Senate Committee Memo Details US Marshals Service's Long History Of Misconduct

from the outed-on-the-way-out dept

Senator Chuck Grassley is leaving his post as the chairman of the Senate Judiciary Committee, firing some parting shots at the US Marshals Service on his way out the door. His 20-page memo [PDF] detailing years of USMS misconduct comes with over 400 pages of exhibits -- source documents, email chains, and other evidence backing up the disturbing narrative.

The USMS wasted taxpayer dollars, misused asset forfeiture funds, engaged in routine retaliation against whistleblowers, and -- for an entire decade -- forged a judge's signature on more than 800 subpoenas.

A 2007 OIG investigation prompted by reports from a whistleblower uncovered evidence that a USMS task force there had been routinely customizing an electronic subpoena template and pasting in a digital image of a local judge’s signature obtained from legitimate court documents in order to give the appearance of official judicial approval. The OIG found that between the years 1995 and 2005, approximately 800 fraudulent subpoenas had been served by the task force.

A decade of fraudulent behavior was followed by a single written reprimand of a deputy marshal who was later promoted to Supervisory Criminal Investigator. Given this culture of unaccountability, it's little surprise two high-profile incidents involving US Marshals and solicitation of prostitutes was greeted with minimal punishments for everyone involved.

There has been no improvement over the last decade.

Just last year, in what the DOJ OIG called an instance of “gross mismanagement,” a Chief Deputy United States Marshal who engaged in sexual harassment, misused his government phone and vehicle, obstructed an OIG investigation by threatening and retaliating against subordinates, and lied to the DOJ OIG, was allowed to retire with full benefits and without receiving any punishment whatsoever.

And, while the USMS was willing to blow funds on expensive, rarely-used 'training centers' featuring "high-end granite countertops" and "custom artwork," it wasn't so willing to spend money to keep its employees safe. After USMA testing determined body armor needed to be replaced every five years, Service management chose to address the impending purchase of 4,000 body armor panels by doing nothing. It finally secured a replacement contract in 2016, but the contract only provided for phased replacement, which would mean some vests would have been nearly a decade past their "expiration date" before being replaced.

When employees complained about using expired body armor, USMS was telling Congress (and USMS staff) that the 5-year lifetime estimate wasn't accurate and that the vests were still safe to use. It made these statements while simultaneously asking Congress for additional funding in 2017, citing specifically the 13% failure rate in testing of older equipment.

In short, the USMS was representing to Congress that this study showed that expired body armor was dangerous and needed to be replaced while telling its own employees that the old armor was safe to use.

Acting Director Harlow’s email also raises serious concerns about the operational awareness of senior officials. Acting Director Harlow wrote, “if armor is in good condition and has been properly cared for…it retains its full ballistic capabilities.” This statement neglects to take into account that Deputy Marshals across the country perform their duties in the heat, cold, rain, and snow. Exposure to sunlight, humidity, or even excessive flexing or bending of armor can lead to degradation over time. It is difficult to imagine a situation in which a Deputy Marshal would not expose their body armor to any of those factors on a daily basis.

Multiple whistleblower complaints -- followed by multiple acts of reprisal by the USMS -- paint a picture of an agency that is accountable to no one, not even the Judiciary Committee that is supposed to be overseeing it.

Throughout this investigation, the Committee has uncovered countless instances of mismanagement, favoritism, and a lack of accountability. The OIG has confirmed many of the allegations the Committee has received, and identified multiple additional instances of misconduct and mismanagement—including by the most senior leaders in the agency. Those leaders set the tone for the entire organization, and their actions affect employees throughout their many districts and divisions.

Grassley's memo is an extremely disturbing read. Given its contents, it's hard to believe Grassley actually thinks installing a new director will root out the deep-seated problems detailed in his report. But I guess those are the things you say to the New Guy, especially when you're no longer directly involved in keeping an eye on him.

