Here We Go Again: Latest Draft Of White House Cybersecurity 'Executive Order' Is Leaked

from the why-do-we-need-this-again? dept

Back in September, we posted a leaked version of a draft for a cybersecurity executive order that the White House had been passing around, mainly to try to force Congress into passing a cybersecurity law. With the last ditch attempt by Senator Harry Reid to move that process forward failing, it took exactly a week for the White House to revise its draft exec order, and start passing it around on November 21st. And, today, that new draft leaked as well. You can see the full draft here or embedded below.

It's basically more of the same. It insists that there's a problem without providing any real evidence of that. Much of the order focuses on increasing information sharing among and between different government agencies. As expected, it's designed to encourage private companies, who are "owners and operators of critical infrastructure" to "participate, on a voluntary basis, in the Enhanced Cybersecurity initiative." This is part of what had people so concerned about the various bill proposals: whether or not companies would get broadly defined as "owners and operators of critical infrastructure" and then be forced or pressured into sharing private information, all in the name of "cybersecurity!"

And, of course, what is "voluntary" when it's the federal government, often means what is likely to put you in a very uncomfortable position if you don't participate. In fact, the executive order makes this somewhat explicit:

The Secretary shall coordinate establishment of a set of incentives designed to promote participation in the Program. Within 90 days of the date of this order, the Secretary and the Secretaries of Treasury and Commerce each shall make recommendations separately to the President... on what incentives can be provided to owners and operators of critical infrastructure that participate in the Program, under existing law and authorities, and what incentives would require legislation, including analysis of the benefits and relative effectiveness of such incentives.

So, yeah, "voluntary" belongs in quotes.

As for what counts as "critical infrastructure," well it basically involves various government agencies coming up with a list and then the government telling companies: "hey, you're critical infrastructure."

The Secretary, in coordination with Sector-Specific Agencies, shall confidentially notify owners and operators of critical infrastructure identified under subsection (a) of this section that they have been so identified, and ensure identified owners and operators are provided with relevant threat information.

There is one oddity snuck into that subsection (a):

The Secretary shall not identify any commercial information technology products under this section.

I'm not quite sure what that means within this context (so feel free to chime in and explain it if you do know...). Is it suggesting that this only applies to other forms of infrastructure? If so, that would ease the concerns of a number of tech companies, who were worried that they'd be listed as "critical infrastructure" under a broad reading of any rule.

The exec order does include a shout out to protecting civil liberties, though you wonder how much that will matter in practice:

Agencies shall coordinate their activities under this order with their senior agency officials for privacy and civil liberties and ensure that privacy and civil liberties protections are incorporated into such activities based upon the Fair Information Practice Principles and other applicable privacy and civil liberties policies, principles and frameworks.

They also say that any programs will be reviewed by the Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties to ensure that the program isn't causing any problems in those areas. For what it's worth, apparently the administration has been also reaching out to a lot of people to get in on the executive order -- a process described as "highly unusual" for an executive order.

Either way, it's still frustrating that the order brushes over what the real problems are. It just handwaves that question away by insisting that we're under attack, without providing either (a) evidence or (b) notification on what laws are currently causing issues here. That's unfortunate.

Filed Under: civil liberties, cybersecurity, executive order, information sharing, privacy, voluntary

Photography Advocate/Journalist Acquitted After Arrest Over Filming Police; Intends To Sue Back

from the good-for-him dept

We've linked to the blog, PhotographyIsNotACrime.com (PINAC), a few times in the past (it recently moved locations). Its author, Carlos Miller, not only covered a number of cases involving photographers being arrested or harassed for photographing buildings, police or something else, but was a defendant in just such a case himself. Miller was arrested back in January while videotaping police at an "Occupy Miami" event. Not only was he arrested, but his camera was confiscated and the police deleted footage from the camera -- including footage of the encounter that led to his arrest. The police claimed that Miller had disobeyed an order by the police to "clear the area." However, the videotaped footage -- which Miller was able to recover despite the deletion -- showed a different story. It showed a clearly-aware-of-his-rights Miller making the case that he was doing nothing wrong. Furthermore, other journalists were allowed to stay in the area, and one of those journalists, Miami Herald reporter Glenn Garvin, testified at the trial about how he was allowed to stay. In fact, he went to the officer who arrested Miller and asked her if he needed to move, and she told him he was "under no threat of getting arrested."

It also turned out that police were specifically on the lookout for Miller:

An e-mail disclosed during the trial showed the police had been monitoring Miller's Facebook page and had sent out a notice warning officers in charge of evicting the Occupy Miami protestors that Miller was planning to cover the process.

