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Published: Fri, 23 Jun 2017 00:00:00 -0400

Last Build Date: Fri, 23 Jun 2017 04:35:27 -0400


Freedom Caucus Conservatives Break from Trump, Want More Surveillance Reform

Fri, 16 Jun 2017 13:40:00 -0400

(image) The White House and several prominent Senate Republicans want to keep the scope of federal surveillance powers intact, but there's a rebellion afoot. The House Freedom Caucus has said it does not want to renew some federal snooping powers unless there's reform that better protects Americans from unwarranted data collection.

Earlier this month, such Republican senators as Tom Cotton of Arkansas, Marco Rubio of Florida, John McCain of Arizona, and Susan Collins of Maine, among others, announced they were introducing a bill to make permanent some temporary surveillance powers granted by amendments to the Foreign Intelligence Surveillance Act (FISA). The White House has formally declared its support for this bill.

The powers under dispute fall under Section 702 of FISA amendments. Section 702 is intended to allow the National Security Agency (NSA) to snoop on the communications of foreign targets. But this surveillance often ends up drawing in data and records and communications from United States citizens as well, all collected without a warrant.

While there's a "minimization" process intended to protect U.S. citizens' privacy and due process rights, there's also an "unmasking" procedure government officials have used to investigate domestic crimes beyond threats of terrorism and espionage. Such a process appears to run afoul of the Fourth Amendment's protections, and civil rights advocates across the political spectrum want to reform Section 702 to protect against these "backdoor" searches.

Section 702 wll expire at the end of the year if Congress does nothing (or is unable to get enough votes to pass something). So this short announcement from House Freedom Caucus Chairman Mark Meadows (R-N.C.) is a warning to President Donald Trump, Sen. Cotton, and others that the party is not in total agreement:

Government surveillance activities under the FISA Amendments Act have violated Americans' constitutionally protected rights. We oppose any reauthorization of the FISA Amendments Act that does not include substantial reforms to the government's collection and use of Americans' data.

If this conflict within the party sounds familiar, it's because it played out after Edward Snowden's leaks too. At that time, several privacy-minded Republicans resisted efforts to renew a part of the Patriot Act that was being used to justify the mass collection of Americans' private phone call and online activity metadata.

The end result of that fight was that part of the Patriot Act was allowed to sunset and was replaced by the USA Freedom Act, which formalized but also put some restrictions on how the government was able to access that metadata.

I noted earlier in the week that the pro-surveillance senators who support the unchanged renewal of Section 702 were in a difficult situation because they did not have a lot of leverage: All opponents have to do to make them fail is nothing at all. This warning by the Freedom Caucus, which has about three dozen members, will let the Senate and the White House know that Republican control over Congress doesn't mean reauthorization is going to be easy. This may be the first step in a USA Freedom Act–style compromise.

White House Makes It Official: It Wants to Keep Snooping on Americans

Tue, 13 Jun 2017 15:30:00 -0400

President Donald Trump and allies may complain on Twitter and out loud how the Deep State illegally snooped on him under his predecessor, Barack Obama, but that doesn't mean the White House wants less surveillance authority. The White House and several GOP senators have made it official: They want to make some significant surveillance authorities permanent under law without addressing concerns by civil liberties and privacy advocates that these authorities are being used to collect Americans' data without the use of warrants. What we're talking about is Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments. Section 702 grants some important authorities for the National Security Agency (NSA) to engage in unwarranted surveillance of foreign agents and potential threats overseas. It expires this year if Congress doesn't renew it. The problem: While Section 702 is sold as a mechanism of snooping on foreign agents and potential terrorists in other countries, it also ends up collecting private information and communications from Americans if they've made contact with these targets. When Trump complained his campaign had been snooped upon while communicating with officials connected to foreign governments (like Russian and Turkey), in all likelihood, the foreign officials were the actual targets. The NSA has "minimization" procedures when private data and communications originating from American citizens ends up "incidentally" gathered through Section 702. NSA analysts aren't supposed to be able to easily invade the privacy of citizens. But there is an "unmasking" process for select people in the government to see names and more identifying information than they would otherwise. According to a recent report, names were unmasked, revealing the identity of a U.S. citizen, on at least 1,200 occasions in 2016. In this process of "backdoor" searches, the federal government is clearly gaining limited access to the private communications of citizens without getting warrants and with much more limited oversight (there is a FISA court, but it doesn't operate the same way as a normal court in oversight of these 702 searches). And therefore citizens are not aware when the government has collected and accessed data about them. But despite Trump's complaints about allegedly illegal unmasking, the White House has taken to The New York Times to call for Section 702 to be renewed and made permanent. There's some circular reasoning here in the response to critics who want better protections to keep citizens data from being reviewed: [I]t does not permit backdoor targeting of Americans, whose communications with foreign persons can be incidentally captured in the process. National security officials may use search terms or identifiers associated with Americans, such as an email address, to query the information lawfully acquired using Section 702 authority. But this does not entail the collection or search of any new information, and the practice has been upheld by the FISA court and all other federal courts that have considered this issue. It is also consistent with the long history of our legal system. Imposing a warrant requirement to conduct such data queries, as some in Congress have proposed, would be legally unnecessary and a step toward re-erecting pre-9/11 barriers to our ability to identify foreign terrorists and their contacts. It's legal because the law says it's legal. That's not exactly an argument against changing the law if people don't agree with the amount of authority it grants to both the NSA and the FBI. Sen. Tom Cotton (R-Arkansas), who appears to have hitched his star to any wagon promising a more authoritarian government, is leading an effort among pro-surveillance Senate Republicans to keep 702 and the rest of the FISA authorities intact. Even if the Republican Party controls Congress and has a supportive White House, that doesn't mean Cotton and Trump are going to get what they want. Pro-surveillance leaders in the Senate initially resisted the USA Freedom Act, which pl[...]

