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Stories filed under: "obama administration"

Obama Administration Looking To Expand Definition Of 'Critical Infrastructure' To Hit Back At Russians

from the oh-really-now? dept

One of the ridiculous parts of all of the discussions around “cybersecurity” concerns what should be considered “critical infrastructure.” That’s because, thanks to various executive orders, what the President declares as “critical infrastructure” leads to different cybersecurity requirements. There have been concerns that this will result in broadly classifying the internet as “critical infrastructure” in a manner that will lead to easier surveillance. But, as we noted nearly a decade ago, broadly classifying the internet as critical infrastructure would be silly, when the use of that designation should be narrowly focused on things like voting and banking (not to mention things like energy grids and water supplies).

Apparently, however, as the Obama administration is looking to respond to what it believes was Russian “interference” in the 2016 Presidential election, it is realizing that none of it targeted “critical infrastructure.” And thus… it now wants to change the definition of what’s covered. That should be concerning.

First off, at this point we should make a quick aside that there remains zero evidence released publicly that there was any actual hacking of our voting systems. None. Zip. Zero. And basically everything claiming otherwise has been partisan hackery. Before the election Trump supporters were going on and on about how voting machines could be hacked — but have been mostly silent since the election. Instead, since the election ended, it’s been Clinton supporters insisting that Russian hackers tampered with voting machines. For a decade and a half we’ve been warning about bad e-voting machines and how insecure they are, but so far no one has presented anything in the way of proof that electronic voting machines were hacked. Actual voting infrastructure is pretty clearly “critical infrastructure.” But what about other things — like the emails of top party leaders? Well, that’s what the administration now seems to want to change into “critical infrastructure.”

This is from a Washington Post article on the expected response by the White House against Russia:

The sanctions portion of the package culminates weeks of debate in the White House on how to revise a 2015 executive order that was meant to give the president authority to respond to cyberattacks from overseas but that did not cover efforts to influence the electoral system.

[….]

But officials concluded this fall that the order could not, as written, be used to punish the most significant cyber-provocation in recent memory against the United States ? Russia?s hacking of Democratic organizations, targeting of state election systems and meddling in the presidential election.

With the clock ticking, the White House is working on adapting the authority to punish the Russians, according to the officials, who spoke on the condition of anonymity to discuss internal deliberations. President Obama pledged this month that there would be a response to Moscow?s interference in the U.S. elections.

The targeting of “state election systems” definitely seems a bit more like it should obviously be considered “critical infrastructure” — though those attacks on state systems were not targeted at the actual voting infrastructure, but computer systems that contained information about voters and such. But it seems a lot more questionable to argue that political parties’ computer systems should automatically be seen as “critical infrastructure.” That seems to be heading down the slippery slope of declaring certain individuals email accounts critical infrastructure, and lots of mischief could be associated with such a designation.

As the article notes, even though it’s believed by many that Russian hackers got into election systems, it doesn’t appear they did anything in those systems, so it’s tough to show that there was actual harm:

?You would (a) have to be able to say that the actual electoral infrastructure, such as state databases, was critical infrastructure, and (b) that what the Russians did actually harmed it,? said the administration official. ?Those are two high bars.?

Although Russian government hackers are believed to have penetrated at least one state voter-registration database, they did not tamper with the data, officials said.

It definitely seems that voting systems should be seen as critical infrastructure, but given how declarations of critical infrastructure come with some pretty hefty requirements — and opening up the possibility of greater surveillance — the administration should be pretty careful about expanding the list as a reactionary move to the last election.

Filed Under: critical infrastructure, cybersecurity, e-voting, hacking, obama administration, retaliation, russia, voting, voting systems, white house

Administration's One-Year Experimentation With Reining In Police Militarization Apparently Over

from the good-times... dept

The administration’s brief flirtation with converting occupying forces back into police departments is apparently over. In the wake of the Ferguson protests, the administration announced its plan to rein in police departments which had been availing themselves of used military gear via the Defense Department’s 1033 program. This itself was short-lived. A year later, the administration mustered up enough enthusiasm for another run at scaling back the 1033 program, but it has seemingly lost some steam as Obama heads for the exit.

The images of police greeting protesters with assault rifles, armored vehicles, grenade launchers, and officers who appeared to mistake the Midwest for downtown Kabul apparently was a bit too much. It looked more like an occupation than community-oriented policing — something every administration has paid lip service (and tax dollars) to over the past few decades while simultaneously handing out grants that turned police officers into warfighters.

