Category Archives: Five Eyes

NSA disclosures put U.S. on defense

Politico reports: The NSA spying controversy is quickly transforming from a domestic headache for the Obama administration into a global public relations fiasco for the United States government.

After months of public and congressional debate over the National Security Agency’s collection of details on U.S. telephone calls, a series of reports about alleged spying on foreign countries and their leaders has unleashed an angry global reaction that appears likely to swamp the debate about gathering of metadata within American borders.

While prospects for a legislative or judicial curtailment of the U.S. call-tracking program are doubtful, damage from public revelations about NSA’s global surveillance is already evident and seems to be growing.

Citing the snooping disclosed by former NSA contractor Edward Snowden, Brazil’s president canceled a state visit to the U.S. set for this week. Leaders in France and Italy and Germany have lodged heated protests with Washington, with the Germans announcing plans to dispatch a delegation to Washington to discuss the issue. Boeing airplane sales are in jeopardy. And the European Union is threatening to slap restrictions on U.S. technology firms that profit from tens of millions of users on the Continent.

“Europe is talking about this. Some people in Europe are upset and may take steps to block us,” former Rep. Jane Harman (D-Calif.) said in a telephone interview from Rome on Friday. “The reaction of retail politicians is to mirror the upset of the people who elected them.”

“Confidence between countries and confidence between governments are important and sometime decisive and there’s almost no confidence between the United States of America and Europe” now, former German intelligence chief Hansjörg Geiger said. “I’m quite convinced there will be an impact…. It will be a real impact and not only the [intelligence] services will have some turbulence.”

Some analysts see immediate trouble for U.S.-European arrangements to share information about airline passengers, financial transactions and more.

“The bigger problems are not in Berlin or Paris, but in the future out of Brussels,” said Michael Leiter, former head of the National Counterterrorism Center. “At the EU, I expect them to be very, very resistant to any increase — and to have problems even with maintenance — of some of the information sharing we have now…..All of this complicates those discussions exponentially.”

For the average person, American or from elsewhere, the knowledge that their own communications are subject to NSA surveillance is likely to be a matter of relatively little concern. Even if they vehimently object to such collection as a matter of principle, they also are likely to feel reasonably confident that for all intents and purposes, this data gets lost almost as rapidly as it gets collected. It instantly becomes buried in vast databases where it will almost certainly never receive further scrutiny. Not only is the collection process unjustifiably intrusive, but it also seems grossly wasteful.

In response to this week’s revelations, Glenn Greenwald wrote:

[N]ote how leaders such as Chancellor Angela Merkel reacted with basic indifference when it was revealed months ago that the NSA was bulk-spying on all German citizens, but suddenly found her indignation only when it turned out that she personally was also targeted. That reaction gives potent insight into the true mindset of many western leaders.

No doubt our political leaders are guilty of all kinds of hypocrisy, but in this case, surveillance of heads of state can hardly be put on a par with surveillance of ordinary citizens.

When the NSA was monitoring Merkel’s communications, it’s reasonable to assume that the monitoring went far beyond recording. They were not getting tossed into a database where they might reside until the day there was some justification to examine them. Much more likely, they were subject to daily analysis.

The NSA might be listening to everyone, but it focuses its attention on far fewer, including as we now know, some of America’s closest allies.

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Japan rejected NSA request for aid in tapping fiber-optic cables in 2011

Kyodo News International reports: The U.S. National Security Agency sounded out the Japanese government around 2011 for cooperation in wiretapping fiber-optic cables carrying phone and Internet data across the Asia-Pacific region, sources familiar with the matter said Saturday.

The agency’s overture was apparently aimed at gathering information on Beijing given that Japan is at the heart of optical cables that connect various parts of the region. But Japan rejected the request, citing legal restrictions and shortage of personnel in the tapping operations, the sources said.

The sources said the agency asked Japan if it could intercept personal information such as Internet and phone call data when communication data pass through Japan via cables connecting Japan, China and other parts of the region.