James Comey’s Lackluster Civil Liberties Record Shows Washington’s Failure to Police Itself

Wed, 07 Jun 2017 16:45:00 -0400

As all of Washington braces for James Comey's incendiary testimony before Congress Thursday, it's worth a trip down memory lane to reflect on his tenure as FBI director. When Comey was appointed by Barack Obama to lead the FBI in 2013, he was seen as a hero in many circles for dramatically pushing back against the Bush administration's illegal surveillance programs. "Jim understands that in time of crisis, we aren't judged solely by how many plots we disrupt or how many criminals we bring to justice," Obama said as he nominated Comey in 2013. "We're also judged by our commitment to the Constitution that we've sworn to defend, and to the values and civil liberties that we've pledged to protect." Yet as Reason's Nick Gillespie wrote shortly after Comey's nomination, "Comey has been applauded for standing up to some of Bush's more-expansive surveillance policies, but he also defended indefinite detention without a trial, waterboarding, and—once a new legal rationale had been hammered out—those more-expansive surveillance policies." During his confirmation hearing to replace then-FBI Director Robert Mueller—who, because time is a flat circle, is now the special counsel leading the investigation into the Trump campaign's ties to Russia—Comey assured senators and the public that there were plenty of checks and safeguards against FBI overreach, such as the FISA court, investigative guidelines from the attorney general, and oversight from Congress and the inspector general. "I think folks don't understand that the FBI operates under a wide variety of constraints," Comey argued. But as all good civil libertarians know, the FBI has always been an intensely political agency that is almost never restrained from using its vast powers to address the anxieties and paranoias of the people in power. (See: the redbaiting of the '50s, the efforts to blackmail and discredit civil rights leaders in the '60s, and the infiltration of dissident political groups both before and after 9/11.) Congress, meanwhile, is deferential to the point of uselessness when it comes to delegating power to the intelligence community. It was about six months after Comey's appointment that Edward Snowden leaked evidence that the National Security Agency was vacuuming up massive amounts of U.S. citizens' phone data. Comey said he was "confused" by the public perception of Snowden as a whistleblower—hero, even—since all three branches of government had approved the surveillance dragnet. "I see the government operating the way the founders intended," Comey declared. "So I have trouble applying the whistleblower label to someone who basically disagrees with the way our government is structured and operates." As Reason's Scott Shackford wrote in 2014: Even before Edward Snowden began leaking classified documents showing exactly how humongous federal data collection had become, there were already a number of previous examples of government snooping out of control. In particular, the FBI's system of using National Security Letters (NSLs) to obtain personal records without a court order was found by the Department of Justice's inspector general to have been terribly abused, gathering records with little oversight or reason, not following processes and resorting to "exigent letters" to even bypass the NSL rules entirely by claiming emergencies. Similarly, when Apple and Google announced in 2014 they were making encryption easier for consumers, Comey knew who the real victim was: the government. "What concerns me about this is companies marketing something expressly to allow people to hold themselves beyond the law," Comey told reporters. Over his tenure, Comey would repeatedly testify about the dangers of allowing U.S. citizens to keep their communications hidden from the government's prying eyes. Comey put muscle behind that rhetoric in 2016 when the FBI attempted to force Apple to create a backdoor into the locked iPhone of the San Bernardino terrorist Syed Farook. Then there was Project Exile, one of [...]

Another Court Panel Allows Trans Teen to Use Bathroom of His Choice

Tue, 30 May 2017 17:15:00 -0400

Another federal circuit court has weighed in on whether transgender school students should be able to select which bathrooms to use and has ruled in the student's favor. A three-judge panel of the 7th Circuit Court of Appeals today affirmed an injunction in place telling Kenosha Unified School District in Wisconsin that it can't refuse to let Ashton Whitaker, 17, use the male facilities. The panel heard the case yesterday. Read the ruling here. Whitaker began transitioning into a male in 2014, is currently taking hormones, and has legally changed his name. His school district, however, is refusing to acknowledge his change unless he's had full reassignment surgery, according to the lawsuit. They've ordered him to use the women's facilities (even though he looks like a male) or a singular unisex bathroom far from his classes to which none of the other students have access. He has sued and today the panel unanimously decided in his favor. They chose Whitaker's interpretation of Title IX (They have to respect his gender identity under the law's restrictions against sex discrimination.) over the school district's interpretation (They're protecting the other students' privacy with sex-based segregation as permitted under the law). The judges were not impressed with the district's insistence they were protecting students from harm, dismissing it as all speculative. The school district had no problems with Whitaker using male facilities until they suddenly did: The School District has not produced any evidence that any students have ever complained about Ash's presence in the boys' restroom. Nor have they demonstrated that Ash's presence has actually caused an invasion of any other student's privacy. And while the School District claims that preliminary injunctive relief infringes upon parents' ability to direct the education of their children, it offers no evidence that a parent has ever asserted this right. These claims are all speculative. This particular federal case matters because it comes after Attorney General Jeff Sessions rescinded an executive branch interpretation of Title IX from under President Barack Obama's administration. Under Obama, the Department of Justice and Department of Education told schools they must accommodate transgender students based on some current court precedents related to sex-stereotype-based discrimination. The Supreme Court had been planning to hear this case, in part to look at whether the court should defer to the executive branch when deciding how to apply the law to transgender students. But after Sessions withdrew the order, the Supreme Court kicked the case back down to the 4th Circuit and ordered a new review. This ruling, then, is not based on any sort of deference to the executive branch on how to interpret Title IX. Instead, the court is using other previous court precedents that determine discrimination on the basis of whether somebody conforms to gender stereotypes is illegal. The panel today determined that Whitaker had a good chance of winning a case that extends that stereotype argument to transgender students. That's exactly what happened with the case the Supreme Court is considering. So the panel decided to leave in place an injunction allowing Whitaker to continue using the men's facilities. This panel ruling doesn't really change the math or arguments in this debate whatsoever. It's really more of a sign that this issue is going to continue coming up in the federal courts until the Supreme Court finally weighs in or until Congress passes some sort of legislation clarifying Title IX (and other sex-focused discrimination laws) one way or the other. Also worth noting: The 7th Circuit is also where the full court ruled that workplace discrimination against people on the basis of being gay or lesbian is also a violation of federal law for the same reason. Even though federal laws don't directly outlaw discrimination on the basis of sexual orientation, the court accepted the argument that anti[...]

