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GrizzlyCow
May 30, 2011
It's not about him being unfairly persecuted. He probably did deserve what happened to him, but the story is about what leverage the NSA has to strong arm companies into designing backdoors into their technology. The fact alone that they waited until he said no to one of their schemes to prosecute him is telling enough. The victim in this case doesn't matter as except to highlight who is being targeted and coerced by the Government and into what.

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Zombywuf
Mar 29, 2008

shrike82 posted:

Yeah, I'm sure the CEO who got charged with insider trading was being unfairly persecuted...

The one's you've got to watch out for are the ones that haven't been charged with insider trading.

Vulture Culture
Jul 14, 2003

I was never enjoying it. I only eat it for the nutrients.

GrizzlyCow posted:

It's not about him being unfairly persecuted. He probably did deserve what happened to him, but the story is about what leverage the NSA has to strong arm companies into designing backdoors into their technology. The fact alone that they waited until he said no to one of their schemes to prosecute him is telling enough. The victim in this case doesn't matter as except to highlight who is being targeted and coerced by the Government and into what.
Not to mention that the entire reason they probably got wind of his insider trading was by digging through his communications for dirt once he pissed them off.

Thanqol
Feb 15, 2012

because our character has the 'poet' trait, this update shall be told in the format of a rap battle.

Misogynist posted:

Not to mention that the entire reason they probably got wind of his insider trading was by digging through his communications for dirt once he pissed them off.

I'd actually be a lot more okay with this NSA poo poo if hundreds of CEOs got prosecuted in this way.

America Inc.
Nov 22, 2013

I plan to live forever, of course, but barring that I'd settle for a couple thousand years. Even 500 would be pretty nice.
Here's an article from the former head of security at Ben Gurion airport in which he tears apart the TSA. It's actually a reflection of the US national security apparatus as a whole (poor inter-department communication, lobbying based on greed and not expertise, dragnetting over HUMINT):
http://www.cracked.com/blog/7-reasons-tsa-sucks-a-security-experts-perspective/
VVV Yes, I'm lost as to why he chose Cracked and not the NYTimes.
Edit: Apparently Rafi has written/been noted in similar articles for Mother Jones and, yes, the NYTimes. I think he's just going to anyone who will listen.

America Inc. fucked around with this message at 09:22 on Dec 22, 2013

Muffiner
Sep 16, 2009

Negative Entropy posted:

Here's an article from the former head of security at Ben Gurion airport in which he tears apart the TSA. It's actually a reflection of the US national security apparatus as a whole (poor inter-department communication, lobbying based on greed and not expertise, dragnetting):
http://www.cracked.com/blog/7-reasons-tsa-sucks-a-security-experts-perspective/
How does one comment on the former head of security at Ben Gurion Airport rebutting the TSA in a Cracked article?

Vulture Culture
Jul 14, 2003

I was never enjoying it. I only eat it for the nutrients.

Thanqol posted:

I'd actually be a lot more okay with this NSA poo poo if hundreds of CEOs got prosecuted in this way.
This post isn't creepy at all.

computer parts
Nov 18, 2010

PLEASE CLAP

Misogynist posted:

This post isn't creepy at all.

Hey, their means are all right, it's just the ends that need working on. :rolleyes:

ShadowHawk
Jun 25, 2000

CERTIFIED PRE OWNED TESLA OWNER

Mister Fister posted:

I can't even comprehend selling out your customers and risking your entire business for a paltry 10 million dollars, there has to be more to that story about the RSA :psyduck:
As I understood one of the articles they didn't appeal to RSA general management but one specific (struggling) division who wanted to boost their sales ranking within the company. It's plausible the rest of the company didn't know it was bogus encryption.

Farmer Crack-Ass
Jan 2, 2001

this is me posting irl

GrizzlyCow posted:

There is the Trusted Platform Module. I'm not a computer guy, but there seems to be concerns about the TPM being able to control what you install on your computer and other stuff. We already know that the NSA spread malware to computers, so maybe they are taking advantage of this technology too? Microsoft is demanding all Windows computers sold in 2015 and onwards use TPM 2.0, and Microsoft is a known collaborator with the NSA.

TPM isn't really aimed at home consumers, it's intended for corporate or government environments. Plus, there are a lot of PC motherboards that offer TPM support, but the actual TPM module is sold separately.

Is TPM going to let General Alexander push a button on the bridge of the NSA Enslaver and break all of your non-approved programs? No. Is TPM going to give your IT department headaches when some poorly-written program or cheaply-made component causes TPM to flip out and refuse to allow something to work? Probably not, unless you actually work in an office or company where computer security is very important and actually treated accordingly; otherwise even the big-brand OEM boxes you work with probably don't even have TPM modules.

Saoshyant
Oct 26, 2010

:hmmorks: :orks:


What about Intel AMT and similar standards? They exist on any consumer-grade laptop or desktop system and allow full control of a machine remotely.

Chunjee
Oct 27, 2004

So the "Report and Recommendations of The President's Review Group on Intelligence and Communications Technologies" (link Dec 12th) appeared and there is a lot of incredibly interesting stuff in here.

All the online media seems to only read the first half of Recommendation 5 and report that they recommend the end of "meta-data" storage when that is absolutely not the case.