Filed Under: abuse, chuck grassley, coverups, misconduct, us marshals

The Senate Summoned The Wrong Time Warner To Talk About AT&T Merger

from the really-guys? dept

The big news earlier this week, of course, was AT&T's announced plans to purchase Time Warner. As we, and plenty of others, were careful to point out, Time Warner is a different and totally separate company from Time Warner Cable (which Comcast famously tried to takeover not that long ago). Yes, at one time they were the same company, but that was a long, long time ago. They've been separate since 2009. And yet, lots of people still get them confused. In fact, soon after the announcement of the deal, AT&T had to do a special filing with the SEC to clarify which Time Warner it was buying. Really. Apparently, the Senate didn't get the memo (literally). The Senate Judiciary Committee's top four members (from both parties) put out a press release from the antitrust subcomittee, saying that it was going to hold hearings on the merger, and that the CEOs of both companies would be testifying. But they named the CEO of Time Warner Cable, not Time Warner.

Despite striking an $85.4 billion deal with AT&T Inc. over the weekend, [Time Warner CEO Jeff] Bewkes was unceremoniously left out of a release from the Senate Judiciary Antitrust Subcommittee, which said the CEOs of both companies would testify at a hearing on the proposed deal.

The reason? The four top Republicans and Democrats leading the Senate Judiciary Committee and its antitrust subcommittee accidentally invited Time Warner Cable’s former CEO Rob Marcus instead.

“Both Randall Stephenson, the CEO of AT&T, and Robert Marcus, the CEO of Time Warner, will testify,” the release said. The hearing announcement was sent by Sen. Chuck Grassley, Sen. Patrick Leahy, Sen. Mike Lee and Sen. Amy Klobuchar.

You'd think someone would have checked that.

Oh, and it's even worse than it seems, because Rob Marcus isn't CEO of either Time Warner or Time Warner Cable. He left Time Warner Cable after Charter Communications completed its deal.

And this is why so few people trust Congress. Congress is quick to opine on stuff that it regulates without doing even having the most basic understanding of what's going on. Summoning the wrong CEO of the wrong company is a pretty impressive flub.

Filed Under: amy klobuchar, antitrust, chuck grassley, confusiong, jeff bewkes, merger, mike lee, patrick leahy, randall stephenson, rob marcus, senate, senate judiciary committee
Companies: at&t, time warner, time warner cable

SEC And Chuck Grassley Still Trying To Stop Email Privacy Act That Got UNANIMOUS Support In The House

from the because-fuck-the-4th-amendment,-that's-why dept

Hey, remember last week, when lots of folks were super excited about the US House of Representatives unanimously voting in favor of the Email Privacy Act? They voted 419 to 0. That kinda thing doesn't happen all that often. I mean, sure it happens when condemning ISIS, but they couldn't even make it when trying to put sanctions on North Korea. Basically, something needs to be really, really screwed up to get a unanimous vote in the House. And the Email Privacy Act, which goes a long way (though not far enough) towards fixing ECPA (the Electronic Communications Privacy Act of 1986) that makes it way too easy for the government to snoop on your electronic communications, actually got that unanimous vote.

So it should be moving forward and well on its path to becoming law, right? Right?!? Well... about that. You see, as we'd mentioned in the past, the SEC has been the main voice of opposition to the Email Privacy Act, since it (along with the IRS), kinda like the fact that they can snoop through emails without a warrant. Never mind that it's probably unconstitutional, it makes their jobs so much easier. And, really, isn't that the important thing?

Apparently, Senator Chuck Grassley thinks so. And, hey, bad luck for, well, everyone, because Grassley just happens to be the guy in charge of moving the bill forward on the Senate side. And he's not having any of it right now, claiming that there are "concerns" about the bill:

“Members of this committee on both sides of the aisle have expressed concerns about the details of this reform, and whether it’s balanced to reflect issues raised by law enforcement,” said Sen. Charles Grassley, the chairman of the Senate Judiciary Committee, on Thursday.

Concerns? It didn't seem like anyone in the House was concerned about it because (I should remind you) it passed unanimously. And that's because it's really only making fairly common sense changes to the law to require a warrant (as required by the 4th Amendment) to snoop on emails.

And just what "law enforcement" issues have been raised? Sounds like it's our friends at the SEC yet again:

The Securities and Exchange Commission is still fighting a House-passed bill to require law enforcement to get a warrant before obtaining messages from email providers. “[The Email Privacy Act] would create a dangerous digital shelter for fraudsters,” SEC Enforcement Director Andrew Ceresney said in a statement to POLITICO. “The privacy interests the bill addresses can be fully achieved without blocking civil law enforcement agencies like the SEC from obtaining the evidence it needs to protect investors.”

