Google Blasts DOJ's Request For Expanded Search Powers; Calls Proposal A Threat To The Fourth Amendment

from the to-keep-up-with-the-bad-guys,-we're-just-going-to-need-the...-EVERYTHING dept

The DOJ wants to amend Rule 41 (Search and Seizure) to grant its agencies unilateral powers to hack any computer in the world. This would expand its reach beyond the US, using warrants granted by magistrate judges to facilitate searches and seizures of remote data. This would obviously open up a whole diplomatic can of worms, what with the FBI hacking into computers whose locations it can't ascertain until after the fact.

Not that the DOJ is bothered by the implications of the amendment it's pushing. It argues that the law already has determined searches in known jurisdictions legal. What's left to be established is whether it's similarly legal to search computers whose true location is unknown, thanks to the use of proxies and VPNs. That operating extraterritorially might cause some diplomatic strain or possibly even be illegal in the country the search takes place doesn't seem to have crossed its mind. In its opinion, this is the natural progression of Rule 41, which must be updated to reflect the change in technology.

Google has fired back at the DOJ in its comments on the proposed wording change, pointing out not only the damage it could cause to international relationships, but also its further dismantling of Fourth Amendment protections.

Although the proposed amendment disclaims association with any constitutional questions, it invariably expands the scope of law enforcement searches, weakens the Fourth Amendment's particularity and notice requirements, opens the door to potentially unreasonable searches and seizures, and expands the practice of covert entry warrants.

Google then suggests that if the DOJ wishes to keep stripping away these protections, it should have the decency to do it the way it's usually been done: through acts of Congress.

The substantive changes offered by the proposed amendment, if they are to occur, should be the work of congressional lawmaking. Such was the case with a slew of legislation providing law enforcement with the ability to use technological means to conduct invasive searches on targets, including the Foreign Intelligence Surveillance Act, which provides law enforcement with the ability to legally surveil and collect foreign intelligence information; Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which provides law enforcement with the ability to legally intercept wire, oral, and electronic communications; the Stored Communications Act, which provides law enforcement with the ability to legally access electronically stored communications; and the Pen Registers and Trap and Trace Act and USA PATRIOT Act, both of which provide law enforcement with the ability to legally intercept real-time telephony metadata. In passing this legislation, Congress was able to openly debate and weigh the various constitutional issues at play.

This would seem to be the least the DOJ can do, rather than trying to sidestep the process it forces American citizens to use.

"I empathize that it is very hard to get a legislative change," Amie Stepanovich, senior policy counsel with Access, a digital-freedom group, told the judicial panel during a meeting called to review the proposal in November. "However, when you have us resorting to Congress to get increased privacy protections, we would also like to see the government turn to Congress to get increased surveillance authority."

Google also warns that the non-specific wording of the proposal lends itself to all sorts of shady tactics.

There are a myriad of serious concerns accompanying the government's use of NITs [Network Investigative Techniques]. These are outlined in detail in other comments submitted to the Committee and include, among other things, the creation of vulnerabilities in the target device thereby increasing the target's risk of exposure to compromise by other parties, actual damage to the target device, the creation of a market for zero-day exploits, and unintended targets' exposure to malware. Additionally, the remote facilities accessed by the government may in fact identify and disclose the 'hack' or take action to prevent it or retaliate against its use. These are serious concerns that are more appropriately considered and balanced by Congress than by the Committee.

Again, with the exception of the eventuality listed last, these are side effects the DOJ couldn't care less about. Collateral damage is almost always acceptable, and at this point -- considering what we've learned about the tactics deployed by the NSA and other intelligence agencies -- making things worse and less safe for the world's citizens is just another essential part of fighting Wars on Things.

The DOJ seems to view its proposal as a necessity in the race against technological advance, rather than a dangerous expansion of power that could result in some very negative repercussions. Unfortunately, the nation's prosecutors and magistrate judges seem to be very much aligned with the DOJ. Both refer to the Rule 41 change as "filling a significant gap" in existing law.

But it does far more than that. The DOJ argues it's just a needed tweak, but it gives its agencies unprecedented extraterritorial powers and encourages these investigators to view anonymous connections as inherently suspicious.

Filed Under: doj, fbi, hacking, overseas, rule 41, search powers, warrants
Companies: google

FBI Claims Drone Impact Assessment That Was Redacted In Full Six Months Ago Suddenly Can't Be Located

from the federal-bureau-of-(deliberate)-ineptitude dept

The FBI's assessment of its drones' impact on the privacy of Americans has never been made public. It's been nearly a decade since it first deployed drones, and the agency has yet to provide anything on the subject. FOIA requests (there are several out there) have been greeted with nothing -- every single page withheld under the government's go-to exception, b(5).

Now, it's telling FOIA clearinghouse MuckRock that its obfuscatory efforts have buried the documents so deep even the FBI doesn't know where its Privacy Impact Assessment is.

Six months ago, the Federal Bureau of Investigation refused to release its plans to tackle privacy risks posed by drone surveillance. Now the agency claims it can’t track them down at all. So does the one Justice Department office responsible for making sure such reports get filed in the first place.

As Shawn Musgrave of MuckRock points out, the FBI's continued secrecy runs contrary to both the FOIA and its own obligations to the general public in terms of its surveillance programs' impact on the American public.

