DOJ Says Tech Companies Can Sort Of Release FISA Numbers, But.. In A Way That Decreases Transparency

from the that's-not-good dept

Last week, we noted that Google had publicly requested from the DOJ that it be allowed to reveal information about the FISA surveillance requests it gets, and put them in its well-respected transparency report. Facebook, Microsoft and Twitter quickly followed with similar requests. Late Friday, the DOJ "gave permission," but in perhaps the most useless way possible. Facebook was the first to post the data that the DOJ allowed it to post, and you might immediately see the problem:

As of today, the government will only authorize us to communicate about these numbers in aggregate, and as a range...

For the six months ending December 31, 2012, the total number of user-data requests Facebook received from any and all government entities in the U.S. (including local, state, and federal, and including criminal and national security-related requests) – was between 9,000 and 10,000. These requests run the gamut – from things like a local sheriff trying to find a missing child, to a federal marshal tracking a fugitive, to a police department investigating an assault, to a national security official investigating a terrorist threat. The total number of Facebook user accounts for which data was requested pursuant to the entirety of those 9-10 thousand requests was between 18,000 and 19,000 accounts.

Right. So you may notice that this tells us absolutely nothing about the FISA requests. Because the only way that it could actually reveal anything was to bury them in with every other possible type of request. Facebook did, properly, point out that this wasn't really all that transparent:

This is progress, but we’re continuing to push for even more transparency, so that our users around the world can understand how infrequently we are asked to provide user data on national security grounds.

Microsoft posted something quite similar. And equally useless.

Here is what the data shows: For the six months ended December 31, 2012, Microsoft received between 6,000 and 7,000 criminal and national security warrants, subpoenas and orders affecting between 31,000 and 32,000 consumer accounts from U.S. governmental entities (including local, state and federal).

Microsoft, too, noted the limitation that the DOJ gave them:

We are permitted to publish data on national security orders received (including, if any, FISA Orders and FISA Directives), but only if aggregated with law enforcement requests from all other U.S. local, state and federal law enforcement agencies; only for the six-month period of July 1, 2012 thru December 31, 2012; only if the totals are presented in bands of 1,000; and all Microsoft consumer services had to be reported together.

There is one interesting tidbit:

We have not received any national security orders of the type that Verizon was reported to have received that required Verizon to provide business records about U.S. customers.

Considering that this surveillance program -- the so-called "business records" search, which comes from Section 215 of the Patriot Act with a still-secret interpretation by the FISA Court that appears to allow blanket requests for pretty much all data -- is the much more serious issue, it's nice to see Microsoft being able to say that it has received no such orders.

Google and Twitter also both received the same "permission," but both quickly realized that this was not transparency at all. Lumping in FISA requests with everything else does absolutely nothing to reveal the extent of those FISA requests. In fact, it obfuscates them:

“We have always believed that it’s important to differentiate between different types of government requests,” a Google spokesperson said in a statement. “We already publish criminal requests separately from National Security Letters. Lumping the two categories together would be a step back for users. Our request to the government is clear: to be able to publish aggregate numbers of national security requests, including FISA disclosures, separately.”

Twitter responded with a simple tweet (you expected more?) from legal director Ben Lee, saying:

We agree with @Google: It's important to be able to publish numbers of national security requests—including FISA disclosures—separately.

So, once again, we have the federal government pretending to be transparent, when it's really not. It's only trying to hide the actual number of FISA requests and the number of users impacted. Frankly, this whole demand for excess secrecy over these things makes no sense at all. What could we possibly be "alerting our enemies" to if there were broad general numbers of the number of FISA requests that were sent to Google, Twitter, Facebook and Microsoft? Sure, the actual information requested should remain secret. But the number of requests? That makes no sense at all.

Filed Under: doj, fisa, fisa court, fisa requests, fisc, transparency, transparency report
Companies: facebook, google, microsoft, twitter

Senator Warren: If TPP Transparency Would Lead To Public Opposition, Then TPP Is Wrong

from the nicely-stated dept

It would appear that new Senator Elizabeth Warren is on the side of transparency when it comes the Trans Pacific Partnership (TPP) agreement. Sometimes it feels like Senator Wyden is the only one who cares about this issue, so it would be nice to have someone else step in as well. Following USTR nominee Michael Froman's Senate hearings, Warren has sent a letter to the White House asking for its negotiating position on the TPP. The key point, which should be repeated over and over again is the following:

I have heard the argument that transparency would undermine the Administration's policy to complete the trade agreement because public opposition would be significant. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States. I believe in transparency and democracy and I think the U.S. Trade Representative (USTR) should too.