No. Actually, it doesn't create a "digital shelter for fraudsters." That's SEC Enforcement Director Andrew Ceresney lying through his teeth. It just means that the 4th Amendment needs to be obeyed when obtaining emails that are hosted on cloud providers. Just like a warrant is needed to obtain someone's personal papers. It's not creating a digital shelter. It's harmonizing the rules for digital content so they match the rules for physical documents and communications. And, in doing so, protecting the privacy and the very concept of the 4th Amendment.

Either way, all that momentum in the House may be for nothing if the SEC and Grassley get their way.

Filed Under: chuck grassley, congress, ecpa, ecpa reform, email, email privacy act, house, irs, privacy, sec, senate

Sen. Grassley Asks DOJ To Get Back To Pushing James Comey's Mandatory Encryption Backdoors Plan

from the damn-this-administration's-showy-shrugs-over-encryption! dept

It's hard to figure out just where Sen. Charles Grassley stands in terms of his assessment of the FBI's trustworthiness. Grassley demanded the FBI answer questions on its presumably warrantless use of Stingray devices. He also called it out for refusing to update Congress on the status of its investigation into Hillary Clinton's emails.

But now that the debate over encryption and "going dark" seems to have come to a halt, Grassley is now encouraging the DOJ to take up FBI Director James Comey's lead and find a legislative "solution" to the supposed encryption problem.

FBI Director James Comey appears to have conceded defeat when it comes to legislation to require communications companies to make encrypted communications available to law enforcement on the basis of a search warrant. But Iowa Republican Sen. Charles Grassley is not having it.

"I believe that the administration should use every lawful tool at its disposal and vigorously investigate each and every potential solution to this serious problem," wrote Grassley, chairman of the Senate Judiciary Committee, in an Oct. 8 letter to Deputy Attorney General Sally Yates.

The letter points to some recent press coverage that suggests the administration has walked away from seeking mandatory backdoors to the encryption provided by Apple and Google. Apparently, a few "technically feasible solutions" have been put together by a "working group" but have not been discussed or otherwise made public. Grassley wants to know what these are and why the DOJ isn't pursuing these options.

I believe that the Administration should use every lawful tool at its disposal and vigorously investigate each and every potential solution to this serious problem, as your testimony before the Committee implied it would.

Grassley then goes on to cite efforts being made by the UK and France, as if the broad wording and overreach of their anti-terrorism proposals were something to be admired and emulated.

Moreover, countries like Great Britain and France are much further along in their national dialogues on how best to balance privacy and public safety with regard to and are currently contemplating specific legislative proposals to address the threat posed by widespread inviolable encryption.

Yes, but the "national dialogue" these countries are engaging in only includes pro-surveillance administrations and the intelligence agencies that stand to benefit from expanded powers and the increased budgets that come with them. The other stakeholders -- the citizens of these countries -- have been cut out of the discussion. Even in Comey's own words, the "threat" posed seems manageable ("dozens") and other evidence out there suggests encryption is rarely a problem for law enforcement or intelligence agencies, who have other ways of obtaining data and communications that do not require attacking encryption head-on.

Grassley appears to believe a legislative solution is the best approach. While this administration has demurred, another administration is on its way in little more than a year -- one that could take advantage of Congressional majorities to push through mandated encryption backdoors.

Filed Under: backdoors, chuck grassley, doj, encryption, fbi, going dark, james comey

FBI Ignores Court Order, Congressional Oversight; Refuses To Respond To Questions About Clinton Emails

from the no-one-makes-the-FBI-do-ANYTHING.-got-it? dept

Well, it appears some Senate committee heads are getting a little taste of what it feels like to be Just Another Citizen. Senate Judiciary Committee Chairman Chuck Grassley is irritated the FBI won't apprise him of the latest developments in the Hillary Clinton email debacle.

Grassley, whose panel oversees the FBI, reacted sharply to a letter the FBI sent Monday turning aside U.S. District Court Judge Emmet Sullivan's request for information on whether investigators have been able to retrieve records from a backup thumb drive of Clinton emails or from a server turned over by a tech company Clinton hired.

