Court Follows Shutdown Of Jason Leopold's Torture Report FOIA Request By Denying Same To ACLU

from the (b)5:-for-when-you-absolutely,-positively-have-to-hide-every-motherfuckin'-d dept

The ACLU is suing the CIA over its withholding of CIA Torture Report-related documents, including the so-called Panetta Review. The CIA, so far, has managed to withhold the requested documents in their entirety, citing multiple FOIA exemptions. The ACLU isn't taking no for an answer and has challenged the CIA's refusal to turn over any of the documents the ACLU has requested. But this effort has now been shut down by the DC District Court.

The decision starts by noting that if the SSCI report (Torture Report) had remained solely in the hands of the Senate, it would have been unobtainable via FOIA requests. The ACLU had argued that its transfer to the CIA has released it from this clearly delineated restriction. ("For purposes of FOIA, the definition of an “agency” specifically excludes Congress, legislative agencies, and other entities within the legislative branch.")

The court finds otherwise:

The Court’s inquiry, therefore, is a streamlined one: do there exist “sufficient indicia of congressional intent to control,” id., the Full SSCI Report? [...] Although this case is no slam dunk for the Government, the Court answers that question in the affirmative.

The decision quotes from a SSCI letter from 2009 referring to the still in-the-works Torture Report.

In its June 2009 letter to the CIA, SSCI expressly stated its intent that the documents it generated during its investigation “remain congressional records in their entirety and disposition,” such that “control over these records, even after the completion of the Committee’s review,” would “lie[] exclusively with the Committee.” June 2, 2009, SSCI Letter, ¶ 6. Making its wishes even more explicit, it continued, “As such, these records are not CIA records under the Freedom of Information Act, or any other law.”

The ACLU pointed out that this letter from 2009 was both outdated and irrelevant to the issue at hand, as it only pertained to the use of documents shared with the Senate by the CIA, rather than the resulting report. The court disagrees, stating that the language in the 2009 letter is broad enough to cover the finished product, rather than just the documents contributing to it. But it also points out the CIA's arguments in defense of its secrecy are also inconsistent.

One final point bears mention. Defendants’ own characterizations of the scope of the letter vary somewhat in their submissions. Compare, e.g., Higgins Decl., ¶ 12 (“One key principle necessary to this inter-branch accommodation . . . was that the materials created by SSCI personnel on [the] segregated shared drive would not become ‘agency records’ even if those documents were stored on a CIA computer system or at a CIA facility.”) (emphasis added), with Def. Reply at 5 (explaining that the language of the June 2009 letter “covers the Full Report” as a “final . . . report[] or other material[] generated by Committee staff or members,” even though it did not reside on the network drive).

The ACLU also argued that Dianne Feinstein's letter from 2010 is a better indicator of whether or not the report and its supporting documents are FOIA-able.

As its pièce de résistance, the ACLU seizes on the December 10, 2014, transmittal letter from Senator Feinstein, claiming it represents “direct evidence of the SSCI’s intentions for the Final Full Report.” Id. That letter, to recap, states:

"[T]he full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated. To help achieve this result, I hope you will encourage use of the full report in the future development of CIA training programs, as well as future guidelines and procedures for all Executive Branch employees, as you see fit." December 10, 2014, Feinstein Letter.

“By encouraging the use and dissemination of the Final Full Report among the executive branch, and by leaving to the executive branch the decision as to how ‘broadly’ the report should be used within the agencies,” claims Plaintiff, “SSCI relinquished its control over the document.”

The court rebuts this argument as well. Rejecting the ACLU's "refinement" of the entirety of SSCI-related communication between the Senate and the CIA to a single letter, the court declares that Feinstein's instructions must be considered in context.

The Court, therefore, need not confine its consideration to the moment of transmission. On the contrary, SSCI’s 2009 letter sets the appropriate backdrop against which Senator Feinstein’s 2014 letter can be properly understood.

So teed up, her letter does not evince congressional intent to surrender substantial control over the Full SSCI Report. While it does bestow a certain amount of discretion upon the agencies to determine how broadly to circulate the Report, such discretion is not boundless. Most significantly, the dissemination authorized by the letter is limited to the Executive Branch alone. It plainly does not purport to authorize the agencies to dispose of the Report as they wish – e.g., to the public at large.

