NSA Spying Review Panel Appointed by Obama Set
to Whitewash Surveillance Abuses

By: Kevin Gosztola Sunday September 22, 2013 12:34 pm

A group of experts appointed to review the surveillance engaged in by the National Security Agency and other US intelligence agencies is working under the control Office of the Director of National Intelligence James Clapper and is not focused on investigating surveillance abuses that former NSA contractor and whistleblower Edward Snowden has exposed. Revelations around top secret surveillance programs and the critical debate spurred was what drove President Barack Obama to appoint the review group in the first place. On August 9, he said in a press conference:

[W]e’re forming a high-level group of outside experts to review our entire intelligence and communications technologies. We need new thinking for a new era. We now have to unravel terrorist plots by finding a needle in the haystack of global telecommunications. And meanwhile, technology has given governments — including our own — unprecedented capability to monitor communications. He also said, “They’ll consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used, ask how surveillance impacts our foreign policy — particularly in an age when more and more information is becoming public. And they will provide an interim report in 60 days and a final report by the end of this year, so that we can move forward with a better understanding of how these programs impact our security, our privacy, and our foreign policy.” Not only did the public get a “high-level group” of people who should not be considered “outside experts,” but the public got a group that has been conducting a review with a focus on “moving forward, not looking back,” the mantra of President Barack Obama for excusing abuses of executive power and one that expressly benefits those responsible for unchecked policies or programs. The Associated Press reports on how the Office of the Director of National Intelligence, run by James Clapper, has been overseeing the group. ODNI runs the NSA and “all other spy efforts” and is the last agency one would give control to a review of spying that was supposed to be conducted by an “outside group.”

The panel’s advisers work in offices on loan from the DNI. Interview requests and press statements from the review panel are carefully coordinated through the DNI’s press office. James Clapper, the intelligence director, exempted the panel from U.S. rules that require federal committees to conduct their business and their meetings in ways the public can observe. Its final report, when it’s issued, will be submitted for White House approval before the public can read it. Yet, for weeks now, it has been obvious this review would be a whitewash designed as a reset—an opportunity to make it seem like the intelligence community had addressed concerns about policies or programs while at the same time moving onward with renewed confidence and less scrutiny from the press and public. When Clapper formed the group, that was the first sign. Clapper should not have been the one forming the group. Then, there was the statement put out announcing its formation:

The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust. It would be examining collection and surveillance capabilities. But no person criticizes the agency for its inability to collect and conduct surveillance. If anything, a review responsive to public criticism would assess whether the “national security” could be protected by utilizing surveillance capabilities to a far lesser extent. Also, in that bureaucratic description of that group, there is no hint that Clapper is even remotely interested in helping the group investigate any alleged abuses by the intelligence community. Then, there were the appointments. Michael Morell, Richard Clarke, Cass Sunstein, Peter Swire and Geoffrey Stone were appointed to be a part of this review group. Each of these men had served in the Executive Branch at one time or another except for Stone. Stone and Swire were supposed to be “privacy advocates” in the group. While Stone is apparently a member of the National Advisory Council of the American Civil Liberties Union (ACLU), Stone wrote in July that Bush had violated the Fourth Amendment and Obama had not.

…Unlike the Obama program, which is limited to obtaining information about phone calls made and received from telephone companies, the Bush program authorized the government to wiretap private phone conversations. From a constitutional perspective, the difference is critical, and it is unfortunate that President Obama has not done a better job of explaining the distinction, and why his administration’s program does not violate the constitutional “right of privacy.” Stone also aggressively debated against author Chris Hedges on “Democracy Now!” and has not hidden his disgust with Snowden’s decision to expose the true nature of unchecked NSA surveillance. There is another review happening parallel to the one headed by Clapper. It is being overseen by the Privacy and Civil Liberties Oversight Board. But that review is not likely to carry the same weight as the one staffed with mostly former Executive Branch officials, who are conducting business in the offices of the agency which has been responsible for allowing the exposed surveillance abuses to take place. In fact, the review group under Clapper is far more likely to produce an outcome favorable to an intelligence community of families and loved ones that feel they are wrongfully under siege by a press intent on viciously attacking their patriotism than anything remotely useful to bringing oversight to the country’s massive surveillance apparatus.

