Thursday, November 13, 2014

Governor Nixon gets it wrong

People have the right to express views and grievances, but they do not have the right to put fellow citizens and property at risk,” Nixon said, while explaining how the National Guard is part of his contingency plan to protect his officers.
“Violence will not be tolerated.” he continued.
In his press conference there was not one mention of Michael Brown, VonDerrit Myers, or Kajieme Powell.

The powerful message quickly morphed into a hashtag- #ViolenceWillNotBeTolerated, and an impromptu twitter campaign ensued, reminding the Governor, and anyone who forgot- of the militarized police presence and violence that he signed off on when his storm troopers declared war on demonstrators.
The Governor received 33,549 tweets on Tuesday- the hashtag was used 7,268 times by midnight.
Governor Jay Nixon's press conference regarding the impending grand jury decision gets the situation wrong. Governor Nixon is preparing the police force for violence expecting it to come from the protesters; now while there have been a few cases of violence from the protesters or those taking advantage of the protests to be violent, Governor Nixon is ignoring the police violence against unarmed black men before the killing of Mike Brown, and the violence against peaceful protesters perpetrated by his cops since protests erupted after the death of Mike Brown, even as this week Mike Brown's parents (video below) are at the UN Committee against Torture hearing in Geneva discussing police violence (video below).

(This video no longer exists)

Here are some of tweets documenting police violence

When I saw the press conference and hashtag my reaction was to flip it on its head as Governor Nixon continues to shift the blame from trigger-happy cops attacking unarmed black men to the peaceful protesters back to the reason there have been peaceful protests in Ferguson since August, and even before Mike Brown was killed and the news media started deciding to pay attention.

Governor Nixon got it wrong.  When he said that violence will not be tolerated, he didn't clarify by whom.  He meant violence from protesters will not be tolerated.  I agree with that sentiment.  Those who have been in Ferguson since August agree with that sentiment.  But the issue with that statement is that except for a few minor exceptions over 3 months, a vast majority of protesters have been peaceful, while they are attacked by police and 2 more black men have been killed by police in Ferguson, Kajieme Powell and Vonderrit Myers.  The protesters are peaceful, the cops are not.  When stating that violence will not be tolerated, let's tell the truth about who is violent.

Let's tell the truth that what Governor Nixon is saying is that violence from protesters will not be tolerated but violence by police is somehow justified.  And then let's change the statement to what we need to address the real issues.

Let's change the derogatory #ViolenceWillNotBeTolerated to the more realistic ideal that would actually bring change to Ferguson, and remind those in charge that one day we hope that #PoliceViolenceWillNotBeTolerated

Saturday, November 8, 2014

Some Headlines and links

A federal judge on Friday dismissed criminal indictments against 13 more defendants in major drug cases as authorities continued to investigate the growing scandal of an FBI agent accused of tampering with narcotics, firearms and other evidence seized in the cases.
The action by U.S. District Judge Reggie Walton came one day after prosecutors dropped charges against 10 other defendants — some already serving lengthy prison sentences — in related cases.
but added that
Walton dismissed the 13 cases Friday without prejudice, meaning the government could try to refile charges in the future.
Loretta Lynch possible Attorney General nominee
President Obama is expected to appoint Loretta Lynch as the next attorney general, CNN reported Friday morning. She would succeed Eric Holder, who announced in September he would step down once a successor is confirmed.
If confirmed, Lynch would be the first female African-American attorney general. The White House would not immediately confirm the report.
Many don't see any change from Holder

House Will Likely Wait Until 2015 To Vote On New War Authorization Against ISIS

Federal Judge Says Public Has a Right to Know About FBI’s Facial Recognition Database

Rap Sheets, Watchlists and Spy Networks Now Available With Single Click

Senate Republicans Want to Rewrite Communications Act. So What Happens to Net Neutrality?

Lawmakers Aim to Fire More Federal Employees in 2015

Israel's nuclear weapons 2014    PDF avaliable here

Shane Bauer on Jon Stewart's movie Rosewater

Asylum and refugees in Australia

Friday, November 7, 2014

Klayman v Obama at DC Court of Appeals

Tuesday was midterm election day, but the important event that got much less attention was the DC court of Appeals hearing regarding NSA's metadata collection in the case of Klayman v Obama.

The Oral Arguments are available here from the court's website and here from C-SPAN, with pictures showing who is talking which is nice.

Here is a recap/summary of the arguments.