By design... PIA reports are meant for public consumption. They are supposed to candidly outline potential privacy risks for a given piece of software, data collection initiative or other technology, as well as the steps taken to address such risks. And unless an agency presents a good case otherwise, PIAs are supposed to be published online.

MuckRock refiled its previously-rebuffed FOIA request, adding a demand for any internal memos regarding the FBI's decision to not only withhold this impact assessement in full, but its refusal to post its PIAs online per standard operating procedure. It sent the same request to the Office of Privacy and Civil Liberties -- the oversight agency tasked with ensuring agencies like the FBI don't cut the public out of the loop by withholding required impact assessments. The OPCL also had no idea where this document -- that it is charged with obtaining and holding -- might have gone.

Last week, the Justice Department confirmed that neither the FBI nor OPCL had been able to find anything despite “an adequate, reasonable search for such records.”

So… did the FBI toss the troublesome document into the nearest shredder (as if it isn't stored online somewhere within its internal network)? Or is it simply uninterested with fulfilling the minimal requirements of its accountability to the public? The latter appears to be the likeliest answer. In an update to MuckRock's original post about the MIA PIA, Shawn Musgrave reports that the DOJ has issued a statement suggesting MuckRock go fuck itself try the same thing that resulted in zero released pages six months ago.

Two hours after publication and in the wake of three FOIA requests, the Justice Department declined to clarify whether the FBI has analyzed potential privacy risks posed by its drones. “The questions you raised are best addressed through FOIA,” wrote Peter Carr, a Justice Department public affairs specialist, in reply to an email asking if the FBI had filed drone privacy impact assessments, “and it is my understanding that you sought similar information already through our FOIA office.”

The Justice Department’s privacy office thus dodged a yes-or-no matter — has the FBI has completed the legally mandated privacy analysis process? — by referring to previous, unclear FOIA responses. “Should you seek further information, please submit another request,” suggested Mr. Carr in conclusion.

"Unclear" is being generous. The original FOIA response looked like this:


And the most that could be determined from this "response" is that the FBI's drone impact assessment contains at least 26 pages and, at one point, was somewhere where the feds could actually locate it.

EPIC, which is currently suing the FBI over its refusal to publish its privacy impact assessments, is completely baffled by the collective shrug offered by these two agencies -- one which is supposed to craft and publish its assessments and that's supposed to provide (obviously needed) oversight. Both seem equally uninterested in fulfilling the requirements of their jobs.

EPIC lawyers are stumped by the Justice Department’s response to FOIA requests for its drone reports, and particularly the OPCL’s claim not to have any PIA documents.

“They review the privacy impact assessment—that’s part of their responsibility within the Justice Department,” says Ginger McCall, who heads EPIC’s Open Government Project.

Well, transparency and accountability are both part of the three involved agencies' jobs, but none of them seem interested in even creating the appearance of paying lip service to those crucial aspects of their responsibilities to the public. Instead, we get a list of pages the FBI won't let us read, followed by the declaration that the document is missing entirely.

Filed Under: doj, drone impact assessment, drones, fbi, foia, hiding, office of privacy and civil liberties, opcl

School Principal Contacts FBI After Student Throws American Flag Out A Window

from the perhaps-the-most-'Murica-thing-that-has-ever-happened dept

In the stupidest case of school administrators taking federal agencies' names in vain since a Huntsville, AL school swore a phone call from the NSA prompted its secret social media monitoring program, a middle school principal from Espanola, NM is threatening to sic the FBI on a student who threw an American flag out a classroom window.

A middle school principal said a student was misbehaving with his friends and took things too far. The student threw an American flag out a second-story classroom window. Now the principal says the 14-year-old needs to be held accountable.

Sure, maybe a stern discussion with him and his parents and a couple of weeks of detention would do the trick. But that's not enough for Principal Robert Archuleta. He has already suspended the student for 10 days and is now pushing for his expulsion. But he also wants the feds to take control of the situation... because jingoism.

“He says, ‘Because I was just messing around,’ and he started to laugh,” Archuleta said. “Then the other kids were laughing, the kids that were with him. ‘There goes the flag.’ That was his last statement.”

The principal is a veteran. His father is also a veteran who fought in World War II.

“A lot of men have died over [the flag], men and women,” Archuleta said. “We fought to keep our country safe and to keep it free.”

Well, let's stop you right there, Robert. Nobody "died over the flag." The flag is a symbol of this country and what it stands for, but it is not what people die "over." They die defending this country and the freedoms it affords its citizens -- among them being the right to throw a flag out the window. It's not as starkly effective as burning it, but it's pretty much the same thing.

Archuleta believes this amounts to the federal crime of desecrating the flag… except that no such law exists. Sure, legislators who also mistakenly believe they've sent people off to "die over the flag" have repeatedly tried to pass laws making this a crime, and they have repeatedly been told "please stop doing this" by the Supreme Court. These same misguided lawmakers have also sought to dodge the court system entirely by proposing Constitutional amendments to the same effect, but have yet to see these ratified.

So, turning this student over to the FBI to be "held responsible" for a non-existent crime will be completely fruitless and only side benefit will be the entertainment it provides to those who enjoy watching fools prove themselves foolish. (Which, granted, is a lot of us...)