People Who Called Snowden a Traitor Shocked to Learn About All This Domestic Surveillance

Fri, 26 May 2017 13:00:00 -0400

There's this whole "Life comes at you fast" shtick that folks on Twitter use to point out people's hypocrisy. Suddenly Democrats care about federalism when it comes to immigration law enforcement! Suddenly Republicans don't care about federalism when it comes to immigration law enforcement! I try not to engage in the shtick too much, because it feels more like point-scoring than actual debate. But I can't help but bring it up right now. Yesterday, a story about federal surveillance abuses made the rounds in the conservative parts of Twitter I pay attention to, not the tech-security circles where I usually see such discussions. The story, via a media outlet called Circa, documents a recently released report from the Foreign Intelligence Surveillance Court (FISA Court). The report features examples of the FBI passing along private data it collected without warrants to people who should not be seeing it. It's an important story, and it's great that it's getting attention. But what it reveals is well-known to anybody who has been paying attention to the surveillance disclosures and FISA Court document releases that have slowly been surfacing since Edward Snowden started leaking. The federal government is accessing and spreading around more information about U.S. citizens than we realize. That's what Snowden's disclosures were about, right? So here's a March tweet from conservative contributor Kurt Schilchter calling Snowden a traitor: Fuck him. He's a traitor. @NehemiahGraham @Snowden @KamVTV — Kurt Schlichter (@KurtSchlichter) March 8, 2017 Here's an outraged Schlichter today, sharing a link to the Circa story: Tell me more about Trump — Kurt Schlichter (@KurtSchlichter) May 26, 2017 I selected Schlichter because he's pretty prominent (and isn't going to be bothered by me pointing this out), but I've seen several tweets of the "Why isn't the MSM covering this?" variety from other conservative tweeters, acting as though the press is giving former President Barack Obama cover for setting up a surveillance system that they now think is being used to attack President Donald Trump. The reality is that these surveillance problems do get reported to an American public that has largely, unfortunately, stopped paying much attention. (As a guy who has been covering surveillance for Reason for years, I can easily map out the decline in readership of these pieces, and I suspect other sites can as well.) If you think the intelligence community and the deep state is abusing its powers to go after Trump and his allies for political reasons, guess what: This is exactly the consequence that Snowden himself warned of! A major criticism of the expansive surveillance state has always, always, been its potential for abusive snooping on citizens, whether it's Black Lives Matter or a militia. The problem cuts across the political spectrum. Perhaps people shouldn't have been so quick to call Snowden a traitor. Perhaps they could have spent more time thinking about the actual consequences of the powerful surveillance state, and maybe all those previously reported FISA Court disclosures that helped inform the very story they're passing around now. But regardless of how folks like Schlichter got here, welcome to the surveillance skeptic club! Now that you're here, you should know that there's a very important congressional vote coming up. Section 702 of the FISA authorizations sunsets this year, and Congress has to act. Right now, tech companies are lobbying for changes that would provide more oversight on the National Security Agency and limit the feds' ability to collect information without warrants within in the U.S. One problem: The White House has said that it doesn't want any reforms to Section 702. They want to leave government's surveillance powers as they are. If you're a Trump supporter who believes that he's being targeted by the intelligence community for political reasons, well, here's a[...]

