Brindle

It hasn't been a good time for NSA defenders lately, with a court calling the program unconstitutional and the White House's own "independent task force" highlighting serious problems with the programs, and recommending some fairly major changes. This has resulted in many of us suggesting that, at this point, it's kind of crazy to argue that Ed Snowden did something wrong, and rather he should be welcomed back as a hero. After all, he exposed a secret program that has been called unconstitutional. Isn't that the very definition of a whistleblower?

However, it seems the visceral hatred of Snowden has only ratcheted up a notch with two top former officials flat out saying that Snowden should be hanged. This is oddly specific (and ridiculously antiquated). First up, we have former CIA director (under Bill Clinton), James Woolsey who said Snowden should be hanged:

"I think giving him amnesty is idiotic,” said Woolsey, who ran the CIA from 1993 to 1995. “He should be prosecuted for treason. If convicted by a jury of his peers, he should be hanged by his neck until he is dead."

Then there's John Bolton, former ambassador to the UN, who similarly attacked the idea of amnesty, while arguing Snowden should be hanged:

"I must say absent some other important piece of information, it has to be one of the dumbest things that I've seen in a long time, to be speculating about it publicly, even if they are contemplating a deal with Snowden some kind of amnesty," Bolton said. "The last thing that people ought to be doing is speculating about it publicly. It will inevitably make it a political football and enhance Snowden's bargaining power."

Bolton continued, "My view is that Snowden committed treason, he ought to be convicted of that, and then he ought to swing from a tall oak tree. But even if you don’t believe that, if you’re gonna say anything publicly, that is closer to what you should be saying to enhance our own bargaining leverage."

The similarity of both comments -- both attacking the idea of amnesty, and focusing on the very specific punishment they're salivating over concerning Snowden, certainly hints at a series of insane talking points being passed around among extreme security state apologists. I expect we'll see more like this. I'm curious, though, how either of these guys can continue making these claims given everything else that's been happening.

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Barton Gellman, one of the three reporters who received the original stash of documents from Ed Snowden apparently just spent some time in Russia with Snowden, and has published a fantastic interview with Snowden, weaving in various other parts of the story of everything that's happened concerning the NSA and surveillance over the past few months. It's well worth reading in its entirety (so go check it out), but we'll highlight a few key points -- many of which further debunk the claims of the NSA's defenders.

On the question of his motivations, he's clear:

"I didn't want to change society. I wanted to give society a chance to determine if it should change itself."

"All I wanted was for the public to be able to have a say in how they are governed," he said. "That is a milestone we left a long time ago. Right now, all we are looking at are stretch goals."

This is entirely consistent with what he's claimed in the past about his motives. People who keep trying to make something more of his intent have yet to show any evidence to support their wild conspiracy theories.

On the repeated claim that Snowden "broke his oath," this point has been long debunked. Former covert CIA operative, now author, Barry Eisler had debunked that one within days of Snowden revealing himself, but still people repeat that myth. Snowden more or less repeats exactly what Eisler had said back in June:

In his interview with The Post, Snowden noted matter-of-factly that Standard Form 312, the ­classified-information nondisclosure agreement, is a civil contract. He signed it, but he pledged his fealty elsewhere.

“The oath of allegiance is not an oath of secrecy,” he said. “That is an oath to the Constitution. That is the oath that I kept that Keith Alexander and James Clapper did not.”

Indeed.

On the question of whether or not he is trying to "bring down the NSA," his response is quite similar to what plenty of people have said concerning the claim that Snowden is "against America." Working to improve and reform something isn't being against it -- quite the opposite:

“I am not trying to bring down the NSA, I am working to improve the NSA,” he said. “I am still working for the NSA right now. They are the only ones who don’t realize it.”

Perhaps the most interesting sections reveal that, contrary to the claims of many -- including House Intelligence Committee boss Rep. Mike Rogers just two days ago, Snowden notes that he tried multiple times to raise his concerns internally, to no avail.

Beginning in October 2012, he said, he brought his misgivings to two superiors in the NSA’s Technology Directorate and two more in the NSA Threat Operations Center’s regional base in Hawaii. For each of them, and 15 other co-workers, Snowden said he opened a data query tool called BOUNDLESSINFORMANT, which used color-coded “heat maps” to depict the volume of data ingested by NSA taps.

His colleagues were often “astonished to learn we are collecting more in the United States on Americans than we are on Russians in Russia,” he said. Many of them were troubled, he said, and several said they did not want to know any more.

“I asked these people, ‘What do you think the public would do if this was on the front page?’ ” he said. He noted that critics have accused him of bypassing internal channels of dissent. “How is that not reporting it? How is that not raising it?” he said.

By last December, Snowden was contacting reporters, although he had not yet passed along any classified information. He continued to give his colleagues the “front-page test,” he said, until April.

In the interview, he gives at least one other example of him raising a concern -- this time about how easy it was to take documents without anyone noticing, saying he pushed for two-man control -- the security setup that the NSA has finally started implementing because of Snowden's situation. In other words, he blew the whistle internally on this massive security flaw, noting how it could be used for actual espionage, and when that failed to do anything, he used the same flawed security he warned about to leak a bunch of documents to the public.

The NSA, when contacted about these claims, had a spokesperson say that "there is no record of these conversations," which is the sort of cop out you'd expect from the NSA. It doesn't mean they didn't happen.

Snowden has a good response to the silly argument that tech companies collect all sorts of data on users as well, so why is anyone worried about the government doing the same thing:

At the NSA, he said, “there are people in the office who joke about, ‘We put warheads on foreheads.’ Twitter doesn’t put warheads on foreheads.”

Separately, Snowden notes that a key reason for the American war for independence was to rid ourselves of "general warrants" from England, allowing vast suspicionless searches, and he notes it's difficult to see how that's different than the authority the FISA Court now grants the NSA:

Snowden likened the NSA’s powers to those used by British authorities in Colonial America, when “general warrants” allowed for anyone to be searched. The FISA court, Snowden said, “is authorizing general warrants for the entire country’s metadata.”

“The last time that happened, we fought a war over it,” he said.

While there had been various reports that Snowden had set up a dead man's switch, to reveal documents in the event of his untimely demise, Snowden himself explained to Gellman why that would be stupid:

Some news accounts have quoted U.S. government officials as saying Snowden has arranged for the automated release of sensitive documents if he is arrested or harmed. There are strong reasons to doubt that, beginning with Snowden’s insistence, to this reporter and others, that he does not want the documents published in bulk.

If Snowden were fool enough to rig a “dead man’s switch,” confidants said, he would be inviting anyone who wants the documents to kill him.

Asked about such a mechanism in the Moscow interview, Snowden made a face and declined to reply. Later, he sent an encrypted message. “That sounds more like a suicide switch,” he wrote. “It wouldn’t make sense.”

On the claim that many have been making that he "defected" to Russia, Snowden points out that Russia was not where he intended to go at all, and he wouldn't be there if the US hadn't pulled his passport as he was traveling to Latin America. He insisted that he has no relationship with the Russian government at all, and explained:

“If I defected at all,” Snowden said, “I defected from the government to the public.”

I'm sure Snowden critics will dismiss pretty much all of this, but the thing that's telling to me is that it's almost entirely consistent with what he's said in the past and what all the evidence has shown so far. It's possible that he can keep up a charade for so long, but most people who are telling that kind of story slip and slip repeatedly, and Snowden doesn't seem to be slipping at all.

Oh and as for that silly prediction from former CIA and NSA boss Michael Hayden that Snowden was likely to become an alcoholic who was "isolated, bored, lonely and depressed"? None of that seems to be happening. Snowden describes how he spends much of his time online, communicating with others and following the latest news. As for the silly based-on-nothing alcoholism prediction?

To this, Snowden shrugged. He does not drink at all. Never has.

There's a lot more in there that's worth reading. Go check it out.

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There seems to be a new talking point from government officials since a federal judge ruled NSA surveillance is likely unconstitutional last week: if Edward Snowden thinks he's a whistleblower, he should come back and stand trial.

National Security Advisor Susan Rice said on 60 Minutes Sunday, “We believe he should come back, he should be sent back, and he should have his day in court.” Former CIA deputy director Mike Morell made similar statements this weekend, as did Rep. Mike Rogers (while also making outright false claims about Snowden at the same time). Even NSA reform advocate Sen. Mark Udall said, "He ought to stand on his own two feet. He ought to make his case. Come home, make the case that somehow there was a higher purpose here.”

These statements belie a fundamental misunderstanding about how Espionage Act prosecutions work.

If Edward Snowden comes back to the US to face trial, it is likely he will not be able to tell a jury why he did what he did, and what happened because of his actions. Contrary to common sense, there is no public interest exception to the Espionage Act. Prosecutors in recent cases have convinced courts that the intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant—and are therefore inadmissible in court.

This is why rarely, if ever, whistleblowers go to trial when they’re charged under the Espionage Act, and why the law—a relic from World War I—is so pernicious. John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States.

In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)

The same scenario just played out in the Chelsea Manning trial this summer. Manning's defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible until sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.

If the same holds true in Snowden’s case, the administration will be able to exclude almost all knowledge beneficial to his case from a jury until he’s already been found guilty of felonies that will have him facing decades, if not life, in jail.

This would mean Snowden could not be able to tell the jury that his intent was to inform the American public about the government’s secret interpretations of laws used to justify spying on millions of citizens without their knowledge, as opposed to selling secrets to hostile countries for their advantage.

If the prosecution had their way, Snowden would also not be able to explain to a jury that his leaks sparked more than two dozen bills in Congress, and half a dozen lawsuits, all designed to rein in unconstitutional surveillance. He wouldn’t be allowed to explain how his leaks caught an official lying to Congress, that they’ve led to a White House review panel recommending forty-six reforms for US intelligence agencies, or that they've led to an unprecedented review of government secrecy. He wouldn't be able to talk about the sea change in the public's perception of privacy since his leaks, or the fact that a majority of the public considers him a whistleblower.

He might not even be able to bring up the fact that a US judge ruled that surveillance he exposed was ruled to likely be unconstitutional.

The jury would also not be able to hear how there’s been no demonstrable harm to the United States since much of this information has been published. And if the prosecution was able to prove there was some harm to the US, Snowden wouldn’t be able to explain that the enormous public benefits of these disclosures far outweighed any perceived harm.

Every American should be outraged that leakers and whistleblowers are being prosecuted under an espionage statute without ever having to show they meant to harm the U.S. or that any harm actually occurred. Given there are two dozen bills calling for the reform of the NSA in the wake of Snowden's revelations, there should also be reform of the Espionage Act, so it cannot be used by the government as a sword to protect itself from accountability.

Cross posted with permission, from Freedom of the Press Foundation

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We already covered Barton Gellman's fascinating interview with Ed Snowden, but there are some other interesting tidbits I wanted to cover in separate posts. In particular, Gellman reveals, via an anonymous source, that Director of National Intelligence, James Clapper, has admitted in private that he's not actually too concerned about terrorists changing their communications habits in the wake of the Snowden revelations. Basically, he recognizes that there are lots of ways to track and to find terrorists, and if they want to communicate efficiently, sooner or later they're going to trip up and reveal themselves:

Clapper has said repeatedly in public that the leaks did great damage, but in private he has taken a more nuanced stance. A review of early damage assessments in previous espionage cases, he said in one closed-door briefing this fall, found that dire forecasts of harm were seldom borne out.

