Daily Archives: June 21, 2017

Putin Could ‘Crack’ NATO Under Trump, Warns Former U.S. … – Newsweek

Posted: June 21, 2017 at 3:56 am

Russian President Vladimir Putin sees an opportunity under President Donald Trump's administration to crack Americas NATO military pact with its main Western allies, says a former top U.S. diplomat.

"I suspect [Putin] sees an opportunity to do what military force alone could never do, and that is crack the NATO alliance,Doug Lute, the former U.S. ambassador to NATO in the Obama administration, said on Sunday.

If he can crack it politically, or if he can provoke internal fissures inside the alliance, Lute said during an interview on ABC News show This Weekon Sunday, then Putin sees an enormous opportunity to achieve a long-standing Russian goal.

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Lute said that for the first time in 70 years, what was once a rock-solid commitment to the alliance is in question underTrump, and that possibly opens potential opportunities for opponents.

Trump has been unpredictable in his commitment to the 70-year military alliance during his months as president.

Before his inauguration, then President-elect Trump called NATO obsolete, only to reverse his stance months later after meeting with NATOs leaders.

Read more: White House and Putin among biggest critics of Russia sanctions bill

Despite advice from his generals, Trump hesitated to affirm NATOs Article 5which says an attack on one member is an attack on allduring a speech at the alliances new headquarters at the end of May.

National security adviser H.R. McMaster, Defense Secretary James Mattisand Secretary of State Rex Tillerson had all worked to include a statement supporting Article 5 in Trumps speech, according to five sources that spoke with Politico. Trump reportedly took it out.

In thatsame speech,Trump chastisedcertain member countries for owing "massive amounts of money" to the United States and NATO. All NATO countries have committed to spend about 2 percent of their GDP in their individual military budgets to support the alliance. Last year, only five of all 28 nations met that goal.

Weeks later, during a press conference with Romanian President Klaus Iohannis, however, Trump said he was "committing the United States to Article 5."

All this has been very disorienting to our NATO allies, said Lute. After Trumps speech in May, one senior diplomat told Reuters the presidents remarks were not made in the right place or time" and that they were left with nothing else but trying to put a brave face on it.

Trumps statements prompted German Chancellor Angela Merkel to say, just days after the meeting, that the times in which we can fully count on others are somewhat over.

Russian President Vladimir Putin attends a signing ceremony following talks with his Slovenian counterpart Borut Pahor at the Kremlin in Moscow on February 10. Alexander Zemlianichenko/Pool/Reuters

Many Eastern European nations who are NATO members have been wary of a Russian military buildup on their frontiers. NATO forces have been deployed in response, but they fear a weakening NATO alliance.

If that was not enough, Russia is already drawing a wedge between America and its closest NATO allies in other ways. Germany and the European Union have been disturbed by new congressional sanctions against Russia for interfering in the 2016 election, according to Jonathan Fenby, managing director of European political researchat the investment research firm TS Lombard.

A bill that passed the U.S. Senate last week seeks to impose stricter sanctions on Russia in response to its campaign to influence the 2016 American election. The bill has moved forward on distrust in Congress of Trumps willingness to punish Russia. The presidents election campaign is currently the subject of an FBI investigation into whether its officials or associates colluded withRussia tointerferein the election.

Russian energy companies building the Nord Stream 2 gas export pipeline to Europe, however, are targeted in the new sanctions bill.

This is the latest of a series of developments that augur ill for trans-Atlantic relations, wrote Fenby in a research letter to investors Sunday.

Germany and Austria, whose companies are investing in the pipeline, criticized the Senate vote for adding a new and very negative quality in European-American relations. Fenby said. Trumps withdrawal from the Paris climate change agreement was also condemned by EU members who are NATO allies.

The new sanctions are just another brick in the wall of European reaction to Trumps criticism of European defence spending, Fenby wrote.

Considering the presidents rhetoric and growing divisions, Lute said, Americas allies are sort of whipsawed between key advisers and the president himself, and wonder, I think, Who actually speaks for this administration?

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EU-NATO cooperation: Council welcomes progress made – EU News

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1. The Council recalls its conclusions of 6 December 2016 on the Implementation of the Joint Declaration by the President of the European Council, the President of the European Commission and the Secretary General of the North Atlantic Treaty Organization (15283/16).

