EU's Brexit Strategy Shows How Aggressive Transparency Can Be Used To Gain The Upper Hand In Negotiations

from the poor-Theresa-May-doesn't-stand-a-chance dept

We're big fans of transparency around here, as you may have noticed. In particular, Techdirt has repeatedly called for trade deals to be negotiated more openly to allow greater input from the public -- and less backlash when they find out what has been agreed without them behind closed doors. But a fascinating post from the Institute for Government, a UK-based think-tank "working to make government more effective", points out that aggressive transparency can also be used to gain the advantage during high-level political negotiations.

In this case it is the critical "Brexit" negotiations between the EU and the UK that will determine their future relationship if and when the UK leaves the European Union. The stakes are incredibly high: the financial implications alone run into hundreds of billions of euros. Moreover, the UK's place in the world is also at play, as it extracts itself from the biggest geopolitical bloc in an attempt to go it alone. As the post points out, the approaches taken by the EU and the UK could hardly be more contrasted:

The European Council [one of the key EU bodies setting strategy] has published its "transparency regime" for the Brexit negotiations, committing the EU to a far greater degree of transparency than anything that we have seen in the UK. It sets out the ten classes of documents that could be issued by the Council, the [European] Commission and [EU] member states, along with a default level of public disclosure for each.

The UK government, by contrast, has said rather sniffily it would not be offering a "running commentary on Brexit negotiations", and aims to keep its plans totally under wraps. The Institute for Government points out that this is a big mistake:

The EU wants to be able to control the public narrative around Brexit. Two weeks ago, the EU published its draft negotiating mandate. Its proposals on the prerogative of the European Court of Justice, the rights of EU citizens in the UK and the sequencing of the negotiations were in all the UK papers. Having taken a self-imposed vow of secrecy, Prime Minister Theresa May was unable to respond to any of the issues of substance.

In other words, 500 million Europeans are only hearing the EU's side of the story, and the EU's views on what should happen during Brexit. Theresa May's secrecy means that she cannot rebut any of the assertions, nor offer her own vision (cynics say that is because she has neither a vision nor a plan….) The post points out that the EU's approach is not naïve or simplistic, but carefully planned and nuanced -- open for this aspect, but more reticent elsewhere:

A degree of secrecy is necessary to allow negotiators the space to think innovatively, to propose and weigh potential compromises. So, the EU stops short of a commitment to total transparency. It wants talks to be open, but not wide open.

The UK on the other hand wants to run as much of the negotiations behind closed doors as possible. That may just be the preferred operating style of this government or it may be a conscious decision. Whatever the reason, it will play right into the EU's hands.

It's a perceptive analysis that adds to the already compelling reasons why such high-level talks should be open and transparent as a matter of course. It's a pity that the one person who needs to take heed of that fact -- the UK's Prime Minister -- almost certainly won't. Both she and the country she nominally controls are likely to pay a high price as a result.

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Filed Under: brexit, eu, negotiations, secrecy, trade agreements, transparency, uk

How A Little Metadata Made It Possible To Find FBI Director James Comey's Secret Twitter Account

from the we-kill-based-on-metadata dept

For a few years now, our intelligence overseers have been insisting that we shouldn't be too concerned about surveillance programs that collect "just metadata" because that doesn't really reveal too much. But, of course, we've shown how "just metadata" can ruin a career diplomat's life, and former NSA/CIA boss Michael Hayden has admitted that the US kills people based on metadata.

Either way, I find it fascinating that reporter Ashley Feinberg needed just a few small bits of innocent metadata from FBI Director James Comey to track down his secret Twitter account. It took her all of four hours or so. Just last night, Comey admitted that he was on Twitter, leading lots of people to go searching for the account since there is no official one. I won't describe all of how Feinberg tracked it down (it involves some pretty excellent sleuthing and is worth reading) but suffice it to say, it's metadata that gives Comey away. The account, @projectexile7, was then almost certainly confirmed as Comey's based on metadata about who was following it, who it was following, and what it liked:

But how to be sure? There is only one person currently following the account: Benjamin Wittes of Lawfare. Wittes is no Twitter neophyte. He is an active user with more than 25,000 followers, and he only follows 1,178 accounts—meaning he is not a subscriber to the “followback” philosophy. If he is following a random egg—and is the only account following it—there is probably a reason.