The court also adds that Feinstein's statement accompanying the public release of the report summary further declares the documents off-limits -- at least until further notice.

SSCI’s deliberate decision not to publicly release the Full Report, combined with its assertion that it would consider that course of action in the future, serve to further undermine Plaintiff’s theory that Congress intended to relinquish control over the document only days later.

It finds similarly for the "Panetta Report" documents, citing its rejection of Jason Leopold's FOIA request. The CIA continues to assert that these documents are "deliberative" in nature and out of the reach of FOIA requests, despite the fact that what's being deliberated has already been made public (in the summary report) and handed over to the executive and legislative branches (via the full report). The court upheld the CIA's exemption (b)5 declaration, stating that it doesn't matter whether or not portions of the sought documents are in the public domain, but rather that the documents are part of an agency's "deliberative process." (This is why exemption (b)5 is the most-abused FOIA exemption.)

As it had already shot down Leopold's request, the court finds no reason to alter its course, despite some "novel" arguments advanced by the ACLU -- including quoting Sen. Udall's assertion that the Panetta Review is a complete work of critical importance (a "smoking gun") that far exceeds the CIA's portrayal of it as an unfinished pile of somewhat related deliberative works-in-progress. The CIA's motion to dismiss is granted.

With this decision (and many preceding it), government agencies are being given even more reason to declare anything they don't want released "deliberative" and trust the courts to uphold their declarations.

Filed Under: cia, cia torture report, foia, jason leopold, panetta review, secrecy, transparency
Companies: aclu

The FBI's Stingray Secrecy May Be Aimed At Preventing Law Enforcement From Overusing A Key 'Exploit'

from the running-the-wheels-off-a-Stingray dept

An interesting angle on the FBI's Stingray secrecy has emerged from -- of all places -- a Princeton gathering of cryptographers that included Edward Snowden via his "Snobot."

Generally speaking, the FBI is a very secretive agency, as can be readily gleaned from its tendency to answer FOIA requests with page after page of fully-redacted documents. That it has managed to rope so many law enforcement agencies -- including prosecutors and states' attorneys' offices -- into highly-restrictive non-disclosure agreements is somewhat of a surprise, considering its position as a partner in law enforcement, rather than an overseer of local agencies like the DOJ.

These NDAs keep almost all information about Stingray device usage out of our nation's courts. The desire to protect these specifics is all-encompassing, resulting in prosecutors and police departments cutting suspects loose (including those who have already pled guilty) rather than allowing information to make its way into the public domain.

But there could be more to it than just a naturally-secretive agency being secretive. It may be that it fears law enforcement agencies -- if left to their own devices -- will destroy the effectiveness of IMSI catchers by deploying the devices too often and with too little care.

In a discussion about the NSA's use of exploits, the following observations were made.

FBI operations can be opaque because of the care they take with parallel construction; the Lavabit case was maybe an example. It could have been easy to steal the key, but then how would the intercepted content have been used in court? In practice, there are tons of convictions made on the basis of cargo manifests, travel plans, calendars and other such plaintext data about which a suitable story can be told. The FBI considers it to be good practice to just grab all traffic data and memorialise it forever.

The NSA is even more cautious than the FBI, and won’t use top exploits against clueful targets unless it really matters. Intelligence services are at least aware of the risk of losing a capability, unlike vanilla law enforcement, who once they have a tool will use it against absolutely everybody.

IMSI catchers are "top exploits." While there's plenty of information out there on its capabilities, very little of it has been confirmed by the FBI or other law enforcement agencies. What makes the "exploit" better is that almost every deployment has been successfully hidden… from everyone. Parallel construction, abuse of pen register orders, dismissal of cases -- all of it works together to keep actual usage details out of the public's hands.

Because of this, there's very little anyone can do to avoid being swept up by Stingray devices other than avoid using cell phones. Most criminal enterprises require communication and cell phones are the cheapiest, easiest way to maintain contact. While spoofers can be sussed out with tools and apps, it requires the sort of proactive effort that often isn't present -- or practical -- in many criminal ventures. Yeah, you can sweep a hotel room for bugs, but you can't stop anyone from parking nearby and hoovering up call data and communications.

