CIA, NSA Block Ads Network-Wide To Protect Agencies. Ron Wyden Says Rest Of Gov't Should Do The Same.

from the [glaring-pointedly]-they're-not-wrong dept

Not everyone uses an ad-blocker. But most people do. And no matter how much online publications claim ad blocking is the same thing as stealing, it really isn't. If they're bent out of shape about it, it's because they assault users with ads, burying content behind a wall of uncurated virtual salesmen. If it bleeds, it leads, the old saying goes, but now it refers to readers' processing power and data allotments.

Far too many online publications consider processing the check on the ad buy to be the end of their responsibility. But ad servers get hijacked. Other ad companies get purchased by ad pushers with more malleable morals. Everyone collects reams of data on every site visitor. The end user of sites seems to be the last concern for ad brokers and the people who sell to them, so it's no surprise more people are deploying ad blockers, seeing as readers of even supposedly-reputable sites have been hit with malware, spyware, and auto-playing video when just trying to access some content.

Ads can be dangerous. They can compromise systems and hijack browsers. The general public definitely knows this. Enjoy this shade thrown at ad saturation and website design overcompensation:

The government knows this as well. And it should, although it really shouldn't be a trailing indicator on abusive ad deployment. The spyingest agencies of the Intelligence Community don't just suggest employees should use ad blockers. It mandates them. Here's Joseph Cox for Motherboard:

Lots of people who use ad blockers say they do it to block malicious ads that can sometimes hack their devices or harvest sensitive information on them. It turns out, the NSA, CIA, and other agencies in the U.S. Intelligence Community (IC) are also blocking ads potentially for the same sorts of reasons.

The IC, which also includes the parts of the FBI, DEA, and DHS, and various DoD elements, has deployed ad-blocking technology on a wide scale, according to a copy of a letter sent by Congress and shared with Motherboard.

The letter [PDF], written by Senator Ron Wyden, suggests the rest of the federal government follow the NSA's lead and implement "network-based ad-blocking technologies" at all federal agencies.

While the intelligence community has acted to protect its personnel and computers from malvertising based threats, many other federal agencies have not, and are unlikely to until they are required to do so. To that end, as OMB [Office of Management and Budget] finalizes its recently released draft Federal Zero Trust Strategy, detailing the specific actions that OMB is requiring federal agencies to take to secure their systems from hackers, I urge OMB to also require agencies to implement the CISA and NSA guidance to block ads.

"Zero trust." That sounds like an accurate court of the trust most online advertisers have earned. It's a cesspool out there and publications looking for the easiest way to convert readers to dollars have proven willing to splash around in it under the assumption they'll always be able to blame the foul odors on their ad partners. But that assumes people will be willing to forgive continuous abuse as long as they can access "free" content. That's a risky assumption.

And it doesn't have to be this way. Techdirt has experimented with a blend of ads and direct connection with readers to pay the bills. As ad providers have become less trustworthy and old standbys (like Google's AdSense) have become increasingly erratic with their policy enforcement, Techdirt has dropped ads completely. There are no Google ads on Techdirt and no analytics trackers logging reader info for data brokers who not only help serve up "targeted" ads but also sell data in bulk to government agencies. Techdirt runs clean and is almost entirely reader-supported. Very few sites are willing to give up money to ensure the safety and privacy of their readers and that's why ad blocking has never been considered a threat to Techdirt's business model.

Ad blocking is a must-have these days, even for the federal government. Too much abuse and too little oversight has turned a nicety into a necessity. And if online publications don't like the current state of affairs, they really have no one but themselves to blame.

Filed Under: ad blocking, cia, cybersecurity, intelligence community, nsa, ron wyden

Ninth Circuit Appeals Court May Have Raised The Bar On Notifying Defendants About Secretive Surveillance Techniques

from the PARALLEL-CONSTRUCTION-INTENSIFIES dept

Recently -- perhaps far too recently -- the Ninth Circuit Appeals Court said the bulk phone records collection the NSA engaged in for years was most likely unconstitutional and definitely a violation of the laws authorizing it. The Appeals Court did not go so far as to declare it unconstitutional, finding that the records collected by the government had little bearing on the prosecution of a suspected terrorist. But it did declare it illegal.

Unfortunately, the ruling didn't have much of an effect. The NSA had already abandoned the program, finding it mostly useless and almost impossible to comply with under the restrictions laid down by the USA Freedom Act. Rather than continually violate the new law, the NSA chose to shut it down, ending the bulk collection of phone metadata… at least under this authority.