2. The Council welcomes the progress made in the implementation of the common set of proposals (42 actions) and in this regard acknowledges the report submitted jointly by the High Representative/Vice President/Head of the European Defence Agency and the Secretary General of NATO in accordance with paragraph 9 of the Council Conclusions of 6 December 2016.

3. The Council calls for continued progress on implementation of the common set of proposals and looks forward to receiving the next report, including possible suggestions for future cooperation, in December 2017.

4. The Council reaffirms that EU-NATO cooperation will continue to take place in the spirit of full openness and transparency, in full respect of the decision-making autonomy and procedures of both organisations and in close cooperation with and full involvement of Member States . It will be based on the principles of inclusiveness and reciprocity without prejudice to the specific character of the security and defence policy of any Member State. The Council recalls that NATO cooperation with the non-NATO EU Member States is an integral part of EU-NATO cooperation and in this regard, the Council welcomes the positive contribution of non-NATO EU Member States to NATO activities. Such activities are an integral part of EU-NATO cooperation and the Council strongly supports their continuation.

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Despite NSA Claim, Elections Vendor Denies System Was Compromised In Hack Attempt – NPR

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VR Systems provides voter registration software and hardware to elections offices in eight states. Courtesy of VR Systems hide caption

VR Systems provides voter registration software and hardware to elections offices in eight states.

The Florida elections vendor that was targeted in Russian cyberattacks last year has denied a recent report based on a leaked National Security Agency document that the company's computer system was compromised.

The hackers tried to break into employee email accounts last August but were unsuccessful, said Ben Martin, the chief operating officer of VR Systems, in an interview with NPR. Martin said the hackers appeared to be trying to steal employee credentials in order to launch a spear-phishing campaign aimed at the company's customers.

VR Systems, based in Tallahassee, Fla., provides voter registration software and hardware to elections offices in eight states.

"Some emails came into our email account that we did not open. Even though NSA says it's likely that we opened them, we did not," Martin says. "We know for a fact they were never opened. They did not get into our domain."

VR Systems COO Ben Martin told NPR that no elections vendor would send customers software updates once voting had begun, which it had in this case. Dina Ivory/Courtesy of VR Systems hide caption

Instead, Martin said, the company isolated the suspicious emails and alerted law enforcement authorities, who it was already working with because of two attempts to break into state voter registration databases earlier last summer.

The NSA document said that at least one of the company's email accounts was "likely" compromised based on information uncovered later in the spear-phishing campaign. That attack took place days before the November election and involved fake emails sent to as many as 122 local election officials in an apparent effort to trick them into opening attachments containing malicious software.

"They tried to pretend to be us to leverage our relationship with our customers," said Martin.

But Martin noted that while the NSA says the emails were made to look as if they came from VR Systems, they were sent from a phony email address vr.elections@gmail.com. He said his company does not use Gmail and never sends its customers documents in the form of email attachments. He added that no elections vendor would send customers software updates once voting had begun, which in this case it had.

"That's why I believe most of our customers knew immediately that this was bogus," said Martin. The company was alerted to the fake emails by one of its customers, and Martin said it immediately warned its other customers. So far, there is no evidence that any of the recipients opened the attachments or had their systems infected with the malicious software.

Still, cybersecurity experts say the attempted attacks are a clear sign of Russian interest in interfering with U.S. elections either by manipulating votes or causing chaos at the polls. Some have warned that vendors might be exploited to gain access to local or state voting systems.

In this case, the NSA report concluded that the purpose of the malicious software was "to establish persistent access or survey the victim for items of interest to the threat actors." While last year's attacks appeared to only involve voter registration systems, some experts say such systems can be used as a gateway to actual voting machines.

The Senate and House intelligence committees will explore Russia's efforts to interfere in U.S. elections last year and how to prevent future attacks at two hearings on Wednesday. Former Secretary of Homeland Security Jeh Johnson will appear before the House committee. The Senate panel will hear from current U.S. intelligence officials and state election experts.

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Despite NSA Claim, Elections Vendor Denies System Was Compromised In Hack Attempt - NPR

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The NSA Has Done Little to Prevent the Next Edward Snowden … – Motherboard

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When Edward Snowden walked out of the NSA in 2013 with thumb drives full of its most secret files, the agency didn't have a reliable list of peoplelike Snowdenwho had privileged access to its networks. Nor did it have a reliable list of those who were authorized to use removable media to transfer data to or from an NSA system.

