New precedents for the surveillance state

Important opinion out of the federal courts today. Judge Richard Leon ruled the NSA's metadata sweep of all the phones is unconstitutional, kicking what little breath was left out of the body of the Fourth Amendment. Or as the Hon. Judge Leon put it more formally:

[T]he question in this case can more properly be styled as follows: When do present-day circumstances — the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.

In other words, the decades old precedent the NSA built their surveillance permissions on is no longer applicable to the way we communicate today.

Judge Leon ordered the NSA to cease immediately and to destroy all their stored records. Which doesn't mean much since he stayed the order pending appeal. Which will surely go all the way to SCOTUS. Which will no doubt take several years. Still a high judicial rebuke of the program is far from nothing. Good news for anyone who cherishes the right to privacy.

Charlie says we should thank the hapless Ed Snowden and his champion Glenn Greenwald for this breakthrough, no matter how annoying you might find them. He's right. I was never bowled over by their revelations. I've been paying attention for a really long time and don't think I've learned anything new from Glenn and Ed. But they did succeed in keeping the story in play in the media for long enough to make it public knowledge among the less engaged citizenry. I doubt it would have made it this far in the courts without the worldwide public attention.

And yes, that Larry Klagman is going to get the credit for this case makes me want to vomit too.

Cyber-stalkers of the NSA

I don't find LOVEINT terribly shocking:

We have HUMINT, or human intelligence gathered from agents. We have SIGINT or signals intelligence. And now we have LOVEINT or NSA analysts occasionally reading the emails of ex-lovers. It doesn’t happen a lot, the NSA told the WSJ, but often enough that there is a word for it.

I don't even think it's necessarily always being done with bad intentions. Who hasn't done an internet search on an ex-lover or even a long lost friend to see what happened to them? Which is not to say LOVEINT isn't a concern.

The difference with LOVEINT is they have so much information at their disposal and have the ability to cause trouble for an ex and/or the new love interest of a lost love. Beyond that, if they can check on old lovers, they can also stalk current enemies and that has a great potential to not end well.

The thing about domestic surveillance is it really has been going on as long as I remember. What makes it urgent now is technological advances have made it so easy for them to accumulate all the data about our lives. I don't think our government is using it to stalk us all 24/7 -- yet. I don't think they can yet but with the speed of new advances, it's only a matter of time before we could find ourselves living in a real life version of 1984.

I'd also guess this cyber-stalking is a lot bigger than "just a handful of rogue agents" since the ones they caught were mostly self-reported. And of course we now know they've been illicitly sharing their data scoops with law enforcement which was once forbidden under the Fourth Amendment. So the question is, how do we stop them? I'm not sure we can but I am sure we're never going to be able to even diminish it to keep it within some less invasive parameters as long as internet fights keep the focus of the story on the players and the politics instead of the policy.

Simply so predictable

Glenn Greenwald says this is a misquote:

"I will be far more aggressive in my reporting from now. I am going to publish many more documents. I am going to publish things on England too. I have many documents on England's spy system. I think they will be sorry for what they did," Greenwald, speaking in Portuguese, told reporters at Rio's airport where he met Miranda upon his return to Brazil.

He's right. It wasn't an exact quote. Nonetheless, having read Glenn's version, I think Reuters captured the general sense of Glenn's statement. Even in his own words, it reads like a not so subtle threat. And I can't help but recall a similiar threat Glenn made against the US government on behalf of Snowden. But this isn't about the stolen NSA documents.

In case you somehow didn't hear, Glenn's spouse was detained for nine hours at Heathrow yesterday. They questioned him at length and then they took all his electronics and let him go without charging him. This is apparently legal under British law and to avoid confusion, let me stipulate the law they used is as troubling, if not more, than our own anti-terror overreach. Steve M has more on the law and the thousands of people who endured to varying degrees, the same horrible detention as David Miranda. These overly broad laws in all countries need to be clarified and narrowed, if not abolished. But this isn't about odious anti-terror laws either.

What I find most appalling about this incident is I can't help but think this was entirely predictable. Joshua Foust supplies the full backstory but if here's the short: Glenn has publicly stated he sent the leaked docs to David in the past. In the instant matter, The Guardian paid David to fly to Berlin to courier some sort of documents from Glenn to Laura Poitras, (the other journo on the Snowden story) and then return to Brazil with her docs for Glenn. So they book the return flight through Heathrow? Glenn is not stupid. Thus I'm forced to conclude Glenn set up his own spouse to take this fall and I wonder why.