This is actually in direct response to claims from the former USTR, Ron Kirk, who pointed to a failed trade agreement -- the Free Trade Area of the Americas -- which was handled in a much more open fashion as support for why the TPP must remain secret. But the reasoning there, as Senator Warren correctly notes, is ridiculous. If the trade agreement failed because the public opposed it, that should be seen as a good thing, because the government was stopped from going against the will of the people.

Warren's overall letter is great. Here's another snippet and the full text is embedded below.

President Obama made transparency and inclusion a centerpiece of his election, and in many areas, he has opened the doors of government to ensure that the product of governing can withstand public scrutiny and is not the product of back-room deal making.

While I have no doubt that the President's commitment to openness is genuine, I am concerned about the Administration's record of transparency regarding the Trans-Pacific Partnership. Specifically, I am troubled by the Administration's unwillingness to provide to the public the composite bracketed text relating to the negotiations. As you know, the composite bracketed text includes not only proposed language from the United States but also proposed language from other countries. These different proposals are brought together in one text, and negotiations focus on ironing out the various proposals and getting to agreement on common language. The lack of transparency in this area is troubling because, as you know, the bracketed text serves as the focal point for actual negotiations. I appreciate the willingness of the USTR to make various documents available for review by members of Congress, but I do not believe that is a substitute for more robust public transparency.

Filed Under: democracy, elizabeth warren, michael froman, public opposition, secrecy, tpp, transparency, ustr

USTR Nominee Confuses Transparency With Listening

from the other-direction,-mr.-froman dept

We've already explained why were were worried that new USTR nominee Michael Froman would be as bad, if not worse, than his predecessor, Ron Kirk. And, in his Senate approve hearings he provided little to change that opinion:

Sen. Ron Wyden (D-Ore.) raised the extraordinary secrecy shrouding the Obama administration's trade negotiations to date.  Wyden has blasted USTR's incredible decision to keep the negotiating text of the sweeping TPP pact, affecting everything from food safety to Internet freedom, hidden from the U.S. public and even from members of Congress.  Not even the Bush administration attempted that degree of secrecy.  Wyden asked, "If confirmed, will you make sure that the public...gets a clear and updated description of what trade negotiators are seeking to obtain in the negotiations so that we can make this process more transparent in the future?" Wyden further asked that negotiating texts be placed online.  Froman responded by saying he agrees with the principle of transparency.  But instead of committing to a meaningful fulfillment of that principle by releasing the TPP text online (as done under Bush), he reiterated USTR's general desire to seek input from "stakeholders."  It is of course difficult for stakeholders to provide meaningful input if they cannot see the thing in which they have a stake.   

Of course, as we've explained many times, transparency has nothing to do with seeking input from stakeholders, but the opposite: providing information to the public. Listening is important to understand what's going on, but that's not transparency.

It's pretty simple: information flowing into the USTR is not transparency. Information flowing to select interests is not transparency. Releasing information to the public is transparency. How does the USTR continually get away with pretending otherwise?

Separately, as the article linked above notes, Froman refused to comment on whether he supported investor-state dispute resolution mechanisms that are showing up in trade agreements and which, as we've been highlighting, are so dangerous. He'd only say it's a matter worthy of discussion. But then refused to discuss it. Which says a lot. He also claimed he was going to continue to seek fast track authority, which they renamed Trade Promotion Authority -- which basically forces Congress to sign away its right to oversee what's in TPP. These are all very worrisome statements, because it means we're getting more of the same: a USTR that wants to make an end-run around the public and Congress, but which is driven by the interests of some of the largest companies.

Filed Under: michael froman, tafta, tpp, transparency, ustr

How Can NSA Surveillance Leaks Both Be No Big Deal And Put Us All In Danger?

from the do-tell dept

As the NSA and the administration continue to seek to spin the fallout from the leaks that revealed some of the overreaching surveillance efforts of the NSA, what's incredible is how self-contradictory the statements are, even when coming from the same source. The go-to defender of the program has been Director of National Intelligence James Clapper, who has tried arguing both that the leaks and these programs are no big deal and that they present a grave danger to intelligence operations. It's incredible.

