Daily Archives: May 28, 2017

In a letter sent today to House lawmakers, major tech companies asked for reforms to a legal authority underpinning controversial National Security Agency programs.

Section 702 is set to expire at the end of the year

Section 702 of the FISA Amendments Act, which is set to expire at the end of this year, is the legal basis for NSA programs that broadly sweep up electronic communications. The programs are meant to target non-US citizens overseas, although critics have long charged that Americans are unnecessarily caught up in the net. Section 702 is used to authorize the controversial PRISM program, which the NSA uses to collect information from tech companies.

The letter, signed by companies including Amazon, Facebook, Google, Twitter, and Uber, requests that lawmakers consider changes before reauthorizing 702, such as increasing transparency and oversight, as well as narrowing the amount of information collected under such programs. The companies also asked for more leeway in disclosing national security demands.

Last month, the NSA said it would halt 702 collections that simply mention foreign intelligence targets, a process that has been the subject of major criticism. The letter also requests that those changes to the process be codified by law.

The companies write that the letter is meant to express our support for reforms to Section 702 that would maintain its utility to the U.S. intelligence community while increasing the programs privacy protections and transparency.

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Facebook, Google, and other tech companies ask lawmakers to ... - The Verge

Former head of the National Security Agency (NSA) Michael Hayden on Saturday said White House adviser and President Trump's son-in-law Jared Kushner is naive and ignorant if reports that he sought to create a secure communication channel with Russia are true.

Well, Michael, right now, Im going with naivet and thats not particularly very comforting for me, Hayden told CNNs Michael Smerconish.

I mean what manner of ignorance, chaos, hubris, suspicion, contempt would you have to have to think that doing this with the Russian ambassador was a good or appropriate idea?

The former head of the NSA and CIA said Kushners reported action says a lot about both the presidential campaign and the state of American society.

It says an awful lot about the campaign, Michael, said Hayden.

It says an awful lot about us as a society that we could actually harbor those kinds of feelings that the organs of the state would be used by my predecessor to come after me or to intercept my communications or to disrupt my administration in a way that made it seem legitimate to me to use the secure communications facilities of a foreign power.

Hayden added that while it is possible Russia could be engaging in a disinformation campaign, regarding the communications, his instincts say no.

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Ex-NSA head on Kushner: Ignorance, Chaos, Hubris | TheHill - The Hill (blog)

Facebook, Google, Microsoft and a host of tech companies asked Congress on Friday to reform a government surveillance program that allows the National Security Agency to collect emails and other digital communications of foreigners outside the United States.

The requests came in the form of a letter to Republican Rep. Bob Goodlatte, a Virginia lawmaker whos overseeing the debate in the House of Representatives to reauthorize a program, known as Section 702, which will expire at the end of the year without action by Capitol Hill.

In their note, the tech companies asked lawmakers for a number of changes to the law particularly to ensure that Americans data isnt swept up in the fray. Meanwhile, they endorsed the need for new transparency measures, including the ability to share with their customers more information about the government surveillance requests they receive.

Signing the note are companies like Airbnb, Amazon, Cisco, Dropbox, Facebook, Google, LinkedIn, Lyft, Microsoft and Uber.

Absent, however, is Apple, which previously has joined with its tech counterparts in pushing for limits in government surveillance programs. A spokesman did not immediately respond to a request for comment Friday.

Section 702 is one of a number of U.S. surveillance authorities that had been the subject of great scrutiny and debate in the aftermath of Edward Snowdens surveillance leaks. The disclosures have also caused years of heartburn for Silicon Valley, which has faced an onslaught of criticism from international customers who feel the tech industry is too close to the U.S. government. Many top tech companies even banded together in a lobbying group that pushed for surveillance reforms in 2013.

As the fight over the NSAs powers returns to Congress, however, the Trump administration has urged lawmakers to keep Section 702 in its exact, current form.

Earlier this month, the NSA on its own terminated a piece of its program that essentially allowed the agency to collect Americans emails and texts if those communications contained key words related to foreigners that already are targeted for government surveillance.