Joshua articulates my current state of mind rather well:

More immediately, too, the instinctive reaction of far too many journalists to shriek about their own spouses being targeted is going to have a downside. Few journalists would treat their spouses as authority-bait the way Greenwald did this past weekend, and few would tell other reporters, for a profile, that they used their spouses to help them avoid intelligence agencies. Glenn Greenwald is a very smart man — he knew what he was doing. While we should all condemn the British authorities for holding Miranda for so long, we should also keep in mind exactly why he might have been singled out — and there a whole new set of complications and questions emerge.

There’s also a bit of historical literacy we should perhaps add to the discussion. Histrionics aside, most governments, and many more unsavory groups, treat secrecy very seriously — sometimes with deadly seriousness. Regardless of the rightness or wrongness of his decision to help pilfer and distribute the treasured secrets of several governments, to do so openly, with such braggadocio, is not only arrogant it is misguided. This is not a game, especially to the governments being exposed, and casually involving a spouse to take a hit when he won’t risk it is a bizarre and troubling decision.

I remember, respect and appreciate Glenn's work during the Bush administration but it feels different now. It's like I don't know who he is anymore and sadly, I'm not sure I can trust him.

Considering the source on Snowden

Honestly, I'm rather tired of the Edward Snowden story but another slow news cycle and the main source of entertainment today seems to be arguing about him. Given that the Snowden saga has dragged on for so long, I suppose it was inevitable that his motives would come into question.

On that point I agree with Nate Silver's tweet from a few days ago:

@fivethrityeight: Journalists shouldn't care about whether sources are good people, but about whether the source's account is reliable and accurate.

That being said, I did find this hit piece on Snowden mildly interesting. He does of course have a history on the internets and was once an active poster on the Ars Technica site. The consensus there is Snowden was pretty much a collosal dick. There are a lot of quotes at the link, including one exchange where he suggests we should let all the olds die rather than suck up our limited resources but this bit struck me as even more significant.

“Fuck old people”? An objectivist view if ever there was one. The other issue is the Second Amendment:

User: the restrictions were made to appease the conservatives to get another bill passed. fucking cons.

SNOWDEN: See, that’s why I’m goddamned glad for the second amendment. Me and all my lunatic, gun-toting NRA compatriots would be on the steps of Congress before the C-Span feed finished.

Not sure what to make of that but it's not shouting thoughtful concerned citizen to me.

In any event, whatever his motives are, while I remain grateful Snowden resurrected the objections to the surveillance state, if his goal really was to curtail it, and not simple attention seeking, he's utterly failed in that mission. All he appears to have accomplished at this point is to further polarize the debate.

You don't have to go home, but you can't stay here

Echoing the catch phrase of bartenders everywhere, it's last call for Snowden in Russia.

Deputy Foreign Minister Sergei Ryabkov said Russia had received no request for political asylum from Snowden and he had to solve his problems himself after 11 days in the transit area of Moscow's Sheremetyevo airport.

President Vladimir Putin has refused to extradite the American and Russian officials have delighted in his success in staying out of the United States' clutches since revealing details of secret U.S. government surveillance programs.

But Moscow also has made clear that Snowden is an increasingly unwelcome guest because the longer he stays, the greater the risk of the diplomatic standoff causing lasting damage to relations with Washington.

"He needs to choose a place to go," Ryabkov told Reuters.

Of course, Snowden's problem is nobody wants to take him. I imagine this is not the scenario he had in his head when he decided to go public. It seems he didn't calculate the geopolitical complications in seeking asylum. Kind of surprising. You might think a guy smart enough to hack closely guarded NSA data would have anticipated this in advance.

No where to run to, no where to hide

Well it seems our self-imagined international spy, Edward Snowden, is running out of options.

Snowden has prepared asylum requests in countries including India, China, Brazil, Ireland, Austria, Bolivia, Cuba, Finland, France, Germany, Italy, the Netherlands, Nicaragua, Norway, Poland, Spain, Switzerland and Venezuela, WikiLeaks has said.