San Francisco Officials Continue Attacks on Uber

Fri, 19 May 2017 00:01:00 -0400

The City of San Francisco filed suit last week against the ridesharing service Uber after the company filed a motion in court to block the release of a drivers' personal information. This sets up the latest battle between the city and one of the leading transportation network companies over an issue that has privacy implications beyond the ridesharing industry. San Francisco's tax collector wants the home addresses and other information of drivers to post on a web site that includes a map that pinpoints the exact location of registered business owners in the city. Because these drivers are independent contractors, most of them use their home addresses as their official business address. The web site is publicly searchable, which means that anyone can easily find where these drivers live. "We've asked the city to allow us to get the consent of drivers and to remove their personal information from the public web site, but they have refused," said Uber Northern California's general manager, in a statement last week. The city's treasurer, Jose Cisneros, portrayed Uber's actions as an effort to "circumvent the tax laws that apply to all businesses in San Francisco." He notes that 130,000 other businesses—ranging from big ones such as Pacific Gas & Electric to small hairdressers—must also provide the information. "San Francisco needs this information to determine whether Uber's drivers are complying with San Francisco's Business Registration Certificate requirement and paying annual registration fees," the city wrote in its legal brief filed in San Francisco Superior Court. In a statement, City Attorney Dennis Herrera referred to privacy concerns as a "red herring." But critics of the city's legal approach see it as its latest effort to hobble these increasingly popular ridesharing platforms. For instance, Cisneros seemed to suggest in a statement that the dispute goes beyond a simple business-registration request, as he ticked off a variety of unrelated complaints that he has with the company. "Once again Uber believes they are above the law," said Cisneros. "If Uber is so concerned about the financial well-being and privacy of their drivers, I recommend they raise wages, convert the contractors to employees, or push for their driver's inclusion in statewide licensing like limousine drivers." If this is a question of registration, then why bring up pay rates or drivers' independent-contractor status or unrelated licensing issues? The city attorney's office likewise brought up other issues. It alleges that Uber has engaged in a "pattern of obstruction" because it "has refused to share information with the San Francisco Municipal Transportation Agency about its operations, tested self-driving cars on the streets of San Francisco without a state permit, and has fought calls by the SFMTA and the San Francisco International Airport for stricter criminal background checks on its drivers." The city attorney's office also complained that, because ridesharing companies such as Uber are regulated by the California Public Utilities Commission, it has "limited the ability of cities to provide oversight." The statement criticizes Uber for its backing of Senate Bill 182, which "would prohibit local jurisdictions from requiring a transportation network company driver to obtain more than one business license, regardless of the number of jurisdictions in which they operate," according to the Senate bill analysis. That measure has passed two committees with little opposition. As the San Francisco Chronicle reported, drivers are concerned that myriad cities will require business licenses, which means they would have to register and pay fees in every city where they operate. There are dozens of cities in the Bay Area alone, and drivers frequently pick up passengers in, say, San Francisco and leave them off in Oakland or San Mateo. Only a handful of cities now require business licenses, but the requirement c[...]

Another Reason to Thank Snowden: Increased Federal Surveillance Transparency

Wed, 03 May 2017 12:55:00 -0400

The National Security Agency (NSA) collected more than 150 million records about the phone calls of Americans in 2016. Believe it or not, this is almost grounds for celebration. That's because this massive number actually represents a scaling back in the amount of our communications data the NSA has access to. The passage of the USA Freedom Act in 2015 reduced the ability of the NSA to collect phone metadata records on their own, a direct result of Edward Snowden's whistleblowing. This new report from the Office of the Director of National Intelligence (ODNI) shows the impact. Instead of collecting and storing the phone call metadata records of nearly all Americans, the NSA requested and received 151 million records from providers. It's important to note that the number refers to the number of records, not individuals, and the circumstances of collecting the records means there may be many redundancies that are nevertheless counted separately. The actual number of Americans whose call records ended up in the custody of the NSA is much lower (and we don't know what it is). It's also important to note that this particular information and collection of Americans call records is completely separate and unrelated to the announcement from last week that the NSA was ending another type of surveillance that intercepted communications by Americans. The NSA monitored email communications looking for references to foreign individuals targeted for NSA surveillance. The result was that the NSA was able to access and scan the contents of communications by Americans originating domestically without a warrant, which it's not supposed to do. Furthermore it turned out the NSA was often unable to isolate just those particular emails and was incidentally collecting an unrevealed number of completely unrelated communications. The NSA announced it was ending that particular type of active surveillance. The 151 million number is a different form of data collection, accessing stored metadata records of phone calls. There are a lot of different ways the NSA and the federal government collects data and engages in surveillance, often making it a challenge to fully evaluate trends. This is particularly true given that this is only the fourth annual transparency report released by ODNI. These new transparency reports go all the way back to all of 2014. So it's sometimes challenging to really determine trends. The report shows that the number of National Security Letters (NSLs) sent by the FBI has declined. NSLs are demands that companies (typically telecoms and internet companies) provide records about targeted customers to assist FBI investigations. These NSLs also have legally enforced gag orders attached keeping the companies from informing the customers and the public. Over the past four years the number of NSLs administered has dropped from 19,212 to 12,150. But we can't truly say that's a decline in the amount of people having their records snooped on because an individual NSL may have multiple names on them and the FBI may send letters to multiple companies looking for the same records. So we know only how many letters were sent, not how many people were affected. The report does show that the number of foreign targets who are the subject of surveillance orders has increased over the past few years. More than 106,000 non-U.S. people have been the subject of "Section 702" orders in 2016. Section 702 of the Foreign Intelligence Surveillance Act has been implicated in the incidental surveillance of American citizens and plays a big role in the current political fight over the circumstances through which President Donald Trump's associates were dragged into surveillance of foreign officials. If a perfectly legal target of foreign surveillance communicates with an American citizen who is here on U.S. soil, it becomes a problem given our Fourth Amendment protections from unwarranted sear[...]

