Daily Archives: July 8, 2017

As Trump leaves for Europe, a question looms: Will he really commit to NATO once and for all? – Washington Post

Posted: July 8, 2017 at 3:54 am

By Kelly M. McFarland By Kelly M. McFarland July 6

President Trumps second foreign trip kicks off today in Warsaw the first leg of a trip that includes the G-20 Summit in Hamburg and a stop in Paris for Bastille Day. The trip comes in the wake of the turmoil from the presidents European trip to the G-7 meeting in May, with the additional drama of the first Trump-Putin bilateral meeting.

But for Trump and for the United States, the Warsaw stop will present a set of modern-day challenges with historical echoes. On the one hand, Trump probably will have his most favorable meetings in Poland. Warsaws right-wing government and anti-immigration stance, among other things, are more in line with his administrations anti-internationalist stance.

[This is what the gradual erosion of rule of law looks like in Poland]

On the other hand, Poland like much of Europe will also be looking for Trump to put European allies at ease, and make a strong U.S. commitment to NATOs Article 5 treaty. Poland, along with the NATO member states bordering Russia, is fearful of Russias recent aggression spreading westward.

Poland and Estonia are two of only five NATO members that meet the target of spending 2 percentof gross domestic producton defense, a commitment NATO members agreed to work toward after the 2014 Wales Summit. Three other nations in the region, Romania, Latvia and Lithuania, are set to join this list by next year.

Article 5 is the glue holding NATO together

What all of these countries want to hear is a firm statement on Article 5 of the NATO treaty which simply stipulates that an attack on one alliance nation is an attack on them all. This is the core of the NATO alliance, and U.S. adherence to Article 5 dominates alliance members calculations, especially in Eastern Europe. AlthoughTrump pledged U.S. adherence to Article 5 during a June news conference with the Romanian president, many in the alliance remain uncertain, given the presidents failure to make a public commitment during his speech to fellow NATO leaders in May.

[Trump isnt a huge fan of NATO. But his complaints are off target.]

Collective defense was the core of the NATO alliances formation and credibility in 1949, and it remains so. As a crucial first step in NATOs creation and a prerequisite as far as the United States was concerned Britain, France, Belgium, the Netherlands and Luxembourg proved that they could come together for collective defense in the 1948 Brussels Treaty. To solidify a credible deterrent to the Soviet Union, the defense pact needed to expand to include the United States.

The biggest hurdle for the Truman administration at the time was overcoming a historical antipathy against alliances to create the first entangling alliance since the 1778 treaty with France. Realizing what was at stake in the growing Cold War, the administration worked across the political aisle to get key Republicans on board, most notably Sen. Arthur Vandenberg (R-Mich). In short, Vandenberg crafted the requisite legislation that would allow the United States to bind itself to the progressive development of regional and other collective self-defense.

As NATO historian Stanley R. Sloan points out, Today, the collective defense commitment still endows the North Atlantic Treaty with special meaning. It is a potential deterrent against would-be enemies of the allies and a source of reassurance should future threats develop.

Historically, Poland could use some reassurance

Poland hasnt had the best of luck controlling its sovereignty over the past two centuries. It was partitioned between regional powers in the late 1700s and gained independence only in 1918. As we know from more recent history, that didnt last long.

The Nazi-Soviet Non-Aggression Pact of August 1939 divided Poland between Hitlers Germany and Stalins Soviet Union. On Sept. 1, 1939, the German invasion of Poland launched World War II. Berlin eventually reneged on the pact and invaded the Soviet Union in the summer of 1941. The Poles, especially Polish Jews, would suffer some of the worst atrocities of the war.

The Soviet Red Armys liberation of Poland in 1945 and the conclusion of World War II didnt give Warsaw much of a break. Stalin sought a sphere of influence in Eastern Europe to act as a buffer between himself and the West, the direction from which Russias adversaries had come twice in the past 30 years. Against American protests, the Soviets installed a Moscow-friendly communist government in Warsaw, ushering in close to 45 years of Soviet dominance. Warsaw would also become the namesake for the pro-Soviet alliance system the Warsaw Pact created in 1955 to become NATOs counterfoil.

NATOs front lines have shifted

During the Cold War, if a hot war between NATO and the Warsaw Pact was going to begin, the chances were it would begin in a divided Berlin. For more than40 years, the two sides stared at one anotheracross dividing lines with names such asCheckpoint Charlie and weathered a major crisis from 1958 to 1961. The Berlin Walls fall in 1989, Germanys unification and the collapse of the Soviet Union in 1991 ended the Cold War and nightmares of Soviet tanks crossing into Western Europe.

