The FBI is Playing Politics with Your Privacy

A bombshell report from WIRED reveals that two days after the U.S. Congress renewed and expanded the mass-surveillance authority Section 702 of the Foreign Intelligence Surveillance Act, the deputy director of the Federal Bureau of Investigation (FBI), Paul Abbate, sent an email imploring agents to “use” Section 702 to search the communications of Americans collected under this authority “to demonstrate why tools like this are essential” to the FBI’s mission.

In other words, an agency that has repeatedly abused this exact authority—with 3.4 million warrantless searches of Americans’ communications in 2021 alone, thinks that the answer to its misuse of mass surveillance of Americans is to do more of it, not less. And it signals that the FBI believes it should do more surveillance–not because of any pressing national security threat—but because the FBI has an image problem.

The American people should feel a fiery volcano of white hot rage over this revelation. During the recent fight over Section 702’s reauthorization, we all had to listen to the FBI and the rest of the Intelligence Community downplay their huge number of Section 702 abuses (but, never fear, they were fixed by drop-down menus!). The government also trotted out every monster of the week in incorrect arguments seeking to undermine the bipartisan push for crucial reforms. Ultimately, after fighting to a draw in the House, Congress bent to the government’s will: it not only failed to reform Section 702, but gave the government authority to use Section 702 in more cases.

Now, immediately after extracting this expanded power and fighting off sensible reforms, the FBI’s leadership is urging the agency to “continue to look for ways” to make more use of this controversial authority to surveil Americans, albeit with the fig leaf that it must be “legal.” And not because of an identifiable, pressing threat to national security, but to “demonstrate” the importance of domestic law enforcement accessing the pool of data collected via mass surveillance. This is an insult to everyone who cares about accountability, civil liberties, and our ability to have a private conversation online. It also raises the question of whether the FBI is interested in keeping us safe or in merely justifying its own increased powers.

Section 702 allows the government to conduct surveillance inside the United States by vacuuming up digital communications so long as the surveillance is directed at foreigners currently located outside the United States. Section 702 prohibits the government from intentionally targeting Americans. But, because we live in a globalized world where Americans constantly communicate with people (and services) outside the United States, the government routinely acquires millions of innocent Americans’ communications “incidentally” under Section 702 surveillance. Not only does the government acquire these communications without a probable cause warrant, so long as the government can make out some connection to FISA’s very broad definition of “foreign intelligence,” the government can then conduct warrantless “backdoor searches” of individual Americans’ incidentally collected communications. 702 creates an end run around the Constitution for the FBI and, with the Abbate memo, they are being urged to use it as much as they can.

The recent reauthorization of Section 702 also expanded this mass surveillance authority still further, expanding in turn the FBI’s ability to exploit it. To start, it substantially increased the scope of entities who the government could require to turn over Americans’ data in mass under Section 702. This provision is written so broadly that it potentially reaches any person or company with “access” to “equipment” on which electronic communications travel or are stored, regardless of whether they are a direct provider, which could include landlords, maintenance people, and many others who routinely have access to your communications.

The reauthorization of Section 702 also expanded FISA’s already very broad definition of “foreign intelligence” to include counternarcotics: an unacceptable expansion of a national security authority to ordinary crime. Further, it allows the government to use Section 702 powers to vet hopeful immigrants and asylum seekers—a particularly dangerous authority which opens up this or future administrations to deny entry to individuals based on their private communications about politics, religion, sexuality, or gender identity.

Americans who care about privacy in the United States are essentially fighting a political battle in which the other side gets to make up the rules, the terrain…and even rewrite the laws of gravity if they want to. Politicians can tell us they want to keep people in the U.S. safe without doing anything to prevent that power from being abused, even if they know it will be. It’s about optics, politics, and security theater; not realistic and balanced claims of safety and privacy. The Abbate memo signals that the FBI is going to work hard to create better optics for itself so that it can continue spying in the future.

Source: The FBI is Playing Politics with Your Privacy | Electronic Frontier Foundation

The FBI is Playing Politics with Your Privacy

The FBI’s Lawless Raid on U.S. Private Vaults Shows Why the Founders Created the Fourth Amendment

A squad of FBI and Drug Enforcement Administration agents in March 2021 raided the Beverly Hills location of a company, U.S. Private Vaults, suspected of criminal activity.

Over several days, agents wearing masks photographed evidence, seized jewels, gold bullion, and coins, and confiscated some contraband (mostly drugs) from 1,400 safe-deposit boxes rented by an array of people, including a retired doctor, a saxophone player, a retired floor contractor, and at least two attorneys. 