NSA Ends One Particular Type of Domestic Email Data Collection

Fri, 28 Apr 2017 15:45:00 -0400

Let's hear it for a little bit more communication privacy for Americans! Charlie Savage at The New York Times is reporting via sources that the National Security Agency (NSA) is ending a particular type of intrusive surveillance that scanned the contents of Americans' emails for key words. Specifically, the NSA monitors messages for references of foreign individuals under their surveillance, even when such communications originate here domestically from Americans. This is often referred to in shorthand as "about" searches, meaning they're looking for messages that are "about" people they're watching, not just from or to these people. The NSA argues that this is legal as part of its job to gather intelligence about potential foreign threats. But this happens without warrants and and the implication here is at the very least the scanning of the contents of Americans' communications without evidence of wrongdoing. Furthermore it appears as though NSA employees were not able to confine themselves to collecting just the communications that referenced the foreign target. This technical issue had been raised before in the Foreign Intelligence Surveillance Court (FISC): Through this process, the NSA was collecting and potentially getting access to all sorts of communications it wasn't supposed to be looking at, even if one were to accept that the "about" searches were legal. From Savage: The problem stemmed from certain bundled messages that internet companies sometimes packaged together and transmitted as a unit. If even one of them had a foreign target's email address somewhere in it, all were sucked in. After the N.S.A. brought that issue to the court's attention in 2011, a judge ruled that it violated the Fourth Amendment, which bars unreasonable searches. The agency then proposed putting the bundled messages in a special repository to which analysts, searching through intercepts to write intelligence reports, would generally not have access. The court permitted that type of collection to continue with that restriction. But last year, officials said, the N.S.A. discovered that analysts were querying the bundled messages in a way that did not comply with those rules. The agency brought the matter to the court's attention, resulting in a delay in reauthorizing the broader warrantless surveillance program until the agency proposed ceasing this collection practice. And now it looks like, at least for the time being, they're stopping these searches. This is potentially a significant change because of what's called "backdoor" searches. Once the NSA collects information from this warrantless surveillance, it can be used by other federal agencies to search for information about specific Americans in order to target domestic criminal behavior. And they're allowed to do so even though this private information was collected without warrants. So naturally reducing the amount of communications the NSA is collecting will reduce the potential for backdoor, warrantless searches. It won't eliminate the possibility of these backdoor searches, though, and this decision from the NSA might just be temporary until they figure out a way to resolve the problem of incidental collection of unrelated emails. Section 702 of the Foreign Intelligence Surveillance Act, which sets up some of the rules and authorization for this data collection, will sunset this year unless Congress renews it. Privacy and civil rights advocates would like to see reforms to 702 to better protect Americans from unwarranted snooping. This change helps a touch, but there's still going to be a push to try to stop those backdoor searches. More about Section 702 reforms and federal surveillance issues were discussed in a recent South by Southwest panel moderated by yours truly. Listen in on that lively talk here. LATE-BREAKING: Here's the NSA's official formal announcement confirming Savage[...]

Australian Police Admit Illegally Snooping on Journalist

Fri, 28 Apr 2017 13:15:00 -0400

Today we have a reminder from Australia that when government collects massive amounts of private information abuse ultimately follows. The Australian Federal Police (AFP) admitted today that an officer illegally accessed a journalist's call records (metadata) in order to track down a source who was leaking confidential police information. Remarkably, the AFP commissioner then subsequently described the breach in a press conference as a result of "human error." Clearly it was not some sort of mistake that a police officer just happened to get his or her hands on this information. What he really meant was that the proper rules were not followed. Apparently the investigator "failed in their obligation to know the law," the commissioner stated, according to The Guardian. But he also laid some of the blame on "the system," the extremely familiar argument that this is all a "training issue." The timing is particularly interesting. In 2015 Australia passed a law mandating communication companies collect and store the metadata from their customers for two years so that authorities can access it. It was sold to Australians as a mechanism to fight terrorism and crime, just as similar mass surveillance authorities have been sold to citizens in other countries. Media companies and journalists were worried that police would access their data in precisely this way. So the law included a provision that required police to get a warrant to access the metadata of journalists. Mind you, the journalist would not be informed that the police had requested or received access to said metadata, but at least there would be an additional layer of oversight. But even that didn't happen here. The AFP official did not get a warrant. Furthermore, despite the breach of the law, they have not identified or told the journalist who was affected due to the ongoing investigation. The metadata has been destroyed, but the commissioner acknowledged that the officer who violated the law cannot unsee the information. He also said the officer would likely face no discipline because there was no "ill will or bad intent." While the law was passed two years ago, the full data retention orders were just formally implemented just weeks ago in order to give internet and telecom companies time to comply. Media and privacy advocates in the country are appalled. From The Guardian: The Human Rights Law Centre legal advocacy director, Emily Howie, told Guardian Australia the breach showed that the metadata powers were putting "press freedom at risk". "The fact that police can so easily access a honey pot of personal information at any time surely has a chilling effect on free speech," Howie said. "Let's not forget that it is not only journalists whose metadata might be accessed. "Australia's metadata regime is the most oppressive in the western world. It effectively allows law enforcement bodies to watch everybody, all of the time, without them knowing." It's also a reminder that metadata reveals an awful lot about who we are and what we're doing. Government officials who support this type of metadata collection are constantly reminding citizens that they're not eavesdropping on actual conversations or reading the content of emails. But in this case, just the government's access to a list of people who spoke to a journalist over a specific time frame has the potential to implicate them. Metadata is useful to the government entirely because it does actually reveal private behavior. Libertarian (technically Liberal Democratic) Australian Senator David Leyonhjelm had been warning about expanding the government's access to citizen metadata back in 2014 when he joined the Senate. In response to this latest breach he told the Australian Associated Press the laws were fundamentally wrong, and "Governments are supposed to serve the people, not treat them as presump[...]

Hot Girls Wanted: Exploiting Sex Workers in the Name of Exposing Porn Exploitation?