To that end, the tech companies writing Congress today said Congress should formally outlaw that practice, known as about collection, as part of its new legislation, to ensure it cant come back.

Otherwise, the governments Section 702 program isnt supposed to target Americans. But their communications still are lapped up in the bunch, sometimes incidentally, including cases in which an American is communicating directly with a non-U.S. person who is the subject of NSA scrutiny. Despite calls from the likes of Sen. Ron Wyden, D-Ore., the agency has never disclosed the total number of Americans affected by such a program.

In response, the tech industry asked Congress to put in place judicial oversight for government queries for U.S. citizens data. And they asked House lawmakers to rethink other portions of the law to reduce the likelihood of collecting information about non-U.S. persons who are not suspected of wrongdoing.

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The nation's top tech companies are asking Congress to reform a key NSA surveillance program - Recode

President Donald Trumps firing of FBI director James Comey continues to reverberate in the KremlinGate scandal, which threatens to consume the Trump administration. By abruptly removing Comey, then mangling his excuses for why he did so, Trump created a needless crisis for the White House which shows no signs of abating.

The impartial observer might think that Trump fired Comey because he feared what the FBIs counterintelligence investigation of the presidents contacts with Russia might revealas the commander in chief has essentially admitted. Moreover, Trumps inappropriate efforts to secure Comeys personal loyalty had fallen flatthe FBI director rightly assured the president of his honesty but abjured any fealty to Trump personallyafter which the president is reported to have developed a palpable fear of the incorruptible Bureau boss. To protect Team Trump, Comey had to go.

But cashiering Comey was insufficient. True to form, Trump seemingly tookthe offensive against the FBI. According to multiple reports, the president approached top intelligence bosses to coax them into joining Trumps personal war with Comey. In particular, Trump is reported to have asked Dan Coats, the director of national intelligence (DNI), and Admiral Mike Rogers, director of the National Security Agency, to go public in denying that Team Trump had any ties to Russia during the 2016 election campaign.

The presidents take on the FBI investigation is well known, thanks to his frequent tweets castigating it as fake news, a hoax and even a witch hunt. However, asking top intelligence officials to publicly attack the FBI and its director isnt just unusualits unprecedented. Even President Nixon, in the depths of the Watergate scandal, which ultimately unraveled his administration, never went quite so far as to drag NSA into his public mess.

Admiral Rogers anecdotally flatlydenied Trumps request, whichif truewas inappropriate, unethical and dubiously legal, while Coats, a Trump appointee whos only been in the DNI job since mid-March, likewise refused to back the president against the FBI. This was a stunning setback for Trump, who seems to view our nations top security officials as his personal employees who ought to follow his presidential whim rather than the law and the Constitution, which all of them take an oath to defend.

Last week, when he appeared before the Senate Armed Services Committee, Coats declined to answer questions about the White Houses effort to undermine the FBI investigation of Team Trump, stating, I dont feel its appropriate to characterize discussions and conversations with the president in open session. Presumably DNI Coats would be more forthcoming in a closed Congressional session, where classified information can be revealed.

Director Rogers, in contrast, has made no public statements about the presidents effort to enlist him in his anti-Comey campaign. This is typical of his famously tight-lipped agencyfor decades, NSA was humorously said to stand for Never Say Anythingand why Trump approached Rogers is no mystery. As the nations signals intelligence force, NSA isnt just the biggest source of intelligence on earthits also the agency possessing the bulk ofthe classified information which establishes collusion between Trump and the Russians. Although whispers of such SIGINT have reached the media, the lions share remains hidden from public view, though its all known to the FBI.

If Trump could co-opt NSA in his fight with the Bureau, that would be a big win, protecting the White House from dangerous information, so its safe to assume that Rogers refusal burned Trump personally. Perhaps thats why, early this week, Admiral Rogers took the unusual step of addressing the entire NSA workforce to tell them what transpired with the president.