"The FBI is behaving like it’s above the law," Grassley said in a statement provided to POLITICO on Monday evening. "Simply refusing to cooperate with a court-ordered request is not an appropriate course of action. This entire case, from Secretary Clinton’s ill-advised decision to use a non-government email server, to the FBI’s investigation about classified information, needs some transparency in order to assure the American people that getting to the bottom of this controversy is a priority.”

Grassley is right about most of this. The FBI does tend to believe it's above the law, what with its warrantless surveillance, refusal to cooperate with DOJ oversight and its general indifference to its own internal policies. But what Grassley is complaining about is standard operating procedure by the agency. When not withholding information for bogus reasons, the agency quite frequently cites "ongoing investigations" when refusing to turn over documents.

Here's FBI general counsel James Baker's response to the court's request for a status update in the ongoing FOIA lawsuit:

"At this time, consistent with long-standing Department of Justice and FBI policy, we can neither confirm nor deny the existence of any ongoing investigation, nor are we in a position to provide additional information at this time," Baker wrote to senior State Department attorney Mary McLeod.

The fun thing about investigations (and this goes for local law enforcement just as much as it does for the FBI) is that they can be started at any time, run indefinitely and agencies are under no obligation to inform anyone when investigations are completed, abandoned, etc. That's up to the public (and senators and, apparently, even the State Department) to suss out via FOIA requests, court orders or shouty statements delivered to journalists.

Yes, the FBI is likely doing a bit of stonewalling, but as long as it has an open investigative file and someone drops something into it occasionally over the next indeterminate number of years, it will never need to turn over relevant documents. Certainly Grassley and his committee will be able to bring more pressure to bear than the average FOIA requester, but for the immediate future, the senator will have to deal with the FBI's auto-response brushoff.

Once this gets squared away, the senator may want to take a look at the specifics of our FOIA law, especially where it intersects with law enforcement's many exemptions and other FOIA escape hatches. That's where some work needs to be done. There's an FOIA Improvements Act bill that hasn't gone anywhere since February of this year that could be put back into play. Grassley was the last one who touched it, so he should know exactly where it is.

It's certainly frustrating that the FBI has so many ways of saying, "No." The agency is incredibly adept when it comes to refusals. As it has demonstrated multiple times in the past, it can still say "No" even while saying "Yes." It's a systemic problem that places the public's right to know far below these agencies' desire to keep as much information as possible to themselves.

Filed Under: chuck grassley, court order, emails, fbi, hillary clinton

Patent Reform Bill A Good Step, But Still Falls Way Short Of Fixing A Broken System

from the it's-a-start dept

As was widely expected, earlier this week, a bunch of high-profile Senators introduced a big patent reform bill, known as the Protecting American Talent and Entrepreneurship (PATENT) Act. It's backed by Senators Chuck Grassley, Patrick Leahy, Chuck Schumer and John Cornyn, and has a decent chance of becoming law. From a quick look at the bill itself, it looks an awful lot like what we expected to show up last year, right before Senator Harry Reid stepped in and killed the bill. With the Republicans taking over in Congress, however, Reid no longer has the power to do that. Meanwhile, Schumer, who has long been supportive of patent reform and is basically taking over Reid's leadership position as Reid prepares to retire, has declared that this time the bill is getting done.

That's all good. The bill is a good start. But, unfortunately, it's not nearly enough. It does target some of the symptoms of the problems of the patent system, but does little to fix the underlying causes. The bill targets the worst of the worst: the patent trolls who thrive on shaking down companies. Specifically, the bill aims to do a few key things:

1. Fee shifting on ridiculous lawsuits: It would allow for attorneys' fees to be awarded if the patent holder was not "objectively reasonable" in filing the lawsuit. The Supreme Court has already made it easier for courts to award attorneys' fees, but this would slide the scale over a bit in a helpful way. This certainly increases the risk for patent trolls who have no real case.
2. Limiting discovery: Defending a patent lawsuit is crazy expensive. We often hear stories of it costing like a million dollars just to get to trial. And one big expense is "discovery," in which the patent holder gets to ask for all sorts of information from the company its suing -- emails, plans, source code, etc. This process is super expensive and there's not much you can do about it. It often starts pretty quickly after a lawsuit is filed as well. This new bill would put limits on early discovery, allowing those sued to seek motions to dismiss the case altogether or to transfer venues. That could decrease the early cost, taking away some of the pressure on defendants to just settle, and giving them more ability to fight back against bogus claims.
3. Limits vague demand letters: The patent troll's weapon of choice is often to send totally vague demand letters, insisting companies infringe without telling them how. It also makes it easier for the FTC to go after those who send such bogus threat letters.
4. Protecting some end users: We've highlighted plenty of cases where patent holders sue those who make devices or software, and then sue a variety of end-users as well. This bill, in a fairly limited way, would put those kinds of lawsuits on hold until the manufacturer can fight the infringement in court. But this only counts if the troll also has sued the manufacturer. So it's a bit limited.
5. Transparency: The bill would make it harder for trolls to hide behind shell companies. This is a fairly big deal, as many patent trolls have a series of shell companies, and often you have no idea who really owns the patent. The bill will also require actual lawsuits to be a lot more clear in terms of what they're actually suing over and why the defendant infringes (and what it infringes).

These are all good things, but it's unlikely to truly be enough. Missing, unfortunately, is the expansion of a program that would allow the patent office to do a faster review of crappy patents, known as the covered business method (CBM) process. This is too bad -- as this was an idea that Schumer had been a strong champion for, but which Microsoft and IBM pushed back very hard on, as they HATE the idea that the USPTO might start invalidating their crappy patents with a quick review.

Yet, as Schumer knows well, this CBM tool has proven tremendously effective in dumping a bunch of crappy financial services patents. Hell, just this week, DataTreasury, a massive trolling operation that has received over $350 million in settlements had its key patents invalidated via a CBM review. It's too bad that program couldn't have been expanded. Blame Microsoft and IBM.

But there are a lot of other problems that the new bill doesn't touch at all. Yes, it may shut down the worst of the worst in trolling, but will still allow plenty of bad situations to flourish. Bad patents will still get through and be used to hinder innovation. The new bill does absolutely nothing to address the situation with independent invention either, and that's a major problem in the patent space.

Either way, even with this incremental fix, it's likely we'll see a bunch of ridiculous claims that the above changes in patent law will somehow harm inventors, though, I can't see how that's true. As long as you're transparent and upfront with how the infringement happens, and don't file "objectively unreasonable" lawsuits, it seems like patents are still a powerful tool to demand money from companies.

Filed Under: cbm, chuck grassley, chuck schumer, covered business method, fee shifting, john cornyn, patent act, patent reform, patent trolls, patents, patrick leahy, transparency
Companies: datatreasury

DOJ Still Won't Admit If It Took Any Action Against NSA Analysts Spying On 'Love Interests'

from the guess-what-that-means dept

In September 2013, in response to a question from Senator Chuck Grassley, the NSA revealed the 12 known cases it had on record over the past decade or so of intentional abuses of the NSA surveillance data, by individuals spying on people they clearly shouldn't have been spying on. Many of these examples were classified as "LOVEINT" (a play on the traditional SIGINT -- for signals intelligence) for people who looked up the private information of those in whom they had a romantic interest. Of course, as we've noted, many of these cases were only discovered after the people self-reported the violation -- and some of that happened years later, suggesting many such abuses go undiscovered.

The released report included examples like the following:

In 2011, before an upcoming reinvestigation polygraph, the subject reported that in 2004, "out of curiosity," he performed a SIGINT query of his home telephone number and the telephone number of his girlfriend, a foreign national. The SIGINT system prevented the query on the home number because it was made on a US person. The subject viewed the metadata returned by the query on his girlfriend's telephone.

And:

In 2005, during a pre-retirement reinvestigation polygraph and interview, the subject reported that, in 2003, he tasked SIGINT collection of the telephone number of his foreign-national girlfriend without an authorized purpose for approximately one month to determine whether she was "involved with any [local] government officials or other activities that might get [him] in trouble."