“People must communicate,” he said, according to one participant who described the confidential meeting on the condition of anonymity. “They will make mistakes, and we will exploit them.”

Of course, this is quite different than the influx of reports from reporters quoting "anonymous administration officials" in late June, who kept insisting that the NSA was somehow damaged beyond all belief because terrorists were changing how they communicated. That was clearly overblown from the very beginning for a variety of reasons. First, the serious terrorists already suspected any such communications systems were compromised and weren't using them (see, for example, how bin Laden refused to use the internet at all). Second, the claim that officials knew terrorists had changed how they communicated showed that they were able to observe the new form of communication as well, suggesting no actual (or at least no significant) loss in ability to monitor.

Either way, it's interesting to see confirmed what most of us knew: that Clapper and the other NSA defenders have known pretty much all along that Snowden didn't do any real "harm," but they had no problem fanning the flames of misleading claims to make him out to have caused serious damage.

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More expert witnesses have been called in to testify in the beating death of Kelly Thomas. The defense called in its two final witnesses late last week -- Cpl. Stephen Rubio, a "use of force" trainer for the Fullerton PD, and Dr. Stephen Karch, a forensic pathologist.

Rubio's takeaway from the 33-minute video showing homeless man Kelly Thomas being restrained and beaten by six Fullerton police officers?

“In the video, all things considered, I don’t see anything out of policy,” Rubio said.

Among the things that failed to fall outside of the Fullerton PD's use of force policy are Officer Cicinelli repeatedly striking Thomas in the face with the butt of his Taser and Officer Ramos announcing that he was "getting ready to fuck [Thomas] up."

As for the first non-violation of policy? Apparently if your Taser is not "effective," you can just turn it into a blunt-force weapon.

[R]ubio said the Taser that Cicinelli used on Thomas wasn’t working correctly because Thomas continued to fight and the device made a noise that indicated it was being “ineffective...”

Officers, he said, are allowed to improvise with their weapons, though they aren’t trained to use a Taser as an impact weapon.

So, officers aren't trained to improvise with their Tasers but somehow Cicinelli's freelancing isn't a violation of policy. Then there's this marvel of a sentence.

Strikes to the head and face can be dangerous depending on what items are used, how hard they land and where they hit the suspect, Rubio said.

When an expert witness paraphrases the obvious and offers it up as testimony, it's time to dismiss them from the stand. Rubio's saying what everyone knows, including the defense. Smashing people in the face does tons of damage, most of which has incredibly deleterious effects on the beaten person's health. In contrast, a former FBI agent testifying for the prosecution referred to Cicnelli's "improvisation" as the use of "deadly force." And yet, somehow this still falls within the flexible parameters of Fullerton PD's "use of force" policy.

As does this:

Defense attorneys also asked Rubio about a part in the video in which Ramos put on white latex gloves and tells Thomas, “See these fists? ... They’re getting ready to f--- you up.”

John Barnett, who is representing Ramos, asked Rubio if his client’s words were consistent with his training.

“Yes, it was a conditional threat,” Rubio said. “The profanity may be off-color and may be a slight policy violation.”

Still the use of words, even profane ones, as a means to avoid endangering an officer or suspect is acceptable, Rubio said.

So, the swearing was the only problem. Other than that, threatening someone with violence is completely "by the book" for the Fullerton PD. "Conditional threats?" Perfectly fine. (Not that Ramos' threat was conditional…) Just don't swear. "Please hand me your license and registration or I'll beat you with the butt end of my Taser." "If you don't place your hands behind your head, I'm going to hit you with every non-lethal weapon I have in my arsenal." "If you make me get a warrant, I'm going to rip your house apart and kill your pets." All by the book.

After damaging the reputation of the Fullerton PD ("threats are cool, as are improvised beatings") in hopes of redeeming two bad cops, the defense turned to another medical expert, one who followed the post-beating-death script to the letter. Beatings don't kill people. Drugs (and bad hearts) do.

Dr. Steven Karch, the final witness for two former city police officers charged with killing Kelly Thomas, said the homeless man suffered from methamphetamine cardiomyopathy, a weakening of the heart caused by drug abuse.

"He could have died sitting in a closet by himself," Karch said.

Could have. But didn't.

Thomas died five days after lapsing into an irreversible coma -- a coma he lapsed into while being beaten and restrained by six Fullerton police officers. All else being equal, I'm sure he would have preferred dying alone in a closet, rather than being beaten to death.

Karch, like many other coroners and pathologists before him, blamed the dead man for instigating his own death.

[K]arch said Thomas' clash with police was "precipitated" by a spontaneous psychotic episode brought on by past meth use.

Karch stands alone on this, contradicting both the Orange County coroner and UC Irvine trauma surgeon, who each determined Thomas had died from a lack of oxygen to the brain precipitated by chest compression and multiple injuries to the face.

According to Karch, there's only one person who truly knows why Kelly Thomas died.

Karch wouldn't say whether Thomas' fight with police on July 5, 2011, caused his heart to fail but said it could be a possibility.

"I would suspect that the added stress of this fight or physical altercation would make it worse," Karch said.

"So you're not saying he was destined to die on that particular day and the police just happened to be there?" Rackauckas said.

"Only God can say that," Karch said.

Nice. Too bad The Almighty can't be tapped to testify. According to toxicology reports, Thomas had no drugs or alcohol in his system on the night he died, but this fact matters little to those who see every beating death as the inevitable end to a drug "abuser's" life. If the cops don't get to him first, Thomas dies from heart complications -- maybe that same night, maybe 20 years later. Six on one side, half-dozen on the other.

Karch really had to stretch to make this theory fit a 135-lb. homeless man with no drugs in his system.

Thomas, he said, appeared to have had a psychotic episode the night he clashed with police, because only someone with "some kind of mental malfunction" would take on six police officers.

The strength it would take to fight with half a dozen police officers would normally be difficult to gather, but would be easy under a meth-induced psychotic episode, he said.

Except, of course, there was no meth in Thomas' system. What then?

[P]eople who habitually use meth can still be affected years later by the drug, suffering from such things as a weak heart and spontaneous psychotic episodes, Karch said.

So, if you've used drugs even once in your life (or have been arrested for possession), prepare to have that held against you by those attempting to brush aside accusations of brutality. No drugs in your system? Must just be some bad flashbacks. "Yeah, the perp fought hard, like a psycho. We needed six officers just to keep him restrained. Found out he used meth regularly up until 1995. No wonder he was such a monster NEARLY 20 YEARS LATER."

There's nothing facetious about this scenario.

A doctor who prepared a report on Thomas after he attacked his grandfather in 1995 with a fireplace poker wrote that Thomas told him he used methamphetamine and did "a lot" of LSD up until 1994.

No drugs in his system. It doesn't mean Thomas hadn't used meth recently, but it does mean he hadn't used any in a rather long period of time -- long enough that its traces had vanished from his system. And yet, the defense paints a portrait of a psychotic, amped up on drug flashbacks, overpowering six police officers who outweighed him by at least at 10-to-1 ratio. A psychotic who died of a preexisting heart condition no less, despite the fact his face resembled a tenderized side of beef by the time his comatose body arrived at the trauma center.

No one would expect the defense team to do any less in order to spring its clients, but the justifications and theories are old hat. They've been deployed by countless law enforcement agencies in the past. But they have to sway a jury this time, not just placate pesky members of the press. We'll see how that goes.



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We've discussed the whole "high court/low court" concept here a few times before -- in that those who are powerful play by one set of rules, while the rest of us have to play by a very different set of rules. Keep that in mind as you read the following.

A couple of years ago, then CIA boss Leon Panetta apparently revealed a bunch of classified information concerning the raid on Osama bin Laden's compound to filmmaker Mark Boal, who went on to write the screenplay for the film "Zero Dark Thirty." Boal was the lone guest without security clearance at a speech Panetta gave revealing a bunch of details, including the identity of the ground commander of the Navy SEAL unit that executed the raid. And others in the raiding party were at the event, sitting in the front row with name tags. Panetta's revealing of this info to Boal was revealed in a draft report by the Pentagon Inspector Generals' office. Also in that report was the information that the Undersecretary of Defense for Intelligence, Michael Vickers, had disclosed classified names to both Boal and Kathryn Bigelow, who directed the film.

When the "official" Inspector General report came out, the initial findings that both Panetta and Vickers had revealed classified information had been scrubbed. It doesn't blame either of them, even though the internal findings said they had, in fact, revealed that info. However, the draft report that implicated Panetta and Vickers was then leaked to reporters for newspaper giant McClatchy, as well as a non-profit, leading to Panetta and Vickers' actions being publicly reported.

So... guess what the government is angry about? Is it those top officials revealing classified information to filmmakers? Or... is it government insiders revealing to the press that those top officials revealed classified information? Yes, you already know the answer. No one seems interested in doing anything about Panetta or Vickers. Rather, the government is "aggressively" trying to go after whoever released the draft report -- even though the details in that report weren't classified.

More than two years after sensitive information about the Osama bin Laden raid was disclosed to Hollywood filmmakers, Pentagon and CIA investigations haven’t publicly held anyone accountable despite internal findings that the leakers were former CIA Director Leon Panetta and the Defense Department’s top intelligence official.

Instead, the Pentagon Inspector General’s Office is working to root out who might have disclosed the findings on Panetta and Undersecretary of Defense for Intelligence Michael Vickers to a nonprofit watchdog group and to McClatchy.

The report notes that the Inspector General's office has been "grilling" a bunch of people, trying to dig out who revealed the draft report that named Panetta and Vickers.

The end result seems clear. If you're super high up in the political chain, you get the high court. Reveal classified info to filmmakers? No worries. Not only will you not be prosecuted or even lose your job, the inspectors will scrub your name from the report and, according to the article, the person in charge of the investigation will "slow roll" the eventual release of the report until you switch jobs.

But if you're just a worker bee and you leaked the unclassified draft report that names Panetta and Vickers? Well, you get the low court. A new investigation, including aggressive pursuit by the government, and interrogations of staffers to try to find out who leaked the report.

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Rep. Peter King's willingness to continually go to bat for the surveillance state, no matter how ridiculous he looks, is quite impressive. As you recall, King used to be a major terrorist supporter -- when those terrorists were his friends in the IRA -- but now acts as if the government should toss out the Constitution if it means some minor advantage in the war against terrorists from a different part of the world with slightly darker skin. King has argued that reporters ought to be prosecuted for reporting on government leaks, even if those leaks revealed unconstitutional programs. He flat out lied about Glenn Greenwald, and then argued that Greenwald should be arrested. He's claimed that calling the NSA's snooping and spying "snooping" and "spying" is a form of slander.

And now, it appears he's directly attacking others in Congress who see the world a bit differently. We pointed out that some in Congress are finally getting much more aggressive in calling for action of Director of National Intelligence James Clapper lying to Congress. Recently, Senator Rand Paul made a claim that is perfectly valid: that James Clapper's lying to Congress was more damaging than anything Ed Snowden did.