This is not Rogers style. Indeed, his tenure as NSAs director (called DIRNSA by insiders) has been characterized by distance from his employees, which has made things rockier than necessary. To be fair to Rogersa career intelligence officer well equipped for his current positionwhen he became DIRNSA in the spring of 2014, he inherited an agency in crisis.NSA was still reeling from the disastrous Ed Snowden affair, the biggest theft of classified information in espionage history.

While Snowden has taunted NSA with tweets sent from his Russian hideaway, more security disasters have followed. The strange case of Harold Martin, yet another rogue defense contractor who stole gigantic amounts of classified information from the agency, constituted another Snowdenesque embarrassment, even though theres no evidence that Martin was engaged in espionage.

Worse for Rogers was the theft of highly classified hacking tools from NSA by the so-called Shadow Brokers, which is widely believed to be a front for Russian intelligence. The dumping of those top-secret exploits online, after modification by rogue hackers, has resulted in worldwide cyberattacks impacting millionsyet another black mark on Rogers tenure as DIRNSA. In response to these very public setbacks, Rogers has seldom addressed the NSA workforce about them or much else.

This weeks town hall event, which was broadcast to agency facilities worldwide, was therefore met with surprise and anticipation by the NSA workforce, and Rogers did not disappoint. I have spoken with several NSA officials who witnessed the directors talk and Im reporting their firsthand accounts, which corroborate each other, on condition of anonymity.

In his town hall talk, Rogers reportedly admitted that President Trump asked him to discredit the FBI and James Comey, which the admiral flatly refused to do. As Rogers explained, he informed the commander in chief, I know you wont like it, but I have to tell what I have seena probable reference to specific intelligence establishing collusion between the Kremlin and Team Trump.

Rogers then added that such SIGINT exists, and it is damning. He stated, There is no question that we [meaning NSA] have evidence of election involvement and questionable contacts with the Russians. Although Rogers did not cite the specific intelligence he was referring to, agency officials with direct knowledge have informed me that DIRNSA was obviously referring to a series of SIGINT reports from 2016 based on intercepts of communications between known Russian intelligence officials and key members of Trumps campaign, in which they discussed methods of damaging Hillary Clinton.

NSA employees walked out of the town hall impressed by the directors forthright discussion of his interactions with the Trump administration, particularly with how Rogers insisted that he had no desire to politicize the situation beyond what the president has already done. Americas spies are unaccustomed to playing partisan politics as Trump has apparentlyasked them to do, and it appears that the White Houses ham-fistedeffort to get NSA to attack the FBI and its credibility was a serious mistake.

Its therefore high time for the House and Senate intelligence committees to invite Admiral Rogers to talk to them about what transpired with the White House. Its evident that DIRNSA has something important to say. Since Mike Rogers is said to have kept notes of the presidents effort to enlist him in Trumps personal war with the FBI, as any seasoned Beltway bureaucrat would do, his account ought to be impressively detailed.

John Schindler is a security expert and former National Security Agency analyst and counterintelligence officer. A specialist in espionage and terrorism, hes also been a Navy officer and a War College professor. Hes published four books and is on Twitter at @20committee.

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Exclusive: NSA Chief Admits Donald Trump Colluded With Russia - Observer

In March of 2015, the Wikimedia foundation joined together with eight other non-profits in a challenge to NSAs mass surveillance program. This week, the U.S. Court of Appeals for the Fourth Circuit permitted the suit to move forward, but in the process, peeled off all plaintiffs other than Wikimedia itself.

The case comes to the Fourth Circuit as an appeal from the the U.S. District Court of Maryland. In October 2015, the District Court dismissed the case for lack of standing, basing its decision on Supreme Courts 2013 ruling in Clapper v. Amnesty International USA. In Clapper, the Court upheld the dismissal of a similar challenge from human rights groups because their complaint was speculative, alleging only a reasonable likelihood that their communications would be intercepted, not actual or imminent injury. Lacking concrete information about government programs, the Clapper plaintiffs failed to properly plead an injury in fact, and so lacked Article III standing. The same logic, held Judge Ellis of the Maryland District Court, should apply to Wikimedias challenge. This week, however, the Fourth Circuit rejected this comparison. Unlike Clapper, the court explained, the injuries alleged by the plaintiffs in this case are not speculative, but current, actual, and based on particularized allegations.

