Some Thoughts on the OPM Breach

**Updates What’s In a Background Investigation, Anyway?

Dissecting the OPM Breach
Ex-DHS Cybersecurity Leader Mark Weatherford Analyzes Hack
By Eric Chabrow, June 5, 2015.

Main Article

On June 4th, the same day the New York Times and ProPublica reported on Snowden documents showing that

the Obama administration has expanded the National Security Agency’s warrantless surveillance of Americans’ international Internet traffic to search for evidence of malicious computer hacking

but also shows that

the NSA sought permission to target hackers even when it could not establish any links to foreign powers,

the government disclosed another data breach of government computers, this time at the US Office of Personnel Management (OPM), the agency that among other tasks related to government employees and employment also conducts

background investigations for prospective employees and security clearances across government, with hundreds of thousands of cases each year.

There have been lots of responses to these revelations.  Amie Stepanovich linked the data breach to the NSA revelation, asking/explaining that they would be doing the investigation. My uneducated guess is that in addition to hunting overseas hackers, NSA is also doing insider threat hunting.  Since the breach happened sometime last year and OPM discovered it in April, some asked why reveal the breach now?

One answer to "why now" is to remember that Snowden's revelations came right before a US-China meeting where Obama was going to complain about Chinese theft of US intellectual property.  Disclosing last year's breach now could flip the tables back to the US doing the criticizing

Disclosure of the latest computer breach comes ahead of the annual U.S.-China Strategic and Economic Dialogue scheduled for June 22-24 in Washington, D.C. Cyber security was already expected to be high on the agenda.

Marcy wrote about the irony of the hack in the bulk collection debate

The same report notes that the hack may be linked to the hack of similar scope of Anthem earlier this year.

This is, as a lot of the current and former government employees I follow on Twitter are realizing this morning, a devastating hack, one which will have repercussions both in the private lives of those whose data has been hacked as well as generally for America’s national security, because the data in the OPM servers offers a road map for further espionage targeting.

It is also something the US does all the time — and not just against official government employees of adversary nations, but also against civilian or quasi civilian telecom targets, as well as employees of corporations of interest.

continued

The US Intelligence Community let us have a debate over a mere fraction of the bulk data being collected by the NSA — that collected domestically to target Americans. But for the stuff targeting foreigners on a far greater scale, President Obama proclaimed we would continue collecting in bulk but limit its use to all the major purposes we were already using it for before we ever got around to debating the Section 215 dragnet.

(1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests;

(2) threats to the United States and its interests from terrorism;

(3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction;

(4) cybersecurity threats;

(5) threats to U.S. or allied Armed Forces or other U.S or allied personnel;

(6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section.

That scope goes well beyond the scope of those affected in this OPM hack.

Whistlebower attorney Brad Moss used OPM breach to criticize Snowden

The #OPMBreach exposed far more PII than all the metadata NSA ever collected. Where is Snowden? Greenwald? Scahill?

— Bradley P. Moss, Esq (@BradMossEsq) June 6, 2015

Marcy gives one answer to Brad writing

Once the government does whatever it can to protect the millions compromised by this hack, I hope it will provide an opportunity to do two things: focus on actual cyber-defense, rather than an offensive approach that itself entails and therefore legitimates precisely this kind of bulk collection, and reflect on whether the world we’ve built, in which millions of innocent people get swept up in spying because it’s easy to do so, is really one we want to pursue. Ideally, such reflection might lead to some norm-setting that sharply limits the kinds of targets who can be bulk collected (though OPM would solidly fit in any imaginable such limits).

The other answer for Brad is that Snowden would be criticizing the zero-day exploits that the Washington Post says this attack was (and ZDnet).  As Snowden describes, offensive tools used by the NSA are the same tools used by our adversaries.  Brad does make one good comment though, but I don't know what the implications are yet.

Just had a thought. OPM handled security investigation of #Snowden. China hacked OPM. Guess who might have all of Snowden's PII now?

— Bradley P. Moss, Esq (@BradMossEsq) June 5, 2015

However one problem I have with the article is the explanation of a zero-day, described as 

“zero-day” — a previously unknown cyber-tool — to take advantage of a vulnerability that allowed the intruders to gain access into the system.

