U.S. District Judge to Google: Try Again

The Verizon/Foreign Intelligence Surveillance Court (FISA) scandal is actually more egregious in scope than Judge Illston’s warrantless national security letters cases.

U.S. District Judge Susan Illston in San Francisco rejected Google’s request to modify or throw out 19 so-called National Security Letters, a warrantless electronic data-gathering technique used by the FBI that does not need a judge’s approval.

Her ruling came after a pair of top FBI officials, including an assistant director, submitted classified affidavits.

This government victory comes despite Illston earlier ruling the letters unconstitutional in a separate case in March.

It wasn’t a complete win for the Justice Department, however: Illston all but invited Google to try again, stressing that the company has only raised broad arguments, not ones “specific to the 19 NSLs at issue.” She also reserved judgment on two of the 19 NSLs, saying she wanted the government to “provide further information” prior to making a decision.

–Curt

Read Curtis Narimatsu's blog here.

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  • Curtis Narimatsu

    As if news of the National Security Agency collecting phone records on millions of Americans weren’t enough, a follow-up report revealed that the NSA and FBI are directly tapped into central servers at nine U.S. internet firms, including Google and Facebook, in order to provide constant monitoring of audio, video, photos, emails and documents as well as connection logs. http://www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us-internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_story.html>

    The government is gathering data from tech companies including Apple, Microsoft and Yahoo. The Obama Administration defends the National Security Agency’s need to collect such records, but critics call it a huge over-reach.

    NSA Spygate facts truly are “stranger than fiction.” http://www.wired.com/threatlevel/2013/06/general-keith-alexander-cyberwar/>

    Today’s “Hot War” in cyberspace as exposed by whistleblower Edward Snowden follows the Cold War in the previous century. Using so-called cyber-kinetic attacks, NSA czar 4-Star Gen. Keith Alexander can destroy the enemy’s equipment and infrastructure and kill enemy forces. Alexander says that such cyberweapons are as crucial to 21st-century warfare as nuclear arms were in the 20th. The first known piece of malware designed to destroy physical equipment, Stuxnet, was aimed at Iran’s nuclear facility in Natanz. By surreptitiously taking control of an industrial control link known as a Scada (Supervisory Control and Data Acquisition) system, the sophisticated worm was able to damage about a thousand centrifuges used to enrich nuclear material.

    But the malware targeting Iran replicated and spread to computers in other countries. The trajectory could be a cyber Pearl Harbor, an attack that would cause physical destruction and the loss of life.

    If Stuxnet was the proof of concept, it also proved
    that one successful cyberattack begets another. For Gen. Alexander, this offered the perfect justification for expanding his empire.

    Gen. Alexander’s Strangelovian powers blur the distinction between cyberwarfare and conventional warfare. A recent Pentagon report made that point in dramatic terms. It recommended possible deterrents to a cyberattack on the US. Among the options: launching nuclear weapons.

    In 2003 Alexander, a favorite of defense secretary Donald Rumsfeld, was named the Army’s deputy chief of staff for intelligence, the service’s most senior intelligence position. Among the units under his command were the military intelligence teams involved in the human rights abuses at Baghdad’s Abu Ghraib prison. Two years later, Rumsfeld appointed Alexander—now a three-star general—director of the NSA, where he oversaw the illegal, warrantless wiretapping program while deceiving members of the House Intelligence Committee. In a publicly released letter to Alexander shortly after The New York Times exposed the program, US representative Rush Holt, a member of the committee, angrily took him to task for not being forthcoming about the wiretapping: “Your responses make a mockery of congressional oversight.”

    A little more than a year after President Obama took office and only weeks before Stuxnet became public, a new organization to exercise American rule over the increasingly militarized Internet became operational: the US Cyber Command. Keith Alexander, newly promoted to four-star general, was put in charge of it. Gen. Alexander’s forces are formidable—thousands of NSA spies, plus 14,000 cyber troops.