But the Fourth Circuit didnt stop there and just vacate the entirety of Judge Ellis judgement. Instead, it distinguished between Wikimedias claim of injury and those of the other plaintiffs: Because Wikimedias claim of injury by NSAs Upstream collection is based on particularized facts and sound inferences--construed in the light most favorable to Wikimedia for the purpose of the motion--it survives a motion to dismiss. By contrast, because the other plaintiffs allegation of injury (based on the allegation that NSA is intercepting, copying, and reviewing substantially all textbased communications entering and leaving the United States, including their own) is unsupported by enough well-pleaded facts, the District Courts dismissal was proper.

Below, we first summarize the Fourth Circuits reasoning with respect to Wikimedia, and then turn to its analysis of the other eight plaintiffs claim of injury.

The Wikimedia Allegation: Not Speculative,and Well-pleaded

The factual assertions in the Wikimedia Allegation are based on a combination of public information about the operation of Section 702, PCLOB reports about what NSA is doing, as well as technical analysis how NSA must be accomplishing what PCLOB reports.

Under Section 702 of the Foreign Intelligence Surveillance Act, the government is permitted to target for surveillance non-US persons reasonably believe to be outside the United States. The procedures for making such determinations are reviewed and approved by the FISC. According to the plaintiffs, NSA conducts this surveillance by installing surveillance devices on at least some of the 49 international submarine cables that carry communication in and out of the United States which comprise the internet backbone. NSA, the plaintiffs suggest, lacks the technical capability to sift the communication prior to collection. It therefore must collect and copy substantially all international text-based communicationsand many domestic ones as they flow across this backbone in the United States. Only after this initial collection, can NSA attempt[] to filter out and discard some wholly domestic communications, and then review and retain only those copied communications for that contain targeted selectors (such as specific IP or email addresses).

The essence of the Wikimedia allegation is that because of the technical realities of this Upstream collection, and because of the sheer volume of Wikimedias communications, the NSA has almost certainly collected at least some of the organizations communications. Wikimedia reasons that because Upstream surveillance requires the NSA to copy even wholly domestic communications before filtering them out and discarding them, and because Wikimedia engages in more than one trillion international communications each year, with individuals who are located in virtually every country on earth, the NSA must necessarily be intercepting, copying, and reviewing some of Wikimedias communications.

Declassified documents show that a single service provider facilitates upstream surveillance at seven major international chokepoints in the United States. But given the quantity of its communication, even if the NSA is only collecting communication from a single Internet backbone link, Wikimedia asserts its communications must have been intercepted. Thus, Wikimedias acute privacy interest in its communications, are implicated by NSA programs.

The Fourth Circuit largely accepted Wikimedias arguments for the purpose of the motion. In order to establish Article III standing, a plaintiff must show an injury in fact. And in order to survive a motion to dismiss, a complaint must have sufficient factual matter in the complaint, such that the contents were accepted as true, it would state a claim of relief that is plausible on its face. Following the Third Circuits decision in Schuchardt v. President of the United States, the Fourth Circuit analyzed plaintiffs claims in two steps: first, it analyzed whether the allegations were sufficiently particularized to satisfy the injury-in-fact requirement and second, it analyzed whether the allegations contain sufficient detail to be credited as true for the purpose of resolving a facial challenge to a complaint. Wikimedias claims, ruled the Court, met both criteria.

The court lays out what it sees as three presumptively key facts from Wikimedias allegation:

Taken together, these three points indicate that Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all the communications along at least one of those roads, and therefore may have violated Wikimedias Fourth Amendment rights. Its allegations are thus predicated on specific asserted facts and directly implicate the potential interests of Wikimedia in a concrete and particularized manner.

