perhaps getting more publicity than other security researchers, but it's rare to see people question his knowledge. The complaints often appear to stem more out of jealousy than anything else. But, I've never seen anything quite as ridiculous as this "CNN iReport" by Richard Marshall and Andre Brisson, which appears to be a blatant hatchet job attack on Schneier that is at times incomprehensible, at times factually incorrect and bizarre throughout. Marshall is a former NSA and DHS "cybersecurity" expert, but he's now the CEO of "Whitenoise Labs," (something not mentioned in the article). Brisson is the founder of Whitenoise Labs, and appears to have a beef with Schneier going back at least a decade if not more. Brisson and Marshall appear to not be particularly adept at explaining themselves, so the history is not clearly laid out anywhere. The short hand, as far as I can tell, is that Brisson thinks he's discovered some magic elixir security solution, which Schneier mocked way back in 2003. Brisson now feels that the security community gives him no respect and even Defcon ignores his pleas to present his own brilliance.

Last year, Brisson appears to have hired Marshall, and the two of them see this as an opportunity to attack Schneier. It looks like there are two main points to the article: (1) they don't like Bruce Schneier (2) they want you to know about their own solution, which even they admit Schneier dismissed as "snake oil." But here's the bizarre part. Even though it's clear that they're just trying to promote their own thing, pretty much the whole point of their article is that you shouldn't trust Bruce Schneier because he blogs and he's only trying to promote his own business. I'm not joking.

It appears that one of the sources of Mr. Schneier’s information are documents leaked by E.Snowden, fugitive American living in Russia and former contractor with Booz Allen Hamilton, and Glenn Greenwald, a journalist who worked with Mr. Snowden. Mr. Schneier’s intentions clearly have nothing to do with his convictions about privacy, as much as business and profit motives. It must be emphasized that blogs are not journalism: they are marketing tools specifically designed to try to sell a product, not to get to the truth.

Where to start? First off, it does not "appear" that one of the sources is Snowden, it is confirmed fact. Also, Greenwald did not "work with" Snowden. Greenwald is a journalist and Snowden was a source. Since then, the Guardian, whom Greenwald worked for, also brought on Schneier to help understand some of the Snowden documents. This is all public knowledge. Second, while Schneier does blog quite a bit, he's also been regularly published in all sorts of news publications that have significant editorial staffs, including The Guardian, the Atlantic, Harvard Business Review, Wired and more.

The suggestion that he's just some random blogger is obviously false, and pretty much everyone knows that. Furthermore, Schneier's experience in the field is pretty damn well documented. His own firm, Counterpane, was acquired years ago by British Telecom and Schneier has obviously done tremendous work in the world of computer security for many, many years.

Weeks of research regarding Mr. Schneier’s claims have highlighted one of the most frustrating problems with the internet age. Because virtually anyone lacking serious journalistic credentials can, and often does, write or post freely on any subject, the resulting sheer volume of information available may lead people to believe that the reporting is even-handed and well-researched. Unfortunately, in many circumstances nothing can be farther from the truth.

Weeks? As noted: Brisson's feud with Schneier appears to go back a decade. And it took me all of about 3 minutes to find all those well known publications that Schneier writes for. Brisson and Marshall (two people!) couldn't find them in weeks? Also, I'm beginning to wonder if the above paragraph actually refers to the article by Brisson and Marshall a lot more than anything Schneier has ever done.

Because the very information analyzed and evaluated may result in policy, it absolutely demands that such information be subject to the highest and most stringent scrutiny and as such, deserves to be evaluated and vetted by verified experts, politicians, business leaders, and citizens with proven track records of integrity, honesty, and true concern for the public interest. It should not be done by those with a history of practicing self-interest over privacy and security.

Again, this is coming from people whose main purpose with this article appears to be promoting their own mocked security solution, and who regularly run silly promotional "contests" and "countdown clocks" designed to focus on their own self-interest.

For many weeks, it has been noted that volumes of proselytizing and dissemination of “opinion-as-fact” come from unverified information through Mr. Schneier’s self-promoting blog, other blogs and various online sites, such as gamer’s sites, of unknown, dubious reputation and/or expertise in the critical areas of cryptography and privacy and not from reputable publications as The New York Times or The Washington Post.

I'll let that sink in for a bit. Notice, of course, that they leave out "The Guardian" and "The Atlantic" -- two publications that Schneier does write for, with reputations that are at least on par with the two publications named. Also, it appears to leave out that both the Washington Post and the NY Times have been publishing stories quite similar to Schneier's, and both have (at least some of) the same documents from Snowden, which these two guys mocked Schneier for using as his source.