But there's something in the ruling that may have a much larger ripple effect. Orin Kerr noticed some language in the opinion that suggests the Ninth Circuit is establishing a new notification requirement for criminal prosecutions. For years, the government has all but ignored its duty to inform defendants of the use of FISA-derived evidence against them. The DOJ has considered FISA surveillance so secret and sensitive defendants can't even be told about it. Defendants fight blind, going up against parallel construction and ex parte submissions that keep them in the dark about how the government obtained its evidence.

The language in the Ninth Circuit ruling changes that. It appears to suggest (but possibly not erect, unfortunately) an affirmative duty to inform defendants about surveillance techniques used by the government.

In Moalin, the question was whether defendants had to be notified about a warrantless national security program involving telephone metadata that had been collected about them as part of the investigation. I would have thought the answer is no. Most obviously, there was no search warrant about which to give notice. And beyond that, I would have thought the program under then-existing precedent not to be a search at all.

The Ninth Circuit imagines a different kind of notice requirement, though. Instead of a notice requirement that a warrant was executed, flowing from the warrant itself, this is a notice requirement that appears to be triggered only if and when criminal charges are filed providing notice that evidence about a person was collected using a surveillance practice that may or may not be a search. In effect, it’s a notice to criminal defendants to consider filing a motion to suppress to challenge the investigation and vindicate any Fourth Amendment rights that may or may not have been at stake.

Huge if true. This is the court giving defendants an opportunity to suppress evidence derived from surveillance efforts courts may not (at this point) consider searches under the Fourth Amendment. The Constitutionality may be unsettled, but that shouldn't limit defendants' ability to raise challenges. This is from the opinion:

The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the “fruits” of that evidence—additional evidence to which it led. See Wong Sun, 371 U.S. at 488. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression.

Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with the Fourth Amendment’s requirements, whatever the parameters of those requirements are. Indeed, the Supreme Court has recognized that the notice provisions in FISA and the FAA serve precisely that function.

According to the Ninth Circuit, the Fourth Amendment standard of providing notice to defendants also applies to searches that the government (and some courts) have considered to be outside of the Fourth Amendment's reach -- like the acquisition of third-party records and foreigner-targeting surveillance efforts.

The government can still provide notice without giving up its secrecy, which should (hopefully) limit the number of times the government claims national security trumps all other rulings, regulations, precedential decisions, and Constitutional amendments. The government can have its secrecy and its notification, says the court.

Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality. If the government avers that disclosure of information relating to the surveillance would harm national security, then the court can review the materials bearing on its legality in camera and ex parte.

This would be breaking new ground, especially in cases where the government is using FISA-derived evidence. As Kerr points out, this isn't limited to settled Fourth Amendment precedent. This would allow defendants to challenge evidence derived from techniques and programs courts have yet to address. And this will (hopefully) force courts to confront unsettled Fourth Amendment issues, rather than dismiss them out of hand because no court has previously addressed novel (or secret) surveillance practices.

[N]ot only does it not require a warrant, it doesn’t even seem to require a search. The notice seems to be that evidence was obtained using a surveillance authority. It doesn’t appear to require that this authority is anything that has been understood to involve Fourth Amendment searches or seizures. Rather, the notice is provided so a person can bring a challenge and argue to a court that it’s a search or seizure, and an unreasonable search or seizure at that.

Put another way, this appears to be a Fourth Amendment notice requirement to alert criminal defendants that the government took steps that might constitute a search—but also might turn out not to be a search at all once a court reviews the matter closely. It has faint echoes to me of Miranda v. Arizona, in that it’s a judicially created notice about your rights potentially at stake so that you can take action to vindicate your rights.

If this is what the court is saying, the Ninth Circuit will be handling all sorts of interesting -- and precedent-setting -- cases in the near future. If the government has to be honest about its surveillance techniques, it will no longer be able to dodge Constitutional scrutiny by citing the Third Party Doctrine or claiming national security issues prevent it from informing defendants of the origin of evidence used against them.

This will have the most impact in cases where FISA evidence is in play and the government -- perhaps secure that its national security mantra will encourage the court to aid and abet in obfuscation -- hasn't bothered to engage in parallel construction. On the flipside, government lawyers have probably already parsed this latent threat to unearned secrecy and will be encouraging everyone involved to perform their surveillance in triplicate to prevent the establishment of warrant requirements in cases where reasonable suspicion can't even be met.

Filed Under: 9th circuit, criminal, due process, intelligence community, parallel construction, surveillance

Richard Burr Steps Down From Intel Committee Following FBI Warrant; Feinstein Talks To FBI, While Loeffler Won't Say

from the insider-trading dept

Following the news that the FBI got a warrant and seized Senator Richard Burr's phone as part of its investigation into his alleged insider trading, Burr has announced that he's stepping down from being the chair of the powerful Senate Intelligence Committee, where he's long been one of the biggest boosters of the surveillance state.