    Just 2 months ago, as part of its 2014 budget request, the Pentagon asked Congress for $4.7 billion for increased “cyberspace operations,” nearly $1 billion more than the 2013 allocation. At the same time, budgets for the CIA and other intelligence agencies were cut by almost the same amount, $4.4 billion. A portion of the money going to Alexander will be used to create 13 cyberattack teams.

    What’s good for Alexander is good for the fortunes of the cyber-industrial complex, a burgeoning sector made up of many of the same defense contractors who grew rich supplying the wars in Iraq and Afghanistan. With those conflicts now mostly in the rearview mirror, they are looking to Alexander as a kind of savior. After all, the US spends about $30 billion annually on cybersecurity goods and services.

    One of the most secretive of these contractors is Endgame Systems, which hunts for hidden security weaknesses that are ripe for exploitation. And since no one else has ever discovered these unseen cracks, the manufacturers have never developed patches for them.

    Thus, in the parlance of the trade, these vulnerabilities are known as “zero-day exploits,” because it has been zero days since they have been uncovered and fixed. Ironically, having helped create the market in zero-day exploits and then having launched the world into the era of cyberwar, Gen. Alexander now says the possibility of zero-day exploits falling into the wrong hands is his “greatest worry.”

    Without documents to prove whistleblower claims, NSA simply dismissed pre-Snowden claims as falsehoods and much of the mainstream press simply accepted that. “We don’t hold data on U.S. citizens,” Alexander said in a talk at the American Enterprise Institute last summer, by which time he had been serving as the head of the NSA for six years. Director of National Intelligence James Clapper made similar claims. At a hearing of the Senate Intelligence Committee last March, he was asked, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” To which Clapper responded, “No, sir.” The documents released by Snowden, pointing to the nationwide collection of telephone data records and not denied by government officials, prove the responses untrue.

    The Snowden case demonstrates the potential risks involved when the nation turns its spying and eavesdropping over to companies with lax security and inadequate personnel policies. The risks increase exponentially when those same people must make critical decisions involving choices that may lead to war, cyber or otherwise. http://www.wired.com/threatlevel/2013/06/nsa-leaker-outs-himself/

    And if you think NSA’s intrusion into everyone’s privacy is a government perpetrator issue, think again.

    1) http://en.wikipedia.org/wiki/Xbox_One#Privacy_concernsPrivacyconcernsThe console’s prominent use of the Kinect sensor could be used for surveillance. As the device must be connected into the user’s Xbox One at all times to be functional, privacy advocates contended that the increased amount of data which could be collected with the new Kinect (such as a person’s eye movements, heart rate, and mood) could be used for targeted advertising. Reports also surfaced regarding recent Microsoft patents involving Kinect, such as a digital rights management system based on detecting the number of viewers in a room, and tracking viewing habits by awarding achievements for watching television programs and advertising. While Microsoft stated that it currently has a privacy policy which “prohibit[s] the collection, storage, or use of Kinect data for the purpose of advertising”, critics did not rule out the possibility that these policies may be changed prior to the release of the console.
    Xbox One could also record conversations, since its microphone remains active at all times. In response to the criticism, a Microsoft spokesperson stated that users will be able to “pause” Kinect sensing when desired, be provided with key privacy information and settings during the console’s initial setup, and that user-generated content such as photos and videos “will not leave your Xbox One without your explicit permission.”