The FBI told KRQE News 13 they haven’t yet received the complaint yet, but if a federal crime was committed they will investigate and turn the results over to the U.S. Attorney’s office.

But there hasn't been, so it won't. All that will happen is that Archuleta will continue to make one student's life completely miserable because he doesn't seem to comprehend nothing more than a personally-offensive incident has taken place. And he's apparently willing to wrap himself in the now-dusty flag to do it. Loving your country is one thing. Assuming it won't be able to weather this 14-year-old's assault on one of its many symbols without federal intervention is quite another. And using your misguided patriotism as the impetus for punishments that far outweigh the non-crime is an abuse of the power granted to you by the public.

Filed Under: alabama, american flag, fbi, huntsville, robert archuleta, school, students

FBI Says All Public Records Requests For Stingray Documents Must Be Routed Through It

from the the-first-rule-of-Stingray-Club... dept

The FBI definitely does not want the nation's law enforcement agencies to talk about their Stingray devices. Manufacturer Harris Corporation has aided and abetted this secrecy -- first by misleading the FCC on the intended use of the devices (emergencies only) and then by claiming the FCC required law enforcement to sign non-disclosure agreements with the FBI, something the FCC has denied.

Other federal law enforcement agencies have also helped keep documentation on Stingray usage out of the public's hands. Last year, the US Marshals stepped in to physically remove documents from the Sarasota (FL) police department to prevent them from being turned over to the ACLU in response to a FOIA request. The US Marshals Service has also ordered local law enforcement agencies to lie about their use of Stingray devices -- not just in terms of FOIA requests but while presenting evidence in court.

Ars Technica has come across another document involving the FBI, Harris Corp. and lying. Originally obtained and published by the Minneapolis Star Tribune, the memo (written by the FBI) states that any open records requests for Stingray-related documents must be routed through the FBI first [pdf link]:

In the event that the Minnesota Bureau of Criminal Apprehension receives a request pursuant to the Freedom of Information Act (5 USC 552) or an equivalent state or local law, the civil or criminal discovery process, or other judicial, legislative, or administrative process, to disclose information concerning the Harris Corporation [REDACTED] the Minnesota Bureau of Criminal Apprehension will immediately notify the FBI of any such request telephonically and in writing in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels.

As Cyrus Farivar points out, similar memos have very likely been sent out to other local law enforcement agencies. There's a lot more in the very restrictive agreement, most of it blacked out. The letter from the FBI opens by making the dubious claim that releasing this information would render the agency unable to "protect the public from terrorism and other criminal activities." This is the normal language of secrecy and it has very little to do with the public's protection and everything to do with withholding responsive documents. The capabilities and technology behind Stingray devices are already public knowledge. Criminals and terrorists are already aware that cell phones, while useful, are also little pocket narcs that generate tons of data easily obtained with little more than a subpoena -- or actively obtained with these devices. The "method and means" can't be further compromised. All the FBI is doing is burying information about legally-dubious devices in common usage.

The FBI has dropped several restrictions on this particular law enforcement agency, including:

The Minnesota Bureau of Criminal Apprehensions will not distribute, disseminate, or otherwise disclose any information concerning the [redacted] to the public, including to any non-law enforcement individuals or agencies.

[...]

The MBCA will not distribute, disseminate, or otherwise disclose any information concerning [redacted] provided to it to any other law enforcement or government agency without the prior written approval of the FBI.

The FBI also states that it will intervene in court proceedings to keep this information secret.

A copy of any court order in any proceeding in which the MBCA is a party directing disclosure of information concerning the Harris Corporation [redacted] will immediately be provided to the FBI in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise.

And who knows what the FBI is preventing here, but it would seem to be pretty expansive.


Not only is there very limited value in withholding this information, considering how much has been exposed despite these entities' efforts, but there's every indication that law enforcement agencies (with the FBI's help) are sabotaging both accountability and the discovery process with these demands. Both are ethically unsound, and the latter borders on unconstitutional.

Filed Under: fbi, investigations, privacy, stingrays

Minimal Tweaks To The Government's Surveillance Apparatus Reaffirm That Status Is Still Mainly Quo

from the although-the-FBI-may-be-partially-out-of-the-parallel-construction-business dept

The Privacy and Civil Liberties Oversight Board -- reconvened in a hurry after Snowden began leaking -- has just released a followup report on its recommendations for NSA surveillance program fixes. What it found was that some progress had been made, but most of its major recommendations (like shutting down the Section 215 program) were barely underway. In some cases, its recommendations had been ignored completely -- like its call for some measure of the Section 215 and Section 702 program's effectiveness in fighting terrorism. To date, no data has been provided by the NSA that would justify these bulk surveillance programs.

The Office of the Director of National Intelligence has just released a list of surveillance program tweaks for the NSA (and the agencies that dip into the haystacks: the FBI and CIA). Changes are being made, although many of them are minimal and others are hidden behind a wall of secrecy. The administration -- which ordered the convening of the PCLOB and backed up its findings -- has said very little about the NSA's programs over the intervening months.

The New York Times, covering the rule tweaks, was only able to obtain statements from unnamed government officials. The exposure of surveillance on foreign leaders in allied countries (primarily Germany's Angela Merkel) generated a lot of heat, ultimately resulting in a rare promise from President Obama himself that this would be discontinued. Presumably, other world leaders have been dropped from the surveillance list, but it's anyone's guess which ones are no longer being eyeballed by the NSA.

