The Government Doesn't Punish Whistleblowers; It Just Shoves Them In Closets Or Sends Them To The Basement

from the not-punitive,-just-really,-really-bitchy dept

More evidence of the US government's fabled whistleblower protections at work. While laws may prohibit direct retaliation for speaking up about misconduct, there's nothing in place to prevent an agency from taking a useful employee and Milton-ing them into irrelevance.

[Paula] Pedene, 56, is the former chief spokeswoman for this VA hospital. Now, she is living in a bureaucrat's urban legend. After complaining to higher-ups about mismanagement at this hospital, she has been reassigned — indefinitely — to a desk in the basement.

Now, the good news is that investigators are still trying to determine whether this reassignment to the depths of the hospital was retaliatory. The bad news is that even if they can prove this, there's likely nothing that can be done about it.

In the past, whistleblowers have had their desks moved to break rooms, broom closets and basements. It's a clever punishment, good-government activists say, that exploits a gray area in the law.

The whole thing can look minor on paper. They moved your office. So what? But the change is designed to afflict the striving soul of a federal worker, with a mix of isolation, idle time and lost prestige.

And, of course, this isn't an isolated incident. Another contractor interviewed spent 16 months in a basement office after alerting regulators about improper radioactive material processing. An Air Force chemist found himself sweeping the floor of his basement office after uncovering mismanagement. As for Pedene, her whistleblowing helped uncover an $11 million budget shortfall, one that led to the voluntary resignation of hospital's director. Instead of adding another accolade to her active 20 years of service, Pedene's office was moved as far away as possible from the rest of the hospital and her responsibilities almost completely eliminated.

Those in charge used this minor breach as the supposed justification for moving her downstairs.

The chief accusation was that Pedene had let her husband upload photos of a VA-sponsored Veterans Day parade onto her work computer. He was helping her finish a PowerPoint presentation she was working on. He was a non-VA employee, working on a VA computer.

The hospital refuses to address any questions about Pedene's situation, claiming it was a decision made by her previous boss -- one that was forced out during the recent investigation that uncovered the use of bogus wait lists to cover up how long patients were waiting for treatment.

The scant legal protections Pedene can avail herself of look much better on paper than in practice.

In theory, it is illegal to make the basement into a bureaucratic purgatory. In 1994, for instance, Congress prohibited agencies from making significant changes in a whistleblower's "working conditions" as punishment for speaking out.

But in practice, the situation is murkier. Some courts have said moving an employee to a basement or closet usually amounts to punishment. But others have said this is a decision that should be made case by case. How nice is the basement office? How big is the closet?

What makes this tougher for the people being relegated to basements or closets is there are no easily-definable damages to be pursued -- which makes it unlikely that many lawyers would be interested in pursuing the case. And so, the government gets away with it. It can still pretend it's looking out for whistleblowers while ignoring those who have simply been removed from their visible positions and offices and stripped of their responsibilities. All this does is guarantee that more and more malfeasance will be the result of very public leaks rather than issues that could be handled internally with a minimal of PR damage.

The government likes to actively punish leakers but it doesn't treat those who go through proper channels much better. It would apparently rather have abuse and misconduct remain out of sight and out of mind and remain secure in its delusion that its agencies are staffed with good people doing good work.

Filed Under: government, punishment, whistleblowers

Snapchat Comes In Dead Last On EFF's Privacy Protecting List; Just Days After Getting Spanked By FTC

from the what-privacy dept

Snapchat is often pitched as a more "private" alternative to other messaging apps, considering that a key part of its pitch is that the messages/images you send to others quickly disappear. For years, people have pointed out that Snapchat was overstating the reality when making those claims, and last week the FTC spanked the company for misleading its users about the privacy and security of their messages. And, this week, the "privacy" claims of Snapchat get another black eye as the EFF's latest Who Has Your Back? chart has come out, detailing how various services deal with protecting your privacy from the US government. Want to know who came in dead last? Snapchat: Just a couple weeks ago, we had noted that a bunch of tech companies had been improving their policies in an attempt to score better on this annual report from the EFF. And, indeed, as you look down the full list, you see a lot more stars than when EFF started this list. Back then, lots of companies only got one star (or less!), though the categories weren't exactly the same (EFF has added a few over the years).

