The FBI Is Complaining That Its $8.4 Billion Budget Isn't Enough To Keep Up With Criminal Technology

from the more-access-to-everything,-please dept

It always amuses me when the FBI - an investigative agency with an $8.4 billion budget -- starts complaining about how it's falling behind in the tech race. Criminals are apparently going to outwit the agency using nothing but Snapchat and Yo! unless… well, no one interviewed seems to know how to complete that sentence, but, rest assured, g-men brows are intensely furrowed.

Federal law enforcement and intelligence authorities say they are increasingly struggling to conduct court-ordered wiretaps on suspects because of a surge in chat services, instant-messaging and other online communications that lack the technical means to be intercepted.

A “large percentage” of wiretap orders to pick up the communications of suspected spies and foreign agents are not being fulfilled, FBI officials said. Law enforcement agents are citing the same challenge in criminal cases; agents, they say, often decline to even seek orders when they know firms lack the means to tap into a suspect’s communications in real time.

As you read the following words, keep in mind that this is an agency that is rolling out a facial recognition database and utilizes cell tower spoofers on a regular basis. This is an agency whose name is on every bulk metadata request that runs through the FISA court. This is an agency that can open so-called "threat assessments" with less than reasonable suspicion. All that's missing from its set of tools (and what's listed above is a very truncated and incomplete list) apparently is the permission to seize communications carte blanche.

One former U.S. official said that each year “hundreds” of individualized wiretap orders for foreign intelligence are not being fully executed because of a growing gap between the government’s legal authority and its practical ability to capture communications — or what bureau officials have called “going dark.”

Officials have expressed alarm for several years about the expansion of online communication services that — unlike traditional landlines and cellphone communications — lack intercept capabilities because they are not required by law to build them in.

What the FBI is suggesting without actually suggesting it is for someone to saddle online communication services with the same built-in intercept points the FBI has enjoyed for years with more traditional communication services.

Unfortunately for the FBI, now is not the time to be asking for more access. Everyone's trying to build surveillance-proof technology and the FBI is concerned this will usher in a new wave of criminal activity by placing bad guys several steps ahead of investigating agents. The FBI would probably like CALEA (the law that forced broadband and internet phone services to provide the same wiretap access as traditional phone services) to be updated to include a variety of instant messaging services and other software that routes around law enforcement-friendly intercepts/backdoors.

The problem is that the FBI isn't going to find many legislators (beyond the usual surveillance state cheerleaders) to back it up. So, it's apparently just going to complain loudly about it until someone feels motivated to do something about it. The FBI complains about encryption even though the US Courts' wiretap report showed that law enforcement rarely, if ever, runs into this. (Federal government agencies have only run into it 52 times in the last decade and defeated the encryption every single time.) Still, its reps say this nearly nonexistent problem is a "big challenge."

Those sitting between the FBI and tech companies are stopping just short of rolling their eyes at these agency reps' pained statements.

“The reality is law enforcement and governments have a dozen methods other than wiretaps to get the investigation material they need,” said Mike Janke, chief executive and cofounder of Silent Circle, a firm that provides encrypted phone and instant message services, and a former Navy SEAL. “They don’t need to have access to everything in the world.”

The FBI still has plenty of tools to use, including the court system itself, which could be used to compel cooperation from services not covered by CALEA. This is in addition to whatever techniques and tools it's currently using, some of which have yet to be exposed. The agency has plenty of funding and the access to cutting-edge technology. Despite this, the agency seems to be calling for a legislative fix and its top officials are already delivering impassioned talking points about the crime wave just over the horizon.

“All we’re trying to say is, in the world today, we’re facing this problem,” FBI General Counsel James A. Baker said. “We don’t have a solution. We have a problem that is real and is impacting the lives of real people, of victims of crime on a daily basis.”

By not overtly calling for a legislative fix, the FBI is making a small nod toward the "safety vs. privacy debate." But it sounds almost identical to statements made by other pro-surveillance proponents. The FBI seems to think the real issue here is that the public isn't sufficiently fearful. It shares this attitude with too many government entities to count.

The FBI isn't losing the tech arms race. With its budget, informants, national security letters, subpoenas, advances in surveillance tech, etc, the FBI has the jump on far less organized and less powerful criminal enterprises. The DOJ used this same faux concern during its oral arguments in support of warrantless phone searches. It didn't work out for it then and, hopefully, the FBI's poor-us bitching won't work out for it now.

Filed Under: fbi, going dark, technology

DC Cops Learn From FBI: Regularly Invent Crimes To Arrest 'Possible Future' Criminals

from the minority-report dept

As we recently discussed, it's becoming readily apparent that the FBI's most vaunted counter-terrorism wins are almost all stings for "crimes" they made up all by themselves and then coerced others to join. Even for those that don't have a problem with this kind of practice in theory, it has to be jarring to learn just how many of these "terrorists" are either suffering serious mental or social illnesses or have had their confessions beaten out of them. By all appearances, it looks pretty clear that the FBI is bumping up their "win" statistics on the backs of these highly questionable stings.

