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NSA spied on millions of US communications in 2016

May 3, 2017

The US National Security Agency (NSA) collected more than 151 million records of Americans’ phone calls last year, even after Congress limited its ability to collect bulk call records.

A report from the office of Director of National Intelligence Dan Coats presented the first measure of the effects of the 2015 USA Freedom Act, which limited the NSA to collecting the phone records and contacts of people that the US and allied intelligence agencies suspect may have ties to “terrorism”.

NSA collected the 151 million records even though it had warrants from the secret Foreign Intelligence Surveillance Court to spy on only 42 suspects in 2016, in addition to a handful identified the previous year, the report said.

READ MORE: What is electronic surveillance?

Because the 151 million would include multiple calls made to or from the same phone numbers, the number of people whose records were collected would be much smaller, US officials said. They said they had no breakdown of how many individuals’ phone records were among those collected.

Politicians have repeatedly asked US intelligence agencies to tell them how many Americans’ emails and calls are vacuumed up by warrantless government surveillance programmes.

NSA to stop citizen surveillance programme
“This report provides a small window into the government’s surveillance activities, but it leaves vital questions unanswered,” Senator Ron Wyden said in a statement. “At the top of the list is how many Americans’ communications are being swept up.”

The NSA has been gathering a vast quantity of telephone “metadata” – records of callers’ and recipients’ phone numbers and the times and durations of the calls – since the September 11, 2001, attacks.

The spy agency says it doesn’t collect the content of the communications.

US officials on Tuesday argued the 151 million records collected last year were tiny compared with the number gathered under procedures that were stopped after former NSA contractor Edward Snowden revealed the surveillance programme in 2013.

A report in 2014 suggested potentially “billions of records per day” were being collected.

“This year’s report continues our trajectory toward greater transparency, providing additional statistics beyond what is required by law,” said Timothy Barrett, spokesman for the Office of the Director of National Intelligence.

The new report came amid allegations – recently repeated by US President Donald Trump – that former president Barack Obama ordered warrantless surveillance of his communications, and former national security adviser Susan Rice asked the NSA to “unmask” the names of US people caught in the surveillance.

Both Republican and Democratic members of the congressional intelligence committees have said so far they have found no evidence to support either allegation.

The report said the names of 1,934 “US persons” were “unmasked” last year in response to specific requests, compared with 2,232 in 2015. But it did not identify who requested the names or on what grounds.

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Is an NSA contractor the next Snowden? In 2017, we hope to find out

January 27, 2017

We covered a ton of legal cases in 2016.
The entire Apple encryption saga probably grabbed the gold medal in terms of importance. However, our coverage of a California fisherman who took a government science buoy hostage was definitely our favorite. The case was dropped in May 2016 after the fisherman gave the buoy back.

Among others, we had plenty of laser strike cases to cover. There were guilty verdicts and sentencing in the red-light camera scandal that consumed Chicago. The Federal Trade Commission settled its lawsuit with Butterfly Labs, a failed startup that mined Bitcoins. A man in Sacramento, California, pleaded guilty to one count of unlawful manufacture of a firearm and one count of dealing firearms—he was using a CNC mill to help people make anonymous, untraceable AR-15s.

While we do our best to cover a wide variety of civil and criminal cases, there are five that stand out to us in 2017. These cases range from privacy and encryption, to government-sanctioned hacking, to the future of drone law in America.

Drone’s up, don’t shoot

After neighbor shot down his drone, Kentucky man files federal lawsuit
In 2016, we reported on another drone shooting incident (seriously folks, don’t do it!) in Virginia. A 65-year-old named Jennifer Youngman used her 20-gauge shotgun to take out what many locals believe was a drone flying over her neighbor, Robert Duvall’s, adjacent property. Yes, that Robert Duvall.
“The man is a national treasure and they should leave him the fuck alone,” she told Ars.

Youngman touched on a concept that many Americans likely feel in their gut but has not been borne out in the legal system: property owners should be able to use force to keep unwanted drones out of their airspace. But here’s the thing: for now, American law does not recognize the concept of aerial trespass.

At this rate, that recognition will likely take years. Meanwhile, drones get more and more sophisticated and less expensive, and they have even spawned an entire anti-drone industry.

Legal scholars have increasingly wondered about the drone situation. After all, banning all aircraft would be impractical. So what is the appropriate limit? The best case law on the issue dates back to 1946, long before inexpensive consumer drones were feasible. That year, the Supreme Court ruled in a case known as United States v. Causby that Americans could assert property rights up to 83 feet in the air.

