Shhh… SPIEGEL: US Attack on Press Freedom

As more details emerge, it is becoming increasingly clear that representatives of the German government at best looked away as the Americans violated the law, and at worst supported them…

Journalists, who scrutinize and criticize those who govern, are an elementary part of the “checks and balances” — an American invention — aimed at ensuring both transparency and accountability. When it comes to intelligence issues, however, it appears this system has been out of balance for some time…

Everything the government said was a lie. As far back as 2013, the German government was in a position to suspect, if not to know outright, the obscene extent to which the United States was spying on an ally…

See original Spiegel story below.


An Attack on Press Freedom: SPIEGEL Targeted by US Intelligence

By SPIEGEL Staff

Revelations from WikiLeaks published this week show how boundlessly and comprehensively American intelligence services spied on the German government. It has now emerged that the US also conducted surveillance against SPIEGEL.

Walks during working hours aren’t the kind of pastime one would normally expect from a leading official in the German Chancellery. Especially not from the head of Department Six, the official inside Angela Merkel’s office responsible for coordinating Germany’s intelligence services.

Walks during working hours aren’t the kind of pastime one would normally expect from a leading official in the German Chancellery. Especially not from the head of Department Six, the official inside Angela Merkel’s office responsible for coordinating Germany’s intelligence services.

But in the summer of 2011, Günter Heiss found himself stretching his legs for professional reasons. The CIA’s station chief in Berlin had requested a private conversation with Heiss. And he didn’t want to meet in an office or follow standard protocol. Instead, he opted for the kind of clandestine meeting you might see in a spy film.

Officially, the CIA man was accredited as a counsellor with the US Embassy, located next to Berlin’s historic Brandenburg Gate. Married to a European, he had already been stationed in Germany once before and knew how to communicate with German officials. At times he could be demanding and overbearing, but he could also be polite and courteous. During this summer walk he also had something tangible to offer Heiss.

The CIA staffer revealed that a high-ranking Chancellery official allegedly maintained close contacts with the media and was sharing official information with reporters with SPIEGEL.

The American provided the name of the staffer: Hans Josef Vorbeck, Heiss’ deputy in Department Six. The information must have made it clear to Heiss that the US was spying on the German government as well as the press that reports on it.

The central Berlin stroll remained a secret for almost four years. The Chancellery quietly transferred Vorbeck, who had until then been responsible for counterterrorism, to another, less important department responsible dealing with the history of the BND federal intelligence agency. Other than that, though, it did nothing.

Making a Farce of Rule of Law

Officials in the Chancellery weren’t interested in how the CIA had obtained its alleged information. They didn’t care to find out how, and to which degree, they were being spied on by the United States. Nor were they interested in learning about the degree to which SPIEGEL was being snooped on by the Americans. Chancellery officials didn’t contact any of the people in question. They didn’t contact members of the Bundestag federal parliament sitting on the Parliamentary Control Panel, the group responsible for oversight of the intelligence services. They didn’t inform members of the Office for the Protection of the Constitution, the agency responsible for counterintelligence in Germany, either. And they didn’t contact a single public prosecutor. Angela Merkel’s office, it turns out, simply made a farce of the rule of law.

As a target of the surveillance, SPIEGEL has requested more information from the Chancellery. At the same time, the magazine filed a complaint on Friday with the Federal Public Prosecutor due to suspicion of intelligence agency activity.

Because now, in the course of the proceedings of the parliamentary investigative committee probing the NSA’s activities in Germany in the wake of revelations leaked by whistleblower Edward Snowden, details about the event that took place in the summer of 2011 are gradually leaking to the public. At the beginning of May, the mass-circulation tabloid Bild am Sonntag reported on a Chancellery official who had been sidelined “in the wake of evidence of alleged betrayal of secrets through US secret services.”

Research conducted by SPIEGEL has determined the existence of CIA and NSA files filled with a large number of memos pertaining to the work of the German newsmagazine. And three different government sources in Berlin and Washington have independently confirmed that the CIA station chief in Berlin was referring specifically to Vorbeck’s contacts with SPIEGEL.

An Operation Justified by Security Interests?

Obama administration sources with knowledge of the operation said that it was justified by American security interests. The sources said US intelligence services had determined the existence of intensive contacts between SPIEGEL reporters and the German government and decided to intervene because those communications were viewed as damaging to the United States’ interests. The fact that the CIA and NSA were prepared to reveal an ongoing surveillance operation to the Chancellery underlines the importance they attached to the leaks, say sources in Washington. The NSA, the sources say, were aware that the German government would know from then on that the US was spying in Berlin.