Of course, some are now wondering if that's part of the reason why the Trumpian wing of the GOP have come out against Burr. Because the Senate Intel Committee has released a report confirming that Russia tried to help Trump win in 2016. The report is not particularly surprising, highlighting many widely known points. However, in Trumpland, no one seems to be able to handle the nuanced differences between the campaign directly "colluding" with Russia (for which the evidence is more limited) with the idea that Russia independently sought to boost Trump (for which the evidence is overwhelming). So, Trump supporters have been clamoring for Burr's head on a platter for merely stating facts, which are not allowed in this world where pointing out that The Emperor is Naked is somehow deemed to be heresy.

Given Attorney General Barr's recent decisions to more fully weaponize and politicize the Justice Department, it can't be dismissed out of hand that there are political reasons for the FBI's sudden interest in Burr, but it still seems like a stretch. Sooner or later it's likely that there will be some fallout from which one can better assess the validity of the warrant, and whether or not Burr was engaged in insider trading.

One point that a few people have raised is to look at whether or not the FBI is looking into any of the other Senators who sold notable chunks of stock just before the pandemic hit, though as we explained in that original story, the situations and fact patterns with each of the other Senators is at least somewhat different than Burr's case. For what it's worth, there are reports that the FBI questioned Senator Dianne Feinstein, who also sold some stock during this period. However, as we pointed out in the original post, there's little indication that her sales were COVID-19 related, especially since it was mostly selling off biotech stocks (exactly the kind of stocks you'd think would go up in a pandemic).

The other Senator's selloff behavior that looked at least somewhat sketchy was Senator Kelly Loeffler, whose actions look worse and worse, as she denies things more vociferously. Just recently, she went on Fox News (natch) to claim that "this is 100% a political attack." Huh? What? You're the one who sold the stock. She also (get this) tried to blame socialism because why not?

This gets at the very heart of why I came to Washington, to defend free enterprise, to defend capitalism. This is a socialist attack.

Who knew that insider trading was "free enterprise"?

Either way, while Burr has had to hand over his phone and Feinstein had to answer questions from the FBI... Loeffler simply refuses to say whether or not the FBI has reached out to her. If it does turn out that the FBI has investigated the others, but left Loeffler entirely alone (whether or not her sales were aboveboard), that's certainly going to be some evidence to add to the pile that the focus on Burr was just as much political as it was about the legal issues at play.

Update: After this story was completed, Loeffler's office announced that she had handed documents over to the SEC and DOJ along with the Senate Ethics Committee. It's unclear if the DOJ/FBI asked for anything or if she just did this proactively. Just a few days ago, there was a report saying that her team was considering doing exactly this as a "hail mary" to try to get out ahead of this story that she can't seem to get rid of, and which appears to be having an impact on her campaign to retain the office that she was gifted a few months ago.

Filed Under: dianne feinstein, doj, fbi, insider trading, intelligence community, investigations, kelly loeffler, politics, richard burr, russia, russian election interference, senate intelligence committee

DOJ And DNI's Attempt To Bury Whistleblower Report Yet Another Indication Of The Official Channels' Uselessness

from the when-in-doubt-leak-it-out dept

The official channels don't work. That's the message Snowden sent -- one that was countered by multiple high-level government officials who'd never had the whistle blown on them.

Government entities protect their own. Whistleblowers who attempt to bring things through the proper channels are deterred almost every step of the way. The few times they manage to get their reports to someone who might actually be able to do something about it -- like Congressional oversight or the various Inspector General offices -- those affected by the report will do everything they can to silence it.

The New York Times discusses what happened when the whistleblower report about President Trump's phone call to the president of Ukraine was routed through the official channels. The whistleblower (who the NYT questionably outed as a CIA officer) used a third party to bring the complaint to the CIA's counsel. The CIA's top lawyer needed to find out whether the allegations about the content of the phone call were accurate. So, she called the White House to get the transcript of the call.

You can see where this is going. The New York Times fills in the details, showing why doing things the way the government wants you to do them seldom results in blown whistles. (This is taken from the NYT's podcast transcript, which is why it doesn't read like a NYT article.)

[I]t turns out that the lawyers in the White House have apparently also heard rumblings about the July 25 call. They don’t know how serious it is, but there are a series of calls on the week of August 5 between the C.I.A.‘s lawyers and the White House lawyers. And they’re trying to figure out what’s going on. And very quickly, they learn that a number of people within the White House have concerns about this July 25 call.

