Daily Archives: November 7, 2014

NATO chief hails new chapter in Afghanistan

Posted: November 7, 2014 at 7:50 am

NATO Secretary General Jens Stoltenberg meets Afghan President Ashraf Ghani during a visit to Afghanistan on Thursday, Nov. 6, 2014.

Stars and Stripes

Published: November 6, 2014

KABUL, Afghanistan NATO Secretary-General Jens Stoltenberg, during an unannounced visit to Afghanistan Thursday, promised continued alliance support after foreign combat troops leave the country by years end.

NATO and our partners have stood with Afghanistan for more than a decade, Stoltenberg said during a joint news conference with Afghan President Ashraf Ghani. Next year, we will open a new chapter. The future of Afghanistan will be in Afghan hands. But our support will continue.

After the NATO-led combat mission ends this year, about 12,000 foreign troops 9,800 of them American will remain primarily to advise and assist Afghan security forces.

Ghani praised the alliances efforts, noting NATO troops have stood shoulder to shoulder with Afghan National Security Forces during the bloodiest days of the 13-year war. While he said he was confident Afghan forces will be able to secure the country after 2014, Ghani noted that effort would depend on continued financial backing from Washington and NATO.

NATO has committed to fund Afghanistans 350,000 security forces at $4.1 billion annually. At a NATO summit in Wales in September, alliance leaders committed to continue funding through 2017.

Afghanistans new president was supposed to attend that summit, but because election results were still in dispute, the country was represented by the defense minister. Stoltenberg invited Ghani and Abdullah Abdullah chief executive in the new unity government and Ghanis rival in the protracted election to attend a NATO ministerial meeting on Dec. 2.

Stoltenberg said NATO wanted to develop its long-term partnership with Afghanistan.

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The NSA’s Mass-Surveillance Program Is About to Go on Trial – Video

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The NSA #39;s Mass-Surveillance Program Is About to Go on Trial
http://www.nationaljournal.com/tech/the-nsa-s-mass-surveillance-program-is-about-to-go-on-trial-20141103.

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NSA Chief Bet Money on AT&T as It Spied on You – Video

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NSA Chief Bet Money on AT T as It Spied on You
http://www.thedailybeast.com/articles/2014/11/03/nsa-chief-cashed-in-on-at-t-as-it-spied-on-you.html.

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Egya Koo Nimo plays "aban kaba da me nsa" @ Ashesi – Video

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Egya Koo Nimo plays "aban kaba da me nsa" @ Ashesi
Palm wine music with Egya Koo Nimo.

By: Kpanie Addy SJ

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Republicans Taking Over Congress Isnt the Privacy Nightmare Youd Think

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NSA reform may be the last true bipartisan issue.

Republicans won victories nationwide in Tuesdays midterm election, handily taking control of Congress and ousting two key criticsSenator Mark Udall (D. Colorado) and Senator Mark Begich (D. Alaska)of the NSA. The GOP takeover of the legislative branch means Republicans will chair all senate committees, including the powerful Senate Select Committee on Intelligence.

Privacy advocates like the ACLU are often aligned with the Democratic and liberal sides of politics, so it stands to reason that some might worry this would be a crushing blow to privacy. The biggest NSA defenders are Republicans; the Patriot Act that justifies much of the spying behavior disclosed by Edward Snowden was created and passed under a Republican administration and Congress; and a majority of Republican lawmakers have voted to enhance those spying powers over the years, even after the Snowden information was revealed.

Further, 2015 is shaping up to be a key year in the fight for privacy in the post-Snowden era. A number of provisions of the Patriot Act will be up for reauthorization next June. The USA Freedom Act, which aims to curtail NSA powers, will also finally be up for consideration in the Senate. With more than half of the American people disapproving of the NSAs activities, reform is a clearly pressing issue.

Yet, a Republican majority in the House and Senate is not the devastating blow to privacy you might have expected it to be. Here are four reasons why.

Though NSA reform once was a partisan issue, Edward Snowdens revelations of the depth of government surveillance united Democrats and Republicans in calling for an overhaul. Neema Singh Guliani, legislative counsel with the American Civil Liberties Union, says its too early to tell what direction the new leadership will go, but she says the issue of NSA reform is not a one-senator or a one-party issue.

Take Colorado, for instance. Outgoing Democratic Senator Mark Udall was one of the Senate intelligence committees few members who persistently criticized the agencies it oversaw. He fought all expansions of NSA reach and opposed using drones to spy on US citizens, introduing a bill in 2013 to ensure private drone operators could not spy on people in this country.

If he were to be replaced by a pro-NSA senator, the weight of the reform movement would have become severely unbalanced.

In fact, Republican Cory Gardner, who beat Udall handily by 4 percentage points, has such a good record on privacy that Udall was essentially unable to run on his own sterling record. Gardner recently reversed his position on matters of privacy. Though he initially voted for the updated and expanded Patriot Act in 2011 (which Udall was staunchly against), Gardners record changed dramatically after Snowdens NSA revelations, consistently voting against expanding NSA reach. As a congressman, he co-sponsored the EFF-backed version of the new USA Freedom Act.