Recommendation 5 on page 25 posted:

We recommend that legislation should be enacted that terminates the storage of bulk telephony meta-data by the government under section 215, and transition as soon as reasonably possible to a system in which such meta-data is held instead by private providers or by a third party. Access to such data should be permitted only with a section 215 order from the Foreign Intelligence Surveillance Court...
So I'm guessing adobe or some other guys are going to be shooting for that storage contract.


The other thing that I thought was super weird was on page 37 where they say under certain circumstances the US policy should authorize the use of zero day exploits for intelligence collection. So full steam ahead with offensive hacking I guess?

FightingMongoose
Oct 19, 2006

Chunjee posted:


So I'm guessing adobe or some other guys are going to be shooting for that storage contract.


Or does it mean that the telcos can retain the data and the government would need a warrant to access it?

Chunjee
Oct 27, 2004

Ok so the CIA uses Amazon for their infrastructure, it should be safe to assume they would not both get service from the same provider; if they even act on this recommendation anytime in the future.

Tezzor
Jul 29, 2013
Probation
Can't post for 3 years!
The recommendations from the board were actually pretty broad, although it's becoming increasingly clear that the ones that are most likely to be actually acted upon are the most irrelevant. Holding the databases at a private third party? What a great way to funnel more natsec dollars into the private sector while accomplishing literally nothing whatsoever!

FightingMongoose
Oct 19, 2006

Chunjee posted:

Ok so the CIA uses Amazon for their infrastructure, it should be safe to assume they would not both get service from the same provider; if they even act on this recommendation anytime in the future.

Huh?

ShadowHawk
Jun 25, 2000

CERTIFIED PRE OWNED TESLA OWNER
The Washington post has a new article from a good interview with Edward Snowden reflecting on the past 6 months.

Paul MaudDib
May 3, 2006

TEAM NVIDIA:
FORUM POLICE
A while back we had a thread on Google Glass. One of the things that the skeptics dismissed as utterly ridiculous was real-time facial recognition for augmented reality. And sure enough within six months of that thread:

quote:

Since the first demonstration of the plausible future abilities of Google Glass, instant facial recognition has been one of the most exciting ideas in the pipeline. According the the development group Facial Network, the time for real-time facial recognition through Google Glass is coming a lot sooner than we originally expected. This isn't an app developed by Google, it's a 3rd party developer group - they've gone and done it first!

What you'll be seeing here is a very simple demonstration of the Glassware called NameTag. This Glass App is not yet available to the public, but is ready for up-close viewing with Glass - as this demo video shows. This app works with a vast collection of pre-programmed faces and allows you to recognized based on its cloud-based archive.


With NameTag, Glass users will be drawing from an archive that delves into the library of faces from dating networks, the National Sex Offendery Registry, and a set of criminal databases (public, the lot of them, of course). You'll also see this app recognizing celebrities galore.

NOTE: This app is different from the MedRef solution we saw earlier this year.

"I believe that this will make online dating and offline social interactions much safer and give us a far better understanding of the people around us. It’s much easier to meet interesting new people when we can simply look at someone, see their Facebook, review their LinkedIn page or maybe even see their dating site profile.

Often we were interacting with people blindly or not interacting at all. NameTag on Google Glass can change all that." - NameTag creator Kevin Alan Tussy
http://www.slashgear.com/google-glass-real-time-facial-recognition-arrives-with-nametag-19309472/

Coming soon to a portable computing device near you. Obviously there's massive privacy concerns from this, but it's a pretty obvious and inevitable application of the technology. Just the stream of metadata from this would be enormously intrusive. It would be a huge honeypot for government surveillance among other things.

Paul MaudDib fucked around with this message at 17:43 on Dec 24, 2013

madey
Sep 17, 2007

I saved the Olympics singlehandedly
Edward Snowden is giving this years alternative christmas message http://www.theguardian.com/world/2013/dec/24/edward-snowden-channel-4-christmas-day-message?CMP=twt_fd .
Im not sure how well this is known outside the UK but there is a tradition here where the Queen does an annual speech on christmas day, broadcast around the time most families are sitting down for their christmas dinner. In 1993 channel four started broadcasting an alternative christmas message at the same time, usually something quite provocative and attention grabbing and is still surprisingly quite controversial to this day (last year or the year before was Mahmoud Ahmadinejad).

Anyway it appears to be the first video interview of Snowden since he got to Russia so it should be quite interesting. The previous years are all on youtube I think and are worth checking out. Theyve had a soldier who lost a limb in Afghanistan, Marge simpson and a model who's career was ruined when she got attacked with acid in the last few years as well.

ANIME AKBAR
Jan 25, 2007

afu~
I wonder which networks will broadcast it in the United States? :allears:

FlamingLiberal
Jan 18, 2009

Would you like to play a game?



ANIME AKBAR posted:

I wonder which networks will broadcast it in the United States? :allears:
I'm sure they're lining up as we speak (rebroadcasts that 60 Minutes piece on the NSA written by the NSA)

eSports Chaebol
Feb 22, 2005

Yeah, actually, gamers in the house forever,

Mister Fister posted:

I can't even comprehend selling out your customers and risking your entire business for a paltry 10 million dollars, there has to be more to that story about the RSA :psyduck:

It might not have been an actual quid pro quo for a backdoor: the NSA could have just given them the money to use it without telling them why, or they could have lied and said it was more secure than everyone realized--after all, when they tinkered with DES it raised everybody's eyebrows, but it turns out they really did make it stronger instead of weaker. Of course that doesn't mean what RSA did was legitimate (and the algorithm was considered suspect even before it was confirmed to be backdoored).