If this assessment is accurate, the FBI may be applying this intense pressure simply to prevent "vanilla" law enforcement agencies from using Stingrays as often and as carelessly as possible. Every deployment increases the risk of exposure. Tying cop shops up in NDA strings keeps dissemination to a minimum and encourages at least some form of risk analysis before deployment. It's the FBI saving law enforcement agencies from themselves, and protecting itself and its tool of choice at the same time.

[Or not. The Baltimore PD deploys its Stingrays around 600 times a year, so there are exceptions to this theory… or some agencies simply just don't care whether the effectiveness of this "exploit" suffers from diminishing returns.

And definitely click through to read the entire piece by Ross Anderson. It also discusses how intelligence agencies work around crypto they can't crack -- very germane to the discussion of the FBI's current decrypt-or-else complaints.]

Filed Under: enforcement, fbi, imsi catcher, law enforcement, overuse, secrecy, stingray, transparency

New York Times Publishes Name Of CIA's Drone Strike 'Architect' While Other Media Outlets Pretend This Is Still Some Sort Of Secret

from the 'unnamed'-means-'unaccountable' dept

The New York Times' recent coverage of the fallout from a targeted drone strike that took out two hostages -- one American, along with the suspected terrorist -- contained a detail missing from many other new outlets' coverage of the same incident: Michael D'Andrea.

D'Andrea is the "architect" behind the CIA's targeted strike program. D'Andrea's name had never been previously published by a major news source (although it had been outed elsewhere). The Washington Post -- in its pre-Snowden leak days -- featured a long profile of the chain-smoking Islam convert that included several personally-identifiable details about D'Andrea… but not his name.

Unfortunately, the Post's experience with Snowden didn't affect its stance on the publication of this official's name. Perhaps still too reliant on government assertions that naming D'Andrea would increase the risk of him being targeted by terrorists, the Post left his name out of a more recent article on his reassignment as part of a CIA reorganization.

The Post and the New York Times have both published leaked documents and both have become less willing to oblige obfuscatory requests by government officials over this time period. New York Time's executive editor Dean Baquet explained his paper's decision to publish D'Andrea's name this way:

Baquet said the Times would not reveal names in a gratuitous way, but Sunday's drone story demanded it.

“The whole story was about accountability,” he said. “In a story about accountability, how could you not mention the guys who run the program?”

Accountability is key. As long as journalistic operations continue to allow the government to decide whose names are printed, accountability will remain nothing more than an ideal towards which the government would prefer not to stride. The Post's decision to defer to government officials in its March story about D'Andrea is "explained" by a couple of sentences that could have been copied directly from an (unnamed) official's email.

Because he remains undercover, The Washington Post has agreed to withhold his full name. He has been publicly identified in the past by both his actual first name, Mike, as well as that of his CIA-created identity, Roger.

But leaders of the CIA's counterterrorism programs aren't "undercover" by default. As Gawker points out, previous occupants of D'Andrea's position weren't exactly concerned about exposure "risks."

D'Andrea's predecessor at the counterterrorism center was also treated as an undercover operative, but the position has historically been occupied by real, named senior government officials. The center's founding director was Duane "Dewey" Clarridge, a man who is not afraid of talking to reporters. Cofer Black, who ran the center during and after 9/11, was repeatedly named as such in the Post and trades on the experience to market himself as a paid speaker. Robert Grenier, who has also been named by the Post, highlighted the gig on the cover of his book.

D'Andrea wasn't (and isn't) an operative working in CIA field operations. He's an official (or was until recently) with the power to order drone strikes on foreign soil without even needing to verify the identities of those he's sentencing to death. That's too much power to hand over to someone who can't be held accountable -- not even in the most minimal fashion -- by the American public. These strikes have resulted in the death of several civilians, at least in part because D'Andrea sought -- and obtained -- permission to bypass the supposed "rules" of targeted drone strikes. When something goes wrong -- and it will -- there needs to be someone at the top of the line, known to the public, who should answer for it.

Even though the name is public knowledge (and has actually been so for a few years now), other members of the press are still acting as though it's possible to keep his identity a secret by simply refusing to do what the New York Times did.

When Times reporter Matt Apuzzo, who co-wrote the CIA drone story, appeared on MSNBC’s “Morning Joe,” co-host Mika Brzezinski signaled at the start that the segment wouldn’t veer into the agents’ identities.

“There’s a couple of different angles on this story,” Brzezinski said. "We’re going to not name names here.”