Wed, 26 Apr 2017 13:45:00 -0400

Actress and porn-skeptic Rashida Jones has followed up her controversial 2015 documentary Hot Girls Wanted with a six-part docu-series on the same theme. The Netflix-original show—Hot Girls Wanted: Turned On—was released last week, earning high-profile coverage from entertainment and women's media and mostly glowing reviews. Yet in their rush to expose exploitation in adult entertainment, were Hot Girls Wanted producers indifferent to their own impact? In the past few days alone, a host of porn performers and producers have come forward with allegations of unethical practices, from using sex workers' images in the series without their consent to lying to them about the nature of the series and Jones' involvement in it. Several adult-film workers involved with the series claim they were mislead about who was behind the project. The original movie's moralizing, breathless, and often biased take on the porn industry made it anathema among adult entertainers, and these workers say they would not have participated in the series had they known it was from Rashida Jones or other producers of the original. "A few people in the adult industry have expressed disappointment in my facilitating their involvement in the Netflix docu-series project," author and porn performer Tyler Knight wrote in an Instagram post earlier this week. They were mainly upset that he did not "disclose the involvement of Rashida Jones." But Knight claims he didn't know that Jones was at all involved—in fact, he had specifically been told otherwise. I asked members [of] the production several times. The producers lied. Flat out. And "it was under this false pretense that they sought access to people and productions, from the top-level directors to new talent, who would otherwise have declined had they been informed," Knight wrote. Porn producer and performer Jay Taylor concurred with Knight. "They lied about the nature of the project to get us to sign releases," Taylor told me Tuesday on Twitter. "We ASKED if it was HGW, and they swore up and down it wasn't." "They said it wasn't even going to be hot girls wanted," chimed in porn star Gia Paige. "They just know how turned off we all were by that so it was a ploy." "To our studio they said, 'it doesn't have a name yet'" said the folks at lesbian porn company Filly Films yesterday. "Wondering if they knew the whole time?" I reached out to Herzog & Company, the group behind Hot Girls Wanted Turned On, for a comment but have not heard back. My outreach to series director/producers Jill Bauer and Ronna Gradus was also unsuccessful, as were attempts to communicate with the @HotGirlsWanted Twitter account or executive producer Peter Logreco. On Tuesday, I was able to reach the person listed on Hot Girls Wanted website as the official press contact. But he said that while he had worked on the original documentary he was not affiliated with the current series, and repeatedly demanded to know what why I was "trying to get all investigative." The image claims first surfaced on Twitter last weekend, when someone shared a screenshot from the series with users @effy_elizabeth ("Effs") and @_AutumnKayy. It showed both womens' faces visible in episode six, though neither had been part of the production. The footage was from a short clip they had posted with the video-streaming app Periscope. "Uh y'all better get royalties if that is real," one Twitter user responded. "It is real," Effs replied, "we weren't even told it was happening." When Effs and Autumn reached out to @HotGirlsWanted via Twitter, the account responded: "Hi, yes, happy to discuss further. We can put you in touch with our production company so they can explain fair use." That the content falls under copyright law's "fair use" doctrine is probably correct—it was posted publicly to Periscope, and the porti[...]

Border Agents Misuse Customs Regs to Try to Unmask ‘Rogue’ Twitter Account (Update: Attempt Withdrawn!)

Fri, 07 Apr 2017 12:20:00 -0400

Agents from U.S. Customs and Border Protection (CBP) are attempting to force Twitter to reveal the real name of an account user. Twitter is taking them to court to try to stop them, and the American Civil Liberties Union (ACLU) has jumped on board to represent the user him or herself to protect their anonymity. Is this somebody accused of human trafficking? Maybe some violent drug smuggler? Some criminal CBP is responsible is trying to take down? No, it doesn't seem so. In fact, CBP doesn't seem to have provided any evidence at all of criminal wrongdoing when it faxed over to Twitter an order to turn over private info from an account. From all appearances they're trying to unmask a trouble-maker (or several of them) claiming to be rebellious immigration officials who oppose President Donald Trump's massive deportation and border control efforts. The account CBP is trying to get the goods on operates under the handle @ALT_uscis and the name "ALT Immigration." It is one of several Twitter accounts that popped up after Trump's inauguration claiming to represent officials at various federal agencies intending to resist Trump's agendas from within. To be clear, though: This doesn't mean these Twitter accounts actually are run by federal employees with inside information. Anybody can claim to be anything on the Internet. Many of these "rogue" accounts are likely to be totally fake. But in the event this Twitter user actually is real, at least two CBP agents are trying to find out who he is. According to a lawsuit filed yesterday in Northern California on behalf of Twitter, the agents didn't even bother to claim that the Twitter account was connected to criminal activity. Instead, they used what is obviously some boilerplate customs text used to examine import records. That's actually the federal regulation they invoke as well—according to the lawsuit, the CBP agent invoked a federal law designed to permit the feds to crack open a business's books to investigate data connected to importing goods as an authority to demand Twitter reveal an account user's name. So Twitter is both resisting to protect the anonymity of its users from unmasking that is tied to no criminal complaint whatsoever and also pointing out that this is not the federal code used when the government does have what it believes to be a legitimate reason. There is, given the circumstances, a desire to want to raise an eyebrow at the Trump administration right now because of its outrage that the identities of members of Trump's transition team may have been unmasked in intelligence reports connected to surveillance of foreign officials. Media coverage of this weird little fight is heavy on emphasizing that Twitter is suing the "Trump administration" in order to suppress the order to reveal the user's identity. But it would not and should not come as a surprise—given the general incompetence in how the demand was administered—if we were to discover that these CBP agents were acting on their own and that this whole effort doesn't actually go that far up the chain of authority. In the end, this feels more reminiscent of petty local government and police officials attempting to reveal the names of people who operate web sites or Twitter accounts that anonymously mock them. Remember how the mayor of Peoria, Illinois, sent out the police to arrest the guy who operated a parody Twitter account that made fun of him back in 2014? He refused to acknowledge he did anything wrong. He was just reelected mayor earlier in the week, incidentally. It wouldn't come as a surprise if a judge struck down the CBP agents demand for information here given the misapplied federal regulations. It also wouldn't come as a surprise if CBP quietly withdraws or drops the order. It is nevertheless a very important reminde[...]

