Congressional Agency Questions Legality of Wiretaps

[Rip]

Israeli firm helping FBI to open encrypted iPhone

Israel's Cellebrite, a provider of mobile forensic software, is helping the U.S. Federal Bureau of Investigation's attempt to unlock an iPhone used by one of the San Bernardino, California shooters, the Yedioth Ahronoth newspaper reported on Wednesday. If Cellebrite succeeds, then the FBI will no longer need the help of Apple Inc (AAPL.O), the Israeli daily said, citing unnamed industry sources. Cellebrite officials declined to comment on the matter.

Apple is engaged in a legal battle with the U.S. Justice Department over a judge's order that it write new software to disable passcode protection on the iPhone used by the shooter. The two sides were set to face off in court on Tuesday, but on Monday a federal judge agreed to the government's request to postpone the hearing after U.S. prosecutors said a "third party" had presented a possible method for opening an encrypted iPhone. The development could bring an abrupt end to the high-stakes legal showdown which has become a lightning rod for a broader debate on data privacy in the United States.

Cellebrite, a subsidiary of Japan's Sun Corp (6736.T), has its revenue split between two businesses: a forensics system used by law enforcement, military and intelligence that retrieves data hidden inside mobile devices and technology for mobile retailers.

Apparently, they were successful.

FBI has accessed San Bernardino shooter’s phone without Apple’s help:

The Justice Department is abandoning its bid to force Apple to help it unlock the iPhone used by one of the shooters in the San Bernardino terrorist attack because investigators have found a way in without the tech giant’s assistance, prosecutors wrote in a court filing Monday.

Prosecutors wrote that investigators had now “accessed the data stored on” the shooter’s iPhone and no longer needed Apple’s help. They asked a court to vacate an earlier forcing Apple to provide assistance.

The stunning move averts a courtroom showdown between Apple and federal prosecutors that many in the tech community had warned might set dangerous precedents.

Announce it didn't lead to any new suspects or substantive knowledge about the attacks in 3....2.....1...

[Jaymann]

Wouldn't they say that no matter what they found?

[LordMortis]

http://www.latimes.com/business/technol ... story.html

Attorneys for Apple are researching legal tactics to compel the government to turn over the specifics, but the company had no update on its progress Tuesday.

[GreenGoo]

If I was selling phone cracking services, the last thing I would do would be to show my clients how to do it themselves.

i.e. the chances that the FBI knows anything it could turn over to Apple seems quite small.

[Defiant]

Remember when Merkel said "spying among friends, that’s just wrong", when it was discovered that the US had tapped her phone?

It appears that Germany has been caught spying on Israel, as well as...

the interior ministries of Austria and Belgium, the UK Defense Ministry, the headquarters of the Organization of Petroleum Exporting Countries and International Monetary Fund, the U.S. Air Force and NASA were all mentioned, too.

[Jaymann]

Remember when Merkel said "spying among friends, that’s just wrong", when it was discovered that the US had tapped her phone?

It appears that Germany has been caught spying on Israel, as well as...

Godwin's Law in 3...2...1...

[Defiant]

Don't mention the war!

[Pyperkub]

Because Israel would never, ever spy on its allies...

[Defiant]

And the US has also spied heavily on Israel. It's well known that allies spy on each other, so it's not really surprising. But it can be funny.

[stessier]

Maybe we need to start a decryption thread?

Another bad precedent - a guy accused, but not charged with a crime has been jailed for 7 months (and will remain there indefinitely) because he won't decrypt two external harddrives. If this is allowed, what is to stop them in any investigation?

[LordMortis]

Maybe we need to start a decryption thread?

Another bad precedent - a guy accused, but not charged with a crime has been jailed for 7 months (and will remain there indefinitely) because he won't decrypt two external harddrives. If this is allowed, what is to stop them in any investigation?

In America, you are guilty until we can prove you guilty?

[Pyperkub]

Maybe we need to start a decryption thread?

Another bad precedent - a guy accused, but not charged with a crime has been jailed for 7 months (and will remain there indefinitely) because he won't decrypt two external harddrives. If this is allowed, what is to stop them in any investigation?

Kind of like Barry Bonds trainer.