This kind of bipartisan support for privacy issues is not unique to Colorado, as one look at the congressional scorecard compiled by the coalition for StandAgainstSpying reveals.

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Now the GOP Must Choose: Mass Surveillance or Privacy?

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Before May, Congress has no alternative but to endorse or end NSA spying on the phone calls of virtually every American. What is the will of the new party in charge?

Toby Melville/Reuters

The Patriot Act substantially expires in May 2015.

When the new Congress takes up its reauthorization, mere months after convening, they'll be forced to decide what to do about Section 215 of the law, the provision cited by the NSA to justify logging most every telephone call made by Americans.

With Republicans controlling both the Senate and the House, the GOP faces a stark choice. Is a party that purports to favor constitutional conservatism and limited government going to ratify mass surveillance that makes a mockery of the Fourth Amendment? Will Mitch McConnell endorse a policy wherein the Obama administration logs and stores every telephone number dialed or received by Roger Ailes of Fox News, Wayne LaPierre of the NRA, the Koch brothers, the head of every pro-life organization in America, and every member of the Tea Party? Is the GOP House going to sacrifice the privacy of all its constituents to NSA spying that embodies the generalized warrants so abhorrent to the founders?

The issue divides elected Republicans. Senator Rand Paul and Rep. Justin Amash are among those wary of tracking the phone calls of millions of innocent people. Senator Richard Burr favors doing it. Republicans pondering a run for president in 2016 will be trying to figure out how mass surveillance will play in that campaign.

Many would rather not take any stand before May, as if governingthe very job citizens are paying them to dois some sort of trap. But their preferences don't matter.

This fight cannot be avoided.

Nor is it the only one that touches on surveillance. The dubiously named USA Freedom Act began as an effort to reform the NSA and has since been weakened. The NSA and FBI engages in lots of questionable surveillance besides the phone dragnet. Republicans will now run the Senate and House intelligence committees.

Rather than urging the GOP to avoid "the governing trap," National Review and other outlets purportedly dedicated to constitutional conservatism ought to be demanding that Republicans use their newfound power to rein in our surveillance bureaucracy, for anyone with a healthy mistrust of government should see how easily its staggering power, exercised in secret, could be ruinous to liberty. A limited government movement that does not demand oversight and reform, now that its party has regained power, is a farce. To endorse the national surveillance bureaucracy as it now stands is tantamount to declaring oneself a trusting statist.

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IT Security TV Show 4 November 2014 – iPhone Users Forfeit Fifth Amendment – Video

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IT Security TV Show 4 November 2014 - iPhone Users Forfeit Fifth Amendment
http://www.secpoint.com/news IT Security News show 4th November 2014 Many Security Topics covered Pirate Bay founder Gottfrid Svartholm Found Guilty in Hacki...

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Is taking the fifth amendment a bad idea? – Video

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Is taking the fifth amendment a bad idea?

By: Jeffrey Weiner

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Virginia state trial court ruling on the Fifth Amendment …

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Last week, there was a lot of press coverage about a Virginia court ruling on how the Fifth Amendment applies to bypassing a smart phone passcode. The ruling hasnt been available before today, but here it is: Commonwealth v. Baust, via Marcia Hofmann. Its a short opinion, just five pages, so its a quick read. Unfortunately, though, the opinion doesnt address the really important issue raised by compelled decryption: Whether the government can force the defendant to enter in the passcode. Its not the courts fault that the opinion didnt reach that, to be clear. The government never asked for an order compelling the defendant to do that, so the court didnt decide it. Heres a quick rundown of the facts, the law, and my reaction.

The defendant has been charged with assaulting a woman. There is reason to believe that the defendant videotaped the assault and that there is a copy of the video on the defendants passcode-protected smart phone. The state wants the defendant to be ordered either to disclose his passcode so the police can enter in the passcode to unlock the phone themselves, or else to give up his fingerprint to unlock the phone directly using the phones fingerprint sensor.

The court reaches a split ruling. First, there is no Fifth Amendment problem with forcing the defendant to provide his fingerprint. Second, the defendant cannot be forced to tell the government his passcode because that would be forcing the defendant to disclose the contents of his own mind. Most importantly, the court rules that the foregone conclusion doctrine doesnt apply because the police dont know the passcode:

Contrary to the Commonwealths assertion, the password is not a foregone conclusion because it is not known outside of Defendants mind. Unlike a document or tangible thing, such as an unencrypted copy of the footage itself, if the password was a foregone conclusion, the Commonwealth would not need to compel Defendant to produce it because they would already know it.

In dicta, the Court adds that the defendant could not be compelled to hand over a decrypted version of the video believed to be on his phone. Thats true because it is not a foregone conclusion that the video exists or is on the phone. The defendant cant be forced to effectively testify as to that by producing a decrypted version of the video.

This is just a state court trial ruling, not an appellate decision. So its interesting more for its reasoning than its precedential value. With that said, here are some thoughts on the reasoning of the case.

