The FBI Seems To Be Leaking Like A Sieve Concerning Details Of Clinton Email Invesgitation

from the aren't-they-supposed-to-keep-this-stuff-secret? dept

Okay, look, let's face the fact that any time we write about anything having to do with either Hillary Clinton or Donald Trump, people in the comments go nuts accusing us of being "in the tank," or "shills." or even (really) "up the ass" of one candidate or the other (and, yes, this has happened with both of the major party candidates). I'm assuming it will happen again with this post, even though it's not true. As should be abundantly clear, we're not big fans of either choice (and don't get us started on the third parties...). So when we talk about one, the other (or even both together), it's not because we're "biased" or trying to help or hurt one or the other. We're just doing the same thing we always do, and which we never had a problem with before, which is reporting on policy related issues having to do with technology, free speech, the 4th amendment, law enforcement, etc. So, before you rush in to yell at us in the comments, please consider that maybe just because we're not toeing the party line on your preferred candidate, maybe it's not because we're in the tank for the other one.

Anyway... I know there's been plenty of discussion going on about FBI Director Jim Comey's letter from last week to members of Congress about the state of the Clinton email investigation, which happened due to discoveries during the unrelated investigation into Anthony Weiner's apparent sexting. We also explored the questionable nature of Comey's actions based on the law and previous precedent (though we also mocked both Republicans and Democrats who seemed to completely flip flop their praise/hatred of Comey from the July announcement about not enough evidence against Clinton to Friday's announcement). That one really set off some people, despite our reporting on Comey's questionable behavior in office dates way back to basically when he first got the job.

But here's the thing that got me. Comey's letter on Friday had basically no details at all. Here's what it said again:

In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.

Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.

There's very little actual information in those two short paragraphs. Almost none, in fact. And yet, we now know a ton about what's going on, including all of the following:

• The "unrelated investigation" is the investigation into Anthony Weiner for allegedly sexting an underage girl.
• The emails that the FBI found were on "a device" or "devices" that belonged to Weiner and/or his estranged wife/Clinton aide Huma Abedin
• The FBI actually found these emails months ago, but didn't tell Comey until last Thursday.
• The FBI hadn't actually read the emails because it didn't have a warrant
• The FBI got a warrant over the weekend.
• It is not believed the emails in question were directly from Clinton
• Before sending a letter Comey sent an internal memo to FBI staff about his decision
• Many in the DOJ are upset about Comey sending the letter

Whether or not you believe that list or not -- or whether or not you think there are other things on that list -- what's striking to me is just how much information is easily leaking out of the FBI about a criminal investigation, especially when that investigation is supposedly, in part, about whether or not Clinton's ridiculously negligent handling of sensitive information may have been revealed to hostile parties. Doesn't it seem the least bit bizarre that the FBI, in an investigation about sensitive information, can't seem to help but leak basically all of the relevant details on an investigation?

There are, really, two issues here. Given how much of this information leaked, almost all of it within hours of the letter being made public, why didn't Comey and the FBI just come out and say all of this in the first place? The second, is how the hell can the FBI -- the very same FBI that frequently refuses to comment about "ongoing investigations" -- have any credibility in the future when it refuses to comment on other ongoing investigations. Not only did Comey comment in a way he knew would be made public, the FBI had no problem leaking basically all of the details. Everything about how this went down is bizarre, but the most bizarre part -- which seems to be getting the least attention -- is that the FBI seems to have no problem at all selectively leaking a ton of information about an ongoing investigation when it suddenly wants to do so, despite the fact that it regularly refuses to do so in all sorts of other cases. I don't put much stock in the claim, making the rounds, that the FBI deliberately refused to take part in the administration's decision to claim that Russia was behind various hacks, by arguing that it was "too close to the election," but we do know of plenty of historical cases where the FBI refuses to comment publicly on investigations or reveal any information at all. So why is it leaking like a sieve this time around?

Filed Under: emails, fbi, hillary clinton, investigations, james comey, leaks

Legislators Demand Answers From DOJ On Expanded Hacking Powers It's Seeking

from the the-first-rule-of-the-new-Rule-41:-there-are-no-rules dept

There's only a couple of months left until the DOJ's proposed Rule 41 changes become law. All Congress has to do is nothing. This is a level of effort Congress is mostly amenable to. If this becomes law, worldwide deployments of malware/spyware during investigations will be unable to be challenged in court. In addition, the DOJ wants to be part of the cyberwar. It's seeking permission to remotely access zombie computers/devices used in cyberattacks to "clean" them.