[Isgrimnur]

The FBI goes abroad:

On Thursday, the Supreme Court quietly signed off on changes to Federal Rule of Criminal Procedure 41 that one expert calls “possibly the broadest expansion of extraterritorial surveillance power since the FBI’s expansion.”

The Rule 41 changes, which will go into effect December 1 unless Congress intervenes, allow judges to grant the FBI search warrants to remotely hack into computers even when their physical location cannot be determined. That means the FBI could potentially receive authorization to hack devices abroad, whereas judges currently cannot issue search warrants unless they know the computer in question is in their jurisdiction.
...
In a statement, a Department of Justice spokesperson said "the amendment makes explicit that it does not change the traditional rules governing probable cause and notice," but critics counter that ambiguities surrounding terms like "conceal through technological means" and "damage" opens the door to greater surveillance of internet users both domestically and abroad.

[Isgrimnur]

Checks and balances!

A secret court that oversees the US government's surveillance requests accepted every warrant that was submitted last year, according to new figures.

The Washington DC.-based Foreign Intelligence Surveillance Court received 1,457 requests from the National Security Agency and the Federal Bureau of Investigation to intercept phone calls and emails.

In long-standing fashion, the court did not reject a single warrant, entirely or in part.

The FBI also issued 48,642 national security letters, a subpoena-like power that compels a company to turn over data on national security grounds without informing the subject of the letter.

The memo said the majority of these demands sought data on foreigners, but almost one-in-five were requests for data on Americans.

The figures are reported annually by the Justice Dept. to members of Congress, but have yet to be formally released. Reuters first reported the soon-to-be-released figures.
...
Since 1979 through to 2015, the last round of reporting figures, the court has approved 38,365 warrants but only rejected a dozen. That's a rejection rate of 0.031 percent.
...
Last year, the court appointed five lawyers and attorneys with national security clearance -- including Marc Zwillinger, a lawyer who's represented both Apple and Yahoo at the court -- to act as pushback against the government's requests.

The move was a provisions in the Freedom Act, which passed mid-2015, as an intelligence community reform effort in the wake of the Snowden revelations.

[Pyperkub]

Use of Location data perfectly legal, states the 4th Circuit:

A full panel of judges at the Fourth US Circuit Court of Appeals has now overturned last summer’s notable decision by the standard trio of appellate judges, which had found that police needed a warrant to obtain more than 200 days' worth of cell-site location information (CSLI) for two criminal suspects.

In the Tuesday en banc decision, the Fourth Circuit relied heavily upon the third-party doctrine, the 1970s-era Supreme Court case holding that there is no privacy interest in data voluntarily given up to a third party like a cell phone provider. That case, known as Smith v. Maryland, is what has provided the legal underpinning for lots of surveillance programs, ranging from local police all the way up to the National Security Agency...

...A Baltimore City Police detective first sought and obtained a search warrant for the two cell phones recovered during a search of the getaway car. Prosecutors later obtained a court order (a lesser standard than a warrant) granting disclosure of the defendants’ CSLI data for various periods totaling 14 days when the suspects were believed to have been involved in robberies. The government then applied for (and received) a second application to another magistrate judge for a new set of CSLI data, covering a period of July 1, 2010 through February 6, 2011 (221 days).

At the district court level, the defendants argued in a motion to suppress this evidence because "the privacy intrusions available through this type of technology are far-reaching and unconstitutional—allowing the government to retroactively track or survey a suspect through his cellular telephone, a device he likely carries with him at all hours of the day and to constitutionally protected places such as his home or church." However, a district judge sided with the government, also relying on the third-party doctrine, and denied the defendants’ motion.

Not surprising (and in the case, the officer's did go through the legal system to get the data), but yet another step closer to the British idea that National Security trumps everything, and another cornerstone of the surveillance state we live in, which is becoming even more ubiquitous.

[Pyperkub]

Another Circuit Court decision today, with another Cornerstone of the surveillance state getting fortified:

The government can prosecute and imprison people for crimes based on evidence obtained from their computers—even evidence retained for years that was outside the scope of an original probable-cause search warrant, a US federal appeals court has said in a 100-page opinion paired with a blistering dissent.

The 2nd US Circuit Court of Appeals ruled that there was no constitutional violation because the authorities acted in good faith when they initially obtained a search warrant, held on to the files for years, and built a case unrelated to the original search.