That's one of the alarming revelations in a Department of Defense Inspector General report from last year. The report, which was ordered by Congress, reviewed whether the NSA had completed some of the most important initiatives it has started in response to the Snowden leak to make its data more secure. The New York Times obtained the DOD IG report via FOIA.

The most shocking detail in the report is that even at the new National Security Agency data center in Utah, "NSA did not consistently secure server racks and other sensitive equipment" in data centers and machine rooms. At the Utah Data Center and two other facilities, the report stated, "we observed unlocked server racks and sensitive equipment." The finding that the NSA wasn't locking down all its server racks was first disclosed and reported in a House Intelligence Committee Report on Edward Snowden's leaks released in December.

But the more fundamental problem revealed in the report is that the NSA has done little to limit the number of people who have access to what are supposed to be the most protected hardware the NSA has.

The IG report examined seven of the most important out of 40 "Secure the Net" initiatives rolled out since Snowden began leaking classified information. Two of the initiatives aspired to reduce the number of people who had the kind of access Snowden did: those who have privileged access to maintain, configure, and operate the NSA's computer systems (what the report calls PRIVACs), and those who are authorized to use removable media to transfer data to or from an NSA system (what the report calls DTAs).

The government's apparent lack of curiosity is fairly alarming

But when DOD's inspectors went to assess whether NSA had succeeded in doing this, they found something disturbing. In both cases, the NSA did not have solid documentation about how many such users existed at the time of the Snowden leak. With respect to PRIVACs, in June 2013 (the start of the Snowden leak), "NSA officials stated that they used a manually kept spreadsheet, which they no longer had, to identify the initial number of privileged users." The report offered no explanation for how NSA came to no longer have that spreadsheet just as an investigation into the biggest breach thus far at NSA started. With respect to DTAs, "NSA did not know how many DTAs it had because the manually kept list was corrupted during the months leading up to the security breach."

There seem to be two possible explanations for the fact that the NSA couldn't track who had the same kind of access that Snowden exploited to steal so many documents. Either the dog ate their homework: Someone at NSA made the documents unavailable (or they never really existed). Or someone fed the dog their homework: Some adversary made these lists unusable. The former would suggest the NSA had something to hide as it prepared to explain why Snowden had been able to walk away with NSA's crown jewels. The latter would suggest that someone deliberately obscured who else in the building might walk away with the crown jewels. Obscuring that list would be of particular value if you were a foreign adversary planning on walking away with a bunch of files, such as the set of hacking tools the Shadow Brokers have since released, which are believed to have originated at NSA.

NSA headquarters in Maryland. Image: MJB/Flickr

The government's apparent lack of curiosityat least in this reportabout which of these was the case is fairly alarming, because it is a critically important question in assessing why NSA continues to have serious data breaches. For example, it would be important to know if Hal Martin, the Booz Allen Hamilton contractor accused of stealing terabytes of NSA data in both hard copy and digital form, showed up on these lists or if he simply downloaded data for decades without authorization to do so.

Even given the real concern that Russia or someone else might have reason to want to make the names of PRIVACs and DTAs inaccessible at precisely the time the NSA reviewed the Snowden breach, the NSA's subsequent action does provide support for the likelihood the agency itself was hiding how widespread PRIVAC and DTA access was. For both categories, DOD's Inspector General found NSA did not succeed in limiting the number of people who might, in the future, walk away with classified documents and software.

With PRIVACs, the NSA simply "arbitrarily" removed privileged access from some number of users, then had them reapply for privileged access over the next 3 months. The NSA couldn't provide DOD's IG with "the number of privileged users before and after the purge or the actual number of users purged." After that partial purge, though, NSA had "a continued and consistent increase in the number of privileged users."

As with PRIVACs, the NSA "could not provide supporting documentation for the total number of DTAs before and after the purge" and so was working from an "unsubstantiated" estimate. After the Snowden leak, the NSA purged all DTAs and made them reapply, which they did in 2014. The NSA pointed to the new number of DTAs and declared it a reduction from its original "unsupported" estimate. When asked how it justified its claim that it had reduced the number of people who could use thumb drives with NSA's networks when it didn't know how many such people it had to begin with, the NSA explained, "although the initiat[iv]e focused on reducing the number of DTA, the actions taken by NSA were not designed to reduce the number of DTAs; rather they were taken to overhaul the DTA process to identify and vet all DTAs." The IG Report notes that the NSA "continued to consistently increase the number of DTAs throughout the next 12 months."