Mr. Obama has never said whom, beyond Ms. Merkel, he took off the list of foreign leaders whose conversations are monitored, but it appeared that programs in Mexico and Brazil continued, while several dozen leaders have been removed.

“There’s now a process in place that the National Security Council runs,” said one senior official. But the results of that process — especially the names of leaders whom the White House plans to keep monitoring — will remain secret.

The administration has announced some smaller tweaks as well, including some targeting one of its most abused pieces of paper: the National Security Letter. When a warrant or information request is rejected, agencies (mainly the FBI) deploy these instead. NSLs will still be abused, but the public may have a chance to finally see the abuse for themselves.

In the new rules, “the F.B.I. will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years” after the opening of an investigation, the administration will announce, or at the close of the investigations. But an exception can be made if a midlevel F.B.I. official offers a written justification for continued secrecy.

The exception can be expected to swallow the rule. Rarely, if ever, does any judge challenge the government's national security claims -- which will likely be the "written justification" used most to push NSL gag orders in the direction of "forever."

There is a small chance legislators will allow the Section 215 program to die. The expiration date for the bulk metadata program is June 1st. The companies affected by these orders have demanded they be "compelled" to turn over the data, which would take an act of Congress. If Congress isn't up for it, the expiration date could pass and finally end the controversial (and useless) program. But given recent terrorist attacks and highly-visible ISIS activity, the legislative pendulum is likely swinging back towards more surveillance and fewer surveillance reforms.

The changes that are being implemented don't solely affect the NSA. As noted above, the FBI and CIA also have access to the NSA's collections under these programs (phone metadata, email content). It's no secret the FBI has used NSA data in the past (along with other related agencies), disguising its origin through parallel construction. The programs' guidelines allow the NSA to pass on information related to criminal activity or possible criminal activity. This may no longer be the case. The wording is vague but as Marcy Wheeler (of the essential surveillance-focused blog Emptywheel) reads it, it seems to suggest the FBI will no longer have this option.

If FBI is adopting "new" policy of only using 702 info against people in NatSec cases that means existing policy was?

The old policy can be somewhat gleaned from FISA court opinions obtained via FOIA lawsuits. FISA judge Roger Vinson noted this in his 2007 decision granting the NSA permission to continue with its email collection program (Section 702):

Information that is not foreign intelligence information, but reasonably appears to be evidence of a crime that has been, is being, or is about to be committed, may be disseminated (including United States person identities) to the FBI and other appropriate federal law enforcement authorities, in accordance with 50 U.S.C. 1806(b), Executive Order No. 12333…

This would indicate the FBI has used these programs in its investigative work over the past seven years, if not longer. The parallel construction hid the information's origin from both the courts and defendants. There was simply no way the government was going to expose its domestic surveillance programs in court, at least not until Snowden's leaks made its secrecy moot.

Now, after multiple years of the FBI allowing the NSA to do its dirty work in the name of "national security" (something the FBI would never be allowed to do under the auspices of law enforcement), the system is finally being reset to where most Americans always assumed it had been: NSA for national security and FBI for law enforcement, rather than the perversely symbiotic relationship the agencies talked legislators and the FISA court into supporting. Not that this means the FBI won't have access to the data (it is in the national security business as well), but it should curtail its tendency to use the easiest available method, regardless of legality.

Filed Under: fbi, nsa, odni, surveillance

FBI's 'We're From The Cable Company' Ruse Not Convincing To Magistrate Judge

from the we-can't-fix-the-problem-but-we-can-look-through-all-your-stuff dept

The FBI's decision to impersonate repair technicians in order to perform a warrantless search is backfiring. Last July, FBI agents investigating an illegal gambling operation worked with Caesars Palace Casino to cut the internet connection to three villas it believed were the operation's ad hoc headquarters. It then sent agents disguised as repairmen to "fix" the problem. Once inside, these agents took photos, recorded video and otherwise observed what they believed to be an illegal bookmaking operation.

Shortly after this warrantless search, the FBI decided it was time to get a search warrant. In its warrant request, it conveniently left out the part where it cut the DSL connection and sent in agents dressed as repairmen. Because of this "fatally flawed" application, a Nevada magistrate judge is recommending the federal district court toss the warrant and suppress the evidence. [Decision pdf link]

Magistrate Judge Peggy Leen ruled that the failure to mention that the original case was born from the "ruse" meant the judge who signed a search warrant this summer didn't have all of the facts. Nowhere in the search warrant request, however, did the authorities mention that they allegedly saw illegal wagering on computers after posing as technicians who in reality briefly disconnected the DSL.

"The investigators' suspicions that Phua was engaged in illegal sports betting at Caesars Palace may be borne out by the evidence recovered in the execution of the warrant," Magistrate Judge Peggy Leen ruled "However, a search warrant is never validated by what its execution recovers."

The material omission of the probable cause's origin (a warrantless search using agents posing as repairmen) should have been enough to get this warrant tossed. The FBI, of course, claimed it omitted this information because it was "law enforcement sensitive." One would think a magistrate judge should have access to sensitive material because it's part of the "law enforcement" field, but the FBI apparently felt otherwise.