In the past 25 years, NATO expanded eastward to include former Warsaw Pact members such asPoland, as well as former Soviet states. As tensions with a resurgent Russia have risen, many of these states worry that, as in Ukraine and Crimea, the Russians will find a pretext to initiate a hybrid war in the region to regain lost influence and control. This is why such a large portion of Russias neighbors in Europe spend at least 2 percent of GDP on defense, or will by 2018.

[Trumps national security adviser wants to water down U.S. NATO commitments. Heres what that means.]

As the Monkey Cage has noted, NATO stepped up its involvement in Eastern Europe in response to Russias actions in Ukraine, including Obama administration-ordered troop increases in Poland and other Eastern European nations. Poland and its Baltic neighbors will be looking for Trump to give strong assurances in a major speech he will deliver in Poland. Mediareports after Trumps May speech at NATO headquarters note that it appears the president intentionally removed a sentence reaffirming U.S. adherence to Article 5.

According to national security adviser H.R. McMaster, the president will reiterate Americas commitment to NATOs common defense this week in Poland. Whether this is a formal adherence to Article 5, a common understanding of the threat Russia poses to the region, or continued backing of American forces in the Baltics and Poland remains to be seen.

Kelly M. McFarlandis a U.S. diplomatic historian and director of programs and research at Georgetown Universitys Institute for the Study of Diplomacy and an adjunct professor in the Walsh School of Foreign Service.

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As Trump leaves for Europe, a question looms: Will he really commit to NATO once and for all? - Washington Post

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NATO and US Baltic Sea Exercises Highlight Ongoing Tensions with Russian Forces – USNI News

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Construction Mechanic 2nd Class Steven Montgomery, assigned to Naval Mobile Construction Battalion (NMCB) 1, directs an amphibious assault vehicle during exercise BALTOPS 17 in Putlos, Germany. US Navy Photo

ABOARD AMPHIBIOUS WARSHIP USS ARLINGTON BALTOPS 2017, now in its 45thyear as an annual naval exercise, took place during the first two weeks of June in a Baltic Sea region that continues to be tense with Russias continued assertiveness, which became apparent with the violent annexation of Crimea from Ukraine in 2014.

Some fifty ships and fifty aircraft, along with 4,000 personnel from, among others, the United States, the United Kingdom, Germany, the Netherlands, Denmark, Norway, and Estonia participated in the exercise that has shifted focus over the last few years towards preparing for high-end warfighting. And BALTOPS is not about a theoretical threat, but a rejuvenated Russian navy that is increasingly active and capable in the Baltic Sea, the North Atlantic, and the Black Sea, with activities ranging from stepped up submarine patrols to deployments to the Mediterranean where Russian surface ships and submarines have fired cruise missiles against targets ashore in Syria.

The growing Russian challenge at sea caused the then-commander of the US Sixth Fleet, Vice Adm. James Foggo, to pen a widely read article with the title The Fourth Battle of the Atlantic in 2016. To boot, in the Baltic Sea one is never too far from the coast, meaning that Russias land-based anti-ship missiles can target much of the regional maritime domain.

An assault amphibious vehicle drives across the beach in Ustka, Poland, during an amphibious landing demonstration during exercise BALTOPS 2017. US Navy Photo

The two-week exercise included a week of phased training and rehearsals on crucial elements of naval and amphibious warfighting, including mine hunting, air defense, anti-submarine warfare, and beach landings; all elements required for NATO to be able to fight through the anti-access/area-denial network that Russia is building in its Kaliningrad enclave in the southeast corner of the Baltic Sea and gain access across the sea to NATOs Baltic members, arguably the geographically most exposed members of the Alliance.

The second week of BALTOPS saw free play in a game scenario intended to simulate potential contingencies in the region sometime in the future.

Along with national contributions to BALTOPS the exercise also saw the participation of Standing NATO Maritime Group One (SNMG1), currently consisting of frigates and destroyers from Norway, Denmark, the Netherlands and Canada, along with the Standing NATO Mine Countermeasures Group One (SNMCMG1).