That’s all off the table now. Two recent shootings of police officers have effectively dismantled the dismantling of militarized police forces.

The White House will revisit a 2015 ban on police forces getting riot gear, armored vehicles and other military-grade equipment from the U.S. armed forces, two police organization directors told Reuters on Thursday.

Shortly after the recent shooting deaths of police officers, President Barack Obama agreed to review each banned item, the two law enforcement leaders said.

That could result in changes to the ban imposed in May 2015 on the transfer of some equipment from the military to police, said Jim Pasco, executive director of the Fraternal Order of Police, and Bill Johnson, executive director of the National Association of Police Organizations.

The law enforcement lobbyists met with the President and Vice President, and it appears Obama has sent the administration’s chief legal counsel to “review” the ban. The law enforcement organizations claim police need greater protections now, even though the recent clustering of officer deaths doesn’t put the nation on track for anything more than an average year of on-duty deaths.

But, while the chance of being killed in the line of duty remains steady, agencies are pushing for a return to pre-2015 levels of military gear, including tracked vehicles and grenade launchers “to deal with riots.” It doesn’t appear that any words were wasted discussing the underlying causes of the protests officers are now facing — none of which will be resolved with increased police militarization. Put someone in war gear and they’re going to be pretty sure they’re in a war, rather than serving the public as a trusted member of the community.

Filed Under: 1033, defense department, obama administration, police, police militariazation

After Only Nine Months On The Job, Administration's New FOIA Boss Calls It Quits

from the less-time-than-it-commonly-takes-to-fill-a-FOIA-request dept

Josh Gerstein at Politico brings us that news that James Holzer will step down from his position as the director of the Office of Government Information Services (OGIS) and return from whence he came: the Department of Homeland Security.

James Holzer took over last August as director of the Office of Government Information Services, which serves as an ombudsman between federal agencies and FOIA requesters. The office also conducts audits of agencies’ FOIA operations and proposes ways to streamline those processes.

Two sources said Holzer is returning to a position at the Department of Homeland Security, where he worked before joining OGIS, a part of the National Archives.

Depending on where you sit, Holzer was either the perfect pick for FOIA work or the worst.

For FOIA requesters, Holzer was anything but. His former (and now current) agency has a terrible FOIA track record. That this background would somehow result in his promotion to a position meant to facilitate FOIA requests was inexplicable.

Unless you’re the White House, in which case, he was the best man for the job.

This administration doesn’t care much for transparency. Elevating someone from an agency with a history of ineptness and recalcitrance only makes sense — if what you want is for “facilitation” to mean little more than looking busy while status remains quo.

For those seeking improvements in FOIA responses, Holzer was less than ideal. “Fox in the henhouse” was one of the kinder depictions of Holzer and his new position as go-between for federal agencies and FOIA requesters.

Despite the doubts raised about his capability or interest, Holzer actually appeared to be doing what he was supposed to do — which makes it surprising (or unsurprising — see above) that he didn’t even stick it out for an entire year.

“It’s difficult to imagine that he wasn’t asked for at least a one-year commitment in order to take such a position so it’s remarkable his tenure lasted no more than nine months,” said Dan Metcalfe, director of the Collaboration on Government Secrecy at American University’s law school.

While OGIS’s efforts to mediate between requesters and agencies have been challenging, the unit has gotten high marks for its reviews of agency FOIA offices. “OGIS certainly has continued its superior work during the last nine months,” Metcalfe said.

The lack of comment from anyone makes it unclear whether Holzer was ousted by the administration for being too efficient or that he found swimming against the secrecy stream to be exhausting. With his return to the DHS, we can probably expect a return to the FOIA mean, which entails such things as declaring FOIA clearinghouse MuckRock to be a “non-journalistic” entity (to maximize FOIA fees collected) and overseeing dubious efforts like clearing FOIA backlogs by dumping requests into file boxes and throwing them on shelves in some darkened warehouse.

Filed Under: foia, james holzer, obama administration, transparency, white house

Obama Administration's Expansion Of Domestic Spying Powers Dwarfs The 'Good Old Days' Of Bush And John Yoo

from the a-backbone-too-far dept

I guess the real accomplishment of “The Most Transparent Administration” is how much it exposed Americans to domestic surveillance. I suppose that’s its own form of “transparency.”