That reason could be the fact that, as Wittes wrote here, he is a personal friend of James Comey. (We’ve reached out to Wittes for comment but have yet to hear back.)

Project Exile happens to be a federal program that James Comey helped develop when he was a U.S. attorney living in Richmond. And then, of course, there are the follows.

ProjectExile7 follows 27 other accounts, the majority of which are either reporters, news outlets, or official government and law enforcement accounts. The New York Times' Adam Goldman and David Sanger and the Washington Post's Ellen Nakashima and David Ignatius, all of whom have been aggressively covering the FBI investigation into Trump’s contacts with Russian agents, made the list, as did Wittes and former Bush Administration colleague Jack Goldsmith. Donald Trump is on there, too, but @projectexile7 seems to have begun following him relatively recently (its first follow was @nytimes).

There are two outliers: William & Mary News (where Comey attended undergrad) and our colleagues at The Onion (everyone deserves to have fun)

And, yes, I do find it hilarious that Ben Wittes — among the loudest cheerleaders for programs that scoop up metadata — is part of the reason the account was recognized as Comey's.

Go read the full article by Feinberg. Of course, I doubt it will change Comey's views on "just metadata", but it is yet another representation of how powerful a little bit of such data can be in tracking someone down.

Filed Under: ashley feinberg, fbi, james comey, metadata, privacy, secrecy
Companies: instagram, twitter

JEFTA: The Latest Massive 'Trade' Deal You've Never Heard Of, Negotiated Behind Closed Doors, With Zero Public Scrutiny

from the when-will-they-ever-learn? dept

As Techdirt has reported, the election of Donald Trump has turned the world of US trade deals upside-down. The US officially pulled out of TPP, although some still hope it might come back in some form. TAFTA/TTIP seems to be on ice, but Trump's choice for US trade representative has just said he is open to resuming negotiations, so it's not clear what might happen there (or with TISA). Against that confusing backdrop, the European Union has been quick to emphasize that it is in favor of trade deals, and is keen to sign as many as possible, presumably hoping to fill the economic and political vacuum left by the US.

One of the negotiations that has been going on in the background is for a major trade agreement between the EU and Japan. It began back in March 2013, but has garnered little attention, as people focused on the more imminent threats of TPP, TTIP, CETA and TISA. That's just changed, thanks in part to a joint statement signed by dozens of civil societies in both the EU and Japan, who write:

the European Union and the Japanese government have been negotiating a deep and comprehensive trade agreement which would cover a third of the world's GDP. The 18th round of negotiations took place in Tokyo in December 2016, and whilst the negotiations might come to a close soon, on the EU side, the mandate given to the negotiators is still not public, and on the Japanese side, secrecy is total.

…

Neither most parliamentarians in EU member states and in Japan, nor European and Japanese civil society organisations and trade unions know the content of the discussions. Nor have they seen draft chapters or been consulted. We condemn this opacity.

The other factor that has suddenly put the spotlight on JEFTA -- the Japan-EU Free Trade Agreement -- is the first leak of some of the negotiating documents, to the Austrian site Attac. Unfortunately, we don't have the actual pages yet, only a summary (original in German). That broadly confirms the information contained in one of the few detailed documents on the EU's official JEFTA site, the 314-page Trade Sustainability Impact Assessment (pdf) prepared for the European Commission in 2016, and largely overlooked.

Although that document is a study, and therefore speculative, it does contain some important information. For example, like most other EU agreements, JEFTA will include a corporate sovereignty chapter, also known as investor-state dispute settlement (ISDS). As Techdirt has described, the EU is trying to establish a new, possibly global court that would hear all such cases, called the Investment Court System. It still only exists on paper, but that didn't stop it being part of the CETA deal. The JEFTA Trade Sustainability Impact Assessment has this to say on the matter:

Whether or not the final outcome is based on the Commission's new Investment Court System (ICS), Japanese business tend to comply with the regulations of the host countries rather engage in investor-state disputes. There is only one known case of Japanese (indirect) involvement in an ISDS case, via a Dutch subsidiary operating in Czech Republic.

That is, Japanese companies prefer to use the national court systems of the countries they have invested in when there is some kind of legal dispute. This is precisely how things should work. And yet the EU is pushing for the inclusion of a completely parallel legal system, only available to investors, that would allow domestic courts to be by-passed and overruled. Here's why it's so keen on the idea:

exclusion of ISDS from the EU-Japan negotiations would be contrary to the emerging norm in comprehensive trade and investment agreements. Japan does not see the inclusion of ISDS as a difficulty.