Want to know just how bad Snapchat is? Even AT&T and Comcast score better. Snapchat was the only company with one star. Amazon and AT&T only got two. Comcast (along with Foursquare and Myspace) had three. At the top of the list, Apple, CREDO Mobile, Dropbox, Facebook, Google, Microsoft, Sonic.net, Twitter and Yahoo all got five stars. Some might question some of this, given stories of things like Microsoft changing Skype to grant greater government access, but on the specific categories that EFF judges for the ratings, they appear to be accurate.

Of course, to be fair, one of the categories is whether or not the company "fights for users' privacy rights in courts." That's an important measure, but it's also a conditional one. All of the other categories can be done by any company of their own volition, but you can't fight in court if there are no opportunities to go to court to protect your users' privacy. Either way, it's good to see that the EFF chart is having an impact in getting companies to be more aggressive in protecting the privacy of their users from the government. But, really, shame on Snapchat for positioning itself as a privacy option when it appears to do very little to actually protect people's privacy.

Filed Under: companies, government, privacy, surveillance, who's got your back
Companies: eff, snapchat

As Government Officials Continue To Shed Trustworthiness, Journalists Continue Placing More Trust In Government Officials

from the they're-supposed-to-earn-it-before-you-give-it-to-them dept

Despite the current administration's track record on transparency (completely lousy from nearly every angle), there's little being done by the majority of the press to work around the roadblocks being set up by the government. While the administration has offered a few half-measures aimed at reining in the NSA in the wake of the leaks, the ODNI (Office of the Director of National Intelligence) has gone the other way, forbidding employees from speaking to the media about even unclassified information.

The media claims to be more interested in exposing government wrongdoing than ever before, but it is less willing to get its hands dirty doing it, according to a study by the Indiana University of Journalism.

One of the most surprising developments over that period over the past ten years, is the steep decline in the percentage of journalists who say that using confidential documents without permission "may be justified." That number has plummeted from about 78 percent in 2002 to just 58 percent in 2013. In 1992, it was over 80 percent.

That's even more notable given that the survey took place from August to December of last year, not long after Edward Snowden became a household name for stealing classified documents that revealed the extent of NSA surveillance. The journalists who worked with him to share that information with the public won the Pulitzer Prize last month.

There are several theories as to the drop in the number of journalists willing to publish leaks or push reluctant individuals for information. Some of that is the political climate. The report notes that journalists identify themselves as Democrats at a rate of 4-to-1 over Republicans, so there may be some deferral to the "home team" administration. Backing this theory up is the fact that the highest numbers listed here were recorded during the two Bush presidencies.

Then there's the general chill against whistleblowing, one that has never been colder than it is right now. It's been well documented that the Obama administration has prosecuted more than twice as many whistleblowers than all other administrations combined. Post-Wikileaks and post-Manning, there aren't too many journalism outlets willing to sacrifice freedom for a story.

Other, more questionable methods (hidden mics, confidential informants, buying documents), are on the decline as well. Again, the administration's aggressive push to snuff out leaks is partly to blame, as well as the legal ramifications of questionable tactics deployed by UK tabloids, which have raised the ire of both that nation's politicians as well as the targets of these "investigative" efforts. Better safe than jailed/fined/sued, it would appear.

But there's another downside to this, one that plays right into the hands of the self-declared "most transparent administration," as Kevin Gostola at Firedoglake points out.

The Associated Press found, when conducting its annual review of responses to Freedom of Information Act requests, that the "government more than ever censored materials it turned over or fully denied access to them, in 244,675 cases or 36 percent of all requests. On 196,034 other occasions, the government said it couldn't find records, a person refused to pay for copies or the government determined the request to be unreasonable or improper." The media organization concluded the "government's efforts to be more open about its activities last year were their worst since President Barack Obama took office."

First, you seal off the documents. Then, you start threatening the access. Faced with this, it appears many journalistic entities have decided to defer to authority and simply publish unquestioned statements from officials unwilling to back up their words with a name.

The number one complaint most New York Times readers tend to have is that reporters are overly reliant on anonymous sources for information. Public editor Margaret Sullivan has written about this issue, suggesting "readers are right to protest when they see anonymity granted gratuitously" but also acknowledging the crackdown on leaks by the Obama administration may have something to do with people unwilling to talk to reporters on the record.

The number of "anonymous officials" is on the rise, partly due to the administration's own dim view of sharing info with the press. But this makes any statement made completely questionable. If the official is afforded anonymity, there's no accountability. And yet, these statements are delivered by the press in a largely credulous fashion.