"Previously unknown tool" makes it sound like it is a new hacking tool.  New vulnerability or entry point is a clearer description, as it is not a new tool. 

Tim Shorrock tweeted an article that USIS was still doing security for OPM after doing background checks for Snowden and Navy Yard shooter Aaron Alexis, and suffering its own cyber attack disclosed last year. 

Why was the corrupt contractor USIS still doing cyber-security for OPM long after its problems were exposed? http://t.co/i9QaJAf6A6

— Tim Shorrock (@TimothyS) June 5, 2015

Robert Caruso has a series of tweets listing categories of people who are affected by the OPM breach, from many national security journalists to almost anyone who flies and in replying to Adam Goldstein explains that USIS was doing OPM's job for them

correct—under Clinton administration, OPM outsourced the functions USIS now performs to industry https://t.co/k4wogp052q

— Robert Caruso (@robertcaruso) June 6, 2015

OPM announced in response to the breach that

OPM has partnered with the U.S. Department of Homeland Security’s Computer Emergency Readiness Team (US-CERT) and the Federal Bureau of Investigation (FBI) to determine the full impact to Federal personnel.

Here is a problem with relying on CERT

I'd just like to remind everyone that these are the folks who are demanding backdoors to our devices & privacy. pic.twitter.com/JehyBnPOA1

— Quinn Norton (@quinnnorton) April 20, 2015

One difference with this hack of a government system (and not a good one) compared with other recent high profile breaches is

Researchers note that in contrast to the hacks of Home Depot and Target, personal data that might have been stolen from OPM, Anthem and the other companies has not shown up on the black market, where it can be sold to identity thieves. That is another sign, they said, that the intrusions are not being made for commercial purposes.

Back to the new Snowden revelations however, my thoughts right now are that the "hacker hunter" program is really an insider threat program as well.  See here and here

good news from Congress

Congressional Record June 2, 2015, House of Representatives

PDF Page 81, Page H3725

AMENDMENT OFFERED BY MR. POE OF TEXAS

Mr. POE of Texas. I have an amendment at the desk regarding the Fourth Amendment to the Constitution, with multiple cosponsors.

The Acting CHAIR.

The Clerk will report the amendment.

The Clerk read as follows:

At the end of the bill (before the short title), insert the following: SEC. ll. (a) Except as provided by subsection (b), none of the funds made available by this Act for the Department of Justice or the Federal Bureau of Investigation may be used to mandate or request that a person (as defined in section 101(m) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(m)) alter the product or service of the person to permit the electronic surveillance (as defined in section 101(f) of such Act (50 U.S.C. 1801(f)) of any user of such product or service. (b) Subsection (a) shall not apply with respect to mandates or requests authorized under the Communications Assistance for Law Enforcement Act (47 U.S.C. 1001 et seq.).

Mr. POE of Texas (during the reading). Mr. Chair, I ask unanimous consent to dispense with the reading of the amendment.

The Acting CHAIR.

Is there objection to the request of the gentleman from Texas? There was no objection.

The Acting CHAIR. Pursuant to House Resolution 287, the gentleman from Texas and a Member opposed each will control 5 minutes. The Chair recognizes the gentleman from Texas. Mr. POE of Texas.

Mr. Chairman, I have a simple, straightforward amendment to protect the Fourth Amendment of the U.S. Constitution. This is a very similar amendment that passed DOD Appropriations last year. I would like to thank Representatives LOFGREN, MASSIE, CONYERS, AMASH, NADLER, FARENTHOLD, POLIS, LABRADOR, and LIEU for working with me as cosponsors on this important amendment. James Comey, the Director of the Federal Bureau of Investigation, recently asked Congress to update the law to ensure that the Federal Government can access information from Americans’ cell phones and personal electronic devices in the future. Many U.S. technology companies have also been approached by the government agencies, urging them either through intimidation or just request to create back doors on their products’ encryption system so the government can access it later down the road. We have all learned recently about the government’s abuse of section 215 under the PATRIOT Act and abuse under section 702 of the FISA Amendments Act. Basically what this amendment does, Mr. Chairman, is prohibit the government from going to Apple, for example, and telling Apple that they want an encryption in cell phones that they sell to Americans, an encryption that would allow the FBI to have access to this information, which would include not just conversations, not just include emails, but it would also include text messaging as well. This is a straightforward amendment. This prohibits the Federal Government—specifically, the FBI—from going in and receiving this information. Privacy is important. It is under our Constitution. There should be no doubt that the Federal Government should have no access to our cell phones and the information that is in those cell phones. That is what this amendment does. I reserve the balance of my time.