As more details emerge, it is becoming increasingly clear that representatives of the German government at best looked away as the Americans violated the law, and at worst supported them.

Just last Thursday, Günter Heiss and his former supervisor, Merkel’s former Chief of Staff Ronald Pofalla, were questioned by the parliamentary investigative committee and attempted to explain the egregious activity. Heiss confirmed that tips had been given, but claimed they hadn’t been “concrete enough” for measures to be taken. When asked if he had been familiar with the issue, Pofalla answered, “Of course.” He said that anything else he provided had to be “in context,” at which point a representative of the Chancellery chimed in and pointed out that could only take place in a meeting behind closed doors.

In that sense, the meeting of the investigative committee once again shed light on the extent to which the balance of power has shifted between the government and the Fourth Estate. Journalists, who scrutinize and criticize those who govern, are an elementary part of the “checks and balances” — an American invention — aimed at ensuring both transparency and accountability. When it comes to intelligence issues, however, it appears this system has been out of balance for some time.

Government Lies

When SPIEGEL first reported in Summer 2013 about the extent of NSA’s spying on Germany, German politicians first expressed shock and then a certain amount of indignation before quickly sliding back into their persona as a loyal ally. After only a short time and a complete lack of willingness on the part of the Americans to explain their actions, Pofalla declared that the “allegations are off the table.”

But a number of reports published in recent months prove that, whether out of fear, outrage or an alleged lack of knowledge, it was all untrue. Everything the government said was a lie. As far back as 2013, the German government was in a position to suspect, if not to know outright, the obscene extent to which the United States was spying on an ally. If there hadn’t already been sufficient evidence of the depth of the Americans’ interest in what was happening in Berlin, Wednesday’s revelations by WikiLeaks, in cooperation with Süddeutsche Zeitung, filled in the gaps.

SPIEGEL’s reporting has long been a thorn in the side of the US administration. In addition to its reporting on a number of other scandals, the magazine exposed the kidnapping of Murat Kurnaz, a man of Turkish origin raised in Bremen, Germany, and his rendition to Guantanamo. It exposed the story of Mohammed Haydar Zammar, who was taken to Syria, where he was tortured. The reports triggered the launch of a parliamentary investigative committee in Berlin to look also into the CIA’s practices.

When SPIEGEL reported extensively on the events surrounding the arrest of three Islamist terrorists in the so-called “Sauerland cell” in Germany, as well as the roles played by the CIA and the NSA in foiling the group, the US government complained several times about the magazine. In December 2007, US intelligence coordinator Mike McConnell personally raised the issue during a visit to Berlin. And when SPIEGEL reported during the summer of 2009, under the headline “Codename Domino,” that a group of al-Qaida supporters was believed to be heading for Europe, officials at the CIA seethed. The sourcing included a number of security agencies and even a piece of information supplied by the Americans. At the time, the station chief for Germany’s BND intelligence service stationed in Washington was summoned to CIA headquarters in Langley, Virginia.

The situation escalated in August 2010 after SPIEGEL, together with WikiLeaks, the Guardian and the New York Times, began exposing classified US Army reports from Afghanistan. That was followed three months later with the publication of the Iraq war logs based on US Army reports. And in November of that year, WikiLeaks, SPIEGEL and several international media reported how the US government thinks internally about the rest of the world on the basis of classified State Department cables. Pentagon officials at the time declared that WikiLeaks had “blood on its hands.” The Justice Department opened an investigation and seized data from Twitter accounts, e-mail exchanges and personal data from activists connected with the whistleblowing platform. The government then set up a Task Force with the involvement of the CIA and NSA.

Not even six months later, the CIA station chief requested to go on the walk in which he informed the intelligence coordinator about Vorbeck and harshly criticized SPIEGEL.

Digital Snooping

Not long later, a small circle inside the Chancellery began discussing how the CIA may have got ahold of the information. Essentially, two possibilities were conceivable: either through an informant or through surveillance of communications. But how likely is it that the CIA had managed to recruit a source in the Chancellery or on the editorial staff of SPIEGEL?

The more likely answer, members of the circle concluded, was that the information must have been the product of “SigInt,” signals intelligence — in other words, wiretapped communications. It seems fitting that during the summer of 2013, just prior to the scandal surrounding Edward Snowden and the documents he exposed pertaining to NSA spying, German government employees warned several SPIEGEL journalists that the Americans were eavesdropping on them.