The rule changes would also add a presumption of guilt to an activity performed by millions of computer users around the world:

Opponents of the pending change to Rule 41 say that it unlawfully confers a new authority that changes substantive rights. First off, they contend that it adds a criminal taint to a perfectly legal practice: using location to cloak your location.

“There are countless reasons people may want to use technology to shield their privacy,” wrote the Electronic Frontier Foundation earlier this year. “From journalists communicating with sources to victims of domestic violence seeking information on legal services, people worldwide depend on privacy tools for both safety and security.”

The DOJ has argued that these Rule 41 amendments are just "clarifications" of existing law:

“The amendment would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law,” the DOJ told Consumerist in May, noting that law enforcement would still need to demonstrate probable cause.

This statement obviously isn't true considering how many federal judges have agreed the warrant it used in the Playpen investigation exceeded existing jurisdictional limits.

Fortunately, there are legislators pushing back against the DOJ's proposed changes. Ron Wyden has sent a letter [PDF] to the DOJ -- co-signed by 22 other legislators -- asking for clarification on the DOJ's interpretation of the changes it's seeking.

One of the questions the group has is how the DOJ can produce probable cause to search thousands of devices.

Please describe any differences in legal requirements between obtaining a warrant for a physical search versus obtaining a warrant for a remote electronic search. In particular, and if applicable, please describe how the principle of probable cause may be used to justify the remote search of tens of thousands of devices. Is it sufficient probable cause for a search that a device merely be "damaged" and connected to a crime?

The letter also raises the issue of forum shopping. With jurisdictional limits removed, federal law enforcement officers are free to find judges more willing to sign off on their warrant requests, rather than being forced to work with those in the locality the alleged criminal activity took place.

The DOJ's proposed botnet cleaning efforts raise a whole set of new troubling questions, ones that Wyden and co. would like to see answered before allowing the rule changes to slide by unopposed. First, there's the question of unforeseen collateral damage -- efforts that hurt more than help.

We are concerned that the deployment of software to search for and possibly disable a botnet may have unintended consequences on internet-connected devices, from smartphones to medical devices. Please describe the testing that is conducted on the viability of "network investigative techniques" to safely search devices such as phones, tablets, hospital information systems, and internet-connected video monitoring systems.

Then there's the question about the proposed "cleaning" efforts. Under what authority will law enforcement break into Americans' computers and screw around with their software and hardware?

Will law enforcement use authority under the proposed amendments to disable or otherwise render inoperable software that is damaging or has damaged a protected device? In other words, will network investigative techniques be used to "clean" infected devices, including devices that belong to innocent Americans? Has the Department ever attempted to "clean" infected computers in the past? If so, under what legal authority?

Good questions. Hopefully, we'll see the answers sometime before December 31st.

Filed Under: congress, doj, fbi, hacking, oversight, rule 41

FBI Boss Blows Past Policies, Guidelines, His Own Staff To Bring Back Clinton Email Investigation

from the marching-to-the-beat-of-his-own-ridiculous-drummer dept

So, months after clearing Hillary Clinton's slate by deciding she was stupid rather than malicious, James Comey has again gone rogue, declaring there's something worth investigating in emails recovered from a sleazy ex-politician's computer. (Thus subverting the norm of recovering emails from a sleazy, CURRENT politician's computer…)

The timing is, of course, suspect. The FBI really isn't supposed to be announcing investigations of presidential candidates this close to Election Day. As Marcy Wheeler points out, there are guidelines Comey appears to be violating.

Jamie Gorelick (who worked with Comey when she was in DOJ) and Larry Thompson (who worked with Comey when Comey was US Attorney and he was Deputy Attorney General, until Comey replaced him) wrote a scathing piece attacking Comey for violating the long-standing prohibition on doing anything in an investigation pertaining to a political candidate in the 60 days leading up to an election.

It's not the law, but it's something. And until Comey decided to merge Weinergate into Emailgate, this guidance has been followed:

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

It would be a bit much to claim Comey wants to see Trump in the White House. But he apparently has no qualms about violating internal DOJ gentlemen's agreements, which should raise questions -- as Wheeler notes -- about what other policies or guidance Comey considers optional.

The reason you can't put this down as a move meant to damage Clinton's campaign is because that narrative already got used up when Comey refused to recommend prosecution for actions most other government employees wouldn't have walked away from. Suffice it to say, the reaction to Comey's latest announcement depicts partisanship at its best/worst.