Just Security’s Patrick Toomey notes that this administration has embraced legal theories wilder and more expansive than those presented by John Yoo on behalf of the Bush administration. Yoo, despite his willingness to treat the collection of communications like a DUI checkpoint for terrorism, had his limits. This administration, however, has seen those limits and lowered them.

Like Yoo, the Obama administration has argued that Americans have a “greatly reduced” expectation of privacy in their international communications — so diminished, in fact, that no warrant is necessary for the government to intercept and search those communications. That might come as a surprise to the millions of Americans who regularly engage in personal or confidential communications with family, friends, business associates, and others overseas. When you pick up the phone to call a family member abroad, there is no reason to believe that your communication is any less private than calling a friend across town. The Supreme Court has certainly never said any such thing. Indeed, Yoo eventually admitted in his memo that the case law did not support the suspicionless interception of “the contents of telephone or other electronic communication[s]” — though he then proceeded to ignore his own conclusion.

But that has not stopped the government from making the same claims in the Section 702 cases now moving through the courts. The government has embraced Yoo’s position, arguing that the privacy interests of US persons in international communications are “significantly diminished, if not completely eliminated,” when those communications are sent to or from foreigners abroad.

Going further, this administration has decided to believe that any communication traveling outside of US borders is a communication with a foreigner, even if it’s a domestic-to-domestic conversation taking an extremely circuitous route. If it crosses one of the overseas backbones the NSA has tapped into, it’s fair game, no matter who the ultimate recipient of the communication actually is, or where they reside.

This is the NSA’s upstream collection under Section 702, which now goes much, much further than Yoo’s version ever did. Toomey notes Yoo assured FISA Court Judge Kollar-Cotelly that this collection was not the Bush administration giving itself permission to seize and search every international communication. But that’s exactly how the Obama administration has chosen to interpret its powers.

As the ACLU recently explained in Wikimedia v. NSA, this surveillance is the digital analogue of having a government agent open every letter that comes through a mail processing center to read its contents before determining which letters to keep. In other words, today the Obama administration is defending surveillance that was a bridge too far for even John Yoo.

So, John Yoo, the architect of what was once thought to be the greatest expansion of government surveillance powers, is now just the guy who laid the foundation for the intelligence community today. What the Bush administration considered to be too far is the Obama administration’s starting point. Considering the breathtaking reach of the NSA under this administration, it’s hardly surprising a few leakers have taken it upon themselves to reveal to the public what’s being done to them by their government in the name of national security.

Filed Under: civil liberties, john yoo, obama administration, president obama, privacy, surveillance

FOIA Request Results In Details Of Administration's War On FOIA Reform

from the presume-openness,-but-don't-you-dare-act-on-that-presumption dept

Do you like irony? Documents obtained by the Freedom of the Press Foundation (and shared with Jason Leopold of Vice) through an FOIA request show how the Obama administration and various agencies worked together to dismantle FOIA reform efforts. “Presumption of openness,” my [REDACTED].

The documents confirm longstanding suspicions about the administration’s meddling, and lay bare for the first time how it worked to undermine FOIA reform bills that received overwhelming bipartisan support and were unanimously passed by both the House and Senate in 2014 — yet were never put up for a final vote.

Jason Leopold has also obtained some documents of his own. These show the SEC and FTC were also instrumental in preventing the FOIA reform bill from landing on the President’s desk.

It’s an annual tradition. Legislators will offer up an FOIA reform bill, usually with broad support, and it will end up going nowhere. Too many agencies would prefer to leave the FOIA as it is — intermittently useful but far too often reliant on lawsuits and endless appeals to wrest documents out of the government’s hands. Exemptions are abused and agencies further contribute to the general opacity by ever-so-slowly upgrading their digital document-handling capabilities and outdated (and incomplete) search systems.

As Leopold notes, the 2014 effort to reform the Freedom of Information Act passed out of the House with a 410-0 vote. And then it was left to die as agencies like the DOJ and SEC stepped in to halt forward progress.

The administration released its own talking points in opposition of the reform effort, claiming that any more openness would throw the machinery of government into disarray.

The White House claimed it would increase the FOIA backlog, result in astronomical costs, and cause unforeseen problems with processing requests, according to a secret six-page DOJ set of talking points turned over to the Freedom of the Press Foundation along with 100 pages of internal DOJ emails about the FOIA bill.