At the end of June 2011, Heiss then flew to Washington. During a visit to CIA headquarters in Langley, the issue of the alleged contact with SPIEGEL was raised again. Chancellery staff noted the suspicion in a classified internal memo that explicitly names SPIEGEL.

One of the great ironies of the story is that contact with the media was one of Vorbeck’s job responsibilities. He often took part in background discussions with journalists and even represented the Chancellery at public events. “I had contact with journalists and made no secret about it,” Vorbeck told SPIEGEL. “I even received them in my office in the Chancellery. That was a known fact.” He has since hired a lawyer.

It remains unclear just who US intelligence originally had in its scopes. The question is also unlikely to be answered by the parliamentary investigative committee, because the US appears to have withheld this information from the Chancellery. Theoretically, at least, there are three possibilities: The Chancellery — at least in the person of Hans Josef Vorbeck. SPIEGEL journalists. Or blanket surveillance of Berlin’s entire government quarter. The NSA is capable of any of the three options. And it is important to note that each of these acts would represent a violation of German law.

Weak Arguments

So far, the Chancellery has barricaded itself behind the argument that the origin of the information had been too vague and abstract to act on. In addition, the tip had been given in confidentiality, meaning that neither Vorbeck nor SPIEGEL could be informed. But both are weak arguments, given that the CIA station chief’s allegations were directed precisely at SPIEGEL and Vorbeck and that the intelligence coordinator’s deputy would ultimately be sidelined as a result.

And even if you follow the logic that the tip wasn’t concrete enough, there is still one committee to whom the case should have been presented under German law: the Bundestag’s Parliamentary Control Panel, whose proceedings are classified and which is responsible for oversight of Germany’s intelligence services. The nine members of parliament on the panel are required to be informed about all intelligence events of “considerable importance.”

Members of parliament on the panel did indeed express considerable interest in the Vorbeck case. They learned in fall 2011 of his transfer, and wanted to know why “a reliable coordinator in the fight against terrorism would be shifted to a post like that, one who had delivered excellent work on the issue,” as then chairman of the panel, Social Demoratic Party politician Thomas Oppermann, criticized at the time.

But no word was mentioned about the reasons behind the transfer during a Nov. 9, 2011 meeting of the panel. Not a single word about the walk taken by the CIA chief of station. Not a word about the business trip to Washington taken by Günter Heiss afterward. And not a word about Vorbeck’s alleged contacts with SPIEGEL. Instead, the parliamentarians were told a myth — that the move had been made necessary by cutbacks. And also because he was needed to work on an historical appraisal of Germany’s foreign intelligence agency, the BND.

Deceiving Parliament

Officials in the Chancellery had decided to deceive parliament about the issue. And for a long time, it looked as though they would get away with it.

The appropriate way of dealing with the CIA’s incrimination would have been to transfer the case to the justice system. Public prosecutors would have been forced to follow up with two investigations: One to find out whether the CIA’s allegations against Vorbeck had been true — both to determine whether government secrets had been breached and out of the obligation to assist a longtime civil servant. It also would have had to probe suspicions that a foreign intelligence agency conducted espionage in the heart of the German capital.

That could, and should, have been the case. Instead, the Chancellery decided to go down the path of deception, scheming with an ally, all the while interpreting words like friendship and partnership in a highly arbitrary and scrupulous way.

Günter Heiss, who received the tip from the CIA station chief, is an experienced civil servant. In his earlier years, Heiss studied music. He would go on as a music instructor to teach a young Ursula von der Leyen (who is Germany’s defense minister today) how to play the piano. But then Heiss, a tall, slightly lanky man, switched professions and instead pursued a career in intelligence that would lead him to the top post in the Lower Saxony state branch of the Office for the Protection of the Constitution. Even back then, the Christian Democrat was already covering up the camera on his laptop screen with tape. At the very least “they” shouldn’t be able to see him, he said at the time, elaborating that the “they” he was referring to should not be interpreted as being the US intelligence services, but rather the other spies – “the Chinese” and, “in any case, the Russians.” For conservatives like Heiss, America, after all, is friendly territory.

‘Spying Among Friends Not Acceptable’

If there was suspicion in the summer of 2011 that the NSA was spying on a staff member at the Chancellery, it should have set off alarm bells within the German security apparatus. Both the Office for the Protection of the Constitution, which is responsible for counter-intelligence, and the Federal Office for Information Security should have been informed so that they could intervene. There also should have been discussions between the government ministers and the chancellor in order to raise government awareness about the issue. And, going by the maxim the chancellor would formulate two years later, Merkel should have had a word with the Americans along the lines of “Spying among friends is not acceptable.”