Revelations Around NSA, GCHQ Operations to
Crack Encryption & the Need for More Whistleblowers

By: Kevin Gosztola Sunday September 22, 2013 12:34 pm

Major revelations on the National Security Agency and British intelligence agency, GCHQ’s capabilities to crack encryption were revealed yesterday by The Guardian, New York Times and ProPublica. The revelations were from documents provided by former NSA contractor and whistleblower Edward Snowden. The stories were the first to appear from a partnership that formed in response to actions by the British government against The Guardian. The government detained Guardian journalist Glenn Greenwald’s partner, David Miranda, at Heathrow Airport for nearly nine hours under a terrorism law in August. The authorities seized electronics equipment Miranda was carrying, which contained documents for future news stories from journalist Laura Poitras. [A British court recently granted the government the authority to investigate whether Miranda committed "crimes related to terrorism and breaches of the Official Secrets Act," a further attack on press freedom.] The British government also sent a message to The Guardian to halt reporting on documents from Snowden when it forced the news organization to symbolically destroy hard drives in the basement of the media organization’s office. The drives were destroyed, even though they had no files on them, as a compliant gesture to the British government because the government could have threatened legal action and shut down reporting on files related to GCHQ and the NSA entirely. This is apparently a part of what the British government—and presumably the United States government—did not want to become public and why they felt the need to cast a chill on the news gathering process.

According to The Guardian, “A 10-year NSA program against encryption technologies made a breakthrough in 2010 which made “vast amounts” of data collected through internet cable taps newly ‘exploitable.’” The NSA has worked with technology companies to “covertly influence” the designs of products in order to ensure the agency can maintain access to communications. This means, as the Times reported, the NSA has introduced “weaknesses into commercial encryption products, allowing backdoor access to data that users believe is secure.” The NSA has also “deliberately weakened international encryption standards adopted by developers around the globe.” The Guardian further reported that, “A GCHQ team has been working to develop ways into encrypted traffic on the ‘big four’ service providers, named as Hotmail, Google, Yahoo and Facebook.” “None of the companies involved in such partnerships,” with companies to gain access to “encrypted traffic.” Yet, the goal of the NSA is to insert “design changes” that “make the systems in question exploitable through [signals intelligence] collection…with foreknowledge of the modification,” while at the same time keeping the systems’ security “intact” for “the consumer and other adversaries,” according to a top secret 2013 budget request for “Sigint [signals intelligence] enabling.” But, despite revelations, it does not necessarily mean the NSA can get around all encryption. The Times report indicates the NSA has engaged in hacking to “snare messages before they were encrypted.” Additionally, “In some cases, companies say they were coerced by the government into handing over their master encryption keys or building in a back door.”

The Times also points out that the NSA’s “most intensive efforts” have involved encryption, which is “in universal use in the United States.” This encryption includes Secure Sockets Layer or SSL, virtual private networks (VPN), and protection on fourth-generation or 4G smartphones. “Many Americans, often without realizing it,” as the Times notes, “rely on such protection every time they send an email, buy something online, consult with colleagues via their company’s computer network or use a phone or a tablet on a 4G network.” Previously, the government has complained about having a “going dark” problem—how new technology was making it difficult to intercept communications. The revelations from Snowden show the NSA has actively developed methods for spying that make previous statements by government officials about needing more access to communications for interception questionable, especially since it suggests while seeking more spying powers from Congress the NSA was covertly engaged in the exact spying operations they wanted permission to carry out. A classification guide provided by Snowden shows how crucial secrecy around this is (or was) to the NSA. That the NSA “makes cryptographic modifications to commercial or indigenous cryptographic information security devices or systems in order to make them exploitable,” is considered top secret at a minimum. That the NSA “successfully exploits cryptographic components of commercial or indigenous cryptographic information security devices or systems when the device or system is specified,” is considered top secret at a minimum” And that the NSA “obtains cryptographic details of commercial cryptographic information security systems through industry relationships is considered top secret at a minimum.” Efforts to defeat encryption were named after major civil war battles. NSA named an effort “Project Bullrun,” after one of the first major battles in the US Civil War. GCHQ named an effort “Project Edgehill,” after a battle in the English Civil War. Those involved in “Project Bullrun” were advised not to “ask about or speculate on sources or methods underpinning BULLRUN successes,” according to a top secret slide.