By doing this, these outlets are no better than the government they're protecting. Our intelligence agencies and various law enforcement counterparts still believe there's a way to retroactively apply secrecy to information already in the public domain. MSNBC's refusal to name names is no different than the DOJ claiming that documents it wants to keep secret are still secret simply because the order to hand them over to the public didn't originate from the DOJ itself.

Far too many articles on highly-controversial subjects contain quotes attributed only to "unnamed officials." The New York Times does this just as often as any other outlet, but at least it has shown it won't continue to obfuscate this detail about the CIA's drone strike program. Of course, the "damage" to D'Andrea is somewhat mitigated by his recent reassignment to elsewhere within the CIA, but it does at least allow the public to put a name to the faceless killings.

Filed Under: cia, classified, drones, journalism, michael d'andrea, secrecy
Companies: ny times

DOJ Apparently Last To Know About Widespread Stingray Usage/Secrecy; Vows To Look Into It

from the 'what-is-the-deal-with-all-these-Stingrays?'-no-longer-rhetorical dept

Considering the number of documents confirming the FBI's stranglehold on Stingray device information that have been made public in recent months (including the FBI's nearly-blank 5,000-page FOIA response), this move by the DOJ is a surprising development.

The Justice Department will start revealing more about the government’s use of secret cellphone tracking devices and has launched a wide-ranging review into how law-enforcement agencies deploy the technology, according to Justice officials.

Senior officials have also decided they must be more forthcoming about how and why the devices are used—although there isn’t yet agreement within the Justice Department about how much to reveal or how quickly.

So… caveats, obviously. There's more on the way, but we don't know when we'll get it, or how much it will actually be, but at least the DOJ will finally be taking a look at a technology that's being deployed by law enforcement agencies -- often without warrants. And when they do use warrants, they're often obtained with misleading affidavits so as to comply with the non-disclosure agreements the FBI forces them to sign before deploying the devices.

This is also surprising, considering the FBI wrote itself a large enough loophole to ensure it never needed to bother with this sort of paperwork.

In recent months, the Federal Bureau of Investigation has begun getting search warrants from judges to use the devices, which hunt criminal suspects by locating their cellphones, the officials said. For years, FBI agents didn’t get warrants to use the tracking devices.

One wonders how the Wall Street Journal knows this, considering the FBI is the last agency that would publicly confirm or deny anything about its Stingray usage. Perhaps some more documents are on the way whether the FBI likes it or not…

But it appears outside scrutiny has finally forced the DOJ to confront the all-encompassing secrecy surrounding Stingrays -- something that routinely excludes defendants and judges and sometimes stretches far enough to lock out other "good guys," like prosecutors and states' attorneys.

For the first time ever, legislators are beginning to ask uncomfortable questions about the technology. While the FBI can apparently blow off a majority of the US population -- including the judicial system -- it's not going to have nearly as much luck fending off determined lawmakers. The technology it loves could become the technology it can no longer have -- or at least see it subjected it to a number of requirements that would make it much less enjoyable to deploy.

Congressional scrutiny is never comfortable. But another contributing factor is the entities directly and indirectly involved with tracking cell phones: service providers. They're unhappy and they've got a pretty good idea how often requests for data are heading their way and how specious or redundant the requests are.

Federal law-enforcement and phone-company officials also have expressed concerns that some local police authorities were abusing a legal shortcut by submitting an inordinate number of requests for cellphone information, according to people familiar with the matter.

Some of this is parallel construction. Some of this is abuse of an avenue previously used to acquire specifically-targeted information: pen register/trap and trace orders. It's already public knowledge that law enforcement agencies -- backed by the FBI's own legal rationalizations -- are using these to cover Stingray usage and/or bypass warrant requirements.

On top of this, law enforcement agencies are busy ensuring that the words "exigent circumstances" become as meaningless as "relevant" or "probable cause."

About a year ago, Baltimore police officials began deluging some phone companies with requests for customer cellphone information, claiming it couldn’t wait for a judge’s order, according to people familiar with the matter. Normally, police need a court order to get that kind of information about a phone customer. But there is an exception for emergency requests. Phone companies’ rules vary, but they generally allow emergency requests to be fulfilled in missing-persons cases or when there is a risk of death or serious injury. Typically, the phone company employee doesn’t ask questions to verify the nature of the emergency.