And against the media.

If it is true that a foreign intelligence agency spied on journalists as they conducted their reporting in Germany and then informed the Chancellery about it, then these actions would place a huge question mark over the notion of a free press in this country. Germany’s highest court ruled in 2007 that press freedom is a “constituent part of a free and democratic order.” The court held that reporting can no longer be considered free if it entails a risk that journalists will be spied on during their reporting and that the federal government will be informed of the people they speak to.

“Freedom of the press also offers protection from the intrusion of the state in the confidentiality of the editorial process as well as the relationship of confidentiality between the media and its informants,” the court wrote in its ruling. Freedom of the press also provides special protection to the “the secrecy of sources of information and the relationship of confidentiality between the press, including broadcasters, and the source.”

Criminalizing Journalism

But Karlsruhe isn’t Washington. And freedom of the press is not a value that gives American intelligence agencies pause. On the contrary, the Obama administration has gained a reputation for adamantly pursuing uncomfortable journalistic sources. It hasn’t even shied away from targeting American media giants.

In spring 2013, it became known that the US Department of Justice mandated the monitoring of 100 telephone numbers belonging to the news agency Associated Press. Based on the connections that had been tapped, AP was able to determine that the government likely was interested in determining the identity of an important informant. The source had revealed to AP reporters details of a CIA operation pertaining to an alleged plot to blow up a commercial jet.

The head of AP wasn’t the only one who found the mass surveillance of his employees to be an “unconstitutional act.” Even Republican Senators like John Boehner sharply criticized the government, pointing to press freedoms guaranteed by the Bill of Rights. “The First Amendment is first for a reason,” he said.

But the Justice Department is unimpressed by such formulations. New York Times reporter James Risen, a two-time Pulitzer Prize winner, was threatened with imprisonment for contempt of court in an effort to get him to turn over his sources — which he categorically refused to do for seven years. Ultimately, public pressure became too intense, leading Obama’s long-time Attorney General Eric Holder to announce last October that Risen would not be forced to testify.

The Justice Department was even more aggressive in its pursuit of James Rosen, the Washington bureau chief for TV broadcaster Fox. In May 2013, it was revealed that his telephone was bugged, his emails were read and his visits to the State Department were monitored. To obtain the necessary warrants, the Justice Department had labeled Rosen a “criminal co-conspirator.”

The strategy of criminalizing journalism has become something of a bad habit under Obama’s leadership, with his government pursuing non-traditional media, such as the whistleblower platform WikiLeaks, with particular aggression.

Bradley Manning, who supplied WikiLeaks with perhaps its most important data dump, was placed in solitary confinement and tormented with torture-like methods, as the United Nations noted critically. Manning is currently undergoing a gender transition and now calls herself Chelsea. In 2013, a military court sentenced Manning, who, among other things, publicized war crimes committed by the US in Iraq, to 35 years in prison.

In addition, a criminal investigation has been underway for at least the last five years into the platform’s operators, first and foremost its founder Julian Assange. For the past several years, a grand jury in Alexandria, Virginia has been working to determine if charges should be brought against the organization.

Clandestine Proceedings

The proceedings are hidden from the public, but the grand jury’s existence became apparent once it began to subpoena witnesses with connections to WikiLeaks and when the Justice Department sought to confiscate data belonging to people who worked with Assange. The US government, for example, demanded that Twitter hand over data pertaining to several people, including the Icelandic parliamentarian Brigitta Jonsdottir, who had worked with WikiLeaks on the production of a video. The short documentary is an exemplary piece of investigative journalism, showing how a group of civilians, including employees of the news agency Reuters, were shot and killed in Baghdad by an American Apache helicopter.

Computer security expert Jacob Appelbaum, who occasionally freelances for SPIEGEL, was also affected at the time. Furthermore, just last week he received material from Google showing that the company too had been forced by the US government to hand over information about him – for the time period from November 2009 until today. The order would seem to indicate that investigators were particularly interested in Appelbaum’s role in the publication of diplomatic dispatches by WikiLeaks.

Director of National Intelligence James Clapper has referred to journalists who worked with material provided by Edward Snowden has his “accomplices.” In the US, there are efforts underway to pass a law pertaining to so-called “media leaks.” Australia already passed one last year. Pursuant to the law, anyone who reveals details about secret service operations may be punished, including journalists.