The revelations show the NSA and GCHQ have engaged in a conspiracy against Internet users worldwide. This is not about targeting terrorists or protecting systems in the United States from malicious actors but rather about total domination in cyberspace so there is nothing the NSA or GCHQ is not allowed to know. As noted by the Times, “Intelligence officials asked The Times and ProPublica not to publish this article, saying it might prompt foreign targets to switch to new forms of encryption or communications that would be harder to collect or read. The news organizations removed some specific facts but decided to publish the article because of the value of a public debate about government actions that weaken the most powerful privacy tools.” That “foreign targets” or “terrorists” would use new forms of encryption or communication has been the boogeyman trotted out by named and unnamed US government officials since documents from Snowden began to be published. It has been nothing more than propaganda because, clearly, as evidenced by the Obama administration’s ability to pick up chatter among al Qaeda leaders and Iranian officials and militants, intelligence agencies are still able to detect alleged, perceived or potential threats to the United States. ProPublica published a robust defense of the decision to publish, which is an essential read for anyone who doubts the significance of this important act of journalism:

The story, we believe, is an important one. It shows that the expectations of millions of Internet users regarding the privacy of their electronic communications are mistaken. These expectations guide the practices of private individuals and businesses, most of them innocent of any wrongdoing. The potential for abuse of such extraordinary capabilities for surveillance, including for political purposes, is considerable. The government insists it has put in place checks and balances to limit misuses of this technology. But the question of whether they are effective is far from resolved and is an issue that can only be debated by the people and their elected representatives if the basic facts are revealed. Also, in addressing the notion that this story should not have been published because “enemies” will be able to change their tactics and evade detection by US intelligence agencies: Suppose for a moment that the U.S. government had secretly developed and deployed an ability to read individuals’ minds. Such a capability would present the greatest possible invasion of personal privacy. And just as surely, it would be an enormously valuable weapon in the fight against terrorism. Continuing with this analogy, some might say that because of its value as an intelligence tool, the existence of the mind-reading program should never be revealed. We do not agree. In our view, such a capability in the hands of the government would pose an overwhelming threat to civil liberties. The capability would not necessarily have to be banned in all circumstances. But we believe it would need to be discussed, and safeguards developed for its use. For that to happen, it would have to be known… What is contained in the documents from Snowden is clear evidence of an unchecked surveillance state that threatens the liberty of citizens not just in America but around the world. There is a duty amongst journalists to inform citizens of what these intelligence agencies are doing and what powers they have and think they should have to invade privacy, whenever they deem it necessary. How the NSA and GCHQ have violated and undermined the development of encryption technology and standards—along with the previous evidence of NSA abuse of the PATRIOT Act through bulk data collection of citizens’ phone records—is so clearly deserving of public attention. Anyone in government who has more information along the lines of what Snowden has exposed should feel a compelling obligation to come forward and share what they are seeing. Bruce Schneier, who writes about security and technology and is working on NSA stories for The Guardian, declared yesterday:

…[W]e should expose. If you do not have a security clearance, and if you have not received a National Security Letter, you are not bound by a federal confidentially requirements or a gag order. If you have been contacted by the NSA to subvert a product or protocol, you need to come forward with your story. Your employer obligations don’t cover illegal or unethical activity. If you work with classified data and are truly brave, expose what you know. We need whistleblowers. We need to know how exactly how the NSA and other agencies are subverting routers, switches, the internet backbone, encryption technologies and cloud systems. I already have five stories from people like you, and I’ve just started collecting. I want 50. There’s safety in numbers, and this form of civil disobedience is the moral thing to do. Indeed, while it may be frightening to think that no matter what you do to your communications there may be some way the government can get into your communications and see what you would like to keep private, there is a profound reality in this moment that people are realizing the true extent of power that has coalesced in the hands of the national security state apparatuses of both the United States and the United Kingdom. A moment of awakening has been taking place and will continue to take place. Whistleblowers like Snowden will seek out the journalists, who will not sell them out to government agents. Journalists like Glenn Greenwald will publish because they know instinctively this is information the public has a right to know—and that is evidenced by the pressure which the US and UK governments are willing to apply to interfere with or diminish the impact of publication. Media organizations, both establishment and new media, will embrace muckraking and defend their right to publish. Reflexively, government officials and their most loyal apologists will argue this will help “enemies” or endanger security. They’ll continue to suggest this is what intelligence agencies do—seek total control of communications and transmissions of all data and information. But that is because they are afraid and all they can come up with is the last refuge they have: denial and fear. Fear campaigns, thus far, have been attempted, but they have not worked. The majority of Americans and the world still consider Snowden to be a whistleblower. Efforts to downplay or deny the significance of revelations haven’t worked either; thousands of people throughout the US have protested in the streets to reclaim their privacy. This should empower other individuals with information of abuses and criminal misconduct to come forward because citizens are paying attention and will pay attention to the next person that puts their livelihood and future at risk like Snowden did.

