Remember When White House Insisted James Clapper Wasn't Overseeing Review Of Surveillance? About That...

from the we'll-just-redefine-"oversee" dept

You may recall that President Obama announced plans for an "independent group" of "outside experts" who would: "consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used [and] ask how surveillance impacts our foreign policy." Except, three days later, it was revealed that the review board would be overseen by confessed liar to Congress James Clapper, the Director of National Intelligence. After that got a ton of bad press, the White House hastily insisted that Clapper would not be associated with the group.

Right, so about that. According to the AP, the whole thing is more or less being managed by James Clapper:

... the review panel has effectively been operating as an arm of the Office of the Director of National Intelligence, which oversees the NSA and all other U.S. spy efforts.

The panel's advisers work in offices on loan from the DNI. Interview requests and press statements from the review panel are carefully coordinated through the DNI's press office. James Clapper, the intelligence director, exempted the panel from U.S. rules that require federal committees to conduct their business and their meetings in ways the public can observe. Its final report, when it's issued, will be submitted for White House approval before the public can read it.

Now, Clapper may not technically be on the committee or running it, but since everything is under control of his offices, and they're working out of his offices, does anyone actually believe they're even remotely "independent"?

Oh, and remember how President Obama described how this group would focus on making sure the systems couldn't be abused and rebuilding the trust of the public? Yeah, that's not actually their mandate (or, if it is, it got shoved way, way down on the priority list). Also, the whole promise of it being "independent" was already seen as a joke once everyone realized they were insiders, but even the official memo setting up the board did away with the claim (stated just days earlier by the President) that this would be an independent board. And the actual focus of the board is not, actually, on what has most people concerned:

The formal White House memorandum days later — effectively the legal charter for the group — does not specify anything about its role being independent of the Obama administration. It directed the panel to emphasize in its review whether U.S. spying programs protect national security, advance foreign policy and are protected against the types of leaks that led to the national debate in the first place. The final consideration in the White House memo told the panel to examine "our need to maintain the public trust." There was no mention of the panel investigating surveillance abuses.

Basically, this board, which was proposed by the President -- or so he told us -- as a way to review the efforts and rebuild the trust of the American public, was actually set up to be something entirely different: a propaganda committee effectively overseen by James Clapper to talk up how awesome the surveillance state has become.

Filed Under: independence, james clapper, nsa surveillance, review board, surveillance

Who Should Be On The 'Independent' NSA Surveillance Review Board?

from the thinking-through-the-list dept

We've been pointing out that President Obama's "Surveillance Review Board" -- which is being put together to provide an "outside" review of the NSA's surveillance efforts -- doesn't inspire much confidence. All are barely "outsiders", having worked closely with President Obama in the past. There are no technologists on the panel at all. Beyond Peter Swire, it's not clear that any have that much experience or focus in civil liberties/4th Amendment issues. Oh, and it all "reports" to James Clapper, the Director of National Intelligence who runs these programs, and a confessed liar to Congress about them. It's the kind of board that you put together when you want to pretend there's been an outside review.

Given all of that, Gordon Mohr suggested via Twitter that we put together our own "shadow" board, comprised of members who we'd love to see on the board instead of who they currently have. Who would we want reviewing these things if there were to be a real "outside" and "independent" review of the NSA's surveillance efforts? This is not an easy list to put together, because there are so many folks who would be good. But I'll suggest a few here and would like to hear from others in the comments. We'll start with the first five (to match the same number on the official board), followed by some potential alternates.

1. Ed Felten. This one is a no-brainer. The Princeton computer science and tech policy professor, and the director (and, I believe, founder) of Princeton's Center for Information Technology Policy (CITP). He has his feet firmly planted in both worlds, and a long history of doing security and privacy research (as well as a long history of not backing away from controversy to stand behind the results of his research). While he recently did a brief stint as the FTC's first CTO, he's still very much an outsider. Honestly, there's no reason he shouldn't be leading this review team.
2. Bruce Schneier. Well-known and outspoken security guru. I've heard some folks in the security world grumble over the fact that he gets so much facetime when it comes to security issues compared to many other qualified security researchers, but he has a way of cutting through the crap and getting to the point in an easy and understandable way that few others possess. Furthermore, his special power is not being fooled by "security theater," but focusing in on not just what the actual risks are, but the actual probabilities associated with those risks. The least likely person to be subdued by "but everyone will die!" rhetoric that comes from defenders of these programs.
3. Chris Soghoian. Another well-known security and privacy researcher, currently working for the ACLU (though also did a stint at the FTC). He's been focused on corporate "back doors" to government surveillance for ages.
4. Dave Farber. Another engineering/CS professor with a very long and distinguished resume -- but who also has been deeply involved in a variety of public policy issues over the years, and tends to take a very careful, thoughtful approach to analyzing things. Over a decade ago, he was the CTO for the FCC for a brief period.
5. Orin Kerr. Straddles the worlds of technology, law and law enforcement quite effectively. While the former prosecutor sometimes is a bit too quick to justify law enforcement actions, he does seem to approach these types of questions with a very careful and critical eye.