“That Clapper is lying to Congress is probably more injurious to our intelligent capabilities than anything Snowden did,” Paul said on CNN. “Clapper has damaged the credibility of the entire intelligence apparatus and I’m not sure what to believe anymore when they come to Congress.”

So, how did King respond to this statement from someone in his own party? He went ballistic. He claimed that Senator Paul "disgraced his office" by calling out Clapper for lying to Congress.

"He disgraced his office and he owes Gen. Clapper an apology immediately."

Huh? Clapper himself has flat out admitted that he lied. Pete King appears to be telling everyone that it's okay to lie to Congress. Yes, the same guy who wants to prosecute journalists.

In all of this, I think there are a few people who have "disgraced his office," but Rand Paul is not one of them.

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The UK's anti-porn firewall is now mostly erected. Two major ISPs have already put the opt-out-only system into use. As is to be expected, The Wall Moralizing Built has a few problems, not the least of which is its tendency to catch legitimate sites in its filtering system. This is a problem that will only get worse. The filtering in place now is a starting point. The system is built to be ratcheted up and as the government decides other search terms and websites aren't worthy of public attention, they too will be added to the blacklist.

Of course, your filtering is only as strong as your containment. And for all the tough talk from Cameron and various hand-wringers, the way past the porn filter is little more than a few clicks away.

Just days after UK ISPs began filtering porn at government demand (not to mention legitimate sex ed websites), a simple Google Chrome extension highlights the futility of trying to censor the Internet's naughty bits. The extension, dubbed "Go Away Cameron," simply utilizes a proxy to get around the filters.

The creator of the extension previously made a version to bypass web blocking in his homeland, Singapore. This extension isn't specifically targeted at any blacklist, which means it can also be used by anyone in any country, as well as by employees looking to circumvent web blocking implemented by employers.

According to the creator, Go Away Cameron is a private, smart proxy service that engages when blocking is detected. He also claims nothing about the end user is collected or saved, including the IP address.

So, that's how easy it is to circumvent the UK's porn firewall. Not that anyone expected it to be a challenge. Most probably figured using a proxy is all it would take. The astounding thing is that politicians obviously believe this lousy bit of state-ordained soft censorship will actually turn the UK into a less, I don't know, sinful nation. As is pointed out in the Reddit thread (and by Karl Bode at DSLreports), Australia's $84 million porn filter was circumvented in less than a half-hour… by a 16-year-old student.

The ISPs likely don't care that the filtering system has been defeated even before it's been fully implemented. They were largely against this move in the first place. The politicians, if they can be bothered to address the inadequacies of the system, will probably claim they're just trying to help concerned parents out -- and other citizens who would have no interest in circumventing the leaky system.

It's just as weak as critics knew it would be and just as useless as any other effort in the nanny-state department. It serves no greater purpose than to massage the egos and self-satisfaction of legislators who think public morality can be regulated successfully.



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Here's a bizarre one on so many levels. The FBI has a top secret 70-page "interrogation manual." For years, the ACLU has been trying to get its hands on a copy, finally receiving a heavily redacted one. However, it turns out that if the good folks at the ACLU had just decided to wander over to the Library of Congress, they could have seen a totally unredacted copy of the entire manual, as could anyone else with a library card. Why? Because in this bizarre age we live in, in which people seem to think it's important to copyright absolutely everything the senior FBI official who authored the manual decided that he should try to register a copyright on it, and submitted it to the Library of Congress as a part of the registration process, whereby it becomes available to anyone who stops by and asks for it.

This is idiotic on multiple levels. First, as is well known, documents produced by federal government employees are automatically public domain, meaning that you cannot copyright them. Second, of course, why the hell would this FBI supervisory special agent think it even made the least bit of sense to try to get a copyright, let alone submit a copy of the top secret manual to the Library of Congress? Then, of course, there's the issue that even if it was possible to put a copyright on this document (and, again, there's not), it would almost certainly belong not to the individual FBI agent, but to the government itself. Not only can't this guy get a copyright, but there's no reason for him to try to get a copyright (what, is he going to sell the book?), and then revealing the manual to anyone, let alone an operation whose basic entire purpose is to catalog the works and make them available to the public is quite incredible.

Mother Jones, who went and found the manual at the Library of Congress, quotes a few people who are reasonably shocked that this happened:

"A document that has not been released does not even need a copyright," says Steven Aftergood, a government secrecy expert at the Federation of American Scientists. "Who is going to plagiarize from it? Even if you wanted to, you couldn't violate the copyright because you don't have the document. It isn't available."

"The whole thing is a comedy of errors," he adds. "It sounds like gross incompetence and ignorance."

Julian Sanchez, a fellow with the libertarian Cato Institute who has studied copyright policy, was harsher: "Do they not cover this in orientation? [Sensitive] documents should not be placed in public repositories—and, by the way, aren't copyrightable. How do you even get a clearance without knowing this stuff?"

Aftergood's comments are a little misleading, as there are certainly reasons why someone might want to register a copyright on an unpublished work (though, none of them apply to this particular work), and plagiarism is a different issue from infringement. But his point about "gross incompetence and ignorance" seems on point.

Of course, now that the full document can be seen by anyone, Mother Jones compared it to the ACLU's redacted version, and while they're not allowed to make copies or take notes when viewing the document, they were able to look at some of the redacted sections, including revealing some questionable techniques. From what's been revealed, it appears that the manual does encourage the use of very outdated and discredited interrogation techniques. In an interesting bit of timing, there was just a fascinating New Yorker article focusing on how law enforcement in the US still uses this completely debunked method, known as the "Reid Technique," which has a long history of eliciting false confessions (there's also a really good summary of the details over at NPR). US law enforcement has long been resistant to moving away from these methods, despite their ineffectiveness, but thanks to one not-particularly-knowledgeable FBI agent's desire to copyright an uncopyrightable work, we now know a bit more about the FBI's continued promotion of these techniques.

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For many years we've written about the problems of red light cameras. Installed over the past few years in many cities, the public statements supporting them were always about increased safety on our roads. However, as we've noted, plenty of studies showed that the cameras actually tended to increase accidents, showed little to no safety benefit, and were almost always driven by monetary incentives. Because of this, there were numerous reports of various municipalities actually deciding to decrease the time on yellow lights, thereby getting more money from tickets, but massively increasing the safety risk. Multiple studies have shown that the one way to make intersections safer is to increase the yellow light time -- but in order to make more money, many were decreasing it (often below legal limits).

The anger over these tactics has been increasing quite a bit over the past few years and a variety of cities decided to cancel their programs, causing the leading company providing these systems (who takes a large cut of every ticket), Redflex, to face some financial difficulties.

It appears that the trends are definitely against red light cameras. Cyrus Farivar has a great article (though, annoyingly paginated) about the decline in red light cameras, noting that 2013 was the first year where more red light camera systems were turned off than turned on.

Redflex's US operations took a hit in 2013 as the company installed 54 new systems—but removed 101. Redflex’s recent fiscal report (PDF) shows that its after-tax net profits in a six-month period have dropped by half: plummeting from $7.1 million in the first half of 2012 to $3.6 million in the first six months of 2013.

Meanwhile, the article also takes on the various "competing studies" concerning red light cameras, and pointing to one study that compared a whole bunch of the studies, evaluated their methodologies, and found that the ones that showed benefits to red light cameras, almost invariably had dreadful methodologies that didn't take into account the basic variability in accidents at any given intersection, and the likelihood of a return to the mean (in short: intersections with an abnormally large number of accidents frequently see that amount go down the following year -- and red light camera makers and the studies supporting them rarely took into account that variability, but assigned such a decrease to the cameras). When correcting for such problems, the study of studies found the data showed that red light cameras are a problem, not a solution:

The meta-analysis concluded that, when only the best studies were considered, "The results of the meta-analysis are rather unfavorable for RLCs... According to the results from these studies, right-angle collisions are reduced by about 10 percent, rear-end collisions increase significantly by about 40 percent, and the overall effect on all types of crashes is an increase by about 15 percent. Only studies with weaker study designs yield results that are more favorable for RLCs."

The study which those researches said had the best methodology also found significant negative impact overall:

the increase in costs from the increase in rear-end crashes more than offset the reduction in costs from the decrease in red light running crashes.

Hopefully, this is the beginning of the end for red light cameras. We're all for making intersections safer, but the way to do that is to increase the time on yellow lights -- and for places that still don't have this: have a brief interval where lights in both directions are red, rather than switching simultaneously to red in one direction and green in the other. And yes, every time I make that last point, people who don't live in places where that's the case marvel that any place in the world has this, but it's true in many, many places. Switching that to having an interval with both directions red, plus a longer yellow light, will actually make people safer, and yet... it doesn't make any more money, so very few have been willing to make this simple switch.

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What we have below is actually a ProPublica post by Kara Brandeisky, posted back in August of this year, but republished here under ProPublica's Creative Commons license. However, given the White House task force's recommendations, we thought it might be useful to be reminded what Senator Obama fought for concerning surveillance before he was President. Many of these look remarkably similar to what the task force proposes...

When the House of Representatives recently considered an amendment that would have dismantled the NSA's bulk phone records collection program, the White House swiftly condemned the measure. But only five years ago, Sen. Barack Obama, D-Ill. was part of a group of legislators that supported substantial changes to NSA surveillance programs. Here are some of the proposals the president co-sponsored as a senator.

As a senator, Obama wanted to limit bulk records collection.

Obama co-sponsored a 2007 bill, introduced by Sen. Russ Feingold, D-Wis., that would have required the government to demonstrate, with "specific and articulable facts," that it wanted records related to "a suspected agent of a foreign power" or the records of people with one degree of separation from a suspect. The bill died in committee. Following pressure from the Bush administration, lawmakers had abandoned a similar 2005 measure, which Obama also supported.

We now know the Obama administration has sought, and obtained, the phone records belonging to all Verizon Business Network Services subscribers (and reportedly, Sprint and AT&T subscribers, as well). Once the NSA has the database, analysts search through the phone records and look at people with two or three degrees of separation from suspected terrorists.

The measure Obama supported in 2007 is actually similar to the House amendment that the White House condemned earlier this month. That measure, introduced by Reps. Justin Amash, R-Mich., and John Conyers, D-Mich., would have ended bulk phone records collection but still allowed the NSA to collect records related to individual suspects without a warrant based on probable cause.

The 2007 measure is also similar to current proposals introduced by Conyers and Sen. Bernie Sanders, I-Vt.

As a senator, Obama wanted to require government analysts to get court approval before accessing incidentally collected American data.

In Feb. 2008, Obama co-sponsored an amendment, also introduced by Feingold, which would have further limited the ability of the government to collect any communications to or from people residing in the U.S.  

The measure would have also required government analysts to segregate all incidentally collected American communications. If analysts wanted to access those communications, they would have needed to apply for individualized surveillance court approval.

The amendment failed 35-63. Obama later reversed his position and supported what became the law now known to authorize the PRISM program. That legislation — the FISA Amendments Act of 2008 — also granted immunity to telecoms that had cooperated with the government on surveillance.