The inclusion of ISDS is not part of an "emerging norm", but purely a matter of EU policy -- dogma, even: the European Commission wants to make it a part of all trade deals, and so aims to include it in JEFTA, even though Japanese companies are perfectly happy to use national courts. The Sustainability report admits that including an investment chapter will have little effect:

Investment flows (in both directions) are likely to be driven by an improved business environment and better profit margins -- which the investment chapter alone has only a moderate impact on. The economics effects are symmetrical, but moderate.

Even though Japanese companies might not use ISDS, there's a big downside to including it. Following CETA, it is likely that JEFTA will allow investors from other countries -- for example, multinational corporations with significant subsidiaries in Japan -- to use the chapter to make claims against the EU. Including corporate sovereignty unnecessarily, just to set a precedent, could come back to haunt the European Commission in the future if major awards are made as a result. The Sustainability report also touches on the issue of copyright, pointing out:

Another central issue in the EU-Japan FTA negotiations is the lack of protection for the use of sound recordings for public performance in Japan.

The EU will doubtless try to force Japan to rectify that omission. Similarly, the basic term of copyright protection varies between the EU and Japan: 70 years for the former, 50 years for the latter. Again, the European Commission will want to turn the copyright ratchet to extend Japan's term to match the EU's. Finally, it's worth noting that the EU's official study contains an estimate of the benefits that could flow from JEFTA:

The long-term GDP increase for the EU is estimated to +0.76% and +0.29% for Japan under a symmetrical scenario.

It's important to emphasize that this is "long-term": what this means is that the GDP could be higher by the percentages quoted after ten or more years. The average extra GDP growth per year is therefore an even smaller 0.08% and 0.03% for the EU and Japan respectively. That is, like TTIP and TPP, the predicted benefits that will accrue from JEFTA are likely to be very small, while the risks and possible losses in terms of ISDS fines, say, have been ignored completely.

But the worst aspect of JEFTA is not that it's probably not worth the effort, but that the EU and Japan have done everything they can to prevent both the public and even politicians from finding out what a bad deal is being negotiated in their name. After the humiliating defeat of the Anti-Counterfeiting Trade Agreement (ACTA), and the more recent failures of TPP and TTIP, you would have thought that the governments involved would have realized that this kind of secret dealmaking just isn't acceptable any more, but apparently, they haven't. Fortunately, JEFTA is finally out in the open, which means it can begin to be subjected to long-overdue scrutiny and democratic input. What we need now is for the EU to release negotiating texts as it did for TTIP.

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

Filed Under: eu, japan, jefta, secrecy, trade agreements

Court Says Location Of FBI's Utility Pole-Piggybacking Surveillance Cameras Can Remain Secret

from the OPERATION-REMORA dept

Last June, the FBI engaged in a public records lawsuit on its own behalf, seeking to prevent the city of Seattle from disclosing the locations of cameras the agency had mounted on city-owned utility poles. At the center of the case (for a short while) was privacy activist Phil Mocek, whose public records request for this information had spurred the FBI into action.

In its arguments against the city's disclosure of this information, the government posited the novel theory that revealing the cameras' locations would violate the privacy of those the FBI was actively surveilling.

Because of their close proximity to the subjects of surveillance, unauthorized disclosure of the locations of current or previously installed pole cameras can reasonably be expected to constitute an unwarranted invasion of privacy for those persons under investigation who have not yet been charged.

It made several related arguments in hopes of keeping this info from being revealed, including a modified "mosaic" theory and that, while all surveillance cameras are nominally created equal, the FBI's were more equal than others.

The FBI’s use of surveillance cameras must be distinguished from that of any other state or federal law enforcement agency on two principal grounds. First, in light of the FBI’s unique law enforcement and national security missions, there are particular sensitivities attached to the FBI’s use of surveillance equipment and the tradecraft associated with that use. Second, unlike the use of surveillance cameras by other entities, such as state and local governments or private businesses, which may operate video surveillance cameras in public locations to deter crime or promote public safety generally, the FBI utilizes surveillance cameras only in furtherance of an authorized investigation of a particular subject(s).