When, in 2008, someone introduced a worm into DOD's networks via a thumb drive, it decreed that it would no longer use removable media. Then, after Chelsea Manning exfiltrated a bunch of documents on a Lady Gaga CD, the government again renewed its commitment to limiting the use of removable media. This report reveals that only in the wake of the Snowden leaks did the NSA get around to developing a vetted list of those who could use thumb drives in NSA's networks. Yet as recently as last year, Reality Winner (who, as an Air Force translator, was presumably not a privileged access user at all) stuck some kind of removable media into a Top Secret computer, yet the government claims not to know what she downloaded or whether she downloaded anything at all (it's unclear whether that Air Force computer came within NSA's review).

When contacted with specific questions about its inability to track privileged users, the NSA pointed to its official statement on the DOD IG Report. "The National Security Agency operates in one of the most complicated IT environments in the world. Over the past several years, we have continued to build on internal security improvements while carrying out the mission to defend the nation and our allies around the clock." The Office of Director of National Intelligence did not immediately respond with comment to my questions.

Yet this issue pertains not just to the recent spate of enormous data breaches, which led last month to the worldwide WannaCry ransomware attack using NSA's stolen tools. It also pertains to the privacy of whatever data on Americans the NSA might have in its repositories. If, three years after Snowden, the NSA still hasn't succeeded in limiting the number of people with the technical capability to do what he did, how can NSA ensure it keeps Americans' data safe?

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Watchdog: NSA needs to boost insider-threat protocols – FCW.com

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Oversight

The National Security Agency is still not fully implementing all necessary security protocols to minimize the potential of another Edward Snowden-like data breach, according to a newly declassified 2016 Pentagon watchdog report.

In the wake of the Snowden breach, the NSA outlined 40 privileged-access Secure-the-Net initiatives designed to guard against insider threats by tightening controls over data and monitoring of user access.

The Defense Department's Office of the Inspector General audited seven of the STN protocols and found that the NSA implemented or partially implemented four of the audit sample. Those related to developing a new system administration model, assessing the number of systems administrators, implementing two-stage authentication controls and deploying two-person access controls.

According to the heavily redacted report, the NSA culled the number of systems administrators and implemented a tiered system to take away privileged access from those who do not require it.

The report states the NSA only partially implemented two-stage authentication and two-person access controls and did not consistently secure server racks and other sensitive equipment in data centers and machine rooms.

The three audit initiatives where the NSA missed the mark were in reducing the number of privileged users and data transfer agents as well as fully implementing technology to oversee privileged-user activities.

NSA did not effectively implement the three initiatives because it did not develop an STN strategy that detailed a structured framework and methodology to implement the initiatives and measure completeness, states the audit. As a result, NSAs actions to implement STN did not fully meet the intent of decreasing the risk of insider threats to NSA operations and the ability of insiders to exfiltrate data.

The report states that prior to 2013, the NSA did not know how many privileged users and data transfer agents it had, and that throughout 2014 the number of DTAs actually increased.

The report acknowledges that it is not possible to protect against all insider threats, but stresses that NSA must at least implement all of its own stated protocols.

Although the NSA worked in a fluid situation, NSA should have developed a strategy that detailed a structured framework and methodology for implementing STN to ensure its actions were effective in mitigated vulnerabilities exploited during the security breach, the report states.

The NSAs woes did not end with the Snowden breach. In August 2016, a cryptic group or individual going by the name TheShadowBrokers announced it had acquired a trove of NSA hacking tools and has since been leaking some of the data in an attempt to seduce buyers to pay for the remaining stash.

It is still not clear whether the so-called ShadowBrokers obtained the data through an insider.

The DOD OIG report made three recommendations -- all of which were fully redacted -- and according to the document, the NSA agreed with the recommendations.

The NSA responded to questions about the audit from FCW with an email statement.

The National Security Agency operates in one of the most complicated IT environments in the world, the NSA stated. Over the past several years, we have continued to build on internal security improvements while carrying out the mission to defend the nation and our allies around the clock.

According to the statement, the NSA has undertaken a comprehensive and layered set of enterprise defensive measures to further safeguard operations and advance best practices across the Intelligence Community.

NSA has never stopped seeking and implementing ways to strengthen both security policies and internal controls, the statement concluded.