The grand total seized by the FBI was $86 million in cold cash, as well as Rolex and Cartier watches, rare coins, and more silver and gold than even Yukon Cornelius could imagine.

U.S. Private Vaults, which was headquartered in Nevada, pleaded guilty to charges of money laundering and conspiracy the following year. (No one went to prison, and the company is no longer in business.) But it turns out U.S. Private Vaults wasn’t the only party that broke the law. 

Last month, the U.S. 9th Circuit Court of Appeals ruled that the bureau violated the constitutional rights of safe-deposit box holders whose property was seized without probable cause, something the warrant explicitly prohibited.

To understand just how far the FBI overstepped its authority, it’s worth examining the case of Don Mellein, a retired civil servant from California. 

Mellein was one of hundreds of people who had a safe-deposit box at U.S. Private Vaults, where he kept hundreds of thousands of dollars of coins for safekeeping. 

When the FBI raided U.S. Private Vaults, it didn’t just search Mellein’s safe-deposit box. It seized his coins, something the FBI had explicitly said it wouldn’t do when it requested a warrant to raid U.S. Private Vaults (more on that in a minute).

Numerous other plaintiffs such as Mellein had their property taken simply because they were unlucky enough to have entrusted it to a company that was involved in some degree of criminal activity.

That the FBI had the chutzpah to ignore the judge’s warrant, which explicitly “d[id] not authorize a criminal search or seizure of box contents,” did not sit well with the court. 

Judges called the seizures “egregious” and “outrageous” during oral arguments, comparing them to the Revolutionary War practices of the British, who would search and seize the property of colonials without probable cause.

“It was those very abuses of power,” the 9th Circuit Court noted, “that led to adoption of the Fourth Amendment in the first place.”

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” but it’s something for which the FBI agents had little regard.

Indeed, depositions from FBI agents suggest that “forfeiting” the property of safe-deposit box holders — some would call it “stealing” — was the FBI’s plan from the very beginning. 

Excerpts of those depositions, which can be read at the Los Angeles Times and Reason, make it clear that the FBI had been planning a massive asset forfeiture operation months prior to filing its affidavit with U.S. Magistrate Judge Steve Kim.

They also reveal that the FBI had been planning all along to seize the contents of all safe-deposit boxes, so long as they contained at least $5,000 (the minimum established by the Justice Department’s Asset Forfeiture Policy Manual). Testimony makes it clear the FBI was not particularly concerned whether these people were actually criminals, or that the agent who submitted the affidavit had assured Kim that the property rights of customers would be respected.

We only know all of this because a judge denied a request from the U.S. attorney’s office — surprise, surprise — to block disclosure of those depositions, laying “bare the government’s deception,” in the words of the Los Angeles Times reporter Michael Finnegan. 

To call the FBI’s actions deceptive is an understatement. 

Finnegan’s reporting shows FBI agents and U.S. attorneys behaving in almost mafialike fashion, demanding bank records, tax returns, and sworn statements from safe-deposit box holders and their family members — just to get their own money back!

When you read how a U.S. attorney asked a glassmaker’s lawyer how much his client was willing to pay the feds to give him his money back, you realize the 9th Circuit was not engaging in hyperbole. The FBI’s raid is not dissimilar to the “writs of assistance” that permitted Red Coats “to break open doors, Chests, Trunks, and other Packages” to find contraband or “stolen” items, a practice despised by the Colonials. 

“It is a power that places the liberty of every man in the hands of every petty officer,” the 18th century statesman James Otis said in a famous speech against the writs, which led to the eventual adoption of the Fourth Amendment. 

The question now is: Who will be held accountable for the FBI’s lawless, shameless raid?

This article first appeared in The Washington Examiner.

Jon Miltimore

Jonathan Miltimore is the Editor at Large of FEE.org at FEE.

This article was originally published on FEE.org. Read the original article.

The FBI’s Lawless Raid on U.S. Private Vaults Shows Why the Founders Created the Fourth Amendment

Trump’s FBI Pick Has a Troubling History on Digital Liberties

President Donald Trump’s pick to lead the FBI, Christopher Wray, will begin his confirmation process next week, giving lawmakers an opportunity to press him on his previous statements about expansive surveillance authorities and aggressive copyright prosecution.