Worries over ‘Grave Loss of Trust’

The German government isn’t too far from such positions either. That has become clear with its handling of the strictly classified list of “selectors,” which is held in the Chancellery. The list includes search terms that Germany’s foreign intelligence agency, the BND, used when monitoring telecommunications data on behalf of the NSA. The parliamentary investigative committee looking into NSA activity in Germany has thus far been denied access to the list. The Chancellery is concerned that allowing the committee to review the list could result in uncomfortable information making its way into the public.

That’s something Berlin would like to prevent. Despite an unending series of indignities visited upon Germany by US intelligence agencies, the German government continues to believe that it has a “special” relationship with its partners in America — and is apparently afraid of nothing so much as losing this partnership.

That, at least, seems to be the message of a five-page secret letter sent by Chancellery Chief of Staff Peter Altmaier, of Merkel’s Christian Democrats, to various parliamentary bodies charged with oversight. In the June 17 missive, Altmaier warns of a “grave loss of trust” should German lawmakers be given access to the list of NSA spying targets. Opposition parliamentarians have interpreted the letter as a “declaration of servility” to the US.

Altmaier refers in the letter to a declaration issued by the BND on April 30. It notes that the spying targets passed on by the NSA since 2005 include “European political personalities, agencies in EU member states, especially ministries and EU institutions, and representations of certain companies.” On the basis of this declaration, Altmaier writes, “the investigative committee can undertake its own analysis, even without knowing the individual selectors.”

Committee members have their doubts. They suspect that the BND already knew at the end of April what WikiLeaks has now released — with its revelations that the German Economics Ministry, Finance Ministry and Agriculture Ministry were all under the gaze of the NSA, among other targets. That would mean that the formulation in the BND declaration of April 30 was intentionally misleading. The Left Party and the Greens now intend to gain direct access to the selector list by way of a complaint to Germany’s Constitutional Court.

The government in Berlin would like to prevent exactly that. The fact that the US and German intelligence agencies shared selectors is “not a matter of course. Rather, it is a procedure that requires, and indicates, a special degree of trust,” Almaier writes. Should the government simply hand over the lists, Washington would see that as a “profound violation of confidentiality requirements.” One could expect, he writes, that the “US side would significantly restrict its cooperation on security issues, because it would no longer see its German partners as sufficiently trustworthy.”

Altmaier’s letter neglects to mention the myriad NSA violations committed against German interests, German citizens and German media.

Shhh… Latest Cyberattacks on US Government a Hoax – To Restore NSA Surveillance?

You may have read and heard about the latest cyberattacks on the US government (see video above) over the weekend? Reckon you can’t help wondering how coincidental this “incident” was, judging by the following Guardian article. Nice strategy, Congress??

Shhh… FBI Operate Surveillance Planes – With Fictitious Names and Video & Cellphone Technologies

Now the question is: how long has this been going on and is this a “Plan B” in the aftermath of the recent NSA Surveillance stand-down?

Find out more from the Guardian.

Shhh… What About Snowden Now with NSA Surveillance on Hold?

(Above) Photo credit: http://glenngreenwald.net/

Check out the following Guardian article:

Charges against Edward Snowden stand, despite telephone surveillance ban

The former NSA contractor revealed the banned surveillance programme, but an Obama administration spokesman says they will not review his charges

The White House refused to reconsider its legal pursuit of Edward Snowden on Monday, while it sought to take credit for outlawing the bulk telephone surveillance programme he revealed.

Obama administration spokesman Josh Earnest rejected the argument that the imminent passage of legislation banning the practice meant it was time to take a fresh look at the charges against the former National Security Agency contractor.

“The fact is that Mr Snowden committed very serious crimes, and the US government and the Department of Justice believe that he should face them,” Earnest told the Guardian at the daily White House press briefing.

“That’s why we believe that Mr Snowden should return to the United States, where he will face due process and have the opportunity to make that case in a court of law.”

Earnest refused to comment on whether Snowden could be allowed to employ a whistleblower defence if he choose to return voluntarily, something his supporters have argued is impossible under current Espionage Act charges.

“Obviously this is something that the Department of Justice would handle if they are having [those conversations],” said Earnest. “The thing I would put out is that there exists mechanisms for whistleblowers to raise concerns about sensitive national security programmes.”

“Releasing details of sensitive national security programmes on the internet for everyone, including our adversaries to see, is inconsistent with those protocols that are established for protecting whistleblowers,” he added.