So of course the Republicans that had been claiming Comey had corruptly fixed the investigation for Hillary immediately started proclaiming his valor and Democrats that had been pointing confidently to his exoneration of Hillary immediately resumed their criticism of his highly unusual statements on this investigation. Make up your minds, people!

While certain voters sort out their love/hate relationship with James Comey, the next question about broken rules applies to the emails themselves. The FBI seized Anthony Weiner's laptop to search for evidence of alleged communications between Weiner and a 15-year-old. In the course of doing that, agents came across emails between Clinton aides and Huma Abedin, Weiner's estranged wife.

Apparently without knowing the content of these emails, Comey went ahead and decided to alert Congress to the new details of the investigation. Oddly, this happened before the FBI even had a warrant to search those emails -- though it received one over the weekend. Even with the warrant in hand, it's not entirely clear the agency has the right to do that under the Fourth Amendment. The laptop's search and seizure isn't at all related to the (supposedly closed) Hillary Clinton email investigation.

Orin Kerr examines the issues thoroughly at the Volokh Conspiracy. As he sees it, the FBI can't legally expand its investigation for several reasons. Court decisions have suppressed evidence in cases where searches have uncovered evidence of other criminal activity not related to the investigation at hand. These emails are clearly unrelated to the messages sent from Weiner that the FBI was looking for.

The FBI may try to avail itself of the "plain view" exception, but this claim would be dubious at best.

The plain view exception does not allow evidence to be seized outside a warrant unless it is “immediately apparent” upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant.

Assuming the FBI hadn't already taken a peek, all that was known about these emails was that they involved a top Clinton aide. There could be no determination at that point that they contained classified or sensitive material. The Fourth Amendment doesn't (or at least shouldn't [stupid courts]) allow communications to be searched first in hopes of justifying the search after coming across some probable cause. The FBI needed to establish that first and it's unclear how it would do it without actually seeing the content -- though the fact that a court granted the warrant raises some questions about why.

Unfortunately, case law is nowhere approaching "settled" on the limits of digital searches. "Plain view" in regards to digital files is much harder to pin down. Some decisions have made it clear the government can't seize devices and look through everything in hopes of finding evidence of other criminal activity. Fishing expeditions are discouraged, but not every court has felt compelled to suppress evidence gathered in this fashion.

However that all shakes out, one thing is clear: James Comey is running the FBI like it's a one-man shop. He's managed to anger other FBI officials with his autonomous decisions and declarations. Marcy Wheeler notes in her post that the DOJ has shown it can't control Comey, and Comey himself -- in his letter to Congress -- suggested that if he didn't come forward with this, someone inside his agency would have leaked the information. So, the DOJ can't control Comey. Comey can't (or won't) control his own people. And Comey will continue to do things his way, no matter what collateral damage he may cause.

Filed Under: 4th amendment, anthony weiner, doj, emails, fbi, hillary clinton, huma abedin, investigation, james comey, warrant

FBI Investigating New Information Regarding Hillary Clinton... Because Of The Anthony Weiner Sexting Investigation

from the never-email dept

Hillary Clinton's use of a private email server (at times kept in her own basement...) has obviously been a big story during this campaign -- and for a variety of obvious, yet stupid, reasons, the discussion has become ridiculously partisan. What people should be able to admit on all sides of the debate is that Clinton's use of a private email server was incredibly stupid and, at the very least, calls into serious question the judgment of whoever told her this was okay. It also, almost certainly, put serious information at risk of being exposed through hacks. But, earlier this year, the FBI came out and said that it didn't actually break the law. There was a bit of the old "high court, low court" to this whole setup, because you could see how someone with much less fame or status would be nailed to the wall by the DOJ if they wanted to put that person away.

Either way, the surprise of today is the new announcement by James Comey that the FBI is investigating some new emails that were apparently discovered in an "unrelated case" on "a device." There were a couple of hours of speculation on this, with gradual denials -- not the Wikileaks investigation, not the Clinton Foundation investigation -- until it was revealed that it was from the investigation into Anthony Weiner's sexting. Law enforcement seized devices belonging to both Weiner and his then wife (they've since filed for divorce), Huma Abedin, who is a close Clinton aide (and who also had an email account on the private Clinton server). Other reports have noted that the emails aren't ones that were withheld from the original investigation, so it's not an issue of withholding info, but could potentially reveal issues about the motivations and setup of the private server.

