Category Archives: privacy

National Security State: FBI and DHS warn Congress about the domestic threat

The Washington Post reports: FBI Director James B. Comey testified Thursday that the risk of cyberattacks is likely to exceed the danger posed by al-Qaeda and other terrorist networks as the top national security threat to the United States and will become the dominant focus of law enforcement and intelligence services.

Appearing before the Senate Homeland Security Committee, Comey said he expected Internet-related attacks, espionage and theft to emerge as the most consuming security issue for the United States by the end of his 10-year FBI term.

“We have connected all of our lives — personal, professional and national — to the Internet,” Comey said. “That’s where the bad guys will go because that’s where our lives are, our money, our secrets.”

The warning underscored the growing sense of alarm among officials in Washington over the nation’s vulnerability to online attacks as well as the diminished ability of al-Qaeda to mount plots against the United States after more than a decade of CIA drone strikes and other counterterrorism operations.

Rand Beers, the acting homeland security secretary, said his agency is working with European allies to identify and track militants from Western nations who may travel to Syria and then seek to return.

Despite that potential danger, officials said that the main terrorist threat inside the United States is that U.S. citizens or residents could adopt militant ideologies and develop plans for domestic attacks without communicating with terrorist networks or traveling overseas.

Tamerlan and Dzhokhar Tsarnaev, ethnic Chechen brothers accused of carrying out the bombings at the Boston Marathon this year, had “no formal or direct ties to al-Qaeda” but had embraced aspects of the terrorist group’s ideology, Olsen said. He added that cooperation with Russian intelligence services has improved since the Boston attacks.

The officials said counterterrorism efforts had been damaged by leaks of U.S. intelligence operations by former National Security Agency contractor Edward Snowden, and they warned of the impact of the budget cuts known as sequestration. Comey said the FBI is in the process of eliminating 3,500 positions because of budget pressures.

Despite concern about “homegrown extremists,” Comey said that he had concluded after just two months on the job that cyberthreats are likely to be more worrisome in the long term.

“That is why we anticipate that in the future, resources devoted to cyber-based threats will equal or even eclipse the resources devoted to non-cyber-based terrorist threats,” Comey said.

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NSA practices could inspire a global boom in intrusive surveillance

MIT Technology Review: Reports of the National Security agency’s surveillance programs based on documents leaked by Edward Snowden have been embarrassing for some, enraging to others. But to governments and security services in developing economies they will prove inspirational, according to a report (PDF) from the University of Toronto’s Citizen Lab, which studies online security and privacy.

The report warns that governments that already impose authoritarian controls on the Internet, such as China, India, and Saudi Arabia, may now seek to boost those efforts with NSA-style bulk collection programs that trample on civil liberties.

Ron Deibert, director of Citizen Lab, writes in the report that:

“No doubt one implication of Snowden’s revelations will be the spurring on of numerous national efforts to regain control of information infrastructures through national competitors to Google, Verizon, and other companies implicated, not to mention the development of national signals intelligence programs that attempt to duplicate the US model.”

Deibert says that many companies already face “complex” and “frustrating” requests from “newly emerging markets” for data on their users. He believes that the NSA revelations will cause those to become even more common, with unwelcome results. [Continue reading…]

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Al Gore: Snowden ‘revealed evidence’ of crimes against U.S. constitution

The Guardian reports: Former US vice-president Al Gore has described the activities of the National Security Agency as “outrageous” and “completely unacceptable” and said whistleblower Edward Snowden has “revealed evidence” of crimes against the US constitution.

Gore, speaking Tuesday night at McGill University in Montreal, said he was in favour of using surveillance to ensure national security, but Snowden’s revelations showed that those measures had gone too far.

“I say that as someone who was a member of the National Security Council working in the White House and getting daily briefings from the CIA,” Gore said, in comments reported by the Canadian Press.

Gore had previously said he believed the practice of the NSA collecting US citizens phone records was unlawful and “not really the American way”, but his comments on Tuesday represent his strongest criticism yet. [Continue reading…]

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Why the NSA’s ‘we keep you safe from terrorists’ rationale is bogus

Micah Zenko writes: When National Security Agency (NSA) contractor Edward Snowden first revealed himself in a video interview five months ago as the source of leaked documents exposing the NSA’s collection of phone and data records of U.S. citizens, he noted: “The greatest fear that I have regarding the outcome for America of these disclosures is that nothing will change.”