After Snowden's revelations last year, many lawsuits were filed against the government fighting dragnet collection as unconstitutional under the 4th Amendment.  Larry Klayman is a DC lawyer and conservative activist famous for many controversial lawsuits against Presidents Clinton and Obama, (here he was during the government shutdown last year, he sued claiming Obama is not an American citizen, and is now in the news for his Ebola lawsuit more than the NSA case, let alone the Seal Team 6 helicopter crash case, which I find very interesting because as I wrote here it adds attorney-client privilege to the dangers of dragnet surveillance.
One recent morning, he and half a dozen clients attend a hearing in the Rayburn Building. His clients are parents of servicemen who were killed when a helicopter with the call sign Extortion 17 was shot down in Afghanistan on Aug. 6, 2011. Thirty Americans were killed, including some members of the Navy SEALs unit that had killed Osama bin Laden. The crash was the deadliest incident for U.S. forces in the war.
The Pentagon maintains that the tragedy was caused by a lucky shot with a rocket-propelled grenade. But these parents, and Klayman, think their sons may have been sold out by Afghan turncoats for a Taliban ambush. They base their suspicions on anomalies in the official explanation and partial evidence they have unearthed.
Michael was a Navy cryptologist who was working with SEAL Team 6 when he was killed shortly after the killing of Osama bin Laden.  
the military sent Michael to train for five months as a cryptologist in Pensacola, Florida, so he could learn how to decode encrypted messages between terrorist cells. “We didn’t know he was that smart,” Charlie says. “That’s some bad shit, you know?” After Florida, in 2005, the Navy sent Michael to its Naval Information Operations Command in Hawaii, which works closely with the 2,700 Hawaii employees of the National Security Agency. He deployed to Afghanistan for the first time later that year, and then to Iraq in 2006, where he spent nine months embedded with SEAL Team Two, providing crypto support. He’d go into battle with a kind of laptop that could pick up enemy signals and locate snipers and “squirters” — military lingo for people who flee a target area.
Michael eventually left Hawaii for a coveted spot in Virginia Beach, Virginia, home to the Naval Special Warfare Development Group, better known as SEAL Team Six.
Last June, after former NSA contractor Edward Snowden disclosed to the world that the U.S. government was gathering “metadata” on the phone calls of millions of Verizon customers, Klayman called Charlie and talked to him about it. Was Charlie a Verizon customer? Charlie said he was. Would he like to sue the government to stop this kind of data collection in the future? He said he would. “So we don’t become an Orwellian society,” Charlie says.
The suit was a long shot. Klayman made himself a plaintiff, along with Charlie and Mary. In his complaint, he listed the following as defendants: “Barack Hussein Obama II,” Attorney General Eric Holder, director of the NSA Keith Alexander, the CEO of Verizon, a judge on the Foreign Intelligence Surveillance Court, Verizon, the NSA and the Department of Justice. The complaint seemed more than a bit grandiose, especially given that no judge had ever rebuked the NSA the way Klayman and the Stranges were demanding. And Klayman’s style attracted some ridicule. In oral argument, he told the court about some unusual text messages the Stranges had gotten, texts from Michael’s old number that contained only ones and zeroes, and said he’d gotten some bizarre messages himself; he also talked about the disk that Charlie thought contained spyware. The government, Klayman said, was “messing with me.”
Dan Froomkin writes that Klayman nearly derailed the case
when the three-judge panel began peppering him to substantiate his claims of standing and harm, Klayman was unable to make a cogent argument. He accused the government of consistently lying and of getting “into people’s underwear.”
Luckily Cindy Cohn was there as a friend of the court from EFF and was able to respond to the judge's questions and explain to the court how
the crucial issue of how the information being collected by the NSA differs from the information being collected in the 1979 case of  Smith v. Maryland, Cohn provided the key answer that Klayman was incapable of summoning: Its size.
Smith was about one robbery suspect, whose calls were monitored for three days.  “This is the untargeted mass collection of the phone calls of millions of people over many years,” Cohn said.
Judge David Sentelle interrupted: “Does it become an invasion because there’s lots of it? Or is a million times nothing still nothing?”
Cohn said American citizens have a reasonable expectation that the government isn’t logging all their phone calls all the time for no specific reason. “There are regular people making everyday phone calls, that are swept up in this.”
Judge Stephen Williams raised the example of drunk-driving checkpoints, where many innocent people are nevertheless subject to a traffic stop.
Cohn said there is some element of targeting in those checkpoints. “Here there’s no suspicion whatsoever,” she said. Drunk-driving checkpoints would “not be OK if they were everywhere and everybody.”
“The aggregation of all this information is like nothing we’ve seen before,” noted Judge Janice Rogers Brown. But, she said, “it seems like the implications” of an adverse ruling could “go in many directions.”
The three judges on the panel are all Republican-appointed conservatives. But each has occasional libertarian streaks that civil-libertarians were hoping might come into play.
Whatever the panel’s ruling, it will not be final. Arguments before the full Appellate Court are considered likely; a Supreme Court argument is considered inevitable.
Matthew Aid writes that
The three appeals judges in the Washington case have generally come down on the government’s side on national security issues.
Appeals judge David Sentelle permitted the George W. Bush administration to withhold names and other details about hundreds of foreigners detained in the months after the Sept. 11, 2001, terrorist attacks. Appeals judge Stephen Williams upheld the military tribunals set up by the Bush administration to try terrorism suspects for war crimes. Janice Rogers Brown ruled that four British citizens had no right to sue Pentagon officials over accusations that the detainees were tortured and their religious rights violated while held at the U.S. detention center at Guantanamo Bay, Cuba.
Marcy Wheeler explains that
because of the incomplete reporting of a bunch of NSA beat reporters — Klayman may be improperly thrown out on standing because he is only a Verizon cell customer, not a Verizon landline customer.
Marcy explains (I think this is what she is saying) that the distinction has to do with collection of cell tower location data, and a new order from FISC that later made location collection a violation, and whether Verizon responded by destroying records or just no longer handing them over.