So of course local law enforcement is getting in on the action as well. Take the police in Washington D.C., for instance, who are featured in a Washington Post story detailing how they invent armed robbery plans whole-cloth and then recruit civilians to join up shortly before arresting these future-criminals. Some of the plots the police of devised are quite detailed and terrifying, involving robbing liquor stores and targets that are supposedly drug dealers. After discussing the plans with an undercover cop, everyone is then arrested and charged with a variety of "conspiracy to commit" charges. According to some experts, the government is on firm legal ground with regards to entrapment.

The government is on solid legal ground, experts say, when it comes to fending off allegations that suspects were set up — or entrapped — by the police. Even if the government entices the defendant, the target has to show that he was not predisposed to commit the crime.

Sure, and if you're a defendant in one of these cases, good luck convincing anyone that you didn't have a predisposition for the crime you were tricked into thinking you were going to commit. Again, it's easy to opine that these are bad people, but that doesn't take into account mental illness and pressure applied by undercover officers eager to bolster their arrest statistics. According to reports, that kind of pressure included giving minors alcohol and/or taking them to strip clubs, because nobody has ever made themselves out to be something they're not when drunk or in the presence of naked members of the opposite sex. The question becomes whether anything like the made up crime would have ever happened had it not been first invented by the police.

“When you have the government offering guns or the getaway car and making it really attractive, you have to ask: Is this an opportunity that would have really come around in real life? Would this person have been able to put together this type of crime without government assistance?” said Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York who has studied undercover policing tactics.

It's even worse when the police engineer aspects of the made up crimes in the sting in order to manufacture longer sentences for the would-be criminals they ensnare.

Tinto and others also take issue with the government’s ability to essentially engineer tough penalties by controlling the details of the made-up crime. Part of the reason the District cases have been so successful, according to defense lawyers, is that the potential jail time for the federal conspiracy charge is steep enough that many defendants are more inclined to make a deal with prosecutors than risk losing at trial.

The global problem in all of this is the aim: this is all about bolstering crime-fighting statistics rather than responding to any actual crimes or criminals. Will the police likely get some violent criminals off the streets with this tactic? Sure, but so could actual police work and, as I indicated, that isn't what this is all about. On top of that, the questions raised by the tactic are serious and some of the people caught up in all this probably aren't benefited most by engineered jail time. Add to all that questions about who the police are generally going to look towards as targets of this kind of sting operation (gasp, minorities), and we should be left wondering why they aren't fighting the crime that exists rather than making up crime that otherwise wouldn't.

Filed Under: criminals, entrapment, fbi, own plots, police, stings, washington dc

Report: All But Four Of The High-Profile Domestic Terrorism Plots In The Last Decade Were Crafted From The Ground Up By The FBI

from the the-FBI:-rolling-its-own-since-2001 dept

Human Rights Watch has just published a report containing the facts needed to back up everyone's suspicions that the FBI counterterrorism efforts are almost solely composed of breaking up "plots" of its own design. And the bigger and more high-profile the "bust" was, the better the chance that FBI agents laid the foundation, constructed the walls… basically did everything but allow the devised plot to reach its designed conclusion. (via Reason)

All of the high-profile domestic terrorism plots of the last decade, with four exceptions, were actually FBI sting operations—plots conducted with the direct involvement of law enforcement informants or agents, including plots that were proposed or led by informants. According to multiple studies, nearly 50 percent of the more than 500 federal counterterrorism convictions resulted from informant-based cases; almost 30 percent of those cases were sting operations in which the informant played an active role in the underlying plot.

Of those four exceptions, two (Boston Bombing/LAX shooting) were successfully pulled off. Feeling safer with the g-men's increased focus on preventing terrorist attacks?

Within the report is even more damning information that shows the FBI preyed on weak individuals in order to rack up "wins" in the War on Terror.

Although an FBI agent even told Ferdaus’ father his son “obviously” had mental health problems, the FBI targeted him for a sting operation, sending an informant into Ferdaus’ mosque. Together, the FBI informant and Ferdaus devised a plan to attack the Pentagon and US Capitol, with the FBI providing fake weaponry and funding Ferdaus’ travel. Yet Ferdaus was mentally and physically deteriorating as the fake plot unfolded, suffering weight loss so severe his cheek bones protruded, loss of bladder control that left him wearing diapers, and depression and seizures so bad his father quit his job to care for Ferdaus. He was eventually sentenced on material support for terrorism and explosives charges to 17 years in prison with an additional 10 years of supervised release.

Those that weren't weak enough were broken.