The White House took it seriously as well. Seriously enough to start trying to track down the whistleblower. The whistleblower decided to take his complaint directly to the Intelligence Community's Inspector General since it appeared the White House was more interested in silencing the whistleblower than addressing the complaint.

The IG's office started questioning people, alerting even more members of the administration about the severity of the complaint. And once the CIA's counsel arrived at the conclusion that this was a serious allegation, the CIA's legal office informed the Director of National Intelligence. The DNI then decided to contact the DOJ, since the normal process involves bringing it directly to the President -- something that's not really an option when the complaint involves the president.

[B]ecause the Department of Justice has gotten a heads up about this through the C.I.A. complaint, when this official more formal, supposedly independent whistle-blower complaint arrives, the people inside the Department of Justice, they know what they’re going to do. And what they’re going to do is basically say, there’s nothing to see here, this ends here.

If the CIA officer had solely utilized the proper channels, the CIA's office would have brought it to the administration's attention and the administration would have buried it. Utilizing the Inspector General helped prevent this burial from happening, but even the DNI's office stood in the way of the report being brought to Congress, at least temporarily.

Nothing about this works well, if at all, if there's enough people in power interested in making a report disappear. This one managed to make its way to the public due to actions taken by the House Oversight Committee. Without the public being informed a whistleblower report containing serious allegations was being hidden from it by the DNI, the DNI and DOJ would have swept it under the rug. And then the administration would have gone after the whistleblower, much like Trump has threatened to do already.

Just because this report ultimately ended up being made public does not mean the official channels work. That the House Intelligence Committee decided to do something rather than nothing when approached by the IC Inspector General is an anomaly, not the usual course of action. If the entity committing the alleged misconduct has enough power, the whole thing can be made to go away, along with the whistleblower and their career. And, in this case, there's still the question of whether it would have been done at all (Rep. Adam Schiff's decision to call public attention to the report) if it wasn't politically expedient. Stopped clocks are right twice a day. The official channels for whistleblowing need to be right a lot more often before they'll even approach that rhetorical low bar.

Filed Under: cia, inspector general, intelligence community, leaks, oversight, proper channels, whistleblowers

Current Whistleblower Scandal Shows (Again) That The Official Channels Are Useless

from the no-sense-fixing-what-no-one-really-wants-fixed dept

The official channels for whistleblowing are meant to deter whistleblowers. Just look at what has happened to the whistleblower currently at the center of accusations against President Trump. Despite raising concerns urgent enough the IC's Inspector General felt compelled to notify Congress, the Office of the Director of National Intelligence decided the allegations were too sensitive to be shared with its oversight.

Ed Snowden saw how useless the official channels were. That's why he and a ton of sensitive documents headed to Russia via Hong Kong. The United States government has no time for whistleblowers. Hunting down and punishing whistleblowers is the national pastime -- one that Barack Obama particularly enjoyed.

The Trump Administration isn't any better. Obama may have passed some mostly-worthless protections for IC whistleblowers before he left office, but the current administration is engaging in a demonstration of just how worthless those protections are.

Nick Baumann's detailed examination of the flawed whistleblower procedures is worth a read. It shows exactly why Snowden chose the path he did, and why the whistleblower behind this latest report is probably headed towards a premature exit from public service.

This system, in which even those who follow the rules are persecuted for talking out of turn, is not new, [former DOJ legal ethics advisor Jesselyn] Radack noted. “Thomas Drake — an NSA surveillance whistleblower pre-Snowden — was prosecuted under the Espionage Act after following the procedures in the Intelligence Community Whistleblower Protection Act,” she said. Seeing what happened to Drake, she added, led “Snowden to correctly conclude that using the same channels that entrapped Drake to make his disclosures ... would be an exercise in futility.”

Snowden’s government critics should have known this better than anyone. Obama’s administration used the Espionage Act against more alleged leakers than any administration before or since. An interagency review panel later found that Ellard, the NSA inspector general who said Snowden should’ve come to him, had himself retaliated against a whistleblower. The panel, composed of inspectors general from outside the Defense Department, recommended Ellard be fired; the Defense Department later overruled that decision.

The basic problem with government whistleblowing, as Snowden noted in October 2013, is that “you have to report wrongdoing to those most responsible for it.”

In this case, the person involved in the alleged wrongdoing is none other than the President himself. The person making the allegations comes from the same governmental branch they're making accusations against. It's little surprise the ODNI -- an executive agency -- is in no hurry to allow Congressional oversight to examine the report or speak to the whistleblower. The ODNI may not be directly involved in the alleged wrongdoing, but it made a decision to protect the alleged violator, rather than the person utilizing the proper channels to have their concerns addressed.