It is certainly possible that Verizon stopped providing cell data once it ended its TCAU contact in 2009. If that’s the case, the government’s hasty destruction of call records in March would probably have eliminated the last of the data it had on Klayman (though not on ACLU, since ACLU is a landline customer as well as a wireless customer).
But if Verizon just stopped handing over cell records in 2013 after Claire Eagan made it impossible for the government to force Verizon to comply with such orders, then Klayman — and everyone else whose records transited Verizon’s backbone — should still have standing.
Marcy also writes here about the judges hearing Klayman and the Mosaic theory of the Fourth Amendment, where
an aggregation of non-searches and subsequent analysis of the collected data at some point becomes a Fourth Amendment search.

There's also another lawyer contesting the NSA dragnet, challenging not just the PATRIOT Act Section 215 and the FISA Amendment Act section 702, but also Executive Order 12333. Elliot Schuchardt's case was also dismissed due to lack of standing like Klayman's PRISM lawsuit (Klayman II), but he is already preparing 
his response to the government’s motion to dismiss. "I'm making an allegation that no one else is making: I'm contending that the government is collecting full content of e-mail," he said. "I'm contending that they're not doing it by PRISM but via 12333. I'm not saying that this is being done on a case by case basis but that they're grabbing it all.
I don't think Schuchardt would be as bad in court as Klayman was arguing his case.
In a declaration submitted to the court on Monday, Major General Gregg C. Potter, the military deputy director for signals intelligence at the NSA, he noted that "although there has been speculation that the NSA, under the bulk telephony metadata program, acquires metadata relating to all telephone calls to, from, or within the United States, that is not the case."

This caught Schuchardt’s attention: "They're not collecting all metadata, but they didn't deny that they're collecting all content, and they can't because they would lying."
Even if the case is heard, much of the surveillance is done outside of the court's jurisdiction
John Tye, a former State Department official, who has spoken publicly in recent months many times (including with Ars) about the dangers of Executive Order 12333, lauded Schuchardt's case.

"There should be more lawsuits like this. However, such lawsuits face an uphill battle, not on the facts but in getting a court to rule on the merits of the claim," he said by e-mail.
"Most Americans don't realize this, but there is ongoing illegal government activity that it is in effect impossible to stop through a lawsuit. The judicial branch has created a variety of procedural legal doctrines—like standing and state secrets—that make it very difficult for a plaintiff with even a legitimate complaint to have his or her case heard. Most likely this case will be thrown out on the basis of a procedural objection, before the court makes any ruling on whether NSA collection on US persons under 12333 is legal or not. And by deciding not to rule on the merits, the court will thereby permit illegal collection on US persons to continue."
This case was about Verizon metadata, but Klayman filed two lawsuits, one contesting Verizon metadata collection under Section 215 of the PATRIOT Act (Klayman I or Klayman v Obama et al) and one contesting PRISM collection under FISA Amendement Act Section 702 (Klayman II or Klayman et al v Obama et al).  Klayman's PRISM lawsuit was dismissed because of standing, since it was argued that he couldn't prove his online communications were being monitored.

