Bloggers and privacy advocates are responding to Google's latest Transparency Report -- the first to break down how often it receives subpoenas as opposed to warrants for user data. Here's Julian Sanchez of Cato and Trevor Timm on HuffPost Live:
Of related interest: Jill and Scott Kelley in the Washington Post calling for email privacy reform. And Ars Technica explains how Google stands up for its users by requiring law enforcement to get a warrant for content information (as opposed to metadata, which usually only needs a subpoena).
Other links of note:
--Anti-drone legislation advances in Florida.
--FBI not so forthcoming on its interpretation of GPS tracking law.
--Conor Friedersdorf critiques the "ruling elite's" letter of recommendation for John Brennan.
--The NYPD has taken delivery of a passive terahertz wave detector that might be able to spot a gun underneath your clothes. I say might because the technology still sounds mighty experimental.
Email privacy is a tangled subject: the Electronic Communication Privacy Act (ECPA) governing when the police or FBI can read your messages was written in 1986, the Justice Department is loathe to release details on how often it is used, and the underlying technology is always changing.
But at a panel in Washington on Tuesday, Google's chief privacy lawyer did drop a depressing and revealing factoid about how law enforcement is actually using its subpoena and warrant powers to get information on who you message and what you send.
"I can't tell you how many requests we get for Facebook," said Richard Salgado, director of law enforcement and information security for Google. That's right -- some of the cops supposed to be taking great care to craft narrow subpoenas can't even tell the difference between a Facebook Message and a Google Chat.
Salgado's revelation elicited laughs from the crowd of computer geeks and information privacy hawks at the Congressional Internet Caucus's State of the Net conference. They were gathered for a panel investigating why and how law enforcement was able to gain access to the emails that exposed former CIA Director David Petraeus's sex scandal. But it could also point to widespread misuse of law enforcement powers when it comes to email.
As Salgado also pointed out during the panel, Google is faced with the "bad combination" of a high demand of information requests from law enforcement (7,969 from just January to June 2012) and the taxing amount of care to protect its users' privacy and Constitutional rights.
If Salgado's telling of the effort his company puts into screening information requests from cops is correct, then Gmail users should feel a little relieved. The company has generally gotten kudos from civil liberties advocates for pushing back when authorities make requests that are too broad or too invasive. According to its latest privacy report, it declined to comply with about 10 percent of law enforcement requests -- a number that surprised Michael Vatis, a former Department of Justice official also on the panel.
But as Kevin Bankston, senior counsel and director of the Free Expression Project at the Center for Democracy & Technology, pointed out, there is an "utter lack of transparency" around how often other providers are getting pumped for information by law enforcement. The federal court system publishes an annual report on how often traditional telephone wiretaps are used. But when email subpoenas or warrants are involved, we're playing a guessing game -- and we generally have no idea how often providers not named Google fight back for their users' rights.
Zooming in on the CIA
Journalist Ted Gup in a New York Times op-ed says "The C.I.A. invokes secrecy to serve its interests but abandons it to burnish its image and discredit critics."
Both this and Michael Hastings's piece at BuzzFeed on "The CIA's Hollywood Coup" slam the agency for a too close relationship with movie and mythmakers. Expect this topic to get a lot of extra airing now that Zero Dark Thirty and Argo have been nominated for a Best Picture Oscar.
On a similar note, Glenn Greenwald criticizes the government for prosecuting Bradley Manning -- but not Bob Woodward, a prolific revealer of classified information from the CIA and elsewhere. A key point in the prosecution of Manning appears to be that bin Laden was found with some of the WikiLeaks documents at his compound. Greenwald argues:
"But let's apply the government's theory in the Manning case to one of the most revered journalists in Washington: Bob Woodward, who has become one of America's richest reporters, if not the richest, by obtaining and publishing classified information far more sensitive than anything WikiLeaks has ever published. For that reason, one of Woodward's most enthusiastic readers was Osama bin Laden."
Homeland security's semantic insecurity
John Brennan, liberal lion? Not so fast
Michael Cohen in Foreign Policy argues that the left should stop worrying and learn to love John Brennan. Only the architect of the drone program, he says, can stop the drone program.