The law ensured the government would not need a court order to collect data from foreigners residing outside the United States. According to the Washington Post, analysts are told that they can compel companies to turn over communications if they are 51 percent certain the data belongs to foreigners.

Powerpoint presentation slides published by the Guardian indicate that when analysts use XKeyscore — the software the NSA uses to sift through huge amounts of raw internet data — they must first justify why they have reason to believe communications are foreign. Analysts can select from rationales available in dropdown menus and then read the communications without court or supervisor approval.

Finally, analysts do not need court approval to look at previously-collected bulk metadata either, even domestic metadata. Instead, the NSA limits access to incidentally collected American data according to its own "minimization" procedures. A leaked 2009 document said that analysts only needed permission from their "shift coordinators" to access previously-collected phone records. Rep. Stephen Lynch, D-Mass., has introduced a bill that would require analysts to get special court approval to search through telephone metadata.

As a senator, Obama wanted the executive branch to report to Congress how many American communications had been swept up during surveillance.

Feingold's 2008 amendment, which Obama supported, would have also required the Defense Department and Justice Department to complete a joint audit of all incidentally collected American communications and provide the report to congressional intelligence committees. The amendment failed 35-63.

The Inspector General of the Intelligence Community told Senators Ron Wyden, D-Ore., and Mark Udall, D-Co. last year that it would be unfeasible to estimate how many American communications have been incidentally collected, and doing so would violate Americans' privacy rights.

As a senator, Obama wanted to restrict the use of gag orders related to surveillance court orders.

Obama co-sponsored at least two measures that would have made it harder for the government to issue nondisclosure orders to businesses when compelling them to turn over customer data.

One 2007 bill would have required the government to demonstrate that disclosure could cause one of six specific harms: by either endangering someone, causing someone to avoid prosecution, encouraging the destruction of evidence, intimidating potential witnesses, interfering with diplomatic relations, or threatening national security. It would have also required the government to show that the gag order was "narrowly tailored" to address those specific dangers. Obama also supported a similar measure in 2005. Neither measure made it out of committee.

The Obama administration has thus far prevented companies from disclosing information about surveillance requests. Verizon's surveillance court order included a gag order.

Meanwhile, Microsoft and Google have filed motions with the Foreign Intelligence Surveillance Court seeking permission to release aggregate data about directives they've received. Microsoft has said the Justice Department and the FBI had previously denied its requests to release more information. The Justice Department has asked for more time to consider lifting the gag orders.

As a senator, Obama wanted to give the accused a chance to challenge government surveillance.

Obama co-sponsored a 2007 measure that would have required the government to tell defendants before it used any evidence collected under the controversial section of the Patriot Act. (That section, known as 215, has served as the basis for the bulk phone records collection program.) Obama also supported an identical measure in 2005.

Both bills would have ensured that defendants had a chance to challenge the legalityof Patriot Act surveillance. The Supreme Court has since held that plaintiffs who cannot prove they have been monitored cannot challenge NSA surveillance programs.

Those particular bills did not make it out of committee. But another section of the Foreign Intelligence Surveillance Act requires that the government tell defendants before it uses evidence collected under that law.

Until recently, federal prosecutors would not tell defendants what kind of surveillance had been used.

The New York Times reported that in two separate bomb plot prosecutions, the government resisted efforts to reveal whether its surveillance relied on a traditional FISA order, or the 2008 law now known to authorize PRISM. As a result, defense attorneys had been unable to contest the legality of the surveillance. Sen. Dianne Feinstein, D-Calif., later said that in both cases, the government had relied on the 2008 law, though prosecutors now dispute that account.

On July 30, the Justice Department reversed its position in one bomb plot prosecution. The government disclosed that it had not gathered any evidence under the 2008 law now known to authorize sweeping surveillance.

But that's not the only case in which the government has refused to detail its surveillance. When San Diego cab driver BasaalySaeedMoalin was charged with providing material support to terrorists based on surveillance evidence in Dec. 2010, his attorney, Joshua Dratel, tried to get the government's wiretap application to the Foreign Intelligence Surveillance Court. The government refused, citing national security.

Dratel only learned that the government had used Moalin's phone records as the basis for its wiretap application — collected under Section 215 of the Patriot Act — when FBI Deputy Director Sean Joyce cited the Moalin case as a success story for the bulk phone records collection program.

Reuters has also reported that a U.S. Drug Enforcement Administration unit uses evidence from surveillance to investigate Americans for drug-related crimes, and then directs DEA agents to "recreate" the investigations to cover up the original tip, so defendants won't know they've been monitored.

As a senator, Obama wanted the attorney general to submit a public report giving aggregate data about how many people had been targeted for searches.

Under current law, the attorney general gives congressional intelligence committees a semiannual report with aggregate data on how many people have been targeted for surveillance. Obama co-sponsored a 2005 bill that would have made that report public. The bill didn't make it out of committee.

Despite requests from Microsoft and Google, the Justice Department has not yet given companies approval to disclose aggregate data about surveillance directives.

As a senator, Obama wanted the government to declassify significant surveillance court opinions.

Currently, the attorney general also gives congressional intelligence committees "significant" surveillance court opinions, decisions and orders and summaries of any significant legal interpretations. The 2005 bill that Obama co-sponsored would have released those opinions to the public, allowing redactions for sensitive national security information.

Before Edward Snowden's disclosures, the Obama Justice Department had fought Freedom of Information Act lawsuits seeking surveillance court opinions. On July 31, the Director of National Intelligence released a heavily redacted version of the FISA court's "primary order" compelling telecoms to turn over metadata.

In response to a request from Yahoo, the government also says it is going to declassify court documents showing how Yahoo challenged a government directive to turn over user data. The Director of National Intelligence is still reviewing if there are other surveillance court opinions and other significant documents that may be released. Meanwhile, there are severalbills in Congress that would compel the government to release secret surveillance court opinions.

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Since the Snowden revelations first started coming out, forcing James Clapper to admit that he flat-out lied to Congress, we've been somewhat perplexed as to how Clapper could come out of the whole thing "unscathed." Congress seemed willing to look the other way, and the President didn't appear to have any interest in firing Clapper or Keith Alexander, so as not to "let Snowden win." But, it's never made much sense. Lying to Congress is a pretty serious crime -- and considering the lying was to cover up a program that just this week was found to be unconstitutional, it seems even more serious. The fact that anyone in Congress thinks that Clapper can even be remotely trusted to tell the truth going forward when he got away with lying, seems bizarre.

Hopefully that will be changing now.

Back in October, Rep. Jim Sensenbrenner, the author of the PATRIOT Act, argued that Clapper should be fired and prosecuted, but hadn't done anything to move that forward. However, with Monday's ruling now making it pretty clear that the program that Clapper lied about (in response to a question from Senator Ron Wyden), Sensenbrenner, along with six of his colleagues on the House Judiciary Committee have sent a letter to Eric Holder, demanding an investigation into Clapper's lying to Congress. The letter is quite a read. They're pretty direct about calling out Clapper for lying, how this is against the law, how others in government have been prosecuted for the same thing, and even how allowing this to go unpunished contributes to "cynicism" about the government.

Congressional oversight depends on truthful testimony--witnesses cannot be allowed to lie to Congress. Accordingly, we request you to investigate the Director of National Intelligence James Clapper's "erroneous" statements to the Senate Select Committee on Intelligence earlier this year.

[....] 18 U.S.C. § 1001 makes it a crime to "knowingly and willfully" make any "materially false" statement in the course of any "investigation or review, conducted pursuant to the authority of any committee." One of the hallmarks of American democracy is that no one is above the law...

[....] Director Clapper has served his country with distinction, and we have no doubt he believed he was acting in its best interest. Nevertheless, the law is clear. He was asked a question and he was obligated to answer truthfully. He could have declined to answer. He could have offered to answer in a classified setting. He could have corrected himself immediately following the hearing. He did none of these things despite advance warning that the question was coming.

The country's interests are best served when its leaders deal truthfully with its citizens. The mutual sense of good faith it fosters permits compromise and concessions in those cases that warrant it. Director Clapper's willful lie under oath fuels the unhealthy cynicism and distrust that citizens feel toward their government and undermines Congress's ability to perform its Constitutional function.

There are differences of opinion about the propriety of the NSA's data collection programs. There can be no disagreement, however, on the basic premise that congressional witnesses must answer truthfully.

It seems unlikely that Holder will do anything, but this is the first official move we've seen towards actually punishing Clapper for lying to Congress. It would be nice if others in Congress supported this effort as well.

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Note: I moved this post up from last year (and the year before) because Thanksgiving should be scary. This is the Cthulhu inspired Christmas dinner made by Texan Rusty Eulberg and his wife. It consists of a bacon layered turkey (although I'm using the term 'layered' very lightly because three strips ain't shit) with crab legs underneath and a couple octopus tentacles poking out of its ass. Would you eat it? "God no." I love how easily you lie to yourself.

According to Eulberg, he and wife Jennifer Robledo "wanted to do something unique for Christmas dinner with friends of ours. Jenny is a big fan of Cthulhu so we went and bought some crab legs and some octopus and bacon and cooked them all separate and slapped them together on a plate, and that was it. The next year I made a Cthicken; the same thing using squid instead of octopus and a chicken." Eulberg says, "The universal reaction was, 'Oh my God, I couldn't eat that.' But each individual piece was cooked separately; all I did was set them together on the plate. It was delicious.

Ah, so all the different pieces were cooked separately. In that case I call all the crab legs. "But--" But nothing, pass the butter. "You can't have ALL the crab legs." I can and I will. Now if you'll excuse me, I'll be at the kid's table. They get me over there. Keep going for two more shots of the taste sensation. Thanks to fat piggie, who is terrified of winding up on somebody's table this Christmas.

Daniel Drezner has a fairly incredible short blog post over at Foreign Policy magazine about his experience visiting the NSA as the organization is seeking to ramp up its PR campaign about how it's not actually evil. We've already covered the 60 Minutes debacle, but in many ways this piece is just as enlightening, as he notes just how incredibly tone deaf NSA officials appear to be -- unable to understand why people are upset about what they're doing.

The NSA's biggest strategic communications problem, however, is that they've been so walled off from the American body politic that they have no idea when they're saying things that sound tone-deaf. Like expats returning from a long overseas tour, NSA staffers don't quite comprehend how much perceptions of the agency have changed. The NSA stresses in its mission statement and corporate culture that it "protects privacy rights." Indeed, there were faded banners proclaiming that goal in our briefing room. Of course, NSAers see this as protecting Americans from foreign cyber-intrusions. In a post-Snowden era, however, it's impossible to read that statement without suppressing a laugh.

It might be an occupational hazard, but NSA officials continue to talk about the threat environment as if they've been frozen in amber since 2002. To them, the world looks increasingly unsafe. Syria is the next Pakistan, China is augmenting its capabilities to launch a financial war on the United States, and the next terrorist attack on American soil is right around the corner. They could very well be correct -- except that the American public has become inured to such warnings over the past decade, and their response has been to tell politicians to focus on things at home and leave the rest of the world alone. A strategy of "trust us, the world is an unsafe place" won't resonate now the way it did in the immediate wake of the Sept. 11 attacks.