170614-N-PF515-003 USTKA, Poland (June 14, 2017) Polish sailors participate in an amphibious landing demonstration during exercise BALTOPS 2017. The premier annual maritime-focused exercise is conducted in the Baltic region and is one of the largest exercises in Northern Europe. (U.S. Navy photo by Chief Mass Communication Specialist America A. Henry/Released)

Both formations have led quiet existences during the post-Cold War era, and NATO has at times struggled to fully fill the maritime groups with rotational contributions from the allies. And while SNMG1 was originally intended to operate in Europes northern waters, it has been used for counter-piracy missions off the Horn of Africa and for presence in the Red Sea and around the coasts of Africa. Now, however, SNMG1 and SNMCMG1 are both back in northern waters, and with seemingly more allies willing to contribute ships and personnel to participate in the groups.

To reorient NATOs member navies back to high-end warfighting is no easy task, and will require reinvestment in capabilities, a change of mindset, and more exercises like BALTOPS that get increasingly more sophisticated during each iteration. BALTOPS 2017 specifically focused on the integration between maritime forces and air power, which included a B-52 and a B-1 along with Polish F-16s. This year, the majority of the BALTOPS exercise was also geographically focused in the southern Baltic Sea, with much of the naval action off the coast of Germany, and with amphibious landings in Poland and Latvia.

BALTOPS forms part of a broader effort to bolster NATOs ability to provide defense and deterrence at sea. Shortly after BALTOPS concluded the action moved to the North Atlantic off the coast of Iceland, where NATO member forces trained for anti-submarine warfare with ships, submarines, and maritime patrol aircraft in the exercise Dynamic Mongoose, with several of the ships that participated in BALTOPS present.

Vice Adm. Christopher Grady, commander of Naval Striking and Support Forces NATO, delivers remarks at a reception aboard the San Antonio-class amphibious transport dock ship USS Arlington (LPD-24) during exercise BALTOPS 2017. US Navy Photo

In mid-July NATO navies will kick off the exercise Sea Breeze 2017 in the Black Sea, which also will include ships from the Ukrainian navy. And beyond stepped up exercises such as BALTOPS, NATO is also considering its future role in the maritime domain at the strategic level. After much resistance within the Alliance there now seems to be movement towards a rewrite of the Alliance Maritime Strategy, first rolled out in 2011 in a very different security environment.

There are also active discussions about bringing back NATOs Atlantic Command; a maritime command structure disbanded after the end of the Cold War, but once again relevant in order for NATO to be able to better command and control operations in the broader North Atlantic and facilitate reinforcements from the United States to Europe across the sea. BALTOPS will return to the Baltic Sea next summer, for another turn of the wheel towards preparing NATOs navies for a fight in tight quarters.

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US taps ex-envoy to NATO to resolve Ukraine crisis – Reuters

Posted: at 3:54 am

WASHINGTON U.S. Secretary of State Rex Tillerson said on Friday he had chosen an envoy to lead U.S. diplomacy on the Ukraine crisis, adding that he had moved to fill the position at the urging of Russia's leader.

Former U.S. Ambassador to NATO Kurt Volker, a longtime diplomat, will be responsible for advancing U.S. interests as set out in the 2015 Minsk agreement to curb the conflict in Ukraine's Donbass region. He will accompany Tillerson to Kiev on Sunday, the State Department said.

Russia annexed Ukraine's Crimea region in 2014, and Kiev accuses it of backing pro-Russian separatists in eastern Ukraine, an allegation the Kremlin denies. The Minsk agreement called for a ceasefire in eastern Ukraine, the withdrawal of heavy weapons from the front line and constitutional reform to give eastern Ukraine more autonomy.

"At the request of President (Vladimir) Putin, the United States has appointed ... a special representative for Ukraine, Ambassador Kurt Volker," Tillerson told reporters after a meeting between Putin and U.S. President Donald Trump on the sidelines of the G20 summit in Hamburg, Germany.

Ukrainian President Petro Poroshenko welcomed the choice, writing in a message on Twitter that it would help end what he called Russian aggression and restore Crimea to Ukraine.

"Important & timely move in the interests of ending Russian aggression and restoration of Ukraine's territorial integrity, including Crimea," Poroshenko tweeted.

Volker was a career diplomat who served as permanent representative to the North Atlantic Treaty Organization under Republican President George W. Bush and Democratic President Barack Obama. He is currently a foreign policy and national security expert at the McCain Institute for International Leadership at Arizona State University.