The NSA lawsuits were last in the news in December 2013 when metadata collection was ruled unconstitutional by one judge and constitutional by another, the ACLU's lawsuit was dismissed (the dismissal was appealed) and the Supreme Court declined to hear a case (for various reasons), and in yet another case (before Snowden's revelations) the Supreme Court argued that the plaintiffs couldn't prove they were spied on.

Despite these legal setbacks, hope still appears to come from the courts as Congress is slowly debating several bills and
despite a promise from President Obama and efforts in Congress to rein in the NSA, few reforms have been enacted, even despite findings by a presidential review board and the government's independent privacy watchdog that concluded that bulk phone surveillance was illegal and yields little to no national security benefit.
In response to inaction elsewhere, anti-surveillance activists believe the courts may ultimately provide the best way forward to reforming the government's surveillance state.
In September, the Court of Appeals for the 2nd Circuit heard another suit, ACLU v. Clapper,challenging the NSA's phone spying on similar constitutional grounds. Unlike Klayman's suit, the lower court in that case defended NSA spying as a necessary and effective response to terrorist threats such as al-Qaida.
A third case challenging the program, Smith v. Obama, is set to undergo review in December by the Court of Appeals for the 9th Circuit. The San Francisco-based court is commonly regarded as one of the most left-leaning and sympathetic to the concerns of the tech industry. That court also recently reviewed whether the FBI can compel companies to hand over communications data or financial records of users for national-security investigations in conjunction with a gag order.
The flurry of judicial action suddenly lurching forward contrasts with slow-burning efforts in Congress to curtail NSA spying, where negotiations have repeatedly been slowed despite efforts by members in both chambers to pass a bill this year. President Obama in January pledged to reform the government's surveillance programs, but said he had to wait until lawmakers put a suitable bill on his desk to do so.
any action in Congress could dictate how courts ultimately go forward with their reviews of NSA spying. A sudden dismantling of the Patriot Act, or a significant change, could render judicial reviews essentially moot, according to legal observers.
"It's a very likely scenario that the Supreme Court will review this," said Patrick Toomey, a lawyer with the American Civil Liberties Union. "But it depends on what Congress does."
The Electronic Frontier Foundation, representing itself and the ACLU, will also argue before the court Tuesday on behalf of Klayman. Additionally, the Center for National Securities Studies will present an argument challenging the government's statutory interpretation of the Patriot Act.
A decision by the D.C. Appeals Court is not expected until at least early next year.
Whether the Supreme Court will take the case depends on who you ask
Depending on the judges, [Harvard Law professor Mark] Tushnet says his gut prediction is the court will say maintaining the database is constitutionally permissible. He expects the case would be reviewed by the Supreme Court of the United States if the government loses, but not if they win on appeal and the program remains. As for digital privacy rights, Tushnet says the Supreme Court hasn’t said very much about their existence, but it’s assumed there is an argument for digital privacy in the Constitution. “Exactly where would be controversial,” he says.

Journalists and commentators have come down on both sides with their crystal balls. Benjamin Wittes, editor in chief of the blog Lawfare and senior fellow in governance studies at the Brookings Institution, predicts that should the case get to the top court, he “can’t count five votes” that could bear “responsibility for the next bad thing that might happen” and shut down a major intelligence program.

Writing in Slate, Emily Bazelon sees things differently. “If Judge Leon didn’t buy the government’s argument about why it needs to collect and keep all this metadata, other judges—and many of the rest of us—may see it the same way.”

Dan Froomkin writes
The three judges on the panel are all Republican-appointed conservatives. But each has occasional libertarian streaks that civil-libertarians were hoping might come into play.
Whatever the panel’s ruling, it will not be final. Arguments before the full Appellate Court are considered likely; a Supreme Court argument is considered inevitable.

Government spying on lawyers

On Tuesday the DC Circuit Court of Appeals heard arguments in Klayman v Obama, filed the day after the first Snowden revelation last year of NSA spying on phone call metadata.  Because I had not been following the case too closely, I thought that the case was filed only because as customers of Verizon, Klayman had standing because as a Verizon customer he was the target of dragnet surveillance without reasonable suspicion, which is against the Fourth Amendment.  But on Tuesday while listening to the oral arguments I learned something new about the case.  The case was not just about Klayman's personal calls as a Verizon customer, but spying related to a specific case he represented as a lawyer.  That case is about the death of Michael Strange (h/t emptywheel), a solider with SEAL Team VI killed in the helicopter shoot-down right after the killing of Osama bin Laden.

I have another post about the Klayman case, but I bring it up because I learned about the attorney-client privilege aspects of it on Tuesday.