In that case, US military aircraft were flying above a North Carolina farm, which disturbed the farmer’s sleep and upset his chickens. As such, the court found that Farmer Causby was owed compensation. However, the same decision also specifically mentioned a “minimum safe altitude of flight” at 500 feet—leaving the zone between 83 and 500 feet as a legal gray area.

“The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land,” the court concluded.

In 2015, a Kentucky man shot down a drone that he believed was flying above his property. The shooter in that case, William Merideth, was cleared of local charges, including wanton endangerment.

Man who built gun drone, flamethrower drone argues FAA can’t regulate him
By January 2016, the Kentucky drone’s pilot, David Boggs, filed a lawsuit asking a federal court in Louisville to make a legal determination as to whether his drone’s flight constituted trespassing. Boggs asked the court to rule that there was no trespass and that he is therefore entitled to damages of $1,500 for his destroyed drone.
Although the two sides have traded court filings for months, the docket has not been updated since June 2016, when Boggs’ attorneys pointed to a recent case out of Connecticut that found in favor of the Federal Aviation Administration’s regulation of drones.

As Boggs’ legal team wrote:

The Haughwout pleadings are directly relevant to the subject matter jurisdiction issue currently before the court. The current dispute turns on whether a controversy has arisen that cannot be resolved without the Court addressing a critical federal question—the balance between the protection of private property rights versus the safe navigation of federal airspace. The Haughwout dispute places this critical question in the context of an administrative investigation. It highlights, as argued by Mr. Boggs—and now the FAA—that questions involving the regulation of the flight of unmanned aircraft should be resolved by Federal courts.
US District Judge David J. Hale has yet to schedule any hearings on the matter.

KickassTorrents lawyer: “torrent sites do not violate criminal copyright laws”
In July 2016, federal authorities arrested the alleged founder of KickassTorrents (KAT). The arrest was part of what is probably the largest federal criminal complaint in an intellectual property case since Megaupload, which was shuttered in early 2012. (That site’s founder, Kim Dotcom, has successfully beat back efforts to extradite him from New Zealand to the United States. He was ordered extradited a year ago, but that court decision is now on appeal.)
In the case of KAT, Ukranian Artem Vaulin, 30, was formally charged with one count of conspiracy to commit criminal copyright infringement, one count of conspiracy to commit money laundering, and two counts of criminal copyright infringement. Vaulin was arrested in Poland, where he remains in custody pending a possible extradition to the United States.

Like The Pirate Bay, KAT does not host individual infringing files but rather provides torrent and magnet links so that users can download unauthorized copies of TV shows, movies, and more from various BitTorrent users.

According to the 50-page affidavit, Vaulin and KAT’s claims that they respected the Digital Millennium Copyright Act were hogwash. The affidavit was authored by Jared Der-Yeghiayan, who is a special agent with Homeland Securities Investigations and was also a key witness in the trial of Silk Road founder Ross Ulbricht.

Vaulin has since retained Dotcom’s lawyer, Ira Rothken, who has made similar arguments in court filings on behalf of his more famous client. Namely, that there is no such thing as secondary criminal copyright infringement, and while some files uploaded to KAT may have violated copyright, that does not make Vaulin a criminal.

Rothken has not yet been able to directly correspond with or even meet his Ukrainian client (and has to do so only through Polish counsel). Nevertheless, he filed a motion to dismiss in October 2016. The government responded weeks later, and Rothken filed another response on November 18.

Prosecutors, for their part, said that the Rothken-Vaulin theory was ludicrous: “For the defendant to claim immunity from prosecution because he earned money by directing users to download infringing content from other users is much like a drug broker claiming immunity because he never touched the drugs.”

The two sides met before US District Judge John Z. Lee for a status conference on December 20, 2016. Judge Lee has not yet ruled on the motion to dismiss.

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What’s the next big threat to US intelligence? Donald Trump

January 16, 2017

Donald Trump has been on Twitter again this morning, this time in reaction to an admonishment made on Sunday by outgoing CIA director John Brennan criticising the president-elect for comparing the US intelligence community with Nazi Germany and urging him to rein in “talking and tweeting” that could impact on national security. Trump responded by slamming the credibility of US intelligence on key national security issues and attacking Brennan personally. “Was this the leaker of Fake News?” Trump tweeted.