The case posed a vexing question—how long may the authorities keep somebody's computer files that were obtained during a search but were not germane to that search? The convicted accountant said that only the computer files pertaining to his client—who was being investigated as part of an Army overbilling scandal—should have been retained by the government during a 2003 search. All of his personal files, which eventually led to his own tax-evasion conviction, should have been purged, he argued.

Anything you've ever said or done will be used against you in a court of law.

[Zarathud]

Not happy that my employer announced upcoming new "security enhancements" including "bring your own device" phone tracking.

Time to stop taking conference calls at the boobie bars, I think.

[GreenGoo]

Holder has stated that he believes Snowden performed a public service when he released his information. He still believes that Snowden had other options and that what he did was illegal and should return home for trial, but it is a softening of his position that originally was simply "Traitor!" and had little room for nuance.

[Anonymous Bosch]

FBI wants access to Internet browser history without a warrant in terrorism and spy cases:

The Obama administration is seeking to amend surveillance law to give the FBI explicit authority to access a person’s Internet browser history and other electronic data without a warrant in terrorism and spy cases.

The administration made a similar effort six years ago but dropped it after concerns were raised by privacy advocates and the tech industry.

FBI Director James B. Comey has characterized the legislation as a fix to “a typo” in the Electronic Communications Privacy Act, which he says has led some tech firms to refuse to provide data that Congress intended them to provide.

[Read the letter from privacy advocates opposing the FBI’s effort to expand its surveillance powers]

[Isgrimnur]

DEA needed a warrant for phone tracking

A federal judge in Manhattan ruled on Tuesday that drugs seized from a man charged in a narcotics case could not be used as evidence, because agents had not obtained a warrant for a covert cellphone tracking device that led them to his Washington Heights apartment, where the drugs were found.

The portable device, known as a cell-site simulator and often referred to as a Stingray, has been used widely by federal and local law enforcement officials around the country, including in New York, to solve crimes and locate missing people.

Last September, just weeks after the search in the Manhattan case, the Justice Department announced a new policy that requires federal law enforcement officials to obtain a search warrant in most cases before using a cell-site simulator.

The simulator essentially mimics a cellphone tower (or cell site), and tricks cellphones into transmitting “pings” to the device, allowing agents who have narrowed down a targeted phone’s location to determine where it is in use.

But the judge, William H. Pauley III of Federal District Court, ruled that the simulator’s use constituted a Fourth Amendment search. “Absent a search warrant,” he wrote, “the government may not turn a citizen’s cellphone into a tracking device.”

[Pyperkub]

DEA needed a warrant for phone tracking

A federal judge in Manhattan ruled on Tuesday that drugs seized from a man charged in a narcotics case could not be used as evidence, because agents had not obtained a warrant for a covert cellphone tracking device that led them to his Washington Heights apartment, where the drugs were found.

The portable device, known as a cell-site simulator and often referred to as a Stingray, has been used widely by federal and local law enforcement officials around the country, including in New York, to solve crimes and locate missing people.

Last September, just weeks after the search in the Manhattan case, the Justice Department announced a new policy that requires federal law enforcement officials to obtain a search warrant in most cases before using a cell-site simulator.

The simulator essentially mimics a cellphone tower (or cell site), and tricks cellphones into transmitting “pings” to the device, allowing agents who have narrowed down a targeted phone’s location to determine where it is in use.

But the judge, William H. Pauley III of Federal District Court, ruled that the simulator’s use constituted a Fourth Amendment search. “Absent a search warrant,” he wrote, “the government may not turn a citizen’s cellphone into a tracking device.”

I expect this one to go all the way to the Supreme Court.

[Isgrimnur]

EFF

New rules issued by the Obama administration under Executive Order 12333 will let the NSA—which collects information under that authority with little oversight, transparency, or concern for privacy—share the raw streams of communications it intercepts directly with agencies including the FBI, the DEA, and the Department of Homeland Security, according to a report today by the New York Times.

That’s a huge and troubling shift in the way those intelligence agencies receive information collected by the NSA. Domestic agencies like the FBI are subject to more privacy protections, including warrant requirements. Previously, the NSA shared data with these agencies only after it had screened the data, filtering out unnecessary personal information, including about innocent people whose communications were swept up the NSA’s massive surveillance operations.