"Kurt's wealth of experience makes him uniquely qualified to move this conflict in the direction of peace," Tillerson said in a statement. "The United States remains fully committed to the objectives of the Minsk agreements, and I have complete confidence in Kurt to continue our efforts to achieve peace in Ukraine."

Julie Smith, a former Pentagon official who worked on European and NATO policy during the Obama administration, praised the choice of Volker as Ukraine envoy, but said she was puzzled at Tillerson's statement that he filled the position at Putin's request.

"So Ukraine didn't matter enough to this administration to have them appoint a special envoy in the first place?" said Smith, now a senior fellow at the Center for a New American Security. "It was a bizarre word choice."

(Reporting by Susan Heavey and Doina Chiacu in Washington and Jeff Mason in Hamburg; Editing by Bernard Orr and Jonathan Oatis)

HAMBURG In a meeting that ran longer than either side had planned, U.S. President Donald Trump and Russia's Vladimir Putin discussed alleged Russian meddling in the U.S. election on Friday but agreed to focus on better ties rather than litigating the past.

HAMBURG Leaders from the world's top economies meet to forge a consensus on trade and climate change on Saturday after setting their staff to work through the night to find agreements that eluded them on the first day of their summit.

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US taps ex-envoy to NATO to resolve Ukraine crisis - Reuters

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NATO Secretary General to visit Ukraine – euronews

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Ukraine is set to welcome Nato Secretary General Jens Stoltenberg on July 10th. The visit coincides with the 20th anniversary of the distinctive partnership between NATO and Ukraine and high ranked officials hope it will provide an opportunity to discuss Ukraines prospects of joining the Alliance.

In an exclusive interview for Euronews, the Head of the Ukrainian Parliament Andriy Parubiy stressed that in June Ukrainian MPs adopted a draft law that sets membership of the Alliance as a priority for the country. On the July 6th, the bill was signed by Petro Poroshenko. Now Ukraine needs to step-up its reforms to comply with NATO standards

The Ukrainian army is becoming one of the most powerful armies in the region, he explains. Moreover, the army has real combat experience, the experience of modern warfare which means the Ukrainian army is capable of defending not only the Ukrainian border, but also the eastern border of NATO, and the eastern border of the entire free world.

But experts are not so optimistic about prospects of joining Nato. Oleksandr Sushko, Research Director of the Institute for Euro-Atlantic ooperation, says even receiving a Membership Action Plan is a long-term outlook for Ukraine mainly because of the ongoing military conflict with Russia.

Although there is no direct ban on the accession of a belligerent country, there is a logic which means granting NATO membership to a country must add stability and security to the Alliance and the world as a whole,,explains Oleksandr Sushko. There is a large group of NATO members who would not like to increase tensions in relations with Russia. And it is clear that any move towards Ukraines accession will mean additional tension.

In February, President Poroshenko said he would put Nato membership to a referendum. Recent polls show strong support for membership among Ukrainians.

If a NATO membership referendum was held this year, almost 70% of voters would say yes according to recent surveys. What is remarkable is that since 2012 the number of the North Atlantic Alliance supporters has tripled in the country. The main reason for this is the armed conflict in Ukrainian Donbass. says Euronews journalist Maria Korenyuk.

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Maddow warns other media of fake NSA documents – The Hill

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MSNBC host Rachel Maddow warned other media outletson Thursdaythat she believes she was provided forged National Security Agency documents alleging collusion between a Trump campaign official andRussia's efforts to influence last year's presidential election.

I feel like I need to send this up like a flare for other news organizations in particular, Maddow said on her programThursday night.

Somebody, for some reason, appears to be shopping a fairly convincing fake NSA document that purports to directly implicate somebody from the Trump campaign in working with the Russians in their attack in the election, she said.

Maddow explained that she and her producers compared the document they received with a leaked NSA document published last month by The Intercept. That document quickly resulted in the arrest of a 26-year-old federal contractor, Reality Winner.

Maddow said she thinks the document she received was created by copying elements of the document published by The Intercept.

The MSNBC host made a similar allegation back in March when she suggested Trump himself may have leaked his 2005 tax documents.

He's the only person who could leak it without concern of being sued by Trump or anyone else, she said at the time. They're trying to threaten us for publishing them which is complete bull.

David Cay Johnston, the reporter who obtained the tax documents, also said while discussing the documents on The Rachel Maddow ShowTuesdaythat Trump could have been behind the leak, as did MSNBC "Morning Joe"co-host Joe Scarborough.

