DOJ Snooping on Journalists Could Put an End to Whistleblowing
May 15, 2013 The Washington Post & AntiWar.com & CNET & The New York Times
The US Department of Justice and the FBI believe they don't need a search warrant to review Americans' e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal. An FBI investigation manual updated last year, obtained by the ACLU, says it's possible to warrantlessly obtain Americans' e-mail "without running afoul" of the Fourth Amendment.
DOJ Snooping on Journalists:
A Witch Hunt to Enforce Obama Demand for Total Secrecy John Glaser / AntiWar.com
(May 14, 2013) -- When the Iran-Contra scandal broke out, President Reagan went on national television and played dumb. He claimed he had no knowledge that high-level members of his administration were illegally selling arms to the Iranian regime and using the proceeds to fund the Nicaraguan Contra rebels, despite legislation prohibiting such aid.
It was dubious at best, but he decided that being an incompetent president who doesn't even know what's going on in his own administration was better than being blamed for willfully breaking the law.
I can't help but wonder if that scenario is playing itself out again. According to White House Press Secretary Jay Carney, President Obama didn't know anything about the Justice Department's nefarious snooping on Associated Press journalists. I find that extremely hard to believe.
According to the AP, the Justice Department monitored the work and personal phone records of more than 20 reporters and editors for months. From the very beginning of the Obama reign, there has been a war on whistleblowers, an effort to strike fear into those who might leak information to the press, a fight to make the Imperial Presidency more secret than it has ever been.
Until now, the administration seemed to brazenly parade its achievement of prosecuting more people under the Espionage Act than all previous administrations. But with this latest fiasco, the administration seems to have crossed the line: now, they are too embarrassed to admit it.
"This investigation is broader and less focused on an individual source or reporter than any of the others we've seen," said Steven Aftergood, of the Federation of American Scientists told The Washington Post. "They have swept up an entire collection of press communications. It's an astonishing assault on core values of our society."
Jacob Heilbrunn at The National Interest writes that "leaks have always plagued presidents" and that "they are a function of a national security state that has always aspired to total control in the post-World War II-era."
"It is no small irony that Obama, who declared that he would halt the George W. Bush administration's violations of personal freedoms, has exceeded the mendacity of his predecessors in creating a new star chamber to hunt down his detractors and enemies," Heilbrunn adds.
The AP: The government would not say why it sought the records. Officials have previously said in public testimony that the US attorney in Washington is conducting a criminal investigation into who may have provided information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an Al Qaeda plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.
In testimony in February, CIA Director John Brennan noted that the FBI had questioned him about whether he was AP's source, which he denied. He called the release of the information to the media about the terror plot an "unauthorized and dangerous disclosure of classified information."
... The May 7, 2012, AP story that disclosed details of the CIA operation in Yemen to stop an airliner bomb plot occurred around the one-year anniversary of the May 2, 2011, killing of Osama bin Laden.
The plot was significant both because of its seriousness and also because the White House previously had told the public it had "no credible information that terrorist organizations, including Al Qaeda, are plotting attacks in the US to coincide with the (May 2) anniversary of bin Laden's death."
... Brennan talked about the AP story and investigation in written testimony to the Senate. "The irresponsible and damaging leak of classified information was made ... when someone informed The Associated Press that the US government had intercepted an IED (improvised explosive device) that was supposed to be used in an attack and that the US government currently had that IED in its possession and was analyzing it," he wrote.
It's unsurprising that the spying program was done in response to a leak on a foreign policy issue. No area invites secrecy and spying like "national security." After all, the crowning foreign policy achievement of the Obama presidency has been, in the words of Georgetown law professor Rosa Brooks, "the unreviewable power to kill anyone, anywhere on earth, at any time, based on secret criteria and secret information discussed in a secret process by largely unnamed individuals."
Last year, the government rejected an unprecedented amount of Freedom of Information Act requests. "The administration cited exceptions built into the law to avoid turning over materials more than 479,000 times, a roughly 22 percent increase over the previous year," The Associated Press reported in March.
"We've seen a meteoric rise in the number of claims to protect secret law, the government's interpretations of laws or its understanding of its own authority," Alexander Abdo of the ACLU told the AP. "In some ways, the Obama administration is actually even more aggressive on secrecy than the Bush administration."
However "irresponsible and damaging" the leaks were in John Brennan's mind, the sweeping seizure of journalists' phone records is a far greater scandal. This was a witch-hunt to enforce the Obama administration's demands for total secrecy.
And after the leaking of internal White House and State Department emails revealing an effort to cover-up terrorist involvement in the Benghazi attacks as well as the just-released information on IRS policy of giving "special attention" to taxpayers who "criticize how the country is being run," Obama's second terms looks like its the biggest scandal of all.
WASHINGTON, DC (May 8, 2013) -- The US Department of Justice and the FBI believe they don't need a search warrant to review Americans' e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.
Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they're not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.