Beyond that, there were several flaws in the application -- flaws Judge Leen says weren't intentional but "reckless." The FBI skewed the minimal amount of information it had collected from its illegal entry to make it seem as though it had actually acquired much more damning evidence.

The affidavit was written in a way to suggest investigators had much more information linking Phua to an illegal sports betting operation or wire room connected with the occupants of villa 8888. The affidavit’s repeated use of the phrase “Phua’s and his associates” or “Phua’s associates” or “at the behest of Phua or one of his associates” suggests that Phua was making requests and engaging in conduct which he was not.

And that's only one small part of the affidavit. According to Judge Leen, nearly everything the FBI stated in support of its warrant request completely misrepresented what was actually happening at the Caesar's Palace villas. (Keep the following in mind the next time you visit Las Vegas. In an FBI agent's vivid imagination, your normal, lawful gambling can easily acquire very sinister connotations.)

The application failed to disclose to the issuing magistrate judge that Wood and SA Lopez defied the butler’s instruction to remain in the butler’s pantry and entered the villa in violation of the Fourth Amendment. The application also falsely stated that Wood was fearful for his safety and was too afraid to accompany SA Lopez on a subsequent entry into villa 8882. A video of Wood’s interaction with the butler taken on July 4, 2014, and produced by the government in discovery reveals this claim is false.

[...]

The affidavit falsely stated that an unidentified “associates” of Paul Phua reserved all three villas and that the residents of the villas arrived close in time to each other. In fact, the principal resident of villa 8888, Hui Tang, made his own arrangements with Caesars and arrived several days later than the warrant application claims…

[...]

The application is grossly misleading in claiming that eight separate internet lines were installed, and by omitting the fact that the only unusual amount of computer equipment was in villa 8888 and was installed at the request of that villa’s occupants. Caesars installed a single line in each of the six villas in the building, including three villas whose occupants were unrelated to this case.

[...]

The agents were working with Caesars’ DSL contractor, Wood TMS, and knew by July 4, 2014, that Caesars had decided to install DSL internet service in each villa as an alternative means of internet access because of pervasive problems with the internet service provided by Cox Communications. The installation of a single DSL line in 8882 did not signify any unusually large amount of internet traffic, and there was no evidence that the residents of 8882 made any unusual requests for equipment or technical support.

[...]

The affidavit described deposits to Caesars and transactions between Phua and his associates through Caesars which grossly distorted the nature of those transactions…[T]here is nothing suspicious about gamblers transferring money to their casino accounts. “Front money” deposits are common, and the casino frequently requires a deposit to extend credit. The application omitted references to these facts and attempted to characterize the deposits as suspicious.

[...]

The application represents that Phua transferred $3 million to Gyouye Huang. Huang was a guest in villa 8882. Caesars’ record actually indicates “signed marker MKR for $3Mil trans to 4266598 [Huang Caesars player number] Chen Husan per MG/Bing.” The search warrant application omitted reference to the fact that that it is common for gamblers to share credit lines and that specific individuals involved in this investigation had done so in prior years on prior gambling trips. Even assuming the agents were “confused,” confusion is not probable cause, and the credit line was not fairly characterized to the issuing magistrate judge.

And then there's the testimony of Special Agent Minh Pham, which contains an interesting statement caught by Marcy Wheeler of Emptywheel.

After Pham submitted and obtained the search warrant, he learned the affidavit contained errors. Specifically, it stated that Paul Phua wired $4 million into a Caesars account to secure a credit line. Pham later discovered it was actually Seng Chen “Richard” Yong that requested the wire to secure both their lines of credit. However, at the time Pham submitted the search warrant affidavit, he believed it was correct that Paul Phua had initiated this transfer.

The affidavit also stated Paul Phua had transferred approximately $900,000 from a casino in Fort Lauderdale, Florida, to the Caesars account. However, Pham later learned that Paul Phua had been only one of the individuals who signed the consent to have that money wire-transferred into Yong’s account. At the time Pham submitted the affidavit, he believed the statement was true based on documents from Caesars concerning monetary transfers that he had received. Pham referred to the spreadsheet contained in government’s Exhibit 2F as a document he relied upon to support his statement in the affidavit. The font size was very small and difficult to read.

He also discovered another error in the affidavit days later. There were transfers for $3 million between individuals in the villas. He looked at the spreadsheet, and it was off by one or two lines,” which caused him to associate the wrong name with the transfer.

As Wheeler notes, the FBI seems to have a malleable baseline when it comes to font sizes. What Caesars turned over voluntarily was "very small and difficult to read." But the agents used it without demanding something more legible. Compare that to the high-profile government takedown of encrypted email developer Ladar Levison.

You’ll recall that when the FBI went after Lavabit to get its crypto key, Lavar Levison tried to comply by providing a printout of the key. But the government complained it was illegible, and got Levison held in contempt.

So, Levison's 4-point printout of his encryption key was too small for the FBI, which complained to the court until it got its way. In this case, a "too small" printout was used without complaint, ultimately resulting in several flawed assertions being made in a warrant affidavit. "Too small" must be another part of the FBI's double standards -- one that makes concessions to third parties more amenable to the agency's aims.