The FBI presumably doesn't use its cameras to troll for criminal activity, at least according to its courtroom assertions. The City of Seattle, however, didn't feel particularly compelled to protect the location info of the FBI's parasitic contributions to its utility poles. Phil Mocek was removed from the FBI's suit, leaving the city to defend its proposed disclosure against the FBI's claims of a future full of unsurveilled criminal activity.

The FBI's lawsuit has now wrapped up with the agency coming out on top. In a short order, federal judge Richard Jones finds the location of the FBI's publicly-mounted cameras to be deserving of ongoing secrecy. From the court's order [PDF]:

The United States contends, and the Court is persuaded, that the requested information is (1) protected by the federal law enforcement privilege; (2) federal property, subject to the FBI’s right to control and prohibit the disclosure of the information by the City, absent the express authorization of the FBI; and (3) expressly protected from disclosure by the PRA. The Court is further persuaded that the disclosure of the requested information by the City will cause irreparable harm to important federal interests, namely, the ability to carry out effective investigations of criminal violations and national security threats.

The order includes an injunction that prevents the city from releasing this information for the rest of forever, no matter the underlying circumstances.

The City of Seattle, including any officers, agents and employees thereof, are hereby permanently enjoined from disclosing, in response to any request under the Washington PRA, or otherwise, the… information that it has received from the FBI, absent the express authorization to do so by the FBI…

This includes information that seemingly would have no further law enforcement use, like those used in closed or fruitless investigations. Unless some of these cameras are located in sparsely-populated areas of the city, it's highly unlikely anyone could work their way backward from the camera's location to determine the identity of the surveillance targets. But the court sees it the way the FBI sees it: that anything it declares to be protected by "law enforcement privilege" should remain that way indefinitely.

Filed Under: fbi, phil mocek, public records, seattle, secrecy, surveillance, utility poles

Whether Or Not You Believe Russia Interfered In The Election, We Should All Be Worried About Escalation Based On Secret Info

from the be-concerned dept

So, we just wrote about Obama administration's tepid response to claims that Russians "interfered" with the Presidential election. In that post, we noted our concerns about the fact that we seem to be escalating a situation based on claims where we're not allowed to see any of the actual evidence. I've seen a bunch of people arguing that anyone who won't automatically accept that Russia interfered in the election should be dubbed either Putin supporters or, at the very least, "useful idiots" but we should be very, very careful about where this leads. I certainly think that there's a tremendous possibility that Russian forces did intend to interfere with our election, but I'd certainly like to see some actual evidence -- and the "evidence" provided so far shows no such thing.

And this should scare you. Not because it means that anyone is lying, but because it's setting the stage for very dangerous things. If we're setting the precedent that the US government can escalate situations based on purely secret knowledge, what's to stop them from doing so over and over again? Put another way: for those who dislike Trump, but are happy about the White House calling out and sanctioning Russia, how will you feel when President Trump makes similar claims about some other country (perhaps one blocking a new Trump hotel?), and proceeds to issue US government sanctions on that country -- but without releasing any actual evidence of wrongdoing beyond "government agencies say they did bad things." Won't that be concerning too?

Matt Taibbi, over at Rolling Stone, has an excellent article comparing this to when we started the war in Iraq -- noting the similarities, in that the government (and the press) kept insisting that because certain government agencies said something ("Iraq has WMDs"), it must be true:

This dramatic story puts the news media in a jackpot. Absent independent verification, reporters will have to rely upon the secret assessments of intelligence agencies to cover the story at all.

Many reporters I know are quietly freaking out about having to go through that again. We all remember the WMD fiasco.

And, as he later notes:

The problem with this story is that, like the Iraq-WMD mess, it takes place in the middle of a highly politicized environment during which the motives of all the relevant actors are suspect. Nothing quite adds up.

If the American security agencies had smoking-gun evidence that the Russians had an organized campaign to derail the U.S. presidential election and deliver the White House to Trump, then expelling a few dozen diplomats after the election seems like an oddly weak and ill-timed response. Voices in both parties are saying this now.

And this is a big part of the problem. Because none of the evidence is public, beyond just statements of attribution, we're left with no way to know what are actually reasonable responses. There's a big spectrum of possibilities that might be described as "Russian interference" from merely helping some independent hackers release information (as some have charged) to using actual intelligence agencies to run a serious hacking operation (as others have charged), all the way up to actively tampering in voting systems (which some in the public now claim, but which no official has suggested actually happened).