As the New York Times put it, with the new rules, the government claims to be “reducing the risk that the N.S.A. will fail to recognize that a piece of information would be valuable to another agency, but increasing the risk that officials will see private information about innocent people.”

Under the new, relaxed rules, there are still conditions that need to be met before the NSA will grant domestic intelligence analysts access to the raw streams of data it collects. And analysts can only search that raw data for information about Americans for foreign intelligence and counterintelligence purposes, not domestic criminal cases.

However—and this is especially troubling—“if analysts stumble across evidence that an American has committed any crime, they will send it to the Justice Department,” the Times wrote. So information that was collected without a warrant—or indeed any involvement by a court at all—for foreign intelligence purposes with little to no privacy protections, can be accessed raw and unfiltered by domestic law enforcement agencies to prosecute Americans with no involvement in threats to national security.

[geezer]

EFF

New rules issued by the Obama administration under Executive Order 12333 will let the NSA—which collects information under that authority with little oversight, transparency, or concern for privacy—share the raw streams of communications it intercepts directly with agencies including the FBI, the DEA, and the Department of Homeland Security, according to a report today by the New York Times.

That’s a huge and troubling shift in the way those intelligence agencies receive information collected by the NSA. Domestic agencies like the FBI are subject to more privacy protections, including warrant requirements. Previously, the NSA shared data with these agencies only after it had screened the data, filtering out unnecessary personal information, including about innocent people whose communications were swept up the NSA’s massive surveillance operations.

As the New York Times put it, with the new rules, the government claims to be “reducing the risk that the N.S.A. will fail to recognize that a piece of information would be valuable to another agency, but increasing the risk that officials will see private information about innocent people.”

Under the new, relaxed rules, there are still conditions that need to be met before the NSA will grant domestic intelligence analysts access to the raw streams of data it collects. And analysts can only search that raw data for information about Americans for foreign intelligence and counterintelligence purposes, not domestic criminal cases.

However—and this is especially troubling—“if analysts stumble across evidence that an American has committed any crime, they will send it to the Justice Department,” the Times wrote. So information that was collected without a warrant—or indeed any involvement by a court at all—for foreign intelligence purposes with little to no privacy protections, can be accessed raw and unfiltered by domestic law enforcement agencies to prosecute Americans with no involvement in threats to national security.

This kind of bullshit is why I didn't vote for Obama in 2012.

[Exodor]

This kind of bullshit is why I didn't vote for Obama in 2012.

I expected Obama to reign in the NSA and the security state - instead he's expanded their powers. It's my biggest disappointment with his presidency.

[Pyperkub]

This kind of bullshit is why I didn't vote for Obama in 2012.

I expected Obama to reign in the NSA and the security state - instead he's expanded their powers. It's my biggest disappointment with his presidency.

It was a false expectation. Remember that as a Senator in 2008 he was the one who arm twisted the Democrats into renewing the Patriot act.

[Exodor]

Obama commutes Manning's sentence


Now how about Snowden?

[Isgrimnur]

NY Times

Now, under the terms of Mr. Obama’s commutation announced by the White House on Tuesday, Ms. Manning is set to be freed on May 17 of this year, rather than in 2045.
...
In recent days, the White House had signaled that Mr. Obama was seriously considering granting Ms. Manning’s commutation application, in contrast to a pardon application submitted on behalf of the other large-scale leaker of the era, Edward J. Snowden, the former intelligence contractor who disclosed archives of top secret surveillance files and is living as a fugitive in Russia.

Asked about the two clemency applications on Friday, the White House spokesman, Joshua Earnest, discussed the “pretty stark difference” between Ms. Manning’s case for mercy with Mr. Snowden’s. While their offenses were similar, he said, there were “some important differences.”

“Chelsea Manning is somebody who went through the military criminal justice process, was exposed to due process, was found guilty, was sentenced for her crimes, and she acknowledged wrongdoing,” he said. “Mr. Snowden fled into the arms of an adversary, and has sought refuge in a country that most recently made a concerted effort to undermine confidence in our democracy.”

He also noted that while the documents Ms. Manning provided to WikiLeaks were “damaging to national security,” the ones Mr. Snowden disclosed were “far more serious and far more dangerous.” (None of the documents Ms. Manning disclosed were classified above the merely “secret” level.)