Paul MaudDib
May 3, 2006

TEAM NVIDIA:
FORUM POLICE

eSports Chaebol posted:

It might not have been an actual quid pro quo for a backdoor: the NSA could have just given them the money to use it without telling them why, or they could have lied and said it was more secure than everyone realized--after all, when they tinkered with DES it raised everybody's eyebrows, but it turns out they really did make it stronger instead of weaker. Of course that doesn't mean what RSA did was legitimate (and the algorithm was considered suspect even before it was confirmed to be backdoored).

Maybe that justifies the inclusion of DUAL_EC_DRBG in the software, but it certainly doesn't explain why it was the default. You have to view this in the context of "everyone in 2007 knew that DUAL_EC_DRBG was broken as poo poo, and setting it as default was a gigantic puzzler even at the time". Here's RSA's CTO making poo poo excuses for why they did it:

quote:

In today's news of the weird, RSA (a division of EMC) has recommended that developers desist from using the (allegedly) 'backdoored' Dual_EC_DRBG random number generator -- which happens to be the default in RSA's BSafe cryptographic toolkit. Youch.

In case you're missing the story here, Dual_EC_DRBG (which I wrote about yesterday) is the random number generator voted most likely to be backdoored by the NSA. The story here is that -- despite many valid concerns about this generator -- RSA went ahead and made it the default generator used for all cryptography in its flagship cryptography library. The implications for RSA and RSA-based products are staggering. In the worst case a modestly bad but by no means worst case, the NSA may be able to intercept SSL/TLS connections made by products implemented with BSafe.

So why would RSA pick Dual_EC as the default? You got me. Not only is Dual_EC hilariously slow -- which has real performance implications -- it was shown to be a just plain bad random number generator all the way back in 2006. By 2007, when Shumow and Ferguson raised the possibility of a backdoor in the specification, no sensible cryptographer would go near the thing.

...
We can only speculate about the past. But here in the present we get to watch RSA's CTO Sam Curry publicly defend RSA's choices. I sort of feel bad for the guy. But let's make fun of him anyway.

I'll take his statement line by line (Sam is the boldface):

"Plenty of other crypto functions (PBKDF2, bcrypt, scrypt) will iterate a hash 1000 times specifically to make it slower."

Password hash functions are built deliberately slow to frustrate dictionary attacks. Making a random number generator slow is just dumb.

At the time, elliptic curves were in vogue

Say what?

and hash-based RNG was under scrutiny.

Nonsense. A single obsolete hash based generator (FIPS 186) was under scrutiny -- and fixed. The NIST SP800-90 draft in which Dual_EC appeared ALSO provided three perfectly nice non-backdoored generators: two based on hash functions and one based on AES. BSafe even implements some of them. Sam, this statement is just plain misleading.

The hope was that elliptic curve techniques—based as they are on number theory—would not suffer many of the same weaknesses as other techniques (like the FIPS 186 SHA-1 generator) that were seen as negative

Dual-EC suffers exactly the same sort of weaknesses as FIPS 186. Unlike the alternative generators in NIST SP800-90 it has a significant bias and really should not be used in production systems. RSA certainly had access to this information after the analyses were published in 2006.

and Dual_EC_DRBG was an accepted and publicly scrutinized standard.

And every bit of public scrutiny said the same thing: this thing is broken! Grab your children and run away!

SP800-90 (which defines Dual EC DRBG) requires new features like continuous testing of the output, mandatory re-seeding,

The exact same can be said for the hash-based and AES-based alternative generators you DIDN'T choose from SP800-90.

optional prediction resistance and the ability to configure for different strengths.

So did you take advantage of any of these options as part of the BSafe defaults? Why not? How about the very simple mitigations that NIST added to SP800-90A as a means to remove concerns that the generator might have a backdoor? Anyone?

There's not too much else to say here. I guess the best way to put it is: this is all part of the process. First you find the disease. Then you see if you can cure it.
http://blog.cryptographyengineering...20130928_direct

If the NSA told them it was stronger, it would have been super easy to just say that. With that statement, he pretty much just blew his one chance to give us a good reason.

You can even go back to 2007 and read Schneier's blog where he's wondering why in the world RSA would set that as the default when it's broken as poo poo, slow, and has a detectible skew in its outputted random numbers:

quote:

Random numbers are critical for cryptography: for encryption keys, random authentication challenges, initialization vectors, nonces, key-agreement schemes, generating prime numbers and so on. Break the random-number generator, and most of the time you break the entire security system. Which is why you should worry about a new random-number standard that includes an algorithm that is slow, badly designed and just might contain a backdoor for the National Security Agency.

Generating random numbers isn't easy, and researchers have discovered lots of problems and attacks over the years. A recent paper found a flaw in the Windows 2000 random-number generator. Another paper found flaws in the Linux random-number generator. Back in 1996, an early version of SSL was broken because of flaws in its random-number generator. With John Kelsey and Niels Ferguson in 1999, I co-authored Yarrow, a random-number generator based on our own cryptanalysis work. I improved this design four years later -- and renamed it Fortuna -- in the book Practical Cryptography, which I co-authored with Ferguson.

The U.S. government released a new official standard for random-number generators this year, and it will likely be followed by software and hardware developers around the world. Called NIST Special Publication 800-90 (.pdf), the 130-page document contains four different approved techniques, called DRBGs, or "Deterministic Random Bit Generators." All four are based on existing cryptographic primitives. One is based on hash functions, one on HMAC, one on block ciphers and one on elliptic curves. It's smart cryptographic design to use only a few well-trusted cryptographic primitives, so building a random-number generator out of existing parts is a good thing.