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The NSA is undermining the fight against terrorism

The Guardian reports: Germany and France are to spearhead a drive to try to force the Americans to agree new transatlantic rules on intelligence and security service behaviour in the wake of the Snowden revelations and allegations of mass US spying in France and tapping of the German chancellor Angela Merkel’s mobile phone.

At an EU summit in Brussels that was hijacked by the furore over the activities of the National Security Agency in the US and Britain’s GCHQ, the French president, François Hollande, also called for a new code of conduct agreed between national intelligence services in the EU, raising the question of whether Britain would opt to join in.

Shaken by this week’s revelations of NSA operations in France and Germany, EU leaders and Merkel in particular warned that the international fight against terrorism was being jeopardised by the perception that mass US surveillance was out of control.

The leaders “stressed that intelligence-gathering is a vital element in the fight against terrorism”, a summit statement said. “A lack of trust could prejudice the necessary co-operation in the field of intelligence-gathering.”

Merkel drove the point home: “We need trust among allies and partners. Such trust now has to be built anew … The United States of America and Europe face common challenges. We are allies. But such an alliance can only be built on trust.” [Continue reading…]

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U.S. tells terror suspect it will use surveillance evidence, setting up possible legal challenge

The Washington Post reports: The Justice Department on Friday informed a terrorism suspect in Colorado that it intends to use evidence against him gathered through the government’s warrantless surveillance program, a move that will likely lead to a constitutional challenge to the law.

It is the first time the government has informed a criminal defendant that it intends to use “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act.”

It is important because the Supreme Court last term declined to consider the constitutionality of the law amended five years ago because it said those who brought a lawsuit against it could not prove they had been subject to its provisions.

With the filing Friday, “it’s the first time since 2008 when the act was signed into law that the government has acknowledged the use of surveillance derived from the law in a criminal prosecution,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union.

Jaffer, who argued the previous case at the Supreme Court, said it was a “big deal” that “will undoubtedly set up a constitutional challenge to it.” [Continue reading…]

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Leaked memos reveal GCHQ efforts to keep mass surveillance secret

The Guardian reports: The UK intelligence agency GCHQ has repeatedly warned it fears a “damaging public debate” on the scale of its activities because it could lead to legal challenges against its mass-surveillance programmes, classified internal documents reveal.

Memos contained in the cache disclosed by the US whistleblower Edward Snowden detail the agency’s long fight against making intercept evidence admissible as evidence in criminal trials – a policy supported by all three major political parties, but ultimately defeated by the UK’s intelligence community.

Foremost among the reasons was a desire to minimise the potential for challenges against the agency’s large-scale interception programmes, rather than any intrinsic threat to security, the documents show. [Continue reading…]

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NSA: Brazil and Germany lead calls for UN resolution on internet privacy

The Guardian reports: Brazil and Germany are spearheading efforts at the United Nations to protect the privacy of electronic communications in the wake of the Edward Snowden revelations and allegations of mass US spying.

Diplomats from the two countries, which have both been targeted by America’s National Security Agency, are leading efforts by a coalition of nations to draft a UN general assembly resolution calling for the right to privacy on the internet.

Although non-binding, the resolution would be one of the strongest condemnations of US snooping to date.

“This resolution will probably have enormous support in the GA [general assembly] since no one likes the NSA spying on them,” a western diplomat told Reuters on condition of anonymity.

The Brazilian president, Dilma Rousseff, has previously cancelled a state visit to Washington over the revelation that the NSA was scooping up large amounts of Brazilian communications data, including from the state-run oil company Petrobras. The drafting of the UN resolution was confirmed by the country’s foreign ministry.

The Associated Press quoted a diplomat who said the language of the resolution would not be “offensive” to any nation, particularly the US.