What Gostola sees this boiling down to is the most cherished of journalistic tools: access. Journalists are unwilling to sacrifice access for better, harder-hitting reporting. Being shut out means falling behind, even if your integrity remains intact. And an anonymous source is still one more source than is available to those locked out due to their aggressive reporting, even if the statements are little more than rephrased talking points.

The problem is that, despite this evidence, the media still believes it's an effective means of government accountability, even as this same government has convinced many of them that they have neither the expertise nor the right to publish leaked documents or otherwise route around official outlets. Two journalistic outlets went the other way and received Pulitzers for doing so, but in the eyes of many others, publishing leaks still "isn't journalism." But somehow, taking anonymous statements at face value is.

Filed Under: government, journalism, leaks, sources, trust

Joe Biden Tells Chinese Citizens To 'Challenge The Government,' Neglects To Mention His Administration Doesn't Like Being Challenged

from the no,-but-you-guys-should-totally-do-it dept

Vice President Joe Biden is in China and as usual, he took the opportunity to try to insert his foot in his mouth. China may be veering towards its own brand of capitalism simply because it's a manufacturing powerhouse, but it's still a long way from being an open country in any other respect.

Biden's pep talk to some Chinese citizens gathered at the US embassy included this "empowering" exhortation.

“Innovation can only occur when you can breathe free, challenge the government, challenge your teachers, challenge religious leaders.”

All well and good, I suppose. Of course, it's much easier said than done, and Biden's contribution only included the "saying" part. These sort of challenges have actual repercussions in China, which still wishes unruly citizens into high-walled political cornfields prisons.

But what's even more irritating about his blithe statement is the fact that his own administration isn't really keen on being challenged by its citizens.

Case in point: the NSA leaks. For a long time, the administration stood firm in its support of the agency. It only stepped back when it realized the situation was going to get a whole lot worse before it got any better and that the NSA itself wasn't just lying to the public, but to the president and the rest of the government as well. It also smelled blood in the water after amendments and bills targeting the NSA and its programs began gathering bipartisan support and wanted to be as far away from the massacre on the horizon.

This administration has also prosecuted more whistleblowers than all other administrations combined. This is what happens to people who challenge the administration. They end up broken by the system, the same system that tells them it wants to be "open" and "transparent."

The administration has also shown a fondness for shutting out inquiring minds with the overuse of state secret exceptions. Sure, information may want to be free, but its overseers won't let it roam without being covered in black ink. Its track record on civil liberties has eclipsed the awfulness of the Bush administration, which at least had the courtesy to be openly evil in its intentions.

Even the press has grown disillusioned with Obama's administration, recently complaining that it controls the narrative by handing out approved promo shots rather than allowing press photographers to do their jobs.

Now, I realize that as vice president, Biden doesn't truly represent the administration. He may be second-in-command, but the reality of the job demands someone who can stay out of the way while whipping up support for the administration's policies and pet legislation behind the scenes. It requires him to make appearances on behalf of the administration but kindly asks him not to embarrass it while doing so. Biden has failed to hold up his end of the bargain with his statements.

Here he hands Chinese citizens advice they can't possibly use while simultaneously highlighting the hypocrisy inherent in the administration's treatment of criticism. "Challenge your government," he tells people who can be ripped from their families for doing so before retreating to the safety of an administration that actively seeks out and punishes those who challenge its methods and actions. With this mindless bit of "go team!" posturing, Joe Biden is hurling stones from the balcony of the administration's glass house.

Filed Under: challenge, china, government, joe biden

Press Suckered By Anti-Google Group's Bogus Claim That Gmail Users Can't Expect Privacy

from the no-expectation-of-accuracy dept

Okay, so as a bunch of folks have been sending over today, there's been a bit of a furor over a press release pushed out by Consumer Watchdog, a hilariously ridiculous group that has decided that Google is 100% pure evil. The "story" claims that Google has admitted in court that there is no expectation of privacy over Gmail. This is not actually true -- but we'll get to that. This story is a bit complex because the claims in most of the news coverage about this are simply wrong -- but I still think Google made a big mistake in making this particular filing. So, first, let's explain why the coverage is completely bogus trumped up bullshit from Consumer Watchdog, and then we'll explain why Google still shouldn't have made this filing.