But one of those generators -- the one based on elliptic curves -- is not like the others. Called Dual_EC_DRBG, not only is it a mouthful to say, it's also three orders of magnitude slower than its peers. It's in the standard only because it's been championed by the NSA, which first proposed it years ago in a related standardization project at the American National Standards Institute.

The NSA has always been intimately involved in U.S. cryptography standards -- it is, after all, expert in making and breaking secret codes. So the agency's participation in the NIST (the U.S. Commerce Department's National Institute of Standards and Technology) standard is not sinister in itself. It's only when you look under the hood at the NSA's contribution that questions arise.

Problems with Dual_EC_DRBG were first described in early 2006. The math is complicated, but the general point is that the random numbers it produces have a small bias. The problem isn't large enough to make the algorithm unusable -- and Appendix E of the NIST standard describes an optional work-around to avoid the issue -- but it's cause for concern. Cryptographers are a conservative bunch: We don't like to use algorithms that have even a whiff of a problem.

But today there's an even bigger stink brewing around Dual_EC_DRBG. In an informal presentation (.pdf) at the CRYPTO 2007 conference in August, Dan Shumow and Niels Ferguson showed that the algorithm contains a weakness that can only be described as a backdoor.


This is how it works: There are a bunch of constants -- fixed numbers -- in the standard used to define the algorithm's elliptic curve. These constants are listed in Appendix A of the NIST publication, but nowhere is it explained where they came from.

What Shumow and Ferguson showed is that these numbers have a relationship with a second, secret set of numbers that can act as a kind of skeleton key. If you know the secret numbers, you can predict the output of the random-number generator after collecting just 32 bytes of its output. To put that in real terms, you only need to monitor one TLS internet encryption connection in order to crack the security of that protocol. If you know the secret numbers, you can completely break any instantiation of Dual_EC_DRBG.

The researchers don't know what the secret numbers are. But because of the way the algorithm works, the person who produced the constants might know; he had the mathematical opportunity to produce the constants and the secret numbers in tandem.

Of course, we have no way of knowing whether the NSA knows the secret numbers that break Dual_EC-DRBG. We have no way of knowing whether an NSA employee working on his own came up with the constants -- and has the secret numbers. We don't know if someone from NIST, or someone in the ANSI working group, has them. Maybe nobody does.

We don't know where the constants came from in the first place. We only know that whoever came up with them could have the key to this backdoor. And we know there's no way for NIST -- or anyone else -- to prove otherwise.

This is scary stuff indeed.

Even if no one knows the secret numbers, the fact that the backdoor is present makes Dual_EC_DRBG very fragile. If someone were to solve just one instance of the algorithm's elliptic-curve problem, he would effectively have the keys to the kingdom. He could then use it for whatever nefarious purpose he wanted. Or he could publish his result, and render every implementation of the random-number generator completely insecure.

It's possible to implement Dual_EC_DRBG in such a way as to protect it against this backdoor, by generating new constants with another secure random-number generator and then publishing the seed. This method is even in the NIST document, in Appendix A. But the procedure is optional, and my guess is that most implementations of the Dual_EC_DRBG won't bother.

If this story leaves you confused, join the club. I don't understand why the NSA was so insistent about including Dual_EC_DRBG in the standard. It makes no sense as a trap door: It's public, and rather obvious. It makes no sense from an engineering perspective: It's too slow for anyone to willingly use it. And it makes no sense from a backwards-compatibility perspective: Swapping one random-number generator for another is easy.

My recommendation, if you're in need of a random-number generator, is not to use Dual_EC_DRBG under any circumstances. If you have to use something in SP 800-90, use CTR_DRBG or Hash_DRBG.

In the meantime, both NIST and the NSA have some explaining to do.
https://www.schneier.com/blog/archives/2007/11/the_strange_sto.html

This wasn't a situation of "eh, pretty much a tie, let's go with DUAL_EC_DRBG", it was known to be "do not use under any circumstances" level bad by any crypto professional. In hindsight it makes total sense why they did it: cash monies.

e: I was a little off in my timing, the deal took place before some of the concerns about the PRNG were published. However, once the concerns were published in 2006 and 2007 RSA still retained it as their default, which is a loving stupid move. It's possible the NSA was twisting their arm not to disclose or alter the deal, since it would have disclosed that for some reason the NSA was particularly interested in making sure people used this particular generator. An analysis of the timeline is here.

Paul MaudDib fucked around with this message at 07:41 on Dec 25, 2013

Cabbages and Kings
Aug 25, 2004


Shall we be trotting home again?

Paul MaudDib posted:

Coming soon to a portable computing device near you. Obviously there's massive privacy concerns from this, but it's a pretty obvious and inevitable application of the technology. Just the stream of metadata from this would be enormously intrusive. It would be a huge honeypot for government surveillance among other things.

if a google glass app can do this now, governments have already been doing it for 2 years plus.

B B
Dec 1, 2005

Another ruling on NSA collection, but this one takes the other side:

CNN posted:

(CNN) -- The National Security Agency notched a much-needed win in court, after a series of setbacks over the legality and even the usefulness of its massive data collection program.