A district court judge will make the final decision as to whether this warrant remains tossed. The saddest part about this is that the FBI gave itself an (illegal) head start and still managed to hand in a warrant request loaded with bad detective work and worse conjecture.

Filed Under: 4th amendment, cable company, cutting internet access, doj, fbi, hotel, paul phua, peggy leen, warrant
Companies: caesers

FBI Added Lulzsec Hactivist Jeremy Hammond To The Terrorist Watchlist A Year Before He Was Arrested

from the terrorism-is-just-things-we-don't-fully-comprehend dept

Jeremy Hammond -- a member of various Anonymous offshoots -- had the misfortune of being prosecuted in the United States. While his UK accomplices in the Stratfor hack were sentenced to 1-3 years, Hammond received a 10-year sentence (along with three years of supervised release) for his participation. The length of Hammond's sentence was mainly due to the CFAA (Computer Fraud and Abuse Act) being a horribly-written law (and there's a possibility it will get much worse in the future), and the FBI's willingness to toss the hacktivist under the bus for the sins of Anonymous, while glossing over the fact that it was an FBI informant (Hector Monsegur, aka Sabu) who handed out hacking targets to Hammond.

Hammond's lengthy prison sentence may also have to do with other bad laws written by legislators who didn't have a full understanding of the issues they were attempting to address. A leaked document obtained by the Daily Dot [pdf link] shows the FBI put Hammond on the government's terrorist watchlist more than a year (Date/Time Entered: 1/19/2011) before he was arrested for the Stratfor hack.

A leaked document originating from the New York State Division of Criminal Justice Services (DCJS) reveals that Hammond was considered a "possible terrorist organization member," and indicates that he was placed on the multi-agency Terrorist Screening Database (TSDB), alongside individuals suspected of ties to Al Qaeda, Somalia-based extremists al-Shabaab, and Colombia's leftist FARC guerilla movement.

Here's the pertinent information is all of its teletyped glory:



The document also includes Hammond's rap sheet, which up to that point, only includes fraud and unauthorized computer access related to the theft of credit card information from a conservative website. What it doesn't include is anything that might justify his addition to the terrorist watchlist -- unless the FBI considers protests to be a terrorist activity.

Of course, the government agencies that have the power to place US citizens on terrorist watchlists don't seem interested in providing justification for their decisions. Just having a vague sense of unease seems to be all the "evidence" any agent/official needs to declare a person a threat to this country. Nearly 40% of those currently on the government's terrorist watchlist have "no known affiliation to recognized terrorist groups."

The government has long shown it doesn't understand hacking and is no fan of activism -- generally viewing both activities as some sort of threat. So, on the watchlist Hammond went, something that presumably played a part in the prosecution's push for a decade-long sentence for the hacktivist. His actions and motives were often far from pure, but his imprisonment appears to be a result of the FBI throwing an unwitting operative onto the judicial scrapheap before moving onto its next sting operation.

Filed Under: anonymous, doj, fbi, jeremy hammond, lulzsec, terrorist watch list, tsdb

FBI Defuses Another Of Its Own Terrorist Plots; John Boehner Pretends It's Evidence That We Need To Renew The PATRIOT Act

from the wag-that-dog dept

Last week, as you may have heard, the Justice Department breathlessly announced that it had uncovered and broken up a terrorist plot against the government, leading to the arrest of a 20 year-old man, Christopher Lee Cornell, in Ohio. According to the FBI, Cornell was planning to go to the US Capitol and kill government officials. As often happens with these kinds of announcements, the press was quick to jump in and fuel the narrative of some big terror plot that the FBI was able to miraculously disrupt at the last minute.

For years now, we've pointed out a pattern of how nearly every big headline about the US disrupting a domestic terrorist attack was almost always about the FBI creating its very own plot, and then pressuring and cajoling some vulnerable, poverty-stricken, desperate Muslim (almost always Muslim) young men into "joining" this plot. This happens despite those individuals rarely having expressed direct interest in any sort of terrorist activity, or having any connections or means to carry out such activity. But with continued pressure from "FBI informants" (who tend to either by paid by the FBI or are trying to reduce punishment for other crimes they've been charged with -- or both), eventually these men agree to take part in a "plot" that was entirely designed by the FBI and had no chance of ever happening. We've written about similar occurrences over and over and over and over and over and over and over and over and over and over and over and over again.

It looks like this one is more of the same. As The Intercept reports:

 The alleged would-be terrorist is 20-year-old Christopher Cornell, who is unemployed, lives at home, spends most of his time playing video games in his bedroom, still addresses his mother as “Mommy” and regards his cat as his best friend; he was described as “a typical student” and “quiet but not overly reserved” by the principal of the local high school he graduated in 2012.

Not only did he just convert to Islam a few months ago (and there's no indication that he ever actually attended the mosque that he claimed to have joined), but the details of the overall story certainly match the pattern of an FBI made up plot:

The affidavit filed by an FBI investigative agent alleges Cornell had “posted comments and information supportive of [ISIS] through Twitter accounts.” The FBI learned about Cornell from an unnamed informant who, as the FBI put it, “began cooperating with the FBI in order to obtain favorable treatment with respect to his criminal exposure on an unrelated case.” Acting under the FBI’s direction, the informant arranged two in-person meetings with Cornell where they allegedly discussed an attack on the Capitol, and the FBI says it arrested Cornell to prevent him from carrying out the attack.