The problem isn't so much a question of whether or not the Russians did something. Maybe they did. It certainly wouldn't surprise me at all if they did. At the very least, Russian officials seem to be laughing at everything going on now. The real issue is the danger of having the force and power of the US government responding to "actions" by stating things as true, without providing any evidence to back it up. In that space, a lot of mischief can and will occur. Looking back at the invasion of Iraq based on faulty reports is just one example. We should be learning from that lesson, not repeating it.

Filed Under: escalation, hacking, president obama, president trump, russia, secrecy, secrets, white house

Unsealed Clinton Email Warrant Asks Court To Maintain Secrecy Of Investigation James Comey Publicly Announced To Congress

from the in-all-things,-boilerplate dept

The FBI's search warrant for Anthony Weiner's laptop was unsealed and released yesterday. This isn't the warrant the FBI originally used to seize and search the laptop. That one was looking for evidence related to allegations Weiner sexted an underage girl.

This warrant is the second search warrant for the same laptop, related to the discovery of emails to and from Hillary Clinton on it. This discovery during an unrelated search prompted Comey to write a letter to Congress informing it that he was going to be diving back into the Clinton email investigation.

The second dive into emails stored on the laptop by former Clinton aide (and estranged spouse of Anthony Weiner) Huma Abedin resulted in the discovery of nothing the FBI hadn't already seen. Comey apologized for getting everyone hot and bothered by his shouting of "CLASSIFIED!" in a crowded electoral season, but believed his actions were justified because he feared this information would likely leak anyway.

Leaks did abound, but the emails found on the laptop were ones that had already been seen by the FBI during its earlier investigation. Since no charges are being brought against Clinton (or Abedin) for mishandling of classified information, there's likely going to be no Fourth Amendment challenges raised in regards to the evidence the FBI didn't find.

If for some reason there was, I'm sure the FBI would feel the "plain view" exception (or perhaps "inevitable discovery," although plain view is a more accurate description...) would apply to its discovery of possible evidence completely unrelated to the Weiner sexting investigation at hand. As the affidavit explains, the normal process of going through emails for the Weiner investigation resulted in the viewing of email header info pointing to Hillary Clinton's private email server.

Having "segregated" those emails, the FBI applied for a second warrant [PDF] to search the content of those communications for classified material. As we know now, nothing of interest was found. Still, there was only the minimum of probable cause to search the content of these stored emails: that Hillary Clinton's email address appeared in the header info. This small possibility the seized emails may have contained classified information was used to justify a second forensic imaging of the seized laptop.

What's completely ridiculous about the affidavit is the agent's request that the affidavit and warrant be sealed because of the "confidential nature" of the investigation. Never mind the fact that James Comey himself blew past other FBI officials' recommendations and outed the results of the first investigation in a public press conference. Then he did it again with his letter to Congress on October 28 -- two days BEFORE this FBI agent asked for the sealing of documents because the investigation was apparently too "sensitive" to be made public.

It could be the agent prepared this affidavit before Comey decided to go public with his announcement, but the signature and date of October 30th appear directly below this paragraph claiming this information needed to be withheld from the public. And the judge granted it, which is just as much of an absurdity. It's not as though no one was aware of Comey's announcement. It was literally in all the papers. But, hey, law enforcement loves boilerplate and, apparently, magistrates' eyes start glossing over by the time they get to affidavit signature pages, because no one thought this request might sound ridiculous given the circumstances surrounding it.

Filed Under: anthony weiner, doj, emails, fbi, hillary clinton, huma abedin, investigation, james comey, probable cause, secrecy, warrant

Despite Administration's Promises, Most Government Transparency Still The Work Of Whistleblowers And Leakers

from the the-government-can-doxx-you,-but-not-itself dept

Meet the new transparency/Same as the old transparency:

The Justice Department has kept classified at least 74 opinions, memos and letters on national security issues, including interrogation, detention and surveillance, according to a report released Tuesday by the Brennan Center for Justice.

There's nothing in the streets/Looks any different to me:

Also still classified are between 25 and 30 significant opinions issued between 2003 and 2013 by the Foreign Intelligence Surveillance Court (FISC), the secretive federal court that interprets the law governing foreign intelligence-gathering inside the United States.