[Unagi]

Earlier this month, WikiLeaks said it would agree to a US extradition request for the site's founder, Julian Assange, if Obama granted clemency to Manning. It was not immediately clear if WikiLeaks would make good on its promise.

Someone help me.
WikiLeaks is now a country that is ready to agree to a US extradition request, if Manning was granted clemency?

I'm lost.

[ImLawBoy]

My assumption is just that this means Assange would cooperate with the request.

[Defiant]

Meh. I've felt somewhat more favorably about Snowden than Manning, because Snowden's release seemed to be more whistleblowery/in the public interest, even if the manner was far from good (though IIRC, we've since learned that he took a hell of a lot more than the whistleblowery stuff he released, so forget that).

Mannings wasn't like that at all. And while she was naive, I don't think that excuses her crime at all. I might be more forgiving if the years she's so far served is in line for what others got, I guess (I don't know if it is), and I suppose if this does result in Assange being extradited (as the CNN article notes) it might be worth it.

[Unagi]

My assumption is just that this means Assange would cooperate with the request.

OK, so Assange would give up his freedom, for hers. Makes very little sense to me (still), although you did help me with the original problem I had with that statement.

[Defiant]

Yeah, the tweet makes it clear that it would be Assange agreeing to it.

[Max Peck]

Has the US government ever actually attempted to extradite Assange, or even charge him with any crime as yet? As I recall, he's been camping out in the Ecuadorian embassy because Sweden wanted to question him over the sexual assault allegations, and he was afraid that the US would extradite him from Sweden or something. Why would it be easier to do that from Sweden than the UK, given that the UK is the closest ally the US has?

All in all, it seems like Wikileaks/Assange is making an empty promise, and is perhaps banking that Trump's apparent good will is genuine. I wouldn't bet my life on that...

[Ralph-Wiggum]

Obama commutes Manning's sentence


Now how about Snowden?

In a NYT review of a new book on Snowden, they quote an unnamed source in the Obama administration stating that Snowden was likely a spy for either Russia or China (which is the main argument of the book). If that's the feeling within the administration, there's no way they will grant Snowden a pardon.

It's also worth noting that there a bunch of other factors going into Manning's clemency that were likely at play. Plus the fact that she has pleaded guilty and has served time. Snowden would need a pardon which is very different from clemency (I think?).

[Isgrimnur]

TechDirt

House Oversight Committee chairman Jason Chaffetz, along with his Senatorial counterpart Ron Wyden, is tackling something he promised to act on after he was finished excoriating the leaky Office of Personnel Management for ruining the lives of millions of Americans: Stingray devices.

A bipartisan group of House and Senate lawmakers introduced legislation Wednesday requiring police agencies to get a search warrant before they can deploy powerful cellphone surveillance technology known as "stingrays" that sweep up information about the movements of innocent Americans while tracking suspected criminals.

“Owning a smartphone or fitness tracker shouldn’t give the government a blank check to track your movements," said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee who introduced the bill with Reps. Jason Chaffetz, R-Utah, and John Conyers, D-Mich. "Law enforcement should be able to use GPS data, but they need to get a warrant. This bill sets out clear rules to make sure our laws keep up with the times."

What the bill would do is codify the DOJ's "Stingray Best Practices" policy, which implemented a warrant requirement for cell site simulator deployment -- albeit one that wasn't really a requirement because it wasn't statutorily-required. This would be the statutory requirement the DOJ's better-late-than-never approach to constitutionality was missing.

But the bill doesn't limit itself to cell tower spoofers. It also would add a layer of protection to data the DOJ has long argued isn't covered by the Fourth Amendment.

The legislation introduced Wednesday, called the Geolocation Privacy and Surveillance (GPS) Act, would require a warrant for all domestic law enforcement agencies to track the location and movements of individual Americans through GPS technology without their knowledge. It also aims to combat high-tech stalking by creating criminal penalties for secretly using an electronic device to track someone's movements.
...
When [The Supreme Court] (sort of) found warrants might be a good idea when deploying GPS devices for long-term tracking, it never went quite so far as to say a warrant should be a requirement in all cases. It seemed concerned about the length of the tracking but left it at PROBABLY when all was said and done.

[Isgrimnur]

Yeah, the tweet makes it clear that it would be Assange agreeing to it.