This spat is the latest in a series of hostile exchanges that reflect ever-worsening discord between the US president-elect and the American intelligence institutions. The implications are potentially severe, not only for the day-to-day operations of the US intelligence agencies but also for the very prospect of rational government, which relies on a functioning relationship between those whose job it is to understand the world and those who make decisions.

It’s safe to say that the US intelligence community’s handling of the Trump dossier did nothing to improve its relationship with the incoming commander-in-chief. The two-page summary of unverified reports suggesting “kompromat” on Trump, which landed on the desks of the president and president-elect, handed Trump and his team the opportunity to accuse them of being complicit in the spread of “fake news” and “phoney stuff”.

While these accusations are unfounded and over the top – the Trump dossier has nothing to do with the separate problem of fake news – the situation does highlight the critical need for intelligence professionals to adhere to the tradecraft standards that command the trust that decision-makers must place in them. The tradecraft that matters most these days for intelligence organisations (contrary to fake news peddlers) relates to the analysis and assessment of information, rather than its collection. In an age of information abundance, collecting information is arguably less challenging than the task of extracting value from it for decision-making purposes. Indeed, information becomes intelligence only after it has been analysed and assessed, and decision-makers require intelligent judgments.

While the professionalisation of intelligence in government circles has led to the development of cutting-edge analytical and assessment techniques, the corporate intelligence world tends to be less sophisticated, where the line between “intelligence” and “information” is more blurred. The privately produced source reports about Trump do not constitute intelligence product; they simply present information that might or might not be true. It remains surprising, therefore, that a two-page summary of this reporting, which fell well short of normal tradecraft standards, was included in high-level government briefings.

The fallout of the Trump dossier handling will present unprecedented challenges to US intelligence organisations, activities and knowledge. As former CIA acting director Mike Morell warned on CBS’s Face the Nation on 8 January, staff morale will undoubtedly suffer if President Trump turns out to be permanently uninterested in what they do. It is unlikely that he will seek to actively invest in the intelligence community or empower its leadership; there is already loose talk suggesting the administration aims to weaken the influence of the office of the director of national intelligence, who is supposed to serve as the principal adviser to the president on such matters, following the perceived mishandling of Russian hacking claims.

Even if Trump doesn’t restructure US intelligence organisations in any meaningful way, it remains highly doubtful that he will ever become a keen consumer of intelligence material. As per Morell’s warning, the existence of a commander-in-chief that doesn’t appear to value intelligence product or process could jeopardise the US’s ability to recruit sources, especially those motivated by a strong sense of patriotism and the desire to make a difference. A disengaged president would surely do little to incentivise agents to take risks to provide information if there is little prospect of that information ever influencing the thinking of high-level decision-makers serving in a Trump administration.

Perhaps most concerning, however, are questions surrounding the status and handling of intelligence as a type of knowledge, especially as it pertains to national security, foreign affairs and defence. “I know more about Islamic State than the generals do” is a statement typical of Trump, but the emergence of a thick “post-truth” atmosphere seeping through American (and British) political and media institutions risks stifling expert opinion where it is needed most.

In 1949, the great American academic and serviceman Sherman Kent introduced the concept of “strategic intelligence”. The core idea was that intelligence played a critical role in supporting rational government, by helping policymakers gain a “big picture” understanding of the world around them and make informed strategic decisions. It became the backbone of the western intelligence model, which serves as the blueprint for the US and other democratic countries worldwide.

Its fundamental purpose is to “provide truth to power”, promote evidence-based thinking, and present perspectives that might challenge the preconceptions of those in charge. It stands in stark contrast to politicised models, often found in totalitarian states, that feature organisations that struggle to resist the pressure to simply say what their political masters want to hear. History shows us that the relationship between intelligence and policy has rarely been straightforward, but it will struggle to provide any examples of previous US presidents-elect publicly denigrating the very institutions that US policymakers rely on for objective insight and evidence-based perspectives that might serve to challenge the ideological convictions of politicians.

The western intelligence model has survived in the US for almost 70 years. It may now be facing its sternest test yet.

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Donald Trump is about to control the most powerful surveillance machine in history

November 15, 2016

The US intelligence agencies are among the most powerful forces to ever exist, capable of ingesting and retaining entire nations’ worth of data, or raining down missiles on targets thousands of miles away. As of January 20th, all that power will be directly answerable to Donald Trump.

It’s still early, but a picture is starting to emerge of how the president-elect could use those powers — and it’s not a pretty sight. Since the September 11th attacks, the US government gives the president almost unlimited discretion in matters of national security, with few limitations or mechanisms for oversight. That includes NSA surveillance, as well as the expanding powers of the drone program. And from what Trump has said on the campaign trail, his targets for using those powers may cut against some of America’s most important civil rights.