About the Author

Sean Carberry is an FCW staff writer covering defense, cybersecurity and intelligence. Prior to joining FCW, he was Kabul Correspondent for NPR, and also served as an international producer for NPR covering the war in Libya and the Arab Spring. He has reported from more than two-dozen countries including Iraq, Yemen, DRC, and South Sudan. In addition to numerous public radio programs, he has reported for Reuters, PBS NewsHour, The Diplomat, and The Atlantic.

Carberry earned a Master of Public Administration from the Harvard Kennedy School, and has a B.A. in Urban Studies from Lehigh University.

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ICYMI: Former NSA Contractor Sues James Comey, Alleges Cover Up Of Spy Activities On Over 20 Million Americans – Townhall

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Circa News has been covering the alleged abuses of the intelligence community against Americans. They noted how the unmasking protocol for intercepts collected by the National Security Agency changed under the Obama administration, supposedly to better catch terrorists prepping for lone wolf attacks, could open Americans up to political espionage. Then, they wrote about how the FBI may have illegally shared spy data on Americans with unauthorized parties who did not have clearance to view such information. The Foreign Intelligence Surveillance Court (FISA) wrote a ten-page ruling listing hundreds of privacy violations committed by the FBI when gathering information during the tenure of then-FBI Director James Comey. Now, a former NSA contractor has filed a lawsuit against James Comey, allegedly a covering up the illegal methods that are being used to monitor Americans and violate their constitutional privacy rights. Once again, John Solomon and Sara Carter were on the case.

The contractor Dennis Montgomery reportedly took multiple hard drives containing 600 million classified documents to prove how the intelligence community is violating Americans privacy. He was granted immunity, but the FBI never followed through. The FBI has documentation of them taking possession of the hard drives. Montgomery alleges that over 20 million Americans identities were illegally unmasked:

A former U.S. intelligence contractor tells Circa he walked away with more than 600 million classified documents on 47 hard drives from the National Security Agency and the CIA, a haul potentially larger than Edward Snowden's now infamous breach.

And now he is suing former FBI Director James Comey and other government figures, alleging the bureau has covered up evidence he provided them showing widespread spying on Americans that violated civil liberties.

The suit, filed late Monday night [June 12] by Dennis Montgomery, was assigned to the same federal judge who has already ruled that some of the NSA's collection of data on Americans violates the U.S. Constitutions Fourth Amendment, setting up an intriguing legal proceeding in the nations capital this summer.

Montgomery says the evidence he gave to the FBI chronicle the warrantless collection of phone, financial and personal data and the unmasking of identities in spy data about millions of Americans, This domestic surveillance was all being done on computers supplied by the FBI," Montgomery told Circa in an interview. "So these supercomputers, which are FBI computers, the CIA is using them to do domestic surveillance."

[]

Montgomery alleges that more than 20 million American identities were illegally unmasked - credit reports, emails, phone conversations and Internet traffic, were some of the items the NSA and CIA collected.

He said he returned the hard drives to the FBI, a fact confirmed in government documents reviewed by Circa.

As Congress wallows in Russian collusion hysteria, maybe they should also put these under the microscope since a) its more grounded in reality; and b) there appears to be an actual paper trail.

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NSA Scholarship Foundation names 2017 recipients – Accounting Today

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The National Society of Accountants and their Scholarship Foundation announced this week that 30 students have been awarded this year's annual scholarships, receiving $37,950 in all.

This year's scholarships ranged from $500 - $3,000. Undergrad and graduate students were chosen based on their notable academics, leadership, activities on and off campus, career goals, and individual financial need.

These students are the best and brightest candidates working to earn accounting degrees, stated NSA Scholarship Foundation president Sharon Cook. We are pleased to support them and look forward to having them join the accounting profession.

The NSA's Scholarship Foundation has now provided over $1 million to students pursuing an accounting career since its inception in 1969.

Below are the 2017 scholarship winners, listed alongside their current universities, NSA Affiliated Organization or scholarship, and scholarship value:

For more information on the NSA's Scholarship Foundation, head to organization's site here.

Sean McCabe is a senior editor with Accounting Today.

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Oversight Report Shows NSA Failed To Secure Its Systems Following The Snowden Leaks – Techdirt

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It appears the NSA hasn't learned much since Ed Snowden left with several thousands of its super-secret documents. Agency officials were quick to claim the leaks would cause untold amounts of damage, but behind the scenes, not much was being done to make sure it didn't happen again.