He added that it would expand the right to privacy guaranteed by the international covenant on civil and political rights, which went into force in 1976. [Continue reading…]

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The NSA has harmed global cybersecurity. It needs to reveal what it’s done

Computer scientists Nadia Heninger and J. Alex Halderman write: Of all of the revelations about the NSA that have come to light in recent months, two stand out as the most worrisome and surprising to cybersecurity experts. The first is that the NSA has worked to weaken the international cryptographic standards that define how computers secure communications and data. The second is that the NSA has deliberately introduced backdoors into security-critical software and hardware. If the NSA has indeed engaged in such activities, it has risked the computer security of the United States (and the world) as much as any malicious attacks have to date.

No one is surprised that the NSA breaks codes; the agency is famous for its cryptanalytic prowess. And, in general, the race between designers who try to build strong codes and cryptanalysts who try to break them ultimately benefits security. But surreptitiously implanting deliberate weaknesses or actively encouraging the public to use codes that have secretly been broken — especially under the aegis of government authority — is a dirty trick. It diminishes computer security for everyone and harms the United States’ national cyberdefense interests in a number of ways.

Few people realize the extent to which the cryptography that underpins Internet security relies on trust. One of the dirty secrets of the crypto world is that nobody knows how to prove mathematically that core crypto algorithms — the foundations of online financial transactions and encrypted laptops — are secure. Instead, we trust that they are secure because they were created by some of the world’s most experienced cryptographers and because other specialists tried diligently to break them and failed.

Since the 1970s, the U.S. National Institute of Standards and Technology (NIST) has played a central role in coordinating this trust, and in deciding which algorithms are worthwhile, by setting the cryptographic standards used by governments and industries the world over. NIST has done an admirable job of organizing the efforts of cryptographic experts to design and evaluate ciphers. It has also been able to harness the clout of the U.S. government to get those designs — including such state-of-the-art technology as the AES cipher, the SHA-2 hash functions, and public-key cryptography based on elliptic curves — adopted by industry. In turn, American industry believed that it could trust that these technologies had been designed by a competent organization with its interests at heart.

There is now credible evidence that the NSA has pushed NIST, in at least one case, to canonize an inferior algorithm designed with a backdoor for NSA use. Dozens of companies implemented the standardized algorithm in their software, which means that the NSA could potentially get around security software on millions of computers worldwide. Many in the crypto community now fear that other NIST algorithms may have been subverted as well. Since no one knows which ones, though, some renowned cryptographers are questioning the trustworthiness of all NIST standards. [Continue reading…]

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Congressional oversight of the NSA is a joke. I should know, I’m in Congress

Rep. Alan Grayson writes: In the 1970s, Congressman Otis Pike of New York chaired a special congressional committee to investigate abuses by the American so-called “intelligence community” – the spies. After the investigation, Pike commented:

It took this investigation to convince me that I had always been told lies, to make me realize that I was tired of being told lies.

I’m tired of the spies telling lies, too.

Pike’s investigation initiated one of the first congressional oversight debates for the vast and hidden collective of espionage agencies, including the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and the National Security Agency (NSA). Before the Pike Commission, Congress was kept in the dark about them – a tactic designed to thwart congressional deterrence of the sometimes illegal and often shocking activities carried out by the “intelligence community”. Today, we are seeing a repeat of this professional voyeurism by our nation’s spies, on an unprecedented and pervasive scale.

Recently, the US House of Representatives voted on an amendment – offered by Representatives Justin Amash and John Conyers – that would have curbed the NSA’s omnipresent and inescapable tactics. Despite furious lobbying by the intelligence industrial complex and its allies, and four hours of frantic and overwrought briefings by the NSA’s General Keith Alexander, 205 of 422 Representatives voted for the amendment.

Though the amendment barely failed, the vote signaled a clear message to the NSA: we do not trust you. [Continue reading…]

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NSA scrambles to defend itself

Having intelligence community leaders like Director of the National Security Agency Keith Alexander and Director of National Intelligence James Clapper as front-line defenders for the NSA turned out to be an ineffective strategy when both were exposed as liars. So, the NSA must now communicate indirectly, relying on journalists who are willing to function as mouthpieces for the agency.