Mr. Schneier decries the NSA and mandated law enforcement agencies empowered by our laws. Yet, Mr. Schneier’s track record shows, significantly, that at least twice over the last decade he has turned a blind eye to workable security (but he complains about privacy.)

This bold claim is not supported anywhere in the article. It likely refers to Schneier ignoring or mocking their own "solution."

The article goes on to make some half-baked suggestions about how to deal with the NSA surveillance issues that suggest they don't even understand what's going on. Their solution? "using the improved security technology we have available to combat the fatal flaws of public key" technology -- which of course is what their firm has been pushing on the world for years, and which ignores the fact that the evidence so far from Snowden has shown that public key encryption, when done right, still works pretty damn well.

Reading the article, it's laughable. Nearly all of the attacks on Schneier are more accurately directed at the authors of that article. If the DHS and the NSA are looking to attack Schneier, they should at least try to find former execs who can write comprehensibly, and who didn't go off to work for a foreign "security" company with dubious credentials.

Filed Under: andre brisson, blogs, bruce schneier, cybersecurity, dhs, ed snowden, encryption, nsa, reporting, richard marshall, security
Companies: whitenoise labs

Dumbest Logic Ever: 9/11 Happened Without Today's NSA Surveillance, And That's Proof Why It's Necessary

from the how-do-these-people-get-to-be-in-power dept

Oh, Stewart Baker. You may recall this former top NSA and DHS official from the time he said the Boston bombing proved that civil liberties advocates were wrong about cybersecurity. Or, maybe the time he blamed 9/11 on civil libertarians. Or, how about the time he said privacy advocates were to blame for the TSA groping you at the airport? And those are all just in the past few months. Baker always seems good for a head-smackingly ridiculous quote, and it appears that The Guardian got him to provide yet another one.

The Guardian has a big, overly designed (pretty, but... not clear for what good) piece called NSA Files: Decoded, which goes through many of the revelations in the Snowden docs and why they're important. It's a good read, interspersed with videos (which annoyingly autoplay as you get to them). Baker appears a few times, with his second video being another insane quote (as far as I can tell, there's no way to embed the video here):

You can say, well show me proof that this really worked. I can show you proof that the lack of this really failed. And when you lose 3,000 people, that proof is pretty compelling.

That statement is shockingly non-sensical. With that sort of logic, you can argue for almost any abuse of power. You know what else we didn't have before 9/11? Surgically implanted chips in our brains that would transmit our every thought to Stewart Baker's home computer. Is that "compelling proof" that we should now have that? The fact that we didn't have this kind of surveillance at the time of 9/11 is not "compelling proof" that it makes sense now, and you have to have no comprehension of basic logic and reasoning to think so.

The logic here is "9/11 happened, so anything we didn't have in place during 9/11 is automatically compelling proof that it should be in place." You know what else we didn't have when 9/11 happened? Well, the list is pretty damn long. We didn't have a US monarchy. Perhaps we need that. We had airplanes, which were used in the attacks. Perhaps it's compelling evidence that we should get rid of airplanes. You can use this kind of brain dead logic to justify just about anything.

But, of course, that's now how you actually do things. You don't justify something by saying "this went wrong, we have to do something, something has been done, and that's compelling proof." There's a big black box that Baker skips over, and it's the question he was originally asked and declined to answer: does the "something" actually work? But, in Baker's distorted view of the world, that doesn't seem to matter.

Filed Under: 9/11, dhs, nsa, nsa surveillance, stewart baker

NSA, DHS Sued For Threatening People Who Created Parody Merchandise

from the parody-is-protected-free-speech dept

You may recall the story from a few months back about the NSA supposedly issuing a takedown over some parody NSA merchandise. The NSA later claimed that it had no problem with the parody T-shirt that was specified, but did admit that a few years ago, it had sent a cease-and-desist letter to Zazzle, the platform that many people use to make such branded content, telling them they couldn't sell any merchandise with the NSA seal, since it would be a violation of 50 USC 3613, which says it's against the law to "misuse" the NSA's logo. It turns out that the Department of Homeland Security, DHS, had sent a similar letter, focusing on 18 USC 506, saying it's a crime to "mutilate or alter the seal of any department or agency of the United States." DHS even warned Zazzle that it could be punished with fines or jail time, and gave Zazzle a link to a general search on the Zazzle site of all items labeled "DHS."