No doubt the Baltimore PD used the hell out of this loophole, what with its 4,300 Stingray deployments over a seven-year period.

Whether this examination by the DOJ will result in any meaningful changes is debatable. It could easily decide that everyone's following all the rules, at least as far as the FBI's interpretation of statutes governing pen register orders. That it's actually securing warrants is a positive sign, but it would be nice to see if the affidavits actually specify the devices used to perform the "search." It's one thing to gather data on phone calls. It's quite another to lock down where that phone is located by sifting through everyone's data while pretending to be a cell tower -- especially considering the devices also have the capability to intercept certain communications.

Filed Under: doj, imsi catcher, secrecy, stingray, surveillance, transparency

ESPN & NFL Network Still Pretending Twitter Doesn't Exist During NFL Draft

from the on-the-clock dept

If you follow technology news long enough and you'll be imbued with a sense of wonder at how quickly most things technology-related progress. Social media rollouts blaze ahead and become dominant quickly. The specs inside our machines continue to balloon. Brand new tech comes out and is adopted by the younger generations with an ease that seems downright impossible. Companies, because they have to, embrace the speed of new technology as well. Everything is faster, more content-rich. It seems the early adopters these days are big corporations eager to gain an edge through the technology the public already is or soon will be using.

Which brings me to this question: have ya'll heard of Twitter? Yes, yes, I figured that you have, but I'd like to know whether any of you Tweeps out there happen to know anybody at the National Football League? Because they seem to think that Twitter is a thing that can be controlled when it comes to the NFL draft. It's been a couple of years since I first laughed at the NFL for forcing ESPN and the NFL Network, two of its broadcasting partners, to agree not to tweet draft picks before they were announced on television. Two years later, a lifetime in technological progress terms, and the NFL is stilll doing this, apparently.

ESPN and NFL Network both have rights to televise the NFL draft, and, as they have in the past, this year they will show the good and just Roger Goodell that they value the product he’s bestowed upon them by not allowing their reporters to tweet picks before the commissioner announces them at the podium. That NFL Network agrees to this makes sense. (It has no choice, since it’s a glorified PR channel for the league.) What’s ESPN’s excuse?

Well, some of us argue that ESPN has nothing to do with news and is instead a self-marketing institution built on the leagues for which it broadcasts. To that end, the "journalists" are actually marketing agents, doing the bidding of the ultimate customer, the leagues, including the NFL. Taken at face value, the agreement for ESPN reporters to refuse to tweet out much-sought information they've obtained is an abdication of any journalistic ethics they might pretend to have.

But the larger question is: who does the NFL think they're fooling? After all, this scheme would work wonders to control information about draft picks...if Twitter users only followed NFL Network and ESPN employees. That isn't how this works as a sports fan, of course, meaning that anyone who wants to get quicker information on the draft will certainly have it. That renders this whole exercise pretty damned meaningless for the NFL.

Filed Under: gag order, journalism, nfl draft, secrecy
Companies: espn, nfl, twitter

UN Expert: Secret Trade Negotiations Are A 'Threat To Human Rights'

from the null-and-void dept

Here on Techdirt, we've had plenty of posts looking at the major trade agreements currently being negotiated. As we've noted, criticism of TPP and TAFTA/TTIP has come from many quarters, particularly for the corporate sovereignty provisions, which are seen as problematic both on the left and right wings of the political spectrum. Intellectual Property Watch carries a fascinating statement criticizing key aspects of trade negotiations, which looks at things from quite a different angle. It's written by Alfred de Zayas, who is the "Independent Expert on the promotion of a democratic and equitable international order" -- apparently an honorary and unpaid position. In his statement, he expresses:

his deep concern over the general lack of awareness on the adverse effects that existing, or under negotiations, bilateral and multilateral free trade and investment agreements have on the enjoyment of human rights in many countries, particularly in the developing world.

Specifically, he is concerned about the secrecy of trade talks, and the fact that key stakeholders like trade unions, environmental protection grups and health professionals are excluded -- something that we've commented on many times here on Techdirt. He also thinks that fast-tracking the adoption of treaties -- as is currently being attempted in the US -- has a "detrimental impact on the promotion of a democratic and equitable world order." That's because, as de Zayas puts it:

It is tantamount to disenfranchising the public and constitutes a violation to accepted human rights law, which stipulates that every citizen shall have the right and the opportunity to take part in the conduct of public affairs.