Photo by Chris Dlugosz under Creative Commons license

The Obama Administration’s Frustrating NSA Week

http://techcrunch.com/2014/01/24/the-obama-administrations-frustrating-nsa-week/

While Congress and the nation at large have done little except talk and embark on preliminary legal skirmishes regarding the United States’ mass surveillance practices, the forces in favor of reform and change had a decent week, while the Obama administration did not.The President’s speech one week ago on proposed changes to NSA practices was met with skepticism. A sample headline detailing the response: “Jon Stewart skewers Obama’s vague, rambling NSA speech.” The Post was sedate but firm: “Obama goal for quick revamp of NSA program may be unworkable, some U.S. officials fear.”

If the President had hoped that his reform proposals — including mild curtailment of the phone metadata program, some sort of protection for the privacy of foreign citizens and the like — would placate those opposed to the NSA, he was certainly disappointed. Praise could be found for the President, but in the form of a backhanded compliment. Republican Rep. Peter King was content with the speech, because it didn’t seem to propose meaningful change:

T “I didn’t think any changes were called for, any so-called reforms, but the fact is the ones that the President made today are really minimal. [...] So long as the NSA can move quickly to protect us against plots, that’s all that is necessary: That the data is there, and the NSA is able to move quickly.” Impressive accolades. When the forces arrayed against change think you are doing fine, you aren’t pushing for much change. Also this week the Privacy and Civil Liberties Oversight Board lit into the NSA’s bulk collection program, saying that it lacked firm legal footing. The White House was left to somewhat lamely argue that it “simply disagree[s] with the board’s analysis on the legality of the program.” The group also attacked the key reason for keeping the program: Its efficacy. The group’s report contained the following, as the Washington Post quoted: “We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
This week Russia announced that it would not expel Edward Snowden, and that the choice to leave would be his to make. So, if the administration had hoped that the clock would run out, sending Snowden back into its hands by default, those hopes have been largely dashed. A group of self-described “US researchers in cryptography and information security” released an open letter in opposition mass surveillance today. A sample:

Indiscriminate collection, storage, and processing of unprecedented amounts of personal information chill free speech and invite many types of abuse, ranging from mission creep to identity theft. These are not hypothetical problems; they have occurred many times in the past. And finally, earlier this Friday the Republican National Committee passed a resolution condemning the NSA’s bulk data programs in Constitutional terms. The resolution called for Republicans to investigate the NSA, forming a new committee. It was strongly worded, and somewhat surprising, coming from the party of the former President who set up much of what we are now talking about shutting down. There was more, but that is a representative sample from the week. Nothing may still happen. We can’t say that it won’t, but as time passes it increasingly seems that at least moderate change is feasible. In the immediate aftermath of the early Snowden leaks, even that seemed far out of reach.
White House Disputes Panels Findings
The White House on Thursday disputed the findings of an independent review board that said the National Security Agency's mass data collection program is illegal and should be ended, indicating the administration would not be taking that advice. "We simply disagree with the board's analysis on the legality of the program," White House Press Secretary Jay Carney said. He was responding to a scathing report from The Privacy and Civil Liberties Oversight Board (PCLOB), which said the program ran afoul of the law on several fronts.