Either way, Dan McCall, who created the NSA T-shirt design which was taken down in August, using the motto "peeping while you're sleeping" has decided to sue for declaratory relief, represented by Paul Levy of Public Citizen (disclaimer: Paul has represented us in various matters over the years). The lawsuit argues that the two cease-and-desist letters sent to Zazzle have violated McCall's First Amendment rights, which include protecting parody speech, and that the two laws cited should not be construed to forbid parodies because, well, because that's ridiculous. Furthermore, the lawsuit argues that 18 USC 506 is unconstitutional, in that the claim against altering and mutilating seals is way too broad and can, as in this case, lead to protected speech being stifled.

Defendants violated the First Amendment to the United States Constitution by threatening to enforce 50 U.S.C. § 3613 and 18 U.S.C. §§ 506, 701, and 1017 to forbid McCall from displaying his NSA Listens Parody, his NSA Spying Parody, and his DHS Stupidity Parody, from placing the Parodies on products to identify the targets of his criticism, or from selling mugs, T-shirts or other items bearing those designs to customers who want to display the items to express their own criticisms of NSA and DHS.

In his blog post about the case, Levy also explains how Zazzle, though not a party in the suit, is really complicit in all of this, for using those single threatening cease-and-desist letters to take down future products and for not pushing back against such overly broad claims from the government. While he notes that when the government comes calling, lots of companies bend over to avoid any legal consequences, he still notes that this is the kind of situation where a competent lawyer at Zazzle should have pushed back on the government and pointed out that these letters were ridiculous (even more bizarre: Zazzle refused to share the letters with Levy, saying they would only read them aloud to him over the phone).

...it is inconceivable that the First Amendment might not protect these uses of the agencies’ shields, and the NSA’s trademark-like statute applies, by its terms, only when the challenged use “convey[s] the impression that such use is approved, endorsed, or authorized by the National Security Agency.”  Although the NSA’s cease-and-desist letter specifically identified McCall's “Spying Since 1952" design as violating this statute, we should be able to expect a substantial commercial operation to push back against the implicit suggestion that somebody looking at that mug could have believed that NSA endorses it.  Even though the cease-and-desist letter warned Zazzle against “any” future use of its name, initials or seal, it is even more farfetched to think that NSA would have endorsed a version of its seal that says, “Peeping While You’re Sleeping.”  Consumers have a right to expect companies like Zazzle to have a thicker skin when faced with preposterous demands, and to wait for specific trademark challenges, rather than policing its service for other uses of the letters NSA, and proactively removing this sort of design in response to a cease-and-desist letter received two years before.

Happily, Zazzle faces commercial competition from others that do get tough on frivolous threats.  After Zazzle removed McCall’s designs in response to threats of litigation, McCall posted them to a virtual storefront at CafePress.com.   We don’t know whether CafePress has received similar threats from NSA or DHS, but based on previous experiences dealing with CafePress on trademark issues, I would expect CafePress to be more resistant to cease and desist letters. 

For example, a few years ago, CafePress stood up to the Republican National Committee when it tried to prevent CafePress users from using the RNC's elephant logo in conjunction with materials opposing or endorsing various candidates or, indeed, praising or condemning the Republican party.  And indeed, when the City of Memphis went after an anonymous blogger and sent a bogus takedown letter to Zazzle over the sale of parody Tshirts making fun of its police department, Zazzle’s immediate response was to cave in while CafePress was willing to stand up to the pressure, although Zazzle did restore the images after I urged it to do so. 

Still, until Zazzle shows itself to be more energetic in responding to threats against political humor, parodists speaking about controversial subjects should consider voting with their feet by using other vendors.

Indeed. If you actually want a company that will stand up for your basic rights, it seems like Zazzle might not be the best option.

Filed Under: dan mccall, dhs, first amendment, free speech, logos, nsa, parody, paul levy

Feds Took Reporter's Notes During Unrelated Search, After They Spotted Documents She Had Obtained Via FOIA

from the weak-excuses dept

Remember how the feds said they were going to be more careful about respecting freedom of the press and such? Not that anyone really expected that to happen, but late last week there was a scary report about how DHS officials and Maryland police were sent to do a search of Paul Flanagan's house to make sure he had no guns -- since he's been legally prohibited from owning a gun due to previous legal issues. But, while in the house, the officials apparently searched Flanagan's wife's documents and seized a bunch. That's a problem because his wife, Audrey Hudson, is a journalist and they took a bunch of her private notes, many of which revealed journalistic sources.