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Maddow warns other media of fake NSA documents - The Hill

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GOP Lawmakers Aim to Continue NSA Foreign Surveillance Through New Bill – Truthdig

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Sen. Tom Cotton, R-Ark., speaking during a Senate Intelligence Committee hearing last month about the Foreign Intelligence Surveillance Act. (Alex Brandon / AP Photo)

A controversial surveillance measure set to expire at the end of 2017 could be made permanent through a new piece of GOP legislation. Arkansas Sen. Tom Cotton proposed Senate Bill 1297 last month, which addresses a critical component of the National Security Agencys warrantless surveillance program.

At stake is Section 702 of the Foreign Surveillance Intelligence Act (amended in 2008), which allows U.S. surveillance of foreign communications. The Electronic Frontier Foundation explained:

Section 702 surveillance violates the privacy rights of millions of people. This warrantless spying should not be allowed to continue, let alone be made permanent as is.

As originally enacted, Section 702 expires every few years, giving lawmakers the chance to reexamine the broad spying powers that impact their constituents. This is especially crucial as technology evolves and as more information about how the surveillance authority is actually used comes to light, whether through government publication or in the press.

If Congress were to approve Cottons bill, lawmakers would not only be ignoring their constituents privacy concerns, but they would also be ceding their obligation to regularly review, debate, and update the law.

Cottons bill is receiving support from fellow Republican senators, although criticism of the bill does not fall neatly along partisan lines. On June 7, lawmakers discussed the legislation during a hearing in Washington. The New York Times reported:

This is a tool that is essential to the safety of this country, the F.B.I. director, James B. Comey, told Congress at a hearing on Wednesday. I did not say the same thing about the collection of telephone dialing information by the N.S.A. I think thats a useful tool; 702 is an essential tool, and if it goes away, well be less safe as a country. And I mean that.

Mr. Comey also warned that one of the proposed changes a new requirement that a warrant be obtained to search for Americans information in the surveillance repository risked a failure to connect dots about potential threats.

But Representative Ted Poe, Republican of Texas, sought to warn other lawmakers that Congress needed to impose a warrant requirement.

Privacy is being betrayed in the name of national security, Mr. Poe told congressional aides at an event to discuss Fourth Amendment issues and legislation late last month.

Cotton argued during the hearing that to allow this program to expire on December 31 would hurt both our national security and our privacy rights. He also used the London terror attack of early June as evidence for the need for increased surveillance. Cotton said:

The attacks in London last weekend exposed in a matter of minutes just how vulnerable our free societies truly are. All it takes is a van or a knife and an unsuspecting bystander to turn a fun night out on the town into a horrific nightmare. Course, we shouldnt need any reminders, but let me give one yet again: We are at war with Islamic extremists. We have been for years, and, Im sorry to say, theres no end in sight. Its easy to forget this as we go about our daily lives, but our enemies have not-and they will not. Theyve never taken their eyes off the ultimate target either: the United States.

Yes, were at war with a vicious and unyielding foe. And just as our enemy can attack us with the simplest of everyday tools, the strongest shield we have in our defense is just as basic: It is the intelligence information of knowing who is talking to whom about what, where, when, and why. After the 9/11 attacks, our national-security agencies developed cutting-edge programs that allowed us to figure out what the bad guys were up to and stop them before they could perpetrate such heinous attacks. Very often the intelligence theyve collected has made the difference between life and death for American citizens.

He concluded by noting the bill has the support of every Republican senator on the Intelligence Committee. Other members of the intelligence community have expressed support for the legislation as well. Tech Crunch provided further analysis of the June 7 hearing:

NSA Director Michael Rogers broke down two scenarios in which the core controversy, namely the incidental violation of the right to privacy for U.S. citizens, comes up. He claimed that in 90 percent of cases, that form of collection is a result of two foreign targets who talk about a third person who is in the U.S. As Rogers tells it, 10 percent of the time a foreign target ends up talking to an American citizen. Because American citizens have Fourth Amendment rights, running into Americans in the course of foreign surveillance creates the sticky situation known as incidental collection, a major focus for privacy advocates seeking reform.

In the course of justifying Section 702 as an invaluable tool for counterterrorism and counterproliferation efforts, Director of National Intelligence Dan Coats claimed that agencies have made herculean efforts to get a count on how many Americans have been affected, but in spite of those efforts it remains impossible. He went on to undermine his argument by implying that it probably would be possible, but that he chooses not to allocate resources to the task when the intelligence community could be focusing on imminent concerns in countries like Iran and North Korea. I cant justify such a diversion of critical resources, Coats said.