Abu Ali, a US citizen, was swept up in a mass arrest campaign in Saudi Arabia in 2003. Ali alleged being whipped, denied food, and threatened with amputation, and ultimately provided a confession he says was false to Saudi interrogators.

Ali was given a life sentence and is currently serving it at a Supermax prison.

Uzair Paracha was held in solitary confinement for nearly two years before he was convicted on charges of material support. Nine months after his arrest and while he was refusing to take a plea deal, the federal government moved Paracha to a harsh regime of solitary confinement pursuant to Special Administrative Measures (SAMs)—special restrictions on his contact with others imposed on the grounds of protecting national security or preventing disclosure of classified material—ostensibly due to ties with Al-Qaeda. For a time, Paracha was only permitted to speak to prison guards.

As much as the DHS and FBI have stated concerns about "radicalization" and domestic terrorism, those captured in FBI sting operations were strongly pushed in that direction by informants and undercover agents. The FBI created threats where none existed.

In many of the sting operations we examined, informants and undercover agents carefully laid out an ideological basis for a proposed terrorist attack, and then provided investigative targets with a range of options and the weapons necessary to carry out the attack. Instead of beginning a sting at the point where the target had expressed an interest in engaging in illegal conduct, many terrorism sting operations that we investigated facilitated or invented the target’s willingness to act before presenting the tangible opportunity to do so. In this way, the FBI may have created terrorists out of law-abiding individuals.

This sort of activity should have been treated as "own goals" by the agency and some of the more credulous press. Instead, these busts are touted as evidence of the agency's superior skill and effort, something more closely related to extolling the prowess of someone who has just scored on an empty net.

The FBI took a man whose main hobbies were "watching cartoons" and "playing Pokemon," a man who a forensic psychologist described (during the trial) as "highly susceptible to the suggestions of others" and fashioned him into a supposed terrorist. The planned subway bombing never happened, thanks to the FBI's keenly-honed ability to capture terrorists it created. Arrested with the would-be subway bomber was his "co-conspirator," a high school dropout with drug problems and clinically-diagnosed paranoid schizophrenia.

There's much, much more in the report. Human Rights Watch's investigative work was made extremely difficult by the FBI's disingenuous counterterrorism efforts over the last decade, which made many in the Muslim communities affected deeply suspicious of people who asked too many questions.

There's nothing to celebrate about victories like these. The emphasis on creating plots just to shut them down diverts resources from actual threats -- ones arising without huge amounts of FBI prompting. All this does is ensure the agency's anti-terror funding remains intact -- money that will be largely wasted on the FBI's sting operation Ouroboros. And while the FBI plays with its terrorist dress-up dolls, the real threats will go undetected.

Filed Under: doj, entrapment, fbi, own plots, terrorism

Federal Prosecutor Claims That Copyright Infringement 'Discourages Smart People From Doing Innovative Things'

from the that's-the-well-thought-out-quote? dept

Just about two years ago, we wrote about the DOJ seizing three websites that were allegedly set up to let people download cracked versions of fee-based Android apps. As in the past, we were somewhat troubled by the government's willingness to seize websites without any form of adversarial hearing. As far as we can tell, such actions clearly violate the First Amendment as per the ruling in Fort Wayne Books v. Indiana. Either way, two years later, the government has finally gotten around to indicting some of the folks behind the three sites: Appbucket, Applanet and SnappzMarket. It's entirely possible that those indicted did break the law, though the fact that in all three cases the feds first got some of the other participants to take a plea deal in which they supply evidence against the others and that most of them were only charged with one or two counts on things like "conspiracy to commit criminal copyright infringement" suggests a fairly weak case. This is a DOJ that we're used to seeing pile on dozens of charges.

But, what caught my attention is the ridiculous rhetoric from the DOJ in announcing these indictments. The most bizarre and stupid line has to go to US Attorney Sally Quillian Yates of the Northern District of Georgia:

“Copyright infringement discourages smart people from doing innovative things,” said U.S. Attorney Yates. “This problem is especially acute when it comes to rapidly developing technologies, like apps for smart phones, and these defendants are now being held accountable for the intellectual property they stole.”

Note that this isn't just a random quote in an interview. This is the quote that Yates put in the press announcement, meaning that multiple people vetted this and thought it was appropriate. First off, I'm curious: which "smart people" have been "discouraged" from "doing innovative things" because of copyright infringement? Does Yates honestly believe that some brilliant app developer out there had an idea for an app and said... "nah, if I make that, people will just infringe, so screw it." There may be a reasonable argument that some developers may not make as much money as they otherwise might have -- and that leads to fewer resources to focus on development. But the idea that it scares people off from actually doing work is... simply not true.

And even if the statement were true, is that really the yardstick we want to measure things by? Because I can also show plenty of cases where copyright infringement has actually encouraged smart people to do innovative things. The creation of important peer to peer technology was built on the back of the desire of some to infringe. The amount of creative and innovative work based on infringement is pretty damn high. If we're going to get into a pissing contest over whether infringement inspires or discourages innovation, US Attorney Yates is going to lose badly. Very badly.