A federal judge in New York ruled Friday that the National Security Agency's bulk collection of data on nearly every phone call made in the United States is legal.

The ruling contrasts with another ruling last week by a federal judge in Washington, who called the same program "almost Orwellian" and likely unconstitutional.

In his ruling Friday, U.S. District Judge William Pauley said that while the NSA's program under Section 215 of the Patriot Act has become the center of controversy since it was revealed by leaks by former NSA contractor Edward Snowden, it is legal.

"But the question of whether that program should be conducted is for the other two coordinate branches of government to decide."

http://www.cnn.com/2013/12/27/justice/nsa-ruling/index.html

Guessing this is going to end up with SCOTUS at some point in the near term?

Aurubin
Mar 17, 2011

B B posted:

Another ruling on NSA collection, but this one takes the other side:


Guessing this is going to end up with SCOTUS at some point in the near term?

He mentions 9/11 a bunch in his ruling. Sad that all you have to do is invoke that and people still jump.

EDIT:

Hell go back to 1920 and scream anarchists you get the same response. Then fascist, then commie, then terrorist. Worrying that the labels are getting even more generic, even when communist was distorted beyond recognition during the Cold War.

Aurubin fucked around with this message at 18:57 on Dec 27, 2013

FlamingLiberal
Jan 18, 2009

Would you like to play a game?



B B posted:

Another ruling on NSA collection, but this one takes the other side:


Guessing this is going to end up with SCOTUS at some point in the near term?
I believe there are now conflicting federal rulings, so yeah probably. Which is bad if it's under current SCOTUS

etalian
Mar 20, 2006

Aurubin posted:

He mentions 9/11 a bunch in his ruling. Sad that all you have to do is invoke that and people still jump.

EDIT:

Hell go back to 1920 and scream anarchists you get the same response. Then fascist, then commie, then terrorist. Worrying that the labels are getting even more generic, even when communist was distorted beyond recognition during the Cold War.

Even better his ruling cites the threat by Al Qaeda even though the whole concept was mainly a US invention.

Combed Thunderclap
Jan 4, 2011



Andrea Peterson, the Washington Post's tech policy reporter, highlights a truly bizarre part of Judge Pauley's ruling:


ACLU v. Clapper posted:

Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden. Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to preclude suits by targets even if they discovered section 215 orders implicating them. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets—including the means and methods of intelligence gathering—could frustrate Congress’s intent. To hold otherwise would spawn mischief: recipients of orders would be subject to section 215’s secrecy protocol confining challenges to the FISC, while targets could sue in any federal district court. A target’s awareness of section 215 orders does not alter the Congressional calculus. The ACLU’s statutory claim must therefore be dismissed.

Washington Post posted:

Pauley is essentially saying that the targets of the order have no recourse to challenge the collection of their personal data because Congress never intended for targets to ever know that they were subject to this sort of spying. And that the fact that everyone knows about it now, thanks to Edward Snowden, doesn't change the targets' ability to challenge the legality of the order.

That suggests a troubling possibility: that even if there were clear-cut evidence that the government was sending out illegal 215 orders, the people harmed by the government's illegal conduct might not have any way to stop it. Instead, the only recourse may be for the recipient of an order (such as Verizon) to challenge it in the notoriously secretive Foreign Intelligence Surveillance Court. But Verizon isn't the one whose privacy is harmed by the order, so why would it expend legal resources to fight it?

While that outcome might seem a little crazy, it's not necessarily wrong as a matter of law. The Supreme Court has ruled in some cases, including Gonzaga v. Doe, that there can be cases where, even though the government's actions may be illegal, the individuals harmed can't sue to stop them. That still leaves room for challenging the statute on constitutional grounds. But in this case, Pauley dismissed the ACLU's constitutional arguments as well.

I'm no legal expert, so anyone's free to correct me, but this logic seems incredibly disturbing from a layperson's perspective. All Congress need do, apparently, is imply an intent for part of a law to be secret and/or impossible to legally challenge, and it becomes impossible to adjudicate that section. And all the government need do is have a non-governmental entity collect data in order to collect the data itself without any threat of legal challenges. On top of all this, there were members of Congress who attempted to protest the interpretation of Section 215 but couldn't fully do so for fear of legal repercussions, thereby ensuring that Congress's "intent" is unilaterally interpreted.

This, of course, is merely one paragraph of an unbelievably awful ruling that makes me more and more furious the more and more of it I read. I know some of you have already mentioned what's in it, but for the sake of highlighting just how awful it is, I'm going to type out the final three paragraphs of the ruling below, with my own highlights added:

ACLU v. Clapper posted:

There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks. While there have been unintentional violations of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool. And once detected, those violations were self-reported and stopped. The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court.

No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific. Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the Government's counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda's terror network.

"Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law." Boumediene, 553 U.S. at 798. The success of one helps protect the other. Like the 9/11 Commission observed: The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil. The 9/11 Commission Report, at 395. A court's solemn duty is "to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend [the] existence of our society, and to reject as false, claims in the name of security which could undermine our freedoms and open the way to oppression. American Comm'cns rear end'n, C.I.O. v. Douds, 339 U.S. 382, 445 (1950) (Jackson, J., concurring in part and dissenting in part.)

For all these reasons, the NSA's bulk telephony metadata collection program is lawful.