Given all that, it's not too surprising that the jury wasted little time in finding him not guilty. But the case isn't over just yet. Miller is vowing to sue, claiming the arrest and (attempted) deletion from his camera violated his constitutional rights. And he's got some precedent on his side. As we've noted, Boston recently had to pay Simon Glik $170,000 after an appeals court ruled, in a similar case, that his arrest for filming police was a violation of the First and Fourth Amendments -- though that was based on wiretap laws, so it was slightly different. Either way, Miller's follow up suit should be worth watching.

Filed Under: carlos miller, civil liberties, photography

Why Do Both Major Parties Suck So Badly On Civil Liberties?

from the power-corrupts? dept

Over the weekend, I saw an article on Salon about how shameful it is that supporters of President Obama, who were loud in their condemnation of attacks on civil liberties by George W. Bush, seemed to ignore that President Obama has been worse in many ways (despite many public promises to the contrary). We've already noted that the Democratic Party -- which had fixing civil liberties abuses in its 2008 platform -- has removed all traces of that from the new platform. You would think that, for those who believe strongly in civil liberties, this would be a major concern. Rather than fix them, President Obama continued or expanded many of the very questionable policies of his predecessor, and then added a number of terrifying new ones.

Of course, if civil liberties is the issue you vote over, the other major party offers you no help either (as you should already know, based on Bush's presidency). As Adam Serwer notes, when debating issues of civil liberties, there really is no significant choice between Obama and Romney on this particular issue. There may be some differences at the margins, but that's about it.

Serwer's piece argues that much of this is driven by the American public, who seem particularly fond of giving up our own civil liberties in the face of non-stop fear mongering about terrorism. It seems likely that there is also something to the fact that, once in power, people generally don't like to scale back their own ability to "do stuff." Either way, it amazes me that avid supporters of one side or the other, who absolutely hate the idea of the "other side" getting into power, never seem concerned about how the other side will make use of the same policies they put in place to support themselves.

There are, of course, real differences in many of the other policies from the two candidates, but the lack of significant differences on civil liberties is a real shame. We should demand better.

Filed Under: barack obama, civil liberties, democrats, mitt romney, republicans

It Takes Jon Stewart To Finally Ask Obama About Civil Liberties... But Lets Him Off The Hook On Bogus Answer

from the sad dept

In the various Presidential debates, no one seems to want to bring up President Obama's near complete about-face on his promises concerning civil liberties. It's so ridiculous that the Democratic party simply removed the issue from their platform -- and that's because he hasn't just continued former President Bush's abuses of civil liberties, he's gone even further with them. And no one seems to want to ask the candidates about it... except a comedian. When President Obama appeared on The Daily Show recently, Jon Stewart actually asked him about this:

STEWART: I think people have been surprised to see the strength of the Bush era warrantless wiretapping laws and those types of things not also be lessened—That the structures he put in place that people might have thought were government overreach and maybe they had a mind you would tone down, you haven’t.

OBAMA: The truth is we have modified them and built a legal structure and safeguards in place that weren’t there before on a whole range issues.

However, as the EFF explains in great detail, President Obama's answer is simply not true. It's not even close to true.

To the contrary, there’s no indication that the still-active warrantless wiretapping program—which includes a warrantless dragnet on millions of innocent Americans’ communications—has significantly changed from the day Obama took office. With regard to the FISA Amendments Act, the Obama Administration has actively opposed all proposed safeguards in Congress. All the while, his Administration has been even more aggressive than President Bush in trying to prevent warrantless wiretapping victims from having their day in court and has continued building the massive national security infrastructure needed to support it. 

They then go on to look more closely at all of these different promises from President Obama related to this, all of which he's fallen down on. Unfortunately, Stewart doesn't push back on this point, as they then go straight to a joke, before moving on to another topic. Of course, for those of us who aren't shackled to a party and, instead, find civil liberties to be a key issue, we're left with two major candidates who don't seem to care about massive abuses by the federal government.

Filed Under: barack obama, civil liberties, jon stewart, warrantless wiretapping

Congressional Investigation Slams DHS Anti-Terror Centers: Wasted Taxpayer Funds, Created No Useful Intelligence & Violated Civil Liberties

from the have-we-done-anything-useful? dept

Since September 11th, the government has often had something of a blank check (and the equivalent lack of oversight) for anything labeled as being part of an anti-terror effort. As such, it should hardly come as a surprise that programs are wasteful, possibly fraudulent, bad for civil liberties and (oh yeah) completely useless (to actively harmful) in fighting terrorism. A Congressional investigation into the Department of Homeland Security's (DHS) "fusion centers," which were supposed to be a key force in anti-terrorism efforts, presents an absolutely scathing condemnation of the effort.