Also, what "intellectual property" did they "steal?" This is a US attorney, and as far as I can tell, none of the indictments involve anything relating to any statutes on theft. Furthermore, nothing seems to involve them taking the copyrights away from original owners. At most, it appears that these individuals set up sites for the sharing of infringing copies of apps. If you're talking about "theft" of "intellectual property" you kinda have to be talking about someone taking someone else's copyright (or patent or trademark), otherwise you're saying things that are simply inaccurate.

Next up, we have "Special Agent in Charge J. Britt Johnson of the FBI’s Atlanta Field Office."

“Today’s federal indictments are the direct result of an extensive and thorough federal investigation into three groups of individuals aggressively engaged in and profiting from the theft of intellectual property,” said Special Agent in Charge Johnson. “While copyright infringement is the direct theft of the hard work of others in the form of research and development expended, it can also negatively impact incentives for further or future development of those ideas or applications. The FBI will continue to provide significant investigative resources toward such groups engaged in such wholesale pirating or copyright violations as seen here.”

Copyright infringement is "the direct theft of the hard work of others." How do you "steal" the hard work of others? And where in the indictment is anything having to do with actual theft, rather than copyright infringement?

It's troubling that the DOJ seems to have taken the copyright industry's bogus language of "theft" and "stealing" and falsely applied it to issues related to infringement. Even if these individuals broke the law, you'd hope that the DOJ would at least accurately portray the indictment and charges against the individuals, rather than making plainly ridiculous claims. The problem, though, is that this is what happens after a generation of entertainment industry execs spew misleading garbage about how infringement is "theft." A bunch of DOJ folks who don't understand intellectual property just act as if this is the same thing, even though it isn't even close.

Filed Under: android, apps, britt johnson, copyright, criminal copyright, doj, domain seizures, fbi, sally quillian yates, theft
Companies: appbucket, applanet, snappzmarket

Inspector General's Report Slams DOJ For Mishandling Its Investigation Of FBI Crime Lab Problems

from the better-a-bunch-of-innocent-people-languish-in-prison-than-anyone-be-held-account dept

When it comes to putting people in prison, it seems as if law enforcement can't act fast enough. But when it comes to getting them out -- especially after the uncovering of misconduct or malfeasance -- there seems to be a distinct lack of urgency.

The Inspector General of the Justice Department has just released a report detailing the FBI's foot-dragging response to crime lab issues first uncovered in 1996. This is the third report to follow up on the DOJ "task force" and its efforts to right the wrongs caused by "serious irregularities" in its lab.

The report made public Wednesday was the third since 1997 to follow up on irregularities at the famed FBI lab. The prior inspector general reports focused on lab problems. The new report focused on the Justice Department’s task force created to identify and follow up on the cases involving scientifically unsupportable analysis and overstated testimony by FBI Lab examiners.

The problems ultimately lead back to 13 examiners. But those problems were multitudinous. In total, these 13 took part in nearly 8,000 cases, 2,900 of which resulted in convictions. This discovery led to the appointment of a DOJ task force, which then led to... not much.

The new report said the Justice Department "failed to ensure that prosecutors made appropriate and timely disclosures to affected defendants" and that the department "failed to staff the Task Force with sufficient personnel to implement a case review of the magnitude it undertook." The work took far too long, investigators said.

How did this lack of activity on law enforcement's end add up for some of those affected?

[T]hree other defendants, Donald E. Gates, Santae A. Tribble, and Kirk L. Odom, had served sentences in excess of 21 years based in part on FBI hair analyses and testimony that DNA analysis subsequently proved erroneous.

The OIG drills down the specific failures of the DOJ task force, as well as those who were supposed to be cooperating with the investigation.

[D]espite some effort by the Task Force to segregate for priority treatment cases involving defendants on death row, the Department and the FBI did not take sufficient steps to ensure that the capital cases were the Task Force's top priority. We found that it took the FBI almost 5 years to identify the 64 defendants on death row whose cases involved analyses or testimony by 1 or more of the 13 examiners. The Department did not notify state authorities that convictions of capital defendants could be affected by involvement of any of the 13 criticized examiners. Therefore, state authorities had no basis to consider delaying scheduled executions.

No problem. Just death on the line. No need to push the disputed cases to the front of the line. Not even if it kills someone who would have been exonerated.

As a result, one defendant (Benjamin H. Boyle) was executed 4 days after the 1997 OIG report was published but before his case was identified and reviewed by the Task Force. The prosecutor deemed the Lab analysis and testimony in that case material to the defendant's conviction. An independent scientist who later reviewed the case found the FBI Lab analysis to be scientifically unsupportable and the testimony overstated and incorrect.