The only thing going for the whistleblower now is that the publicity surrounding this report will likely prevent direct retaliation from the President and the administration. But that still leaves the agency the whistleblower works for, as well as the ODNI itself. Both of these could engage in direct retaliation without it being noticed (at least not immediately) by anyone outside of these entities. By the time anyone gets around to addressing these violations, the whistleblower will likely be out of a job and informally blacklisted by the federal government. In the United States, whistleblower protections are just another way to ensure no good deeds go unpunished.

Filed Under: ed snowden, espionage act, intelligence community, leaks, proper channels, prosecution, whisteblowers, whistleblowing

House Intelligence Committee: Intelligence Community Is Burying A Whistleblower Complaint That May Involve Wrongdoing By The White House

from the fuck-us,-I-guess dept

Well. This is awkward. Congressional oversight of our intelligence agencies is actually being performed by the overseers. The House Intelligence Committee -- or at least Rep. Adam Schiff -- wants to know what's being withheld by the Office of the Director of National Intelligence.

Something fucked up has happened and the ODNI doesn't want to talk about it. What "it" is remains unknown, but it's apparently damaging enough the Intelligence Community is blowing off its obligations to its oversight.

“A month ago, a whistleblower within the intelligence community lawfully filed a complaint regarding a serious or flagrant problem, abuse, violation of law, or deficiency within the responsibility or authority of the Director of National Intelligence. The Inspector General of the Intelligence Community found that complaint not only credible, but urgent. More than ten days since the Director was obligated to transmit the complaint to the intelligence committees, the Committee has still not received the disclosure from the Director, in violation of the law.

“A Director of National Intelligence has never prevented a properly submitted whistleblower complaint that the IC IG determined to be credible and urgent from being provided to the congressional intelligence committees. Never. This raises serious concerns about whether White House, Department of Justice or other executive branch officials are trying to prevent a legitimate whistleblower complaint from reaching its intended recipient, the Congress, in order to cover up serious misconduct."

Given the ONDI's refusal to cooperate and Schiff's angry letter, it's probably safe to assume this whistleblowing involves domestic surveillance and another abuse of the NSA's powers. If it was just some "inadvertent" collection of phone records or someone blowing tax dollars by pretending to telecommute, this would have been handed over to the HIC. But this one has been denoted as being of "urgent concern," which suggests an abuse of collection authorities.

Not for nothing do whistleblowers take the next flight to Hong Kong. Going through the proper channels just gets complaints buried and possibly separates the whistleblower from their source of income. This one went through the proper channels. And the proper channels extended a wordless middle finger to Congressional oversight in response.

The ODNI claims it has no obligations to its oversight.

On September 13, 2019, the Committee received a letter from the ODNI declining the Chairman’s request and stating that the DNI, contrary to an unambiguous statutory command, is withholding the complaint from the Committee because, in part, it involves confidentially and potentially privileged communications by persons outside the Intelligence Community.

Wrong! That's not how this works. Intelligence oversight committee members are "read in." They're allowed to check this stuff out. That's why they hold closed-door sessions and invoke national security concerns when pressed by the public to be a bit more forthcoming about the IC's activities. If the ODNI considers its work to be too "sensitive" for its oversight, we have a problem. I mean, we already have problems, but now the ODNI has placed itself outside the control of the government that created it. If it can reject this demand, it can reject any form of control at all. We don't need the ODNI to be a law unto itself.

Here's the kicker: given the ODNI's recalcitrance, the Intelligence Committee is drawing some very concerning conclusions about the nature of the withheld report.

The Committee can only conclude, based on this remarkable confluence of factors, that the serious misconduct at issue involves the President of the United States and/or other senior White House or Administration officials. This raises grave concerns that your office, together with the Department of Justice and possibly the White House, are engaged in an unlawful effort to protect the President and conceal from the Committee information related to his possible “serious or flagrant” misconduct, abuse of power, or violation of law.    

Fantastic. If true, the Administration is weaponizing the Intelligence Community. And someone on the inside is "urgently concerned." If it is the Administration, it can try to Executive Order its way out of this mess. But if it does, this branch is compromised. I mean, more so. That's bad news for America and Americans. And yet another reminder that, when it comes to whistleblowing, the "proper channels" are for silencing concerned employees rather than holding our public servants accountable.