First off, you may recall Consumer Watchdog from previous stunts such as a putting together a hilariously misleading and almost 100% factually inaccurate video portrayal of Eric Schmidt, which was all really part of an effort to sell more copies of its founder's book (something the group flat out admitted to us in an email). They're not a consumer watchdog site -- they're a group that makes completely hogwash claims to try to generate attention on a campaign to attack Google.

The press release from Consumer Watchdog fits along its typical approach to these things: take something totally out of context, put some hysterical and inaccurate phrasing around it, dump an attention-grabbing headline on it and send it off to the press. In this case, it claimed that Google had said in a court filing that you have no expectation of privacy with Gmail. That got a bunch of folks in the press to bite with wildly inaccurate headlines:

• CNET: Google filing says Gmail users have no expectation of privacy
• Time: Google Says Gmail Users Have ‘No Legitimate Expectation of Privacy’
• The Guardian: Google: Gmail users shouldn't expect email privacy
• Gizmodo: Google: Non-Gmail Users Have No Legitimate Expectation of Privacy
• Huffington Post: Google: Email Users Can't Legitimately Expect Privacy When Emailing Someone On Gmail
• Business Insider: GOOGLE: If You Send To Gmail, You Have 'No Legitimate Expectation Of Privacy'

The first three of those headlines are simply flat-out factually incorrect. I mean, not even close, and it's fairly incredible that those come from the three more "established" or "mainstream" news publications. The last three are slightly more correct, but still completely miss the point. The best debunking of these claims so far comes from Nilay Patel at the Verge who breaks down the details. The filing, which is from over a month ago, is a response to an absolutely, monumentally bogus class action lawsuit filed against Google, arguing, hilariously, that it's a violation of wiretap laws to put ads next to emails based on the text of those emails. No, seriously.

As Patel points out, first, if you put the argument back into context, it's not even about Gmail users -- as the top three headlines above falsely state. Google is arguing that non-Gmail users are consenting to the fact that when they send an email, the ISPs who receive the email will automatically process them. This should not be controversial. At all. Without that concept email doesn't work. As the filing states (which the folks hyping this ignore):

Non-Gmail users who send emails to Gmail recipients must expect that their emails will be subjected to Google's normal processes as the [email] provider for their intended recipients.

In other words, there's no "there" there. All Google was arguing was that courts have held that if you are using a communication service, there's a perfectly reasonable (in fact, expected) recognition that the service provider will have the right to process some information about that communication. In the context of the case that Google cites, the infamous Smith v. Maryland, the argument is that the business provider is reasonably expected to be able to track the user's activity. That's not controversial. The controversial step that Smith v. Maryland then makes is to argue that because the service provider has a right to that basic information it means that the end user has no expectation of privacy with regards to the government getting access to the same info. That's the problem with Smith v. Maryland -- the failure to recognize that massive difference between me (1) consenting to let my phone company record who I make phone calls to in exchange for the ability to make calls and (2) the expectation that it's okay for the government to collect that very same info without a warrant.

Google's citation of Smith v. Maryland is to make the first half of that argument -- showing that courts recognize the obvious: that when you use a communication service, there are certain aspects of information that you know the service provider is going to have access to. Without that you don't have email, or (realistically speaking) the internet.

So, this is all much ado about nothing.

Except... I still think it was a mistake for Google to use this legal argument, and I'm somewhat surprised Google's legal team let this go through in place. First, Google does not need this citation to make this point. There are other cases that can make this point effectively without touching on the government spying aspect. But, the real reason why this is a mistake is that Google has given fairly strong indications in recent statements that it's willing to fight back against certain government requests for user info (and that it's done so in the past). In those cases, the government is absolutely going to cite Smith v. Maryland as its evidence that users have no expectation of privacy in their communications and now they'll also point out that Google cited the case approvingly. Google will want to argue that Smith v. Maryland is outdated law and was decided wrongly and/or in a different time under a different technology ecosystem. And this is a very, very strong argument that has a good chance of winning. But the ability of the government to point out that Google has, in other cases, cited the Smith precedent approvingly -- even if it was really only part of the Smith precedent -- could undermine their arguments against Smith in future cases down the road.

Either way: the freakout here is totally manufactured by a bogus, laughable group that is spreading ideas that would do massive harm to the internet based on a near total ignorance of how things work. Yes, people are on edge given the NSA revelations, but this "gotcha" is no "gotcha" at all. It's just more evidence of the sheer duplicity of Consumer Watchdog. That said, it was still short-sighted for Google to make this claim in a filing. They didn't need the citation, and while it may help them win this ridiculous class action lawsuit, it may come back to bite them down the road in more important cases.