You didn't think he'd actually do it, did you?

But when Obama granted clemency to Manning on Tuesday, setting a May release date that lops almost 30 years off her sentence, Assange's lawyers said it wasn't enough.

"There's no question that what President Obama did is not what Assange was seeking," said Barry Pollack, who represents the WikiLeaks chief in the United States.

"Mr Assange was saying that Chelsea should never have been prosecuted, never have been sentenced to decades in prison, and should have been released immediately."

Melinda Taylor, who also represents Assange, agreed, saying in an email that clemency was "far short of what Mr Assange asked for and what Ms Manning deserved (which is to be pardoned and freed immediately)."

Neither supplied any evidence that Assange had used the words "immediate" or "pardon" in relation to his extradition offer, but Pollack said it was clear that was what Assange meant - noting that the Australian computer expert had previously pushed for Manning's pardon.

"Why would he be called for Manning's release in a few months from now?" Pollack said.

[malchior]

I don't mind Assange being held under de facto house arrest for perpetuity at this point. He still does damage but at least he suffers for his 'cause'. Good enough for me.

[Pyperkub]

"Oops. We're still fucking up, but trust us!"

The NSA says that the missteps amount to a small number — less than 1 percent — when compared to the hundreds of thousands of specific phone numbers and email addresses the agencies intercepted through the so-called Section 702 warrantless spying program created by Congress in late 2008.

“Quite simply, a compliance program that never finds an incident is not a robust compliance program,” said Michael Halbig, the NSA’s chief spokesman. “The National Security Agency has in place a strong compliance program that identifies incidents, reports them to external overseers, and then develops appropriate solutions to remedy any incidents.”

But critics say the memos undercut the intelligence community’s claim that it has robust protections for Americans incidentally intercepted under the program.

“Americans should be alarmed that the NSA is vacuuming up their emails and phone calls without a warrant,” said Patrick Toomey, an ACLU staff attorney in New York who helped pursue the FOIA litigation. “The NSA claims it has rules to protect our privacy, but it turns out those rules are weak, full of loopholes, and violated again and again.”

Section 702 empowers the NSA to spy on foreign powers and to retain and use certain intercepted data that was incidentally collected on Americans under strict privacy protections. Wrongly collected information is supposed to be immediately destroyed.

The Hill reviewed the new ACLU documents as well as compliance memos released by the NSA inspector general and identified more than 90 incidents where violations specifically cited an impact on Americans. Many incidents involved multiple persons, multiple violations or extended periods of time.

Note that section 702 (and 215) were the ones due to expire before Obama rallied the troops during the 2008 campaign (and is the one I referred to above as my indication that Obama wouldn't be as strong as I wanted him to be on this issue). At least the compliance reporting portion was added then, or we wouldn't even know this much.

[Pyperkub]

CIA spying on Homeland Security, NSA, FBI, etc.:

Apparently, nobody's exempt from the CIA's intelligence gathering, not even its own intelligence partners. According to a set of documents published by WikiLeaks, the CIA uses a tool called "ExpressLane" that hides behind a fake software update to collect information from agencies around the world that use its biometric collection system. In the US, the list includes fellow government agencies like the FBI, the NSA and Homeland Security. These partners are supposed to share data with the CIA, but clearly, the intelligence service wants to make sure they're not keeping anything from the agency.

I seem to recall that the CIA was prohibited by law from operating on domestic soil. Did that change as part of the Patriot Act, or other amendments?

[Rip]

CIA spying on Homeland Security, NSA, FBI, etc.:

Apparently, nobody's exempt from the CIA's intelligence gathering, not even its own intelligence partners. According to a set of documents published by WikiLeaks, the CIA uses a tool called "ExpressLane" that hides behind a fake software update to collect information from agencies around the world that use its biometric collection system. In the US, the list includes fellow government agencies like the FBI, the NSA and Homeland Security. These partners are supposed to share data with the CIA, but clearly, the intelligence service wants to make sure they're not keeping anything from the agency.

I seem to recall that the CIA was prohibited by law from operating on domestic soil. Did that change as part of the Patriot Act, or other amendments?

Pretty sure that only relates to field agents. It is impossible to place geographic boundaries on cyber warfare where the only boundaries are those you can defend.