Mr. CULBERSON. I ask unanimous consent to claim the time in opposition, but I do not oppose the gentleman’s amendment. I agree with his amendment and encourage the House to support it.

Ms. LOFGREN. Mr. Chairman, reserving the right to object.

The Acting CHAIR. The gentlewoman from California is recognized on her reservation. Ms. LOFGREN.

Mr. Chairman, I had also sought to seek the time in opposition, although I also do not oppose the amendment.

Mr. CULBERSON. Does the gentlewoman support the amendment? Ms. LOFGREN. I support the amendment, as does the gentleman.

Mr. CULBERSON. That was my point. I think it is important. We are here in this Chamber looking at George Mason, who refused to sign the Constitution because he was so concerned that the power of the Federal Government would just absolutely obliterate——

The Acting CHAIR. The gentleman will suspend. Does the gentlewoman withdraw her reservation?

Ms. LOFGREN. Mr. Chairman, further reserving, I was wondering if the Democratic side of the aisle might be able to split the time. That is why I was reserving the right to object.

Mr. CULBERSON. Mr. Chairman, I would be happy to split the time with the gentlewoman. I am claiming the time in opposition, although I do not oppose it. The gentleman still has some time remaining on his initial time. I will yield in just a moment, but I really think it is important in this age of electronic communication that we in the Congress debate and be keenly aware of the new boundaries.

The Acting CHAIR. The gentleman will suspend.

Ms. LOFGREN. I withdraw my reservation.

The Acting CHAIR. The reservation is withdrawn. Without objection, the gentleman from Texas (Mr. CULBERSON) is recognized for 5 minutes. There was no objection.

Mr. CULBERSON. Mr. Chairman, my neighbor and good friend, Judge TED POE, brings a very important point to the floor tonight. In this new era of expanding technology that now intrudes on every aspect of our lives, it is very important to remember the admonition that Benjamin Franklin gave us—that those who would surrender a little freedom to gain a little safety are soon going to find themselves with neither. I do find it instructive that we are here on this House floor looking at George Mason, who is on the right here, who refused to sign the Constitution because he was so concerned the Federal Government would become omnipotent and obliterate the rights of individuals and the rights of the States to control those issues that deal exclusively with the States. My favorite Founding Father, Thomas Jefferson, was keenly aware of and concerned about the power of the Federal Government. We are entering into a whole new era now where the government has got the ability to intrude on every aspect of our life. I share Judge POE’s concern. I support his amendment, and I urge the House to support it. If the FBI has a court order, if the National Security Agency gets a court order, I believe they could get access to what they need to get access to. Just like cracking a safe. In fact, I asked this question, if I could, of Director Comey in front of our subcommittee. He said these new iPhones—I dropped my iPhone 5 and had to get a 6—he said these can’t be cracked. So, therefore, you would have to open them up like you would a safe, as you had to order safes, I bet, opened on occasion, Judge POE. So I agree with the amendment, and I yield the balance of my time to the gentlewoman from California (Ms. LOFGREN).

Ms. LOFGREN. I thank the gentleman for yielding. As Mr. POE recognized, this is a very diverse group of authors who don’t agree on everything, but this is very important for a reason. First, it is fundamental that our privacy be protected; that the Fourth Amendment be adhered to. Secondly, we all know—and if you ask any computer scientist, they will tell you—that once the vulnerability is introduced for a good reason, it is available for hacking for very bad reasons. Finally, for competitiveness. Think how competitive it is to sell an American product around the world when everyone knows that it is compromised. Not a really good marketing tool. Last year, as Mr. POE mentioned, we had almost precisely this amendment on the floor as an amendment to the DOD appropriations. What was the vote on that amendment? It was 293–123; overwhelming. So I am hoping that Members will not flip-flop, that they will, in fact, vote the way they did last year. And I will just go a little trip down memory road. When I was first elected to the Congress, I took my oath of office January 4, 1995, and I met BOB GOODLATTE for the very first time. And he and I went all over this Congress to try and work on decontrol of encryption. Although a lot of people we talked to in 1995 had no idea what we were talking about when we talked about encryption, ultimately that bipartisan effort was successful. We must not let that successful effort to protect privacy, to protect technology, be eroded at this point. So I look forward to a very strong vote on this. I think it is important that we have a vote, even though there is agreement, just to send the message to the other body how serious that we are.