Filed Under: 3rd party doctrine, consumer watchdog, email, fearmongering, government, hype, journalism, privacy, smith v. maryland, surveillance
Companies: consumer watchdog, google

Government Considers Dissatisfaction With US Policies To Be A 'High Threat'

from the looks-like-someone's-going-to-spend-some-time-at-the-Ministry-of-Love! dept

The administration's "Insider Threat" program was discussed here a few weeks ago. Apparently, the government has been running dangerously low on whistleblowers to prosecute and now is seeking help from its employees in identifying "threats" to the government -- some of which may be no more than a cubicle away.

The national "spy on your neighbor" program (See Something, Say Something) has now been internalized by the government, which openly encourages its employees to view their co-workers with suspicion. Leaks = "aiding the enemy," according to official documents and one can't be too careful in this post-Snowden climate of forced transparency.

To that end, the government has introduced a couple of training modules/interactive games aimed at heightening suspicion levels in federal offices. There are two versions: one for the Dept. of Defense and one for regular "federal employees." You score points by following the rules and outing co-workers whose behavior indicates they might up and tear the country a new one by blowing whistles.

According to the interactive brainwasher CyberAwareness Challenge, these are some of the prime indicators that a co-worker is prone to rampant acts of insider threatening.

A security training test created by a Defense Department agency warns federal workers that they should consider the hypothetical Indian-American woman a "high threat" because she frequently visits family abroad, has money troubles and "speaks openly of unhappiness with U.S. foreign policy."

Yes. It's true. An inherently untrustworthy foreigner has made things worse on herself by exercising her First Amendment rights and openly having her vehicle repossessed. A good citizen loves our country's thousands of rules and policies and pays their bills on time -- no exceptions.

And who in their right, non-threatening mind would want to leave the country once, much less several times? Seriously. The hassle at the airports alone would seem to be enough to deter a non-Caucasian from making more than one trip abroad.

While this example may seem stupid at best and borderline racist at worst, a spokesman for the Pentagon defended the program's virtues in a statement to Huffington Post.

Pentagon spokesman Lt. Col. Damien Pickart said, "DISA was sensitive to any civil liberty concerns that might arise from any portion of the curriculum, which is why it coordinated with 26 federal agencies to ensure the maximum amount of input was received before going live."

"When considering personnel for a position of trust that requires a security clearance, there are many potential indicators that must be considered when evaluating for insider threat concerns," he explained. "The department takes these variables into consideration based on past examples of personnel who engaged in spying or treasonous acts."

Several million people across the federal government have taken the training since it was released, Pickart said, and there has been only one complaint...

Anyone familiar with government work knows that increasing the number of agencies involved has very little bearing on overall quality of output. In fact, it's more frequently noted that the quality is inversely proportionate to the number of bureaucrats involved.

And as for there being only one complaint? Well, holy shit, what did you expect? The program itself makes the none-too-subtle point that complaining about the government is a great way to end up with the word "Snowden" taped surreptitiously to your back by your newly trained co-workers.

Now, if you're truly curious, you can attempt to play the interactive CyberAwareness Challenge. Chrome users are somewhat discouraged from making the attempt. My personal experience boiled down to a lot of load time broken up by occasional "challenges" and questions that had all the depth and nuance of a Dora the Explorer episode.

The challenge level may go up the further you proceed in the game, but I can't offer any insight on that. The load times are so long, it's tough to believe you'll have a chance to round up any "insider threats" before they've boarded the next plane to Moscow. Or retired.

All hyperbole aside, this training program won't do much to find insider threats, who are likely not nearly as easy to identify as the rather spurious list of "indicators" would have federal employees believe. And the last thing the government should be doing is incubating the idea that exposing government wrongdoing is only a step or two removed from actual terrorism. Attempting to weed out "dissent" by turning government employees against each other is only going to foster more of the behavior these agencies are trying to stamp out.