Despite the rapid pace of the NSA revelations, the subsequent claims and counterclaims of U.S. officials (and the fact that nobody possesses the policy, technical, operational, and legal background required to accurately characterize these stories and place them within a proper historical and global context), there’s still one thing that can no longer be denied: The Snowden-supplied documents have instigated a global conversation about U.S. surveillance that will undoubtedly result in changes to the scope and conduct of certain NSA programs. And in fact, it’s happening already.

Within the last week alone we have learned that the Obama administration authorized an internal review that brought to light the existence of a program used to spy on numerous world leaders, including German Chancellor Angela Merkel. (This investigation complements an independent review of U.S. surveillance efforts conducted by former officials and experts, which will present its findings by year’s end.) Even the staunch defender of the NSA, Senate Select Committee on Intelligence chair Sen. Dianne Feinstein, announced: “the committee will initiate a major review into all intelligence collection programs.” Secretary of State John Kerry admitted that U.S. electronic surveillance was “on an automatic pilot because the technology is there,” and “in some cases, it has reached too far inappropriately.” And for the first time since the Snowden leaks, White House spokesperson Jay Carney acknowledged the agency’s overreach saying, “We recognize that there need to be additional constraints on how we gather and use intelligence.”

Yet, Snowden’s most meaningful and enduring impact will not be prompting U.S. electronic surveillance policy reform. Rather, what these five post-Snowden months have demonstrated is that inflating terrorist threats to justify expansive and invasive executive branch powers no longer resonates with the general public or most policymakers. That default appeal to 9/11 and vague warnings of terrorism that Bush and Obama administration officials relied upon to shape opinions and silence critics is no longer sufficient or acceptable.

Still, intelligence officials continue to defend the NSA as just another federal agency dedicated solely to protecting American citizens from terrorism. In his opening testimony before the House Permanent Intelligence Committee last week, NSA Director Gen. Keith Alexander re-used this same old trope:

“First, how did we get here? How did we end up here? 9/11 — 2,996 people were killed in 9/11. We all distinctly remember that. What I remember the most was those firemen running up the stairs to save people, to there themselves lose their lives. We had this great picture that was created afterward of a fireman handing a flag off to the military, and I’d say the intelligence community, and the military and the intelligence community said: ‘We’ve got it from here.'”

Sorry, Keith: the NSA was not created on Sept. 12, 2001, but came into existence on Nov. 4, 1952. [Continue reading…]

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NSA official cites ‘stop and frisk’ in effort to explain searches of phone records

McClatchy reports: The general counsel of the National Security Agency on Monday compared the agency’s telephone metadata collection program to the highly controversial “stop-and-frisk” practice used by law enforcement officers, saying the agency uses that same standard to choose which phone numbers to query in its database.

“It’s effectively the same standard as stop-and-frisk,” Rajesh De said in an attempt to explain the evidentiary use of “reasonable and articulable suspicion” to identify which phone numbers to target from the agency’s huge database of stored cellphone records.

De made the comment during a rare hearing of an obscure government body, the Privacy and Civil Liberties Oversight Board, which Congress created in 2004 to oversee the government’s expanded intelligence collection operations but which until Monday had never held a substantive hearing.

De’s comparison was perhaps unfortunate. Stop and frisk, after all, is the subject of its own string of controversies. A federal judge ruled in August that the New York City Police Department had used racial profiling in its stops and disproportionately targeted blacks and Latinos. Last month, a video of a Philadelphia police officer stopping and frisking a young black male went viral on YouTube. Complaints about stop and frisk have reached a crescendo among civil liberties groups. The American Civil Liberties Union recently said the practices “raise serious concerns over racial profiling, illegal stops and privacy rights.”

Sensing that De may have opened a new door of debate, Robert Litt, the general counsel of the Office of the Director of National Intelligence, noted that the NSA’s dive into phone metadata, which includes numbers called and the length of calls, is “considerably less” intrusive than a physical search. [Continue reading…]

Hmmm… Less intrusive? Would that be in the same sense as House Intel Committee Chair Rep. Mike Rogers’ claim that “you can’t have your privacy violated if you don’t know your privacy is violated, right?”?

I guess one could say a pick-pocket isn’t intrusive if he manages to steal your wallet but you don’t realize you were robbed.

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Fear of al Qaeda has become more harmful than al Qaeda

David Rohde writes: Three disclosures this week show that the United States is losing its way in the struggle against terrorism. Sweeping government efforts to stop attacks are backfiring abroad and infringing on basic rights at home.