And the slogans are replaced by-the-by:

[A]t the State Department, 807 international agreements signed between 2004 and 2014 have not been published.

The self-proclaimed "most transparent administration" isn't even more transparent than the last administration -- one run by a hawkish member of a politically-powerful family and given a blank check to increase government power by a terrorist attack on American soil.

Less transparent, perhaps, than any other previous administration, including those run by the truly corrupt (Nixon) or those engaged in actual wars against actual entities (rather than against loosely-defined concepts like "drugs" or "terrorism").

These previous administrations managed to be at least as transparent as the current one, even without the "disadvantages" of being presided over by a lawyer specializing in the Constitution and pushed towards openness by multiple leakers exposing multiple secret surveillance programs.

Of course, the Intelligence Community is claiming it's more transparent than ever.

“In the last several years the government has engaged in an unprecedented level of transparency regarding its intelligence collection authorities,” said Brian Hale, a spokesman for the Office of the Director of National Intelligence. Hale said that the transparency includes releasing thousands of pages of documents related to foreign intelligence surveillance on U.S. soil and numerous FISC opinions, including five opinions this year.

When the baseline is zero release, it's pretty easy to surpass these expectations while not being appreciably transparent. The Office of Legal Counsel claims national security prevents the release of these opinions. That may be true in some cases, but secret legal interpretations that have been pried loose suggest some of what's being withheld may just be legal guidance a great deal of the American public would object to. Washington Post's Ellen Nakashima points to the paper's publication of a 2002 OLC opinion that claimed torturing terrorism suspects was not only justified, but violated no international laws forbidding torture. The opinion claimed it was the laws that were bad, not the torture.

[I]nternational laws against torture “may be unconstitutional if applied to interrogations.”

Meanwhile, "national security" is also what's preventing almost half of the agreements made between the US and foreign governments from being published. But the State Department also notes that this is far from the only reason the agency won't allow the American public to know what legal bargains have been struck by their government.

State Department spokesman John Kirby said in a statement that “not every non-publication of an agreement is due to national security purposes.” The law affords multiple exemptions, he noted.

As for the FISC opinions, they're apparently undergoing declassification. But even though the ODNI has made significant strides towards opening up the inner workings of the nation's most secretive court, the releases have been inconsistent and lag far behind the issuing of the court's orders. On top of that, the ODNI has shown less interest in releasing FISC opinions dating back several years, presumably figuring that the new transparency is mostly a "going forward" concern. The ACLU is now suing the government, hoping to force the release of FISC opinions dating back to 2001.

Whatever transparency that now exists in the federal government isn't due to President Obama's pre-election sloganeering. It's been forced on the White House by whistleblowers and leakers. And the response has been far from adequate. When not prosecuting whistleblowers, the Obama administration has moved forward tentatively with plans that are mostly of the "will this do?" variety. His two possible replacements -- a plutocrat who seems to think fascism will make America "great" again and a career politician who found the secretive State Department not quite secretive enough -- offer little hope of expanded transparency in the coming years.

Filed Under: governments, leaks, secrecy, transparency, whistleblowing

FBI Lifts Gag Order On NSL Issued To Google... Which Doesn't Have Much To Say About It

from the THIS-JUST-IN:-mumblemumble...gag-order...mumble dept

The government's embrace of transparency -- an uncomfortable hug forced on it like a drunken uncle at a wedding reception by the passage of the USA Freedom Act -- has paid off for a local computer concern. Google is now able to speak in non-specifics about one (1) National Security Letter it has received.

The national security letter issued to Google was mentioned without fanfare in Google’s latest bi-annual transparency report, which includes information on government requests for data the company received from around the world in the first half of 2016.

Google received the secret subpoena in first half of 2015, according to the report.

Here's the original wording from the report, which follows actual specifics about new countries Google can add to the list of entities demanding user info from it (Algeria, Belarus, Cayman Islands, El Salvador, Fiji, and Saudi Arabia):

[P]ursuant to the USA Freedom Act, the FBI lifted a gag restriction on an NSL issued in the second half of 2015.

The law requires the FBI to "periodically" review its NSL-related gag orders to see whether the restriction still needs to be in effect. Theoretically, the gag order should be lifted three years after the NSL is issued or the investigation concludes, whichever comes first. Theoretically. I guess we'll see if the gag order floodgates begin opening in 2019.