"The ... bulk telephone records program lacks a viable legal foundation," the board's report said, adding that it raises "serious threats to privacy and civil liberties" and has "only limited value." The report, further, said the NSA should "purge" the files. The president did not go nearly as far when he called last week for ending government control of phone data collected from hundreds of millions of Americans. Carney claimed the president, in his address last week, did "directly derive" some of his ideas from the board's draft recommendations. But he made clear that Obama does not see eye to eye with them on the legitimacy of mass phone record collection.

"The administration believes that the program is lawful," he said.

Nevertheless, the findings could be used as leverage in federal lawsuits against NSA spying. The report concluded that the NSA collection raises "constitutional concerns" with regard to U.S. citizens' rights of speech, association and privacy. "The connections revealed by the extensive database of telephone records gathered under the program will necessarily include relationships established among individuals and groups for political, religious, and other expressive purposes," it said. "Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights." The panel added that the program "implicates constitutional concerns under the First and Fourth Amendments."

The recommendations are sure to meet resistance in Washington. House Intelligence Committee Chairman Mike Rogers, R-Mich., who has been a staunch defender of the NSA, voiced dismay at the report's findings. "I am disappointed that three members of the Board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed," he said in a statement, noting that federal judges have found the program to be legal dozens of times. The report also rejected claims that the program was necessary to cover up a gap in intelligence arising from a failure to detect Al Qaeda members in the United States prior to the Sept. 11, 2001 terror attacks. U.S. officials had claimed that the phone data collection program would have made clear that terrorist Khalid al-Mihdhar was calling a safehouse in Yemen from a San Diego address
.
"The failure to identify Mihdhar's presence in the United States stemmed primarily from a lack of information sharing among federal agencies, not of a lack of surveillance capabilities," the report said. "This was a failure to connect the dots, not a failure to connect enough dots." The board's recommendations go well beyond the reforms ordered by Obama in a major speech last Friday, in which he said that the phone records database would no longer be held by t he NSA. Obama also tightened restrictions on gathering and accessing phone data, but did not recommend the program's end.

The PCLOB recommendations also are more sweeping than reforms proposed by another panel of experts. That panel, the Review Group on Intelligence and Communications Technologies, advised Obama in December to restrict phone surveillance to limited court-ordered sweeps. Along with its call for ending bulk phone surveillance, the oversight board report outlined 11 other recommendations on surveillance policy, calling for more government transparency and other reforms aimed at bolstering civil liberties and privacy protections. The board called for special attorneys to provide independent views in some proceedings before the secret spy court -- as opposed to Obama's plan for a panel of experts that would participate at times. The board also urged the administration to provide the public with clear explanations of the legal authority behind any surveillance affecting Americans.

Legal opinions and documents "describing the government's legal analysis should be made public so there can be a free and open debate regarding the law's scope," the board said. Both the Bush and Obama administrations have been criticized by civil liberties advocates and by tech industry officials for failing to provide clear public explanations of the decision-making behind their surveillance policies. While the oversight board found consensus in some of its recommendations for transparency, its members were sharply divided when it came to the surveillance programs and their judicial oversight.

Two members, former Bush administration Justice Department lawyers Rachel Brand and Elisebeth Collins Cook, defended the bulk phone sweeps and said they were too valuable to shut down. "I am concerned about the detrimental effect this superfluous second-guessing can have on our national security agencies and their staff," said Brand, who as a Justice lawyer defended USA Patriot Act legislation that provided the NSA with its authority to make the bulk phone collections.

But the oversight board's three other members -- executive director David Medine, former federal judge Patricia Wald and civil liberties advocate James Dempsey -- held firm for broad changes. "When the government collects all of a person's telephone records, storing them for five years in a government database that is subjected to high-speed digital searching and analysis, the privacy implications go far beyond what can be revealed by the metadata of a single telephone call," the majority wrote. The oversight board was created at the urging of the independent commission on the 9/11 attacks as a key organizational reform needed to balance counterterrorism policy with civil liberties concerns. The board functioned fitfully for several years, often short on members because of Congress' inaction. It finally won legislative approval last year for all five members and staff and took on its study of the NSA programs at the urging of Obama and congressional leaders.

http://www.foxnews.com/politics/2014/01/23/independent-federal-review-board-says-nsa-phone-data-collection-program-should