He went on to note that without Section 702, intelligence agencies would have to obtain a court order issued due to probable cause ostensibly the bar that needs to be cleared in order to surveil U.S. citizens. Thats a relatively higher threshold than we require to foreign intelligence information, Coats said, noting that hed prefer not to need to clear the Fourth Amendment bar when investigating foreign targets.

In a broad appeal on 702s utility, Rogers went so far as to claim that 702 [created] insights on the Russian involvement in 2016 election, providing intelligence that would otherwise not have been possible.

There is, however, growing opposition to the bill. The American Civil Liberties Union has argued against it, as has California Democrat Dianne Feinstein.

Sen. Dianne Feinsteinwho has historically been sympathetic to the intelligence communitysaid she could not support a bill that makes Section 702 permanent, according to the Electronic Frontier Foundation. We cannot accept lawmakers ignoring our privacy concerns and their responsibility to review surveillance law, and our lawmakers need to hear that.

Posted by Emma Niles.

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GOP Lawmakers Aim to Continue NSA Foreign Surveillance Through New Bill - Truthdig

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Waymo scales back claims against Uber in driverless car dispute – SFGate

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Photo: BRETT CARLSEN, NYT

Waymo dropped several patent claims against Uber on Friday, but the two companies are still involved in a bitter lawsuit.

Waymo dropped several patent claims against Uber on Friday, but the two companies are still involved in a bitter lawsuit.

Waymo scales back claims against Uber in driverless car dispute

Waymo, the autonomous vehicle business that operates under Googles parent company, dropped several patent claims against Uber on Friday, pulling back some of its major allegations in a bitter lawsuit over driverless technology.

In a federal court filing, Waymo said it was dropping three of its four claims over Uber violating its patents related to light detection and ranging sensor technology, or lidar. Lidar is a vital component in driverless car technology, helping the vehicle detect its surroundings to navigate roads.

The case, an acrimonious battle between Waymo and Uber, spotlights the arms race surrounding autonomous vehicle talent and technology. It is especially significant for the Google unit now Waymo that spent years working on driverless car technology before other tech companies took an interest. But as Waymo searches for a way to make money from self-driving cars, many of its best engineers have left for potential competitors, carrying valuable knowledge of its technology with them.

The case with Uber, the ride-hailing company, began when Waymo filed suit in February, claiming Uber was using intellectual property stolen by one of Googles former project leaders in its driverless vehicles. That set off months of wrangling, eventually leading Uber to fire the former Google project leader, Anthony Levandowski. The case is scheduled for trial in October, with the thrust of it centered on Uber misappropriating Waymos trade secrets.

Waymos dropping of three patent claims against Uber weakens its original argument for bringing the suit. Still, each side called the latest legal move a victory.

Waymo said it agreed to scale back its patent claims because Uber had halted work on a lidar design that violated Waymos patents and is proceeding with a different design. Waymo is permitted to reassert its claims if Uber returns to the design that Waymo challenged. The company said Ubers current lidar design still violates one of its original patents.

We continue to pursue a patent claim against Ubers current generation device and our trade secret claims, which are not at all affected by this stipulated dismissal, Waymo said. We look forward to trial.

Uber said the dropping of the three claims was yet another sign of Waymo overreaching and not delivering on its claims.

Last month, Waymo received a signal from federal court that the patent claims were not its strongest legal argument in the case. Judge William Alsup of U.S. District Court in San Francisco, who is overseeing the case, urged the companys lawyers at a hearing June 7 to drop the patent claims because youre going to lose on all these patent claims unless you pull some rabbit out of a hat.

Uber, meanwhile, has been trying to distance itself from the actions of Levandowski, who joined Uber last year.

Waymo has said that Levandowski worked with Uber to steal proprietary information from Google before joining Uber. Waymo said Uber was aware that Levandowski had stolen files.

Uber said it expressly told Levandowski not to bring any stolen documents to the company or apply any of Waymos intellectual property to Ubers autonomous vehicle efforts. The company said Waymos lawyers have not found the stolen documents in Ubers possession, despite extensive discovery.

The matter has been complicated by Levandowski asserting his Fifth Amendment right to avoid self-incrimination. Uber said it urged him to cooperate with Waymos lawyers and fired him when he continued to refuse.