And:

In 2004, upon her return from a foreign site, the subject reported to NSA Security that, in 2004, she tasked a foreign telephone number she had discovered in her husband's cellular telephone because she suspected that her husband had been unfaithful. The tasking resulted in voice collection of her husband.

And:

In 2003, the appropriate OIG was notified that an employee had possibly violated USSID 18. A female foreign national employed by the U.S. government, with whom the subject was having sexual relations, told another government employee that she suspected that the subject was listening to her telephone calls. The other employee reported the incident.

The investigation determined that, from approximately 1998 to 2003, the employee tasked nine telephone numbers of female foreign nationals, without a valid foreign intelligence purpose, and listened to collected phone conversations while assigned to foreign locations. The subject conducted call chaining on one of the numbers and tasked the resultant numbers. He also incidentally collected the communications of a U.S. person on two occasions.

There are more like that as well. Grassley then asked the DOJ, and specifically Attorney General Eric Holder, if the DOJ took any action against these individuals who clearly broke the law in their surveillance activities. The DOJ ignored the request entirely. In January of 2014 (more than a year ago), Grassley asked Holder again during a hearing when he would receive the answer to his question, and Holder again promised he would "do that soon" and that he would provide a "fulsome response to indicate how those cases were dealt with by the Justice Department."

Well, more than a year has gone by and guess whether or not Holder fulfilled that promise? If you guessed no, you'd be right. Grassley has now sent a new letter asking just when he can actually expect an answer, and suggesting it ought to happen soon.

Recently, however, the NSA released heavily redacted quarterly and annual reports by the NSA to the President's Intelligence Oversight Board ("IOB") that also provide information about these instances of intentional and willful misconduct, as well as other violations by NSA employees, from 2001 to 2013. In its December 23, 2014 press release, NSA asserted that "in the very few cases that involved the intentional misuse of a signals intelligence system, a thorough investigation is completed, the results are reported to the IOB and the Department of Justice as required, and appropriate disciplinary or administrative action is taken." The NSA even referenced its public letter to me that discussed the twelve instances of intentional abuse by NSA employees that led me to write to you back in October 2013.

Respectfully. given the date of my original request, your prior commitment to respond "soon," and the recent release of information by the NSA that expressly relies upon the Department of Justice's further review of these matters, I believe it is appropriate that you respond to my original request without delay.

Anyone want to guess how the DOJ is likely to respond?

Filed Under: abuses, chuck grassley, doj, loveint, nsa, surveillance

Senators Leahy & Grassley Quiz DOJ & DHS About Secret Fake Phone Towers Intercepting Calls

from the good-for-them dept

We've written plenty about Stingrays and other "IMSI Catcher" devices that allow law enforcement to set up what are effectively fake cell phone towers, designed to intercept calls and locate certain individuals. These devices are deployed in near total secrecy, often by law enforcement who got them from the federal government. There is little to no oversight over how these are used (and abused). The attempts to keep the details a total secret represent really egregious behavior from all involved. As we've covered, police have claimed that non-disclosure agreements with the manufacturers (such as Harris Corp.) prevent them from getting a warrant to use the devices. The DOJ, somewhat famously, had a whole plan for how to mislead judges about the use of these devices, with official documentation telling DOJ officials to be "less than explicit" and "less than forthright" to judges about how the tech was being used. In some cases, the US Marshals have stepped in and seized documents from local police forces to block them from being released in response to FOIA requests.

In short, law enforcement really doesn't want how it uses these devices revealed. And yet, reporters and activists keep digging up more information, including the WSJ finding out that the US Marshals (them again!) have been putting airborne versions of these devices, called DRT boxes, on airplanes and flying them over cities, likely scooping up information on tons of innocent people with no warrant.

At least some in our government are concerned about this. Senators Patrick Leahy and Chuck Grassley have been pressing government officials on this, and before the holidays sent a letter to Attorney General Eric Holder and Homeland Security Boss Jeh Johnson demanding answers. One very interesting tidbit is that in response to some of this public disclosure, the FBI now, at least, gets warrants before using the technology -- but the Senators would like more details:

We wrote to FBI Director Comey in June seeking information about law enforcement use of cell-site simulators. Since then, our staff members have participated in two briefings with FBI officials, and at the most recent session they learned that the FBI recently changed its policy with respect to the type of legal process that it typically seeks before employing this type of technology. According to this new policy, the FBI now obtains a search warrant before deploying a cell-site simulator, although the policy contains a number of potentially broad exceptions and we continue to have questions about how it is being implemented in practice. Furthermore, it remains unclear how other agencies within the Department of Justice and Department of Homeland Security make use of cell-site simulators and what policies are in place to govern their use of that technology.