Defense of the USA PATRIOT Act

During his tenure as Assistant Attorney General in the Bush Administration, Wray vocally defended a range of controversial provisions in the USA PATRIOT Act—including Section 215, which would later provide the basis for the bulk collection of Americans’ telephone metadata.

When Wray went before the Senate Judiciary Committee in 2003 to defend the PATRIOT Act, a Department of Justice document indicated that Section 215’s business records provision had never been used. Wray insisted that was a sign of restraint: “We try to use these provisions sparingly, only in those instances where we feel that this is the only tool that we can use.” In fact, as the Privacy and Civil Liberties Oversight Board (PCLOB) made clear in its report on the bulk metadata program, Section 215 was sitting fallow because the Bush Administration was already collecting much of that data—without statutory authorization.

Granted, Wray didn’t have all of the information about that secretive wiretapping program until 2004, which we’ll get into below. Still, his insistence that Section 215 was just an effort to bring counterterrorism powers in line with ordinary criminal authorities reflected a concerning lack of skepticism about the risk of abuse. The same holds for his defense of a range of other PATRIOT Act provisions: “sneak and peek” warrants that allow law enforcement to search first and serve notice later; a reduced bar for obtaining a FISA warrant that one district court later found inconsistent with the Fourth Amendment; and a vaguely worded expansion of the kind of Internet data, some of it potentially very sensitive, that can be collected with a pen/trap order.

Experience teaches that broad grants of surveillance authority are invariably abused, as the PATRIOT Act has been. During Wray’s confirmation process, lawmakers should press him on his insistence that the Act “helped preserve and protect liberty and freedom, not erode them.”

Outstanding Questions about STELLARWIND

President Bush’s sweeping constellation of warrantless surveillance programs, codenamed STELLARWIND, played a key role in the mythos that surrounded the last two FBI Directors. Wray was reputedly one of the senior Justice Department officials ready to resign if then-Deputy Attorney General James Comey chose to do so over STELLARWIND’s legality—though Wray himself wasn’t aware of its existence at the time. Wray has since praised then-FBI Director Bob Mueller’s willingness to challenge President Bush over those surveillance programs, telling WIRED, “I think that the great thing about [people with] strong moral compasses is that they don’t have to hand-wring. When they’re uncomfortable, they know what they have to do.”

But when Wray was confronted with a constitutional concern about those intelligence efforts, his response, as reflected in a 2009 inspector general report, seems to have been underwhelming. Wray was read into STELLARWIND in 2004 to address concerns that the government—in working to preserve the spying program’s secrecy—was failing to disclose potentially exculpatory material to which criminal defendants were entitled under the Constitution. As the Justice Department’s Inspector General later found, “[T]he Department made little effort to understand and comply with its discovery obligations with Stellar Wind-derived information for the first several years of the program.” What legal analysis had been conducted was, the IG would later write, “factually flawed and inadequate.”

Wray and another attorney in the Justice Department’s Criminal Division were tasked with reviewing it. But beyond ordering the other attorney to write a memo of his own, it’s not clear Wray took any action to remedy the problem. While the memo recommended further research, there seems to have been no follow up. Four years after Wray left the Justice Department, its Inspector General would write that efforts to comply with the Constitution and other legal responsibilities “are not complete and do not fully ensure that the government has met its discovery obligations.”

Before he’s given the top job at the country’s law enforcement agency, Wray should have to square his praise for officials willing to challenge unconstitutional surveillance with his apparent inaction on a constitutional question about the rights of defendants swept up in spying programs.

Aggressive Copyright Prosecutions

As Assistant Attorney General for the Criminal Division, Wray also oversaw and touted the Justice Department’s aggressive prosecutions for intellectual property infringement, some of them alarmingly trivial. In 2004, for instance, Wray named a guilty plea from a defendant who shared a pre-release copy of “The Hulk” in a chat room as one of the most significant intellectual property prosecutions of the year. That emphasis seems disproportionate, to say the least. As Senator Leahy put it in the same Judiciary Committee hearing, “That movie sank like a rock at the box office. Within a couple of weeks, they probably could not have given away the copies.” Still, the impact on the defendant was very real—including six months’ home confinement.

In a climate in which copyright law is increasingly abused to chill and deter speech online, Wray’s past comments are cause for concern. Lawmakers should press him to commit to reasonable enforcement and respect for free expression protections.

An Obligation to Explain—and Reconsider

If confirmed, Christopher Wray will lead an agency with vast power to intrude on fundamental digital liberties. During his last tour in government service, he expressed views that should concern everyday Internet users. During this upcoming confirmation process, we expect lawmakers to review Wray’s record, and we hope he will disavow some of his more dangerous views on the government surveillance activities that we know to violate our core civil liberties.