The US attorney for Manhattan circulated internal instructions, for instance, saying a subpoena -- a piece of paper signed by a prosecutor, not a judge -- is sufficient to obtain nearly "all records from an ISP." And the US attorney in Houston recently obtained the "contents of stored communications" from an unnamed Internet service provider without securing a warrant signed by a judge first.
"We really can't have this patchwork system anymore, where agencies get to decide on an ad hoc basis how privacy-protective they're going to be," says Nathan Wessler, an ACLU staff attorney specializing in privacy topics who obtained the documents through open government laws. "Courts and Congress need to step in."
The Justice Department's disinclination to seek warrants for private files stored on the servers of companies like Apple, Google, and Microsoft continued even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. A previously unreleased version of an FBI manual (PDF), last updated two-and-a-half years after the appellate ruling, says field agents "may subpoena" e-mail records from companies "without running afoul of" the Fourth Amendment.
The department did not respond to queries from CNET Tuesday. The FBI said in a statement that:
In all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines. Our field offices work closely with US Attorney's Office to adhere to the legal requirements of their particular districts as set forth in case law or court decisions/precedent.
Not all US attorneys have attempted to obtain Americans' stored e-mail correspondence without a warrant. The ACLU persuaded a judge to ask whether warrantless e-mail access has taken place in six of the 93 US Attorneys' offices -- including the northern California office that's prosecuted an outsize share of Internet cases. The answer, according to assistant US attorney Christopher Hardwood, was "no."
Still, the position taken by other officials -- including the authors of the FBI's official surveillance manual -- puts the department at odds with a growing sentiment among legislators who insist that Americans' private files should be protected from warrantless search and seizure. They say the same Fourth Amendment privacy standards that require police to obtain search warrants before examining hard drives in someone's living room, or a physical letter stored in a filing cabinet, should apply.
After the IRS's warrantless e-mail access policy came to light last month, a dozen Republican and Democratic senators rebuked the agency. Their letter (PDF) opposing warrantless searches by the IRS and signed by senators including Mark Udall (D-Colo.), Mike Lee (R-Utah), Rand Paul (R-Ky.), and Ron Wyden (D-Ore.) said: "We believe these actions are a clear violation of the Fourth Amendment's prohibition against unreasonable searches and seizures."
Steven Miller, the IRS' acting commissioner, said during a Senate hearing that the policy would be changed for e-mail. But he left open the possibility that non-email data -- Google Drive and Dropbox files, private Facebook and Twitter messages, and so on -- could be accessed without a warrant.
Albert Gidari, a partner at the Perkins Coie law firm who represents technology companies, said since the Sixth Circuit Court of Appeals' 2010 ruling in US v. Warshak, the Justice Department has generally sought court warrants for the content of e-mail messages, but is far less inclined to take that step for non-email files.
Before the Warshak decision, the general rule since 1986 had been that police could obtain Americans' e-mail messages that were more than 180 days old with an administrative subpoena or what's known as a 2703(d) order, both of which lack a warrant's probable cause requirement and are less privacy protective. Some e-mail providers, including Google, Microsoft, Yahoo, and Facebook, but not all, have taken the position after Warshak that the Fourth Amendment mandates warrants for e-mail all over the country.
The 180-day rule stems from the Electronic Communications Privacy Act, which was adopted in the era of telephone modems, BBSs, and UUCP links, and long before gigabytes of e-mail stored in the cloud was ever envisioned. Since then, the appeals court ruled in Warshak, technology had changed dramatically: "Since the advent of e-mail, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away... By obtaining access to someone's e-mail, government agents gain the ability to peer deeply into his activities."
A phalanx of companies, including Amazon, Apple, AT&T, eBay, Google, Intel, Microsoft, and Twitter, as well as liberal, conservative, and libertarian advocacy groups, have asked Congress to update ECPA to make it clear that law enforcement needs a warrant to access private communications and the locations of mobile devices.
In November, a Senate panel approved the e-mail warrant requirement, and acted again last month. Rep. Zoe Lofgren, a Democrat whose district includes the heart of Silicon Valley, introduced similar legislation in the House of Representatives.
The political pressure, coupled with public petitions and increased adoption of cloud-based services, has had an effect. In 2011, James Baker, the associate deputy attorney general, warned that requiring search warrants to obtain stored e-mail could have an "adverse impact" on criminal investigations. By March 2013, however, Elana Tyrangiel, an acting assistant attorney general, indicated that the department would acquiesce on some privacy reforms.
"They dropped their opposition in Congress, but they're going to try to wiggle out from under the Fourth Amendment whenever possible," says the ACLU's Wessler. "They probably realize that they couldn't figure out a way to respond to hard questions from Congress anymore."
Separately, the New York Times reported Tuesday evening that the Obama administration may embrace the FBI's proposal for a federal law mandating that tech companies build in backdoors for surveillance. CNET reported last year that the FBI has asked the companies not to oppose such legislation, and that the FBI has been building a case for a new law by collecting examples of how communications companies have stymied government agencies.