A Defense Department Inspector General's report obtained via FOIA lawsuit by the New York Times shows the NSA fell short of several security goals in the post-Snowden cleanup. For an agency that was so concerned about being irreparably breached, the NSA still seems primed for more leakage. Charlie Savage reports:

The N.S.A. failed to consistently lock racks of servers storing highly classified data and to secure data center machine rooms, according to the report, an investigation by the Defense Departments inspector general completed in 2016. The report was classified at the time and made public in redacted form this week in response to a Freedom of Information Act lawsuit by The New York Times.

The agency also failed to meaningfully reduce the number of officials and contractors who were empowered to download and transfer data classified as top secret, as well as the number of privileged users, who have greater power to access the N.S.A.s most sensitive computer systems. And it did not fully implement software to monitor what those users were doing.

Let's not forget the NSA wants to be engaged in ensuring the cybersecurity of the nation. It's repeatedly asked for more power and a better seat in the CyberWar room. But it doesn't even take its OWN security seriously. The NSA told its oversight it was engaging in 40 "Secure the Net" initiatives, directly after the first Snowden leak. Two years later, it told Congress it had completed 34 of 40 STN initiatives. The term "completion" apparently has multiple definitions, depending on who's using the word. The IG sampled only seven of the initiatives and found four were mostly done and three were nowhere near completed. Extrapolating from the sampling, it's safe to assume the NSA's internal security efforts are only slightly more than half-baked.

The three the NSA failed to implement are of crucial importance, especially if it's looking to keep its in-house documents safe at home. From the report [PDF]:

NSA officials did not effectively implement three PRIVAC [Privileged Access]-related STN initiatives:

- fully implement technology to oversee privileged user activities;

- effectively reduce the number of privileged users; and

- effectively reduce the number of authorized DTAs [Data Transfer Agents].

First off, the NSA -- prior to the Snowden leaks -- had no idea how many users had privileged access. Post-Snowden, things hardly improved. Considering the tech capabilities of the agency, it's incredibly amusing to see how the NSA "tracked" privileged users.

NSA officials stated they used a manually kept spreadsheet, which they no longer had, to identify the initial number of privileged users.

Pretty much useless, considering this number the NSA couldn't verify (thanks to its missing spreadsheet) was supposed to be used to establish a baseline for the planned reduction in privileged users. Despite missing this key data, the NSA moved ahead, "arbitrarily revoking access" and asking users to reapply for privileged status. It then reported a reduction by citing the number of users it denied restoration of access privileges. It did not factor in any new users it granted privileged access to or tally up the number of accounts it never bothered to revoke.

As the fully-redacted chart presumably points out (according to the text above it), the NSA had a "continued and consistent increase in the number of privileged users once the [redacted] enrollment process began."

The NSA also claimed it had reduced the number of DTAs. And again, the NSA had no receipts.

Although repeatedly requested, NSA officials could not provide supporting documentation for the total number of DTAs before and after the purge or the actual number of users purged.

The NSA's objectively-terrible internal controls (again) ensured no number could be verified.

NSA did not know how many DTAs it had because the manually kept list was corrupted during the months leading up to the security breach.

The NSA handled these missing numbers the same way it had privileged users: it made up a new baseline, arbitrarily decided it could show a downtrend in DTAs, and delivered this as "proof" of another completed security initiative.

The report points out repeatedly the NSA's failure to provide documentation backing its STN claims -- either from before the initiatives took force or after they supposedly hag been completed. The IG's comments note the NSA's response to the report ignored its detailed description of multiple failures in order to spin this as a "win" for the agency.

Although the Director, Technology Directorate NSA/CSS Chief Information Officer, agreed, he did not address all the specifics of the recommendation. Therefore, we request that the director provide additional comments on the final report that identify specific actions NSA will take.

Here's how the NSA portrayed the report's findings:

While the Media Leak events that led to Secure the Net (STN) were both unforeseen and serious, we consider the extensive progress we made in a short time to be a "good news" story.

Sure, if you consider a half-done job securing NSA assets to be "good news," rather than just an ongoing series of security holes left halfway unplugged while agency officials testify before Congressional oversight in front of a "MISSION ACCOMPLISHED" banner backdrop.

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Second amendment group opposes lawsuit in Sandy Hook shooting – Danbury News Times

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Photo: Cathy Zuraw / Hearst Connecticut Media

Second amendment group opposes lawsuit in Sandy Hook shooting

The Connecticut Citizens Defense League has filed a brief opposing a lawsuit that would hold manufacturers and sellers of the gun used in the 2012 Sandy Hook shooting liable for the crime.