You Don’t Have to Be a Foreigner to Have Privacy Violated by Trump’s ‘Extreme Vetting’

Tue, 04 Apr 2017 15:45:00 -0400

Lest we need a reminder that the Donald Trump administration's support for tech privacy seems limited to the members of the Trump administration, take note of how a proposed "extreme vetting" plan from the Department of Homeland Security (DHS) would blow back on U.S. citizens. A proposal has been referenced before, but a Wall Street Journal story today has DHS officials explaining more specifically that they want to try to force travelers to the United States to disclose the contacts and communications on their phones and provide access to their social media accounts and financial records in order to visit the United States. This is not a plan just for anybody trying to move here from a war-torn country or a refugee seeking sanctuary for long periods. The administration is considering demanding (or at least reserving the authority to demand) this information from any foreign travelers attempting to come to the United States, even for short visits and even from friendly countries. From the story: The goal is to "figure out who you are communicating with," the senior DHS official said. "What you can get on the average person's phone can be invaluable." A second change would ask applicants for their social-media handles and passwords so that officials could see information posted privately in addition to public posts. DHS has experimented with asking for people's handles so they can read public posts, but not those restricted to friends. This naturally would then also include potentially private communications with and private information about American citizens. A traveler from another country who happens to be a friend of yours could be required to pass along private information about communications with you to the government in order to gain entry. So at the exact same time that the Trump administration is complaining about the incidental collection of private communications data of his transition team earlier in the year, they're perfectly fine with implementing policies that would lead to dramatic increases in the amount of incidental collection of your personal data. Meanwhile, there's been a noted increase in attempts by federal officials to gain access to phones and tech devices of even American citizens traveling across the borders, not just foreign visitors. This trend preceded the Trump administration but shows no sign of stopping. Sen. Ron Wyden (D-Ore.) has previously said he wanted to introduce legislation that would stop the feds from searching the phones of Americans without warrants and to prohibit the government from demanding that Americans provide access to phones in order to regain entry. Wyden is now introducing that bill, assisted by Sen. Rand Paul (R-Kentucky) in the Senate, and Reps. Jared Polis (D-Colorado) and Blake Farenthold (R-Texas) in the House. From Buzzfeed: Wyden, Paul, Polis, and Farenthold say that some law enforcement agencies have asserted "broad authority to search or seize digital devices at the border without any level of suspicion" using an exception to the Fourth Amendment that covers border searches. They argue that searching devices — even after obtaining permission to do so — is a "massive invasion of privacy without physical analogs and should be strictly controlled." The bill would require law enforcement to establish probable cause before searching or seizing a phone belonging to an American. "Manual searches," in which a border agent flips through a person's stored pictures would be covered under the proposed law as well. But the bill does allow for broad emergency exceptions. "The government should not have the right to access your personal electronic devices without probable cause," Rep. Polis told BuzzFeed news in a statement. "Whether you are at home, walking down the[...]

Sen. Rand Paul Wants to Use Fight over Trump Snooping to Pass Surveillance Reforms

Tue, 04 Apr 2017 12:45:00 -0400

Wouldn't it be wonderful if Reason, not beholden to either the Donald Trump administration or the previous Barack Obama administration, could tell you exactly what to take away from Eli Lake's Bloomberg report that former National Security Adviser Susan Rice requested the names of American citizens who showed up in foreign intelligence reports connected to the Trump transition team? The reality is, beyond the blustering politically motivated outrage from one side and the politically motivated cool dismissal from the other (you can guess which side is which), it's tough to interpret even basic facts here, and that's part of the problem. Lake has been careful with his reporting on the various controversies and agendas coming into play in this heavily politicized fight. Yet even he got tripped up when Rep. Devin Nunes misled him and said the White House was not the source of the classified info that the private communications between Trump's team and foreign officials had been incidentally collected. Subsequent reporting from The New York Times determined that the sources were indeed in the White House. What we can say is that, assuming that Rice did indeed request the names be unmasked, there are a number of potentially legitimate reasons for her to have done so (particularly if there's an investigation into potential criminal behavior by the foreign targets of surveillance) and it was likely legal. It also doesn't mean that she must have been responsible for leaking anything that she saw. This afternoon she denied leaking any information in an interview with MSNBC. But if there's distrust of Rice's motives here from Republicans, conservatives, libertarians or really anybody concerned about the nature of the surveillance state, Rice has certainly earned it. Rice most infamously, following the deadly attack on America's consulate in Benghazi, Libya, took to Sunday morning talk shows to lay the blame on an anti-Muslim YouTube video as an inciting factor to downplay the possibility that the U.S. had been caught unprepared for an attack. Her deliberately misleading comments should be seen as self-serving party hackery. To assume Rice's objectivity here is to ignore the full context of her record. Let's be clear though: It's entirely likely for Rice's unmasking request to be legal and commonplace and also partly politically motivated. A lot of this battle over intelligence community surveillance revolves around false choices driven before the public by people with agendas. It is possible to believe that it is absolutely legitimate for the intelligence community to be investigating whether there are ties between Trump's team and the Russian government in the breach of private Democratic Party communications last year and yet still be deeply concerned about politically driven leaks intended to influence domestic politics. Likewise it is possible to believe that what Rice did was legal—even commonplace—and question why that is or whether such practices should continue. If we are concerned at the ability of America's intelligence apparatus being misused for political purposes (and we should, because, you know, history), now is a good time to act. It just so happens that some of the foreign surveillance authorities that may have been misused here are scheduled to sunset this year unless Congress acts. And privacy advocates are hungering for reform to better protect Americans from having their information inappropriately collected and their identities "unmasked" for reasons that have nothing to do with national security or fighting terrorism. Among those advocates is Sen. Rand Paul (R-Kentucky) who has fought to try to keep the feds from engaging in unwarranted surveillance of Americans. Paul got media atten[...]