Unfortunately for our intrepid leaker, after Snowden released a rather bizarre statement, only Venezuela has publicly indicated any real support for asylum but didn't actual offer to take him in. Several others have essentially said not going to happen and Russia has had quite enough of hosting their hapless house guest and would very much appreciate it if he could find new accommodations.

Meanwhile, Hendrick Hertzberg gets it exactly right on the traitor or hero question. The answer is neither. In the end, Snowden is just a kid who broke the law and is going to have to suffer for it in ways that he didn't properly anticipate before he decided to step into the klieg lights.

Eavesdropping for fun and profit

As I said in my earlier post, private contractors with the ability to hack surveillance programs might be tempted to hack someone for personal reasons. One might be potential blackmail, but it's just as likely to be just for fun. Via Atrios, this piece from 2008 reminds us in Iraq, NSA personnel were hacking calls for amusement.

Faulk says he and others in his section of the NSA facility at Fort Gordon routinely shared salacious or tantalizing phone calls that had been intercepted, alerting office mates to certain time codes of "cuts" that were available on each operator's computer.

"Hey, check this out," Faulk says he would be told, "there's good phone sex or there's some pillow talk, pull up this call, it's really funny, go check it out. It would be some colonel making pillow talk and we would say, 'Wow, this was crazy'," Faulk told ABC News.

People love gossip and now it's so emminently tweetable. The twitter is rife with reported snatches of conversation caught while eavesdropping in public spaces. The temptation to listen to private conversations is just as strong.

My second real job was an a telephone operator for a telecom. In those days they still used these old plug in switchboards. We had the ability to listen in. I was too much a goody two shoes to do it myself, but many of the operators listened in on the collect calls the guys at the high priced prep school were making. The guys never knew. [photo via]

Snowden isn't lying, he's bragging

Been processing this story for a while now and reviewing the sum of Snowden's leaks so far. The more Snowden talks the less credible he seems, particularly when he has to revise the dramatic details of his life as Edward Snowden, international spy.

Looking at his language carefully, he's not so much telling us what the government is doing. He's describing what he can do, as a paid outside agent of the government. Or at least he could have done if he had stayed undercover. Meanwhile as Snowden makes the story about himself, an important point is being lost. Namely, Snowden is not the only young ambitious superhacker in the ranks of possibly hundreds of thousands of private contract workers. Guessing a not small number would be tempted to sell intel for money rather than expose it as an act of social conscience or in a bid for internet fame.

Also as important as the civil rights violations within the surveillance state are, it's equally scandalous that our government is spending billions subcontracting our national intelligence to private, for profit corporations. I doubt public service is the first priority of these megacorps who hire young hackers with sporadic work histories and no academic credentials to oversee these confidential programs. So when Snowden tells you "the government" is spying on you what he really means is some 29 year old hacker like himself is really the one spying and they don't actually work for the government directly. The potential for some rogue IT kid to conduct a personal vendetta seems rather large to me. Maybe we could talk about that too.

Click-bait journalism means never having to admit you screwed up

So last night CNet's Declan McCullugh posted a story with the red siren hed, "NSA admits listening to U.S. phone calls without warrants — National Security Agency." You'll be shocked to learn, by this morning Declan's sloppy click-baiting turned out to be pretty much false, apparently based on his misinterpretation of a stray comment by Congressman Jerrold Nadler at some hearing.

Congressman Nadler corrected the misreporting today. [Transcript of the full convo at the link.] As The Atlantic notes in their piece the NSA click-baiting is even bigger than just this one point.

Seeing the full conversation reveals a slightly different picture than McCullugh was trying push forward. The FBI director testified that PRISM mostly works exactly like we've been told in the weeks since this scandal broke. An unclassified document obtained by Reuters claimed NSA officials looked at raw information for fewer than 300 telephone numbers in 2012. On Saturday, the Associated Press reported any domestic phone information collected by PRISM is stored in a secure server that requires a special warrant to access, supporting Mueller's testimony.

None of this is to say we should take the government's word for anything without a speck of skepticism either, but's it equally clear we can no longer trust the media to give us the real story either. As long as boosting traffic is the prime objective of the new journalistic order, we are mostly without reliable sources for actual facts.

The worst part is Declan's false info is still spreading. The twitter tells me his inaccurate version has 54K likes on Facebook and it's still spreading. Boing Boing picked it up this afternoon. And while Declan did correct some of the disinfo in the piece, he merely changed the headline slightly, disguising but not really refuting his original sensational claims, added a bit to the body of the piece, and then buried his admission of guilt at the very end of the post.