First, there's playing it down as no big deal:

In a statement issued Saturday, Director of National Intelligence James R. Clapper Jr. described PRISM as “an internal government computer system used to facilitate the government’s statutorily authorized collection of foreign intelligence information from electronic communication service providers under court supervision.”

“PRISM is not an undisclosed collection or data mining program,” the statement said.

Hmm. So if it's no big deal, and all they're doing is facilitating statutorily authorized collection of data, why all the secrecy? Why not be transparent about all of that? And, also, if it's just keeping track of all the legally obtained stuff, why then would he also say the following:

“For me, it is literally – not figuratively – literally gut-wrenching to see this happen because of the huge, grave damage it does to our intelligence capabilities,” Clapper told NBC News’s Andrea Mitchell.

And later, he claimed that the leaker (this was before Snowden revealed himself) had "chosen to violate a sacred trust for this country" and that the leaks "affects the safety and security of this country."

I can't see any way to put together the earlier statements with the later statements that makes any sense at all. If all they were doing is analyzing statutorily authorized data, then there shouldn't be any concern. We'd expect the NSA to have a computer system to do exactly that, right? So... um... why is it damaging to the nation and putting us all at risk? It seems more likely that the truth is that what was revealed wasn't just a simple system for collecting data, as we can see, but rather just how much information the NSA is gathering up into its huge databases. Furthermore, the idea that this puts us in danger is, frankly, insulting. Most folks involved in terrorist activity already assume their phone calls are being tracked, so it's not like this is going to change their tactics.

Filed Under: dni, james clapper, no big deal, nsa, nsa surveillance, prism, secrecy, transparency

EU's Chief Negotiator Has Learned Nothing From ACTA, Will Negotiate TAFTA In Secret

from the not-a-good-idea dept

The EU trade Commissioner, Karel De Gucht, was a driving force behind ACTA, and apparently he's learned nothing about why ACTA failed so spectacularly in Europe. MEP Christian Engstrom pointed out to De Gucht that a big part of the reason why ACTA failed was the lack of transparency, and asked him to be more transparent with TAFTA (the Trans Atlantic Free Trade Agreement, but which many are calling TTIP -- for Transatlantic Trade and Investment Partnership). De Gucht's response was to insist that he cannot negotiate transparently, and then to outright mock Parliament for suggesting that it has a role in the negotiations.

... on the subject of openness, I have no problem saying what we are doing and what we want to achieve and, when not speaking in public, how I want to achieve this. But you are all politicians. So you should know – and I think you do know – that you cannot negotiate openly. You do not do that in your parties either; you do not do that in your constituencies. You need to focus – and yes, of course we have to report on what we are doing, explaining why we are doing things and why we are making some concessions; we will have to make concessions in the course of these negotiations. But you need a certain degree of confidentiality in negotiations. You also need it because your counterpart is asking for it; if not, you cannot negotiate.

It is interesting that it seems that there is a copy of one of the drafts of the negotiating mandate. So what? It is a draft. The Presidency has, of course, to make sure that they come to an agreement within the Council, so they put forward possible ways to get out of any difficulties that we have to deal with. Immediately, very vocal Members of this Parliament say that this is a scandal and that we are traitors and cannot be trusted. Of course you can trust me, because in the end you can say ‘No’. You have done so in the past. You said ‘No’ to ACTA: I am still not convinced that it was the right choice, but you decided to do so and that was how it was. You have the final word.

But a parliament is not created to negotiate. It is not its job. I think I have been in a parliament for a longer time than most of you –25 years. Maybe there are some who have been in a parliament as long – Mr Brok has already left, but he has certainly been in a parliament for more than 25 years – but not very many. I have never sought to negotiate an agreement from within a parliament because it simply does not work.