Filed Under: adam schiff, congress, director of national intelligence, intelligence community, odni, oversight, whistleblower, white house

ICE, CBP Want To Sit With The Adults, Angling For Entrance Into The Intelligence Community

from the all-about-foreigners-but-operating-domestically dept

Has the DHS been trying to put the "IC" in ICE? A letter reviewed by Betsy Woodruff of The Daily Beast seems to indicate ICE is possibly now part of the "Intelligence Community," bringing it in line with the FBI, CIA, and others who have access to the NSA's collections.

The revelation came in a letter that David Glawe, DHS’ undersecretary for intelligence and analysis, wrote to Congress late last year. This letter, the contents of which have not been previously reported, sheds new light on ICE’s relationship with the 17 U.S. government organizations that collect and analyze intelligence, known collectively as the Intelligence Community or IC.

It's no secret ICE wants in. Previous reporting by The Daily Beast shows ICE and CBP both felt they had something to offer the Intelligence Community. Both agencies collect a lot of data on travelers and visitors, and the latter agency is cloning the contents of electronic devices (phones, laptops, etc.) with increasing frequency.

This attempt to cozy up to the IC was noticed by members of Congress, who asked for clarification on ICE's intents and partnerships. This led to a letter from David Glawe the Beast reviewed -- sent late last year -- claiming ICE's application for membership had been declined.

“The Secretary of Homeland Security and I agree that this is not the right time to pursue potential IC membership for CBP and ICE,” he wrote.

That's what part of the letter states. The rest of it, however, isn't nearly as clear. As Woodruff points out, Glawe's answer is filled with jargon, making it difficult to parse ICE/CBP's links to the IC. But there's enough contained in the letter to make it appear as though ICE/CBP are doing exactly the thing David Glawe says they're not doing. The letter refers to ICE's "enhanced intelligence capabilities," which include "collection." This could be referring to some unreported programs ICE is running or new tech it's deployed. But it also could mean what it says literally: that ICE is tapping into the IC's collections.

This densely-worded flow of contradictions has raised concerns in the civil liberties community. (It should raise concerns elsewhere, but it almost always starts here.) What it sounds like is potentially-unlawful domestic surveillance.

“I’m curious about the phrases ‘fuses intelligence into operational functions’ and ‘activities to inform actions,’ which sound like there is some type of information sharing arrangement going on,” said Jake Laperruque, a lawyer for the Project on Government Oversight who focuses on privacy and surveillance. “If information is coming from PATRIOT Act Sec. 215 or FISA Section 702, that would be a huge controversy.”

Domestic surveillance in the interest of enforcing immigration laws would be a new twist on an old formula. Other IC components already have access to NSA data stores, which allow them to perform backdoor searches on domestic data and communications. ICE operates domestically but targets foreign persons here unlawfully. That novel blend will make blurring the lines on access to domestic communications and data that much easier.

Added to this mix is the CBP's newfound enthusiasm for demanding social media account passwords and performing forensic searches of electronic devices. These two initiatives routinely ensnare US citizens and others here legally. With an IC partnership, domestic surveillance would expand -- all under the theory that anything shared will result in better national security.

The Daily Beast has asked the DHS for clarification on the data collection it already performs as well as its "enhanced capabilities" via its connection to the Intelligence Community. The agency has yet to comment on Glawe's cryptic, but worrisome, response to Congressional questions. There's a good chance any answers provided will be just as cryptic and/or composed mainly of non-denial denials. This administration has made border security a priority. This is the ideal environment for expanding the IC to include immigration agencies. And once they're in, they'll stay in, no matter who's running the White House in the future.

Filed Under: cbp, dhs, ice, intelligence, intelligence community, law enforcement, surveillance

The Intelligence Community's Official Whistleblower Channel Is Going To Start Hunting Down Leakers

from the prepare-for-the-worst-of-both-worlds dept

The Inspector General for the Intelligence Community is finally implementing long-resisted whistleblower-related reforms. The IG has previously buried reports indicating whistleblowers were being greeted with retaliation for going through the proper channels. Despite this, government officials continue to claim the only whistleblowers they'll recognize are those who use the internal options -- options that allow the government to control the narrative and, in many cases, do as little as possible to address complaints.

The Inspector General's office is one of the official channels. After turmoil that consumed most of last year -- including the ouster of Dan Meyer, the head of the IC's whistleblower outreach program -- a new Inspector General is in place. Michael Atkinson promised to get the IC IG's house in order after news surfaced of its burial of a damning whistleblower retaliation report earlier this year, but so far it's unclear what improvements have been made.