Reinterpreted by some sarcastic judgment of my own:
  • There has never, ever been any kind of abuse or problem with metadata collection, and there never ever will be. And when there was, it was an accident, and it was stopped really quick.
  • Surveillance is constitutional as long as it is subject to checks and balances, like secret rulings by secret courts.
  • We need technology to outwit al-Qaeda, an international terrorist organization that operates in many countries. Therefore, we must collect information about every single phone call made in America at all times.
  • In order to protect civil liberties, we must prevent terrorist attacks, which would endanger civil liberties. Therefore, we must reject the attempt to declare the metadata collection program illegal, since it definitely doesn't contain any possibility for abuse (see above) and would prevent terrorist attacks (see above). This ruling therefore protects civil liberties.

This is, of course, only the tip of the 54-page iceberg.

If I'm reading the ruling even the slightest bit right, I'm genuinely disgusted. While the media seems to be already coming to the conclusion that the ruling is just an indication that the Supreme Court will decide it all, this kind of twisted legal logic could just as easily show up there as well. Pieces like Andrea Peterson's need to be hammering every paragraph of this ruling as much as possible, or that logic will only be tacitly legitimated.

Forums Terrorist
Dec 8, 2011

I hope you're all ready for a good loving courtesy of Scalia :kheldragar:

Geoff Peterson
Jan 1, 2012

by exmarx

Combed Thunderclap posted:

I'm no legal expert, so anyone's free to correct me, but this logic seems incredibly disturbing from a layperson's perspective. All Congress need do, apparently, is imply an intent for part of a law to be secret and/or impossible to legally challenge, and it becomes impossible to adjudicate that section. And all the government need do is have a non-governmental entity collect data in order to collect the data itself without any threat of legal challenges. On top of all this, there were members of Congress who attempted to protest the interpretation of Section 215 but couldn't fully do so for fear of legal repercussions, thereby ensuring that Congress's "intent" is unilaterally interpreted.

I've got a bigger post upcoming on the differences between Leon's ruling and Pauley's ruling as well as some broader thoughts, but to address these swiftly-not much more than an interested layperson myself:

Congress was pretty clear with their intent that this collection and these searches be held secret from the target (hardly novel-it's common in nearly any surveillance situation-the target knowing that they are being surveilled would likely change behavior as well as jeopardize other elements), and the excerpt Peterson describes is both rather straightforward and pretty easily misunderstood (often, from browsing the web, in a manner that casts negative light on Pauley and his decision): It would be ridiculous to suggest that Snowden obtaining and releasing documents in the manner that he did in some way changes or invalidates what Congress intended when reauthorizing the program.

With regards to government needing a nongovernmental entity to collect data in order to get it themselves, that is correct. The principle involved is not, in itself, controversial. EDITED TO CLARIFY: The third party rule states that information loses its 4th amendment protection-the party involved loses the expectation of privacy-when it is willingly transmitted to a third party For example: Person A has no expectation in privacy regarding information he transmits to Person B when he knowingly and willingly involves Person C in that conversation. The application of the third party doctrine to the NSA's program (and for some, to the modern age in general) is tremendously controversial and frankly, the best shot at getting the program ruled unconstitutional. Regarding the Congressmen, they have a very powerful toolbox at their disposal when it comes to modifying, protesting or changing the interpretation of statutes. Writing briefs to the court is only in rare occasions one of those tools. If they feel that they are being coerced into silence, they have an even more powerful set of tools in order to investigate and punish those involved.

As far a public citizen being allowed to challenge the collection and query of their data, it returns to the third party doctrine. Verizon (person C) has been keeping logs of calls for decades. As Person A willingly allowed Verizon to track this metadata as a part of their Terms of Use and Contract, they lack standing under the laws Pauley discusses to challenge the government subpoenaing Verizon's company records... because while they relate to the citizen, they are owned by Verizon. They would almost certainly have standing (after the fact) for challenging the next steps (linking the phone number to their identity, using that information to blackmail, harass, charge or coerce the individual), as the requirements for cause to move that process down the chain increase with each step.

quote:

Reinterpreted by some sarcastic judgment of my own:
  • There has never, ever been any kind of abuse or problem with metadata collection, and there never ever will be. And when there was, it was an accident, and it was stopped really quick.
  • Surveillance is constitutional as long as it is subject to checks and balances, like secret rulings by secret courts.
  • We need technology to outwit al-Qaeda, an international terrorist organization that operates in many countries. Therefore, we must collect information about every single phone call made in America at all times.
  • In order to protect civil liberties, we must prevent terrorist attacks, which would endanger civil liberties. Therefore, we must reject the attempt to declare the metadata collection program illegal, since it definitely doesn't contain any possibility for abuse (see above) and would prevent terrorist attacks (see above). This ruling therefore protects civil liberties.