At least that would be my initial top five list -- all of whom have technology experience, some legal experience, and while every one has had some connections to government, they are generally considered "outsiders", while still clearly having the credibility to be taken seriously by the federal government. There are, of course, plenty of others who I think would be good as well -- including folks like Julian Sanchez, Marcy Wheeler, Jim Harper, Jennifer Granick and others who have spent a lot of time digging deep into NSA claims and related privacy issues -- but they have less of the technology background necessary. There are plenty of other good names out there, so feel free to suggest some in the comments.

Filed Under: bruce schneier, chris soghoian, dave farber, ed felten, nsa, nsa surveillance, orin kerr, review board

NSA Review Board Now Accepting Public Comment On Policies NSA Won't Talk About

from the weirdest-definition-of-quid-pro-quo-ever dept

If you've got anything you'd like to say about the NSA's surveillance programs, now's your chance. The Office of the Director of National Intelligence has announced via its official Tumblr (a sentence that no one could have predicted would ever be written), I CON THE RECORD IC ON THE RECORD, that it is accepting public comments on a variety of subjects, which will be handled by the NSA Review Group.

The Review Group is seeking public comments on all matters that the President has directed it to examine, namely, how in light of advancements in communications technologies, the United States can employ its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure. Comments can be provided via reviewgroup@dni.gov. The deadline for public submissions is October 4, 2013.

The comments you provide to the Review Group will be used to inform the group’s deliberations.

There's no doubt that asking for public comment is a step in the right direction, but it asks more of the public than the NSA's willing to reciprocate. What the public is looking for is transparency. These programs have been shrouded in secrecy, governed by secret laws and regulated only by various ineffective forms of "oversight." People want to know what's actually happening and the DNI has responded by asking them to comment on policies and programs no one's officially provided any information on. What is out there is the result of Snowden's leaks and had nothing to do with the NSA (or the administration) looking for a public "debate" or "discussion." Asking for public comments is good, but it's of very limited usefulness if the agency continues to hold its cards to its chest.

With those limits in mind, here's an equally lengthy paragraph detailing what the NSA Review Group isn't interested in reading.

[Group] will review all comments prior to posting and will not post comments that contain vulgar or abusive language; personal attacks of any kind; offensive terms that target specific groups; spam or comments that are clearly “off topic”; commercial promotions; information that promotes or opposes any political party, person campaigning for elected office, or any ballot proposition; reports of criminal or suspicious activity - if you have information for law enforcement, please contact your local police agency; unsolicited proposals, or other business ideas or inquiries; solicitations for contracting or commercial business; or any claims, demands, informal or formal complaints, or any other form of legal and/or administrative notices or processes.

Presumably, the NSA has the ability to harvest comments like these during its regular collection efforts, and considering the amount of email its has archived, probably has enough penis enlargement/home business opportunities squirreled away to last several hundred lifetimes. Classy broadsides via social media ("F*** you in the face, NSA! #privacy") presumably have also been collected and are awaiting aggressive querying should a terrorism suspect suddenly be only a hop or three away from you thanks to a friend's careless misdialing of an overseas number.

Commenters also should keep in mind that the review board reserves the right to post your comment in full as part of the public record.

[T]he Review Group may determine it appropriate to the public debate to post your comments publicly. Accordingly, any personal information you provide in the comments, or in an address or signature block, may be disclosed. Providing a comment is voluntary, and implies your consent to publication of the comment and any personal information contained in it.

How quaint. A privacy concern. In other words, while the NSA may find your inclusion of an address block extraneous, thousands of other internet users (mostly /b/ denizens) may find private info much more illuminating. So, be careful with that. Also keep in mind that this ultimately heads to James Clapper, as Obama has decided to place a confirmed liar in the "bottleneck" position. All roads lead to Clapper. Govern yourselves accordingly.

