White House Warns Congress To Stop Its Sneak Attacks On Net Neutrality

from the duopoly-defenders dept

For most of the last year, the House has desperately been trying to punish the FCC for standing up to ISPs on net neutrality. This has included an endless number of taxpayer funded "accountability" hearings designed to shame the agency, as well as attempts to gut FCC authority and funding via sneaky budget riders. The latest example is the House Appropriations Committee's 29-17 vote to approve an FCC appropriations bill (pdf), part of a larger Financial Services Bill determining the 2017 budgets for multiple agencies. That bill not only dramatically reduces the FCC budget, but tries to hamstring net neutrality rule enforcement.

Apparently growing tired of these kinds of sneak attacks, the White House last week was forced to issue a statement of administration policy (pdf) lamenting the use of "highly problematic ideological provisions" in budget bills aimed at stopping regulators overseeing multiple sectors from doing their jobs. Specifically, the White House defends the FCC's net neutrality plan, noting that bureaucratic sneak attacks will not be able to undermine an agency vote and the support of millions of Americans:

"For almost a century, U.S. law has recognized that companies who connect Americans to the world have special obligations not to exploit the monopoly they enjoy over access in and out of Americans' homes or businesses. It is common sense that the same philosophy should guide any service that is based on the transmission of information—whether a phone call, or a packet of data. The FCC's rules recognize that broadband service is of the same importance, and must carry the same obligations as so many of the other vital services do.

These carefully-designed rules have already been implemented in large part with little to no impact on the telecommunications companies making important investments in the U.S. economy, and would ensure that neither the cable company nor the phone company would be able to act as a gatekeeper, restricting what Americans can do or see online. The appropriations process should not be used to overturn the will of both an independent regulator and millions of Americans on this vital issue.

The White House also takes a moment to slam the House attempt to kill the FCC's plan to bring competition to the cable box. Specifically, the statement complains how budget riders would have forced the plan into permanent committee purgatory:

"The Administration opposes section 636 that aims at delaying the FCC from adopting or enforcing new rules to open the video set-top box market to additional competition. Currently, 99 percent of cable and satellite TV consumers rent set-top boxes directly from the cable providers, costing households an average of $230 per year. The FCC is already committed to a lengthy, thorough rulemaking process that would establish a robust record of comment and analysis from companies, non-profit organizations, and academics. The current provision unnecessarily interferes with these long-established processes by requiring a delay of at least 270 days, and probably much longer, and a redundant, potentially costly study."

Again, the politicians opposing both of these FCC initiatives breathlessly claim they're only concerned about government "overreach." In reality, campaign contributions simply have them tripping over themselves to see who can best defend the nation's telecom duopolists from the faintest specter of competition and accountability. The White House statement makes it abundantly clear these sneak attacks will be vetoed, meaning that while they may be cathartic for net neutrality opponents trying to protect AT&T, Comcast and Verizon from the will of the public, they aren't likely to be effective.

With the net neutrality rules now on solid legal ground and an appeal victory seen as unlikely, net neutrality opponents only have one real way to weaken the rules: elect a president sure to stock the FCC with revolving door regulators who'll refuse to actually enforce them.

Filed Under: broadband, congress, net neutrality, white house

President Obama Threw A Cyberwar.... And No One Showed Up

from the firing-off-a-blank-check-from-the-'Executive-Order'-account dept

Last spring, in the wake of the Sony hack, President Obama threw a cyberwar. And no one showed up.

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.

Filed Under: administration, cybersecurity, cyberwar, executive order 13694, president obama, white house

After Only Nine Months On The Job, Administration's New FOIA Boss Calls It Quits

from the less-time-than-it-commonly-takes-to-fill-a-FOIA-request dept

Josh Gerstein at Politico brings us that news that James Holzer will step down from his position as the director of the Office of Government Information Services (OGIS) and return from whence he came: the Department of Homeland Security.

James Holzer took over last August as director of the Office of Government Information Services, which serves as an ombudsman between federal agencies and FOIA requesters. The office also conducts audits of agencies' FOIA operations and proposes ways to streamline those processes.

Two sources said Holzer is returning to a position at the Department of Homeland Security, where he worked before joining OGIS, a part of the National Archives.

Depending on where you sit, Holzer was either the perfect pick for FOIA work or the worst.