In order-
1: The court is not generally in the business of litigating based on hypothetical, unrealized future harm (see: Most of the dismissals regarding the PPACA). The cases of misuse and abuse mentioned by Pauley do not, in his mind, rise to the level of justifying the ACLU's claim of having a chilling effect on potential clients and whistleblowers. In what I've seen as the most oft-cited cases of abuse (NSA agents stalking former/current romantic partners), I do not believe (nor does Pauley) the misuse would cause a reasonable person to believe that his/her call records will be used by the federal government in order to prevent whistleblowing or to identify and retaliate afterwards. As such, the ACLU lacks standing to challenge the program as they have not been harmed by it. The logic for getting through that path is far from twisted, even if you disagree with any of the specific assertions.
2: Yes. That's accurate. Congress has determined that the secret courts and sealed/classified rulings are necessary to protect National Security. Constitutionally, the creation of such courts tend to be considered one of the powers of the legislative branch. The relevant check involved is action by the electorate. Unless I've missed something substantial, the courts, their proceedings and their rulings are secret/sealed/classified/what have you... the legislation creating them and describing their general duties is public. That there is something inherently unconstitutional about a sealed/secret court or their rulings would be a fairly fringe interpretation.
3: Again, you're actually pretty accurate in your interpretation, though I get the feeling we diverge on what you take from that. The act of creating the database and the means of collection covered by this case are both legal and constitutional under present law (I'd suggest following up on the relevant footnotes from Pauley-summaries of essentially all of his cited cases are available, if occasionally arcane)-it'd take a novel interpretation to change that. The (relatively) open question is what the NSA is legally and/or constitutionally allowed to do with this data, and that is where the seeds, queries, hops and additional identifying information come in. That is a separate matter from what you listed.
4: The court rarely issues rulings based on the potential for harm. It is why the US court system has the concept of Standing, and why it refuses to issue advisory rulings. Citing terror attacks and civil liberties is likely meant to serve as "harm prevented" (or Harm attempting to prevent) contrasted against "harm caused". Best as I can gather from Pauley, the prevented harm has been realized in the past and does not allow for remedies for those impacted. Relevant harm has not been caused by the program, and in a future situation where such harm may occur, the citizen has various remedies to be made whole.


Hopefully that helps broaden your understanding of the logic and reasoning behind the segments you are disgusted by. There is certainly room to disagree on many of those factors, but I find them less onerous and more understandable with broader context on the applicability (harm done to ACLU, Klayman, et al) and the legal system generally.

Geoff Peterson fucked around with this message at 09:00 on Dec 28, 2013

Tezzor
Jul 29, 2013
Probation
Can't post for 3 years!

quote:

There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks.

This is an absolute demonstrable lie unless you restrict it to solely America-to-America calls and/or you believe that there were terrorists in the Merkle government, the Belgian hospital system, Petrobras, the Spanish banking system, etc, etc, etc.

Broken Machine
Oct 22, 2010

Glenn Greenwald delivered the keynote at CCC yesterday, and it's online now:

https://www.youtube.com/watch?v=17e-eqTiI2E

Really well put; during the Q&A after his speech he was asked what the goal of this all was for the NSA, to which he responded plainly, they want power. He mentioned the NSA spying on airlines that provide internet access in-flight. He also said "there are a LOT more stories to come and a LOT more documents we'll publish."

e:


What are you hoping to accomplish with this post?

Broken Machine fucked around with this message at 22:15 on Dec 28, 2013

Elotana
Dec 12, 2003

and i'm putting it all on the goddamn expense account

Forums Terrorist posted:

I hope you're all ready for a good loving courtesy of Scalia :kheldragar:
Kyllo and Hamdi give me a tiny, tiny glimmer of hope when it comes to Scalia's opinion.

Thomas will, of course, sleep through the arguments and then write a short "s'all good man" concurrence.

Job Truniht
Nov 7, 2012

MY POSTS ARE REAL RETARDED, SIR

Combed Thunderclap posted:

  • In order to protect civil liberties, we must prevent terrorist attacks, which would endanger civil liberties. Therefore, we must reject the attempt to declare the metadata collection program illegal, since it definitely doesn't contain any possibility for abuse (see above) and would prevent terrorist attacks (see above). This ruling therefore protects civil liberties.

I wonder how terrorist attacks endanger civil liberties.

Geoff Peterson
Jan 1, 2012

by exmarx

Broken Machine posted:

What are you hoping to accomplish with this post?

Thunderclap seemed to be misreading elements of Pauley-especially with regards to the distinction being made between legality questions and constitutionality questions, and possibly had a misunderstanding of the role of the judiciary insofar as advisory opinions go ("This isn't being abused yet [with regards to the specific claims made by ACLU], but it could be"). To the extent that those matters could be cleared up, I was attempting to provide further insight.

Do you have any issues with the legal analysis contained within?

Broken Machine
Oct 22, 2010

Geoff Peterson posted:

...

Do you have any issues with the legal analysis contained within?

No, other than that it seems pointless. I mean, the court decisions are generally going to reflect the desires of power, and they're going to justify whatever they want to using whatever specious logic they'd like. Mostly I was just wondering what you would say.

Geoff Peterson
Jan 1, 2012

by exmarx

Broken Machine posted:

No, other than that it seems pointless. I mean, the court decisions are generally going to reflect the desires of power, and they're going to justify whatever they want to using whatever specious logic they'd like. Mostly I was just wondering what you would say.

The inclusion of "generally" above allows one to handwave away this millennium's Kyloo Kyllo :eng99: (evidence obtained via warrantless thermal imaging is inadmissable), Jones (Placement and monitoring of a GPS device on a vehicle constitutes a search) and Florida v Jardines (a drug dog sniffing the front door of a home is a search requiring warrant)-among others, limiting the options of the those with "power".

"Desires of power" is incredibly vague as well. I find it difficult to believe that the "desires of power" were reflected in both Shelby County (VRA) and NFIB (PPACA) for instance-unless "power" refers the white conservative power structure in the former and the Administration in the latter (but explicitly not in the former). And that says nothing of Fisher v UT-A (Affirmative Action) where I imagine the country would be split nearly in half regarding what the "desires of power" (the reverse discrimination goal of the liberal elite or the expectation of special treatment by the photogenic white girl) were in the case-each side regarding themselves as the oppressed underdog.