The DOJ pushed back the hardest. And the administration not only allowed it to do this, but actively supported it in its efforts.

Remarkably, the talking points go on to say that the DOJ opposed the administration’s own instructions that called on agencies to act with the “presumption of openness” as stipulated in Holder’s guidelines and Obama’s presidential memo. The DOJ, they said, would “strongly oppose” any attempts to codify it into law.

Despite its opposition to codifying a “presumption of openness,” the DOJ considers itself to be the paragon of governmental transparency.

Last year, in testimony before the House Oversight and Government Reform Committee, Melanie Pustay, who heads the DOJ’s Office of Information Policy (OIP), which is supposed to ensure that all government agencies adhere to Holder’s guidelines, told lawmakers that the DOJ is doing a great job with FOIA. She graded the agency five out five on “presumption of openness.”

A completely laughable assertion. At least someone called out the DOJ for this statement.

“Five out of five, on an effective system in place for responding. Proactive disclosure. Are you kidding me?” Committee Chairman Jason Chaffetz asked Pustay. “The Department of Justice gives themselves a five out of five on proactive disclosure. You really think anybody in the world believes the Department of Justice is the most — they’re at the top of their game, they got an A-plus, five for five? Do you really believe that?”

No one believes that. Not even the DOJ. The FBI is more secretive than the CIA. And both the DEA and FBI have a long history of refusing to turn over documents to the DOJ’s Inspector General, to say nothing about the general public.

Suspicions of administration intervention were raised after then-Speaker of the House John Boehner simply sat on the bill until the last legislative session of the year closed in December 2014. But no one’s been able to obtain any solid information to back up theories or confirm the agencies most instrumental in killing the bill. Legislators aren’t talking about it. Administration officials won’t discuss it. So, the same tool the administration won’t fix was used to find out why it won’t — and which agencies fought back the hardest.

The balance of power in the government is such that it only takes a few recalcitrant agencies and a few cooperative legislators to effectively nullify the wishes of senators and representatives who passed the reform bills unanimously. That the administration had their back is no surprise. Despite its bogus claims of “most transparent administration ever,” this administration has done more to decrease accountability and transparency than any other administration to date.

Filed Under: doj, foia, obama administration, secrecy, transparency, white house

Two Former White House Tech Advisors Tell The President To Actually Be Transparent About Trade Deals

from the what-a-concept dept

Two former Obama tech staffers — Professor Colleen Chien (who advised the administration on intellectual property issues) and Quentin Palfrey (who worked for years in the Commerce Dept and the Office of Science and Technology Policy on intellectual property issues) — have written a fantastic opinion piece for The Hill, arguing that the White House has one last chance to actually be transparent in trade negotiations as it moves forward with the TTIP agreement with the EU. The piece notes that part of the reason that the TPP agreement is in so much trouble was its secrecy:

Largely due to the secrecy of the negotiation process, the TPP long bred suspicion. When its terms finally became public last fall, opposition to the process quickly hardened into opposition to the agreement?s terms ? which both Democrats and Republicans say need improvement before it can be passed. The text has been 10 years in the making, but only recently did the public get access to its terms. Since multiple leaks made most of the negotiated terms an open secret, why did the Administration wait so long to formally disclose the text?

They admit that the USTR’s standard answer — that trade negotiations rely on secrecy, and you don’t want to give up an advantage — may have some validity, but argue that it’s almost certainly outweighed by other factors. They then raise three key points for being much more open and transparent on trade deals (all issues we’ve raised in the past):

1. Quality suffers when there is no free and open debate.
2. “Exporting U.S. law” is hard and can lead to unintended consequences.
3. Trade policy should reflect our democratic ideals

To be honest, all three of these are basically the same argument phrased differently, but they’re all valid points. And they then urge the White House and the USTR to take the (not really that big) step of opening up the negotiating texts of the TTIP agreement. Since it’s just between the EU and the US, it’s not even as complicated as the TPP where you were negotiating with over a dozen countries. And the EU has been much more transparent in negotiating its trade deals, and has pledged to be on the TTIP as well. So, really, why does the USTR continue to take such an undemocratic, archaic viewpoint in negotiating these deals? The only explanation that makes sense is that it’s the best way to sneak in favors for certain industries — and given the ongoing “revolving door” between the USTR and certain large, legacy industries, perhaps that really does explain most of the issue.