The suit filed by the families of 10 victims argues that makers and distributors of the AR-15-style rifle used in the shooting recklessly marketed it to civilians, ignoring the risks that it would be misused. The suit was thrown out by a lower court, and the families have appealed to have it reinstated.

CCDLs brief against the reinstatement argues that the firearm is 25 percent as powerful as a regular hunting rifle, because it uses lightweight ammunition. It also states that crime statistics show that ordinary handguns are more than 15 times more likely to be used by mass shooters than the model of firearm chosen by Adam Lanza.

If the defendants are held liable in this case, then, it will set a precedent that would expose businesses to legal liability each time they sell virtually any type of firearm in Connecticut, the CCDL news release states.

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Second amendment group opposes lawsuit in Sandy Hook shooting - Danbury News Times

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Symposium: The First Amendment silences trademark – SCOTUSblog (blog)

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Ned Snow is a professor of law at the University of South Carolina School of Law.

In Matal v. Tam (formerly called Lee v. Tam), the Supreme Court ruled unconstitutional the disparagement clause of the Lanham Act, which prevents registration of marks that employ disparaging names. The linchpin of its opinion is the conclusion that the disparagement clause constitutes viewpoint discrimination. Secondarily, the court relies on the argument that the disparagement clause does not support the governments interest in regulating speech. As I explain below, these arguments are unconvincing. Finally, the court articulates a broader policy concern of upholding restrictions that directly suppress speech in the commercial marketplace. That concern, I argue, is unfounded for the disparagement clause.

Viewpoint discrimination

Viewpoint discrimination is simple to understand (although sometimes difficult to apply): It occurs when the government prohibits a particular view or takes a position rather than prohibiting a general category or subject matter of speech. At first blush, the disparagement clause seems to prohibit only a general category of speech rather than a particular viewpoint: The clause does not adopt a position, indiscriminately applying to all hate speech, regardless of which person or institution a mark might disparage. Yet the court sees it differently. Justice Samuel Alito explains that a prohibition of all disparaging views is still a prohibition of viewpoints. In his words: Giving offense is a viewpoint. And Justice Anthony Kennedy further explains: To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so. Apparently, then, prohibiting all positions on a subject matter is just as viewpoint discriminatory as prohibiting only one. End of case, or so it would seem.

But this rationale is troubling. It calls into question other fundamental provisions of the Lanham Act. The Lanham Act prohibits registration of marks that both provide truthful information and make subjective assertions about their products. More specifically, the Lanham Act prohibits registration of marks that are generic descriptions of goods, that are specific descriptions of characteristics of goods, that are surnames (even of the source), and that indicate the geographic origin of a good. (Some of these types of marks may gain trademark protection over time and through an expensive showing of secondary meaning, but for purposes of viewpoint-discrimination analysis, the fact that they are denied in the absence of these circumstances is all that matters.) In short, the Lanham Act specifically prohibits applicants from telling truthful information and making claims about a good or its source. Are these provisions of the Lanham Act viewpoint discriminatory? According to Alitos reasoning, it would seem so: Telling the truth is a viewpoint a viewpoint, incidentally, that is much more central to the purpose of the First Amendment than is hate speech. And according to Kennedys reasoning: [t]o prohibit all sides from [making claims about their products] makes a law more viewpoint based, not less so, suggesting that a blanket prohibition of descriptive truths is viewpoint discriminatory. According to the reasoning of the Tam court, the Lanham Acts provisions that bar registration for truthful content would seem viewpoint discriminatory.

Consider also the Lanham Acts prohibition of government symbols. Section 2 of the Lanham Act bars trademark protection for any mark that [c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof. Last time I checked, preventing someone from expressing his patriotism by displaying the United States flag constituted an abridgement of free speech. Under the courts reasoning, the Lanham Acts prohibition of trademark registration for government symbols would be viewpoint discriminatory.

How, then, is a prohibition against disparaging speech any more viewpoint discriminatory than the other prohibitions in the Lanham Act? Stated differently, what principle dictates the viewpoint distinction between the disparagement clause and the other criteria for trademark eligibility? I dont see it. The disparagement clause cannot be viewpoint discriminatory for the simple reason that if it were, it would imply the viewpoint-discriminatory nature of other fundamental registration criteria.