CIA drone strikes are killing scores of civilians in Pakistan and Yemen. The National Security Agency is eavesdropping on tens of millions of phone calls worldwide — including those of 35 foreign leaders — in the name of U.S. security.

And the Department of Homeland Security is using algorithms to “prescreen” travelers before they board domestic flights, reviewing government and private databases that include Americans’ tax identification numbers, car registrations and property records.

Will we create a Minority Report-style Department of Precrime next?

Obama administration officials have a duty to protect Americans from terrorism. But out-of-control NSA surveillance, an ever-expanding culture of secrecy and still-classified rules for how and when foreigners and even Americans can be killed by drone strikes are excessive, unnecessary and destructive.

Twelve years after September 11, 2001, the United States’ obsession with al Qaeda is doing more damage to the nation than the terrorist group itself. [Continue reading…]

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Congressional inaction prompts states to take up issue of privacy law

The New York Times reports: State legislatures around the country, facing growing public concern about the collection and trade of personal data, have rushed to propose a series of privacy laws, from limiting how schools can collect student data to deciding whether the police need a warrant to track cellphone locations.

Over two dozen privacy laws have passed this year in more than 10 states, in places as different as Oklahoma and California. Many lawmakers say that news reports of widespread surveillance by the National Security Agency have led to more support for the bills among constituents. And in some cases, the state lawmakers say, they have felt compelled to act because of the stalemate in Washington on legislation to strengthen privacy laws.

“Congress is obviously not interested in updating those things or protecting privacy,” said Jonathan Stickland, a Republican state representative in Texas. “If they’re not going to do it, states have to do it.”

For Internet companies, the patchwork of rules across the country means keeping a close eye on evolving laws to avoid overstepping. Many companies have an internal team to deal with state legislation. And the flurry of legislation has led some companies, particularly technology companies, to exert their lobbying muscles — with some success — when proposed measures stand to harm their bottom lines.

“It can be counterproductive to have multiple states addressing the same issue, especially with online privacy, which can be national or an international issue,” said Michael D. Hintze, chief privacy counsel at Microsoft, who added that at times it can create “burdensome compliance.” For companies, it helps that state measures are limited in their scope by a federal law that prevents states from interfering with interstate commerce.

This year, Texas passed a bill introduced by Mr. Stickland that requires warrants for email searches, while Oklahoma enacted a law meant to protect the privacy of student data. At least three states proposed measures to regulate who inherits digital data, including Facebook passwords, when a user dies. [Continue reading…]

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The real privacy problem

Evgeny Morozov writes: In 1967, The Public Interest, then a leading venue for highbrow policy debate, published a provocative essay by Paul Baran, one of the fathers of the data transmission method known as packet switching. Titled “The Future Computer Utility,” the essay speculated that someday a few big, centralized computers would provide “information processing … the same way one now buys electricity.”

Our home computer console will be used to send and receive messages—like telegrams. We could check to see whether the local department store has the advertised sports shirt in stock in the desired color and size. We could ask when delivery would be guaranteed, if we ordered. The information would be up-to-the-minute and accurate. We could pay our bills and compute our taxes via the console. We would ask questions and receive answers from “information banks”—automated versions of today’s libraries. We would obtain up-to-the-minute listing of all television and radio programs … The computer could, itself, send a message to remind us of an impending anniversary and save us from the disastrous consequences of forgetfulness.

It took decades for cloud computing to fulfill Baran’s vision. But he was prescient enough to worry that utility computing would need its own regulatory model. Here was an employee of the RAND Corporation—hardly a redoubt of Marxist thought—fretting about the concentration of market power in the hands of large computer utilities and demanding state intervention. Baran also wanted policies that could “offer maximum protection to the preservation of the rights of privacy of information”:

Highly sensitive personal and important business information will be stored in many of the contemplated systems … At present, nothing more than trust—or, at best, a lack of technical sophistication—stands in the way of a would-be eavesdropper … Today we lack the mechanisms to insure adequate safeguards. Because of the difficulty in rebuilding complex systems to incorporate safeguards at a later date, it appears desirable to anticipate these problems.

Sharp, bullshit-free analysis: techno-futurism has been in decline ever since.