Tell that to Demand Progress and CREDO Action: the two progressive advocacy groups seem to be the first out of the woodwork to outright oppose the Brennan nom. Key quote:
"John Brennan has presided over an assassination program which has resulted in at least many hundreds of civilian deaths in Pakistan and Yemen (including the death of an American teenager who had no involvement in terrorism). ... It's absurd, it's illegal, it's completely antithetical to democratic values, and it's morally repugnant. We need to speak out and tell the Senate: Enough!"
Full disclosure: I'm friends with DP executive director David Segal. If you can't get enough of Brennan talk, watch this HuffPost Live segment I did last night with Adam Serwer of Mother Jones, activist Kevin Zeese, and ex-State Department spokesman PJ Crowley:
PJ Crowley (@PJCrowley).
(1:38 PM update to correct Demand Progress/CREDO link).
The last two days of pretrial hearings for Bradley Manning have seen a couple of interesting developments:
First, Judge Army Col. Denise Lind waded into the roiling debate over solitary confinement when she claimed yesterday that Bradley Manning was not truly subjected to solitary confinement because "solitary confinement means alone, without human contact," and "he had daily human contact."
Penologists and psychologists hotly dispute just what solitary confinement is. But it's generally agreed that we're not necessarily talking about Kaspar Hauser-style total isolation. Even journalist Terry Anderson, when he was being held by Hezbollah in Lebanon in the '80s, for example, had some contact with his jailers.
The ACLU blogged a response to Lind's ruling on Wednesday, calling it a "misguided," "simply wrong" display of the "all too common misunderstanding of what solitary confinement is and the damaging effects it imposes on human beings."
Second, there was an interesting discussion of whether WikiLeaks constitutes a media organization in court Wednesday. Kevin Gosztola summarizes:
The judge asked if the govt was planning to present any evidence about the nature of WikiLeaks. Is that somehow different from the New York Times? Does the government have a theory it is somehow different? To which the government replied during sentencing it would have a witness testify, who would "characterize" WikiLeaks.
Again the judge asked, "If we substituted New York Times for WikiLeaks, would you still charge Bradley Manning in way that you have?" Without hesitation, the government answered yes.
Keep in mind that we're talking about the trial of Bradley Manning, not Julian Assange. Still, it's interesting that in this context of whether to charge Manning, at least, the government views Assange and former New York Times executive editor Bill Keller not too differently. I guess we'll have to stay tuned for a potential sentencing phase of the trial to find out more.
Hello Wednesday. Here's what's happening in the world of civil liberties, civil rights and more.
Bradley Manning gets four months "credit," but loses dismissal motion
Judge Col. Denise Lind ruled on Tuesday that Bradley Manning will get 112 days off of any eventual sentencing because of the "excessive" conditions he was held under (read: being forced to sleep naked every night and held in near-solitary confinement conditions). But she also found there was "no intent to punish" Manning on the part of the Marines who held him.
It's a ruling that Manning supporters are reacting to with some disappointment, given that Lind could have given Manning 10-for-1 credit or even dismissed the charges altogether.
Josh Gerstein has a look at one of the central questions in the case: whether Manning's motive in allegedly handing over sensitive documents to WikiLeaks matters.
Europeans decry "mass surveillance," but who's going to stop us?
Ryan Gallagher over at Slate has the details on a new report produced for the European Parliament about cloud computing. The United States, it seems, has the ability to conduct "mass surveillance" on European citizens via our friendly cloud computing providers like Google.
I think the actual mechanics of what this report covers (cloud computing accessed via FISA court orders) are not so interesting -- given that we're talking about data created or sent by non-US persons, usually off of American soil, very few Fourth Amendment protections apply. The NSA or CIA presumably have ways of accessing a European's email that don't involve politely asking Sergey Brin.
But the report does highlight the small but growing movement among some in Europe like Dutch politician Sophia in 't Veld, quoted by Gallagher, to push back against US surveillance: "It's very clear that the European Commission [the EU's executive body] is turning a blind eye," she said. "So are the national governments -- partly because they don't grasp the issue and partly because they are afraid to stand up to U.S. authority." If that changes, it could spell embarrassment or headaches for American spooks looking abroad, and maybe it could shed a little light on whether Americans are getting swept up in the search.