In a separate filing Friday, Uber said Levandowski, before invoking his Fifth Amendment right, told Travis Kalanick, then Ubers CEO, that he had downloaded the documents from Google because he was worried that he might not receive full payment of a $120 million bonus owed to him. Uber said this indicated that his actions were unrelated to his work at Uber.

Daisuke Wakabayashi is a New York Times writer.

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Your vanishing location privacy: Why the Supreme Court is giving wireless networks a look – Insider Louisville

Posted: at 3:53 am

Douglas F. Brent

By Douglas F. Brent and Victoria Allen, Stoll Keenon Ogden PLLC

Editors Note: Victoria Allen is a 2017 Summer Associate with SKO.

The digital age has ushered in a multitude of location mechanisms on a communication device. Anyone who has paid roaming fees knows their phone connects to more networks than just those designated by their wireless provider.

Cellphones work by establishing a connection with cell towers. Each tower projects unique directional signals, so a cellphone picking up a signal from the north has distinct CSLI, or cell site location information, from a signal broadcast from the same towers southern sector. As they manage their networks, carriers record these connections.

With thousands of new microsites with smaller coverage areas, CSLI rivals GPS as a way to nearly pinpoint a devices location.

CSLI and law enforcement

In thousands of cases each year, law enforcement agencies obtain the CSLI associated with suspects phones under the Stored Communications Act, instead of securing a search warrant based on probable cause. This tower dump can reconstruct a suspects location and movements over time, and is effective in crime solving.

Nearly all federal courts have agreed that getting a tower dump from cellular providers does not require a warrant. As recently as 2015, the U.S. Supreme Court declined to review any of those decisions.

But on June 5, the Court granted a defendants request to review his conviction upheld last year by the Sixth Circuit Court of Appeals in USA v. Timothy Carpenter.

The Court will consider whether the warrantless seizure and search of cellphone records revealing Carpenters location and movements over 127 days violated his Constitutional rights, specifically Fourth Amendment protection from unreasonable searches and seizures.

Carpenter was nabbed by the FBI in a string of armed robberies at Radio Shacks and T-Mobile stores around southeastern Michigan and northwestern Ohio. After receiving a judges order to obtain records from wireless carriers, the FBI determined that Carpenter had been less than two miles from each store when the robberies took place.

A Michigan jury convicted Carpenter and co-defendants, and a district judge sentenced him to multiple 25-year terms. The sentence was affirmed last year and Carpenter filed for Supreme Court review, even though two terms ago the Court declined to review a nearly identical decision from the Eleventh Circuit.

Why answer an unasked question?

We have written previously about why courts have generally held a warrant is not required to access cell site location information. The privacy protection provided by the Fourth Amendment guards individuals against unreasonable searches and seizures by law enforcement. Reasonableness is grounded in whether the person asserting the protection has an actual expectation of privacy that society will recognize.

But the Supreme Court has held that parties lack an expectation of privacy in business records created by third parties, like a telephone company that records the numbers dialed to initiate a call. Courts dont treat the review of most third-party transactional records as a search at all.

The resulting third-party doctrine, though developed in a different technology era, remains in use today. Regarding cellphone network data for geo-location, the records of wireless service providers have not triggered the same level of privacy protection as more direct methods of surveillance, like a hidden tracking device.

To fill the gap between Fourth Amendment protection and no protection at all, Congress created the Stored Communications Act (SCA), which requires that the government present reasonable grounds but not probable cause to obtain records like CSLI. Whether such information is also protected by the Fourth Amendment has become a more difficult question as transactional records become more numerous and more capable of revealing seemingly private information.

Some judges have been uncomfortable applying the third-party doctrine to pervasive collections, like thousands of locations recorded over months at a time. Judges have also questioned whether the doctrine applies to data not voluntarily conveyed by cellphone users. In the earliest cases involving phone networks, the information voluntarily conveyed was the number dialed by a suspect. In contrast, cellphone users dont so directly influence which cell tower their phone connects to.

The Supreme Courts decision to review Carpenters claims related to CSLI validates concern that the Fourth Amendment is being browbeaten into retreat by the swell of information that is conveyed to third parties. The Courts decision to hear Carpenter is an indication that the Supreme Court is ready to reconsider that decades old third-party doctrine in light of todays technology.

And it may be time.