Following the latest revelations about eavesdropping on the private communications of German Chancellor Angela Merkel and other foreign leaders, the Associated Press’s intelligence writer, Kimberly Dozier, offers explanations on how and why the NSA spies on U.S. allies. It’s unlikely that the answers she offers are a summation of her own deep knowledge of the way the NSA works. Much more likely, this is simply the summation of an NSA background briefing. Read this as a paraphrase of the NSA speaking for itself.

First off comes this claim: that “intercepting foreign diplomats’ or leaders’ communications, like the alleged eavesdropping on Merkel, as well as on Brazilian President Dilma Rousseff and former Mexican President Felipe Calderon” is spying that the NSA “is authorized to do”. The intended takeaway from that statement is: we didn’t break U.S. law. The question which this statement fudges, however, is whether the NSA was directed to carry out such surveillance.

Then we come to the basic question:

Q: Why bug the phone of an ally?

A: Even a close ally like Merkel doesn’t share everything with the Americans, but decisions she makes can have a major impact on U.S. foreign, defense and economic policy overseas. Merkel’s center-right Christian Democratic party just won an election, and she is in the process of wooing other German political parties to form a coalition government. The party she chooses could pull her political policies in a different direction, in terms of counterterrorism cooperation with the U.S., for instance, or perhaps the new coalition might chill Merkel’s support of the NATO mission in Afghanistan.

Say what?! The NSA needs to bug Merkel’s phone so that the U.S. can receive advance notice of the political makeup of the coalition she is forming? It can’t simply rely on conventional diplomatic and political channels of communication? That’s ridiculous — unless it’s meant to imply that the U.S. wants to covertly exercise some influence on the outcome of that political process.

I don’t actually believe that’s the implication because I don’t think anyone in Washington or at the NSA is crazy enough to imagine that the U.S. could successfully interfere in the domestic politics of its allies in this way.

There is a much simpler answer to this question and it’s offered by a career American official with long experience in Europe who spoke to the New York Times. Why bug the phone of an ally? Because you can.

The report notes: “Administration officials say the National Security Agency, in its push to build a global data-gathering network that can reach into any country, has rarely weighed the long-term political costs of some of its operations.”

By all appearances, the NSA is now in cry-baby mode and instead of acknowledging that it is suffering the effects of self-inflicted wounds, it wants to cast itself as victim. The Washington Post provides emotional support:

U.S. officials are alerting some foreign intelligence services that documents detailing their secret cooperation with the United States have been obtained by former National Security Agency contractor Edward Snowden, according to government officials.

Snowden, U.S. officials said, took tens of thousands of documents, some of which contain sensitive material about collection programs against adversaries such as Iran, Russia and China. Some refer to operations that in some cases involve countries not publicly allied with the United States.

The process of informing officials in capital after capital about the risk of disclosure is delicate. In some cases, one part of the cooperating government may know about the collaboration while others — such as the foreign ministry — may not, the officials said. The documents, if disclosed, could compromise operations, officials said.

The notifications come as the Obama administration is scrambling to placate allies after allegations that the NSA has spied on foreign leaders, including German Chancellor Angela Merkel. The reports have forced the administration to downplay operations targeting friends while also attempting to preserve other programs that depend on provisional partners. In either case, trust in the United States may be compromised.

“It is certainly a concern, just as much as the U.S. collection [against European allies] being put in the news, if not more, because not only does it mean we have the potential of losing collection, but also of harming relationships,” a congressional aide said.

The Office of the Director of National Intelligence is handling the job of informing the other intelligence services, the officials said. ODNI declined to comment.

In one case, for instance, the files contain information about a program run from a NATO country against Russia that provides valuable intelligence for the U.S. Air Force and Navy, said one U.S. official, who requested anonymity to discuss an ongoing criminal investigation. Snowden faces theft and espionage charges.

The narrative thrust here is that while the NSA is dealing with damage control, the cause of the damage was not the agency’s operations; it was Snowden’s revelations.