The Subcommittee investigation found that DHS-assigned detailees to the fusion centers forwarded "intelligence" of uneven quality - oftentimes shoddy, rarely timely, sometimes endangering citizens' civil liberties and Privacy Act protections, occasionally taken from already-published public sources, and more often than not unrelated to terrorism. The Subcommittee investigation also found that DHS officials' public claims about fusion centers were not always accurate. For instance, DHS officials asserted that some fusion centers existed when they did not. At times, DHS officials overstated fusion centers' "success stories." At other times, DHS officials failed to disclose or acknowledge non-public evaluations highlighting a host of problems at fusion centers and in DHS' own operations.

Oh, and did we mention how wasteful they were? Apparently, taxpayer money simply "disappeared" into the program often being spent on totally unrelated things like flat screen TVs:

The Subcommittee investigation also reviewed how the Federal Emergency Management Agency (FEMA), a component of DHS, distributed hundreds of millions of taxpayer dollars to support state and local fusion centers. DHS revealed that it was unable to provide an accurate tally of how much it had granted to states and cities to support fusion centers efforts, instead producing broad estimates of the total amount of federal dollars spent on fusion center activities from 2003 to 2011, estimates which ranged from $289 million to $1.4 billion. The Subcommittee investigation also found that DHS failed to adequately police how states and municipalities used the money intended for fusion centers. The investigation found that DHS did not know with any accuracy how much grant money it has spent on specific fusion centers, nor could it say how most of those grant funds were spent, nor has it examined the effectiveness of those grant dollars. The Subcommittee conducted a more detailed case study review of expenditures of DHS grant funds at five fusion centers, all of which lacked basic, "must-have" intelligence capabilities, according to assessments conducted by and for DHS. The Subcommittee investigation found that the state and local agencies used some of the federal grant money to purchase: dozens of flat-screen TVs; Sport Utility Vehicles they then gave away to other local agencies; and hidden "shirt button" cameras, cell phone tracking devices, and other surveillance equipment unrelated to the analytical mission of a fusion center.

Of course, this kind of thing isn't all that uncommon. I remember a story from nearly a decade ago about all the money designated for things like E911 services, instead being used to pay for boots and pens. We recently wrote about the failure of a NY City program to spy on Muslims to turn up a single lead, but this takes that kind of failure to a whole new level.

Of course, the scary part in all this isn't just the misuse of funds or the failure to produce anything relevant. It's that what was done almost certainly violated the public's rights. And apparently, such violations of civil liberties were a very common problem.

The inappropriate reporting appears to have been a regular problem. An April 2009 email from an alarmed senior I&A official stated: “[State and Local Fusion Center officials] are collecting open-source intelligence (OSINT) on U.S. persons (USPER), without proper vetting, and improperly reporting this information through homeland information reporting (HIR) channels,” wrote Barbara Alexander, then director of the Collection and Requirements Division, which oversaw HIR reporting. “The improper reporting of this information through HIR channels is likely a result of a lack of training on proper collection and reporting procedures . . . they are inadvertently causing problems.” In an interview with the Subcommittee, Ms. Alexander said she recalled being told the Reporting Branch was “flooded” with inappropriate reporting. “A lot of information was coming in inappropriately,” she remembered. “The information was not reportable.”

[....] Ms. Schlanger’s presentation, a copy of which DHS provided to the Subcommittee, indicated that areas in which DHS intelligence reporters had overstepped legal boundaries included: Reporting on First Amendment-protected activities lacking a nexus to violence or criminality; reporting on or improperly characterizing political, religious or ideological speech that is not explicitly violent or criminal; and attributing to an entire group the violent or criminal acts of one or a limited number of the group’s members.

The investigation goes on to quote numerous examples of "reports" prepared on information that DHS is not allowed to report on as it violates civil liberties.

In the end, as with so many "anti-terror" programs, what we have is a program that took in a ton of taxpayer funds, with almost no oversight as to what happened to those funds (leading to $1.4 billion disappearing), no intelligence of any use but undertook plenty of efforts that were clearly beyond the mandate of Homeland Security. And all of this is supposed to make us feel safer?