First, the courts ruling on divulging a fingerprint is easy. Theres obviously no Fifth Amendment problem with that. On the governments request for the passcode, the opinion is frustrating because the governments request was poorly framed. In this case, the government doesnt need to know the defendants passcode. It only needs to bypass the passcode gate, either through the fingerprint or by having the passcode entered in by the defendant. If the government couldnt get into the phone with the fingerprint, then, the sensible request would be for an order to have the defendant enter in the code rather than an order disclosing it to the government. But the government didnt ask for that: Instead it asked for an order that the defendant tell them his passcode.

Whats the difference? Having the defendant enter in his passcode would minimize the Fifth Amendment implications of the compelled compliance, as it would not involve disclosing the potentially incriminating evidence of the passcode itself. The passcode itself could be independently incriminating, at least in some cases. Imagine a conspiracy case in which members of the conspiracy use a common passcode. Proof that a suspect used that exact passcode on his own phone would be incriminating evidence, as it could help to show membership in the conspiracy.

Because the passcode itself could be incriminating, the smart way to limit the Fifth Amendment problem is for the government to ask for an order compelling the target to enter in the passcode rather than to divulge it to the police. That way, the government gets the unlocked phone but never gets the passcode. If the defendant has to enter in the passcode rather than tell it to the police, the testimonial aspect of complying would only be admitting knowledge of the passcode, which would very likely be a foregone conclusion in a case where the phone is used heavily by that person. But the government didnt ask for that here, so the court didnt consider how the Fifth Amendment would apply in such circumstances.

Notably, the court does address in dicta whether it would be incriminating for the defendant to hand over the unencrypted video believed to be on the phone. But forcing the defendant to hand over the unencrypted video is quite different from having him enter in the passcode to unlock the phone. Being forced to enter in the passcode to unlock the phone amounts to being forced to say, I know the passcode for this phone. On the other hand, as the court recognized, being forced to produce the unencrypted video amounts to being forced to say much more, such as I admit that the video exists; I admit that this is the video; I know where that video is; and I admit that I know what video youre talking about. Being forced to produce the video raises a host of Fifth Amendment issues that merely entering in the passcode does not.

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Volokh Conspiracy: Magistrate issues arrest warrants for 17 years but is new to probable cause

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Heres a remarkable case from the Ohio Supreme Court, State v. Hoffman, involving an unconstitutional arrest warrant. The defendant was arrested for a misdemeanor based on a defective arrest warrant, leading to the discovery of evidence of murder. The remarkable part is why the arrest warrant was defective. For at least 17 years, magistrates in Toledo, Ohio were instructed to issue arrest warrants without ever actually making a probable cause determination. Officers would just say that the suspect had committed an offense, and the magistrates would issue the warrant without ever hearing the factual basis for that conclusion. Heres the testimony of the magistrate who issued the arrest warrant in this case:

Q. And during your 17 years of swearing in criminal complaints with requests for arrest warrants, did you know what probable cause was? A. No. Q. Had you ever made a probable cause determination? A. No. * * * Q. Did any of [your] training include making a probable cause determination? A. No, it did not.

Pretty astonishing, given that the text of the Fourth Amendment says, no warrants shall issue, but upon probable cause.

In the new decision, the Supreme Court of Ohio recognizes the flagrant constitutional violation but concludes that the evidence in this case should not be suppressed because of the good-faith exception. An intermediate state case, State v. Overton, had involved a similar warrant, and the Overton court had held in a one-paragraph summary that the warrant had established probable cause. The Ohio Supreme Court concludes in Hoffman that Overton was binding appellate precedent under Davis at the time the warrant was issued in Hoffman, essentially trumping the text of the Fourth Amendment for purposes of the exclusionary rule.

I find Hoffman puzzling in two ways. First, I think the scope of the exclusionary rule for a defective warrant is set by United States v. Leon, 468 U.S. 897 (1984), not Davis. Leon lays out the standards for when the good faith exception applies to defective warrants, and it clearly does not apply here: Leon says that the good faith exception only applies if [s]ufficient information [was] presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. This case involves exactly that mere ratification that Leon says wont suffice. Given the clarity of Leon on this point, coming straight from the U.S. Supreme Court, it seems strange to me to apply Davis instead based on the conclusory decision in Overton.

Second, even if Leon applies instead of Davis, its not obvious to me that suppression is an available remedy. The problem, it seems to me, is that arrests generally dont require warrants. Unlike searches, they generally require only probable cause. Given that, its not clear to me that a defective arrest warrant makes a difference. If the police have probable cause, they could make the arrest without a warrant. In such circumstances, I dont see how the arrest violates the Fourth Amendment (as compared to the warrant) if the police also obtain a warrant that is defective. Probable cause authorizes the arrest, not the warrant, so a search incident to arrest should be okay. Granted, in Hoffman, its not clear that the police actually had probable cause. It looks like the officers relied mostly on the warrant in the suppression hearing rather than making the case for probable cause directly. Either way, probable cause is the real issue.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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Volokh Conspiracy: Magistrate issues arrest warrants for 17 years but is new to probable cause

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