What does appear to be in place is the IG office's participation in the Forever War on Whistleblowers. National security reporter Jenna McLaughlin noticed this disturbing development in the IG office's latest semiannual report [PDF]:

Beginning in June 2018, the Investigations Division began to take steps to permit the ICIG to fulfill its responsibilities under Intelligence Community Directive 701, Unauthorized Disclosures of Classified National Security Information (ICD 701). In December 2017, the DNI revised ICD 701 to improve the IC’s efforts to detect, deter, report, and investigate unauthorized disclosures. The revised ICD imposed new responsibilities upon the ICIG to report and investigate unauthorized disclosures.

The office will somehow protect whistleblowers while hunting down those who operate outside official channels.

Under ICD 701, the ICIG will:

Review unauthorized disclosure cases where the FBI decides not to investigate or the FBI investigates but the Department of Justice declines prosecution, in coordination with the other Office(s) of Inspectors General involved, to determine whether an Inspector General administrative investigation is warranted.

Now, even if the FBI and DOJ decide a disclosure case isn't worth pursuing, the IG will open its own investigation and, apparently, see if it needs to talk the DOJ into taking another look at it. The IG is limited to administrative investigations, but there's no reason the DOJ can't turn it into a criminal investigation after receiving more info from the Intelligence Community Inspector General.

Oddly enough, this is followed directly in the report by the ICIG's announcement of a "Center for Protected Disclosures." This is the IG's belated compliance with whistleblower protections enacted during the Obama administration. Coming along too late to do people like Ed Snowden any good, the new hotline connects whistleblowers to the IG's office, hopefully in a way that keeps their complaints confidential and shields them from retaliation.

Hopefully, this new Center works better than the IG's old whistleblower business model, which saw all but one case resolved in favor of the government and the single outlier allowed to drag on for more than 700 days without resolution. But the IG's plan to get into the leak-hunting business tempers this mild good news, suggesting it may utilize its resources to hunt down those who bypass an office some IC employees justifiably believe won't protect them.

Filed Under: ed snowden, inspector general, intelligence community, leaks, official channels, whistleblowing

Inspector General For Intelligence Community Buried Report Showing Whistleblower Retaliation

from the to-end-career,-blow-whistle dept

A report by Kevin Poulsen for The Daily Beast shows, once again, that those suggesting Ed Snowden should have used the proper channels to voice his concerns about domestic surveillance are either ignorant or deliberately obtuse.

Just prior to the Snowden leaks, President Obama enacted Presidential Policy Directive 19, which was supposed to prevent retaliation for whistleblowing. It was issued in 2012 and went into force just months before Snowden left the NSA with a trove of documents. However, it did not protect contractors like Snowden. Those protections were added by Congress years later. Not that it really matters. It has been well established those protections are mostly worthless.

Over the past year, there's been a concerted effort to oust Dan Meyer -- the person Intelligence Community whistleblowers are supposed to take their complaints to. Meyer filed his own whistleblowing complaint against the Defense Department, claiming IC officials retaliated against him for exposing waste and misuse of funds. Those gunning for top-level positions in Trump's Intelligence Community have histories of retaliatory behavior against whistleblowers, which would further cement the reputation of the "official channels" as a good way to jettison your career.

According to The Daily Beast, the problem is larger than previously thought. The implementation of PPD-19 hasn't changed anything. Whistleblowers are still facing retaliation or being ignored completely.

The investigators looked into 190 cases of alleged reprisal in six agencies, and uncovered a shocking pattern. In only one case out of the 190 did the agencies find in favor of the whistleblower—and that case took 742 days to complete. Other cases remained open longer. One complaint from 2010 was still waiting for a ruling. But the framework was remarkably consistent: Over and over and over again, intelligence inspectors ruled that the agency was in the right, and the whistleblowers were almost always wrong.

This damning report has never been presented to intelligence oversight nor to the general public. It was buried by the new head of the IC Inspector General's office.

The report was near completion following a six-month-long inspection run out of the Intelligence Community Inspector General office. It was aborted in April by the new acting head of the office, Wayne Stone, following the discovery that one of the inspectors was himself a whistleblower in the middle of a federal lawsuit against the CIA, according to former IC IG officials.

Stone also sequestered the mountain of documents and data produced in the inspection, the product of three staff-years of work. The incident was never publicly disclosed by the office, and escaped mention in the unclassified version of the IC IG’s semiannual report to Congress.

In essence, the IC has no independent oversight. That's not going to prevent whistleblowers from losing their jobs or security clearances. If the oversight is burying reports and withholding findings from its Congressional oversight, then there's really no reason whistleblowers should stick to the proper channels. If the IC wanted to shut down leaks, this was completely the wrong way to handle it. If careers are on the line, IC employees may as well take their complaints to the press, where they'll get heard, rather than to their supervisors or the Inspector General's office.