But, still, the Senators would like a few more details:

The Judiciary Committee needs a broader understanding of the full range of law enforcement agencies that use this technology, the policies in place to protect the privacy interests of those whose information might be collected using these devices, and the legal process that DOJ and DHS entities seek prior to using them.

For example, we understand that the FBI’s new policy requires FBI agents to obtain a search warrant whenever a cell-site simulator is used as part of a FBI investigation or operation, unless one of several exceptions apply, including (among others): (1) cases that pose an imminent danger to public safety, (2) cases that involve a fugitive, or (3) cases in which the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy.

We have concerns about the scope of the exceptions. Specifically, we are concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests of other individuals who are not the targets of the interception, but whose information is nevertheless being collected when these devices are being used. We understand that the FBI believes that it can address these interests by maintaining that information for a short period of time and purging the information after it has been collected. But there is a question as to whether this sufficiently safeguards privacy interests.

The specific questions being asked:

1. Since the effective date of the FBI’s new policy:

a. How many times has the FBI used a cell-site simulator?
b. In how many of these instances was the use of the cell-site simulator authorized by a search warrant?
c. In how many of these instances was the use of the cell-site simulator authorized by some other form of legal process? Please identify the legal process used.
d. In how many of these instances was the cell-site simulator used without any legal process?
e. How many times has each of the exceptions to the search warrant policy, including those listed above, been used by the FBI?

2. From January 1, 2010, to the effective date of the FBI’s new policy:

a. How many times did the FBI use a cell-site simulator?
b. In how many of these instances was the use of a cell-site simulator authorized by a search warrant?
c. In how many of these instances was the use of the cell-site simulator authorized by some other form of legal process? Please identify the legal process used.
d. In how many of these instances was the cell-site simulator used without any legal process?
e. In how many of the instances referenced in Question 2(d) did the FBI use a cell-site simulator in a public place or other location in which the FBI deemed there is no reasonable expectation of privacy?

3. What is the FBI’s current policy on the retention and destruction of the information collected by cell-site simulators in all cases? How is that policy enforced?

4. What other DOJ and DHS agencies use cell-site simulators?

5. What is the policy of these agencies regarding the legal process needed for use of cell-site simulators?

a. Are these agencies seeking search warrants specific to the use of cell-site simulators?
b. If not, what legal authorities are they using?
c. Do these agencies make use of public place or other exceptions? If so, in what proportion of all instances in which the technology is used are exceptions relied upon?
d. What are these agencies’ policies on the retention and destruction of the information that is collected by cell-site simulators? How are those policies enforced?

6. What is the Department of Justice’s guidance to United States Attorneys’ Offices regarding the legal process required for the use of cell-site simulators?

7. Across all DOJ and DHS entities, what protections exist to safeguard the privacy interests of individuals who are not the targets of interception, but whose information is nevertheless being collected by cell-site simulators?

Anyone taking bets on how few of these questions will actually be answered?

Filed Under: chuck grassley, drt boxes, imsi catchers, patrick leahy, privacy, stingray, stingrays, us marshals, warrants
Companies: boeing, harris corp.

CIA Snags Confidential Whistleblower Communications Sent To Congress

from the protection-in-name-only dept

The government seems unable (and unwilling) to differentiate between whistleblowers and "insider threats." "Dissatisfaction with US policies" would seem to be a trait inherent to whistleblowers, but that's right up there at the top of the list of warning signs for insider threats. The FBI claimed it had this whistleblower/threat problem sorted out, abelit in the worst way possible: requiring whistleblowers to "register" in order to avoid being caught in the "insider threat" dragnet. But no one can get any details out of the agency as to how "registering" whistleblowers encourages whistleblowing, much less how the FBI handles these registered whistleblowers. When asked, agency officials simply walked away from the conversation.