Limited public forum

Why does it matter whether the discrimination is based on viewpoint or subject matter? Alito explains that if the discrimination were not viewpoint based, it might be justified under the limited-public-forum doctrine. Congress has created a public forum the trademark registration system to facilitate private speech, and as a result, the trademark system appears to constitute a limited public forum. In such a metaphysical forum, Congress may impose content-based restrictions that are viewpoint neutral, to the extent that the restrictions support the purpose of the forum. The disparagement clause, then, would be permissible to the extent that it supports the purpose of the trademark system, which I address below in discussing commercial-speech regulation.

Commercial speech regulation

Tellingly, Alito does not rely solely on viewpoint discrimination to condemn the disparagement clause. He analyzes the clause under the test for commercial-speech regulation. Key to this analysis is the government interest in regulating speech. Stated another way: What is it about the context of trademark law that would justify Congress in withholding registration from a disparaging mark? One interest is the orderly flow of commerce. That seems reasonable, given that hate speech does tend to interfere with people engaging in commercial transactions. Alito, however, argues that the statute is not narrowly tailored to this interest, so as to prevent only the sort of invidious discrimination that would disrupt commerce. That is debatable. Arguably, the court could interpret the disparagement clause narrowly, to avoid an unconstitutional interpretation.

Putting aside the orderly-flow-of-commerce interest, the court failed to recognize another important government interest underlying the disparagement clause: the interest in facilitating a peaceful society among citizens of disparate backgrounds and beliefs. A system of commerce that invites all to participate is integral to the fabric of a peaceful society. Religion, ideology and political party all yield to the commercial transaction of buyer and seller cooperating. Disparaging marks threaten this benefit of commerce. Disparaging marks work against universal cooperation in the marketplace. They facilitate an environment of exclusion. They promote disrespect rather than cooperation. Commercial offers for sale, which are supposed to facilitate universal cooperation, become a means to promote disrespect towards others. Simply put, disparaging marks contravene the critically important social benefit of a commercial system. Preventing those marks serves the underlying and broad purpose of commerce generally.

Thus, I am doubtful about the doctrinal underpinnings of the Tam decision. Its rationale for viewpoint discrimination appears weak when compared with the Lanham Acts other discriminatory criteria for trademark registration. Similarly, the disparagement clause appears justifiable as a commercial-speech regulation because it supports the governments interest in facilitating universal participation in the commercial marketplace.

Speech suppression in the commercial marketplace

All this being said, the court does raise an understandable concern. Alito frankly voices that concern:

The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social volatility, free speech would be endangered.

It would seem, then, that the court is fearful that protected and valuable speech could be suppressed merely by labeling it as commercial. What if Congress passed a law that prohibited any critical speech in commercial print? Would the commercial nature of the speech justify such broad content-based regulation? First is a ban on disparaging trademarks, and next is a ban on The New York Times. Loudly the court opines that commerciality does not justify prohibitions on speech that permeates public life in this particular instance, trademarks.

This concern makes sense to a point. Certainly we must avoid suppressing ideas in the name of facilitating commerciality. Unconstitutional speech suppression might arise were Congress to withhold money, impose a fine or affix criminal penalties in response to speech content. But none of these acts of speech suppression is present here. Indeed, according to the court, the benefit of trademark registration is not the same as a cash subsidy or its equivalent. The benefit of registration lies entirely in the commercial realm, thereby limiting the influence of the disparagement clause to that commercial realm. For that matter, withholding registration does not prevent financial success in the commercial marketplace. Even without registration, a disparaging mark can still serve as a trademark. It can still identify source. And owners of disparaging marks can still fully participate in the commercial marketplace. So although a disparaging mark would lack the commercial benefit of registration, that mark could still succeed both financially and philosophically in the marketplace of ideas. Speech suppression is not occurring here.

In sum, Congress should be able to reward civility in commercial discourse. A society can both appreciate the value of contrary and even hateful ideas and at the same time reward commercial speakers who choose to engage civilly. There is neither suppression nor viewpoint discrimination when the people choose to reward civil discourse in commercial transactions.

Posted in Matal v. Tam, Symposium on the court's ruling in Matal v. Tam, Featured

Recommended Citation: Ned Snow, Symposium: The First Amendment silences trademark, SCOTUSblog (Jun. 20, 2017, 12:43 PM), http://www.scotusblog.com/2017/06/symposium-first-amendment-silences-trademark/

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Symposium: The First Amendment silences trademark - SCOTUSblog (blog)

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