But, perhaps the most tone deaf of all, was the statement from one NSA official suggesting that it's time to reform the First Amendment, because he's not at all happy about how reporters have covered the NSA recently. As Drezner notes, he's not sure if it's a joke or not, but it really doesn't matter. That seems like something you should not joke about if you're an NSA person, given everything that's going on.

The NSA's attitude toward the press is, well, disturbing. There were repeated complaints about the ways in which recent reportage of the NSA was warped or lacking context. To be fair, this kind of griping is a staple of officials across the entire federal government. Some of the NSA folks went further, however. One official accused some media outlets of "intentionally misleading the American people," which is a pretty serious accusation. This official also hoped that the Obama administration would crack down on these reporters, saying, "I have some reforms for the First Amendment."

It seems that the public might have some reforms for the intelligence community as well. And those would actually be constitutional, unlike what that particular NSA officials had in mind for free speech and the press. There's even more in the Drezner piece that is well worth reading, including the how the NSA was unable to properly manage his own personal information which he had to send them in order to get his pass to come for a visit...

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Remember the supposedly "independent, outside experts" that President Obama had invited to be on a task force to review the NSA's surveillance? The same task force that was actually set up by and reported to director of national intelligence James Clapper? The one that was actually made up of intelligence community insiders, who kicked things off by having two of its key members not bother to to show up for a meeting with civil libertarian groups?

Right. So their report is "due" to be delivered this Sunday, and some of the details have leaked. While the Wall Street Journal suggested that the recommendations would "constitute a sweeping overhaul of the National Security Agency", almost everyone looking at the details suggests something completely different. Instead, it's looking a lot more like some stern language accompanied by cosmetic changes that "leave spying programs largely unchanged." For example, it appears to recommend that bulk collection of metadata continue, but potentially with that data residing at the telcos, instead of in the NSA's own databases.

If that sounds familiar, it's because this is exactly the "concession" that NSA boss Keith Alexander himself proposed. When the task force is directly pitching the same "solution" the NSA's own boss has proposed, that's hardly a "sweeping overhaul".

Oh, and what appears to be one somewhat substantive move suggested in the report -- definitively splitting the NSA and the US Cyber Command -- has already been pre-rejected by the White House. If you don't recall, these are supposedly two different organizations -- but they're currently both run by Keith Alexander and are housed in the same place. The NSA is supposed to just be obtaining "signals intelligence", not conducting offensive operations. US Cyber Command, on the other hand, does conduct offensive operations, launching numerous attacks on computing systems around the globe. Many, many people see significant problems with this, as the roles of the two can be merged in dangerous ways -- such as rather than having the groups protect the US from computer attacks, having them help to create new vulnerabilities for their own purposes (basically, exactly what's happening).

Many have argued that Cyber Command should have civilian rather than military leadership, and the task force is rumored to support this. But without the report officially being delivered, the White House has already flatly rejected the idea.

“Following a thorough interagency review, the administration has decided that keeping the positions of NSA Director and Cyber Command Commander together as one, dual-hatted position is the most effective approach to accomplishing both agencies’ missions,” White House spokeswoman Caitlin Hayden said in an e-mail

So, we end up with a task force report that has cosmetic changes to the surveillance program, and one big change they're going to recommend has already been dismissed out of hand before the recommendation was even made. In other words, this whole task force was as much of a farce as everyone expected.

Remember how, when President Obama set it up, the main purpose was to supposedly "restore the trust" of the American public in what the NSA is doing? That doesn't seem to be working.

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We've all done it. You type something into Facebook and are all set to post it as a status update or a comment to someone else... and then your common sense takes over, and you realize that posting it would probably be a mistake. You were either about to post something fairly stupid, controversial or just ranty... and realized that, after taking a few breaths, life would probably be better for everyone if no one ever saw your words. Personally, when this has happened to me, it feels a bit cathartic. You were still able to type out what was in your brain... but no one ever had to see it. Or did they? According to a new report, Facebook is closely tracking and analyzing such "self-censorship" in order to figure out ways to encourage you to post anyway. While the company claims it's not actually looking at the actual text, it could do so, and is certainly looking at the situations in which you self-censor, trying to help you speed right by that little hesitation known as "thinking better of it":

Why does Facebook care anyway? Das and Kramer argue that self-censorship can be bad because it withholds valuable information. If someone chooses not to post, they claim, "[Facebook] loses value from the lack of content generation." After all, Facebook shows you ads based on what you post. Furthermore, they argue that it’s not fair if someone decides not to post because he doesn't want to spam his hundreds of friends—a few people could be interested in the message. "Consider, for example, the college student who wants to promote a social event for a special interest group, but does not for fear of spamming his other friends—some of who may, in fact, appreciate his efforts,” they write.

Right. But what about the other situation where someone is about to post something that is going to make a lot of people miserable. Aren't we all better off in those cases when the "self-censorship" brain cells kick in? Facebook might not think so, but I imagine that an awful lot of people would disagree.

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Well, this is big, big news. Judge Richard Leon, a judge in the DC district court, has ruled that the NSA's bulk metadata collection should be stopped as violating the 4th Amendment, though he's put the ruling on hold, knowing that it will be appealed. This is the first major court ruling concerning the program, and the judge is pretty clear that it's a 4th Amendment violation even though the FISA court approved it. The case is actually two different cases brought by Larry Klayman, the founder of Freedom Watch, over the NSA's activities. Here's the key bit:

The Court finds that it does... have the authority to evaluate plaintiffs' constitutional challenges to the NSA's conduct, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court ("FISC"). And after careful consideration of the parties' pleadings and supplemental pleadings, the representations made on the record at the November 18, 2013 hearings regarding these motions, and the applicable law, the Court concludes that plaintiffs have standing to challenge the constitutionality of the Government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.

The ruling is worth reading, going through the legal history and details of the program. While it notes that the plaintiffs and the government (not surprisingly) explain the bulk metadata collection very differently, the court says that even if it accepts the government's explanation, it still likely violates the 4th Amendment. That's important.

Even while accepting the government's description of the system, it appears, thankfully, that Judge Leon is not being confused and suckered by the government's attempt to mislead. For example, in a footnote (21) the judge shows that he completely understands that the NSA is being exceptionally misleading when it implies that within all of that metadata, it's just looking at fewer than 300 individuals.

After stating that fewer than 300 unique identifiers met the RAS standard and were used as "seeds" to query the metadata in 2012, Ms. Shea notes that "[b]ecause the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three 'hops' from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but is still a very small percentage of the total volume of metadata records." (emphasis added). The first part of this assertion is a glaring understatement, while the second is virtually meaningless when placed in context. First, as the sample numbers I have used in the text above demonstrate, it is possible to arrive at a query result in the millions within three hops while using even conservative numbers--needless to say, this is "substantially larger than 300." After all, even if the average person in the United States does not call or receive calls from 100 unique phone numbers in one year, what about over a five-year period? And second, it belabors the obvious to note that even a few million phone numbers is "a very small percentage of the total volume of metadata records" if the Government has collected metadata records on hundreds of millions of phone numbers.

But it's also easy to imagine the spiderweb-like reach of the three-hop search growing exponentially and capturing even higher numbers of phone numbers. Suppose, for instance, that there is a person living in New York City who has a phone number that meets the RAS standard and is approved as a "seed." And suppose this person, who may or may not actually be associated with any terrorist organization, calls or receives calls from 100 unique numbers, as in my example. But now suppose that one of the numbers he calls is his neighborhood Domino's Pizza shop. The Court won't hazard a guess as to how many different phone numbers might dial a given Domino's Pizza outlet in New York City in a five-year period, but to take a page from the Government's book of understatement, it's "substantially larger" than the 100 in the second hop of my example, and would therefore most likely result in exponential growth in the scope of the query and lead to millions of records being captured by the third hop.

Judge Leon is also well aware of the newly declassified rulings from FISC judges Walton and Bates detailing regular and drastic non-compliance by the NSA. While Judge Leon does admit to lacking jurisdiction over claims that the program violates the Administrative Procedures Act, it's the constitutional questions that are the big ones, and he does not shy away there. He notes that the FISA law does not include an expressed right of judicial review -- but neither does it bar it. And, since Congress "should not be able to cut off a citizen's right to judicial review of... Government action simply because it intended for conduct to remain secret," he finds that the court has the authority to rule on the constitutional issues.

On the question of standing (where the government often wins since individuals can't prove they've been spied on), the court sides with the plaintiffs -- noting that there's strong evidence to suggest their info has, in fact, been collected.

First, as to the collection, the Supreme Court decided Clapper just months before the June 2013 news reports revealed the existence and scope of certain NSA surveillance activities. Thus, whereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all, plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention.... In addition, the Government has declassified and authenticated an April 25, 2013 FISC Order signed by Judge Vinson, which confirms that the NSA has indeed collected metadata from Verizon.

Judge Leon further mocks the Government's attempts to argue no standing, noting that their own arguments appear to contradict themselves:

Straining mightily to find a reason that plaintiffs nonetheless lack standing to challenge the metadata collection, the Government argues that Judge Vinson's order names only Verizon Business Network Services ("VBNS") as the recipient of the order, whereas plaintiffs claim to be Verizon Wireless subscribers. The Government obviously wants me to infer that the NSA may not have collected records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT&T and Sprint). Curiously, the Government makes this argument at the same time it is describing in its pleadings a bulk metadata collection program that can function only because it "creates an historical repository that permits retrospective analysis of terrorist-related communications across multiple telecommunications networks, and that can be immediately accessed as new terrorist-associated telephone identifiers come to light."

[....] Put simply, the Government wants it both ways. Virtually all of the Government's briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism--in which case the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers.... Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not inspire confidence!

In terms of the actual constitutional analysis, Judge Leon takes on directly the issue of metadata collection in Smith v. Maryland, the key case that the NSA and its defenders repeatedly rely on to insist that there is no 4th Amendment rights in information stored by third parties. Judge Leon notes that issue here is very different.

The question before me is not the same question that the Supreme Court confronted in Smith. To say the least, "whether the installation and use of a pen register constitutes a 'search' within the meaning of the Fourth Amendment," ... -- under the circumstances addressed and contemplated in that case--is a far cry from the issue in this case.

Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances--the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies--become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.

From there, he relies on the US v. Jones case, which we've discussed extensively as well, in which the court found that attaching a GPS device to a car could be a 4th Amendment violation. He notes there that the court similarly looked at the differences in that case as compared to a previous precedent, and notes that the same situation likely applies here, vis-a-vis comparisons to Smith:

For the many reasons discussed below, I am convinced that the surveillance program before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. To the contrary, for the following reasons, I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.

He then goes into a detailed and thorough dismantling of Smith and why it clearly doesn't apply to this program -- noting how Smith was a very limited data collection, rather than a "collect it all" process. He even refers to the current program as "Orwellian." Furthermore, he implicates the close relationship between the NSA and the telcos, noting that this is entirely different from Smith, where police made a specific request to the telcos to turn over specific information -- rather than the telcos automatically handing over all info for the NSA to keep.