Filed Under: abuse, civil liberties, congress, dhs, fusion centers, homeland security, terrorism, waste

2012 Democrats: Remember That Civil Liberties Thing From 2008? Um, Nevermind

from the what's-that-about-power-corrupting? dept

For years, we've pointed out that neither major political party in the US seems to be very good on the issues that concern us most around here -- which is truly disappointing. With the Democratic National Convention going on this week, some are pointing out what a difference four years make. Back when President Obama was the outsider running for office, he made reversing Bush-era attacks on civil liberties a target for change in his platform. And then he won. Not only did he leave in place most of the programs against civil liberties, but he often expanded them. So here we are, after four years in power, and with the new platform out, some are noting that the strong defenses of civil liberties found four years ago are conspicuously absent this time around. Adam Sewer goes through this year's platform and the one from four years ago and points out all of the differences. Here's just one example, but click through to read them all:

Warrantless Surveillance/PATRIOT Act

2008: "We support constitutional protections and judicial oversight on any surveillance program involving Americans. We will review the current Administration's warrantless wiretapping program. We reject illegal wiretapping of American citizens, wherever they live. We reject the use of national security letters to spy on citizens who are not suspected of a crime. We reject the tracking of citizens who do nothing more than protest a misguided war...We will revisit the Patriot Act and overturn unconstitutional executive decisions issued during the past eight years."

2012: The platform is silent on this issue.

This is not surprising, but it's depressing just the same. Once they're in power, people tend to want to keep power, and one way to do that is to suppress the civil liberties of the public. Wouldn't it be nice if we actually elected a principled politician? Do they even exist any more?

Filed Under: civil liberties, democrats, power

Former Marine Detained, Held For A Month For Posting Conspiracy Theories, Rap Lyrics To Facebook

from the free-speech? dept

We were just discussing how some in law enforcement are overreacting to "threats" on Facebook, and someone in the comments pointed us to the case of Brandon Raub, which we had been unfamiliar with. Raub, a former Marine, posted some of his concerns about the government to his Facebook page, along with some rap lyrics. Raub's views definitely fall into what many consider to be conspiracy theory territory -- claiming 9/11 was an inside job, talking about the Illuminati controlling the world, etc. He also did make vague references to the idea that a "revolution is coming" and that a "civil war" was coming -- and even said that "I'm starting the revolution. I'm done waiting." The only directly "violent" thing he posted -- which gets covered in all of the press about Raub's situation -- is the line: "'Sharpen up my axe; I'm here to sever heads." Of course, what nearly everyone who quotes that line leaves out is that it's a lyric to the rap song Bring Me Down by the group Swollen Members.

Either way, it seems that these statements on his Facebook page resulted in him being detained in a psychiatric ward. A recent hearing ended with a decision that he needs to stay there for another 30 days. While government officials say he wasn't arrested, the video footage of law enforcement officials handcuffing him and pushing him into a police car sure looks like an arrest: It appears that a lot of folks have been speaking out about this -- with reasonable concern over whether or not the government is monitoring (private) Facebook pages, as was the case with Raub's page. Of course, it's more likely that some of his Facebook friends were somewhat concerned and "reported" his page. There's been a lot of talk about Raub's case -- especially in libertarian circles -- and many of them do ignore some of the statements he made that could at least raise some concerns from some people, though the context matters a great deal.

That said, many others are quite reasonably concerned that a few comments involving conspiracy theories and angry rap lyrics can get one carted off by the government to a psychiatric ward for over a month. In an interview from the ward, Raub notes that he'd actually been leaning towards re-enlisting right before all of this happened.

No matter what, the situation raises some serious questions about free speech rights with regards to social networks these days. While I don't have an issue with people investigating the details of a situation if comments could reasonably be interpreted to be a possible warning sign of a threat, it's troubling how these same comments could be taken out of context and mean nothing in terms of an actual threat. The fact that he ends up in a psych ward against his and his family's own best wishes is, at the very least, a big concern.

Filed Under: brandon raub, civil liberties, free speech

NYPD Spent Years Spying On Muslims, Generated Exactly Zero Leads

from the security-theater dept

We just wrote about yet another (in a long line) of manufactured terrorist plots, in which the FBI creates its own terrorist plot to arrest anyone who can be coaxed into going along for the ride, even if they had no interest or ability to push the plot forward on their own. In that case, it was even more ridiculous, because they couldn't even find anyone willing to go along with the plot -- and the main "suspect" actually alerted the FBI to the informant who was trying to coax him into taking part in a plot (which didn't stop him from being arrested, even if the case was eventually dropped).