The CIA is no better, apparently. McClatchy DC reports that the agency intercepted protected whistleblower communications.

The CIA obtained a confidential email to Congress about alleged whistleblower retaliation related to the Senate’s classified report on the agency’s harsh interrogation program, triggering fears that the CIA has been intercepting the communications of officials who handle whistleblower cases.

The CIA got hold of the legally protected email and other unspecified communications between whistleblower officials and lawmakers this spring, people familiar with the matter told McClatchy. It’s unclear how the agency obtained the material.

The agency obviously has ways to dig into protected emails from other government agencies, even if it can't seem to navigate its own internal email system. This news is troublesome enough, but the timeframe of the interception makes it worse. According to McClatchy, this was obtained during the CIA's unauthorized "investigation" of Senate staffers over documents related to the (still unreleased) "Torture Report."

So, while the CIA was digging through the Senate's computers, it was also taking a look at whistleblower-related correspondence.

Somehow, according to these people, [CIA Inspector General David] Buckley obtained the email, which was written by Daniel Meyer, the intelligence community’s top official for whistleblower cases, to the office of Sen. Chuck Grassley, R-Iowa, a leading whistleblower-protection advocate. The Senate Intelligence Committee also learned of the matter, said the knowledgeable people.

After obtaining the email, Buckley approached Meyer’s boss, I. Charles McCullough III, the inspector general for the 17-agency U.S. intelligence community, in what may have constituted a violation of the confidentiality of the whistleblowing process, they said.

This indicates the proper channels for whistleblowing are inherently (and quite possibly, purposefully) leaky. There's no true protection here, not when the agency being called out can access supposedly protected communications. Kevin Gosztola at Firedoglake says this is a side effect of the "Insider Threat" program's reach.

[T]he interception probably occurred because it was caught by the “Insider Threat” program. The program was adopted throughout government in the aftermath of military whistleblower Chelsea Manning’s disclosures of hundreds of thousands of previously classified documents to WikiLeaks.

McClatchy has exposed the “Insider Threat” program as a system that is sweeping in its capabilities. Any “unauthorized disclosures of any information, not just classified material,” can be targeted. It encourages federal employees and contractor to be suspicious of each other and watch for “high-risk persons or behaviors.” Failure to report on suspicious activity could result in penalties. Plus, the program equates leaks to the media with espionage.

The program keeps profiles of “Disgruntled Employees” and “Insider Threats.” What is there to stop officials from using these profiles to target whistleblowers?

Most whistleblowers are "disgruntled" employees. No one blows the whistle because they're happy with their employer's activities. Intelligence agencies, in particular, are primed for overreaction after Edward Snowden's leaks. Gosztola quotes James Clapper's plans for maintaining near constant surveillance of those granted security clearances.

“What we need is — and this is, I think, pretty much recognized — is a system of continuous evaluation where when someone is in the system and they’re cleared initially, then we have a way of monitoring their behavior, both their electronic behavior on the job as well as off the job to see if there is a potential clearance issue.”

The NSA and CIA see whistleblowers as "threats," no matter if they fit the government's lofty ideal or not. When a CIA official snags protected whistleblower communications, he's simply protecting the agency's operational security, assets, etc. -- whatever justification fits.

Clapper talks a good game about protecting true whistleblowers (i.e., not Snowden, Thomas Drake, etc.), a definition that really shouldn't be left to the Director of National Intelligence to decide -- not with his track record. "True" whistleblower cases would be provided confidentiality safeguards, according to Clapper, although his statements don't specify how these would avoid the dragnet cast over those with security clearances. In this case, the CIA's protections -- whatever they were -- completely failed.

The interception of Meyer’s email would also fall into the category of “such cases” [protected confidential whistleblowers] and apparently the safeguards do not work because the person alleging retaliation was exposed to further retaliation from CIA leadership.

The more defenders of the intelligence community claim there are "proper channels" for whistleblowing while condemning the actions of Snowden and Manning, the more evidence emerges that the proper channels are completely useless. Given this, walking out the door with a hard drive full of documents seems like the sane plan.

Filed Under: charles, chuck grassley, cia, confidential, daniel meyer, david buckley, mccullough, official channels, torture report, whistleblower