Unlike the speculation and guesswork of Clapper, Wikimedias combination of technical assertions and government documents amounted to a properly pleaded complaint. And unlike Clapper, the Wikimedia case concerns a motion to dismiss rather than a motion for summary judgment, dictating greater deference to complainant's account of facts.

While acknowledging that Wikimedias probability calculation (even if one assumes a 0.00000001% chance . . . of the NSA copying and reviewing any particular communication, the odds of the government copying and reviewing one of Wikimedias communication in a one year period would be greater than 99.999999999%), was incomplete and riddled with assumptions, the court concluded that it wasnt relevant for standing purposes. Importantly, given the motion to dismiss stage, the court also declined to consider the governments evidence (in the form of expert affidavits) disputing plaintiffs technical statements about NSA must operate. Without the opportunity to dispute the factual basis of the expert dispute, the government had little leg to stand on.

The Dragnet Allegation: Speculative, and Not Well-Pleaded

The other eight plaintiffs joined with Wikimedia in making the second allegation, which the court terms the Dragnet Allegation. The plaintiffs alleged that in the course of conducting Upstream surveillance the NSA is intercepting, copying, and reviewing substantially all text-based communications entering and leaving the United States, including their own. The core of the allegation is the assertion that due to the technical functionality of the internet, the NSA must be intercepting, copying, and reviewing information from most backbone chokepoints in order to engage effectively in Upstream collection. And if NSA is surveilling most backbone chokepoints, then it is likely that the plaintiffs communications have been examined. The plaintiffs allege that they have had to take burdensome and sometimes costly measures to protect themselves from this surveillance.

As with the Wikimedia Allegation, the district court dismissed the Dragnet Allegation under Clapper. The circuit court affirmed the dismissal, but on a different rationale, departing from the district courts reliance on Clapper for the reasons expressed above.

While the court writes that its analysis of standing for the Wikimedia Allegation applies also to the Dragnet Allegation as far as the presence of a particularized and cognizable ongoing injury, traceability, and redressability go (hence why Clapper is not controlling), it ultimately finds that the plaintiffs lack standing due to their failure to plausibly state a claim. The court considers the Wikimedia Allegation plausible, but the broader claims made in the Dragnet Allegation are harder for it to swallow:

In the Dragnet Allegation, Plaintiffs must plausibly establish that the NSA is intercepting substantially all text-based communications entering and leaving the United States, whereas its sufficient for purposes of the Wikimedia Allegation to show that the NSA is conducting Upstream surveillance on a single backbone link.

The plaintiffs pointed to the same evidence for the Dragnet Allegation as they do for the Wikimedia Allegation, with the addition of one New York Times article on Upstream surveillance: in other words, the mechanical details of how the internet functions and the NSAs stated goals of using Upstream collection to acquire information to, from, and about targets. But in the Wikimedia Allegation, the plaintiffs used that information to speculate about the way the NSA does what we know it to be doing (that is, engaging in Upstream collection). In contrast, in the Dragnet Allegation, the plaintiffs are using technical information and guesswork about NSAs incentives to speculate about the scope of NSA activities. Furthermore, the allegations fall short of the level of detail in Schuchardt, in which the Third Circuit found that the plaintiffs had demonstrated the sheer scale of the collection suggested a dragnet

This is a bridge too far for the court, which finds this claim implausible and therefore holds that the plaintiffs lack standing on Fourth Amendment grounds. Following this logic, the court also dismisses the plaintiffs First Amendment claims of chilled speech and their effort to establish standing on the grounds of their burdensome efforts to avoid surveillance, finding that in the absence of a plausible claim, these concerns constitute fears of hypothetical future harm such as are inadequate to provide standing under Clapper.