Two other capital defendants were executed (Michael Lockhart in 1997 and Gerald E. Stano in 1998) 2 months and 7 months, respectively, before their cases were identified for Task Force review as cases involving 1 or more of the 13 examiners. Although we found no indication in the Task Force files that the Lab analyses or examiners' testimony were deemed material to the defendants' convictions in these cases and, according to the FBI, the OIG-criticized examiner found no positive associations linking Lockhart or Stano to the crimes for which they were convicted and executed, the Task Force did not learn this critical information before the executions so that appropriate steps could have been taken had the analyses or testimony been material to the convictions and unreliable.

There's a lot more bad news in the report, but nothing really tops the FBI contributing to the death of at least one innocent person. This isn't something that was uncovered after the execution. This information came to light in 1996, but no one involved made any attempt to prioritize affected convictions. Innocent people died or were locked away for years and yet, the DOJ portrays itself as the injured party.

"Decades ago, the FBI corrected the deficiencies that led to the creation of the Task Force," the department noted in its official response, adding that the Task Force's work was "unprecedented both in its magnitude and its complexity."

Really?

Lab examiner Michael Malone's work led to someone being falsely imprisoned for 27 years. He also contributed faulty work that resulted in the overturning of five other convictions. Malone retired in 1999, but was still working for the FBI as a contractor (performing background checks). The OIG's review finally led to his termination of his employment with the FBI... on June 17, 2014.

According to the evidence gathered by the OIG, the FBI greatly contributed to the inability of the task force to do its job in a timely fashion, with a majority of reviewed cases being returned to the DOJ more than 14 months after the FBI obtained them. Some, including capital cases, were held onto for as long as two years.

What the FBI plans to do in the future to prevent more injustices is yet to be seen. The OIG suggests it partner with the opposite end of the spectrum for best results.

We encourage the Department and the FBI to consider working with defense organizations, such as the National Association of Criminal Defense Lawyers or entities which work to ensure protection of defendants’ rights, such as the Innocence Project and the American Civil Liberties Union, to ensure a comprehensive and effective plan designed to achieve maximum and effective notice to all potentially affected individuals.

This will hopefully give the DOJ and FBI some more insight into what it's like for the other side whose best efforts to defend the accused are undermined by shoddy lab work or the withholding of exculpatory evidence. What it absolutely doesn't do, though, is give Benjamin Boyle back his life, or add years of extra life to those who gave up a decade or two of theirs while locked away for crimes they didn't commit.

Filed Under: crime lab, doj, fbi

FBI Thinks Driverless Cars Could Be Criminals' New Best Friends

from the I,-for-one,-welcome-out-new-Robot-Death-Car-overlords dept

There have been dozens of techno-panics over the past several years, but one usually expects cooler heads to prevail in government agencies where the word "investigations" is in the title and the employees have access to plethora of cutting-edge equipment. (Note: said "cutting-edge equipment" for surveillance only. Agency computer systems remain an outdated mess and the idea of recording in-custody interviews has finally arrived nearly four decades too late.)

We are, of course, talking about the FBI. The FBI's relationship with technology is painfully one-sided. On one hand, it's pushing to gets its biometric database online and fully operational, hopefully years before its report on this database's privacy implications finally arrives. On the other hand, it has argued in court (via the DOJ) that smartphone technology vastly outpaces law enforcement's tools to access possible evidence and, therefore, should be obtainable without a warrant.

But it is an investigative agency, which would seem to indicate it has the ability to gather facts and come to informed decisions. But it seems to prefer worried conjecture to actual data. (See also: Insane Clown Posse fans are an organized criminal entity.) But here it goes again, seeing another technological development as another way for criminals to gain the upper hand.

In an unclassified but restricted report obtained by the Guardian under a public records request, the FBI predicts that autonomous cars “will have a high impact on transforming what both law enforcement and its adversaries can operationally do with a car.”

In a section called Multitasking, the report notes that “bad actors will be able to conduct tasks that require use of both hands or taking one’s eyes off the road which would be impossible today.”

The FBI looks at something that has the potential to make roads much safer and sees… autonomous vehicles loaded with gunmen, all of whom can use both hands to fire at pursuing law enforcement… or something.

Autonomy … will make mobility more efficient, but will also open up greater possibilities for dual-use applications and ways for a car to be more of a potential lethal weapon that it is today.”

Sure, the driverless vehicles could be loaded up with explosives and "told" to drive itself to its destination, but that seems like an incredibly expensive way to deliver a payload. And sure, vehicles might be hacked to ignore everything about them that makes driving safer, but that last part is nothing a human operator can't do in a normal, cheaper vehicle. And any vehicle with a driver can still carry armed criminals/explosives.

Even the FBI admits that autonomous cars present the agency with certain advantages, including the fact that the first few iterations of car AI will be able to do little more than recreate OJ Simpson's "getaway."