This is a big problem because, the majority of readers don't get past the headline and a very few make it all to the end of any given post of any length. All that gets passed through the social media is the sensational -- and false -- claims. Great for generating hysteria. Horrible for finding solutions to the surveillance state.

We're having the wrong argument about domestic surveillance

I'm about done with Edward Snowden barring any new corrected information but let's review for a moment the earliest reports about Snowden's revelations:

Snowden:

"All my options are bad," he said. The US could begin extradition proceedings against him, a potentially problematic, lengthy and unpredictable course for Washington. Or the Chinese government might whisk him away for questioning, viewing him as a useful source of information. Or he might end up being grabbed and bundled into a plane bound for US territory. "Yes, I could be rendered by the CIA. I could have people come after me. Or any of the third-party partners.

They work closely with a number of other nations. Or they could pay off the Triads. Any of their agents or assets," he said. "We have got a CIA station just up the road - the consulate here in Hong Kong - and I am sure they are going to be busy for the next week. And that is a concern I will live with for the rest of my life, however long that happens to be." Having watched the Obama administration prosecute whistleblowers at a historically unprecedented rate, he fully expects the US government to attempt to use all its weight to punish him. "I am not afraid," he said calmly, "because this is the choice I've made."

Charlie Pierce:

I am sorry, but this is the stuff of bad airport spy fiction. ("Rendered"? The Triads? Please.) The most likely outcome? China decides to extradite him because it has higher priority issues on which it needs to deal with the United States than the future of Edward Snowden. Which, I suspect, is when he and his sponsors will discover that Hong Kong's "spirited committment to free speech and the right of political dissent' -- which may be the funniest line to emerge from this whole saga -- is not what they believe it to be. But there are issues beyond Edward Snowden, and whatever comes next, and these are issues worthy of an open and national debate, and they should be examined in the light of day.

Read the whole thing. Charlie is right. We having the wrong arguments because too many people are uncritically buying the media hype and the fights are all about who's to blame. We didn't suddenly turn into a surveillance society overnight. The government has been spying on us in various ways our entire lives. That's surely not acceptable but let's not forget the Obama admin has not broken any laws. You want to get mad, then target the people who made all this stuff legal -- Congress.

Snowden's long game on leaking

Here's a curious side note on Snowden's epic leaks. He contacted this documentary film maker in January, Interestingly "she is filming the story behind the story — including her co-author on the Guardian story and former Salon columnist Glenn Greenwald — for her forthcoming documentary on whistle-blowers and leaks."

We now know Snowden ultimately contacted a slew of media people by the time he produced any hard evidence. Now they're fighting over credit for the scoop. It also apparently took him a long time to come up with the documents.

We were contacted, we didn’t know what he was up to, and at some point he came forward with documents.

Think Progress has more on Snowden's actual work history. He changed jobs a lot. He was just an IT guy, not an intelligence officer. He was an accomplished computer geek and made a ton of money privately contracting out his skills. But he clearly didn't have “the authorities to wiretap anyone," it appears he simply had the ability to hack further into the systems than he was cleared to do. And this is interesting:

He wasn’t just worried that data was being collected, but that it would eventually be used selectively to derive sinister conclusions from the actions of people living innocent lives.

In other words he has no proof that innocent people were being targeted with intrusive data intercepts, he just decided it was going to happen someday. In other words he lied, or exaggerated if you prefer, to get the media's attention. Which still makes me wonder if he either invented those powerpoints himself or if they were really a sales pitch from one of his many jobs with outside contractors and not from the NSA at all.

The more real information that comes out, the more it looks to me he's more interested in fame than in exposing actual government wrongdoing. I hope you'll forgive me for finding that less than heroic.

Media fails on Snowden story

So I'm still catching up the Snowden story. It's not that easy because it seems the facts keep changing and there's a metric ton of noise with everybody fighting about whether this kid is a hero or a traitor. Jeffrey Toobin doesn't think Snowden is a hero. He thinks he's " a grandiose narcissist." At this point, I tend to agree with that. It's not that I don't appreciate the guy restarting the debate about domestic surveillance, but I'm finding Snowden vaguely sociopathic for a number of reasons.