In political circles this is raising eyebrows, coming just 11 days before the election, in a campaign where Clinton's opponent, Donald Trump, has repeatedly pointed to her use of an email server as a reason that she should be in jail, and even promising to appoint a special prosecutor to go after her for this (which, uh, actually isn't how the President is supposed to use that power, but...). Comey's letter doesn't go into much detail, though reporters have been getting more and more details. The letter was sent to a variety of people in Congress, on key committees, including the heads of the Intelligence, Judiciary, Oversight and Homeland Security committees.

Dear Messrs Chairmen:

In previous congressional testimony, I referred to the fact that the Federal Bureau of Investigations (FBI) had completed its investigation of former Secretary Clinton's personal email server. Due to recent developments, I am writing to supplement my previous testimony.

In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.

Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.

In a perfect world, this kind of story should lead to open discussions on better email technologies, email etiquette, encryption, over-classification and such. Instead, everyone's going to play political hacky sack with this one, with Clinton supporters arguing it's no big deal (though it is) and Trump supporters either feeling vindicated for earlier claims or arguing that the FBI failed to do its job properly before. This campaign has been nothing if not full of surprises.

Filed Under: anthony weiner, classification, emails, fbi, hillary clinton, huma abedin, james comey, security

Judge Orders FBI To Turn Over Information On How Many People Around The World It Snagged With Its Playpen NIT

from the malware-whereabouts dept

This might be big, depending on how much of this information is passed on to the general public, rather than delivered ex parte or under seal. Joseph Cox of Vice/Motherboard was the first to snag this ruling [PDF] by a Washington district court judge ordering the FBI to turn over tons of info about the NIT it deployed in the Playpen child porn investigation.

As we're already aware, the NIT was deployed by the FBI in Virginia but obtained identifying information about Tor-cloaked site visitors not just all over this country, but all over the world. The motion to compel discovery asked for several details about the NIT and its deployment and most of them have been granted.

Here's the full list (with additional commentary):

1. All records related to the Government’s review and approval of Operation Pacifier.

The Court has taken this discovery request under advisement. An order is soon forthcoming.

2. Copies of any reports made to the National Center for Missing and Exploited Children (NCMEC) regarding child pornography posted on the Playpen web site.

Defendants’ motions are granted.

3. Copies of any notifications that were sent to victims by the Government for obtaining restitution related to images that were posted on, or distributed from, the Playpen web site.

Defendants’ motions are granted.

4. The number of new images and videos (i.e. content not previously identified by NCMEC) that was posted on the site between February 20, 2015 and March 5, 2015.

Defendants’ motions are granted.

(This information -- whether or not actually useful in suppression motions -- should at least provide some insight into how much additional child porn made its way to site visitors as a result of the FBI's decision to seize [and act as administrators of] the server, rather than shut it down. Information obtained in other court cases suggests the FBI not only acted as hosts during the NIT deployment, but actually made the site faster and more responsive.)

5. The names of all agents, contractors or other personnel who assisted with relocating, maintaining and operating Playpen while it was under Government control.

Defendants’ motions are granted.

6. Copies of all notes, emails, reports, postings, etc. related to the maintenance, administration and operation of Playpen between February 20, 2015 and March 5, 2015.

Defendants’ motions are granted.

(Again, this info could confirm whether or not the FBI improved the child porn site's performance during its two-week turn as administrators, as well as provide additional insight into how much child porn distribution was aided and abetted by the agency.)

7. Copies of all legal memoranda, emails and other documents related to the legality of the FBI’s operation of Playpen (and the distribution of child pornography by the Government), including requests for agency/departmental approvals of the undercover operation of Playpen and any communications with Main Justice or the Office of General Counsel at the FBI.

The Court has taken this discovery request under advisement. An order is soon forthcoming.

(This would be the government's legal rationale for running a child porn site rather than shutting it down. Chances are this will remain under seal and is probably FOIA-proof, as most legal guidance documents are.)

8. Copies of all correspondence, referrals and other records indicating whether the exploit used in the Playpen operation has been submitted by the FBI or any other agency to the White House’s Vulnerability Equities Process (VEP) and what, if any, decision was made by the VEP.

The Court has taken this discovery request under advisement. An order is soon forthcoming.

(Little is known about the government's actual handling of the VEP. On one hand, we have public statements which pay lip service to not screwing US companies by hoarding vulnerabilities. On the other hand, we have the exact opposite in practice.)