For FOIA requesters, Holzer was anything but. His former (and now current) agency has a terrible FOIA track record. That this background would somehow result in his promotion to a position meant to facilitate FOIA requests was inexplicable.

Unless you're the White House, in which case, he was the best man for the job.

This administration doesn't care much for transparency. Elevating someone from an agency with a history of ineptness and recalcitrance only makes sense -- if what you want is for "facilitation" to mean little more than looking busy while status remains quo.

For those seeking improvements in FOIA responses, Holzer was less than ideal. "Fox in the henhouse" was one of the kinder depictions of Holzer and his new position as go-between for federal agencies and FOIA requesters.

Despite the doubts raised about his capability or interest, Holzer actually appeared to be doing what he was supposed to do -- which makes it surprising (or unsurprising -- see above) that he didn't even stick it out for an entire year.

"It’s difficult to imagine that he wasn’t asked for at least a one-year commitment in order to take such a position so it's remarkable his tenure lasted no more than nine months," said Dan Metcalfe, director of the Collaboration on Government Secrecy at American University's law school.

While OGIS's efforts to mediate between requesters and agencies have been challenging, the unit has gotten high marks for its reviews of agency FOIA offices. "OGIS certainly has continued its superior work during the last nine months," Metcalfe said.

The lack of comment from anyone makes it unclear whether Holzer was ousted by the administration for being too efficient or that he found swimming against the secrecy stream to be exhausting. With his return to the DHS, we can probably expect a return to the FOIA mean, which entails such things as declaring FOIA clearinghouse MuckRock to be a "non-journalistic" entity (to maximize FOIA fees collected) and overseeing dubious efforts like clearing FOIA backlogs by dumping requests into file boxes and throwing them on shelves in some darkened warehouse.

Filed Under: foia, james holzer, obama administration, transparency, white house

The Proper Channels For Whistleblowers Are Still A Joke

from the like-a-big,-dysfunctional-family...-fighting-over-a-will dept

This administration has made it clear whistleblowing isn't tolerated. It has prosecuted more whistleblowers than all other administrations combined. It's even planning a "Welcome Home" prosecution for the nation's most famous whistleblower -- Edward Snowden -- should he ever decide to return to the US.

Officials, of course, claim to love whistleblowing. That seems to be the main objection raised to Snowden's activities: "If only he'd gone through the proper channels, we wouldn't be seeking to jail him the moment he returns to American soil (or the soil of any country with a favorable extradition policy)."

But there are no official channels -- or, at least, no channels whistleblowers feel safe using.

Foreign Policy has the story of another NSA whistleblower the agency has chosen to make miserable rather than investigate the source of her complaints. It started with an FBI raid of her house -- something she found out via a phone call from an FBI agent already in her house. From there, it got worse.

“They suspended my clearances without giving me any reason,” she remembers. She wasn’t allowed at work, and for two years, the NSA made her “call every day like a criminal, checking in every morning before 8.” Khorasani went to the agency only for interrogations, she says: eight or nine sessions that ran at least five hours each. She was asked about her family, her travel, and her contacts.

This was all triggered by a meeting she set up with Thomas Drake -- another famous whistleblower prosecuted by this administration -- about how to follow through with a complaint about what she felt was an unfair reassignment. According to Drake, it was already too late.

“He said, ‘You’ve got the bull’s-eyes on you. You’re done,’” Khorasani recalls.

As the article points out, her story is one of several. The agency -- and the administration -- have made no meaningful distinction between whistleblowing and insider threats. They treat both in the same way, even if one is an integral part of government accountability. Anything the agency considers to be a threat, it handles with swift severity.

Individuals can find their clearances yanked, something that is signalled to other NSA employees with a red security badge, rather than the normal blue one. Employees are encouraged to report anything questionable about other employees to supervisors. Some employees aren't even employees. They're plants put in place to encourage incriminating statements or actions.

This isn't doing the NSA -- and dozens of other government agencies -- any favors. Talented people are leaving because they don't want to work in this environment. Potential employees are looking elsewhere for work. And still others are being forced out of a job because they aren't willing to simply shut up when they see something that bothers them.

The DOJ is no different. It's no fan of whistleblowers either. Unfortunately for it, it's not a national security agency so it can't maintain quite as much control over disclosures by whistleblowers. That's why it's been fighting legislators over whistleblower protection proposals. Marcy Wheeler has highlighted some of its objections to Senator Grassley's legislation, raised in recent testimony in front of a Congressional committee.