The numbers quoted in the Daily Beast's report show there's scant chance the Inspector General's office will be of any help to whistleblowers. Even if whistleblowers aren't suffering direct retaliation, the office's ability to "wait it out" prevents whistleblowers from escalating complaints further than the office uninterested in investigating complaints. To move forward, there must be some form of ruling or determination from the Inspector General. Without it, complainants have almost zero chance to seek other remedies, including suing agency officials for workplace retaliation.

The burial of this report by the Inspector General shows the official channels have suffered a perverse form of regulatory capture. The IG is no longer independent. It's owned and operated by the Intelligence Community, highly-deferential to officials who have nothing to gain if whistleblower complaints are sustained. It was arguably worse when Snowden left for Hong Kong. The bad news is it hasn't gotten any better over the last five years.

Filed Under: ed snowden, intelligence community, proper channels, retaliation, surveillance, whistleblowers

The U.S. Intel Community's Demonization of Huawei Remains Highly Hypocritical

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

We've noted for some time how Chinese hardware vendor Huawei has been consistently accused of spying on American citizens without any substantive, public evidence. You might recall that these accusations flared up several years ago, resulting in numerous investigations that culminated in no hard evidence whatsoever to support the allegations. We're not talking about superficial inquiries, we're talking about eighteen months, in-depth reviews by people with every interest in exposing them. One anonymous insider put it this way in the wake of the last bout of hysteria surrounding the company:

"We knew certain parts of government really wanted” evidence of active spying, said one of the people, who requested anonymity. “We would have found it if it were there."

Never mind that almost all U.S. network gear is made in (or comprised of parts made in) China. Never mind that years of reports have shown the United States spies on almost everyone, constantly. Never mind that reports have emerged that a lot of the spy allegations often originate with Huawei competitor Cisco, which was simply concerned with the added competition. Huawei is a spy. We're sure of it. And covert network snooping is bad. When China does it.

Worries over Huawei bubbled up again recently when the U.S. government pressured both AT&T and Verizon to kill off plans to sell Huawei phones here in the States. It should be noted that Huawei phones are already available here, and the company has worked with several U.S. companies to gain a foothold in the U.S. market (like when it partnered with Google on the Nexus 6P). It should also probably be noted that in the modern era, you can't really differentiate between where a company like AT&T ends and the NSA begins, given the telco's extreme enthusiasm for spying on American citizens itself.

This week, hysteria concerning Huawei again reached a fevered pitch, as U.S. intelligence chiefs, testifying before Congress over Russian hacking and disinformation concerns, again proclaimed that Huawei was spying on American citizens and their products most assuredly should not be used:

"At the hearing, FBI Director Chris Wray testified, “We’re deeply concerned about the risks of allowing any company or entity that is beholden to foreign governments that don’t share our values to gain positions of power inside our telecommunications networks." Purchasing Huawei or ZTE products, Wray added, “provides the capacity to maliciously modify or steal information. And it provides the capacity to conduct undetected espionage."

Which values would those be, exactly? Would it be the values, as leaked Edward Snowden docs revealed, that resulted in the NSA hacking into Huawei, stealing source code, then attempting to plant its own backdoors into Huawei products? Or perhaps it's the values inherent in working closely with companies like AT&T to hoover up every shred of data that touches the AT&T network and share it with the intelligence community? Perhaps it's the values inherent in trying to demonize encryption, by proxy weakening security for everyone?

News outlets, semi-oblivious to their own nationalism, quickly ignored the NSA's hypocrisy when it comes to worrying about values and regurgitated the intel chiefs' concerns. Few could also be bothered to note that numerous investigations have culminated in bupkis, the NSA has routinely and consistently been caught doing precisely what they accuse Huawei of, or that American companies tend to drum up hysteria on this front simply because they're afraid of competition (protectionism we routinely and justly accuse China of).

Focusing on Huawei also seems semi-myopic, given the fact that Chinese hardware can already be found in an absolute ocean of products available here in the States, many of which are made by U.S. hardware vendors. It also ignores the fact that if somebody really wants to hack us, all they need to do is spend five seconds hunting down one of a million poorly secured internet of broken things devices, which create millions of new easily-exploited attack vendors annually in businesses and residences nationwide.

None of this is to say it's impossible that Huawei has helped the Chinese government spy, much like our own companies here in the States. But if you're going to discuss this subject, you can't have an honest conversation without highlighting our own hypocrisy on this front, given it's abundantly clear that we're perfectly OK with unethical behavior, backdoors, and spying with negligible oversight and accountability -- provided the United States is the one doing it.

Filed Under: china, chris wray, fud, intelligence community, nsa
Companies: huawei