9. Copies of invoices and other documents for the hosting facility/facilities where the Government operated the Playpen server, the server from which the Government delivered the NIT malware and the server that NIT targets sent their identifying information back to, including documents revealing whether the Government informed the hosting provider(s) that child pornography would be stored in their facility or transmitted over their networks.

Defendants’ motions are granted. To the extent that the Playpen hosting provider was the Government, not a private party, it appears there may not be much discovery responsive to this request.

(There may be nothing here. Or there could be third party hosts involved who were never informed about their participation in the FBI's sting operation. If so, fun times ahead for the US government.)

10. The number of Playpen-related investigations that have been initiated but did not result in criminal charges, beyond the approximately 200 cases now pending across the country.

Defendants’ motions are granted.

(Another can of worms the FBI would probably like to remain closed. According to the government's own arguments in these cases, users would have connected to the site for a single purpose: to engage in criminal activity. A lack of charges would be a surprise and somewhat undermine the government's assertions about the criminal intent of visitors to the site.)

11. The total number of IP addresses and MAC IDs that were seized during the time the FBI was operating Playpen, over and above those related to these approximately 200 pending cases.

Defendants’ motions are granted.

12. The number of IP addresses and MAC IDs obtained during the investigation from foreign computers and the countries in which this data was obtained.

Defendants’ motions are granted.

(These are the potential goldmine. This will show how far-flung the FBI's net actually was, as well as provide more ammo for suppression motions predicated on Rule 41 jurisdictional limitations. The FBI is well aware it can't perform searches outside the jurisdiction covered by the warrant, but it chose to do so anyway. So far, its evidence has mostly held up, thanks to courts deciding suppression isn't the correct remedy, or crediting the FBI for unearned "good faith." The FBI and DOJ are pushing for changes to Rule 41 that eliminate the jurisdictional limits, so it's disingenuous for the agency to claim its agents acted in good faith when securing the warrant.)

This now becomes the Playpen case to watch, even if most of this information is likely to remain in the hands of defense lawyers only. Dismissal and suppression motions will contain references to the content of these documents, however, which will shed more light on the FBI's NIT deployment and its child porn site administration.

Filed Under: doj, eavesdropping, fbi, malware, nit, playpen, rule 41, warrants

NSA Says Federal Cyber Strategy Needs More NSA More Often, And On The Information Sharing Ground Floor

from the cyber-me-once,-shame-on-me... dept

The NSA doesn't like the fact that it didn't get a big enough slice of the tax-dollar-grabbing cyber pie. After much discussion about which agencies would oversee what aspects of the US government's cyberwar defense systems, the NSA -- despite all of its computing power and hoarded exploits -- ended up with the unenviable task of protecting the home turf rather than engaging in more offensive maneuvers.

Currently, the NSA has responsibility for protecting U.S. government IT systems that carry classified or sensitive data — like the Department of Defense’ massive intranet known as NIPRNet.

It's a clear case of cyber envy. The DHS gets all the good stuff, including a first look at any juicy data turned over to it from the government's one-way "information sharing" program.

But the security of most civilian federal IT systems — and the private sector networks that support the functioning of vital industries like banks and telecoms — are the responsibility of DHS’ Office of Cybersecurity and Communication…

The DHS is supposed to vet and minimize this information before passing it along to federal cybersecurity partners like the NSA. The NSA, however, isn't used to seeing unminimized data. Nor is it content to hang out underneath the DHS's cybertable and wait for it to toss it a bone. So, it's proposing a revamping of the federal government's cyber strategies so that they align more closely with what the NSA apparently feels should have been done in the first place.

“I’m now firmly convinced that we need to rethink how we do cyber defense as a nation, possibly even going so far as that we unite pieces of those three organizations into one organization that does it on behalf of the whole government,” said Curtis Dukes, the NSA’s deputy national manager for national security systems.

Yeah! That's how a partnership is supposed to work: the NSA seated in the same room with the DHS and law enforcement agencies, with everyone comparing the size of their information silos. Excellent. Dukes says he might be a "bit biased" in placing the NSA on equal footing with domestic security and law enforcement agencies, but cyber lives are at stake, dammit!

Dukes said the “bad news” was, with every cyber intrusion becoming a potential crime scene, meaning the FBI had to be involved, and with the DHS in charge, “as we orchestrate across those three department and agencies what we find is that we’re suboptimal and by the time we actually respond to an intrusion, it takes hours to days and by then in cyber time, the adversary has already met their objective.”