[A]utonomous cars would likely face many hardships with evasive driving or car chases...

But using this AI for good (and hacking it to serve its purposes) may also revolutionize the FBI and law enforcement's pursuit techniques.

"[A]lgorithms can control the distance that the patrol car is behind the target to avoid detection or intentionally have a patrol car make opposite turns at intersections, yet successfully meet up at later points with the target."

While some of this report is undoubtedly dedicated to "what if" scenarios not unlike the risk disclosures included in IPOs, there's still something ridiculous about an investigative agency being so tuned into the terror frequency that it sees criminal intent in every technological advancement. If we wanted fear-based speculation about potential havoc-wreaking by new inventions, we'd ask the MPAA.

Filed Under: autonomous vehicles, driverless cars, fbi, threats

James Clapper Issues Non-Denial Denial Of Greenwald's Story About Surveillance Of Muslim-Americans

from the want-to-try-that-again? dept

We already wrote about Glenn Greenwald's big story concerning how the FBI has been spying on prominent Muslim American politicians, lawyers and civil rights activists. If you follow this stuff closely, you may have heard that Greenwald was originally supposed to publish that story last week, but held off at the last minute due to some "new information" from the government. This resulted in some silly and ill-informed conspiracy theories, but in the article Greenwald explains what actually happened:

The Justice Department did not respond to repeated requests for comment on this story, or for clarification about why the five men’s email addresses appear on the list. But in the weeks before the story was published, The Intercept learned that officials from the department were reaching out to Muslim-American leaders across the country to warn them that the piece would contain errors and misrepresentations, even though it had not yet been written.

Prior to publication, current and former government officials who knew about the story in advance also told another news outlet that no FISA warrant had been obtained against Awad during the period cited. When The Intercept delayed publication to investigate further, the NSA and the Office of the Director of National Intelligence refused to confirm or deny the claim, or to address why any of the men’s names appear on the FISA spreadsheet. Prior to 2008, however, FISA required only an authorization from the attorney general—not a court warrant—for surveillance against Americans located overseas. Awad frequently travelled to the Middle East during the timeframe of his surveillance.

The fact that it was out warning people that the story was inaccurate before anything had even been written is... quite telling. Also, the fact that it only seemed to focus on the lack of a FISA warrant (and against one individual) seems like the standard form of the intelligence community choosing their words especially carefully to say one thing, while implying something else entirely. Now that the report has actually come out, the Office of the Director of National Intelligence (ODNI) has issued a statement that is more of the same. You will note, for instance, that it does not deny spying on the five named individuals -- only that it doesn't spy on people because of their political, religious or activist views:

It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize the government, or for exercising constitutional rights.

Unlike some other nations, the United States does not monitor anyone’s communications in order to suppress criticism or to put people at a disadvantage based on their ethnicity, race, gender, sexual orientation or religion.

Our intelligence agencies help protect America by collecting communications when they have a legitimate foreign intelligence or counterintelligence purpose.

Again, note the specific denial they're making. They're not denying they spied on these five individuals. They're claiming that if they spied on them, it wasn't because of their religion -- though the evidence presented in the Intercept article certainly rules out many other explanations. And, remember, it was just a week ago that it was revealed that the NSA, does, in fact, consider people interested in Tor or open source privacy to be extremists. So, while it may be technically true that these individuals weren't targeted because of their religion, it does seem fairly clear that the intelligence community has fairly low standards for what it takes to convince themselves that someone may be a threat.

Furthermore, the statement admits that there are cases where it spies on people without approval from the FISA Court, but doesn't say what those examples are beyond "in an emergency." That may imply the only cases are in an emergency, but that's not what the statement actually says:

With limited exceptions (for example, in an emergency), our intelligence agencies must have a court order from the Foreign Intelligence Surveillance Court to target any U.S. citizen or lawful permanent resident for electronic surveillance.

These court orders are issued by an independent federal judge only if probable cause, based on specific facts, are established that the person is an agent of a foreign power, a terrorist, a spy, or someone who takes orders from a foreign power.

And, again, as the Intercept report itself notes, prior to 2008, there were different standards in place for people traveling overseas (even Americans) which could explain how some of these individuals were targeted.

The ODNI statement more or less concludes by suggesting that the five people named may have been agents of foreign powers, which is quite a claim:

No U.S. person can be the subject of surveillance based solely on First Amendment activities, such as staging public rallies, organizing campaigns, writing critical essays, or expressing personal beliefs.

On the other hand, a person who the court finds is an agent of a foreign power under this rigorous standard is not exempted just because of his or her occupation.

It's a neat little out. Accused of spying on five Americans who pretty clearly do not appear to be agents of foreign powers, just hint strongly that they really are agents of foreign powers. It's back to the good old days of McCarthyism.