Mr. CULBERSON. Our most important right as Americans is to be left alone. If you are a law-abiding American, you are secure in your home and your possessions. Your home is your castle.

Ms. LOFGREN. Will the gentleman yield? Mr. CULBERSON. I yield to the gentlewoman from California.

Ms. LOFGREN. We might not agree on everything, but I think we agree on the Fourth Amendment. So this is a great day for this body to come together across the aisle for that purpose. And I thank the gentleman for yielding Mr. CULBERSON. I reserve the balance of my time.

Mr. FATTAH. Will the gentleman yield? Mr. POE of Texas. I yield to the gentleman from Pennsylvania.

Mr. FATTAH. I just wanted to indicate that on behalf of the minority, we support your amendment and are prepared to agree to it. Mr. POE of Texas. I yield 1 minute to the gentleman from Kentucky (Mr. MASSIE).

Mr. MASSIE. Thank you, Judge POE, for introducing this amendment. This was substantially the same amendment that we offered last summer that passed with a veto-proof majority 293– 123. Back doors are bad for three reasons. When the government forces companies to put back doors or weaken their encryption, it is bad for security because hackers are going to find these back doors and other foreign countries will find these back doors. It is bad for privacy because the Fourth Amendment can be violated. And it is bad for business. As my colleague ZOE LOFGREN from California mentioned, it is bad for business because it makes us less competitive overseas. Who wants to buy a piece of defective software that was made defective by our government? So I urge Members to vote for this amendment because it would prevent all of these bad things from occurring.

Mr. POE of Texas. Mr. Chairman, how much time do I have remaining?

The Acting CHAIR. The gentleman from Texas has 2 minutes remaining.

Mr. POE of Texas. In conclusion, I want to thank the minority, Ms. LOFGREN, and all the cosponsors on this, as well as the chairman of the subcommittee, for their support. On the issue of privacy, in this time where we have threats to this country, we can have security and we can certainly have privacy, and we can have the Constitution be followed as well. The Fourth Amendment has always required that if the government wants to search, the government must follow certain rules. And those rules are that you must get a warrant from a judge based on probable cause. That is still the law of the land, even in 2015. All this amendment does is ensure the fact that the government—the FBI—follows the Constitution. The idea that the Federal Government wants to have encryption in American cell phones so they can have access to the information is repulsive. So all this does is keep the Federal Government out of our business without appropriate constitutional protections. I ask for support of this amendment, and I yield back the balance of my time.

Mr. CULBERSON. Mr. Chairman, I just want to reaffirm that, as Judge POE has written this amendment, there is an exception in here that if the government gets a court order, they can go in and put a back door on the phone when the judge says there is a compelling reason to do so. I yield to the gentleman. Mr. POE of Texas. Certainly. The law—the Constitution—still applies that the government must go and get a warrant based upon probable cause under the Fourth Amendment. Of course, there are exceptions to warrantless search.

Mr. CULBERSON. Reclaiming my time, the way the amendment is written, the government can’t just force all phone companies to build a back door into all telephones. You have got to have a court order on that specific phone, on that specific person, before you can do it. That is absolutely reasonable. That is what Mr. Madison and Mr. Jefferson intended for us to do.

Therefore, I support the gentleman’s amendment, and I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentleman from Texas (Mr. POE). The amendment was agreed to.

AMENDMENT OFFERED BY MR. POLIS

Mr. POLIS. Mr. Chairman, I have an amendment at the desk.

The Acting CHAIR. The Clerk will report the amendment.

The Clerk read as follows:

At the end of the bill (before the short title), insert the following: SEC. ll. None of the funds made available by this Act may be used to execute a subpoena of tangible things pursuant to section 506 of the Controlled Substances Act (21 U.S.C. 876) that does not include the following sentence: ‘‘This subpoena limits the collection of any tangible things (including phone numbers dialed, telephone numbers of incoming calls, and the duration of calls) to those tangible things identified by a term that specifically identifies an individual, account, address, or personal device, and that limits, to the greatest extent reasonably practicable, the scope of the tangible things sought.’’.