In addition to finally being able to barely talk about it, Google was also able to move the transparency dial forward exactly one click.

To reflect this, we have updated the range of NSLs received in that period — July to December 2015 — from 0-499 to 1-499.

What Google hasn't done is publish the request itself, something both Yahoo and Signal did once given the green light by the feds. It cited no reasons for withholding the contents. However, it may be unable to fully publish the letter, despite the lifting of the gag order, as The Intercept's Jenna McLaughlin points out.

It’s… unclear why Google wouldn’t immediately publish the document — unless the gag is only partially lifted, or the company is involved in ongoing litigation to challenge the order, neither of which were cited as reasons for holding it back.

In other news, Google saw an increase in FISA-ordered requests for user info, bumping it up by about 5,000 total accounts as compared to the previous reporting period.

Hopefully, Google's ungagged-but-still-secret NSL won't stay secret for much longer. It would be troubling if this were to become Google's standard policy -- the announcement of gag order removals but with no further details forthcoming. Not much "transparency" in the Transparency Report, unfortunately… not if that's how it's going to be handled.

True, much of the opacity is still the government's fault: the not-at-all-useful "banding" that makes NSL numbers impossible to parse (1-499 could mean one NSL… or almost 500 in one reporting period), the gag orders that remain in place forever, etc. But private companies shouldn't take their cues from naturally-secretive government agencies. They're pretty much all we have to provide us with an outside, somewhat unrestricted measure of the government's surveillance efforts.

Filed Under: fbi, gag order, nsl, secrecy, transparency
Companies: google

European Parliament Orders MEP To Take Down A Video About His Attempt To Visit The 'Reading Room' For Trade Documents

from the really-now? dept

We've written many times about the insane levels of secrecy around various trade agreements, including the TTIP agreement that is being worked on between the EU and the US. Basically, everything gets negotiated behind closed doors -- though certain lobbyists get full access -- and then it will be presented as a final document when it's too late for the public to actually weigh in. It's the ultimate in corrupt processes. In the past, the USTR has admitted that it demands such secrecy because if it had to reveal its positions publicly, the public wouldn't support the agreement. In the US, this has led to ridiculous situations such as when Senator Ron Wyden, who at the time was the chair of the Senate's subcommittee on international trade, was not allowed to bring a staffer of his, who is an expert in international trade, with him to read the latest text of a trade negotiation. Because that went against the rules.

And it's been standard practice in the US that if a politician does want to see the documents, they can't bring anything with them (not just no staff, but no electronics, no way to write anything down). They can just "read and retain." The EU has been following the US's lead on this, with special "reading rooms" for elected officials where someone watches over their every move. Again, they're not allowed any electronics. They are allowed a pen and are given paper to write on, which is a modest improvement on the USTR's system, but still ridiculous.

A Member of the European Parliament, Luke 'Ming' Flanagan, decided that he was going to go have a look for himself, and had someone film his attempt: It's not exactly great filmmaking, but it does show how he has to give up his electronics and sign a document before entering the room (quickly, so as not to allow anyone to see what's in there). And then he comes back out after being handed a document saying that it's also against the law for him to copy down anything from the draft text verbatim. He expresses his concern about how ridiculous this is and is told to take it up with someone else, who then tells him that he should be happy that MEPs can even view the document at all within the EU Parliament, and that this is a "great achievement."

This is, of course, already pretty ridiculous. And then it got more ridiculous because the European Parliament demanded that Flanagan take down the video, something he is refusing to do:

Just been contacted by staff from within the Euro Parliament and told I must remove this video. I won't be. #TTIPhttps://t.co/JkVLDyxMdQ

— Luke 'Ming' Flanagan (@lukeming) May 4, 2016

According to a news report, the EU Parliament claims it wants the video taken down to protect the name of a staffer, but Flanagan points out that staffer names are already public.

“The reason given (for removing the video) is that no permission for filming was received from the parliament,” Flanagan told TheJournal.ie.

An assistant of MEP Bernd Lange appears in the video, and Lange wants her name removed, the MEP claimed.

“It’s important to note that all assistants are already openly identified on the EP website,” Flanagan added.

It seems pretty clear that the EU Parliament isn't pleased with the contents of the video. Of course, in demanding it be taken down, it's only served to drive that much more attention to the video. I doubt I would have heard about it otherwise. Funny how that works.