Filed Under: colleen chien, democracy, obama administration, quentin palfrey, secrecy, tpp, trade, transparency, ttip, ustr

White House Takes The Cowardly Option: Refuses To Say No To Encryption Backdoors, Will Quietly Ask Companies

from the ridiculous dept

Last month, we wrote about a document leaked to the Washington Post that showed the three “options” that the White House was considering for responding to the debate about backdooring encryption. The document made it clear that the White House knew that there was zero chance that any legislation mandating encryption backdoors would pass. But the question then was what to do about it: take a strong stand on the importance of freedom and privacy, and make it clear that the US would not mandate backdoors… or take the sleazy way out and say “no new legislation for now.” As we said at the time, option 1 was the only real option. You take a stand. You talk about the importance of encryption in protecting the public.

However, it appears that the White House has taken the cowardly approach. Yesterday, the leading voice in favor of mandating encryption backdoors, FBI Director James Comey, announced that the administration would not push for legislation to mandate backdoors… for now. But it will still push for backdoors quietly behind doors with companies.

After months of deliberation, the Obama administration has made a long-awaited decision on the thorny issue of how to deal with encrypted communications: It will not ? for now ? call for legislation requiring companies to decode messages for law enforcement.

Rather, the administration will continue trying to persuade companies that have moved to encrypt their customers? data to create a way for the government to still peer into people?s data when needed for criminal or terrorism investigations.

?The administration has decided not to seek a legislative remedy now, but it makes sense to continue the conversations with industry,? FBI Director James B. Comey said at a Senate hearing Thursday of the Homeland Security and Governmental Affairs Committee.

This is a totally bullshit response. Of course the administration isn’t asking for legislation: because everyone knows (1) it couldn’t pass and (2) it would be a really, really stupid thing to ask for. In that leaked document last month, the administration noted that with this option public interest groups “would likely see this outcome as a solid win.” They’re wrong. This option is bullshit. It’s one notch up from literally “the least they could do.” It doesn’t help anyone. It provides cover to countries that do want to undermine the tech industry and mandate backdoors. It leaves open the ways to pressure tech companies to secretly include backdoors that undermine everyone’s safety. And, worst of all, it takes away any and all “high ground” positions for the administration to point out that it doesn’t want to undermine the safety and security of the American public.

In short, the administration didn’t take the strong stand when the strong stand was the only feasible path. There are enough people within the administration who know this is the stupid choice, and yet they still took it. A very weak move from an administration that should know better (and does know better), just to please some technologically-clueless law enforcement folks.

Filed Under: cybersecurity, encryption, encryption backdoors, going dark, james comey, obama administration, white house

White House Realizes Mandating Backdoors To Encryption Isn't Going To Happen

from the option-1-please dept

Over the last few months, I’ve heard rumblings and conversations from multiple people within the Obama administration suggesting that they don’t support the FBI’s crazy push to back door all encryption. From Congress, I heard that there was nowhere near enough support for any sort of legislative backdoor mandate. Both were good things to hear, but I worried that I was still only hearing from one side, so that there could still be serious efforts saying the opposite as well. However, the Washington Post has been leaked quite a document that outlines three options that the Obama administration can take in response to the whole “going dark” question. And the good news? None of them involve mandating encryption. Basically, the key message in this document is that no one believes legislation is a realistic option right now (more on that in another post coming shortly).

That’s big!

The document’s three options can be summarized as follows:

1. Option 1: Do the right thing, admit that backdooring encryption is a bad idea and dumb, and stand up for real cybersecurity by saying that more encryption is generally good for society. This will make lots of people happy — including civil liberties folks and the tech industry, and it will also do more to protect the public. It will also help the most with many foreign countries in showing that the US isn’t just trying to spy on everyone — though it may piss off a few countries (mainly the UK) who have doubled down on backdooring encryption. Also, it will undermine China’s plan to backdoor encryption as well. Let’s call this the right option.
2. Option 2: Yeah, we know what the right thing to do is, but we’ll take a half-assed approach to it to try to appease the FBI/law enforcement folks and not come out nearly as strongly against legislation. We’ll say there’s no legislation, but we’ll at least leave the door open to it. In private, we may still push tech companies to backdoor stuff. This will anger lots of folks, but maybe (the administration believes) some civil liberties types will think it’s enough of a win to celebrate. Then we pretend that we can hold some sort of “discussion” between people who disagree.
3. Option 3: We totally punt on the issue and don’t really say anything. If we do say something, we say that this issue needs a lot more discussion and study (just like people have been saying for the last year). In other words, endless cryptowars with no end in sight.