What you have to do – and you do it in an eloquent way – is indicate the important points that you want to mention, that you want me to look at and which you will question me about. You will scrutinise me and in the end will vote against me if I do not do that. But a parliament cannot negotiate, because a parliament only exists as a body when it votes. Outside of voting you take up individual positions. You cannot negotiate with 20, 30 or 50 different positions. That is not possible. You need to negotiate on the basis of a mandate, and then, of course, you have to demonstrate that you have been following your mandate.

Of course, MEPs weren't asking to let Parliament negotiate the deal, just for some transparency in what was being negotiated in the public's name. De Gucht's answer is misleading. Plenty of international agreements are negotiated with significantly greater transparency than what happened in ACTA, what's happening now with TPP and what's likely with TAFTA/TTIP. Governments can and should reveal the basic things they are negotiating for, to allow for some level of public comment. But that's not what happens. Things are negotiated in secret, in backrooms, with the help of industry lobbyists, and at the end we're given a "take it or leave it" document, which then (in most cases) is rammed through with little debate. It's the opposite of democracy.

Of course, ACTA showed that the public can rise up and take a stand against this, and Engstrom points out that if they did it for ACTA, they can do it again:

The positive thing about the whole ACTA affair was that there are now hundreds of thousands of European citizens who have, at least once, been demonstrating on the streets of various European cities against the trade agreement. There are lots of citizens now who take an interest in these agreements.

This is a very positive thing, but by insisting on the same kind of secrecy – only handing out secret documents to the members of the INTA Committee – the Commission is setting itself up for the same kind of failure. I would urge you to re-think this and become transparent.

It appears that De Gucht has decided not to re-think this, and to take the position that the ACTA response was an aberration. I'm sure that will play well with all the people who fought against ACTA.

Filed Under: acta, christian engstrom, eu, eu commission, eu parliament, karel de gucht, protests, secrecy, tafta, transparency, ttip

New USTR Nominated; Will He Commit To Transparency?

from the don't-bet-on-it dept

President Obama has nominated Michael Froman to be the new USTR, to take over for Ron Kirk who stepped down recently. Most of the stories on Froman note that he's well known in this space and has been a key player in a number of trade agreements -- including with South Korea, Colombia and Panama. That should worry us all, because those three awful trade agreements more or less set the tone for ACTA and TPP with their incredible levels of secrecy, combined with ridiculous and extreme intellectual property provisions.

People have noted that South Korea's free trade agreement was "the model" for ACTA, which included exceptionally ridiculous copyright rules. In fact, most recently, South Korea is starting to push back and reconsider those rules that were pushed on it by the US. The agreement in Panama led to that country passing what some referred to as the worst copyright law in history. And, as for Colombia, you may remember that it rushed through its own dreadful version of SOPA in a mad dash to get into "compliance" with that free trade agreement a week before Obama was set to visit.

So all three of those "historic" trade agreements included really nasty copyright provisions. Is this really the guy we want leading the USTR?

The folks over at the EFF are asking Froman to agree to end the policy of secrecy with negotiations on free trade agreements. If Froman gets the job, he'll be in charge of both the TPP and TAFTA. He should first agree that intellectual property has no place in free trade agreements, drop those sections from the two agreements while also agreeing that the USTR will be transparent in what it's asking for on our behalf. That means actually telling the public what it is proposing, rather than keeping it a secret.

The EFF has also set up a petition demanding that the new USTR end backroom negotiations and promise to stop legacy corporate interests from sneaking in ways to regulate the internet through these secret trade negotiations.

Earlier this year, we noted that it was trade agreements like the one with South Korea that now effectively prevent Congress from allowing you to unlock your phone. Froman has significant responsibility for that whole mess. If he wants to show that he's not just pushing an agenda to protect a few companies who don't want to adapt to a changing marketplace, he should admit that those agreements were a mistake, and promise that future trade agreements will be open and transparent, and won't include intellectual property provisions.

Filed Under: michael froman, ron kirk, transparency, ustr

What New-Style Trade Agreements Are Really About (Hint: It's Not Trade)

from the not-in-Kansas-anymore dept

Given the massive impact that new-style trade agreements like TPP and TAFTA/TTIP are likely to have on the lives of hundreds of millions of people, it's surprising how few members of the public know about what's being negotiated in their name. Fortunately, publications are starting to run more articles on the subject, like this great piece by David Brodwin in US News.