Instead of facing reality, the intelligence community would apparently now rather engage in a farcical exercise: present itself as victim of what it regards as the mischievous actions as a single man. The problem with this narrative (apart from the fact that it clearly misrepresents Edward Snowden’s actions) is that it actually underlines the inherent weakness of the bloated post 9/11 intelligence edifice: that is, that its weakness derives in large part from its sheer size.

As much as the actions of the NSA should be viewed in geopolitical terms, they should also be seen as the result of the beguiling power of technology. That is to say, when something is presented as being technically feasible — such as recording all the metadata associated with global communications — then that possibility becomes so alluring, that more fundamental questions get shunted to one side.

An obsession with accumulating more and more information turns into a maniacal desire. The expansion of the intelligence gathering process becomes a self-justifying, blindly funded enterprise which loses sight of basic questions about the value of the data, the means through which it can be productively analyzed, and the social and political implications of sanctioning perpetually expanding mass surveillance along with highly ill-advised targeted surveillance.

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Europe’s anger grows over alleged U.S. spying

The Los Angeles Times reports: European leaders united in outrage Thursday over reported U.S. spying, with German Chancellor Angela Merkel declaring that trust between her government and the Obama administration would need to be rebuilt after reports that U.S. intelligence agencies might have tapped her cellphone.

Amid signs of anger from close allies over mass electronic surveillance, Germany’s Foreign Ministry also summoned U.S. Ambassador John B. Emerson to make clear its displeasure. Foreign Minister Guido Westerwelle said afterward that he had demanded that “these activities that have been reported will be comprehensively investigated. We need the truth now.”

Arriving at a meeting of European Union leaders in Brussels, Merkel said she had “repeatedly made clear to the American president [that] spying among friends is absolutely not OK. I said that to him in June when he was in Berlin, also in July, and yesterday in a telephone call.

“We need trust among allies and partners,” she said. “Such trust must now be built anew.”

Her anger was matched by that of other European leaders at the 28-nation meeting. “We want the truth,” Italian Prime Minister Enrico Letta was quoted as telling reporters. “It is not in the least bit conceivable that activity of this type could be acceptable.”

Reuters adds: A delegation of lawmakers from the European Union will travel to Washington on Monday to seek a response to allegations of widespread spying by the United States against EU citizens and governments, including German Chancellor Angela Merkel.

The three-day visit by members of the European Parliament’s civil liberties committee follows reports this week that the U.S. National Security Agency accessed tens of thousands of French phone records and monitored Merkel’s mobile phone.

The revelations have drawn condemnation from EU leaders meeting in Brussels, with Merkel demanding that the United States sign up to a “no-spying” agreement with Germany and France by the end of the year, in line with similar deals with Britain and others.

The nine-member delegation will meet senior U.S. government and intelligence officials and explore “possible legal remedies for EU citizens” resulting from the alleged surveillance, although it is not clear what such remedies might entail.

The European Parliament has already opened an inquiry into the impact on Europe from leaks by former NSA contractor Edward Snowden, and has led a push for tougher data protection rules and the suspension of a major transatlantic data-sharing deal.

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Outrage over U.S. spying in Germany: ‘We have recent experience of what totalitarianism means’

The Local reports: Chancellor Angela Merkel said on Thursday it was “really not on” for allies to spy on each other as the fall-out over allegations that the US National Security Agency tapped her mobile phone continues.

“We need trust between allies and partners, and such trust needs to be restored,” she said on arrival at an EU summit in Brussels.

Germany has reacted with anger over allegations the NSA tapped Merkel’s phone. Developments on Thursday include:

-Germany summoning the US ambassador in Berlin;

-The federal prosecutor’s office in Karlsruhe, part of the Ministry of Justice, intervening by stating on Thursday lunchtime it will investigate the case;

-Merkel’s phone number found in documents leaked by NSA whistleblower Edward Snowden. According to the Welt newspaper it was her old Nokia phone number;

-Germany’s parliamentary security services committee calling a special meeting.

Merkel’s mobile phone is expected to be examined by security services on Thursday to see whether it may have been tapped and what information could have been gained from it, the Bild newspaper reported.