Filed Under: james clapper, nsa, nsa surveillance, review board

Administration's Surveillance Review Board Appointees Mostly Sympathetic Insiders

from the totally-dying-of-shock-right-now dept

The surveillance review panel (feat. special guest James Clapper!) Obama announced on August 9th has taken shape. Four appointees have been named, and if this ends up being the totality of the panel, there's not much hope it will provide any sort of meaningful pushback on excessive or intrusive surveillance.

As the Washington Post reports, the four members of the panel are all Washington insiders.

[O]bama administration’s surveillance review panel will include former intelligence and White House staffers, including Michael Morell, Richard Clarke, Cass Sunstein and Peter Swire.

Morell is 33-year veteran of the CIA, who retired from his post just two weeks ago. Where he stands on privacy matters isn't exactly clear, but considering his former position as deputy director, it would stand to reason he's more aligned with the NSA's thinking than the public's.

Richard Clarke is a long-time cyberwar hawk, having served as the chairman of the Counter-Terrorism Security Group under George H.W. Bush, as well as a long stint on the National Security Counsel. Clarke has made recent pushes for more offensive cyberwar strategies and has generally contributed to the FUD surrounding these issues.

On the plus side, he was highly critical of the second Bush administration's actions during his testimony to the 9/11 Commission. That being said, he's really not in favor of scaling back surveillance efforts. Orin Kerr sums Clarke up this way in his piece on the surveillance panel.

[I]n my experience working on some similar issues as he did in the government, Clarke had a reputation for seeing everything as an extraordinarily grave national security threat. I would think Clarke is likely to bring in a pro-government perspective on the issues here.

This brings us to Cass Sunstein, who's a bit of a wildcard. Sunstein's written work tends to draw together a blend of constitutional law, behavioral science and economics, often reaching some very interesting conclusions. But what's most concerning about Sunstein's appointment is the views he expressed in a 2008 paper co-authored with Adrian Vermule, where he argued that the government should be paying more attention to those spreading conspiracy theories.

"The existence of both domestic and foreign conspiracy theories, we suggest, is no trivial matter, posing real risks to the government’s antiterrorism policies, whatever the latter may be." They go on to propose that, "the best response consists in cognitive infiltration of extremist groups"...

Glenn Greenwald has more on Sunstein's paper in his 2010 piece for Salon.com

Sunstein advocates that the Government’s stealth infiltration should be accomplished by sending covert agents into “chat rooms, online social networks, or even real-space groups.” He also proposes that the Government make secret payments to so-called “independent” credible voices to bolster the Government’s messaging (on the ground that those who don’t believe government sources will be more inclined to listen to those who appear independent while secretly acting on behalf of the Government).   This program would target those advocating false “conspiracy theories,” which they define to mean: “an attempt to explain an event or practice by reference to the machinations of powerful people, who have also managed to conceal their role.”

This would be designed to increase citizens’ faith in government officials and undermine the credibility of conspiracists.

Whatever you may personally think about conspiracy theorists and the potential dangers they pose, it's hard to believe that government infiltration and propagandizing is the correct response. (It's somewhat hard to argue this sort of activity actually requires a response from the government at all.) Having someone with an inclination towards government-led espionage activities aimed at its own citizens on a surveillance review board isn't exactly a comforting thought.

The final name on the list, Peter Swire, may be the only appointee to take on an actively adversarial role. Swire has long been an advocate for privacy, having served as the Chief Counselor for Privacy in the Office of Management and Budget (OMB) during the Clinton administration.

More recently he has been very active working to achieve a global "Do Not Track" standard and has, over the past several years, written articles and given interviews critical of the agency's activities, including co-signing an amicus brief arguing that the NSA's telephone metadata program is illegal. He's also been a longtime critic of parts of the PATRIOT Act. If anyone's going to be advocating for privacy, it's probably going to be Swire. Unfortunately, this may leave him as the odd man out.

On top of that, this board, composed mainly of government and surveillance proponents, will be reporting directly to confirmed liar James Clapper (the administration phrases it "reporting through") who is or isn't directly involved with the appointment process, depending on how you define the word "establish."

I guess one (or 1.5, depending on Sunstein's contribution) out of four is better than nothing. But by selecting intelligence officials and former administration staff members, Obama is (once again) sending the message that the "debate" will be still be very tightly controlled.

Filed Under: barack obama, cass sunstein, james clapper, michael morell, nsa, nsa surveillance, peter swire, review, review board, richard clarke, surveillance