Figuring out under whose authorities an incident response should be run meant giving the enemy a head start, he said. “By the time we fill out the paperwork that would allow NSA to provide assistance, it’s typically days to a week before we can actually respond,” he added.

Wonderful. Exigent circumstances but for domestic snooping.

The NSA wants first access to private sector communications and data because the current method takes too long to get the data into the NSA's hands. That's the pitch. Never mind the fact that the NSA is supposed to be an intelligence service tasked with collecting FOREIGN communications and data. Never mind the fact that the agency exploited post-9/11 terrorism fears to become a domestic surveillance agency that turned the Third Party Doctrine into a loophole to be exploited in bulk. Never mind that it simply makes more sense to route domestic security-related data to the the domestic agencies (DHS, FBI, etc.) for several reasons, not the least of which are (at least) two Constitutional amendments (First, Fourth).

But there you have it: the NSA is lobbying for first peek at shared data from US companies, and it's claiming its only interest is better cybersecurity. And it's making this pitch while glossing over the fact that it is not -- and never has been -- a domestic law enforcement agency. Somehow, it still feels it's entitled to act like one and engage in even more domestic snooping.

Filed Under: cybersecurity, dhs, doj, fbi, nsa, surveillance

FBI Director: We Need More Data On Police Shootings So Law Enforcement Can 'Change The Narrative'

from the it's-not-about-accountability,-it's-about-control dept

FBI Director James Comey didn't dig into his bag of "Ferguson Effect" rhetorical devices during his comments to a law enforcement conference on Sunday, but he came close. Under that theory, the possibility of being held accountable by citizens and their recording devices has apparently been holding officers back from enforcing laws, making arrests, or otherwise earning their paychecks.

The problem now is a lack of data, Comey claims. Law enforcement has lost control of the narrative, he stated, as if a one-sided portrayal of every police use of excessive/deadly force was somehow beneficial to the nation.

Dramatic videos of deadly law enforcement encounters and the absence of reliable data about how often police use force contribute to a regrettable narrative that "biased police are killing black men at epidemic rates," FBI Director James Comey said Sunday.

That story line has formed amid a lack of comprehensive, national data about how many citizens are killed or injured at the hands of police officers.

Thanks to the DOJ and FBI's active disinterest in collecting this data (until just recently), the "narrative" is no longer law enforcement's to control. Comey at least admits the FBI -- which was charged with collecting this data but somehow believed voluntary reporting would result in a comprehensive dataset -- is partly to blame.

We do not know whether number of black, brown or white people being shot by police is up because we have not collected data.

The problem with Comey's comments is that he apparently believes data on excessive force and killings by police officers will be ultimately exculpatory.

We need to show people what American law enforcement is really like, because if they see what we see, the chasm will close.

But the data collected by the public of its own initiative shows exactly what Comey claims it doesn't: that law enforcement officers are killing black men at "epidemic rates." Worse, Comey believes data collected and disseminated well after the fact will somehow be able to defuse immediate reactions to released video of officers killing or abusing citizens.

Videos of fatal police encounters that capture the public's attention and are shared broadly across the internet can fuel the perception that "something terrible is being done by the police," even if the data aren't there to back it up.

Given the audience, Comey probably didn't feel comfortable pitching the truth: that policing in America is every bit as bad as it's portrayed to be. Comey thinks data will give law enforcement control over the narrative, but that seems to be his only concern. The culture of American policing needs to change before the data start matching law enforcement's narrative.

Almost without fail, DOJ investigations of law enforcement agencies find two things: routine use of excessive force and biased policing. These aren't anomalies or "bad apples." This is how policing in America works.

As for the narrative, law enforcement still largely controls it. The corpse of the recently killed is barely on the way to the city morgue before law enforcement officials are dumping criminal records and officers' "feared for their safety" claims into the hands of reporters. No amount of pointing to stats is going to change the fact that far too many interactions are needlessly escalated by responding officers, or that biased police tactics are generating far too many interactions in the first place.

While it's good to know the FBI is finally going to push for better data collection on police use of force, the fact that it did nothing for nearly two decades counts against any goodwill it might hope to generate by finally doing its job. Unfortunately for those hoping this might lead to better policing, Jim Comey has made it clear it's really about controlling the narrative and pushing the American public to view law enforcement the way Comey feels they should be viewed: as good people in tough jobs who rarely, if ever, screw up. We'll just have to see what sort of spin is applied when Comey realizes the numbers aren't going to add up to his preconceptions.