And the revelations have also dominated the European Union summit in Brussels which was supposed to focus on economic issues.

European Commission president Jose Manuel Barroso said, in reference to life in Communist-era East Germany, that not so long ago “there was a part of Germany where political police were spying on people’s lives daily”.

“We have recent experience of what totalitarianism means,” he said. “We know what happens when a state uses powers that intrude on people’s lives.” [Continue reading…]

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Claim on ‘attacks thwarted’ by NSA spreads despite lack of evidence

By Justin Elliott and Theodoric Meyer, ProPublica, October 23, 2013

Two weeks after Edward Snowden’s first revelations about sweeping government surveillance, President Obama shot back. “We know of at least 50 threats that have been averted because of this information not just in the United States, but, in some cases, threats here in Germany,” Obama said during a visit to Berlin in June. “So lives have been saved.”

In the months since, intelligence officials, media outlets, and members of Congress from both parties all repeated versions of the claim that NSA surveillance has stopped more than 50 terrorist attacks. The figure has become a key talking point in the debate around the spying programs.

“Fifty-four times this and the other program stopped and thwarted terrorist attacks both here and in Europe 2014 saving real lives,” Rep. Mike Rogers, a Michigan Republican who chairs the House Intelligence Committee, said on the House floor in July, referring to programs authorized by a pair of post-9/11 laws. “This isn’t a game. This is real.”

But there’s no evidence that the oft-cited figure is accurate.

Continue reading →

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Germany says U.S. may have monitored Merkel’s phone

Reuters reports: The German government has obtained information that the United States may have monitored the mobile phone of Chancellor Angela Merkel and she called President Barack Obama on Wednesday to demand an immediate clarification, her spokesman said.

In a strongly worded statement, the spokesman said Merkel had told Obama that if such surveillance had taken place it would represent a “grave breach of trust” between close allies.

“She made clear that she views such practices, if proven true, as completely unacceptable and condemns them unequivocally,” the statement read.

White House spokesman Jay Carney, responding to the news in Washington, said Obama had assured Merkel that the United States “is not monitoring and will not monitor” the communications of the chancellor.

When pressed on whether spying may have occurred in the past, a White House official declined to elaborate on the statement.

“I’m not in a position to comment publicly on every specific alleged intelligence activity,” the official said. [Continue reading…]

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American myopia: spying on allies

An editorial in the Washington Post says: In response to the serial revelations of National Security Agency (NSA) spying against allied countries, the Obama administration offers two standard explanations. One is pragmatic: sweeping up phone records and other data in places such as France and Germany is an important counterterrorism operation that protects citizens of those nations as well as Americans. The other is tinged with cynicism: Many governments spy on one another, including on their friends, so no one should be shocked to learn that the United States does it as well.

These are reasonable answers, to a point. Germany and other European countries have been home to dangerous Islamist militants, including several perpetrators of the Sept. 11, 2001, attacks. At least some of the spying on such targets is done in cooperation with European intelligence services. And France — which summoned the U.S. ambassador on Monday to express “shock” at the latest revelation of NSA data mining — is known to conduct similar operations, as well as industrial espionage sometimes aimed at U.S. targets.

There are, however, a couple of problems with the administration’s response. Some of the spying, revealed in leaks originating with NSA defector Edward Snowden, has targeted top political leaders and diplomats, including the last two presidents of Mexico, Brazilian President Dilma Rousseff and embassies and offices of the European Union. The NSA apparently scooped up e-mails and text messages of Ms. Rousseff and her top aides, as well as Mexican President Enrique Peña Nieto — something that cannot be explained away as counterterrorism.

The breezy U.S. response also overlooks the damage that revelations of spying are doing to important relationships. A furious Ms. Rousseff canceled a state visit to Washington last month and her government is now busy concocting ways to lessen U.S. leverage on the Internet, including a new encrypted e-mail service. French protests may be hypocritical, but they could also lead to demands that anti-surveillance measures be included in a proposed transatlantic trade treaty. Already the European Parliament is considering legislation that would require technology firms such as Google to consult E.U. governments before complying with U.S. warrants seeking data.