The Acting CHAIR. Pursuant to House Resolution 287, the gentleman from Colorado and a Member opposed each will control 5 minutes. The Chair recognizes the gentleman from Colorado. Mr. POLIS.

Mr. Chairman, here in Congress we have just been spending a lot of time and energy discussing NSA surveillance. The American public— and now, Members of Congress in both Chambers—have spoken clearly that the kind of bulk data collection the NSA has engaged in needs to be stopped. However, there is a corresponding change that we need to make with regard to the Drug Enforcement Administration. In a series of revelations from 2013 to 2015, it came to light that the DEA had for more than 20 years been gathering a vast database of information on America’s personal communications. There was no congressional authority for this program and no oversight by Congress or any area of the Federal Government. Legal experts who weighed in after the program was finally made public have said without hesitation that the program was illegal. In 2013, the Department of Justice brought this program to an end, but there is nothing to stop the government or the DOJ from resuming it at will unless Congress acts by inserting this language in the appropriations bill. Without this language, the DEA could once again unilaterally sweep up the communications records of millions of Americans. There is no reason that, as we work to end the unconstitutional surveillance that the NSA has engaged in, we should continue to allow the DOJ to have the very same abuses. This is a corresponding piece of legislation to something that already passed the House with regard to the NSA by an overwhelming majority. I urge my colleagues to support our bipartisan amendment that we worked on with Mr. GRIFFITH, Mr. SCHWEIKERT, Mr. NADLER, and Mr. FARENTHOLD to simply prohibit DOJ from using Federal funds to engage in bulk data collection of Americans’ phone records or other data, and I reserve the balance of my time.

Mr. CULBERSON. Mr. Chairman, I claim time in opposition.

The Acting CHAIR. The gentleman from Texas is recognized for 5 minutes.

Mr. CULBERSON. Just being given Mr. POLIS’ amendment, I oppose the idea of bulk data collection. I would like to accept the gentleman’s amendment because of my previous expressed concerns about how we want to make sure we are protecting the privacy of law-abiding Americans. So I would accept the gentleman’s amendment with the understanding that I would work with him. There may be unintended consequences here that I am not immediately aware of. Judiciary Committee staff is working with ours right now to make sure we have got our arms around this. I want to make sure that if the DEA has a valid court order, a valid subpoena, that they can go after lawbreakers and complete their investigations. Again, we want to protect the privacy of law-abiding Americans.

Mr. FATTAH. Will the gentleman yield?

Mr. CULBERSON. I yield to the gentleman from Pennsylvania.

Mr. FATTAH. I think with the understanding that the chairman has laid out, your accepting this amendment would move us forward, and I agree. I think we have a clear understanding that you are accepting it, but we will work together to make sure it doesn’t have any unintended consequences.

Mr. CULBERSON. Reclaiming my time, with that understanding, I want to make sure we reserve the right of DEA to get a court order to do their work. With that understanding, I withdraw my opposition and will accept the amendment. I yield back the balance of my time.

Mr. POLIS. I yield 1 minute to the gentleman from New York (Mr. NADLER), the coauthor of the amendment.

Mr. NADLER. I thank the gentleman for yielding. I rise in strong support of this amendment to prevent bulk collection of data at the Department of Justice. Last month, this House spoke loud and clear that we oppose the National Security Agency’s bulk collection of telephone metadata. Today, the Senate joined us in that judgment, and, together, we have reaffirmed our commitment to the Fourth Amendment and to protecting Americans from unconstitutional government surveillance. We learned earlier this year that long before the NSA program ban, the Drug Enforcement Administration engaged in its own bulk collection program that provided a model for the NSA to use nearly a decade later. This program included logs of virtually all telephone calls from the U.S. to as many as 116 countries, ostensibly linked to drug trafficking, all without a court order and without authorization from Congress. Mr. Chairman, enough is enough. Although the DOJ has since shut down this program, there is nothing preventing the Department from renewing it in secret without authorization, as it did before. This amendment would ensure that it remains dormant and that Americans’ privacy remains secure. I thank Mr. POLIS and the other cosponsors of the amendment, and I thank the gentleman from Texas for accepting this amendment. I urge my colleagues to support this amendment.