Filed Under: data, fbi, james comey, law enforcement, police shootings

FBI, CBP Join Forces To Turn Airports Into Informant Recruiting Centers

from the which-do-you-prefer?-a.)-spying-for-us-or-b.)-being-arrested? dept

The FBI and CBP have been using the nation's borders as recruiting stations for informants. This phrasing makes it sound a lot more voluntary than it actually is. The Intercept has obtained documents showing how these two agencies work together to pressure foreign visitors into basically becoming spies for the United States.

The FBI gives CBP a list of countries of origin to watch out for among passengers, sometimes specifying other characteristics, such as travel history or age. It also briefs CPB officers on its intelligence requirements. The CBP sifts through its data to provide the bureau with a list of incoming travelers of potential interest. The FBI can then ask CBP to flag people for extra screening, questioning, and follow-up visits. According to the documents, the FBI uses the border questioning as a pretext to approach people it wants to turn informant and inserts itself into the immigration process by instructing agents on how to offer an “immigration relief dangle.”

These documents confirm what was alleged in a lawsuit filed by Rahinah Ibrahim two years ago. Her filing pointed out that the FBI has used threats in the past to secure cooperation, like revoking traveling privileges or trying to prosecute immigrants for minor crimes. Ibrahim's lawsuit had another allegation: the secret "no fly" list is also being used as a coercive tool, with agents threatening to add travelers' names to the list if they refused to go to work as informants.

The documents obtained here note that the joint recruiting efforts have expanded far past the nation's border. Some form exists in every airport in the nation. Travel to and from certain countries is flagged for extra scrutiny. The CBP collects extensive data on everything crossing US borders -- people or products -- and turns this over to the FBI with any potential targets pre-flagged. It also provides the FBI with a list of passengers expected to arrive from "countries of interest" at the nation's airports within the next 72 hours.

The CBP is supposedly in the border-securing business and the FBI in the law enforcement business, but these directives turn them both into intelligence agencies. This has made both agencies far more interested in recruitment and data harvesting than their original directives. The documents show that the CBP tends to grab the most data, starting with basic traveler information. There is no predetermined endpoint to the CBP's investigative work. Secondary screenings at borders could run from a few minutes to several hours, depending on how much the CBP wants to harvest.

The CBP materials indicate that as part of secondary inspections, CBP can search “pocket litter,” documents, and cellphones. The April 2012 presentation promises a “full cell dump, including #s, text messages, pictures, etc.” at certain airports.

Everything is passed on to the Joint Terrorism Task Force, which then starts the uglier work of pushing certain travelers into becoming informants, using both carrots, sticks and, in some cases, visits to their homes. Immigration revocation threats are common. So is the promise of benefits. But in both cases, the FBI -- working with CBP info -- is using motivations it can't actually offer or revoke.

When potential informants are not U.S. citizens, they may be particularly vulnerable to pressure from the FBI. Indeed, the bureau is counting on people thinking that FBI involvement in immigration decisions is normal, the documents indicate. In reality, FBI agents are expressly forbidden from promising immigration benefits to potential informants or threatening deportation.

The agency apparently believes deceiving foreign citizens during the recruitment process causes zero damage.

“If subject is deemed ‘recruitable,’” the slides state, then a “series of overt interviews set into motion.” If the person is “not recruitable,” then “NO HARM. Subject believes that the interview is part of the immigration process.”

This is why these recruitment efforts work. The FBI is counting on the ignorance of visiting travelers to help it turn visitors into informants. A suspicionless detention in which several invasive questions are asked is considered to be "no harm," and the FBI will just move on to the next suggestion from CBP. And even if they think this might have been out of the ordinary, what are they going to do? Complain to another person in uniform and hope that the implied threats of deportation are bogus?

Filed Under: airports, cbp, fbi, informants, recruiting, tsa

FBI Facial Recognition Expert Helps Denver PD Arrest Wrong Man Twice For The Same Crime

from the all-hail-our-future-biometric-overlords dept

Never let it be said law enforcement won't get their man. Even if it's the wrong man. And even if they do it twice.

This was Denver native Steven Talley's first experience with the local PD.

It was just after sundown when a man knocked on Steve Talley’s door in south Denver. The man claimed to have hit Talley’s silver Jeep Cherokee and asked him to assess the damage. So Talley, wearing boxers and a tank top, went outside to take a look.