    2) http://en.wikipedia.org/wiki/Google_glass#Privacy_concernsPrivacyconcernsThe eyewear’s functionality and minimalist appearance have been compared to Steve Mann’s EyeTap, also known as “Glass” or “Digital Eye Glass”, although Google Glass is a “Generation-1 Glass” compared to EyeTap, which is a “Generation-4 Glass.” Both devices introduce a two-sided surveillance and sousveillance, thereby intruding on privacy, including using the device in public and recording people without their permission. Google Glass would violate privacy rights due to security problems and others. Privacy advocates are concerned that people wearing such eyewear may be able to identify strangers in public using facial recognition, or surreptitiously record and broadcast private conversations. Some companies in the U.S. have posted anti-Google Glass signs in their establishments.
    Other concerns have been raised regarding legality of the Glass in a number of countries, particularly in Russia, Ukraine, and other post-USSR countries. In February 2013, a Google+ user noticed legal issues with Glass and posted in the Glass Explorers community about the issues, stating that the device may be illegal to use according to the current legislation in Russia and Ukraine, which prohibits use of spy gadgets that can record video, audio or take photographs in an inconspicuous manner.

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  • KHPRdotNet

    Thank you Curtis and HND. This article not only updates us on the situation, but is kind of hopeful in that the judge, though bound by the system, seems to be wanting the right decision ultimately to prevail. There is so much to be aware of and actually terrified of. I will have a piece on the next Hawaii Political Reporter that shows the integration of biometric data with border controls and JOBs. This is beyond Orwell. Curtis I appreciate your articles and hope we see more of them. We all need to work to make HND more read and used.

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  • Curtis Narimatsu

    Thank you very much, HND, for the opportunity to share this article with readers.

    CNET’s link explains Judge Illston’s decision to “reverse” herself in the Google NSL case. She said that the FBI had submitted “classified” evidence “intended to demonstrate that the 19 NSLs were issued in full compliance with the procedural and substantive requirements imposed by the Second Circuit.” In a 2008 ruling (Doe v. Mukasey Case No. 07-4943-cv), the Second Circuit Court of Appeals handed down a mixed decision.

    A three-judge panel of the Second Circuit took an odd approach: the judges agreed that the “challenged statutes do not comply with the First Amendment” but went on to rewrite the statute on their own to make it more constitutional. They drafted new requirements, including that FBI officials may levy a gag order only when they claim an “enumerated harm” to an investigation related to international terrorism or intelligence will result.

    The Verizon matter, despite secret national security “court” authorization oversight, actually is immensely more egregious in its indiscriminate breadth/swath of intrusion into everyone’s privacy –

    http://livewire.talkingpointsmemo.com/entry/author-of-patriot-act-nsa-phone-tracking-went

    Author Rep. Jim Sensenbrenner (R-WI ) Of Patriot Act: NSA Phone Tracking (Verizon data) ‘Excessive And Un-American’

    Rep. Jim Sensenbrenner (R-WI), who wrote and introduced the PATRIOT Act to Congress in 2001, said in a statement Thursday that the National Security Agency overstepped its bounds by issuing a secret order to collect phone log records from millions of Americans.

    “As the author of the Patriot Act, I am extremely troubled by the FBI’s interpretation of this legislation,” he said in a statement. “While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses.

    He added: “The Bureau’s broad application for phone records was made under the so-called business records provision of the Act. I do not believe the broadly drafted FISA order is consistent with the requirements of the Patriot Act. Seizing phone records of millions of innocent people is excessive and un-American.”

    http://online.wsj.com/article/AP6913a999a8ca48279f208f15e240d9ba.html

    Former employees of the National Security Agency say the publishing of a court order asking Verizon to hand over all its phone calling records for a three-month period opens a new window on an operation that has been in place for years and involves all major U.S. phone companies.

    “NSA has been doing all this stuff all along, and it’s been all these companies, not just one” William Binney told news program Democracy Now on Thursday. “They’re just continuing the collection of this data on all U.S. citizens.”

    Binney, who worked at the NSA for almost 40 years, left the agency after the attacks of 9/11 because he objected to the expansion of its surveillance of U.S. citizens.

    Binney estimates that the NSA collects records on 3 billion calls per day.

    “These are routine orders,” said Thomas Drake, another NSA whistleblower. “What’s new is we’re seeing an actual order, and people are surprised by it.”

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