First off, it apparently feels too many of the proper channels are out of its direct control.

[A]s Attorney General Loretta Lynch revealed, DOJ is worried that permitting FBI Agents to report crimes or waste through their chain of command would risk exposing intelligence programs.

"What I would say is that as we work through this issue, please know that, again, any concerns that the Department raises are not out of a disagreement with the point of view of the protection of whistleblowers but again, just making sure that the FBI’s intelligence are also protected at the same time."

I suspect (though am looking for guidance) that the problem may be that the bill permits whistleblowers to go to any member of Congress, rather than just ones on the Intelligence Committees. It’s also possible that DOJ worries whistleblowers will be able to go to someone senior to them, but not read into a given program.

It's also likely concerned that whistleblowers will expose a number of questionable activities.

Still, coming from an agency that doesn’t adequately report things like its National Security Letter usage to Congress, which has changed its reporting to the Intelligence Oversight Board so as to exempt more activities, and can’t even count its usage of other intelligence programs, it seems like a tremendous problem that DOJ doesn’t want FBI whistleblowers to have protection because it might expose what FBI is doing on intelligence.

The FBI must be severely damaged at this point, or have too many secrets it would hate to see fall into the hands of legislators not connected to its mostly-captive audience in the Intelligence Committee. Grassley noted one of the agency's objections to additional whistleblower protections is that there's so damn much about the agency employees would complain about.

One of the issues that your department has raised is that allowing FBI employees to report wrong-doing to their chain of command could lead to too many complaints. You know? What’s wrong with too many complaints? … Seems to me you’d invite every wrong doing to get reported to somebody so it could get corrected.

If there's any agency that is sorely in need of some periodic deep housecleaning, it's the FBI.

This is the FBI! Not only a bureau that has tremendous power over people, but also one with a well-documented history of abuse. It should be the first entity that has whistleblower protection, not the last!

This is why there aren't more whistleblowers. The "proper channels" at the NSA will most likely net a whistleblower a search of their house and belongings en route to a forced resignation. Meanwhile, the FBI, with the DOJ's backing, is trying to narrow the reporting channels so it can -- like its NATSEC big brother -- eliminate unhappy employees before they can do any damage.

Filed Under: insider threats, leakers, nsa, proper channels, whistleblowers, white house

Reporter Makes FOIA Request For Obama's Game Of Thrones Screeners

from the yeah,-that's-not-going-to-work dept

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.

Filed Under: copyright, foia, game of thrones, president obama, public records, white house

White House Threatens To Veto Bill Attempting To Gut Net Neutrality, Defang FCC

from the sing-for-your-supper dept

As we just noted, the House has been pushing yet another bill that attempts to punish the FCC for its uncharacteristic new habit of actually standing up to giant ISPs. The "No Rate Regulation of Broadband Internet Access Act" (pdf) professes to be a bill focused on curtailing government run amok; with a particular eye on preventing the FCC from being able to regulate broadband rates (not-coincidentally just as ISPs begin heavily pursuing usage caps). But the bill uses a unique definition of "rate regulation" to, in reality, ban the FCC from doing, well, pretty much anything.

Given that in the last year-and-a-half the FCC has passed neutrality laws, finally stood up for municipal broadband, raised the definition of broadband to 25 Mbps (to emphasize competitive shortcomings), and is now pondering both new broadband privacy rules and opening the captive cable set top box market to competition, you can kind of see why the bill was a priority for both large ISPs and their Congressional allies. Stopping this new, uncharacteristically pro-consumer and pro-competition FCC has become a priority.

Bills like this one do a great job riling up those upset about numerous, other instances of actual government overreach -- especially folks that don't understand the broken telecom market or the nuances of net neutrality, or that the FCC under Tom Wheeler has actually been doing some non-idiotic things for arguably the first time in twenty years. But such bills are empty showmanship in that they require a President's signature to pass.

And according to a new statement of administration policy by the White House (pdf), that's simply not happening:

"H.R. 2666 is overly broad and extends far beyond codifying the FCC's forbearance from applying provisions of the Communications Act related to tariffs, rate approval, or other forms of utility regulation. Even as amended, H.R. 2666 would restrict the FCC's ability to take enforcement actions to protect consumers on issues where the FCC has received numerous consumer complaints. The bill also would hamstring the FCC's public interest authority to review transactions....If the President were presented with H.R. 2666, his senior advisors would recommend that he veto the bill."