But the White House placed itself firmly on the side of NSA reform, when asked if the president was “taking ownership” of the USA Freedom Act, which is expected to pass Congress later this week.

“To the extent that we’re talking about the president’s legacy, I would suspect [it] would be a logical conclusion from some historians that the president ended some of these programmes,” replied Earnest.

“This is consistent with the reforms that the president advocated a year and a half ago. And these are reforms that required the president and his team to expend significant amounts of political capital to achieve over the objection of Republicans.”

The administration also avoided four separate opportunities to warn that the temporary loss of separate Patriot Act surveillance provisions that expired alongside bulk collection on Sunday night had put the safety of Americans at risk, as some have claimed.

“All I can do is I can illustrate to you very clearly that there are tools that had previously been available to our national security professionals that are not available today because the Senate didn’t do their job,” said Earnest.

“As a result, there are programmes and tools that our national security professionals themselves say are important to their work that are not available to them right now, as we speak.”

Asked four times by reporters whether that meant Americans were markedly less safe as a result of the standoff in the Senate, the White House spokesman repeatedly said it was up to these national security staff, not him, to say.

How to Cope With File-Encrypting Ransomware Risks (After US Offer $3mn Award for GameOver Zeus creator Evgeniy Bogachev)?

It could be game over for Russian hacker Evgeniy Bogachev as the US State Department and FBI have issued a “Wanted” poster with a US$3 million reward for information leading to his arrest, the highest price the US authorities had ever placed on a head in a cyber case.

Wanted-Evgeniy Bogachev2

Bogachev, apparently still in Russia, was charged by the US for running a computer attack called GameOver Zeus that has allegedly amassed in excess of US$100 million from online bank accounts of businesses and consumers in the US and around the world.

However, despite the taking down of the GameOver botnet and the demise of CryptoLocker, it’s not all over as new variants of file-encrypting ransomware still exist. The following screen is what you don’t want to see on your computer monitor.

CryptoDefense

Check out this nice article about how to protect yourself from ransomware with the Sophos Virus Removal Tool.

I have an easier, effective and unorthodox solution, which I have mentioned in public lectures and previous columns.: changing your cyber lifestyle by having “naked” computers, i.e. not storing a single file in the computer hard disks, apart from the operating system and software program files.

In essence, I store all my files on an external encrypted hard disk and use either the 1 laptop or 2 laptops approach – with the former you alternate between online and offline depending on when you connect the external disk to the laptop and with the latter, you attach the external disk to a laptop that is offline (you can go one step further with the Snowden approach by using an “air gapped” computer, as he has recommended to Glenn Greenwald) and work online only with the other computer. The latter would come handy when on the road (even with the extra weight) as there are always risks with public (which one should always avoid) and hotel internet connections, spying walls, etc.

The US Senate Intelligence Committee & CIA Interrogation Report – A Closer Look at the Tortures at Guantanamo Bay

CIA-guantanamo

In view of the huge trove of news coverage following the release of the long overdue and highly anticipated CIA Interrogation report (the BBC has a nice summary of the 20 key findings) by the US Senate Intelligence Committee on Tuesday, I thought it is good to (re)view this UK’s Channel 4 “Guantanamo Handbook” documentary.

It is a reenactment of the tortures at one of the most well known US military prisons in Cuba called the Guantanamo Bay detention camp, also referred to as Guantánamo, G-bay or GTMO – whereby 7 British volunteered to be detainees and subjected to selected CIA-style tortures for 48 hours.

Most notably, one volunteer who started off saying he supported the torture program as a means to gather intelligence and save lives – as per White House speaks – was the first to withdraw on medical grounds after just 10 hours, saying even though he had “strong views” earlier, he has “become more sympathetic of what’s going on there than before” and felt lucky he was “pulled” (out of the program).

Action speaks louder than words? Period.

Shhh… DOJ Uses 18th Century Law to Make Apple Unlock Encrypted iPhones

It’s time to raise the antenna again on smartphone encryption matters.

Law enforcement agencies, particularly the FBI, have been desperately pressurizing the Congress to force Apple and Google to do away with their new default smartphone encryption. And authorities are apparently giving in.

According to an exclusive report by Ars Technica (below) earlier this week, court documents from 2 federal criminal cases in New York and California show the US Department of Justice on October 31 this year went as far as exercising a 18th century law – the All Writs Act – to compel Apple and at least one other company to cooperate with law enforcement officials in investigations dealing with locked and encrypted smartphones.

The 225-year-old law gives the courts the right to issue whatever writs or orders in order to compel someone to do something.