No surprise, then, that de Zayas has particular concerns about an area that is very familiar to Techdirt readers: corporate sovereignty.

I am especially worried about the impact that investor-state-arbitrations (ISDS) have already had and foreseeably will have on human rights, in particular the provision which allows investors to challenge domestic legislation and administrative decisions if these can potentially reduce their profits.

...

The establishment of parallel systems of dispute settlement and their exemption from scrutiny and appeal are incompatible with principles of constitutionality and the rule of law, and as such are harmful to the moral welfare of society ("contra bonos mores").

One intriguing point de Zayas makes is that since all nations are bound by the UN Charter, any treaties they negotiate must also conform to its provisions. Article 103 of that Charter states that if there is any conflict between a treaty and the UN Charter, it is the Charter that prevails. That has interesting implications for corporate sovereignty cases before ISDS tribunals:

Provisions of free trade and investment agreements as well as decisions of ISDS arbitrators must conform with the UN Charter and must not lead to a violation, erosion of or retrogression in human rights protection or compromise State sovereignty and the State’s fundamental obligation to ensure the human rights and well-being of all persons living under its jurisdiction. Agreements or arbitral decisions that violate international human rights law are null and void as incompatible with Article 103 of the UN Charter and contrary to international ordre public.

That's a great point, although it's a little hard to see it having much practical impact on the current negotiations. Unfortunately, the same might be said about the whole of de Zayas's statement, but it's certainly good to have his analysis here.

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

Filed Under: alfred de zayas, human rights, secrecy, tpp, trade agreements, transparency, ttip, un

President Obama Demands Critics Tell Him What's Wrong With TPP; Of Course We Can't Do That Because He Won't Show Us The Agreement

from the most-transparent-administration-in-history dept

President Obama is apparently quite annoyed by the fact that his own party is basically pushing against his "big trade deals" (that are not really about trade). Senator Elizabeth Warren has been pretty aggressive in trashing the TPP agreement, highlighting the fact that the agreement is still secret (other than the bits leaked by Wikileaks). In response, President Obama came out swinging against the critics of TPP arguing that "they don't know what they're talking about."

He insists that it's unfair to compare TPP to NAFTA because they're different deals:

“You need to tell me what’s wrong with this trade agreement, not one that was passed 25 years ago.”

Well, Mr. President, I would love to do that, but I can't because you and your USTR haven't released the damn text. It takes an insane lack of self-awareness for the guy who once declared his administration "the most transparent in history" to demand people tell him what's wrong with his trade agreement, when that agreement is kept entirely secret.

Furthermore, multiple experts concerning things like the corporate sovereignty ISDS provisions and the intellectual property chapters have gone into great detail as to why the leaked versions have problems. They're not complaining about NAFTA. They're actually complaining about the latest drafts -- but the USTR won't acknowledge them because they're talking about leaked versions.

In fact, the only real complaints I've seen relating to NAFTA concern the fact that the government says one thing about these big agreements, but the reality is something different.

Of course, he attacks the fact that people are complaining about the secrecy as well, by arguing (misleadingly) that the deal is not at all secret:

“The one that gets on my nerves the most is the notion that this is a ‘secret’ deal,” Obama said. “Every single one of the critics who I hear saying, ‘this is a secret deal,’ or send out emails to their fundraising base saying they’re working to prevent this secret deal, can walk over today and read the text of the agreement. There’s nothing secret about it.”

I'm a critic. I can't walk over today and read the text of the agreement. Obviously, President Obama is only talking about elected members of Congress. But that's not what they're complaining about. They're complaining about the fact that the American public cannot see the text of the document or discuss the specifics of what's in there. And that's absolutely true.

And even the fact that members of Congress can actually see the document is tremendously misleading. Yes, members of Congress are allowed to walk over to the USTR and see a copy of the latest text. But they're not allowed to take any notes, make any copies or bring any of their staff members. In other words, they can only read the document and keep what they remember in their heads. And they can't have their staff members -- the folks who often really understand the details -- there to explain what's really going on.