Filed Under: fbi, glenn greenwald, james clapper, muslim americans, odni, surveillance

FBI Directly Spying On Prominent Muslim-American Politicians, Lawyers And Civil Rights Activists

from the because-of-course-they-did dept

For a little while now, Glenn Greenwald has been promising the next big scoop from the Snowden files, and it came out last night, with detailed reporting on how the FBI was directly spying on a bunch of prominent American politicians, lawyers and civil rights activists... who happened to be Muslim.

• Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;
• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;
• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;
• Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;
• Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

This certainly harkens back to the days of spying on Martin Luther King and other human rights activists -- the kind of thing that was supposed to have stopped decades ago. In fact, the driving reason for setting up the FISA Court was to prevent this kind of thing. As Greenwald's report notes, these individuals were on a list of folks who the DOJ had convinced the FISA Court that there was "probable cause" were engaged in terrorism.

The individuals appear on an NSA spreadsheet in the Snowden archives called “FISA recap”—short for the Foreign Intelligence Surveillance Act. Under that law, the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also “are or may be” engaged in or abetting espionage, sabotage, or terrorism. The authorizations must be renewed by the court, usually every 90 days for U.S. citizens.

The spreadsheet shows 7,485 email addresses listed as monitored between 2002 and 2008. Many of the email addresses on the list appear to belong to foreigners whom the government believes are linked to Al Qaeda, Hamas, and Hezbollah. Among the Americans on the list are individuals long accused of terrorist activity, including Anwar al-Awlaki and Samir Khan, who were killed in a 2011 drone strike in Yemen.

But a three-month investigation by The Intercept—including interviews with more than a dozen current and former federal law enforcement officials involved in the FISA process—reveals that in practice, the system for authorizing NSA surveillance affords the government wide latitude in spying on U.S. citizens.

Reading through the report, it becomes quite clear that the main reason these individuals on the list is solely because they're Muslim. Of every lawyer who has helped represent defendants in terrorism-related cases, the only one on this list just happens to be Muslim. As the article reminds us, a few years back, Spencer Ackerman did some great reporting, revealing how the FBI was being trained to believe all Muslims were "violent" and "radical" and the impact of that ridiculous training appears to be clear in what this latest report finds. Perhaps the most chilling example of this anti-Muslim attitude is found in a training document revealed in this new report, showing intelligence community members how to "identify" targets for the FISA court. The "placeholder" name says it all: Later in the report, the government tries to deny that there was a FISA Court order concerning at least one of the individuals listed above, even though they were in the spreadsheet. But that level of confusion only suggests that the process is even more of a mess. Whether or not this complied with the law is a distraction. The law shouldn't allow this kind of thing.

A former Justice Department official involved in FISA policy in the Obama Administration says the process contains too many internal checks and balances to serve as a rubber stamp on surveillance of Americans. But the former official, who was granted anonymity to speak candidly about FISA matters, acknowledges that there are significant problems with the process. Having no one present in court to contest the secret allegations can be an invitation to overreach. “There are serious weaknesses,” the former official says. “The lack of transparency and adversarial process—that’s a problem.”

Indeed, the government’s ability to monitor such high-profile Muslim-Americans—with or without warrants—suggests that the most alarming and invasive aspects of the NSA’s surveillance occur not because the agency breaks the law, but because it is able to exploit the law’s permissive contours. “The scandal is what Congress has made legal,” says Jameel Jaffer, an ACLU deputy legal director. “The claim that the intelligence agencies are complying with the laws is just a distraction from more urgent questions relating to the breadth of the laws themselves.”

Much of the rest of the story involves a detailed look at the men listed above, all of which is worth reading, demonstrating just how ridiculous it was to be spying on their communications. The video of Faisal Gill is really worth watching:

Filed Under: agha saeed, americans, asim ghafoor, civil rights, doj, ed snowden, faisal gill, fbi, fisa, fisa court, free speech, glenn greenwald, hooshang amirahmadi, lawyers, muslims, nihad awad, nsa, politicians, surveillance

CIA Sent FBI Agents After, Ended Career Of 19-Year Employee Over A FOIA Request For Historical Documents

from the open-and-transparent-retaliation dept

It wasn't even whistleblowing, although that too can destroy careers and lives. It was a FOIA request, made by someone who knew exactly which documents he wanted released.

His CIA career included assignments in Africa, Afghanistan and Iraq, but the most perilous posting for Jeffrey Scudder turned out to be a two-year stint in a sleepy office that looks after the agency’s historical files.

It was there that Scudder discovered a stack of articles, hundreds of histories of long-dormant conflicts and operations that he concluded were still being stored in secret years after they should have been shared with the public.

To get them released, Scudder submitted a request under the Freedom of Information Act — a step that any citizen can take, but one that is highly unusual for a CIA employee. Four years later, the CIA has released some of those articles and withheld others. It also has forced Scudder out.