The crown jewel of that system is the NSA, and there’s reason to think it will grow even more secretive and voracious in the Trump administration. Trump’s current transition team includes two of the NSA’s foremost defenders — Rep. Devin Nunes (R-CA) and former congressman Mike Rogers — a move that suggests the agency will be moving toward more invasive collection and less transparency than ever before.

“NO WARRANT OR COURT APPROVAL IS REQUIRED”
To a large degree, those changes can be carried out completely in secret, without authorization from Congress or even the FISA court. The majority of the NSA’s operations are authorized under a little-known presidential mandate called Executive Order 12333, which authorizes collection of data inside and outside US borders for national security purposes. Because it’s an executive order rather than a law, it can’t be challenged in court or overturned by Congress, and it places almost no limits on what the NSA can collect.

“Executive Order 12333 contains nothing to prevent the NSA from collecting and storing all such communications — content as well as metadata — provided that such collection occurs outside the United States in the course of a lawful foreign intelligence investigation,” a former State Department section chief wrote in 2014, explaining the importance of the order. “No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.”

We don’t know how thoroughly the NSA has exploited that authorization in the past, but, EO 12333 will give Trump a clear path to push the authorization even further. More importantly, because of the secrecy shrouding even the most routine NSA policies, we might not have any idea when a change in policy is made. “It’s very much within the authority of the president to make changes there,” says the Brennan Center’s Elizabeth Goitein, who co-directs the center’s Liberty and National Security Program. “There could be a significant expansion of those activities without the public having any knowledge of it.”

“THERE COULD BE A SIGNIFICANT EXPANSION OF THOSE ACTIVITIES WITHOUT THE PUBLIC HAVING ANY KNOWLEDGE OF IT.”
Secrecy is crucial because it enables more invasive and disruptive forms of surveillance, according to University of Washington Professor Ryan Calo, who has written extensively on the topic. As long as surveillance programs are secret, it’s nearly impossible to hold them in check — and without a steady stream of whistleblowers, any new programs are likely to stay secret. As Calo told The Verge, “It’s very difficult for the public to resist surveillance that they don’t know about.”

That blank check is particularly troubling given the views Trump expressed on the campaign trail. At a rally last November, he stated explicitly, “I want surveillance of certain mosques,” a view he maintained in later speeches. Trump also stated he would take similar measures toward the Black Lives Matter movement, calling the group a “threat” and saying “At a minimum, we’re going to have to be watching.”

“I WANT SURVEILLANCE OF CERTAIN MOSQUES”
There’s also concern about Trump’s penchant for personal feuds, seen on the campaign trail against the Khan family and Alicia Machado. “This is a person who does not suffer criticism particularly well, and holds grudges against political enemies,” Goitein says. “One of the things we saw when we had unfettered intelligence agencies in the past, like J. Edgar Hoover’s FBI, was surveillance and harassment of political enemies. I certainly think that’s something we need to be on the lookout for.”

Beyond surveillance, the Trump administration will also inherit unprecedented powers to unilaterally kill suspected terrorists. Since the drone programs began, US drone strikes have killed as many as 5,000 people, including at least one US citizen, and none of those powers have been meaningfully weakened under the Obama administration. There’s an involved chain of command when those strikes are made through the Joint Special Operations Command, but the CIA operates a separate drone strike program that’s far more malleable. The ACLU had urged Obama to curtail those powers before leaving office, but he declined to do so. The result, two ACLU lawyers wrote earlier this year, is that “whoever prevails in November will inherit a sweeping power to use lethal force against suspected terrorists and militants, including Americans.” Combined with Trump’s outspoken enthusiasm for torture and targeting terrorists’ families, the result could go beyond many of the most barbaric elements of the Bush-era War on Terror.

“WE HAVE TAKEN SOME PRETTY DRAMATIC STEPS TO EXPAND EXECUTIVE POWER”
Trump’s first hurdle in carrying out that agenda may be simple workforce issues. A report last week in The Washington Post found significant opposition to Trump in the intelligence community, stoked by the president-elect’s refusal to accept the Director of National Intelligence’s conclusion that the Russian government was responsible for the theft and leaking of emails from the DNC. Because of that bad blood, insiders predict a significant backlash if the incoming president scrapped the previous administration’s rules on drone strikes or attempted to restart the CIA’s torture program. The Daily Beast found similar unrest at the Pentagon, as old guard officials anticipated being replaced by a younger generation. Still, with the power to promote and dismiss leaders at will, it’s difficult to say whether staff unrest will end up being more than a speed bump for Trump’s ambitions.