Filed Under: free speech, government, threats, whistleblowers

Feds Accused Of Distributing Malware That De-Anonymizes Tor Users

from the left-hand,-meet-the-anonymous-right-hand dept

It's somewhat well known that the popular Tor anonymous browsing system gets a significant amount of funding from the US government. In the past, the suggestion had always been that the State Department was a major supporter because of its belief that Tor would help dissidents in other countries communicate better via anonymous systems. However, now there's a lot of buzz because it appears that a bit of malware that was discovered this weekend targeting Tor users, may have come directly from the FBI itself. The implication isn't against the Tor project at all, but rather it appears that whoever pushed out this malware did so by using a vulnerability targreting people using the Tor Browser Bundle -- a Firefox bundle that builds in Tor -- browsing a variety of hidden sites (available only to Tor users) hosted by the somewhat infamous Freedom Hosting. Freedom Hosting's boss, Eric Eoin Marques was arrested in Ireland last week as the US is trying to extradite him. But, what was more interesting was what some people discovered on all Freedom Hosting pages:

Shortly after Marques' arrest last week, all of the hidden service sites hosted by Freedom Hosting began displaying a “Down for Maintenance” message. That included websites that had nothing to do with child pornography, such as the secure email provider TorMail.

Some visitors looking at the source code of the maintenance page realized that it included a hidden iframe tag that loaded a mysterious clump of Javascript code from a Verizon Business internet address located in eastern Virginia.

By midday Sunday, the code was being circulated and dissected all over the net. Mozilla confirmed the code exploits a critical memory management vulnerability in Firefox that was publicly reported on June 25, and is fixed in the latest version of the browser.

Though many older revisions of Firefox are vulnerable to that bug, the malware only targets Firefox 17 ESR, the version of Firefox that forms the basis of the Tor Browser Bundle – the easiest, most user-friendly package for using the Tor anonymity network.

So why do people think the feds are involved? The bit of malware scoops up various identifying information -- MAC address and Windows hostname -- and then sends it to a server in Virginia to find the real IP address of the computer in question. The Virginia server is controlled by the infamous contractor SAIC, who works with numerous government agencies.

It's no secret that law enforcement has wanted to identify folks who are trying to be anonymous. And, as discussed just last week, the FBI has been using malware at an increasing rate. So it wouldn't be a huge surprise to find out that little tricky bit of malware was designed to provide more info on Tor users who might be up to nefarious activity (or, you know, they might just want to surf anonymously). I imagine that this is not the end of this particular story...

Filed Under: eric eoin marques, fbi, government, malware, state department, tor
Companies: freedom hosting, saic

Senators Wyden And Udall: US Gov't Still Not Being Honest About NSA Surveillance

from the but-of-course dept

Even while NSA defenders are bitching about Senator Ron Wyden hinting strongly about the NSA and the DOJ abusing various interpretations of the law to spy on Americans with the bulk collection of data, it seems that neither Wyden nor Senator Mark Udall are planning to back down. Specifically, Wyden noted (as explained below) that the feds admitted to serious violations of the law -- but have done so in classified letters, rather than publicly. He's hoping to change that.

Wyden told Politco that "U.S. intelligence agencies’ violations of court orders on surveillance of Americans is worse than the government is letting on." Julian Sanchez, over at Cato, notes that Wyden seems to be all but screaming about how the feds have also collected location data, despite carefully worded denials. As Sanchez notes, Wyden keeps going back to questions concerning location tracking via mobile phones -- and it would seem odd to do that if he didn't know something. After all, the revealed info so far hasn't included location data:

Wyden’s constant references to location tracking in this context would be nothing short of bizarre unless he had reason to believe that the governments assurances on this score are misleading, and that there either is or has been some program involving bulk collection of phone records. Wyden, of course, would know full well whether there is or is not any such program via his role on the Intelligence Committee—and his focus on location tracking over the activities we know NSA is engaged in, such as monitroing of Internet communications and bulk collection of phone records, would be an inexplicable obsession if he knew that no such program existed.

From what Wyden said today, it sounds like the NSA potentially did collect location data, but may not be doing so currently "under these programs."

Both Udall and Wyden took to the Senate floor this evening to argue further that the government is not being fully honest in what it does, and that it's a violation of our privacy. They're now introducing legislation to limit these government surveillance programs (from the Patriot Act Section 215 and the FISA Amendments Act Section 702). Specifically, the proposal is for the government to be able to request that the telcos do a search if they can show a good reason for a search -- rather than collecting all data and searching them later.