A lot of fighting appears to be based on incomplete information. Media has been flooding the zone with a grand rush to be first with any hot rumor they can get their hands on. Then stealthily correcting the record after the rumors turn out to be bogus.

Ed Bott continues to track the ever changing stories being quietly corrected. Guessing few people caught this correcton on the WaPo story.

Update June 10: And one more thing. In its original story, the Post calls the source of the documents "a career intelligence officer" who provided these materials "in order to expose what he believes to be a gross intrusion on privacy." We now know that the source was Edward Snowden, who was not an intelligence officer but an "infrastructure analyst" who had been in his current position with an external contractor for only three months. The "career intelligence officer" description seems exaggerated.

Seems exaggerated? How about entirely made up to point of near delusional? Suggests to me Snowden never had the authority to "wiretap the President" as he initially claimed. Seems to be a correction that big deserves a headline, but I haven't seen one yet. This is why I don't trust the media to get the story right anymore than I trust government claims of national security necessity. As Ed put it:

In short, one of the great journalistic institutions of the 20th Century is now engaged in outright click-baiting, following the same “publish first, fact-check later” rules as its newer online competitors.

Click-bait reporting is the new business model of the news biz. It's killing what's left of the profession of journalism and it's at the root of the ruination of civil society.

Edward Snowden, drama queen

"He was capable of melodrama but wrote with some eloquence about his beliefs."

Just catching up on this story of our intrepid leaker. Snowden claims he's not comfortable in the spotlight but everything I've read about this so far reads like a bad spy novel starting with his code name Verax which means “truth teller” in Latin.

Furthermore, he obviously planned to come forward from the beginning, making elaborate plans to secure asylum.

To effect his plan, Snowden asked for a guarantee that The Washington Post would publish — within 72 hours — the full text of a PowerPoint presentation describing PRISM, a top-secret surveillance program that gathered intelligence from Microsoft, Facebook, Google and other Silicon Valley giants. He also asked that The Post publish online a cryptographic key that he could use to prove to a foreign embassy that he was the document’s source.

I told him we would not make any guarantee about what we published or when. (The Post broke the story two weeks later, on Thursday. The Post sought the views of government officials about the potential harm to national security prior to publication and decided to reproduce only four of the 41 slides.)

Snowden replied succinctly, “I regret that we weren’t able to keep this project unilateral.” Shortly afterward he made contact with Glenn Greenwald of the British newspaper the Guardian.

Glenn of course, ran with the whole story without an apparent shred of skepticism, including publishing all the powerpoint slides. Speaking of those slides, this doesn't seem to have received a whole lot of attention. Declan McCullagh of CNET is skeptical. He noticed the WaPo surrepitiously revised their initial account. [See the complete revisions here]

Declan also found a named expert who wasn't impressed.

The biggest problem was that the Post took a leaked PowerPoint presentation from a single anonymous source and leaped to conclusions without supporting evidence. McCullagh quotes one of his named (not anonymous) sources, former general counsel of the NSA Stewart Baker, as saying the slides look “flaky."

Not saying Snowden made the whole thing up. We all know the program exists. Just saying it's entirely possible he's embellished his data to make it a better story.

The NSA leaker outs himself

I want to think this kid is a hero but I'm not sure I believe him.

I've been traveling all day so I'm just catching up. Read a couple of posts and watched Snowden's interview. Something about his body language strikes me as a bit off. He's clearly smart and articulate but his story is odd. As the kids say, I have questions.

For one thing, I actually know someone who tried to get a job with the CIA. She was also very bright, very beautiful and a college graduate. Not sure if she ever got the job. She moved away before it happened but the process is really long. She had been working at it for months. You don't just go in for a couple of interviews and pass a security check to get in.

The other thing I wonder just off the top is if he was so high in the agency that he had clearance to, as he put it, "wiretap anyone, even the president" why wasn't he still in Washington? Or Arlington, or wherever they house this secret operation? Why was he now working in Hawaii at some lower level contractor? Even using the word wiretap doesn't sound like CIA jargon to me.

And what about this girlfriend they say he was living with in Hawaii? I mean, he just packed a few things and took off to Hong Kong, never to come back? I wonder if he told her what he was planning to do? I don't know. Maybe it's just because I'm tired, I haven't read enough about it yet and I'm missing some key details but I'm getting a weird vibe from this guy.