There may be justification for some of this spying. Brazil, for example, has been a problematic partner in recent years, working at cross-purposes to U.S. policy on Iran and several Latin American countries. But the potential benefits of collecting intelligence on nominally friendly leaders has to be weighed against the potential blowback if the operations are exposed — which in the Internet era has become increasingly likely. It seems unlikely that anything gleaned from Ms. Rousseff’s e-mail is worth the trouble it has caused.

Without quite conceding this point, President Obama has been suggesting that U.S. surveillance practices may need adjustment. He promised Mr. Peña Nieto an investigation into the spying and told French President François Hollande in a phone call Monday that there were “legitimate questions for our friends and allies about how these capabilities are employed.” The review that’s underway surely will not lead to an end to foreign surveillance activity, nor should it. But better political controls are needed, along with an injection of common sense.

The core issue here is not about surveillance practices per se but rather the mentality that has facilitated those practices. America continues to strut around the globe with a sense of impunity — with the attitude that its unchallenged power insulates it from any lasting harm that might be caused by offending others. In other words, the American mindset has long been and continues to be: we can get away with anything.

The U.S. can launch preemptive preventive wars, conduct extrajudicial killings, engage in kidnapping, operate secret prisons, use torture, disregard basic human rights, and spy on the rest of the world, all without constraint. Were any other country to conduct itself in the same way, it would be branded by the U.S. government as a rogue state and face all kinds of threats and sanctions. But America defines itself as exceptional.

To the extent that this grandiosity once had an objective basis, this is now rapidly evaporating. The assumption that our allies need us more than we need them will eventually no longer hold. Indeed, in many ways it does not hold now.

New regulations that could soon be approved by the European Union will force companies such as Google to seek the authorization of European data protection authorities before complying with NSA data requests on European citizens. Any company failing to comply with these regulations could face fines of 5% of global revenue. That means, based on its current revenues, Google could get fined $2-3 billion for an infraction.

The U.S. government and U.S. companies will no doubt continue to fight against the imposition of these regulations, but as much as Americans may be in the habit of scoffing at European power, the fact is America is only two-thirds the size of the EU. The megalomania of NSA chief Keith Alexander notwithstanding, the interests of 500 million people can no longer be trampled on so easily in the name of America’s national security interests.

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Thanks to Snowden, EU moves ahead with tough new data protection rules

Slate reports: Lawmakers in the European Parliament have moved to combat clandestine mass surveillance programs by voting in favor of introducing tougher new data protection rules.

On Monday, the Parliament’s civil liberties committee approved the proposed reform, laying the groundwork for a significant overhaul of Europe’s current data protection framework. The changes have been in the works for 18 months, but the former NSA contractor Edward Snowden’s disclosures about U.S. and U.K. spy programs gave new urgency to the overhaul. The newly proposed rules, which still have to be agreed upon by EU member states, would restrict how companies such as Google and Microsoft could pass data on a European citizen to a third country. Companies would have to inform people whose data were requested and get any transfer of data signed off by the data protection authority. Any company caught breaching the regulations could face large fines of up to 5 percent of their revenue, which could in some cases amount to billions of dollars.

German member of the European Parliament Jan Albrecht described the vote as “a breakthrough for data protection rules in Europe, ensuring that they are up to the task of the challenges in the digital age.” Albrecht, a vocal critic of NSA and GCHQ surveillance on the civil liberties committee, added in a statement issued Monday that the legislation would introduce “overarching EU rules on data protection, replacing the current patchwork of national laws.” [Continue reading…]

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Why the NSA’s defense of mass data collection makes no sense

Bruce Schneier writes: The basic government defense of the NSA’s bulk-collection programs — whether it be the list of all the telephone calls you made, your email address book and IM buddy list, or the messages you send your friends — is that what the agency is doing is perfectly legal, and doesn’t really count as surveillance, until a human being looks at the data.