Udall pointed out that defenders of these programs are carefully choosing their words and conflating various programs, picking and choosing to mislead the American public. For example, he points out that the claims that the bulk phone records program was instrumental in stopping 54 "terrorism" cases are not accurate, and that, as an Intelligence Committee member, he's yet to see any evidence that the bulk collection of phone records has been necessary to stop any terrorism event. Rather he hints strongly that defenders of the program are using other programs and using misleading statements to pretend the bulk records were necessary. As he points out, the bulk records may have made things more convenient, but that's no excuse for violating the privacy of millions (or hundreds of millions) of innocent Americans.

Wyden's speech goes into similar territory about the complete lack of evidence that the bulk data collection was necessary in any terrorist cases, but then goes further, saying that the "classified" documents that James Clapper sent last week show that the NSA's admitted violations of the Patriot Act show that their actions are significantly worse than has already been disclosed. He urged other Senators to go read the classified documents that Clapper sent, noting that when they read them, they'll realize just how badly the intelligence community has violated the law. He says that he's going to push to have more info about those abuses disclosed and declassified. Later, he points out that the rules of the Intelligence Committee mean he's not allowed to "tap out warnings in Morse code" and that limits his ability to play the watchdog role he's supposed to play on that Committee. He also said that their public statements "significantly exaggerated" the importance of bulk data programs -- and uses the example of the bulk data collection of emails, which was shut down in 2011 after the surveillance community failed to prove to the Intelligence Committee that the program was actually useful. He notes that if the government can't show that the program increases either security or liberty, it seems like it should be ended. Instead, he notes that we can make changes to the intelligence community that let us have security and liberty without compromising either.

Filed Under: bulk collection, government, james clapper, location data, mark udall, nsa, nsa surveillance, patriot act, ron wyden, section 215, surveillance

National Intelligence Lawyer Wonders Why People Are Fine With Sharing Data On Facebook But Not With The Government

from the deliberately-obtuse dept

It's a point that's been raised by many people in arguments about privacy and other aspects of government data collection. In a speech given last Friday, the general counsel for the Director of National Intelligence, Robert Litt, broached the topic publicly. After defending the NSA's programs as completely legal (thanks to the Third Party Doctrine), Litt asked more directly:

"Why is it that people are willing to expose large quantities of information to private parties but don't want the Government to have the same information?"

It's a valid question, but not when asked by the overseer of government intelligence agencies. Daniel Stuckey at Motherboard points out that there's a big difference between voluntary and involuntary "exposure."

Now, I'd hate to answer Litt's question so simply by saying that consumers are extorted by their love of what they consume, but it's part of it. And trust in companies that give us free things, that advance self-expression is an inalienable consumer right. If the government, theoretically, already knows everything there is to know—when we didn't directly volunteer our information—it then provides momentum for a rally cry. The shame and disgust when Edward Snowden pulled back the curtain reverberates that government by virtue is supposed to be more clear, more holistic, and an idealized reflection of ourselves.

It's a false equivalent. Thousands of people expose tons of information every day using social media platforms, but they do so with the implicit understanding that the free service is deriving some sort of benefit from their interactions. When the government scoops up the same data, there's no perceived benefit, not even the supposed "targeting" of terrorists.

Furthermore, as Stuckey states, we want to believe our government is above snooping on our "private" interactions. (Private in the sense that they're between individuals, no matter how many others can view or interact with the conversations.) If we initiate the exchange, we don't feel victimized by the lack of privacy.

Beyond that, every social media service has some sort of privacy settings built in that limit what others can see. Most of these have only limited effectiveness, but the fact is that users have the option to exclude others. The underlying platform is the facilitator and therefore, has "earned" the "right" to mine data and can never truly be excluded, and we (for the most part) accept this. There is no "exclude government" option, other than Litt's implicit suggestion: if you don't want the government to see it, don't post it in public arenas.

But the most troubling part of Litt's question is this.

It's great that the U.S. government behaves better than corporations on privacy—too bad it trusts/subcontracts corporations to deal with that privacy—but it's an uncomfortable thing to even be in a position of having to compare the two. This is the point Litt misses, and it's not a fine one.

This is the crux of the issue. When someone asks why we don't value our privacy more, in terms of social networking, they have a point. When someone asks why we're willing to give Facebook plenty of data but resent the government doing the same thing, the point is no longer valid. Handing data to advertisers is a lot easier to stomach than the impression that the government is reading over your shoulder.

Ultimately, though, we should never have gotten to the point where the government's thirst for data on American citizens exceeds the demands of corporations. We expect corporations to act in self-interest. We expect our government to be a lot more selfless and its intelligence agencies more willing to sacrifice some effectiveness in order to protect the rights of American citizens.