Guns, Privacy, and Freedom Benefit From New Tech Tools

Tue, 04 Apr 2017 00:01:00 -0400

As it turns out, if you want to be a successful subversive, you probably shouldn't take on the moniker "Dr. Death" as you publicly tout your establishment-challenging ways. That's what Daniel Crowninshield did with regard to the unfinished firearm receivers he sold, to be completed on computer numerically controlled (CNC) mills in his North Sacramento, California, machine shop. Theoretically, customers operated the mills themselves, making the finished firearms legal. But an undercover agent insisted that shop employees did the honors, and Crowninshield got three and a half years in prison. What's remarkable about this story isn't just Crowninshield's excessive enthusiasm in marketing his services, however. More important is what this story illustrates about the unenforceable nature of laws that people find oppressive—and the growing vulnerability of such restrictions. Strictly speaking, Crowninshield's act of defiance was old-school; while he apparently used computer-controlled machines, there's no reason trained machinists couldn't have cranked out those receivers using traditional tools and their own skills—except, that is, for the (not so, as it turned out) plausible deniability that they were being operated by untrained customers. There was enough demand for such services that there was sometimes a line outside Crowninshield's shop, according to an undercover agent. AR-15 receivers invisible to government scrutiny, "in the hundreds at a minimum," were supposedly cranked out at that one North Sacramento operation. But enthusiasts actually can and do personally operate Cody Wilson's push-button Ghost Gunner CNC mills—which Wired described as "absurdly easy to use." Again, there's enough demand for such services that hundreds of the high-tech machines have been sold, putting the manufacture of finished firearm receivers within reach of people who don't have machinists' skills. And there's no way of knowing how many finished receivers have been quietly knocked out on the devices after they're delivered. Which was the whole reason Wilson developed the Ghost Gunner, after demonstrating that a working, if simple, pistol could be created on a 3D printer. Of course, this isn't just about things that go bang. Several years ago, Wilson teamed up with fellow crypto-anarchist Amir Taaki to develop DarkWallet, a Bitcoin wallet intended to add an extra layer of anonymity to the virtual currency so that financial transactions could more effectively evade official scrutiny. Development of DarkWallet briefly stalled as Taaki disappeared for a while on a lower-tech mission to shoot at ISIS troops on behalf of the Rojava enclave in northern Syria. But with Taaki back (though under investigation by British authorities over his Syrian adventure), the software is now available in beta form. "I believe in the hacker ethic," Taaki said about not just DarkWallet, but his overall philosophy. "Empower the small guy, privacy and anonymity, mistrust authority, promote decentralized alternatives, freedom of information," he says. "These are good principles. The individual against power." For good reason, Wilson and Taaki play central roles in Adam Bhala Lough's The New Radical, a documentary about activists who push the boundaries of technology that empowers individuals against the state. The film received a mixed reception at the Sundance film festival, the Los Angeles Times noted in January—not because of its quality, but because comfortably liberal attendees who like to think of themselves as the good guys realized they were among the targets of anti-authoritarians who look "to create fundamental political change by pushing for one or more of the following: an eradication of intellectual[...]

TSA Punishes Boy Who Left a Laptop in His Backpack With a Prolonged Pat-Down

Wed, 29 Mar 2017 11:16:00 -0400

(image) Suppose you forget to remove your laptop from your carry-on bag while passing through security at a U.S. airport. How should the TSA "resolve" that issue?

You might think the resolution would involve sending the laptop through the scanner again, this time in its very own bin. It might also include swabbing the laptop to see if it tests positive for explosive residue, based on the dubious supposition that a terrorist with a bomb in his laptop would invite such scrutiny by flouting the well-known rule regarding portable computers. But even that extra measure seems downright sensible compared to what a TSA agent at the Dallas/Fort Worth International Airport did on Sunday after a 13-year-old boy mistakenly left his laptop in his backback: He repeatedly patted the boy down, paying extra attention to his thighs, buttocks, and waistband, even though the kid had passed through the body scanner without setting off any alarms.

In a Facebook post that has elicited considerable outrage, the boy's mother, Jennifer Williamson of Grapevine, Texas, says he has a sensory processing disorder that makes him especially sensitive to being touched. She therefore asked if he could be screened in some other way, which of course was simply not possible. Williamson's video of the pat-down suggests the boy reacted with more equanimity than his mother, who described the experience as "horrifying." It is especially puzzling that the agent seems to have completed the pat-down a couple of times, only to feel the same areas again. The TSA says the examination, which took about two minutes, was witnessed by two police officers "to mitigate the concerns of the mother."

Williamson evidently did not find the cops' presence reassuring. "We had two DFW police officers that were called and flanking him on each side," she says. "Somehow these power tripping TSA agents who are traumatizing children and doing whatever they feel like without any cause need to be reined in." Several hours later, she says, her son was still saying, "I don't know what I did. What did I do?"

In addition to the pat-down, the TSA screened "three carry-on items that required further inspection." Williamson says she and her son missed their flight because all the extra attention delayed them for about an hour. The TSA says it was more like 35 minutes. Or maybe 45. According to CBS News, "The TSA said the procedures performed by the officer in the video met new pat-down standards that went into effect earlier this month." The TSA told CNET "all approved procedures were followed to resolve an alarm of the passenger's laptop."

The problem, in other words, is not "power tripping TSA agents" who get their jollies by feeling up boys. The problem is the protocol, which makes no sense and, judging from most of the comments in response to Williamson's post, is not even effective as security theater.