It offers a good discussion of the key problems with TPP -- things like the lack of transparency, the absence of meaningful public participation, and the deepening loss of national sovereignty -- before concluding with this excellent analysis of what's really going on with TPP, which also applies to TAFTA/TTIP:

In a global economy, trade policy has sweeping ramifications for every sector of the economy. Decisions on trade policy are really decisions on the relative power of corporations and governments. Trade policy affects employment rates, wage levels, the availability of capital, environmental conditions, public health, and much more. We cannot allow negotiations over these vital things to be conducted by secret bodies, without public oversight, comment, and ultimately the right of the public to affirm or reject these agreements.

The nature of trade pacts has changed significantly. Once upon a time, trade negotiations were largely about countries seeking advantage over other countries, or seeking to dismantle tariffs that prevented fair and open competition. Now the negotiations are about dominant industries seeking to prevent competition rather than encourage it. The negotiations are about dominant global-scale industries seeking to undercut government efforts to regulate them in the public interest. There is no such thing as a simple "trade pact" anymore.

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Filed Under: tafta, tpp, transparency, ttip

US Demands Transparency Everywhere -- But Only From Everyone Else

from the do-as-I-say,-not-as-I-do dept

Techdirt has written about the Special 301 report many times, but that's not the only US government publication putting other countries on the naughty step. Another is the less well-known National Trade Estimate Report on Foreign Trade Barriers (pdf):

The 2013 National Trade Estimate Report on Foreign Trade Barriers (NTE) is the 28th in an annual series that surveys significant foreign barriers to U.S. exports. This document is a companion piece to the President's Trade Policy Agenda published in March. The issuance of the NTE Report continues the elaboration of an enforcement strategy, utilizing this report, among other tools, in that strategy.

The report offers detailed discussions of the habits of 57 countries, but they all share a rather significant theme: transparency -- or, rather, the lack of it. It really seems the US just can't get enough of it. Here, for example, is a sample of the report's comments from the section on the European Union:

The U.S. pharmaceutical industry has expressed concerns regarding some EU and Member State policies affecting market access for pharmaceutical products, including nontransparent procedures and a lack of meaningful stakeholder input into policies related to pricing and reimbursement, including therapeutic reference pricing and other price controls.

Lack of transparency is also an issue for uranium, it seems:

The United States is concerned that nontransparent EU policies may restrict the import into the EU of enriched uranium, the material from which nuclear power reactor fuel is fabricated.

Public procurement is another area where transparency is cited as a big problem: countries singled out for a mention here include Bulgaria, the Czech Republic, Greece, Hungary, Italy, Lithuania and Slovenia.

Reading through the rest of the 400-page report, it's truly extraordinary to see transparency mentioned dozens of times as one of the US's key concerns with other countries around the world. Of course, that's deeply ironic, since the US was not only the lone holdout against ACTA transparency, and responsible for reducing what little transparency was present in the TPP negotiations, but it even refused to be transparent about its own positions on transparency. Hypocritical much?

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Filed Under: nte, transparency, ustr

Congress Quickly And Quietly Rolls Back Insider Trading Rules For Itself

from the can't-mess-with-the-profits dept

In November of 2011, the TV show 60 Minutes did a big expose on insider trading within Congress. While everyone else is subject to basic insider trading rules, it turned out that members of Congress were exempt from the rules. And, as you would imagine, many in Congress have access to market-moving, non-public information. And they made use of it. To make lots and lots of money. Of course, after that report came out and got lots of attention, Congress had to act, and within months they had passed the STOCK Act with overwhelming support in Congress to make insider trading laws that apply to everyone else finally apply to Congress and Congressional staffers as well. As that link notes:

The lopsided votes showed lawmakers desperate to regain public trust in an election year, when the public approval rating of Congress has sunk below 15 percent.

Of course, here we are in 2013 and, lo and behold, it is no longer an election year. And apparently some of the details of the ban on insider trading were beginning to chafe Congressional staffers, who found it hard to pad their income with some friendly trades on insider knowledge.

So... with very little fanfare, Congress quietly rolled back a big part of the law late last week. Specifically the part that required staffers to post disclosures about their financial transactions, so that the public could make sure there was no insider trading going on. Congress tried to cover up this fairly significant change because they, themselves, claimed that it would pose a "national risk" to have this information public. A national risk to their bank accounts.