Mr. POLIS. Mr. Chairman, I yield 1 minute to the gentleman from Texas (Mr. FARENTHOLD).

Mr. FARENTHOLD. Mr. Chairman, I rise in support of this amendment and thank my colleague from Texas for agreeing to accept it. This has been a great victory this week in our ability to work with the Senate to rein in what I believe to be the unconstitutional bulk data collection by the NSA. Just because we stopped the NSA doesn’t mean we shouldn’t be ever vigilant. With the reports of the DEA engaging in similar activities, it is absolutely appropriate that we use the power of the purse to ensure that this type of spying on American citizens— this bulk data collection—is stopped. This is no different from the general warrants that were complained about when the King of England would send troops to rifle through people’s desks just looking for stuff. It is the exact same thing in the digital age. I encourage my colleagues to support it and look forward to working with my colleague, Mr. CULBERSON, in making sure it does become part of this bill.

Mr. POLIS. In conclusion, I want to thank the gentleman from Texas (Mr. CULBERSON). It is, indeed, the intended language and we believe the actual language of the amendment that would not interfere with any valid court orders or warrants. We are happy to work with them in that regard. The amendment is designed to pertain to bulk collection of data, which was never specifically authorized by Congress. I appreciate the gentleman from Texas accepting the amendment, and I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentleman from Colorado (Mr. POLIS).

The amendment was agreed to. 

Why does President Obama have 3 accounts on Twitter?

On May 18th, President Obama opened a 3rd Twitter account, @POTUS, after using @barackobama since March 2007 and @WhiteHouse as President.  One reason to wonder why Obama has a 3rd Twitter account is looking at the small number of tweets, 4 so far, one saying hi, one about Camden meeting on police brutality, one a joke about Hillary running for President, and one about coast guard graduation and climate change.

NPR commented on who Obama was following, and who he is not following,

It's heavy on Chicago sports teams, (Blackhawks, White Sox, Bears and Bulls), Cabinet officers and executive agencies. He's also following the three colleges and universities he attended: Columbia, Harvard and Occidental. No celebrities, or journalists for that matter, have made the list yet.

While Funny or Die shows fake(?) deleted tweets from @POTUS, Sunlight Foundation's "Politwoops" website of deleted Tweets from politicians shows no deleted tweets from @POTUS, but does contain deleted tweets from @barackobama, @whitehouse, and the no longer active @obamainagural

One answer to why Obama has 3 accounts could be to track who tweets threats to President Obama, as I saw here from the New York Times, writing as it's headline 

Obama’s Twitter Debut, @POTUS, Attracts Hate-Filled Posts

this should not be shocking to anyone following the vitriol doled out to the President since day 1, even breaking new records of disrespect, like when Congressman Joe Wilson shouted "You Lie" during a joint session of Congress.

The New York Times explains that

it took only a few minutes for Mr. Obama’s account to attract racist, hate-filled posts and replies.

but here is where a story about long-standing racist attacks against President Obama get interesting and concerning.....the government's response. (emphasis mine)

a user calling himself @jeffgully49, who has posted other images of Mr. Obama in a noose, and whose Twitter profile picture shows Mr. Obama behind bars. “We still hang for treason, don’t we?” his post said.

The writer, Jeff Gullickson of Minneapolis, subsequently posted on Thursday that his reply to Mr. Obama had earned him a visit from the Secret Service at home. Reached for comment, Mr. Gullickson responded by asking in an email how much The New York Times would pay him for an interview.

White House officials and a Twitter spokesman said they could not determine the percentage of postings to Mr. Obama that were racist. But they appeared to be a small number in what was an otherwise social-media-fueled show of love for Mr. Obama, who was drawing followers at a breakneck pace — nearly 2.3 million by Thursday afternoon — and hundreds of worshipful messages that welcomed him to Twitter and praised him on everything from his appearance to his policies.

continued

Josh Earnest, the White House press secretary, said that the language directed at Mr. Obama was unfortunately “all too common on the Internet,” and that officials would probably not spend much time trying to block abusive commenters from the president’s account.

“What we believe is that the president’s new Twitter handle is one that can be used to important effect and to communicate with the American people and to engage the American people,” Mr. Earnest said. “We’re pleased with the early response to it.”