There’s also Congress, still controlled by Republicans but arguably containing as many surveillance opponents as ever. “I think the relationship between the Trump administration and the Republicans will be interesting,” says Calo. “A congressman like Justin Amash is going to be just as vehement about the need for citizen privacy as he was under Obama.” Still, it seems unlikely that those efforts will be more effective under Trump than they were under Obama.

In some ways, the problem is larger than even Trump himself. These presidential powers are still new, and Obama is the only president to enter office with them already in place. For scholars like Goitein, that sweeping power is the real issue. “Before 9/11, the law required suspicion of criminal or terrorist activity before we could conduct surveillance, and that’s no longer the case,” she says. “We have taken some pretty dramatic steps to expand executive power, and I’d say no matter who had won the election, we’ve reached a point where we really need to rethink whether that’s in our best interests.”

It’s a point that was echoed by none other than Edward Snowden, who responded to Trump’s electoral win in a livestream on Thursday. An occasional critic of Hillary Clinton, Snowden struck a tone of hope and resilience, putting the election in the context of troubling new surveillance laws in Russia and China.

“Something we need to remember is that we are never farther than a single election away from a change in government, a change in policy, a change in the way the powers in our system are used,” he said from an undisclosed location in Russia.

“What we need to start thinking about now is not, How do we defend against a President Donald Trump?” he continued. “How do we defend everyone everywhere?”

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CIA Ex-Boss: Secretive Spooks Tolerated In UK More Than In US

May 31, 2016

British people are not demanding more transparency from the intelligence services as loudly as Americans, the former director of the US National Security Agency (NSA) and CIA has said.
Michael Hayden played a pivotal, leading role in American intelligence until he was replaced as director of the CIA shortly into the presidency of Barack Obama.
In a wide-ranging talk on the fourth day of the Hay festival, Hayden addressed CIA torture, targeted killings, what he thinks about Edward Snowden and how Facebook is perhaps a greater threat to privacy than government.
Hayden said the security services were changing faster in the US than the UK. “You as a population are far more tolerant of aggressive action on the part of your intelligence services than we are in the United States,” he said.
The US intelligence services would not have validation from the American people unless there was a certain amount of knowledge, an increased transparency, he said.
Hayden talked about the tensions between the need to know and the need to protect.
In his newlypublished book Hayden calls Snowden naive and narcissistic and says he wanted to put him on a “kill list”.
On the next page he said Snowden “highlighted the need for a broad cultural shift” in terms of transparency and what constitutes consent. On Sunday he said there was no contradiction between the two assertions.
“The 2% of what Snowden revealed that had to do with privacy accelerated a necessary conversation. The other 98% was about how the US and foreign governments collected legitimate material … that was incredibly damaging.”
The privacy revelations quickened a conversation which had “hit the beach” in the US but it “has not hit the beach here in Great Britain”.
Hayden was asked about how much information we give to social media companies and whether the public is naive in trusting Mark Zuckerberg and Facebook more than the NSA.
“I have my views on that,” he joked. “Your habits are all geared to protecting privacy against the government because that was always the traditional threat. That is no longer the pattern, it is the private sector … we are going through a cultural adjustment.
“With regard to the 21st-century definition of reasonable privacy, Mark Zuckerberg is probably going to have a greater influence on that than your or my government because of the rules we will embed inside his Facebook applications.”
On “enhanced interrogation techniques” or torture – which could include waterboarding – Hayden said he personally authorised it only once and it did not, he admitted, work.
But he added the “suite” of usable techniques had been reduced from 13 to six and the interrogator believed he would have got information if that had not been the case. “Was it doomed to failure or was it a failure because we did not do enough?”
Targeted killings were justified, Hayden said, because the US believed it was at war. The UK, he said, referring to the killing of “Jihadi John”, has now “joined the queue”.
Hayden said he believed Islam was going through the crisis that Christianity went through in the 17th century as it was in an internal crisis. “We are not the target, we are collateral damage. What has happened in Paris, in Brussels … is spillage.”
Hayden also touched on Donald Trump, whose pronouncements, he said, had damaged US security.
“The jihadist narrative is that there is undying enmity between Islam and the modern world so when Trump says they all hate us, he’s using their narrative … he’s feeding their recruitment video.”
By Mark Brown
www.theguardian.com

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