To the extent that Apple has recently beefed up encryption in its latest iOS 8, the fact that the DOJ would go to such absurd lengths might set worrying precedence – recall a recent ludicrous DOJ assertion that the new encryption standards would kill a child.

A more disturbing question: What would you do if you were FBI director James Comey making his rounds to denounce smartphone encryption?

Make the DOJ use the All Writs Act to force manufacturers to install convenient backdoors. Why not?

—————————————-

Feds want Apple’s help to defeat encrypted phones, new legal case shows

Prosecutors invoke 18th-century All Writs Act to get around thorny problem.
by Cyrus Farivar – Dec 1 2014, 10:00pm CST

OAKLAND, CA—Newly discovered court documents from two federal criminal cases in New York and California that remain otherwise sealed suggest that the Department of Justice (DOJ) is pursuing an unusual legal strategy to compel cellphone makers to assist investigations.

In both cases, the seized phones—one of which is an iPhone 5S—are encrypted and cannot be cracked by federal authorities. Prosecutors have now invoked the All Writs Act, an 18th-century federal law that simply allows courts to issue a writ, or order, which compels a person or company to do something.

Some legal experts are concerned that these rarely made public examples of the lengths the government is willing to go in defeating encrypted phones raise new questions as to how far the government can compel a private company to aid a criminal investigation.

Two federal judges agree that the phone manufacturer in each case—one of which remains sealed, one of which is definitively Apple—should provide aid to the government.

Ars is publishing the documents in the California case for the first time in which a federal judge in Oakland specifically notes that “Apple is not required to attempt to decrypt, or otherwise enable law enforcement’s attempts to access any encrypted data.”

The two orders were both handed down on October 31, 2014, about six weeks after Apple announced that it would be expanding encryption under iOS 8, which aims to render such a data handover to law enforcement useless. Last month, The Wall Street Journal reported that DOJ officials told Apple that it was “marketing to criminals” and that “a child will die” because of Apple’s security design choices.

Apple did not immediately respond to Ars’ request for comment.

Meet the “All Writs Act”

Alex Abdo, an attorney with the American Civil Liberties Union, wondered if the government could invoke the All Writs Act to “compel Master Lock to come to your house and break [a physical lock] open.”

“That’s kind of like the question of could the government compel your laptop maker to unlock your disk encryption?” he said. “And I think those are very complicated questions, and if so, then that’s complicated constitutional questions whether the government can conscript them to be their agents. Then there’s one further question: can the government use the All Writs Act to compel the installation of backdoors?”

But, if Apple really can’t decrypt the phone as it claims, the point is moot.

“Then that’s pretty much the end of it,” Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, told Ars. “The writ doesn’t require Apple to do something that is impossible for it to do.”

Andrew Crocker, a legal fellow also at the Electronic Frontier Foundation, pointed out on Twitter on Tuesday that back in 2005, a different New York magistrate refused to accept the government’s invocation of the All Writs Act to obtain real-time cell site data.

As Magistrate Judge James Orenstein wrote at the time:

Thus, as far as I can tell, the government proposes that I use the All Writs Act in an entirely unprecedented way. To appreciate just how unprecedented the argument is, it is necessary to recognize that the government need only run this Hail Mary play if its arguments under the electronic surveillance and disclosure statutes fail.

The government thus asks me to read into the All Writs Act an empowerment of the judiciary to grant the executive branch authority to use investigative techniques either explicitly denied it by the legislative branch, or at a minimum omitted from a far-reaching and detailed statutory scheme that has received the legislature’s intensive and repeated consideration. Such a broad reading of the statute invites an exercise of judicial activism that is breathtaking in its scope and fundamentally inconsistent with my understanding of the extent of my authority.

“Any capabilities [Apple] may have to unlock the iPhone”

One of the new phone search cases was filed in federal court in Oakland, just across the bay from San Francisco, while another was filed in federal court in Manhattan.

In the Oakland case, prosecutors asked a federal judge in to “assist in the execution of a federal search warrant by facilitating the un-locking of an iPhone.”

Ars went in person to the Oakland courthouse on Wednesday to obtain the documents and is publishing both the government’s application and the judge’s order for the first time here. The All Writs Act application and order are not available via PACER, the online database for federal court records.

“This Court has the authority to order Apple, Inc., to use any capabilities it may have to unlock the iPhone,” Garth Hire, an assistant US attorney, wrote to the court and cited the All Writs Act.