The Twitter account @BarackObama, which was created eight years ago and is controlled by the liberal activist group Organizing for Action, has long been a target of racist postings, as has the official @WhiteHouse.

Law enforcement response

The Secret Service has a special “Internet Threat Desk” that monitors them, assessing whether they constitute a genuine danger and what should be done in response.

“People have the right to free speech,” said Brian Leary, a Secret Service spokesman. “We also have the right and an obligation to determine a person’s intent when they say something.”

The response can range from a conversation determining someone’s intent all the way up to working with the local United States attorney’s office to prosecute someone, Mr. Leary said.

Law enforcement agencies can also submit requests to Twitter when postings appear to pose immediate physical danger to someone, and Twitter will provide information about the account. A Twitter transparency report for the second half of 2014, the latest available, showed that the government had made more than 1,600 such requests. Twitter had furnished information in 80 percent of those cases.

“Like all of our technology industry peers, we do not proactively monitor content,” said Nu Wexler, a Twitter spokesman. “Individual users and law enforcement authorities — including the U.S. Secret Service — report content to us, and we review their reports against our rules, which prohibit violent threats and targeted abuse.”

I think given the lack of need for Obama to have a new platform of communication, especially a 3rd account on Twitter, lends more credibility to my theory that this launch may be a way to monitor those who attack Obama with news of this new account.

And I'm not alone in point this out, I'm just wondering if this was an intention all along.

WaPo says Uh, you probably don’t want to tweet to @POTUS, actually

Not only does the Secret Service already monitor Twitter for threats, but the White House is archiving each and every thing @POTUS tweeters say. Ashley Feinberg flagged this relevant piece of the White House Online Privacy Policy:

On Twitter, the White House automatically archives “tweets” from official White House accounts, “direct messages” sent to or from official White House accounts, and “mentions” (tweets from other users to official White House accounts)…

… in other words, when you tweet “leave Michelle for me @POTUS,” or something even more inappropriate/creepy, that lives in an official White House Archive for eternity (slash, for potential future scrutiny).

To be clear, this isn’t just a White House thing: The principle applies, in one form or another, to most types of social networking. Some personal data, once uploaded to Facebook, never really disappears unless you close your account. Tweets, even after deletion, can live on in caches (… and elsewhere). Even your Google searches — which feel so fleeting, so meaningless, in the moment! — can be archived and aggregated and, potentially, subpoenaed for use in court. 

Gawker gave more explicit examples of sexual tweets Obama has received, and reminded everyone that White House policy is to archive it all under the Presidential Records Act.

Huffington Post's Jason Linkins suggested Obama delete his Twitter account and also commented on the work Secret Service would now be doing monitoring threats (Washington Examiner was to the point writing the headline Obama's Twitter feed gives Secret Service something else to monitor)

For a president, Twitter is just one more avenue in which your every move will become politicized (which is already happening) and where racist trolls lurk around every corner. (Speaking of, think about all the new work the Secret Service is going to have.)

and adding my point that Twitter as a communications platform is unnecessary

It's also completely unnecessary for a president to be on Twitter, because there is a whole media apparatus already assembled that's ready to broadcast any stray utterance to the masses. Barack Obama could walk into the White House Press Room; say, "Hey, guys, check out this delicious avocado toast I made"; and by nightfall it would be translated into three Politico items, broadcast on every cable news channel, mined for at least two think pieces, and adapted as a metaphor for Maureen Dowd to beat to death over the next four years.

Anyone who thinks that this new outlet is going to be a venue for the president's unvarnished, sincere opinion needs to get his head examined. And yes, that cute little exchange between Obama and former President Bill Clinton was absolutely a tidy bit of Oval Office kayfabe. Anything that gets posted to the @POTUS account will be vetted within an inch of its life, and anything remotely interesting will be stripped out and watered down.

New NGIA Director talks about mapping ISIS

The new Director of NGIA talks about the difficulty in mapping ISIS controlled territories

From GovExec

Geospatial Agency Chief Takes Care Not to Oversell Intelligence on the Islamic State

The speed with which the self-proclaimed Islamic State gobbled up territory in Iraq and Syria has made mapping its reach difficult, “which means we don’t try to oversell our intelligence,” the director of the National Geospatial-Intelligence Agency said on Wednesday.

continued 

Cardillo took reporters’ questions before he spoke at a banquet in Arlington, Va., hosted by the Intelligence and National Security Alliance, a nonprofit that brings together current and retired intelligence officials, academics and private contractors.