It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.

Finally, he points out that the amount of metadata in question is significantly more detailed and revealing than what was captured in the Smith case:

...the ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people's lives.... Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago.

In this, it appears that Judge Leon was convinced by Ed Felten's declaration which, as we noted, went into great detail about how much metadata could reveal about a person today.

In the end, he says that Smith is simply the wrong case:

In sum, the Smith pen register and ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.... As I said at the outset, the question before me is not whether Smith answers the question of whether people can have a reasonable expectation of privacy in telephony metadata under all circumstances. Rather, the question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval.

Finally, in looking at the government's insistence that the program is necessary, Judge Leon is not convinced. He notes examples of them saying it can help them do their job faster, but none of it is actually stopping an attack. In fact, he notes that for all the talk of doing the job faster, there's not been a single shred of evidence presented that it helped stop an imminent attack, where that kind of speed would matter. In fact, he notes, "none of the three 'recent examples' cited by the Government [for the need for this program] involved any apparent urgency." In short, Judge Leon is calling the government's bluff. Their only reason for needing the program is the speed it provides, but then they present no evidence of any cases where that speed was important.

Thus, the end result is an injunction against the metadata collection, but recognizing the inevitable appeal, that injunction is stayed pending appeal. This is a very good decision, but this is just the beginning.

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Ever since the Snowden leaks began, we've been talking about how the harm for the US economy -- and especially the tech industry -- was going to be massive (much more damaging than anything the NSA might possibly prevent with its spying). We've already seen Cisco attribute poor earnings to the Snowden revelations, and now a large IBM shareholder is suing IBM, claiming that its relationship with the NSA resulted in the company's disappointing third quarter results:

The plaintiff in the complaint, Louisiana Sheriffs' Pension & Relief Fund, said this threatened IBM hardware sales in China, particularly given a program known as Prism that let the NSA spy on that country through technology companies such as IBM.

The Baton Rouge pension fund said the revelation of Prism and related disclosures by former NSA contractor Edward Snowden caused Chinese businesses and China's government to abruptly cut ties with the world's largest technology services provider.

It said this led IBM on October 16 to post disappointing third-quarter results, including drops in China of 22 percent in sales and 40 percent in hardware sales.

As for the legal basis for the lawsuit, the pension fund is arguing that IBM should have revealed the potential of this kind of information coming public as a "risk factor." Chances are this lawsuit will go nowhere, but it does highlight, yet again, just how damaging the NSA's activities can be on the US. When compared to how little the NSA has actually accomplished, according to various folks in Congress who have been briefed, it certainly seems like the NSA is doing a lot more harm than good. Hopefully this leads other companies to be much stronger in pushing back on the NSA's demands, knowing that it can significantly harm their business prospects outside of the US.

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There are two subjects that seem to keep TV execs in complete denial: cord cutting and the demand for a la carte TV packages. Both are very real (and, frankly, the increase in the former is somewhat driven by the latter), but to listen to cable execs it's just not happening. Not happening. La la la la, they can't hear you, not happening. The latest such example is from Chase Carey, CEO of 21st Century Fox, who insists that any such demand "is a farce" which some might see as a slight improvement from that time he called it a "fantasy," but not by much. So why is it "a farce?" Well, because Chase Carey knows better than you what you really want. And you want bundles because they're just that awesome.

"The bundle is still a great proposition for the consumer when you compare it to the a world of $5 lattes and cell phone bills,"

First of all, we've been hearing variations on the "what a good deal compared to the $5 latte" argument in a variety of industries, and it's almost always bogus. It's clearly an apples and oranges comparison here. No one forces you to buy the blueberry muffin, the "adult contemporary" CD, plus three smaller cups of coffee you'll never drink just to get that latte. Also, frankly, the $5 latte is the result of actually giving consumers what they want in a competitive market. The same cannot be said for the TV market. At all.

Here's a general rule of thumb modern businesses: if you're working on giving people what they actually want, that's probably a good thing and bodes well for your business. If, instead, you force them to deal with a bunch of crap they don't want -- and then mock them for suggesting a better product, you're not long for this world.

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When we last checked in on the trial of two Fullerton police officers charged in the beating death of Kelly Thomas, the defense attorney (John Barnett) for Manuel Ramos (who is facing charges of second-degree murder and involuntary manslaughter) argued that the responding officers didn't use enough force when subduing the 135-pound man (right into an irreversible coma). In his words, Ramos (and the other five officers) were "losing the fight."

The defense attorney argued that Thomas' death was his own fault, brought on by a "lifetime" of "bad choices." The defense also argued during opening statements that Thomas had died from a bad heart due to previous drug use (where have we heard that before?) and not from the combined application of force by six Fullerton officers.

The Orange County coroner's office pathologist testified earlier that Thomas had died of "of brain damage from lack of oxygen caused by chest compression and injuries to his face," but her testimony was somewhat undermined by some apparent confusion about what she had previously stated in a preliminary hearing. When challenged by Everett on her earlier claim that she had spotted a "single instance of compression" that led her to this conclusion, she stated that she had been "misinterpreted" and that the cause of death was a "constellation of injuries," not one single injury.

This "misinterpretation" cast some doubt on the prosecutor's assertions, but that reprieve for the defense was only temporary. Two other experts were brought in to testify and both came to the conclusion that Thomas' death was due to the actions of the responding officers.

The first, a retired FBI agent, was brought in to analyze the officers' use of force. Here are the conclusions he drew from the evidence.

John Wilson, who spent 60 hours studying the gruesome, July 2011, police attack on an unarmed Thomas, said that officer Manuel Ramos began the minor encounter unnecessarily by immediately taking out his baton, swinging it in both hands and poking it at the victim, who hadn't been physically threatening.

But, according to Wilson, the most unprofessional moment prior to the killing occurred when Ramos mocked the schizophrenia-addled Thomas as stupid, dramatically put on gloves as he towered over him and said, "Now, you see my fists? They're getting ready to fuck you up."

District Attorney Tony Rackauckas played related portions of a surveillance tape of the brutality and, over Ramos defense lawyer John Barnett's incessant objections, asked Wilson if he considered the cop conduct appropriate under the circumstances.

"Clearly, no," replied the 26-year FBI veteran, who at one point served on the U.S. Attorney General's protection detail in Washington, D.C. "I have problems with everything that happened after Ramos put the gloves on."

The defense responded by challenging the FBI veteran's lack of "street cop" experience, asserting that because he'd never "walked a beat" (although he had worked both bank robberies and homicide as an agent), he had no idea what he was talking about. The former agent further enraged the defense attorneys by stating that Kelly Thomas had every right to fight back once the officers deployed excessive force.

The other witness was Dr. Michael Lekawa, the trauma surgeon (and chief of trauma surgery at the UC Irvine Medical Center) who treated Thomas. His testimony discussed the horrific condition Thomas arrived in.

When he arrived, Thomas was breathing through the tube, which was attached to an air bag that was squeezed by hand, Lekawa said. His blood pressure was extremely low and his PH score indicated that his body was producing so much acid that, the doctor said, he has never seen a patient with a similar PH score live.

"I've never seen a survivor, ever, in my 18 years," he said.

Lekawa also added this damning statement:

The cause of Thomas' death, Lekawa said, was inadequate oxygen to his brain. During the confrontation with police, "various persons were on [Thomas] and holding him down … preventing him from breathing," Lekawa said.

"He was doing everything he could to breathe but becoming less and less mentally with it to do what he could to breathe," he said.

During cross examination, Lekawa conceded that Thomas' broken ribs may have been caused by CPR attempts made during the beaten man's trip to the hospital (he flatlined during the ride). But he pointed out that he could not find evidence to back up another paramedic's assertion that there had been difficulty inserting a breathing tube at hospital, another aspect the defense attorneys pressed as potential evidence Thomas' death was due to actions taken by medical personnel.

All in all, not a very pleasant day for the defense. Of course, when an altercation between six cops and an unarmed, 135-lb. man begins with an officer announcing he's "getting ready to fuck you up," this tends to eliminate some of the "benefit of a doubt" that would be helpful in a trial like this.

On the other hand, this venue may not be all that advantageous for those hoping to see Thomas' brutalizers brought to justice. The Orange County Register's article closes with this rather depressing observation.

What impact the testimony and defense moves are having on jurors is unknown.

Orange County juries historically have given police officers carte blanche to use deadly force even against unarmed citizens and to lie in official reports that coverup police corruption.

If this is an accurate assessment, then it's little wonder the incident at the center of this trial escalated the way it did. Fullerton police officers have become fearless over the years, thanks to the protective powers of the blue line, and the restorative effect of compliant juries.



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This is the series of Batman graffiti that Redditor sneakylawyer (aren't they all?) found while "urban exploring" (read: smoking weed in abandoned buildings) around Belgium. Apparently all the murals were painted by a guy named Pete. Although I suppose we can't rule out the possibility they were painted by somebody else who just signed the name Pete to throw us off his trail. I do that sometimes. Like when an apartment neighbor's music is too loud I'll usually write a real passive-aggressive note then tape it to their door signed with the name and apartment number of the person who lives on the other side of them. Plus sometimes I'll fill a Ziplock bag with flour then push it half under their door in the middle of the night and stomp it. Keep going for the actual paintings. Thanks to Todd, who wishes he had an abandoned building nearby to practice his graffiti in. Me? I want a pottery wheel.

NSA head Gen. Alexander once again appeared before the Senate to defend his agency's actions and to deliver the talking points in an effort to head off a number of pieces of legislation aimed at rolling back the NSA's powers.

If the NSA has a chance to hold off what now appears to be near inevitable, it will need to update its rhetorical ploys. Alexander offered nothing much in the way of new arguments, which is only going to hurt the agency's position. It looks as though the old stuff isn't really working anymore. His assertion that the Section 215 program has led to 50+ terrorist attacks averted has disintegrated. Sen. Leahy raised additional questions about the efficiency of the 702 program (internet metadata) in the hunting terrorists. No answer was forthcoming but the agency head implied it would take much longer than next Wednesday's hearing to come up with an answer.

No surprises here either, as Gen. Alexander almost literally played the 9/11 card.

"Metadata is a way of knowing where those books are in the library, and a way of focusing our collection... to knowing, where are the bad books," Alexander says.

He holds up an index card – it's meant to be an old-style card-catalog card (sorry, millennials) – on which are listed the categories of information encompassed by "metadata": time, date, duration, contact numbers.

Then he returns to the 9/11 attacks and says, as he always does, that the attack might have been stopped by a metadata collection program like the USA has now.

Might have been. Except it wasn't. Sen. Leahy called Alexander out for using this tired ploy.

Leahy jumps in and says the failure to prevent the 9/11 attacks also has been put down to a failure to communicate within the intelligence community. US agents had the info they needed, they just failed to share it with one another.

There's no tread left on those tires, General. The Guardian points out this is the first time Alexander has been interrupted while deploying the "could have prevented 9/11" argument.

This wasn't the only used-up rhetoric Alexander deployed. He defended the bulk collections by claiming he "didn't know" a "better" way to protect Americans from terrorism.