Hudson claims that the search concerning her husband was nothing more than a ruse to uncover details of government sources she had quoted in a recent article about Air Marshals. While not definitive, there appear to be an awful lot of coincidences that lead to the seizure of her documents. First, one of the people on the "search" was with the Coast Guard Investigative Services, and the Federal Air Marshals are a part of the Coast Guard. Admittedly, Hudson's husband, Flanagan, works for the Coast Guard. However, the investigator who did the search asked Hudson if she had authored that particular article, so he was well aware of it going in. Furthermore, the search warrant was just about guns, so it seems odd that they'd go searching her computer. On top of that, the "excuse" given by the Coast Guard after all of this is incredibly flimsy:

"In the course of a joint Federal & Maryland State Police investigation, a lawful search warrant was served on August 6, 2013 in Shadyside, MD. The Coast Guard Investigative Service (CGIS) was asked to participate since the search involved a Coast Guard employee. During the course of the search, the CGIS agent discovered government documents labeled FOUO - For Official Use Only (FOUO) and LES - Law Enforcement Sensitive. The files that contained these documents were cataloged on the search warrant inventory and taken from the premises. The documents were reviewed with the source agency and determined to be obtained properly through the Freedom of Information Act. The CG employee was notified that the documents were cleared and the CG employee picked them up after signing for the documents."

Basically, for no clear reason, they decided that even though they were looking for guns, they would start rifling through her documents, and then seize them, even though they had been obtained through perfectly legal means. It is entirely possible that this was all coincidental, but it certainly would seem to create some fairly significantly chilling effects, yet again, for reporters.

Filed Under: audrey hudson, coast guard, dhs, foia, leakers, reporters, search, whistleblowers

Instead Of Nominating New DHS Boss, Obama Should Look At Disbanding DHS

from the a-mistake-whose-time-has-come dept

As you may have heard, last week President Obama nominated Jeh Johnson, the former General Counsel of the Defense Department, to be the new head of the Department of Homeland Security. While he's certainly better than some other proposed candidates, he's not exactly known as a supporter for civil liberties. He's been a point person defending the use of drone-strikes, even on US citizens. He also has defended the collection of metadata by the NSA. Oh, and in his remarks after President Obama announced the nomination, he talked all about 9/11 and how he's spent his time since then trying to act in response to that.

Of course, many have questioned his qualifications to lead an organization like DHS, noting that it's a pretty big leap from his last job:

“I think it’s a stretch because you go from administering a relatively small and homogenous staff… to administering a huge and very diverse staff, with things like law enforcement responsibility, immigration and border control responsibility,” says one former Obama Justice department official who worked with Johnson. “It’s just a very diverse set of issues and set of people to manage, and he has no experience with managing any of them.”

But, really, there's a bigger issue here: why do we still have a Department of Homeland Security in the first place? It seems like the whole thing is a massive bureaucratic disaster. Over the years, we've covered how the crowning jewel of DHS, its so-called "fusion centers" that tried to bring together various groups for anti-terror purposes -- the very reason that DHS was put together in the first place -- were a colossal failure. They were incredibly wasteful of taxpayer funds, created no useful intelligence at all in the fight on terror, and were regularly cited for violating civil liberties. More recently, we've noted how Customs and Border Patrol has basically become a rogue agency that can do whatever it wants with what appears to be no oversight or consequences. We've similarly seen how Immigration and Customs Enforcement (another sub-agency within DHS) was involved in illegal censorship and questionable seizures of blogs, just because the RIAA complained.

And there's plenty more. Apparently, DHS only just figured out how to actually track its finances. And this is after it spent heavily on massive tech projects that didn't work.

Maurer says that the department has only just begun to keep adequate financial books. Several big DHS projects have been expensive failures. Billions of dollars were spent on technology to secure the southern border and screen cargo containers for radioactive materials. In both cases, the tech just didn’t work.

DHS was created in the hysteria following 9/11. It officially was created in 2003, and has now been in existence for a decade. In that time, it appears to have failed at a variety of key things, and it's entirely unclear if it's created any benefit at all. Matt Yglesias pointed out last week that rather than nominating a new boss, we should be admitting that creating DHS was a mistake. It seems like that would be a much more productive step at this point.

Filed Under: barack obama, bureaucracy, department of homeland security, dhs, homeland security, jeh johnson