For someone supposedly plotting a terrorist attack, Cornell didn't seem particularly subtle. The affidavit notes that Cornell first came to their attention because of his tweets in support of ISIS. Then the informant reached out to him and began pushing the plot.

Yet, it's not just the mainstream press that is exaggerating this story. Speaker of the House John Boehner wasted little time in claiming that Cornell was only discovered because of "the FISA program."

“The first thing that strikes me is that we would’ve never known about this had it not been for the FISA program and our ability to collect information for people who pose an imminent threat.”

Except, uh, no. The dude was posting on a public Twitter feed and then had a government informant reach out to him. It doesn't look like anyone needed any particular "FISA program." Thankfully, at least some reporters quickly called bullshit on this, noting that the facts of the case don't at all match up with a situation in which any sort of FISA-approved surveillance effort was needed.

Instead, it seems clear that this is just blatant and cynical fear-mongering by John Boehner in the lead-up to the fight to renew certain provisions of the PATRIOT Act, including Section 215, which is the program under which the NSA and FBI get bulk phone records from phone companies (and, most likely, other bulk records). As Julian Sanchez points out in the link above, there seems to be no reason to have used data collected under Section 215 in this case:

According to the criminal complaint, it was an informant hoping to reduce his own criminal sentence who brought Cornell to the Bureau’s attention. Nor, indeed, was Cornell particularly subtle: Under the Twitter handle ISBlackFlags, he pseudonymously voiced support for the Islamic State and violent jihad. If that’s true, then while it would hardly be surprising if Cornell’s phone records were reviewed at some point in the investigation, it’s hard to see how a bulk telephone database could have been essential to identifying him. Once Cornell had been identified, of course, traditional targeted intelligence or law enforcement authorities would have been sufficient to allow investigators access to his metadata—or, for that matter, his online communications.

But, knowing that the fight over renewing Section 215 is going to be a big deal later this year, it appears that Boehner used this as a bogus excuse to start laying the groundwork for such an approval. Remember, that multiple groups -- including the White House's own review board and the government's Privacy and Civil Liberties Oversight Board -- couldn't find any evidence that the 215 program was necessary in stopping a single domestic terrorist attack. The only case that it was really involved in was a guy in California sending some money back to Somalia.

When the fight to renew 215 really ramps up, this lack of a success story is likely to come up. And, thus, it appears that the supporters of the surveillance state are desperately in need of some "success stories" for the 215 program, and Boehner seems to have rushed out and grabbed the first available one and he's going to milk it for all its worth.

“I’m going to say this one more time because you’re going to hear about it for months and months to come as we attempt to reauthorize the FISA program: Our government does not spy on Americans — unless they are Americans who are doing things that frankly tip off our law enforcement officials to an imminent threat. It was our law enforcement officials and those programs that helped us stop this person before he committed a heinous crime in our nation’s capital.”

Except, no, it wasn't. This sounds like yet another of the government self-built plots that had no chance of ever taking off, and the only reason Cornell, a homebound videogame player who calls his mother "Mommy," got involved was because he was a gullible, disenchanted kid who spouted off some stupid statements on Twitter, making him easy prey.

Filed Under: chris cornell, christopher lee cornell, doj, fbi, fisa, john boehner, nsa, own plot, own plots, patriot act, section 215, surveillance

Leaked Intelligence Document Calls For More, Not Less Encryption To Protect Companies And Citizens From Cybercriminals

from the and-yet,-everyone-seems-to-be-calling-for-less dept

Everyone from FBI Director James Comey to UK Prime Minister David Cameron is calling for an end to encryption. The FBI is afraid it won't be able to catch criminals if it can't immediately access content and communications. David Cameron is afraid it will be nothing but constant terrorist attacks from here on out if authorities don't have access to "every means of communication."

Considering many of these voices decrying encryption presumably have access to top secret briefings and documents otherwise unseen by the general public, it's rather surprising they've ignored previous advice from intelligence officials to the contrary.

A secret US cybersecurity report warned that government and private computers were being left vulnerable to online attacks from Russia, China and criminal gangs because encryption technologies were not being implemented fast enough.

[...]

The document from the US National Intelligence Council, which reports directly to the US director of national intelligence, made clear that encryption was the “best defence” for computer users to protect private data.

This document comes from The Guardian's stash of Snowden leaks. What it says runs completely contrary to the panicked assertions of officials. It even runs contrary to the NSA's own actions, like its active attempts to weaken NIST standards. The report recommends strong encryption, coupled with multi-factor authentication, which would make data and communications wholly inaccessible to the NSA (and GCHQ, its steady surveillance partner).

But this recommendation doesn't come from an outside source. It's an intelligence council that reports directly to the head of national intelligence. And yet, the word didn't spread very far. The NSA isn't thrilled with encryption because it keeps what it wants out of reach. Law enforcement has the same "problem." Both have actively worked to undermine encryption for their own aims and both are perfectly willing to open up citizens and companies to outside attacks in order to preserve the status quo.

And it's not just American agencies that have ignored these recommendations. The GCHQ is engaged in the same cognitive dissonance.

Another newly discovered document shows GCHQ acting in a similarly conflicted manner, despite the agencies’ private acknowledgement that encryption is an essential part of protecting citizens against cyber-attacks.