Either way, it continues to raise questions about what kind of democratic process there is when these kinds of regulations are written in secret, with the help of lobbyists, and even the legislators themselves are basically barred from seeing or understanding what's in them. And then when those legislators highlight how ridiculous this is, the powers that be try to silence them.

Filed Under: censorship, eu, eu commision, eu parliament, luke ming flanagan, secrecy, transparency, ttip

EFF, ACLU And Public Records Laws Team Up To Expose Hidden Stingray Use By The Milwaukee Police Department

from the acronyms-to-the-rescue! dept

The EFF and ACLU -- along with the assistance of a very fortuitous public records request by Stingray-tracker extraordinaire Mike Katz-Lacabe -- have uncovered more hidden use of IMSI catchers by law enforcement. A criminal prosecution relying on real-time tracking of a suspect's cell phone has finally led to the admission by Wisconsin police that they used a Stingray to locate defendant Damian Patrick.

The information wasn't handed over to the court until the EFF, ACLU, and Katz-Lacabe's FOIAed documents forced the government to admit it used the device. Up until that point, testimony given by officers gave the impression that tracking Patrick down only involved the use of records from his service provider. They also claimed the information pinpointing Patrick's location in a parked vehicle was just a tip from an "anonymous source."

As we’ve seen in other cases involving Stingrays, the government did everything it could in this case to hide the fact that it used a Stingray—from the court that issued the pen register/trap and trace order, the court that heard Patrick’s motion to suppress the evidence, and even from Patrick, himself. In police reports, the officers said only that they “‘obtained information’ of Patrick’s location; . . . had ‘prior knowledge’ that Patrick was occupying the vehicle; . . . [and] ‘obtained information from an unknown source’ that Patrick was inside the vehicle at that location.”

This charade continued through an evidentiary hearing, where the judge refused to allow the defense to coax more specific information out of the testifying officer.

[E]ven at an evidentiary hearing where officers admitted to cellphone tracking, they would only acknowledge, cryptically, that they’d received “electronic information” confirming Patrick was in the vehicle. When Patrick’s attorney asked what “electronic information” meant, the officer on the stand would say only that it involved “tracking [a] cell phone.” The judge cut off any further questioning at that point.

And that's where Katz-Lacabe's FOIA request played a significant role. Katz-Lacabe had obtained Stingray logs using Wisconsin's public records laws. Contained in those logs were Stingray deployments matching up to the government's tracking and locating of Damian Patrick. The government has now begrudgingly admitted as much, via a letter from the DOJ to the court regarding the Milwaukee Police Department's Stingray deployment.

Per our conversation last week, the government has determined that on October 28, 2013, the Milwaukee Police Department used a cell site simulator to locate Damian Patrick. At this time, we do not intend to seek leave to supplement the record pursuant to Federal Rule of Appellate Procedure 10.

The government is still arguing that the MPD complied with the Fourth Amendment, even if it never obtained a search warrant to deploy the Stingray. In any event, the affidavit it submitted (for what appears to be a pen register order, rather than a warrant) did not mention the use of a Stingray. Still, it argues no evidence should be suppressed… because circular reasoning.

[T]he government also argues it didn’t violate the Fourth Amendment in this case because it actually got a warrant—or maybe, in the alternative, the equivalent of a warrant (the police had a warrant to arrest (not search) Patrick and a court order (not a search warrant) to track Patrick’s phone). In a confusing and somewhat circular argument, the government asserts that because it submitted a “sworn affidavit” in support of its request for the pen/trap order, the order must have actually been a search warrant—if it hadn’t been a warrant, then it “wouldn’t have needed a finding of probable cause, which it contained.”

Dumping probable cause into a pen register application is a nice nod to the Fourth Amendment, but it's not required and it doesn't turn a court order into a warrant. An arrest warrant is not a search warrant, and it's likely the MPD would not have been able to serve its arrest warrant without the use of its Stingray-obscuring pen register order. The admission that Stingray surveillance should require the use of a warrant is, again, a nice nod to the Fourth Amendment, but it means nothing if that's not how the Milwaukee PD actually operates. And, yet again, the long battle to uncover evidence of Stingray tracking makes it clear the PD is hiding this information from judges when applying for court orders and warrants.

Filed Under: imsi catcher, milwaukee, milwaukee pd, police, secrecy, stingrays
Companies: aclu, eff