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In Case You Missed It: Austin Petersen, Second Amendment, CNN. – Being Libertarian

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In Case You Missed It: Austin Petersen, Second Amendment, CNN.
Being Libertarian
Welcome to the fifth installment of In Case You Missed It, a weekly news roundup that focuses on some of the biggest news stories from around the globe every week. So, in case you missed it, here's your week in review: ...

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Third Circuit Declares First Amendment Right to Record Police – EFF

Posted: at 3:52 am

The First Amendment protects our right to use electronic devices to record on-duty police officers, according to a new ruling by the U.S. Court of Appeals for the Third Circuit in Fields v. Philadelphia. This right extends to anyone with a recording device, journalists and members of the public alike. And this right includes capture of photos, videos, and audio recordings.

EFF filed an amicus brief seeking this ruling. We argued that people routinely use their electronic devices to record and share images and audio, and that this often includes newsworthy recordings of on-duty police officers interacting with members of the public.

The Third Circuit began its Fields opinion by framing the right to record in history and policy:

In 1991 George Holliday recorded video of the Los Angeles Police Department officers beating Rodney King and submitted it to the local news. Filming police on the job was rare then but common now. With advances in technology and the widespread ownership of smartphones, civilian recording of police officers is ubiquitous. . . . These recordings have both exposed police misconduct and exonerated officers from errant charges.

The Third Circuit recognized that all five federal appellate courts that previously addressed this issue held that the First Amendment protects the right to record the police.

The court next reasoned that the right to publish recordings depends on the predicate right to make recordings. Specifically:

The First Amendment protects actual photos, videos, and recordings, . . . and for this protection to have meaning the Amendment must also protect the act of creating that material. There is no practical difference between allowing police to prevent people from taking recordings and actually banning the possession or distribution of them.

The court also reasoned that the right to record the police is grounded in the First Amendment right of access to information about their officials public activities. The court explained:

Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.

The court identified the many ways that civilian recordings of police activity are beneficial by capturing critical information:

Importantly, the court concluded that recordings of on-duty police have contributed greatly to our national discussion of proper policing. Among other things, they have improved professional reporting, as video content generated by witnesses and bystanders has become a common component of news programming. As a result, recordings have spurred action at all levels of government to address police misconduct and to protect civil rights.

Qualified Immunity

The Third Circuit erred on the issue of qualified immunity. This is a legal doctrine that protects government employees from paying money damages for violating the Constitution, if the specific right at issue was not clearly established at the time they violated it. In Fields, the Third Circuit unanimously held that going forward, the First Amendment protects the right to record the police. But the majority held that this right was not clearly established at the time the police officers in the case violated this right.

Judge Nygaard dissented on this point. He persuasively argued that this right was in fact clearly established, given the prior rulings of other appellate courts, the City of Philadelphias own policies, and the frequency that people (including police officers themselves) use their mobile devices to make recordings. On the bright side, the Third Circuit remanded the question of municipal liability, so there is still a possibility that the injured parties, whose right to record was disrupted by police, can obtain damages from the city.

Location of Recording

The Third Circuit in Fields sometimes formulated the First Amendment right to record police as existing in public places. This is true. But the right also exists in private places. For example, a home owner might record police officers searching their home without a warrant. Also, a complainant about police misconduct, speaking to internal affairs officers inside a police station, might record those officers discouraging her from pressing charges. In such cases, there is a First Amendment right to record on-duty police officers in a private place.

Rather than ask whether the place of recording was public or private, courts should ask whether the subject of recording had a reasonable expectation of privacy. Critically, on-duty police have no such expectation while speaking with civilians, whether they are in a public or private place.

The Fields decision is not to the contrary. Rather, it simply addressed the facts in that case, which concerned civilians recording on-duty police officers who happened to be in public places. Also, the Fields opinion at another point correctly framed the issue as recording police officers performing their official duties.

Interference

The court discussed another possible limitation on the right to record the policewhether recording may be subject to reasonable time, place, and manner restrictions to ensure that it doesnt interfere with policy activity. However, this issue was not before the court. It remains to be seen how future courts will address limitations on the First Amendment right to record the police.

The Third Circuits Fields decision is an important victory for the right of technology users to record on-duty police officers. But the struggle continues. Across the country, many government officials continue to block members of the public from using their electronic devices to record newsworthy events. EFF will continue to fight for this vital right.

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Third Circuit Declares First Amendment Right to Record Police - EFF

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