There remains only a few ways to defang the FCC and/or truly gut net neutrality.

ISPs could get Congress to pass a new law that enshrines net neutrality rules that are weaker than what the FCC has proposed, though Senators John Thune and Representative Fred Upton tried this and it went nowhere. ISPs could also still win the ongoing lawsuit against the FCC, which would gut some or all of the rules (a ruling is expected shortly). Or ISPs could work to elect a President who opposes net neutrality and will set about making sure the FCC returns to its more traditional role of being a toothless, gutless, shell of a regulator dedicated to protecting the telecom status quo.

The House, of course, knows their options are limited, and that bills like this -- and the constant parade of taxpayer-funded FCC "fact finding" hearings -- don't actually accomplish anything. They do, however, rile up the uninformed, and do a fine job reminding giant telecom companies that Congress is ready and willing to dance on command for continued telecom campaign contributions.

Filed Under: congress, enforcement, fcc, net neutrality, veto, white house

Back Door Legislation Won't Have The White House's Support (Nor Its Opposition, Most Likely)

from the punting dept

Senators Dianne Feinstein and Richard Burr have been talking about legislation that forces tech companies to help law enforcement break into encrypted devices for quite a while now. Nearly a month ago, they suggested it was almost ready to be formally introduced, but indicated that the White House's response would determine when exactly that happened.

Now, Reuters is reporting that sources in the administration told them backdooring encryption will not have the President's support, adding another question mark to when we'll actually see this bill (though there's a chance it will show up this week).

Although the White House has reviewed the text and offered feedback, it is expected to provide minimal public input, if any, the sources said.

Its stance is partly a reflection of a political calculus that any encryption bill would be controversial and is unlikely to go far in a gridlocked Congress during an election year, sources said.

A White House spokesman declined to comment on the pending legislation, but referred to White House press secretary Josh Earnest's statements on encryption legislation. Last month, Earnest said the administration is "skeptical" of lawmakers' ability to resolve the encryption debate given their difficulty in tackling "simple things."

This isn't entirely surprising, as the administration has suggested it won't support such legislation since as far back as September when a leaked document outlined their options for responding to the debate. That document, too, seemed primarily concerned with "political calculus" and what the reaction would be in the public and congress to different versions of "not supporting" the bill, ranging from standing up for the actual truth to punting on the whole issue. In October, they decided to stay silent, though the President has since trotted out the same problematic arguments about compromise and absolutism that we've heard from many politicians.

Now, with the issue refusing to die and Burr and Feinstein's bill perpetually on the horizon, it looks like the White House is going to stick to its silence with "minimal public input" and see what happens. Given the current political climate, and the fact that any such bill almost certainly doesn't stand a chance of passing, this isn't exactly shocking — but it's still disappointing. As we noted last year, when your options include "take a clear stance on the right side of the issue", you shouldn't really need to consider alternatives. The President's open disapproval may not be necessary to prevent the bill from moving forward, but it would go a long way to convincing technology companies and the privacy-aware public that the administration genuinely understands the issue and will fight for what's right.

Filed Under: dianne feinstein, encryption, obama, privacy, white house

White House Begins To Realize It May Have Made A Huge Mistake In Going After Apple Over iPhone Encryption

from the not-the-debate-we-wanted dept

One of the key lines that various supporters of backdooring encryption have repeated in the last year, is that they "just want to have a discussion" about the proper way to... put backdoors into encryption. Over and over again you had the likes of James Comey insisting that he wasn't demanding backdoors, but really just wanted a "national conversation" on the issue (despite the fact we had just such a conversation in the 90s and concluded: backdoors bad, let's move on.):

My goal today isn’t to tell people what to do. My goal is to urge our fellow citizens to participate in a conversation as a country about where we are, and where we want to be, with respect to the authority of law enforcement.

And, yet, now we're having that conversation. Very loudly. And while the conversation really has been going on for almost two years, in the last month it moved from a conversation among tech geeks and policy wonks into the mainstream, thanks to the DOJ's decision to force Apple to write some code that would undermine security features on the work iPhone of Syed Farook, one of the San Bernardino attackers. According to some reports, the DOJ and FBI purposely chose this case in the belief that it was a perfect "test" case for its side: one that appeared to involve "domestic terrorists" who murdered 14 people. There were reports claiming that Apple was fine fighting this case under seal, but that the DOJ purposely chose to make this request public.