“The government is aware, and can represent, that in other cases, courts have ordered the unlocking of an iPhone under this authority,” he wrote. “Additionally, Apple has routinely complied with such orders.”

“This court should issue the order because doing so would enable agents to comply with this Court’s warrant commanding that the iPhone be examined for evidence identified by the warrant,” he continued. “Examination of the iPhone without Apple’s assistance, if it is possible at all, would require significant resources and may harm the iPhone. Moreover, the order is not likely to place any unreasonable burden on Apple.”

In response, Magistrate Judge Kandis Westmore ordered that Apple “provide reasonable technical assistance to enable law enforcement agents to obtain access to unencrypted data.” She did not specifically mention the All Writs Act.

But she added:


It is further ordered that, to the extent that data on the iOS device is encrypted, Apple may provide a copy of the encrypted data to law enforcement but Apple is not required to attempt to decrypt, or otherwise enable law enforcement’s attempts to access any encrypted data.

Westmore’s language is a near-duplicate of a June 6, 2014 order issued by a different judge from the Northern California district, San Jose division, which is about 40 miles south of Oakland. There, Magistrate Judge Howard Lloyd ordered Apple to assist in the search of an iPad Mini, months before the release of iOS 8.

New spying tools afoot

On Tuesday, The Wall Street Journal reported on an order issued by a federal magistrate in New York in a case involving alleged credit card fraud.

In that Manhattan case, Magistrate Judge Gabriel Gorenstein granted the government’s proposed order on the same day as Westmore (October 31, 2014), also citing the All Writs Act, which compels the unnamed phone manufacturer to provide “reasonable technical assistance” in unlocking the device.

The mystery company could challenge the judge’s order, according to Brian Owsley, a former federal magistrate judge who now is a law professor at Indiana Tech.

“Unfortunately, we will probably not know because the issue will likely be sealed even though there should be more transparency in these issues,” he told Ars by e-mail, noting that during his tenure on the bench he could not remember a time when the government invoked the All Writs Act.

“It is only through greater transparency will we start to get the answers. If the provider simply complies we will know nothing. Here, Judge Gorenstein’s approach strikes me as very even-handed, but the inherent problem is that those who are concerned about privacy issues in general simply have to hope that the provider will speak up for us.”

But Orin Kerr, a law professor at George Washington University and a former federal prosecutor, does not believe that the seized phone in the New York case was an iOS 8 device.

“The government obtained a warrant on October 10 for a phone already in its possession,” he told Ars by e-mail. “Apple’s announcement was something like September 18. If it was an iPhone, it was probably an iPhone running [on] an earlier operating system.”

Still, Alex Abdo, the ACLU attorney, after reading a copy of the Oakland documents, concluded that the “government’s application raises troubling questions about the extent to which it can force companies to break the products they sell.”

“We are heartened, however, that the court recognized that possibility and stopped short of ordering Apple to come up with a way to decrypt its customers’ data,” he added.

“More broadly, it is disconcerting that the government is relying on a catch-all law to seek surveillance powers that it should be seeking from Congress and the public,” said Abdo. “If the government wants new spying tools, it should allow our democratic process to debate them openly first.”

UPDATE 1:50pm CT: Jonathan Mayer, a lecturer at Stanford Law, said that use of the All Writs Act is not as novel as it may seem. (He recommended his recent lecture on the subject!)

“The TL;DR is that there is nothing new about using the All Writs Act to compel assistance,” Mayer told Ars by e-mail. “And there is also nothing new about using it to compel assistance with unlocking a phone. That repeated language you saw? It’s provided by Apple itself!”

“As for the opinion discounting the All Writs Act, that had to do with surveillance under the Electronic Communications Privacy Act. Where ECPA applies, the All Writs Act doesn’t. (It’s just a default, as the court rightly noted.) Phone unlocking isn’t covered by ECPA, so the All Writs Act remains in play.”

The Spying Game

Spies in the newsroom? Or spying on newsrooms? There’s far too much of both

(The Inside Story of the Bloomberg Spying Scandal – and Snooping on the Associated Press – and Some Remedies.)

I often get strange, tough questions from the clients of my business intelligence and commercial investigation firm, but the recent bombardments highlight a new trend: bloated or irrational paranoia, depending on your take.

Should I stop using emails? Would you recommend a personal VPN? Is it safer to discuss in person than over an electronic device?

Just last week, one client pondered whether he should be using the Bloomberg terminal and another questioned if his phone, video and Skype calls were safe. I can’t blame them. Just look at the headline news the past week alone…

Please read the full column here.