And it all comes back to the point that Senator Warren has been making for a long time: that former USTR Ron Kirk has admitted that a big reason why they keep the document secret is that when they tried being more transparent in the past, the agreement failed. As Warren says, if being transparent with the American public means the agreement will fail, then the problem is with the agreement, not the public.

“When I keep on hearing people repeating this notion that it’s ‘secret,’ I gotta say, it’s dishonest,” Obama continued. “And it’s concerning when I see friends of mine resorting to these kinds of tactics.”

Here's a little test: can we see the current TPP documents today? No? Then it's secret. Claiming otherwise is what's dishonest.

Filed Under: barack obama, elizabeth warren, president obama, secrecy, tpp, transparency, ustr

If You Really Think TPP Is About 'Trade' Then Your Analysis Is Already Wrong

from the don't-fall-for-the-marketing. dept

George Mason University professor Bill Schneider recently had an interesting blog post over at Reuters in which he discusses how Hillary Clinton is in a tough spot concerning the TPP and TTIP agreements, in that much of the Democratic party is now vehemently against these "trade" deals, while historically, the Clintons have been for them. The piece argues that whichever side Hillary takes will create a problem for her presidential campaign. The politics in the piece may be right, but almost the entire thing is built on the assumption that the TPP agreement really is about "trade" and that such an agreement will lead to cheaper goods and such. Take this passage for example:

Trade is not an ideological issue. It’s a populist issue — the people versus the establishment. Ordinary Americans are suspicious of trade deals. Economists have a hard time understanding this, but most people see trade not as an economic issue but as a moral issue.

People think it’s wrong for them to benefit as consumers from lower prices for foreign-made goods if it throws Americans out of work. Will they purchase the foreign-made goods? Of course they will — as long as they’re cheaper. That’s rational economic behavior. They just don’t think they should be allowed to.

I don't think that's actually what people are thinking at all, but even if we run with it, it's based on the very faulty premise that these agreements have anything to do with free trade at all. As we've discussed in the past, they do not. They are quite clearly often about the opposite of free trade. In the past, we've strongly recommended Michael Goodwin's epic comic about TPP where he shows how it's really got little to do with free trade, and everything to do with the ability to move investment capital around: Perhaps an even better explanation comes from Tim Lee over at Vox, who goes into the history of these agreements, noting that the "free trade" stuff has mostly already been taken care of, as there aren't that many meaningful tariffs/trade barriers left. Instead, trade agreements have become a sort of secret playground for big corporations to abuse the process and force favorable regulations to be put in place around the globe. He discusses the history and how organized labor, the copyright industries, the pharmaceutical industries and more now basically use trade agreements as a secretive, anti-democratic process to force through regulations they want.

As the opportunities for trade liberalization have dwindled, the nature of trade agreements has shifted. They're no longer just about removing barriers to trade. They've become a mechanism for setting global economic rules more generally.

This trend is alarming to Simon Lester, a free trader at the Cato Institute. "We've added in these new issues that I'm skeptical of," he says. "It's not clear what the benefits are, and they cause a lot of controversy."

And this system for setting global rules has some serious defects. We expect the laws that govern our economic lives will be made in a transparent, representative, and accountable fashion. The TPP negotiation process is none of these — it's secretive, it's dominated by powerful insiders, and it provides little opportunity for public input.

If you make the facile assumption that the TPP is actually about free trade, then you might be confused about all the hubbub about it. If you actually take the time to understand that much of what's in there has nothing to do with free trade and, in fact, may be the opposite of free trade, you realize why there's so much concern.

Filed Under: free trade, hillary clinton, investment, non-tarriff barriers, regulations, secrecy, tpp, trade, trade agreements, ttip

UK Government Refuses To Reveal Job Title Or Salary Of Top Law Enforcement Officer Because Terrorism

from the oh,-come-on dept

As Techdirt has reported previously, the UK government is so reflexively secretive that it even refuses to confirm or deny information that it has previously confirmed. The Intercept reports on another absurd case of completely trivial requests for information being turned down because "terrorism". It's refusing to reveal either the job title or salary of Cressida Dick, a top government official in some apparently mysterious role:

The British government is refusing to disclose the job title and taxpayer-funded salary of one of the most senior law enforcement officials in the United Kingdom, claiming the details have to be kept a secret for security reasons.