However, now that this has resulted in just such a "national conversation" on the issue, the DOJ, FBI and others in the White House are suddenly realizing that perhaps the public isn't quite as with them as they had hoped. And now there are reports that some in the White House are regretting the decision to move forward and are experiencing this well known feeling: According to the NY Times:

Officials had hoped the Apple case involving a terrorist’s iPhone would rally the public behind what they see as the need to have some access to information on smartphones. But many in the administration have begun to suspect that the F.B.I. and the Justice Department may have made a major strategic error by pushing the case into the public consciousness.

Many senior officials say an open conflict between Silicon Valley and Washington is exactly what they have been trying to avoid, especially when the Pentagon and intelligence agencies are trying to woo technology companies to come back into the government’s fold, and join the fight against the Islamic State. But it appears it is too late to confine the discussion to the back rooms in Washington or Silicon Valley.

While the various public polling on the issue has led to very mixed results, it's pretty clear that the public did not universally swing to the government's position on this. In fact, it appears that the more accurately the situation is described to the public, the more likely they are to side with Apple over the FBI. Given that, John Oliver's recent video on the subject certainly isn't good news for the DOJ.

Either way, the DOJ and FBI insisted they wanted a conversation on this, and now they're getting it. Perhaps they should have been more careful what they wished for.

Filed Under: discussion, encryption, fbi, going dark, iphone, national conversation, national debate, public conversation, publicity, white house
Companies: apple

Administration Grants FBI More Raw Access To NSA Data Just As FBI Claims To Be Implementing New Minimization Procedures

from the offsetting-fouls? dept

Spencer Ackerman of the Guardian was the first to report the news -- what there was of it -- that the FBI's rules governing its access to data collected by the NSA have changed. To what exactly, no one knows. Neither agency is offering any details.

The classified revisions were accepted by the secret US court that governs surveillance, during its annual recertification of the agencies’ broad surveillance powers. The new rules affect a set of powers colloquially known as Section 702, the portion of the law that authorizes the NSA’s sweeping “Prism” program to collect internet data. Section 702 falls under the Foreign Intelligence Surveillance Act (Fisa), and is a provision set to expire in 2017.

A government civil liberties watchdog, the Privacy and Civil Liberties Oversight Group (PCLOB), alluded to the change in its recent overview of ongoing surveillance practices.

As of 2014, there were few limits to the FBI's access to NSA data. The PCLOB expressed its concerns at that time. Apparently, things have improved, but no one's willing to detail the additional restrictions. We're just expected to believe they're in place.

[T]he PCLOB’s new compliance report, released last month, found that the administration has submitted “revised FBI minimization procedures” that address at least some of the group’s concerns about “many” FBI agents who use NSA-gathered data.

“Changes have been implemented based on PCLOB recommendations, but we cannot comment further due to classification,” said Christopher Allen, a spokesman for the FBI.

Other spokespeople had similar nods of "yes, more restrictions" to add and even hinted that these new limits may be made public at some point. Heartening news… perhaps. We don't know how expansive the data-sharing was prior to the new guidelines and we still don't know how scaled back it will be post-restrictions.

For that matter, it seems as though the new limits will be largely offset by the administration's earlier announcement that the FBI would have more access to NSA data.

The Obama administration is on the verge of permitting the National Security Agency to share more of the private communications it intercepts with other American intelligence agencies without first applying any privacy protections to them, according to officials familiar with the deliberations.

The change would relax longstanding restrictions on access to the contents of the phone calls and email the security agency vacuums up around the world, including bulk collection of satellite transmissions, communications between foreigners as they cross network switches in the United States, and messages acquired overseas or provided by allies.

So, on one hand, the FBI is claiming that its backdoor search permissions have been dialed back, but that comes roughly two weeks after the administration announced its plans for expanded data sharing. What's being scooped up under national security authority is being used for plain vanilla law enforcement. Not only can the FBI access the NSA's collections (and it has been... for several years now), but it can pass info it finds down the line to local law enforcement agencies. Any minimization procedures put in place by the FBI at the suggestion of the PCLOB may still be there, but the agency itself will be given unminimized access to NSA data hauls.