Last week, FBI former counterterrorism agent Tim Clemente told CNN that, in national security investigations, the bureau can access records of a previously-made telephone call. "All of that stuff is being captured as we speak whether we know it or like it or not," he said. Clemente added in an appearance the next day that, thanks to the "intelligence community" -- a likely reference to the National Security Agency -- "there's a way to look at digital communications in the past."
Declan McCullagh is the chief political correspondent for CNET. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site. US Weighs Wide Overhaul of Wiretap Laws Charlie Savage / The New York Times
WASHINGTON (May 7, 2013) -- The Obama administration, resolving years of internal debate, is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services, according to officials familiar with the deliberations.
The F.B.I. director, Robert S. Mueller III, has argued that the bureau’s ability to carry out court-approved eavesdropping on suspects is “going dark” as communications technology evolves, and since 2010 has pushed for a legal mandate requiring companies like Facebook and Google to build into their instant-messaging and other such systems a capacity to comply with wiretap orders.
That proposal, however, bogged down amid concerns by other agencies, like the Commerce Department, about quashing Silicon Valley innovation.
While the F.B.I.’s original proposal would have required Internet communications services to each build in a wiretapping capacity, the revised one, which must now be reviewed by the White House, focuses on fining companies that do not comply with wiretap orders.
The difference, officials say, means that start-ups with a small number of users would have fewer worries about wiretapping issues unless the companies became popular enough to come to the Justice Department’s attention.
Still, the plan is likely to set off a debate over the future of the Internet if the White House submits it to Congress, according to lawyers for technology companies and advocates of Internet privacy and freedom.
“I think the F.B.I.’s proposal would render Internet communications less secure and more vulnerable to hackers and identity thieves,” said Gregory T. Nojeim of the Center for Democracy and Technology. “It would also mean that innovators who want to avoid new and expensive mandates will take their innovations abroad and develop them there, where there aren’t the same mandates.”
Andrew Weissmann, the general counsel of the F.B.I., said in a statement that the proposal was aimed only at preserving law enforcement officials’ longstanding ability to investigate suspected criminals, spies and terrorists subject to a court’s permission.
“This doesn’t create any new legal surveillance authority,” he said. “This always requires a court order. None of the ‘going dark’ solutions would do anything except update the law given means of modern communications.”
A central element of the F.B.I.’s 2010 proposal was to expand the Communications Assistance for Law Enforcement Act — a 1994 law that already requires phone and network carriers to build interception capabilities into their systems — so that it would also cover Internet-based services that allow people to converse. But the bureau has now largely moved away from that one-size-fits-all mandate.
Instead, the new proposal focuses on strengthening wiretap orders issued by judges. Currently, such orders instruct recipients to provide technical assistance to law enforcement agencies, leaving wiggle room for companies to say they tried but could not make the technology work.
Under the new proposal, providers could be ordered to comply, and judges could impose fines if they did not. The shift in thinking toward the judicial fines was first reported by The Washington Post, and additional details were described to The New York Times by several officials who spoke on the condition of anonymity.
Under the proposal, officials said, for a company to be eligible for the strictest deadlines and fines — starting at $25,000 a day — it must first have been put on notice that it needed surveillance capabilities, triggering a 30-day period to consult with the government on any technical problems.
Such notice could be the receipt of its first wiretap order or a warning from the attorney general that it might receive a surveillance request in the future, officials said, arguing that most small start-ups would never receive either.
Michael Sussmann, a former Justice Department lawyer who advises communications providers, said that aspect of the plan appeared to be modeled on a British law, the Regulation of Investigatory Powers Act of 2000.
Foreign-based communications services that do business in the United States would be subject to the same procedures, and would be required to have a point of contact on domestic soil who could be served with a wiretap order, officials said.
Albert Gidari Jr., who represents technology companies on law enforcement matters, criticized that proposed procedure. He argued that if the United States started imposing fines on foreign Internet firms, it would encourage other countries, some of which may be looking for political dissidents, to penalize American companies if they refused to turn over users’ information.
“We’ll look a lot more like China than America after this,” Mr. Gidari said.
The expanded fines would also apply to phone and network carriers, like Verizon and AT&T, which are separately subject to the 1994 wiretapping capacity law. The FBI has argued that such companies sometimes roll out system upgrades without making sure that their wiretap capabilities will keep working.
The 1994 law would be expanded to cover peer-to-peer voice-over-Internet protocol, or VoIP — calls between computers that do not connect to the regular phone network. Such services typically do not route data packets through any central hub, making them difficult to intercept.
The F.B.I. has abandoned a component of its original proposal that would have required companies that facilitate the encryption of users’ messages to always have a key to unscramble them if presented with a court order.
Critics had charged that such a law would create back doors for hackers. The current proposal would allow services that fully encrypt messages between users to keep operating, officials said.
In November 2010, Mr. Mueller toured Silicon Valley and briefed executives on the proposal as it then existed, urging them not to lobby against it, but the firms have adopted a cautious stance. In February 2011, the F.B.I.’s top lawyer at the time testified about the “going dark” problem at a House hearing, emphasizing that there was no administration proposal yet. Still, several top lawmakers at the hearing expressed skepticism, raising fears about innovation and security.
Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.