If Litt honestly feels people don't have privacy expectations in regards to data shared with a third party, he should put some manpower into launching Facebook.gov (or whatever) and see how many people are willing to sign up. Facebook vs. government isn't a fair comparison and Litt knows it. He's just using the question to prop up the third party exception that enables the NSA to acquire vast amounts of data. What he's doing is making a convenient presumption that these users are aware of the protections they lose by sharing information with a third party -- and, consequently, the government. Part of the "expectation of privacy" is the "expectation," something the Supreme Court has noted, and it's safe to say that many Facebook/Google/Twitter users don't expect the government to be accessing their data.

Finally, there's also the utilitarian aspect. As the New Jersey Supreme Court pointed out earlier, no one uses a cell phone simply to provide location data for law enforcement and investigative agencies. And no one utilizes social media in order to provide the government with a treasure trove of personal information.

Filed Under: government, privacy, robert litt, sharing, social networking, third party doctrine

Legislator Introduces Bill To Legalize Recording Of Conversations With Feds

from the has-its-problems,-but-still-an-improvement dept

"Accountability" is a word often tossed around by government officials in an effort to appear trustworthy and genuine. However, this is seldom followed up by action. Everyone agrees it's a fine principle, but far too idealistic to apply to the realities of governing, apparently. Rep. Lynn Jenkins seems to both 1) believe the government needs more accountability and 2) be willing to do something about it.

On Wednesday, Jenkins introduced legislation that she says would expand the rights of Americans to record their conversations with federal employees. Under current law, people are only able to lawfully record certain in-person conversations with IRS officials.

But under Jenkins proposal, that law would be expanded to allow people to record both in-person and phone conversations with most agencies in the executive branch. It would also require these government officials to tell people they have the right to record these conversations.

Jenkins' bill would cover conversations with personnel from a large number of agencies that fall under the "executive agency" label, which would include agencies from the Dept. of Justice and Dept. of Defense, among others.

The specifications of the bill allow individuals to record what could be loosely termed "protective" recordings -- the sort of recording that would prevent "he said/agency said" discrepancies further down the road.

Any employee of an Executive agency who is conducting an in-person or a telephonic interview, audit, investigation, inspection, or other official in-person or telephonic interaction with an individual, relating to a possible or alleged violation of any Federal statute or regulation that could result in the imposition of a fine, forfeiture of property, civil monetary penalty, or criminal penalty against, or the collection of an unpaid tax, fine, or penalty from, such individual or a business owned or operated by such individual, shall allow such individual to make an audio recording of such in-person or telephonic interaction at the individual’s own expense and with the individual’s own equipment.

This would seem to cover conversations with such federal agencies as the ATF, DEA and the especially recording-shy FBI, the latter of which still prefers to use its own pen-and-paper accounts of "interviews." Unfortunately, even though these agencies (along with the DHS) fall under the "executive agency" banner, the bill's list of exceptions would seem to make almost every conversation with these agencies off limits.

EXCEPTIONS.—

(1) CLASSIFIED INFORMATION, PUBLIC SAFETY, CRIMINAL INVESTIGATION.—This section shall not apply to any in-person or telephonic interaction—

(A) that is likely to include the discussion of classified material;
(B) that is likely to include the discussion of information that, if released publicly, would endanger public safety; or
(C) that, if released, would endanger an ongoing criminal investigation if such investigation is being conducted by a Federal law enforcement officer (as defined by section 2 of the Law Enforcement Congressional Badge of Bravery Act of 2008) who is employed by a Federal law enforcement agency.

The "endanger public safety" exception is nothing more than an out for any agency remotely concerned with "fighting terrorism." This pretty much allows the DHS to prevent recording of conversations, even if the subject matter would seem to be completely unrelated to terrorist activity. Furthermore, the wording allows ANY agency to decide what will or won't "endanger" the general public, with the likelihood being that most conversations carry that potential.

The FBI (along with the ATF, DEA and others) will be able to use exception (C) to prevent recordings, as almost all of these agencies' conversations will pertain to some sort of ongoing investigation.

Jenkin's bill may push accountability on some federal agencies, but the ones with the most worrying track records probably won't feel a thing. It would be extremely tough to sell this bill without the exceptions, but their inclusion severely undercuts the stated aim.

Filed Under: government, laws, recording conversations