John Brennan, get ready for your closeup
Few of the human rights groups I talked to for my piece about the Brennan nomination on Monday seemed to think they could stop his move to the CIA (or that there would be much point in trying to do so). Even Stephen Soldz, the psychologist who organized that letter opposing Brennan's nomination in November 2008, told, me "to be honest, with the Congress as it is, likelihood of success is very slight."
But they do see the Brennan nomination as an opening to talk about torture, and more specifically push for the release of Senate Intel's report on the CIA interrogation program. The Los Angeles Times publishes an editorial with that theme today. And Adam Serwer for Mother Jones has more on what Dianne Feinstein and John McCain are saying, and on how Zero Dark Thirty could pop up during the confirmation hearings.
Torture foes are seizing on President Barack Obama's nomination of John Brennan for CIA chief to push for the release of a Senate Intelligence Committee report about the agency's use of so-called "enhanced interrogation" techniques like waterboarding during the George W. Bush administration.
Human rights advocates have long hoped to see portions of the 6,000-page report, in the works since 2009, declassified in order to shed light on waterboarding and other abuses of the CIA's interrogation program. Sen. John McCain (R-Ariz.) wrote in a letter last month that the report "confirms … that the cruel, inhuman, and degrading treatment of prisoners is not only wrong in principle and a stain on our country’s conscience, but also an ineffective and unreliable means of gathering intelligence."
But while the Senate Intelligence Committee approved the report on a 9-6, mostly party-line vote last month, it still has not seen the light of day. The White House and intelligence agencies are still combing through it to make comments to the Senate panel.
Brennan's tenure as deputy executive director at the CIA in the mid-2000s may play a role in the debate over the report's release. According to a report Monday in The Washington Post, the White House combed through the report to see whether it contained any damaging revelations about Brennan's time at the agency. It apparently shows that he was made aware of the interrogation program's classified aspects, but did not play a "significant role" in the program. Human rights advocates would like to read the report for themselves, before Brennan is confirmed.
“The Senate should not move forward with his nomination until all senators can assess the role of the CIA -- and any role by Brennan himself -- in torture, abuse, secret prisons, and extraordinary rendition during his past tenure at the CIA," Laura Murphy, director of the ACLU's Washington Legislative Office said in a release on Monday. “To the extent these questions can be answered by the Intelligence Committee’s still-undisclosed report on the CIA’s role in torture, the Senate should use the report to determine what role Brennan had."
Years after he had left the CIA, Brennan publicly defended at least some elements of the program. "A lot of information that has come out from these interrogation procedures that the agency has in fact used against the real hard-core terrorists," he said in November 2007. "It has saved lives. And let’s not forget, these are hardened terrorists who have been responsible for 9/11."
But Brennan also spoke out against waterboarding at least as early as October 2006, telling the New York Daily News that it "goes beyond the bounds of what a civilized society should employ."
The push for the report's release is bigger than Brennan. Advocates hope it will provide some accountability for the interrogation program's members, who Obama has said he will not prosecute for their crimes. But the CIA has steadfastly opposed not just prosecutions but also the release of more information on the torture program -- including, according to some, the Senate Intelligence report.
"There have been reports that the CIA was vigorously opposing release of that study," said Dixon Osburn, director of the Law and Security Program at Human Rights First. "Leadership from the White House and CIA leaders would be critically important in making sure that report is made public."
Comments on the report from the executive branch, including the CIA, are due February 15. The Senate Intelligence Committee would then need to decide whether to incorporate them into the report and whether to make any of the report or at least a summary public.
The ACLU, Human Rights First and Human Rights Watch will all be pushing during Brennan's nomination process to speed up the report's release. They say his statements on the matter will show whether the 25-year agency veteran is too in thrall to its bureaucracy to make reforms, or ready to push it in a new direction.
"If Brennan is supportive of that process," Osburn said, "that would be very helpful in ensuring that we don't repeat those mistakes."