Clearly, Option 1 is the only sensible option, and the report lays out some pretty strong arguments for why coming out against backdooring encryption would be good. It would actually make the tech industry much more willing to work with the government in productive ways, rather than stupid, privacy and security-destroying ways. It would actually better protect the public and it would stop authoritarian regimes from using our own language against us to break encryption. The cons are basically that law enforcement might whine about it. Well, the administration actually says that it “provides no immediate solution to the challenges that the expanding use of encryption poses to law enforcement and national security” but given that law enforcement still hasn’t done a good job showing this is a real problem, that’s not really a big deal.

In fact, law enforcement is still relying on made up ghost stories rather than any real evidence that encryption is a problem.

So, now the big question is which option the administration will choose. Will it stand up and take leadership on this issue (Option 1), thereby actually protecting Americans? Or will it do a variety of half-assed measures believing that it has to support “both sides” or some crap like that? From the leaked report, it appears that if it chooses either Option 1 or 2, the White House will make a public statement on the matter within the next few weeks.

Filed Under: backdoors, cybersecurity, encryption, going dark, james comey, obama administration, white house

White House Vaguely Agrees Outdated ECPA Should Be Reformed But Only With An Eye On The Government's 'Interests'

from the SOMEONE-SHOULD-REALLY-FIX-THAT-SOMETIME dept

The Obama administration must be doing a little housecleaning in preparation for the 2016 winner. After months of highly-sporadic and belated responses to We The People petitions, it’s answered two big ones (that have been sitting around forever) in a single day. It’s also issued a handful of other responses to open petitions, some of which are little more than “we decline to respond,” accompanied by a link to the site’s Terms of Participation.

It took on two big petitions today. The first was a response to a request to pardon Snowden, which it denied under its “No Good Whistleblowing Goes Unpunished” policy. The second asked for a long-delayed rewrite of an outdated law.

The Electronic Communications Privacy Act has been in need of reform for years. If nothing else, the law’s misleading name needs to be changed. One of the more notorious aspects of the law is that it gives email less privacy protection than snail mail, which is already an exceedingly low bar.

The administration agrees that reform of this law — which treats email older than six months as “abandoned” and thus easily-accessible by law enforcement — is needed. However, it does so both belatedly, vaguely and disingenuously.

The We The People petition calling for ECPA reform was posted November, 12, 2013. It passed the 100,000-signature threshold roughly 30 days later. At that point, a response was “required.” 593 days later, that response has finally arrived.

It’s obvious that many — and arguably, most — Americans today use email as one of their primary means of communication. Particularly in an era where we keep so much of our lives online, the content housed there deserves strong privacy protections — which is at the core of what ECPA was designed to do. But over time, technology has evolved.

Which is why our policy teams agree with you: ECPA is outdated, and it should be reformed.

This is good news. Or it would be if there were any particular plan to get something done. While the response agrees that the outdated law’s take on email privacy protection is pretty much terrible, the administration doesn’t seem too willing to push for any specific reform effort.

We know there are still important details being worked out across government and in the halls of Congress. We aren’t going to endorse a single ECPA-reform bill at this time. As any given bill goes through committee and makes its way to the House and Senate floors, the draft is negotiated and modified to address concerns and strengthen the bill.

In other words, we like the idea of reform so much we’re going to do nothing about it. While efforts have been made over the past few years, they’ve been stalled/gutted to appease law enforcement and (yes, really) regulatory agencies’ interests. Very little forward motion has been made and without something stronger than “we’ll probably support whatever actually makes its way to the President’s desk” propelling this reform, it could still be several more years before the already-outdated law is rewritten to properly address a communication method that originated nearly 45 years ago.

Finally, the response sends a mixed message about reform in the very last sentence.

That said, we’re encouraged by the strong bipartisan support for updating this legislation in both chambers of Congress, and are looking forward to seeing this law address today’s technological realities while preserving the interests we must protect.

This seems to indicate it will be more supportive of a bill that has the backing law enforcement and other government agencies. A warrant requirement for emails older than six months isn’t that much of an imposition, but so far, it’s been a tough idea to sell. This last sentence shows the administration finds the government’s “interests” worth protection. The privacy interests of millions of Americans? Not so much.