FBI pushes for more power to crush your privacy

FBI pushes for more power to crush your privacy


With a treasure trove of digital information tantalizingly within reach, the FBI doesn't want to be slowed down by inconveniences like Fourth Amendment protections. So frustrated is FBI chief James Comey by constitutional limits that he told the Senate Intelligence Committee that the FBI's difficulty in getting its hands on Americans' online communications resulted from a "typo" in the law that should be changed. He may get his wish.

That pesky Fourth Amendment

Comey's campaign against encryption may have stalled, but his push to expand the agency's use of warrantless searches got a couple of assists recently. The FBI uses an extraordinary search procedure known as National Security Letters (NSLs) to obtain Americans' bank and phone records without a court order. NSLs not only compel companies to provide the information, they come with gag orders that forbid companies from disclosing the requests. Talk about a process ripe for abuse.

Various aspects of NSLs have been ruled unconstitutional, but still they persist. The Electronic Frontier Foundation and other civil rights groups have fought for years to spread awareness about the boom in NSL searches and push for greater accountability and oversight of the process. "NSLs have a sordid history. They've been abused in a number of ways, including ... targeting of journalists," Andrew Crocker, staff attorney for the EFF, told The Intercept.

But the Senate Intelligence Committee last week passed a bill that would expandtheir reach. A provision in the 2017 Intelligence Authorization Act would allow the FBI to use NSLs to obtain "electronic communication transactional records" -- one of those deliciously vague terms that could include email subject lines and metadata, Web browsing histories, and more.

The lone dissenting committee vote against the bill came from Oregon Senator Ron Wyden. The bill's NSL provision "takes a hatchet to important protections for Americans' liberty," Wyden said after the vote. "This bill would mean more government surveillance of Americans, less due process, and less independent oversight of U.S. intelligence agencies. Worse, neither the intelligence agencies nor the bill's sponsors have shown any evidence that these changes would do anything to make Americans more secure."

You say reform, I say surveillance

Meanwhile, Senate Majority Whip John Cornyn has inserted a similar NSL-expansion provision into -- ironically -- a bill aimed at amending the Electronic Communications Privacy Act (ECPA) to incorporate more protections for electronic communications. When the law was written in 1986, few people used email or cloud computing, and such communications were considered "abandoned" after 180 days. The Email Privacy Act would require the government to obtain warrants before forcing tech companies to turn over these older emails stored in the cloud.

The House of Representatives passed a companion bill by a unanimous vote, but this and other amendments to the Senate bill seem intended to act as a poison pill to prevent reform of the ECPA.

"If [the NSL provision] is added to ECPA, it'll kill the bill," Gabe Rottman, deputy director of the Center for Democracy and Technology's freedom, security, and technology project, told The Intercept. "If it passes independently, it'll create a gaping loophole. Either way, it's a big problem and a massive expansion of government surveillance authority."

Party like it's "Nineteen Eighty-Four"

The prospect of Big Brother pawing through all of our electronic activities has understandably made many a tad paranoid. But as Joseph Heller said, "Just because you're paranoid doesn't mean they aren't after you." A recent study from Oxford University found that Edward Snowden's revelations about government surveillance has had a "chilling effect" on Americans' Internet habits, including a 20 percent decline in page views on Wikipedia articles related to terrorism.

"This is measuring regular people who are being spooked by the idea of government surveillance online," researcher Jon Penney told the Washington Post. "You want to have informed citizens. If people are spooked or deterred from learning about important policy matters like terrorism and national security, this is a real threat to proper democratic debate."

Desirable or not, it's possible to change our online habits to avoid government surveillance. Changing our biometric markers? Not so much (sorry, writers of "Face/Off"). And since 2008 the FBI has assembled a massive database of Americans' biometric information called Next Generation Identification (NGI), which has more than 100 million individual records that include fingerprints, facial recognition, iris scans, and palm prints from 52 million-plus people.

All of this data was collected not only during arrests, but from millions of Americans for noncriminal reasons like background checks and state licensing requirements. As the EFF notes, some states require your prints if you want to be a dentist, accountant, teacher, geologist, realtor, lawyer, or even an optometrist. And all jobs with the federal government -- not only those with security clearances -- require a fingerprint check, even part-time food service workers, student interns, and maintenance workers, as well as everyone who has served in any capacity in the military.