It was such a national risk that Congress did the whole thing quietly, with no debate. The bill was introduced in the Senate on Thursday and quickly voted on late that night when no one was paying attention. Friday afternoon (the best time to sneak through news), the House picked it up by unanimous consent. The House ignored its own promise to give Congress three days to read a bill before holding a vote, because this kind of thing is too important to let anyone read the bill before Congress had to pass it.

And, of course, yesterday, President Obama signed it into law. Because the best way to rebuild trust in Congress, apparently, is to roll back the fact that people there need to obey the same laws as everyone else. That won't lead the public to think that Congress is corrupt. No, not at all.

Filed Under: congress, corruption, insider trading, transparency

The Real Reason Janet Napolitano Doesn't Like Email -- Accountability

from the don't-make-me-back-up-my-statements dept

We've already detailed the cognitive dissonance created by DHS head Janet Napolitano's statements on email usage. Last September, she blithely pointed out that she doesn't use email "at all," and in fact, "avoids many online services." She went on to say that some would call her a "Luddite" and seemed to present the incongruous situation as comical. Hilarity ensued. Powerful government official says, "What, me internet?" LOLS at 11.

So, we all had a good, if disbelieving laugh at her our own expense (we're still paying her salary), and Janet Napolitano went back to not checking the email account she doesn't have and not internetting with any regularity -- the sort of thing that might be considering endearing if it weren't for the fact that so many politicians openly brag about their lack of computer skills, while simultaneously crafting, amending, voting on a variety of computer-related laws.

Napolitano broached the email subject again recently at a breakfast organized by the Christian Science Monitor. She restated her view on email as a non-essential annoyance, rather than, say, an extremely useful communication tool.

Ms. Napolitano said she cut the email cord while governor of Arizona “because I was just getting — you know, you get hundreds and hundreds of things all the time.”

In her current job, “which has a hundred thousand different things that happen on any given day, [not using email] allows me to focus on where I need to focus,” she added.

I can understand feeling overwhelmed by incoming email, but many other people have to deal with the overflowing inboxes and, while they may not like the tedium of dealing with the incoming traffic, they also realize it's an important part of their job and a byproduct of changes in the way people communicate. I'm also fairly sure Napolitano has a staff at her disposal and the power to delegate much of email busywork to others.

So, there's the "it's too much" angle. But her followup comment seems to indicate the real reason she's abandoned email.

“I also don’t like the process where people could send you an email, then say, see, you were told, or you know this. And then it comes back two years later to say, hey, you got this email — among the thousands you get every day.

“I want to be a little more selective on how that goes,” she concluded.

Oh, I see. Napolitano doesn't want to be accountable. That's interesting bullshit. Once again, she has a staff to use. She has any number of resources available to help her organize her incoming mail. She has a lot more tools at her disposal than most, and yet she'd rather just turn the switch to OFF in order to avoid any accountability for statements made, answers given or issues ignored.

Cutting off a heavily-used communication form isn't being "selective." It's willful exclusion, and it places Napolitano's self-interest above the interests of the public and the responsibilities of her position. Would anyone cut her any slack if she had announced she took her phone off the hook back when she was governor of Arizona and STILL HASN'T REPLACED THE HANDSET? "I don't like this process where people call you, then say you were told or you know this. And it comes back two years later, hey, we spoke on the phone -- among the thousands of phone calls I get every day." Would that be acceptable?

There are people out there who think Napolitano should be excused for abandoning email. I would imagine many of these people find this form of communication just as tiresome as she apparently does, but their personal antipathy (and hers) doesn't excuse this sort of exclusionary behavior. Many people hate the demands this accessibility places on them. But they just can't ignore it, especially if they're in the sort of position Napolitano's in.

It was already irritating when she was just doing her "I'm a Luddite LOL" schtick. By openly admitting she's not thrilled that stored electronic communication can be used to hold her responsible for statements or actions, she's crossed the line from obtuse into contemptuous. Our leaders are supposed to be accountable for their actions, and yet many of them do everything they possibly can to avoid it. The DC motto has become "With great power comes selective responsibility," and Napolitano's statement is sadly, unsurprising.

Filed Under: accountability, government, homeland security, janet napolitano, transparency