Filed Under: 4th amendment, ecpa, ecpa reform, email, obama administration, privacy, warrant, we the people

White House Finally Answers Snowden Pardon Petition: The Only Good Whistleblowing Is Punished Whistleblowing

from the because-of-course-this-would-be-the-answer dept

The White House has finally responded — more than two years later — to a petition asking for a pardon of Edward Snowden. The petition surfaced soon after Snowden went public with his identity. Less than three weeks later — June 25, 2013 — it had passed the 100,000-signature threshold.

Understandably, the administration was in no hurry to respond to this petition. In the immediate aftermath of the first leaks, no entity was more unpopular than the NSA. Snowden, on the other hand, probably could have won a number of local elections as a write-in candidate at that point. So, the administration sat on it, as it has sat on a great many petitions not particularly aligned with its desires.

Unfortunately, the public’s opinion hasn’t shifted much. As other agencies have become more plaintive in their requests to undermine privacy and safety to keep criminals from “going dark,” the public has become less and less enthusiastic about being forced to make more sacrifices in the interest of security. The NSA also hasn’t become more popular in the interim. So buying time by cherry-picking We The People petitions to respond to hasn’t made answering this petition any easier for the administration.

More than two years later — 763 days past the point it became a viable petition — the administration has answered. And the answer could have been written two years ago, as it refuses to acknowledge Snowden’s contribution to recent surveillance reforms. The response was written by Lisa Monaco, the president’s advisor on Homeland Security and Counterterrorism. Considering the source, the response is unsurprising. But it starts off with a lie:

Since taking office, President Obama has worked with Congress to secure appropriate reforms that balance the protection of civil liberties with the ability of national security professionals to secure information vital to keep Americans safe.

Wrong. The “appropriate reforms” have been forced into existence by leaked documents Snowden provided. This “conversation” the President keeps claiming he always wanted to have only took place because he could no longer ignore it. This opening sentence is worse than merely disingenuous. It’s a complete rewrite of Obama’s civil liberties legacy. Before the Snowden leaks, Obama’s stance on surveillance was “whatever Bush did, only more.”

Next, Monaco goes on to say that no matter how instrumental Snowden was in the recent surveillance reforms (without ever actually saying that), he’s still a just a criminal and should be treated as one.

Instead of constructively addressing these issues, Mr. Snowden’s dangerous decision to steal and disclose classified information had severe consequences for the security of our country and the people who work day in and day out to protect it.

Except that this administration is no friend to whistleblowers. Snowden knew this. Snowden also knew the “proper channels” were mostly there to ensure whistleblowers were silenced and punished. So he ran. This administration has prosecuted more whistleblowers than all other administrations combined. When Snowden took off, it was five years into Obama’s presidency, plenty of time to gauge what sort of odds the “proper channels” offered.

From that point, Monaco goes on to claim that the only legitimate act of civil disobedience is a punished act of civil disobedience.

If he felt his actions were consistent with civil disobedience, then he should do what those who have taken issue with their own government do: Challenge it, speak out, engage in a constructive act of protest, and — importantly — accept the consequences of his actions. He should come home to the United States, and be judged by a jury of his peers — not hide behind the cover of an authoritarian regime. Right now, he’s running away from the consequences of his actions.

First off, this is wrong. As has been explained countless times, under the Espionage Act, which is what Snowden would be charged under, he is not allowed to present the evidence in his defense that he was blowing the whistle on an illegal program (and yes, it has been ruled illegal). Nor is he allowed to argue that the leak was in the public interest. In other words, the law is stacked such that he cannot present his argument fairly. The deck is stacked and Monaco knows the deck is stacked and ignores that — which is exceptionally dishonest.

I would imagine Monaco — and by extension, the administration — would also feel that those who hacked Hacking Team are the real criminals here, not the company that sold surveillance software and zero-day exploits to governments known for widespread abuse of their citizens. “Look, we appreciate them highlighting these dubious and likely illegal contracts. But to move forward, we really need to put the hackers who obtained the documents on trial.”

But, honestly, no one expected this response to go any other way. No one who holds the top office in the nation is going to sell out the rest of the government for a whistleblower. So, it could have saved everyone the trouble and posted this answer June 26, 2013.

Filed Under: ed snowden, espionage act, lisa monaco, nsa, obama administration, petition, surveillance, we the people