What does this rule change mean for you? In short, domestic law enforcement officials now have access to huge troves of American communications, obtained without warrants, that they can use to put people in cages. FBI agents don’t need to have any “national security” related reason to plug your name, email address, phone number, or other “selector” into the NSA’s gargantuan data trove. They can simply poke around in your private information in the course of totally routine investigations. And if they find something that suggests, say, involvement in illegal drug activity, they can send that information to local or state police. That means information the NSA collects for purposes of so-called “national security” will be used by police to lock up ordinary Americans for routine crimes. And we don’t have to guess who’s going to suffer this unconstitutional indignity the most brutally. It’ll be Black, Brown, poor, immigrant, Muslim, and dissident Americans: the same people who are always targeted by law enforcement for extra “special” attention.

The rule change will basically codify the FBI's backdoor searches, making it that much tougher to challenge in court. Not only that, but the NSA's overwatch of the data lends everything collected just enough "national security" interest to make evidence collected unavailable to defendants and will encourage even more parallel construction by law enforcement agencies.

The "incidental" collection of Americans' communications and data will no longer be just a regrettable part of the "collect it all" approach. It will be a feature, rather than a bug. Local law enforcement agencies can't do much to pursue overseas suspects but they will be very interested in anything pulled from NSA haystacks that falls into their jurisdictions. If the FBI has actually beefed up its minimization policies -- as the Guardian's article suggests -- then it will have nothing to pass along. The agency may actually have more restrictive policies now, but the administration's proposal would effectively give the FBI a reason to ignore them.

Furthermore, the new expansion of sharing actually does very little to expand domestic law enforcement use of NSA collections. The FBI has been able to do this since 2002, when the FISA Court granted the Bush administration its request for expanded sharing. The Bush team expanded this again in 2008 and the Obama administration has been at work on the logistical framework and codification of ongoing domestic surveillance.

The FBI may have new minimization procedures but they only kick in after it's already helped itself to the NSA's raw data. Since it has the permission to pass information along for law enforcement purposes, the only entities that may see only minimized data will be much further down the line.

Filed Under: data, minimization, nsa, surveillance, white house

White House Apparently Not Necessarily In Agreement With FBI's Position On Encryption Backdoors

from the say-something-dammit dept

There is a (reasonable) tendency to argue that in this big fight over encryption backdoors and "going dark" and "should Apple help the FBI" to assume that the various DOJ/FBI efforts to force backdoors into encryption are the official position of the Obama administration. After all, the Justice Department is a part of the administration and the head of the DOJ, Attorney General Loretta Lynch, reports to President Obama. And the FBI is a part of the DOJ. But it's also been quite clear for some time that there are a variety of opinions within the White House on these issues, with many outside of the DOJ not supporting backdooring encryption at all. In fact, many are actively opposed to such ideas. And now it's reaching the stage where people are starting to push stories that the White House is not at all happy with FBI Director James Comey and his crusade on this issue.

With regards to the Apple standoff, "It's just not clear [Comey] is speaking for the administration," said Richard Clarke, a former White House counterterrorism and cybersecurity chief. "We know there have been administration meetings on this for months. The proposal that Comey had made on encryption was rejected by the administration."

[....]

"I have been very surprised at how public and inflammatory, frankly, the FBI and the Justice Department’s approach has been on this," said Chris Finan, a former National Security Council cybersecurity adviser.

"That doesn't tend to be the administration’s preferred approach to handling things."

There are a lot more quotes in the article suggesting similar things (and also discussing FBI issues beyond just the Apple/encryption debate).

Indeed, back last fall, we noted that leaked documents showed that many in the White House did not agree with Comey or the FBI on this issue -- and some pushed for a public statement opposing backdooring encryption. Unfortunately, the administration later took the cowardly approach of agreeing not to push for legislation, but refusing to take a strong public stance on the issue, because they didn't want to anger the law enforcement community. So, instead, you have the DOJ and FBI -- representatives of the administration -- now running wild, pushing dangerous legal theories that will undermine key elements of computer security, and lots of people think that's the administration's official position.

The White House failed badly in not taking a public stance on this months ago, and it should fix that now.

Filed Under: backdoors, doj, encryption, fbi, james comey, loretta lynch, white house