"I don't know a better way to do it,” he said. "It's like holding onto a hornets' nest. We're getting stung. You've asked us to do this for the good of the nation … nobody's thought of a better way. We can't let the nation down."

That was Alexander's justification. There's no other way but a bulk, untargeted metadata collection containing millions of records of non-suspects.

But when Alexander says there's no other way to keep Americans safe, he's (no surprise) lying. There is another way and Alexander knows it because the NSA was forced (by the FISA court) to accomplish the task of fighting terrorism without being given access to millions of non-relevant phone records. FISA Judge Walton's orders, which followed on the heels of the admission of widespread abuse of the Section 215 collections, forced the NSA to seek court approval just to search what had previously been collected.

Since the March 5, 2009 FISA Court order, the Court's approval has been required for each selector before it is tasked for BR FISA metadata analysis. On Mar 21 NSA resumed manual access to BR FISA metadata, allowing chaining [redacted] of FISA Court-approved selectors associated with [redacted] following multiple operational and technical reviews to ensure compliance.

As Judge Walton noted then, the collection itself seemed to be overkill and prone to abuse.

The minimization procedures… have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively.

Nearly all of the call detail records collected pertain to communications of non-US persons who are not the subject of an FBI investigation… [or] are communications of US persons who are not the subject of an FBI investigation… and are data that otherwise could not be legally captured in bulk by the government.

So, there are other ways to accomplish this and the agency has had to work within stricter limitations in the past. The multiple flaws in Alexander's assertions are highlighted in this statement. Most of what's collected isn't pertinent to investigations and is, in fact, bordering on illegal. The only thing saving Alexander's favorite collection is some very favorable readings of the Third Party Doctrine and secret interpretations of the laws governing these data hauls.

Legislative efforts being made aim to roll back some of this power, something Alexander can't bear to see happen. If nothing else, a neutral storage site that can only be accessed by court-aprroved RAS selectors would be a start. But according to the chief spy, these limitations would lead to another 9/11. He wants it all and he wants unfettered access. There are other ways of compiling and searching metadata. Alexander knows this, but he has no interest in a more targeted approach.

This is Alexander's "hornet nest." Any stings he collects while handling it are solely his fault. If he doesn't like the pain associated with handling the hornet's nest, maybe he shouldn't have fought so hard to keep holding it.



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I cannot say enough good things about Ryan Lizza's comprehensive article about the NSA's surveillance programs and the legal mess and political fights they've created. There's nothing particularly new in the article, but it does an astoundingly good job putting everything that we've learned into context. Even as someone who's been following all of this very closely, it was still a bit of a jumbled puzzle in my mind, but Lizza's piece took all of it and laid out the entire picture. It goes through all of the details of how and why the NSA began the program, its regular and repeated (often egregious) abuses, and the questionable legal defenses to protect the program. It goes into great detail on Senator Ron Wyden's long fight against these programs and in favor of civil liberties and the Constitution. It details how and why President Obama flip-flopped from his position as Senator and kept the programs, despite multiple opportunities to dump them. Even crazier, it discusses how a proposal Obama made as Senator might have stopped these programs years ago:

Even without a full picture of the programs, two senators who were not on the Intelligence Committee became intense critics of N.S.A. domestic surveillance: Barack Obama and Joe Biden. In May, 2006, after the USA Today article appeared, Biden said it was frightening to learn that the government was collecting telephone records. “I don’t have to listen to your phone calls to know what you’re doing,” he told CBS News. “If I know every single phone call you made, I’m able to determine every single person you talked to. I can get a pattern about your life that is very, very intrusive.”

Obama’s objections to domestic surveillance stretched back even further. In 2003, as a Senate candidate, he called the Patriot Act “shoddy and dangerous.” And at the 2004 Democratic Convention, in the speech that effectively launched his eventual campaign for President, he took aim at the “library records” provision of the law. “We worship an awesome God in the blue states, and we don’t like federal agents poking around our libraries in the red states,” he declared. In 2005, when he arrived in Washington, Obama became one of Wyden’s new allies in his attempts to reform the law. The Patriot Act was up for reauthorization, and, at Wyden’s urging, the Senate was trying to scale back the “library records” section. One of the first bills that Obama co-sponsored, the Security and Freedom Enhancement Act, would have required that the government present “specific and articulable facts” if it wanted a court order for records, a much higher standard than the existing one.

Obama and several other senators, including John Kerry, now the Secretary of State, and Chuck Hagel, the current Secretary of Defense, laid out their legal case against the provision in a letter to colleagues on December 14, 2005. The government could “obtain library, medical and gun records and other sensitive personal information under Section 215 of the Patriot Act on a mere showing that those records are relevant to an authorized intelligence investigation,” they wrote. It allowed “government fishing expeditions targeting innocent Americans. We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy.” The following day, on the Senate floor, Obama said that the provision “seriously jeopardizes the rights of all Americans and the ideals America stands for.”

The Bush White House fought Obama’s changes, but offered a few minor concessions. Most notably, a business that received a demand for records could challenge in court a nondisclosure agreement that accompanied the demand. That was enough to placate some Democrats, including Obama. Wyden objected that the change did nothing to address Obama’s concerns, but the reauthorization of the Patriot Act passed the Senate on March 1, 2006. Wyden, eight other Democrats, and one Independent voted against it; Obama and Biden voted for it. Bush signed the law on March 9th.

Wyden later learned that, while he and Obama were fighting to curtail Section 215, the N.S.A.’s lawyers were secretly arguing before the FISA court that the provision should allow the N.S.A. to legally collect the phone records of all Americans. The lawyers, encouraged by their success in retroactively legalizing the Internet-metadata program, believed that they could persuade the FISA court to force phone companies to regularly hand over their entire databases. At the FISA court, there are no lawyers challenging the government’s arguments; all the N.S.A. needed to do was convince a single judge. Had Obama’s language been adopted, the N.S.A.’s case would have collapsed.

It's a long but fascinating article that you owe it to yourself to read, no matter where you stand on these issues. It paints the whole picture that hasn't been clear to many, and highlights just how dysfunctional the oversight has been of the NSA. And, if you weren't already impressed enough by Senator Wyden, the article presents even more reasons to be impressed by him (and depressed that there's only one of him).

On Twitter last week, after the Snowden leaks showing that, yes, as Wyden had been hinting all along, the NSA has been collecting location data on tons and tons of people, there was a great tweet by Kade Ellis, saying:

New rule: when Ron Wyden asks "NSA, do you do this spying?" HE ALREADY KNOWS THE ANSWER AND THE ANSWER IS ALWAYS YES

Unfortunately, as the article details, Wyden very rarely is even allowed to ask these questions, and the intelligence community stonewalls at every opportunity. Senator Dianne Feinstein, who should be managing oversight of the intelligence community appears to believe her job is rather to defend and support the intelligence community.

Still, the most disappointing aspects of the article really focus on how President Obama and his advisors, many of whom had spoken out against the Patriot Act and various aspects of the program now in place, suddenly changed positions once they were in power, and it was their power to abuse. The repeated stories of intelligence industry insiders coming up with the flimsiest of reasons why these programs must continue are plenty troubling. However, the fact that no one in the government seems to think that the American public can even be trusted with their basic reasoning and interpretations of the laws of the land is just ridiculous.

Either way, as stated, you owe it to yourself to find some time to read the whole thing -- but prepare to be outraged.

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Senator Ed Markey has been very interested in just how often law enforcement requests information from telcos since back when he was in the other house of Congress, sending letters to the major telcos and releasing the details of their responses. There are good breakdowns of the total number of requests from the various telcos (and, damn, it's a lot) over at Forbes and PrivacySOS.

However, I wanted to focus in on just one element of the responses, from wireless carrier Cricket. One of the questions asked was how much money the company received in response to law enforcement requests. There is some reasonable debate over these fees for a variety of reasons. At one end of the spectrum, you can reasonably argue that if the government comes in and demands work from a private company, they ought to compensate them for the time -- and indeed, that's what the law allows (it says that such payments are to cover costs, not profit). On the other side, though, it seems... wrong for the government to pay telcos with taxpayer money to violate our privacy. Also, it raises the specter of companies profiting from coughing up our info to the government, and leads some to argue that the telcos do it willingly to make money. To be honest, it's such a drop in the bucket compared to other revenue streams, I'm not sure it really matters that much.

However, now it turns out that the government is really bad about paying -- at least according to Cricket. In answering the question about the money, Cricket noted that it doesn't make much, but the government often just ignores its invoices:

Pursuant to 18 U.S.C. § 2706 Cricket is entitled to reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing, or otherwise providing information in request to legal process received from law enforcement. For real-time requests for surveillance, Cricket is also entitled to reasonable reimbursement pursuant to 18 U.S.C 2518(4) for "reasonable expenses incurred in providing such facilities or assistance" in implementing Title III orders. Cricket is not entitled to, and does not make any profit on services rendered to law enforcement. Further, Cricket is frequently not paid on the invoices it submits to law enforcement. Cricket's fee schedule has not changed since the last response.

This is the first time I've seen that suggested anywhere. As awful as it may sound to see the federal government potentially paying companies to violate our privacy, it somehow seems even worse to promise to pay them, and then stiff them.

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Please share widely and repost with attribution. This content is licensed CC BY-SA 3.0. Comments, suggestions, and criticism are welcome. Originally posted at To Promote the Progress?

Early Monday morning, Wikileaks released a second set of documents pertaining to the ongoing Trans-Pacific Partnership negotiations. Unlike the previous leak, this one does not contain a draft text, and instead consists of a series of comments and analysis by an unidentified negotiating party (clearly not the U.S.), as well as a table reporting each negotiating party’s position on specific issues in each chapter. The documents come from the Salt Lake City round of negotiations, which took place from November 19 to November 24, 2013.

The comments are brief, but well worth reading, as they indicate a degree of frustration with the lack of progress during the Salt Lake City round, and explicitly charge the United States with intransigence (e.g., on the topic of agricultural export subsidies, the author writes “All TPP countries except the U.S. commit to eliminate them”; likewise, with respect to financial services, he/she writes “United States shows zero flexibility.”)

An additional round of negotiations was held from December 7 to December 10 in Singapore. We learned yesterday that contrary to previous expectations, the TPP will not be concluded by year’s end, and instead at least one additional meeting will be held in January 2014.

Following up on my previous post, which analyzed the leaked intellectual property chapter by using network graphs, in this post I analyze overall negotiating positions across the entire agreement, as well as in each individual chapter. This analysis is based on the leaked table reporting negotiating positions.

Visualizing Negotiating Positions

The following graphs take the approach of plotting negotiating “distances” between countries. That is, the more dissimilarity there is between two countries’ negotiating positions, the further apart the countries will appear on a graph. Distances are derived directly from the leaked position table. The centroid is given by the origin point (0,0). In most cases, both axes used the same scale, but in a few cases (which I note) they are different. Scales are not comparable between graphs. All the graphs use “jitter,” which helps avoid overlapping labels, but makes distances slightly inexact. For technical details, see the “Nuts and Bolts” section towards the end.