The plaintiffs creatively cite Fourth Circuit precedent in the form of a two-year-old antitrust case, SD3, LLC v. Black & Decker, as evidence that motive is an important factor in establishing standingpointing to NSAs alleged incentive to establish a dragnet. The court dismisses this assertion, saying that while it should come as not surprise that motive is an important factor in establishing an antitrust conspiracy, that the court had never intended to have the case stand for the broad proposition that motivation is always of special significance in plausibly pleading an injury. The court also distinguishes SD3 based on the level of detail provided by the plaintiffs on the existence of the boycott, which the court concludes were by and large absent, from the plaintiffs complaint here.

The court concludes by addressing Judge Andre Daviss dissent in part, specifically his assertion that the court need not have separately considered the non-Wikimedia plaintiffs standing. Given that the complaint rests upon the premise that the NSA is seizing each Plaintiffs unique communications, the questions of standing and relief for the Wikimedia and non-Wikimedia plaintiffs are also individualized and must be considered separately.

Judge Andre Daviss Dissent-in-Part

Judge Davis, while concurring with courts finding that Clapper is not controlling and that Wikimedia has standing, dissented on the grounds that the non-Wikimedia plaintiffs do as well.

Davis explains that while he agrees with the majoritys decision to accept as plausible Wikimedias factual allegation, he disagrees with the majoritys assertion that the other plaintiffs have not plausibly alleged in the Dragnet Allegation that the NSA is surveilling most backbone links. He gives greater credence to the plaintiffs citation of the New York Times report to bolster their allegation, which the majority dismissed as essentially a restatement of the original allegation. More importantly, he argues that because of the technical functionality of the internet to which the plaintiffs point, NSA cannot know which link the communications it targets will traverse when they enter or leave the United States, and therefore the only way it can comprehensively acquire its targets communications is by surveilling virtually every backbone link. In his view, this allegation is a logical extension of the Wikimedia Allegation, and is therefore plausible as well.

In a footnote, Davis also criticizes the majoritys decision to assess the standing of the non-Wikimedia plaintiffs separate from that of Wikimedia. Quoting the Supreme Courts decision in Horne v. Flores, he argues that in all standing inquiries, the critical question is whether at least one petitioner has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.

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The Fourth Circuit Remands Wikimedia's Suit Against the NSA Back ... - Lawfare (blog)

National Security Agency (NSA) Director Admiral Michael Rogers participates in a session at the third annual Intelligence and National Security Summit in Washington, U.S., September 8, 2016. REUTERS/Gary Cameron/File Photo

Reports surfaced on Friday that National Security Agency (NSA) chief Mike Rogers told NSA workers that there is evidence that President Donald Trump and his 2016 campaign colluded with the Russian government to defeat Democratic nominee Hillary Clinton in 2016.

Former NSA agent John Schindler wrote in the New York Observer Friday that Rogers addressed an agency-wide town hall meeting this week that was broadcast to all of the agencys facilities around the world. In it, Rogers purportedly confirmed reports that came out last week alleging that Trump asked him to speak out against the Russia investigation.

Rogers, according to current NSA agents with whom Schindler claims to have spoken who has a very dodgy reputation in some circles said that he has seen intelligence information regarding contacts between Trump and the Kremlin.

There is no question that we [meaning NSA] have evidence of election involvement and questionable contacts with the Russians, the director reportedly said.

NSA employees walked out of the town hall impressed by the directors forthright discussion of his interactions with the Trump administration, particularly with how Rogers insisted that he had no desire to politicize the situation beyond what the president has already done, Schindler said.

The House and Senate Intelligence Committees should subpoena Rogers, Schindler said, and find out what he knows with regard to Trump and the 2016 campaign.

Schindler is regarded by some people as a conspiracy theorist along the lines of former Heat Street editor Louise Mensch, with whom Schindler enjoys an amiable online relationship. The two publish scoops reinforcing each other and share a common enemy in those who declare that anti-Trumpists are dabbling in red-baiting and conspiracy mongering.

However, as a former agent, Schindler has deep ties at the NSA.

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Did Admiral Mike Rogers tell the NSA that Trump colluded with the ... - Raw Story