To read Baran’s essay (just one of the many on utility computing published at the time) is to realize that our contemporary privacy problem is not contemporary. It’s not just a consequence of Mark Zuckerberg’s selling his soul and our profiles to the NSA. The problem was recognized early on, and little was done about it. [Continue reading…]

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Too many Americans believe all means are justifiable in the fight against terrorism

Stephan Richter and Jan Philipp Albrecht write: The latest wave of spying scandals should prompt close scrutiny of the often bizarre mechanisms that shape the transatlantic relationship. There are of course numerous European transatlantic apologists. For them, any hint of holding the US accountable as a responsible global power goes out the window. Such lofty talk is reserved for China.

And then there is a group of largely American analysts, diplomats and journalists who make a point of challenging the Europeans on any point of principle. Their mantra goes: everyone spies on everyone – what else did you expect? They regard Europeans collectively as naive, not cut out for the tough world that’s out there.

What gets lost in all this is the root cause of the current scandals. It is decidedly not that Europeans live on Venus. It is the catastrophic lack of effective checks and balances in the US.

In one sense the spying revelations show that other nations have little to complain about. They are, after all, not being treated any worse by US authorities than American citizens themselves.

What the European unease, at both the popular and senior political levels, highlights, however, is the big difference between the US and Europe. Europeans still operate under the assumption that it is critical to uphold the rule of law. The US government is more than flexible with the rule of law by turning any notion of privacy into Swiss cheese. The dangerous implications this holds for the core ideas of democracy are obvious.

But it isn’t just that the US government has undermined the rule of law at home. It is that American citizens themselves, to a stunningly large extent, have bought into the notion that the “war on terror” and “Islamic extremism” justify all means. Their acquiescence, if not active tolerance, is what allows Washington to operate above the law, from drones to routinely spying on the German chancellor, Angela Merkel, and the Spanish people, to name but a few of the targets. [Continue reading…]

To be blunt, what this boils down to is America’s ill-conceived response to 9/11.

No doubt, the attacks were devastating to those directly affected and had a traumatic effect on the whole nation. Yet the appropriate function of political leadership in a democratic country at such a moment was not to channel and amplify collective fear; neither was it to allow fear to legitimize a desire for revenge; nor was there a need for trumpeting American pride.

The need at that moment was to express grief, clean up the mess, and take stock. The need above all was for an expression of wisdom, not power.

Al Qaeda’s goal was to trigger an over-reaction which would itself then serve as a global rallying cry for jihad. George Bush and Dick Cheney rose straight for the bait without a moment’s hesitation. They delivered a simple-minded response — a war on terrorism — for a nation that had forgotten how to think straight.

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NSA oversight dismissed as ‘illusory’ as anger intensifies in Europe and beyond

The Guardian reports: The Obama administration’s international surveillance crisis deepened on Monday as representatives from a Latin American human rights panel told US diplomats that oversight of the programs was “illusory”.

Members of the Inter-American Commission on Human Rights, an arm of the Organization of American States, expressed frustration and dissatisfaction with the National Security Agency’s mass surveillance of foreign nationals – something the agency argues is both central to its existence and necessary to prevent terrorism.

“With a program of this scope, it’s obvious that any form of control becomes illusory when there’s hundreds of millions of communications that become monitored and surveilled,” said Felipe Gonzales, a commissioner and Chilean national.

“This is of concern to us because maybe the Inter-American Committee on Human Rights may become a target as well of surveillance,” said Rodrigo Escobar Gil, a commissioner and Colombian citizen.

Frank La Rue, the United Nations special rapporteur on the right to freedom of opinion and expression, told the commission that the right to privacy was “inextricably linked” to free expression.

“What is not permissible from a human rights point of view is that those that hold political power or those that are in security agencies or, even less, those in intelligence agencies decide by themselves, for themselves, what the scope of these surveillance activities are, or who will be targeted, or who will be blanked surveilled,” La Rue said.

While the US sent four representatives to the hearing, they offered no defence, rebuttal or elaboration about bulk surveillance, saying the October government shutdown prevented them from adequate preparation. “We are here to listen,” said deputy permanent representative Lawrence Gumbiner, who pledged to submit written responses within 30 days. [Continue reading…]

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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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The information-gathering paradox

The New York Times reports: Consumer trust is a vital currency for every big Internet company, which helps to explain why the giants of Silicon Valley have gone to great lengths in recent months to show how hard they are fighting back against government surveillance. Companies have released transparency reports, many for the first time, enumerating how many times law enforcement agencies demand user data; their executives have issued blistering statements; and several firms, including Facebook and Google, have filed lawsuits in a bid to reveal more about secret government orders.