Seconds later, he was knocked to the pavement outside his house. Flash bang grenades detonated, temporarily blinding and deafening him. Three men dressed in black jackets, goggles, and helmets repeatedly hit him with batons and the butts of their guns. He remembers one of the men telling him, “So you like to fuck with my brothers in blue!” while another stood on his face and cracked two of his teeth. “You’ve got the wrong guy,” he remembers shouting. “You guys are crazy.”

Talley was driven to a Denver detention center, where he was booked for two bank robberies — the first on May 14 and the second on September 5, 2014, 10 days before his arrest — and for assaulting an officer during the second robbery.

Surveillance camera footage from the robbed banks had been circulated. Acquaintances and Talley's estranged ex-wife asserted that the man shown was Talley. Using these statements, the Denver PD moved forward with its particularly brutal arrest, one that left Talley with multiple injuries.

In the months that followed, a series of medical exams revealed that Talley had sustained several injuries on the night of his arrest, including a broken sternum, several broken teeth, four ruptured disks, blood clots in his right leg, nerve damage in his right ankle, and a possibly fractured penis.

Talley was held for two months until recordings made by his employer showed he was at his desk on sales calls during the time the May robbery took place. He was released and charges were dropped. But investigators still didn't have the right suspect in custody. So they turned the footage over to the FBI, which put one of its facial recognition experts on the case.

The detective assigned to Talley’s case, Jeffery Hart, had requested that an FBI facial examiner manually compare stills from the banks’ grainy surveillance videos to several pictures of Talley — a tall, broad-shouldered white man with short blond hair, mild blue eyes, and a square jaw.

The FBI analysis concluded that Talley’s face did not match the May robber’s, but that he and the September robber shared multiple corresponding characteristics, including the shape of the head, chin, jaw line, mole marks, and ear features. “The questioned individual depicted” in the September images, the report concluded, “appears to be Talley.”

"Appears." That was enough to justify putting Talley through this whole nightmarish experience again. Talley was arrested again, under the new law enforcement theory that the robberies had been committed by two different men, both of whom resembled Talley enough to have him arrested twice.

This time, the case fell apart almost immediately.

The FBI’s facial analysis was further called into question in court, when the prosecution’s star witness directly contradicted its conclusions. When Bonita Shipp — the sole witness to the September 5 robbery, who had previously identified Talley based on Hart’s photographic line-up — took the stand, she testified that Talley was not the same man who threatened her and robbed her station.

According to the internal bank form tellers fill out after each robbery, Shipp originally described the suspect as 6 feet, 175 pounds, with a slender build. But the man who stood before her, she noted, did not fit this description. Talley stood just under 6 feet 4 inches and weighed between 230 and 250 pounds. He did not, in her opinion, appear to be a slender man.

[I]n the cross-examination with the prosecutor, Shipp said that she had not previously told anybody about the robber’s hands. “When he reached his hands over the counter,” she told the DA, “I could see through his surgical gloves, and I could — he had like marks on his hands.”

The markings were moles and freckles, which she believed she would recognize if presented again with the robber’s hands. At the hearing, Talley offered to show Shipp his hands, and she examined them. “It’s not him,” she told the courtroom. “It’s not the guy who robbed me.” The prosecutor, Shipp recalled, went slack-jawed.

The reliance on facial recognition proved much more fallible than was asserted in court. The similarity between the faces -- as determined by the FBI's expert -- was based on little more than what one forensic scientist called "voodoo witchcraft."

No threshold currently exists for the number of points of similarity necessary to constitute a match. Even when agencies like the FBI do institute classification guidelines, subjective comparisons have been shown to differ greatly from examiner to examiner. And the appearance of differences, or similarities, between faces can often depend on photographic conditions outside of the examiner’s control, such as perspective, lighting, image quality, and camera angle.

And yet, the FBI and many other law enforcement agencies believe facial recognition software -- utilizing massive databases -- will do a better job than their own experts, which aren't exactly setting the forensic science world on fire. If anything, the move to software will only guarantee replicable errors, rather than a significant decrease in false positives. And whatever the software decides will still need to be translated by a human and presented by an expert in court, where claims of "certainty" have long been overstated.

Talley's case is one of the more dramatic outcomes of reliance on forensic techniques too inconclusive to truly be called "science." The continued push towards more reliance on experts' subjectivity and massive biometric databases ensures Talley's case won't remain an anomaly. In this incident, the only thing that's been proven is that law enforcement has the means and methods to arrest the wrong guy twice for the same crime.

Filed Under: face recognition, facial recognition, fbi, steven talley

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