Cressida Dick (pictured above) was formerly one of the highest ranking officers at London’s Metropolitan Police, the largest police force in the U.K., where she headed the Specialist Operations unit and oversaw a controversial criminal investigation into journalists who reported on Edward Snowden’s leaked documents.

In December, Dick announced she was leaving the London police to take up a top job with the government’s Foreign Office. But her new role is being shrouded in intense secrecy.

It's just about theoretically possible that the job title could reveal operational details of the role in question -- something along the lines of "Head of Department Trying To Use Man-In-Middle Attacks To Spy On Google Users in the Middle East" -- but only if that job title were extremely ill-chosen. Moreover, the British civil service has centuries of experience in coming up with grand-sounding but totally meaningless job titles, so it's hard to believe that for the first time in its glorious history it was really stumped, and had to resort to literalism. Refusing to release details of the salary attached to the position is even more ridiculous -- unless, of course, UK officials are required to use their secret stipend's digits as a password to access government systems.

All that the UK government achieves by refusing to release this information is that it comes across as risible and petty, ridiculously focused on controlling unimportant details, instead of concentrating on what really matters. Things like respecting the public's desire to know how its taxes are being spent, rather than dismissing it as if it were an impertinent question from a tedious child.

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Filed Under: cressida dick, foia, government, secrecy, uk

Baltimore Cops Asked Creators Of 'The Wire' To Keep Cellphone Surveillance Vulnerabilities A Secret

from the works-of-fiction-with-too-much-truth? dept

Over the past decade, criminals have apparently gained an insurmountable technology lead over law enforcement. I'm not sure how this is possible, especially considering many criminals don't have access to the same technology cops do, much less access to generous DHS funding, and yet, here we are witnessing police officers (following orders from the FBI) tossing cases and lying to judges in order to "protect" secret tools that aren't all that much of a secret.

We recently covered a Baltimore detective's courtroom admission that a) the Baltimore PD had deployed its Stingray equipment 4,300 times over the past seven years and b) that it had hidden this information from courts and defendants. The argument for this secrecy was that doing otherwise allows criminals to devise ways to beat the system.

No one's looking to expose ongoing investigations, but as far as some law enforcement agencies are concerned, everyone is under continuous investigation by default. And since that's the case, anything that might be construed as giving criminals a head start is subject to a thoroughly ridiculous code of silence that excludes the majority of the justice system.

This cop-specific technopanic is so all-encompassing that it has bled over into the unreality of creative efforts -- like TV shows. (via The Verge)

David Simon, creator of "The Wire" and a former Baltimore Sun reporter, said in an email that "the transition from landlines to cellular technology left police investigations vulnerable well over a decade ago."

He noted that there was new technology at the time — such as Nextel phones that mimicked walkie-talkies — that "was actually impervious to any interception by law enforcement during a critical window of time."

"At points, we were asked by law enforcement not to reveal certain vulnerabilities in our plotlines," Simon said. That included communications using Nextel devices.

The Wire also featured detectives using a cell signal-capturing device called a "Triggerfish." Any relation to today's Stingrays is likely not coincidental, no matter what the post-credits disclaimer might have stated. The Stingray isn't a secret, but it has been awarded an unprecedented amount of secrecy. Cops lie to judges, defendants and even prosecutors to keep the Stingray out of the public eye. And yet, it seems clear that The Wire's creators knew something about the technology over a decade ago.

But the inherent ridiculousness of asking a fictional television show to withhold dramatic elements just because they may have hewed too closely to reality can't be ignored. Criminals will find vulnerabilities in the system and law enforcement will work hard to close these gaps. But criminals aren't so far ahead as to be unstoppable.

This attempt to censor The Wire isn't much different than the law enforcement secrecy efforts we see being deployed in courts. The motivation behind these efforts is highly suspect. It doesn't seem so much to be aimed at preventing criminals from exploiting vulnerabilities as it is at keeping law enforcement officers from working any harder than they feel they should have to. It's not about keeping bad guys from outmaneuvering cops. It has more to do with preventing public disclosure from resulting in unwanted changes -- like additional scrutiny from magistrate judges or the challenging of submitted evidence. It's about preserving the most efficient law enforcement methods -- generally anything that doesn't require permission from an outside entity or generate a paper trail.

Filed Under: baltimore, baltimore police, fbi, imsi catcher, secrecy, stingray, the wire, vulernabilities