"Historical documents of long-dormant conflicts and operations." Scudder dared to ask for these documents, and the CIA cut him loose. It also sent another federal agency after him -- the FBI.

On Nov. 27, 2012, a stream of black cars pulled up in front of Scudder’s home in Ashburn, Va., at 6 a.m. FBI agents seized every computer in the house, including a laptop his daughter had brought home from college for Thanksgiving. They took cellphones, storage devices, DVDs, a Nintendo Game Boy and a journal kept by his wife, a physical therapist in the Loudoun County Schools.

To date, only his daughter has received her laptop back. Every other computer remains in the hands of the FBI, despite the fact that no charges were ever pressed and despite the fact that many of the documents Scudder asked for have been released by the CIA in the interim. More from his request list are due to be released in the near future.

The CIA avails itself of a wide array of FOIA exemptions, but its reluctance to publish historical documents is just baffling -- and is most likely a result of the agency's long-running adversarial relationship with transparency. It's been noted here before that the CIA has used the often-abused b(5) exemption to withhold documents over five decades old (dealing with the Bay of Pigs invasion), claiming that the release of the "sensitive" documents would "confuse the public."

Despite Scudder's efforts, the flow of historical CIA documents will only decrease in the future. The office charged with declassifying historical documents has been closed, deemed expendable by the agency in the face of budget cuts. This workload will be routed through the agency's FOIA office, creating even more incentive for the CIA to stonewall requests.

Scudder never did anything his superiors thought was wrong until after he attempted to free these historical documents. Everything the agency never took issue with during his previous 18 years of employment -- like personal call infractions and the possession of photos (taken by Scudder in his position as "official CIA photographer") deemed "classified" -- was suddenly yet another reason to force him out. It's been clear for a long time that the government doesn't care much for whistleblowers. It also seems to have something against transparency, even concerning documents of historical interest only.

Scudder did nothing criminal. He just did something the agency didn't like. And for that, he lost his job and clearance. So, it's not just whistleblowing that can get you destroyed. It's also holding the government to its own transparency standards -- something that isn't remotely criminal but is apparently completely unforgivable.

Filed Under: cia, classified info, fbi, foia, freedom of information, jeffrey scudder, whistleblowing

Feds Ignore First Amendment, Supreme Court Precedent In Seizing Domain Of Social Network For Sex Workers

from the based-on-what? dept

The disturbing trend of the federal government seizing domain names without regard to the First Amendment continues. The FBI, along with the IRS, apparently seized a number of websites associated with MyRedbook.com, and arrested the operator of the site. The FBI notes that the site, which was a social network and resource for sex workers, included advertising that "facilitated prostitution." It also accused the site of money laundering.

However, as the EFF is noting beyond the question of whether or not the FBI should even be in the business of targeting sex workers, there are serious First Amendment questions around such a seizure of a website:

MyRedBook and its companion sites served a large and diverse community of sex workers. The sites functioned as social media platforms, with discussion boards for users in topics from politics to financial tips. It also served as a resource guide with information ranging from explanations of the law as it pertains to sex work to health information. For archived versions of the forums sex workers no longer have access to, click here.

These sites were essential tools for First Amendment protected speech and association—especially important for a community that values its privacy for a variety of legitimate reasons. This platform has been pulled out from under the feet of this community.

As we've discussed many times in the past with regards to the government's seizure of websites, these appear to be classic cases of prior restraint -- the effective equivalent of the government rushing in and smashing the printing presses for a publication. In Ft. Wayne Books. v. Indiana, the Supreme Court is quite clear that the government can't just go in and seize protected speech based on related illegal activity, especially without first holding an adversarial hearing to explore the First Amendment implications. The court noted:

...our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.

The court is quite clear that the only purpose for which seizure is appropriate in such circumstances is to procure a single copy for the sake of evidence, but not to remove protected speech entirely from circulation. While that case was about RICO claims of racketeering, and this case is about money laundering and prostitution, the same principles should and do apply:

At least where the RICO violation claimed is a pattern of racketeering that can be established only by rebutting the presumption that expressive materials are protected by the First Amendment, ... that presumption is not rebutted until the claimed justification for seizing books or other publications is properly established in an adversary proceeding. Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order.... Yet it remained to be proved whether the seizure was actually warranted under the Indiana CRRA and RICO statutes. If we are to maintain the regard for First Amendment values expressed in our prior decisions dealing with interrupting the flow of expressive materials, the judgment of the Indiana Court must be reversed.

I can't see any legitimate way that the DOJ/FBI can defend this seizure under such a standard. It clearly took down significant aspects of protected speech based merely on the assertion of related criminal activity, without any sort of adversarial hearing. The First Amendment, and the specific statements of the Supreme Court in this case, clearly forbid such actions.

Filed Under: domain seizures, fbi, first amendment, free speech, irs, money laundering, prostitution, sex workers, social network, supreme court
Companies: myredbook