The sentiment-which I've seen here and elsewhere and do not mean to single you out for-appears to be the privacy advocate's equivalent of the conservative's "judicial activism" rallying cry- with all the attendant vacuousness.

Unless, I suppose, "Desires of Power" is intended to mean the accepted interpretations of legitimately passed legislation by a duly elected Congress, viewed through the prism of controlling precedent regarding constitutional matters. If that was your intent, then... yes?

Geoff Peterson fucked around with this message at 04:43 on Dec 29, 2013

Aurubin
Mar 17, 2011

Geoff Peterson posted:

The inclusion of "generally" above allows one to handwave away this millennium's Kyloo (evidence obtained via warrantless thermal imaging is inadmissable), Jones (Placement and monitoring of a GPS device on a vehicle constitutes a search) and Florida v Jardines (a drug dog sniffing the front door of a home is a search requiring warrant)-among others, limiting the options of the those with "power".

"Desires of power" is incredibly vague as well. I find it difficult to believe that the "desires of power" were reflected in both Shelby County (VRA) and NFIB (PPACA) for instance-unless "power" refers the white conservative power structure in the former and the Administration in the latter (but explicitly not in the former). And that says nothing of Fisher v UT-A (Affirmative Action) where I imagine the country would be split nearly in half regarding what the "desires of power" (the reverse discrimination goal of the liberal elite or the expectation of special treatment by the photogenic white girl) were in the case-each side regarding themselves as the oppressed underdog.

The sentiment-which I've seen here and elsewhere and do not mean to single you out for-appears to be the privacy advocate's equivalent of the conservative's "judicial activism" rallying cry- with all the attendant vacuousness.

Unless, I suppose, "Desires of Power" is intended to mean the accepted interpretations of legitimately passed legislation by a duly elected Congress, viewed through the prism of controlling precedent regarding constitutional matters. If that was your intent, then... yes?

I agree with the vagueness of the ACLU's argument. It was the same problem with Amnesty v. Clapper. But the court tried to hedge the fence by saying that DoJ had to inform defendants of warrantless wiretapping. They got around that through parallel construction, as the Reuters DEA article showed. The real problem, as it always has been, is reconciling Smith v. Maryland and Section 215. Virtually all communication is now handled through a third party. That renders the Fourth Amendment virtually useless in the digital age, but the only way to gain standing according to the Roberts court is if the government tells you you have standing. I imagined they chose to inform Mohamed Mohamud as his case doesn't exactly speak to government overreach. The problem is one of vague sentiment, I agree, but it's a sentiment I share.

At the same time, ubiquitous, continuing surveillance is generally seen as abhorrent in retrospective, if not in the present. It's why groups like the Stasi are reviled. To wit, France's legislature recently passed a resolution to allow real time internet monitoring without judicial review. The disconnect between cases like Jones and Smith is that communication, while protected on paper in the US, is harder to translate into concrete support like physical monitoring is. It's a lot harder to dissent when your every word is being potentially monitored. It's also hard to convince people of the necessity for dissent.

I really just don't understand how Smith and the FISC's interpretation of 215 stands up in the digital era without eradicating the Fourth Amendment as it applies to "papers and effects". But I'm a kook, as has been established. I'm also a biologist, not a lawyer, so there's that too.

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Broken Machine
Oct 22, 2010

Geoff Peterson posted:

"Desires of power" is incredibly vague as well. I find it difficult to believe that the "desires of power" were reflected in both Shelby County (VRA) and NFIB (PPACA) for instance-unless "power" refers the white conservative power structure in the former and the Administration in the latter (but explicitly not in the former). And that says nothing of Fisher v UT-A (Affirmative Action) where I imagine the country would be split nearly in half regarding what the "desires of power" (the reverse discrimination goal of the liberal elite or the expectation of special treatment by the photogenic white girl) were in the case-each side regarding themselves as the oppressed underdog.

Unless, I suppose, "Desires of Power" is intended to mean the accepted interpretations of legitimately passed legislation by a duly elected Congress, viewed through the prism of controlling precedent regarding constitutional matters. If that was your intent, then... yes?


By desires of power, I meant the group of people or organizations that broker influence on our, and other, governance systems. The elites who peddle influence and make decisions that affect your life; upper management in business and government deciding what directions to move society, people working for intelligence agencies to develop these control systems and spread disinformation - in other words, assholes.

With respect to the surveillance state, and other contentious issues, you see serious divides in different factions of those power brokers; for example how close the Amash amendment came to passing, or the Citizens United decision which in Obama's words "reversed a century of law". Not all assholes are pleased with the way things are, but more support it than not. And so yes, I believe that the desires of power were met in both of your cases. You're right that many issues are split fairly evenly.

In a lot of cases, it'd be great if Congress actually passed the laws that assholes wanted, rather than let assholes backdoor it through the judiciary. What I was driving at though is that it seems daft to me to try to understand the legal reasoning that assholes use to justify the decisions assholes make. It's window dressing. If we passed a law or court decisions that required all citizens to be implanted with rfid chips, and the court later justified it with the commerce clause, who cares?

Since you mentioned privacy advocates, how do you feel about the surveillance?

I liked one of the points Greenwald touched on during his keynote - that privacy is quickly becoming a privilege of the rich, and a dead letter for the rest.

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