It’s what Director of National Intelligence James R. Clapper meant when he lied to Congress. When asked, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” he replied, “No sir, not wittingly.” To him, the definition of “collect” requires that a human look at it. So when the NSA collects — using the dictionary definition of the word — data on hundreds of millions of Americans, it’s not really collecting it, because only computers process it.

The NSA maintains that we shouldn’t worry about human processing, either, because it has rules about accessing all that data. General Keith Alexander, director of the NSA, said that in a recent New York Times interview: “The agency is under rules preventing it from investigating that so-called haystack of data unless it has a ‘reasonable, articulable’ justification, involving communications with terrorists abroad, he added.”

There are lots of things wrong with this defense.

First, it doesn’t match up with U.S. law. Wiretapping is legally defined as acquisition by device, with no requirement that a human look at it. This has been the case since 1968, amended in 1986.

Second, it’s unconstitutional. The Fourth Amendment prohibits general warrants: warrants that don’t describe “the place to be searched, and the persons or things to be seized.” The sort of indiscriminate search and seizure the NSA is conducting is exactly the sort of general warrant that the Constitution forbids, in addition to it being a search by any reasonable definition of the term. The NSA has tried to secretly redefine the word “search,” but it’s forgotten about the seizure part. When it collects data on all of us, it’s seizing it.

Third, this assertion leads to absurd conclusions. [Continue reading…]

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The U.S. government’s secrecy problem just got worse

Elizabeth Goitein writes: It is no secret that the United States government has too many secrets. Long before Edward Snowden’s revelations about mass surveillance by the National Security Agency, experts and government insiders were raising alarms about “overclassification.” The Public Interest Declassification Board, an independent advisory committee created by Congress, reported in November 2012 that “present practices for classification and declassification of national security information are outmoded, unsustainable and keep too much information from the public.” Two weeks ago, the Department of Justice’s inspector general issued a review of the department’s classification practices, concluding that “DOJ is susceptible to misclassification.”

At least some of the secrecy tidal wave can be attributed to an explosion in the amount of information — of all kinds — that the government generates. Since the beginning of the modern classification system in 1940, officials have classified documents unnecessarily, whether by rote or to hide embarrassing information. In the era of typewriters and carbon copies, however, the amount of secret paperwork generated was comprehensible in scale. Today, any individual item of classified information may generate hundreds or even thousands of classified emails or intranet posts. When combined with the dramatic growth of the U.S. national security establishment, the data revolution has turned overclassification into a multi-petabyte problem. In fiscal year 2012 alone, there were more than 95 million decisions to classify information.

But the increase in secrecy is not simply quantitative; it is qualitative, too. The government has begun to advance bold new justifications for classifying information that threaten to erode the principled limits that have existed — in theory, if not always in practice — for decades. The cost of these efforts, if they remain unchecked, may be the American public’s ability to hold its government accountable. [Continue reading…]

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No NSA poster child: The real story of 9/11 hijacker Khalid al-Mihdhar

The ACLU’s Michael German writes: Since whistleblower Edward Snowden exposed the incredible scope of the government’s domestic spying programs, two different narratives are moving forward in Congress.

One, expressed most recently by Sen. Dianne Feinstein, D-Calif., in the Wall Street Journal, argues that the government’s collection of all Americans’ calling data “is necessary and must be preserved if we are to prevent terrorist attacks.”

The other, offered by Sen. Ron Wyden, D-Ore., Rep. James Sensenbrenner, R-Ohio, and others is that the Justice Department, National Security Agency and FBI have repeatedly misled members of Congress and the public about the nature of their spying programs, as well as their effectiveness, and they need to be reined in to protect Americans’ rights.

Unfortunately for Feinstein, a simple review of the facts she marshals to support her position reveals a total reliance on dubious intelligence community statements that have already been widely debunked. The actual facts make clear that the NSA doesn’t need an enormous database of everyone’s phone records to track a discrete number of terrorists — the NSA just needs to use the traditional tools it has to investigate its targets. [Continue reading…]

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