"While federal officials and law enforcement hail the NGI program as a futuristic way to track terrorists and criminals, others have been notably less enthusiastic,"International Business Times reports. "In the name of security and public safety, many advocates say the U.S. government is increasing its surveillance, through programs like NGI, on everyday citizens who have done nothing wrong."

Building the Eye of Sauron

Now the FBI wants to exempt this creepy collection of personal data from the federal Privacy Act, which guarantees basic protections such as allowing individuals to view their own records -- even though, as Breitbart notes, there have been complaints about the database's accuracy, with false positives generated 20 percent of the time.

 Source: FBI pushes for more power to crush your privacy | InfoWorld

FBI might have way to unlock attacker’s iPhone without Apple

FBI might have way to unlock attacker’s iPhone without Apple


A much-anticipated court hearing on the federal government’s effort to force Apple Inc. to unlock the iPhone used by one of the shooters in the San Bernardino terror attack was abruptly vacated Monday after the FBI revealed it may have a way to access data without the company’s help.

Federal prosecutors made the surprising announcement on the eve of Tuesday’s hearing in U.S. District Court in Riverside, California. In court papers they said the FBI has been researching methods to access the data on Syed Rizwan Farook’s encrypted phone since obtaining it on Dec. 3, the day after the attack.

“An outside party” came forward over the weekend and showed the FBI a possible method, the government said in court papers requesting the hearing be postponed. Authorities need time to determine “whether it is a viable method that will not compromise data” on the phone.

If viable, “it should eliminate the need for the assistance from Apple,” according to the filing.

The government did not identify the third party or explain what the proposed method entailed.

Magistrate Judge Sheri Pym granted that request and ordered the government to file a status report by April 5. Pym also stayed her Feb. 16 order compelling Apple to create software that would disable security features on the phone, including one that erases all information if a passcode is incorrectly entered more than 10 times.

In a conference call with reporters, Apple attorneys said it’s premature to declare victory in the case because it’s possible that authorities could come back in a few weeks and insist they still need the company’s help. The attorneys spoke under an Apple policy that wouldn’t allow them to be quoted by name.

The company hopes the government will tell Apple about whatever method it uses to access the phone’s encrypted files. But the attorneys said it may be up to the FBI to decide whether to share the information.

The fact that a third party may have found a way into the phone without Apple’s help appears to contradict every sworn affidavit and filing put that the Justice Department has put forward in the last month. The government has argued in each of its filings that Apple’s help is necessary and that the company was the only entity that could provide investigators with what was needed.

FBI Director James Comey told the House Judiciary Committee in sworn testimony earlier this month that agency investigators had approached even the National Security Agency for help but did not have success.

Apple has previously said in court filings that the government did not exhaust all its options, and lawmakers have criticized the FBI for not doing more to try to crack the iPhone itself before seeking Apple’s help.

“To me, it suggests that either the FBI doesn’t understand the technology or they weren’t giving us the whole truth when they said there is no other possible way” of examining the phone without Apple’s help, said Alex Abdo, staff attorney for the American Civil Liberties Union. “Both of those are scary to me.”

The ACLU has filed a court brief supporting Apple’s position.

Robert Cattanach, a former U.S. Department of Justice attorney who handles cyber-security cases for the Dorsey & Whitney law firm, said the government would likely not have disclosed it had a lead on possibly unlocking the phone unless it was almost certain the method would work. That’s because the disclosure weakens the government’s case by introducing doubt that it could only access the phone with Apple’s help, he said.

“They’ve created ambiguity in a place where they’ve previously said there is none,” he said.

Prosecutors have argued that the phone used by Farook probably contains evidence of the Dec. 2 attack in which the county food inspector and his wife, Tashfeen Malik, slaughtered 14 at a holiday luncheon attended by many of his work colleagues. The two were killed in a police shootout hours later.

The FBI has said the couple was inspired by the Islamic State group. Investigators still are trying to piece together what happened and find out if there were collaborators.

The couple destroyed other phones they left behind, and the FBI has been unable to circumvent the passcode needed to unlock the iPhone, which is owned by San Bernardino County and was given to Farook for his job.

Apple has argued that the government was seeking “dangerous power” that exceeds the authority of the All Writs Act of 1789 it cited, and violates the company’s constitutional rights, harms the Apple brand and threatens the trust of its customers to protect their privacy. The 18th-century law has been used on other cases to require third parties to help law enforcement in investigations.