The 2008 memo was addressed to the then foreign secretary, David Miliband, and classified with one of the UK’s very highest restrictive markings: “TOP SECRET STRAP 2 EYES ONLY”....

The memo requested a renewal of the legal warrant allowing GCHQ to “modify” commercial software in violation of licensing agreements. The document cites examples of software the agency had hacked, including commonly used software to run web forums, and website administration tools. Such software are widely used by companies and individuals around the world.

The document also said the agency had developed “capability against Cisco routers”, which would “allow us to re-route selected traffic across international links towards GCHQ’s passive collection systems”.

GCHQ had also been working to “exploit” the anti-virus software Kaspersky, the document said. The report contained no information on the nature of the vulnerabilities found by the agency.

Again we see agencies charged with protecting nations walking away from this responsibility in order to pursue their own ends. Sure, some safety may have resulted from the collection of unencrypted communications, but both agencies are willing to compromise corporate hardware and consumer software in order to grab just a little more hay for the haystacks.

You can't make a nation safer by destroying its safety features. There's a bigger picture that these agencies refuse to see -- even when internal guidance puts it front and center. If you weaken protections, seek legislation to prevent encryption, collect and stash exploits and install backdoors in hardware and software, you make the nation's cybersecurity that much harder to maintain. The NSA and FBI both want a piece of the cyberwar action but they want to leave everyone that isn't them defenseless. Over on the other side of the pond, the GCHQ is doing the same thing and it has the support of a Prime Minister who feels no communication should be able to escape the agency's notice.

And behind it all, there are documents touting the protective powers of encryption. But that makes intelligence gathering and law enforcement too difficult, so I guess we'll all have to do without.

Filed Under: cybersecurity, encryption, fbi, gchq, nsa, privacy

Of Course The FBI Has Been Gradually Expanding Its Access To And Influence Over NSA's Data Trove

from the because-of-course dept

It's no secret that the FBI and the NSA often work hand in hand in surveillance activities. As we've discussed before, it's actually the DOJ/FBI who goes to the FISA Court to put in the NSA's requests to collect all your data. However, thanks to a FOIA lawsuit filed by the NY Times, a Justice Department Inspector's General report from 2012 has been revealed (with significant black ink blocking out the juicy parts, of course) that reveals that beyond being the NSA's FISA Court gopher, the FBI has been dipping its hands into the data pot as well:

In 2008, according to the report, the F.B.I. assumed the power to review email accounts the N.S.A. wanted to collect through the “Prism” system, which collects emails of foreigners from providers like Yahoo and Google. The bureau’s top lawyer, Valerie E. Caproni, who is now a Federal District Court judge, developed procedures to make sure no such accounts belonged to Americans.

Then, in October 2009, the F.B.I. started retaining copies of unprocessed communications gathered without a warrant to analyze for its own purposes. And in April 2012, the bureau began nominating new email accounts and phone numbers belonging to foreigners for collection, including through the N.S.A.’s “upstream” system, which collects communications transiting network switches.

Now, remember, just a few months ago it was revealed that the NSA, CIA and FBI all freely search this treasure trove of info -- and the FBI admitted that it uses it so often that it does not even track how often it has done queries on that data concerning "US person identifiers." So even though the entire point of Section 702 of the FISA Amendments Act was to set up procedures for "targeting certain persons outside the United States other than United States persons," the FBI has basically thrown it wide open so that it can use it basically however it wants. And, the FBI doesn't then track how it uses that info, because the less of a paper trail, the better, apparently.

As the report notes, basically, if the FISA Court said the NSA could have it (supposedly only for non-US persons), the FBI got its own damn copy to hang onto. Just because. If you can't read that, it notes:

On October 14, 2009, the FBI began to request that a portion of the raw 702-acquired data also be "dual routed" to the FBI so that it could retain this data for analysis and dissemination in intelligence reports.

As for the FBI starting to choose its own emails and phone numbers to snoop on, the details there involve a whole hell of a lot of black ink redacting the details, but it does note that:

The FBI plans to greatly expand its role in the 702 Program this year by nominating selectors for Section 702 Coverage. Because the nominations program was still being formulated during our review period, the OIG was unable to review these proposed activities in depth for this report. However, in Chapters Three and Four we identify certain FBI policies and practices under the 702 Program that may be affected by the nominations initiative, and thus briefly summarize the nominations proposal below.

This is followed by a paragraph and a half of the finest black ink your tax dollars can buy. Then we get:

Unlike the [REDACTED] process, the FBI, and not the NSA, would be the owning agency for the selectors it nominates, and would assume the primary obligation to review the content of incoming communications to ensure that the targeted account remains legally eligible for 702 collection and continues to produce foreign intelligence information.

This is followed by three paragraphs of black ink and then an admission that while the plan was supposed to start in early 2013, the FBI was so damn eager to get it started, that they'd actually begun in April 2012. Who knew the FBI were early adopters?

Either way, it seems clear that the FBI has had pretty broad access to this collection of data and the power to get selectors added on its own without much oversight or review. And, remember, it doesn't track how often it dips into this data. So, for all the talk of how carefully monitored the NSA's access is... who the hell knows what the FBI is doing with it?

Filed Under: access, fbi, nsa, section 702, surveillance