All the while, though, a central contradiction has become ever harder to conceal. The Internet industry, having nudged consumers to share heaps of information about themselves, has built a trove of personal data for government agencies to mine — erecting, perhaps unintentionally, what Alessandro Acquisti, a Carnegie Mellon University behavioral economist, calls “the de facto infrastructure of surveillance.”

Nearly five months after Edward J. Snowden, the former National Security Agency contractor, went public with classified documents detailing the agency’s widespread spying, the Internet industry has only sharpened its efforts to track users online, which it considers essential to profitability. Behaviorally targeted advertising is the principal revenue source for a host of online companies.

Earlier this month Google announced plans to feature users’ names, photos and posts to promote products in Web ads. Facebook recently expanded its search offerings and made it harder to hide from strangers trying to find you. Meanwhile, digital advertising networks are developing sophisticated new ways to track consumers on cellphones, gleaning intimate insights into who you are and what you like. And Twitter, which recently announced plans for a public offering, has partnered with a company that tracks whether ads on Twitter can influence what you buy offline.

Commercial surveillance has been booming in recent months. “It’s certainly striking to hear the companies’ use of fiery rhetoric to criticize mass collection of bulk data since they themselves are engaging in mass collection of bulk data,” said Woodrow Hartzog, who teaches privacy law at Samford University in Birmingham, Ala. “The N.S.A. targeting has done nothing to dampen the appetite of private entities for information.” [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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Mozilla Lightbeam reveals who’s watching you online

Evan Dashevsky writes: You are being stalked, right now, at this very moment. And by that, I mean your personal information is considered a very hot commodity among people you have never even met.

We all leave behind little bits of personal information with every new new step in our digital footprint: What sites we visit, what searches we conduct, what links we follow, and so on. Collecting that information is big business. Every time you visit a website—even this one—a ripple of data is sent through the Internet, often without our knowledge and sometimes without our consent. Lightbeam, a visually striking new add-on from Mozilla, helps illuminate the sometimes-invisible connections that weave our digital lives.

Firefoxers can find the Lightbeam add-on here. Once installed, users will find the Lightbeam logo in the bottom right of the browser. Clicking it will open a new tab with three visualization options: Graph, Clock, and List.

The default Graph option creates an zoomable, interactive visualization of your Web activity. Every time you voluntarilly visit a site, Lightbeam records this hit with a circle icon. Lightbeam assigns a triangle icon for every third-party site actively sucking data from the page you visited. Each site you visit is visually connected with a drawn line; a purple line means that a cookie is involved in the data transfer. Each site icon will be sized according to the amount of connections, and each icon will be closer to other icons depending on how many connections they share. [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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How the NSA and FBI foil weak oversight

Yochai Benkler writes: Over 20 congressional bills aim to address the crisis of confidence in NSA surveillance. With Patriot Act author and Republican Congressman Jim Sensenbrenner working with Vermont Democratic Senator Patrick Leahy on a bipartisan proposal to put the NSA’s metadata program “out of business“, we face two fundamentally different paths on the future of government surveillance.

One, pursued by the intelligence establishment, wants to normalize and perpetuate its dragnet surveillance program with as minimal cosmetic adjustments as necessary to mollify a concerned public. The other challenges the very concept that dragnet surveillance can be a stable part of a privacy-respecting system of limited government.

Pervasive surveillance proponents make two core arguments.

First, bulk collection saves Americans from foreign terrorists. The problem with this argument is that all publicly available evidence presented to Congress, the judiciary, or independent executive branch review suggests that the effect of bulk collection has been marginal. Perhaps, this paucity of evidence is what led General Alexander and other supporters to add cyber security as a backup exigency to justify the program.

The second argument that defenders of mass surveillance offer is that detailed, complex and faithfully-executed rules for how the information that is collected will be used are adequate replacements for what the fourth amendment once quaintly called “probable cause” and a warrant “particularly describing the place to be searched, and the persons or things to be seized”. The problem with this second argument is that it combines two fundamentally incompatible elements.

Mass surveillance represents a commitment to near-universal all-seeing gaze, so as to assess and respond to threats that can arise anywhere, at any time. Privacy as a check on government power represents a constitutional judgment that a limited government must have limited power to inspect our daily lives, and that an omniscient government is too powerful for mere rules to restrain. The experience of the past decade confirms this incompatibility. Throughout its lifetime, NSA dragnet surveillance has repeatedly and persistently violated any rules in place meant to constrain it. [Continue reading…]

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