Today I learned about this.

Secretive court to consider Government spying on lawyers’ communications
A court which usually sits in secret will tomorrow (Thursday) consider whether the Government should be forced to release more information regarding its surveillance of legally privileged communications between lawyers and their clients.
In a rare public hearing, the Investigatory Powers Tribunal (IPT) – which is responsible for oversight of the intelligence services – will hear further argument in a complaint brought by two families who were subjected to ‘rendition’ and torture in a joint MI6-CIA-Libyan operation.
The al Saadi and Belhadj families are concerned that the Government may have given itself an unfair advantage in a separate, High Court case concerning their mistreatment, by listening in to communications with their legal teams at charity Reprieve and solicitors Leigh Day.  Legal privilege – which protects confidential communications between lawyer and client – is a central principle in British law which helps ensure the right to a fair trial.

Then there was this on Twitter today about other recent cases of government spying on attorneys and their clients.

Not only do we need to stop NSA dragnet spying on Americans, but we need to protect attorney-client privilege.

**Update December 17, 2014

Looking up an unrelated matter I found these articles on NSA surveillance and attorney-client privilege.

ABA Journal, September 1, 2014 link

NSA response, mentioned in above ABA article link

Jurist article, August 15, 2014 link

ACLU June, 21, 2013 bullet point #6 link

EFF February 22, 2014 link

July 2, 2014 CCR and lawyers for Guantanamo Bay detainees respond to PCLOB report link

Tuesday, November 4, 2014

Facebook's Hidden Onion Service helps protect users' privacy a little more

Facebook has long been criticized for its privacy concerns, but recently made a good move, creating a "Hidden Service" web address for the Tor browser.  You can download the Tor Browser Bundle here, and see video here (you can but don't have to put Tor on a USB).

Once you open Tor and check Tor at go to https://facebookcorewwwi.onion/ to access Facebook's Hidden Service

Read Facebook's statement here on recent security implementations, including 

HTTPS across our service, and Perfect Forward Secrecy, HSTS, and other technologies

Here's what this does and doesn't do.

Tor wrote their own response after Tor users and journalists asked Tor for their thoughts.
Part one: yes, visiting Facebook over Tor is not a contradiction
I didn't even realize I should include this section, until I heard from a journalist today who hoped to get a quote from me about why Tor users wouldn't ever use Facebook. Putting aside the (still very important) questions of Facebook's privacy habits, their harmful real-name policies, and whether you should or shouldn't tell them anything about you, the key point here is that anonymity isn't just about hiding from your destination.
There's no reason to let your ISP know when or whether you're visiting Facebook. There's no reason for Facebook's upstream ISP, or some agency that surveils the Internet, to learn when and whether you use Facebook. And if you do choose to tell Facebook something about you, there's still no reason to let them automatically discover what city you're in today while you do it.
Also, we should remember that there are some places in the world that can't reach Facebook.

The Committee to Protect Journalists applauded the move too, citing how social media has become an important tool for journalism, and can now be accessed over Tor in countries that censor the internet and block access to social media sites
The Committee to Protect Journalists welcomes Facebook's move to enable access via a Tor hidden service, which came into effect on Friday. The step protects journalists and other users who are at risk of surveillancecensorship, or online attack.
The dedicated hidden service makes it much easier for a journalist using Tor to access Facebook, while making it extremely difficult for attackers to monitor their activities or location or to intercept or block their connections to Facebook. This is a substantial improvement in both safety and usability for journalists who use Facebook to disseminate news, connect with sources, and communicate with colleagues. It also means that journalists using Tor to protect their privacy and that of their sources when connecting to Facebook no longer have to worry about triggering Facebook security alerts which can temporarily lock out users from their accounts. 
but then continued to acknowledge that
The move does not prevent Facebook from monitoring the activities of its users as they navigate the site, but unlike normal browsing, access via Tor does not automatically convey to Facebook a user's physical location.
Facebook's move now hopefully puts pressure on other social media networks to do more to protect users

Many have also called for encryption for so called "private" communications that really aren't private.
From 2011

From 2013

And from 2014

WIRED writes
Over the past few years, sites like Google, Facebook, and Twitter have all implemented default SSL encryption to protect users’ traffic. Sandvik sees Facebook’s Tor hidden service as a sign that Tor may be the next basic privacy protection Silicon Valley companies will be expected to offer their users.

Let's hope so.

**Update 11/5 As with any new product, especially in cyber-security, there are always new developments to keep track of as more people try things out and find problems