Stressing the geospatial agency’s role in numerous current crises, Cardillo—who became its sixth director in October—cited the “democratization” of geospatial information as an impetus for NGA to partner with public and private organizations. “With our new focus on consequence and NGA’s great legacy of public service, I have been encouraging NGA to become even more transparent,” he said in his speech. “With more transparency, NGA is uniquely positioned to play a leading role to advance public confidence in the intelligence community.”

Expressing a desire for greater service to the State Department and the United Nations, Cardillo cited recent intelligence mapping of evidence of human rights violations by the violent Boko Haram movement in Nigeria, as well as aid to the struggling Afghan government in determining whether voter fraud discredited its recent elections.

But he singled out for special praise NGA’s work in West Africa to help alleviate last fall’s Ebola crisis, as an example of partnering with private and nonprofit sector organizations. “We are the first intelligence agency to create a [website] with access to our relevant unclassified content” of important sites in Liberia, Sierra Leone and Guinea. “It is open to everyone—no passwords, no closed groups,” he said.

Since the website’s October 23 launch, NGA has posted one-fourth of all its available content affecting Ebola, 99 percent of which is unclassified, he said. These include elevation data and suitable sites for treatment centers. “We have publicly posted 224 NGA products,” he noted. “Our transparency is striking a major chord with NGOs, international health organizations and other countries as we approach 1 million clicks on our website.” Cardillo expressed special pride in one on-the-ground analyst embedded with the 101stAirborne in Monrovia to help update Liberia’s maps.

continued

The geospatial intel agency, he added, is the “most open and transparent intelligence agency involved in humanitarian relief, safety of navigation, public science and research. So we are natural integrators. Every modern local, regional and global challenge -- climate change, the future energy landscape and many more -- has geography at its heart.” 

I wrote about the NGIA's Ebola resources maps here

Some Headlines and links

FBI evidence tampering is getting drug cases thrown out

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

I think if you're trying to show a change from the Holder era, installing the lead on the HSBC case is not a promising start.
— Matt Taibbi (@mtaibbi) November 8, 2014

2. Lynch was also involved in the abominable HSBC settlement for a paltry $1.2bn for laundering money for Mexican drug cartels.
— David Dayen (@ddayen) November 7, 2014

@AVD911 THere are about 20 USAs in this country of high stature who're willing to prosecute banks. Obama didn't choose any of those.
— emptywheel (@emptywheel) November 8, 2014

House Will Likely Wait Until 2015 To Vote On New War Authorization Against ISIS
http://www.buzzfeed.com/johnstanton/house-will-likely-wait-until-2015-to-vote-on-new-war-authori

Federal Judge Says Public Has a Right to Know About FBI’s Facial Recognition Database
http://www.nextgov.com/cybersecurity/2014/11/federal-judge-says-public-has-right-know-about-fbis-facial-recognition-database/98453/

Rap Sheets, Watchlists and Spy Networks Now Available With Single Click
http://www.nextgov.com/defense/2014/11/rap-sheets-watchlists-and-spy-networks-now-available-one-click/98423/

Senate Republicans Want to Rewrite Communications Act. So What Happens to Net Neutrality?
http://www.nextgov.com/cio-briefing/2014/11/senate-republicans-want-rewrite-communications-act-so-what-happens-net-neutrality/98456/

Lawmakers Aim to Fire More Federal Employees in 2015
http://www.govexec.com/management/2014/11/lawmakers-aim-fire-more-federal-employees-2015/98510/

Israel's nuclear weapons 2014    PDF avaliable here

Shane Bauer on Jon Stewart's movie Rosewater
http://m.motherjones.com/media/2014/11/jon-stewart-film-rosewater-iran-solitary-confinement

Asylum and refugees in Australia
http://op-talk.blogs.nytimes.com/2014/11/07/australias-little-guantanamos/?partner=rssnyt&emc=rss&utm_medium=twitter&utm_source=twitterfeed

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.

continued 

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.

continued

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.

continued

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.