This first graph represents the overall negotiating position distances between countries across all available chapters. There is a striking separation between the United States and all other TPP negotiating parties. Australia comes closest to the U.S. position, although it is not any further from the centroid than Peru. Overall, this graph serves to provide a simple visual confirmation of the leaked comments and other news reporting on TPP negotiations: the U.S. position is quite distant from the consensus point of all other countries.

Since my area of interest is intellectual property, I look at the IP chapter next. The results suggest my previous analysis was relatively accurate. The U.S. position in the intellectual property chapter is again farthest from the centroid. Australia is also quite far from the centroid, but also far from the U.S. All the other parties are clustered relatively close together, although we can still see differences within this cluster: e.g., Vietnam and Brunei are quite near one another, as are Canada and Malaysia (I had noted both these connections in the previous analysis).

In the remainder of this section, I consider each leaked chapter in alphabetical order.

The competition/state-owned enterprises graph tells a very different story than the previous two graphs. Here we immediately see two clusters on either side of the centroid: a United States/Canada/Australia/New Zealand/Mexico cluster, and a Japan/New Zealand/Singapore/Brunei/Chile cluster. Peru, Vietnam, and Malaysia fall in the middle. Note that the relative level of disagreement when compared to other chapters is low, since the data source reports positions only on a single proposal (sub-national coverage).

In the customs chapter, we see agreement amongst all parties except Japan (who has a “reserved position”) and the United States (who is the only party accepting the proposal). Again, the relative level of disagreement when compared to other chapters is low, since the data source reports positions only on a single proposal (a de minimis exception of $200).

The e-commerce chapter also provides a very different picture. There is a clear United States/Japan/Mexico cluster, which Peru also joins. Canada is nearby, but Australia is not. Brunei and Vietnam, normally close pairs, are quite far apart in this chapter.

The environment chapter also shows a distant United States position. Canada, Australia, Japan, Mexico, and Brunei cluster together quite close to the centroid, while Peru, Chile, Vietnam and Malaysia (all lower-income and middle-income countries) appear on the other periphery.

In government procurement, Mexico and Malaysia are the outliers. Both have rejected the proposal for sub-national coverage of this chapter. Relative distances are still small, given that there are only two proposals shown in the source table.

In the investment chapter, the United States appears again as the country furthest from the centroid. Japan is also relatively distant. Australia/Canada/Mexico cluster together, as do Brunei/New Zealand/Peru/Malaysia/Chile. One of the biggest debates in this chapter surrounds so-called investor-state dispute settlement, which would permit foreign firms to sue governments over alleged trade agreement violations. This type of provision is what has permitted tobacco company Philip Morris to sue the Australian government over its plain packaging legislation.

On labor issues, Australia and the United States cluster together far from the centroid. Mexico is also quite distant. Malaysia and Canada form a pair, but closer to the centroid. Mexico’s peripheral position is due to its rejection of the proposal on forced labor. The other two proposals concern sub-national coverage and dispute settlement.

The legal chapter includes a variety of topics such as the medicines “transparency” annex (i.e., the U.S. taking aim at foreign drug price controls), provisions exempting tobacco regulations from challenge, the “cultural exception” (bonjour Quebec!), and issues concerning when the agreement will enter into force, inter alia. Interestingly, we have almost a circle of positions around the centroid, with the exception of the United States, which is again farthest from the centroid.

The market access chapter is what most people typically think of when discussing trade agreements. Here, we see a wide variety of positions, representing significant disagreement. However, yet again, the United States appears farthest from the centroid. As noted above, the U.S. is the lone holdout on the proposal to eliminate agricultural subsidies. A recent Washington Post article on the U.S. sugar industry suggests that such subsidies aren’t going anywhere. I suppose that’s why the TPP is called a “partnership agreement”, rather than a “free trade agreement.”

Rules of origin are rules defining where a product is deemed to come from. Given that anything other than the simplest products will incorporate materials or parts from multiple countries, such rules are critically important in determining what products benefit from tariff reductions. We can see significant disagreement between most parties, with the United States position yet again farthest from the centroid.

With respect to trade in services, the United States and Canadian positions are identical, but farthest from the centroid. Peru and Chile are also peripheral, while all other parties cluster together near the centroid. The U.S. and Canadian positions are defined by their rejection of the “necessity test” proposal. Necessity tests require domestic regulation of services to be limited to only what is “necessary” to achieve a party’s policy objectives. Peru’s position is defined by its rejection of the open skies (air travel regulation) proposal.

SPS refers to sanitary and phytosanitary measures, which deal with food safety and plant and animal health regulations. If you’re wondering what this has to do with free trade, think of Japan or the European Union banning imports of U.S. beef: such bans may be motivated by legitimate health and safety concerns, but they may also simply provide a convenient cover for protectionism. The graph shows a significant amount of disagreement amongst most parties. In this chapter, the U.S. remains on the periphery, as does Japan, although there is no major consensus cluster amongst the other parties.

TBT stands for technical barriers to trade. Such provisions in trade agreements are designed to ensure that regulations, standards, and testing or certification requirements do not unduly burden free trade. Australia and the United States are clustered near one another, but this time it is a Peru/Chile cluster that is farthest from the centroid. All the Asian members plus New Zealand also form a cluster.

These graphs use ISO standard 2 letter country codes, but for reference, here is a legend:

US	United States
CA	Canada
JP	Japan
AU	Australia
NZ	New Zealand
MX	Mexico
PE	Peru
CL	Chile
SG	Singapore
MY	Malaysia
BN	Brunei
VN	Vietnam

Without access to the text, it’s sometimes difficult to know exactly what the various proposals mean. However, what we do know is that in the majority of chapters for which we have data, the United States appears quite far from the centroid position, and often by itself. This isn’t really news, but I think it’s interesting to systematically consider the distances between negotiating positions, and to note that the distances and clusters vary significantly by chapter and issue.

As for what it means, I think it’s fair to conclude that the TPP – unlike something like ACTA – is by no means an agreement amongst “like-minded countries.” Now, contention and disagreement isn’t always bad; on the contrary, it’s part and parcel of any negotiation. But one has to wonder about which countries are going to end up shifting positions, and in what direction, in order to make consensus and a final text possible. I suspect it won’t be the United States offering the compromises.

There are important issues at stake in the TPP negotiations, affecting access to medicines, national health policies, and national sovereignty inter alia. Yet the negotiating parties are being pushed to come to an agreement within the next two months. I won’t delve into any more detail here about the substantive issues, other than to recommend this Guardian guide to the most contentious issues in the TPP negotiations.

Nuts and Bolts

The approach I use here is called multidimensional scaling (MDS) which visualizes similarity and differences between cases as distances in N-dimensional space. I have to give a hat tip to Zhou Fang, who suggested this approach to me.

The leaked table of negotiating positions lends itself perfectly to MDS. In fact, the hardest part was probably retyping the scanned Wikileaks document. I coded an “accepted” position as 1, a rejected” position as a 0, and a “reserved position” as 0.5. Note that coding is somewhat arbitrary; e.g., I could have chosen 1, -1, and 0 instead. Different coding will affect the nominal distances, but not the relative distances (unless the coding employed unequal intervals).

The dist function creates a distance matrix. The MASS library provides the isoMDS function. isoMDS chokes when cases are identical (zero distance), so I had to add a nominal amount of distance between otherwise identical negotiating positions. Plotting is done with ggplot2, which makes adding jitter very easy. I adjust jitter on a case-by-case basis in order to avoid misleading distortions in the graphs. Most of the graphs use identical X and Y axes, but in a few cases the Y axis would have been highly compressed, so I expand it to make visual differentiation possible. Note carefully the scale changes between graphs.

Data and code available upon request. I’m currently in South Africa, so between the time difference and sporadic access to the Internet, I might not get back to you quickly, but I will do so eventually.

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Because, hey -- it's worth a shot, the Chinese government-run media recently released an article citing five "surprising benefits" of the smog covering its largest cities. Mmmm, air so good you can taste it. Drumroll sad trombone please:

1. It unifies the Chinese people. 2. It makes China more equal. 3. It raises citizen awareness of the cost of China's economic development. 4. It makes people funnier. 5. It makes people more knowledgeable (of things like meteorology)

LOL, your cough makes you funnier. But seriously, anybody who's ever lived in a smoggy city knows there's really only one real benefit of air pollution: the sunsets. I live in Los Angeles and a lot of times the sky is like, LASER RED before the sun goes down. So red sometimes I wonder if it's actually on fire, and it might be. Thanks to E V I L A R E S, who's so evil if he wishes his superpower was to breathe smog.

I have something of a conflicting relationship with the Transportation Security Administration. On one side, I absolutely hate the idea of giving up freedom and pride for the sake of one of the most futile attempts at security theater known to man. On the other hand, it's quite useful to have such an amazing example at which to point when I get into a conversation with someone about how stupid my government can be. Then again, it's hard to justify that use when so many of my countrymen are subjected to poking and prodding by agents of the people that elect them. On the other hand, I mean, if I'm ever lonely on a cold, wintery night, the airport ain't that far away, know what I mean?

But, in an apparent effort to make my mind up for me, the TSA has recently decided to prove to the world that they've lost their collective minds. The latest example of this is when the TSA in St. Louis took possession of a gun a woman had in her bag. Which would be fine, except that the gun was 2 inches long and was owned by the sock-puppet the woman had crafted as part of her business.

The TSA agent searched the bag and found the 2-inch-long toy pistol, which gave her pause.

"She said, 'This is a gun,'" May said. "I said, 'No, it's not a gun it's a prop for my monkey.'"

But the agent remained concerned.

"She said 'If I held it up to your neck, you wouldn't know if it was real or not,' and I said 'really?'" May said.

Again, kudos to this TSA agent for making certain everyone around her knew she wasn't competent enough to be able to tell a real gun from a 2 inch toy because, hey, that's going to be useful information come performance review time. And sure, there might be some TSA rule somewhere that specifically says that nothing even resembling a firearm can be taken onto a plane in this way, but that doesn't make the passenger stupid, it makes the rule stupid. Put it this way: we now live in a country where you can't take a sock-puppet's toy gun on a plane. Congratulations everyone.

Fortunately for everyone on the flight, safety is the TSA's primary concern.

The agent confiscated the monkey doll's toy weapon and said she was required to call police.

"Rooster Monkburn has been disarmed, so I'm sure everyone on the plane was safe," May said. "I understand she was doing her job but at some point doesn't common sense prevail?"

Of course not, citizen. There's nothing in the TSA employee handbook about common sense. It's all genital-brushing and nudie-scanning, all the time. Even the TSA said so when they were asked to comment:

The TSA told NBC News in a statement: "TSA officers are dedicated to keeping the nation's transportation security systems safe and secure for the traveling public. Under longstanding aircraft security policy, and out of an abundance of caution, realistic replicas of firearms are prohibited in carry-on bags."

There's a joke here about something being two inches long still being the realistic version of an object typically several times larger, but I'm not going to make it (pssst! I'm talking about penises again!). Instead, let's just say that the TSA's dedication to not using any semblance of common sense is a wonderful prime reason for their dismantling.

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