Of course, the FBI is not alone in its incredibly ham-fisted anti-terrorism efforts in which the focus seems to be much more about someone's religious leanings, rather than any actual interest in creating terror. The NY Police Department got plenty of attention for deciding to build their own local versions of the FBI and CIA to try to catch terrorists. That link describes the NYPD as a sort of new "elite" intelligence agency, hiring people out of other intelligence agencies and then placing agents around the globe to try to beat the FBI and CIA at their own game.

Back at home, apparently this included following on the FBI's tactic of assuming that "brown skin = terrorist." As such, they've spent the past few years spying on "Muslim neighbrhoods" throughout New York (with help from the CIA), sending undercover agents and informants into Muslim groups and organizations:

The Demographics Unit is at the heart of a police spying program, built with help from the CIA, which assembled databases on where Muslims lived, shopped, worked and prayed. Police infiltrated Muslim student groups, put informants in mosques, monitored sermons and catalogued every Muslim in New York who adopted new, Americanized surnames.

Police hoped the Demographics Unit would serve as an early warning system for terrorism. And if police ever got a tip about, say, an Afghan terrorist in the city, they'd know where he was likely to rent a room, buy groceries and watch sports.

How useful has it been? Apparently not at all. Not a single lead has come out of the program. Not one.

I know this is a crazy thought, but perhaps violating the privacy of tons of people just because of the color of their skin or their religion, isn't the best (or even "a") way to stop terrorists.

Filed Under: civil liberties, muslims, new york city, nyc, privacy, profiling, spying, terrorism

Hey, We Finally Have A Privacy And Civil Liberties Oversight Board... After Being Left Dormant For Almost Five Years

from the about-time dept

With all the efforts to pass cybersecurity legislation, along with all the fears of government violating our privacy (4th amendment? Whazzat?), you might think it would be somewhat useful to have an agency in charge of watching the government -- one which actually has some real power. Well, it exists. Sort of. In 2006, the Privacy and Civil Liberties Oversight Board (PCLOB) was created, in part as a counterweight to concerns over the Patriot Act. The PCLOB was staffed, but after the White House tried to interfere and stifle some of its work, one member very publicly quit in 2007. Congress responded by actually passing a useful law, which gave the PCLOB more independence and more power (including subpoena power). After it passed, there was a transition period of six months. At the end of that, the existing board (which was a part of the White House) would cease to exist, and a new independent agency was supposed to take its place. Instead, the existing board ceased to exist on January 30, 2008... and that was it. Since then, there has been no board. At times, both President Bush and President Obama have sent some nominations to the Senate, but nothing more had happened. Even back in 2010 people were complaining what a travesty it was that the board remained empty for two years.

Fast forward another two years and change... and the thing still wasn't staffed. The whole thing was such a joke that in a recent discussion with a Congressional Rep (known for being a supporter of civil liberties), when the PCLOB (and its lack of members) was brought up, the Congressional Rep admitted that he'd never even heard of the thing. For all the urgency that was talked about in passing cybersecurity legislation, everyone just sat around twiddling their thumbs while this independent organization tasked with making sure the government didn't abuse our civil liberties sat completely empty.

Until now. Yes, we finally have a staffed PCLOB. The Senate has approved all five nominees: David Medine, James Dempsey, Elisebeth Cook, Rachel Brand and Patricia Wald. It's amazing that it's taken nearly five years to put this board in place (and that there wasn't more outrage over its absence). The real question now is how will the PCLOB wield its power. Hopefully it does some good and actually holds the government to account when it violates the civil liberties of the public.

Filed Under: board, civil liberties, david medine, elisabeth cook, jim dempsey, oversight, patricia wald, privacy, rachel brand

The Public Isn't Buying What The Feds Are Selling When It Comes To Cybersecurity Legislation

from the we're-from-the-public-and-we're-here-to-tell-you-to-leave-us-alone dept

We keep hearing US government officials tell us fanciful stories about why we need cybersecurity legislation that paves the way for the government to get access to private information, but the arguments never make much sense. There are vague claims of threats that really seem more like garden variety hackers, and then there are the completely made up threats that are pulled right from Hollywood scripts -- like the claims that an online attack will lead to planes colliding.

A new survey suggests that the public just isn't buying it. 63% of those polled worried about the impact on privacy and civil liberties if we provided greater information sharing with the government. So for all the talk about how there's "bipartisan" support for doing something here, it's not clear that there's really American public support for this kind of thing.

Filed Under: civil liberties, cybersecurity, hackers