It’s not clear what method the government now wants to test. But even as the FBI has insisted that only Apple is able to provide the help it needs, some technical experts have argued there are other options.

The most viable method involves making a copy of the iPhone’s flash memory drive, said Jonathan Zdziarski, a computer expert who specializes in iPhone forensics. That would allow investigators to make multiple tries at guessing the iPhone’s passcode. A security feature in the phone is designed to automatically erase the data if someone makes 10 wrong guesses in a row.

But if that happens, Zdziarski said, investigators could theoretically restore the data from the backup copy they have created.

First They Came For the iPhones…

First They Came For the iPhones…


The FBI tells us that its demand for a back door into the iPhone is all about fighting terrorism, and that it is essential to break in just this one time to find out more about the San Bernardino attack last December. But the truth is they had long sought a way to break Apple’s iPhone encryption and, like 9/11 and the PATRIOT Act, a mass murder provided just the pretext needed. After all, they say, if we are going to be protected from terrorism we have to give up a little of our privacy and liberty. Never mind that government spying on us has not prevented one terrorist attack.

Apple has so far stood up to a federal government’s demand that it force its employees to write a computer program to break into its own product. No doubt Apple CEO Tim Cook understands the damage it would do to his company for the world to know that the US government has a key to supposedly secure iPhones. But the principles at stake are even higher. We have a fundamental right to privacy. We have a fundamental right to go about our daily life without the threat of government surveillance of our activities. We are not East Germany.

Let’s not forget that this new, more secure iPhone was developed partly in response to Ed Snowden’s revelations that the federal government was illegally spying on us. The federal government was caught breaking the law but instead of ending its illegal spying is demanding that private companies make it easier for it to continue.

Last week we also learned that Congress is planning to join the fight against Apple — and us. Members are rushing to set up yet another governmental commission to study how our privacy can be violated for false promises of security. Of course they won’t put it that way, but we can be sure that will be the result. Some in Congress are seeking to pass legislation regulating how companies can or cannot encrypt their products. This will suppress the development of new technology and will have a chilling effect on our right to be protected from an intrusive government. Any legislation Congress writes limiting encryption will likely be unconstitutional, but unfortunately Congress seldom heeds the Constitution anyway.

When FBI Director James Comey demanded a back door into the San Bernardino shooter’s iPhone, he promised that it was only for this one, extraordinary situation. “The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message,” he said in a statement last week. Testifying before Congress just days later, however, he quickly changed course, telling the Members of the House Intelligence Committee that the court order and Apple’s appeals, “will be instructive for other courts.” Does anyone really believe this will not be considered a precedent-setting case? Does anyone really believe the government will not use this technology again and again, with lower and lower thresholds?

According to press reports, Manhattan district attorney Cyrus Vance, Jr. has 175 iPhones with passcodes that the City of New York wants to access. We can be sure that is only the beginning.

Apple’s Involuntary Servitude

Apple’s Involuntary Servitude


After the San Bernardino massacre on Dec. 2, 2015, the FBI lawfully acquired the cellphone of one of the killers and persuaded a federal judge to authorize its agents to access the contents of the phone. Some of what it found revealed that the killer used the phone to communicate with victims and perhaps confederates and even innocents who unwittingly provided material assistance.

Then the FBI hit a wall. It appears that the killer took advantage of the phone’s encryption features to protect some of his data from prying eyes unarmed with his password.

The cellphone was an iPhone, designed and manufactured by Apple, the wealthiest publicly traded corporation on the planet. Apple built the iPhone so that its users can store sensitive, private, personal data on the phone without fear of being hacked by friend or foe.

After the FBI determined it could not replicate the killer’s password without jeopardizing the phone’s content, it approached Apple, and representatives of each negotiated for weeks trying to find a way for Apple to help the FBI without compromising the security of the Internet itself. They failed.

Apple has argued that the government has no legal right to compel it to assist in a government investigation, or to compel it to alter or destroy its business model of guaranteeing the safety and privacy of its customers’ data. Apple knows that any “key” it creates for the FBI, once used on the Internet, is itself vulnerable to hacking, thereby jeopardizing all Apple products and negating the privacy of tens of millions, and even exposing the government to foreign hackers.

The Department of Justice (DOJ) has argued that Apple has a legal duty to help solve the mystery of who knew about the San Bernardino attacks so that the guilty can be prosecuted and the rest of us protected from future harm. Its lawyers asserted that the government would keep secure whatever key Apple created.

After the DOJ/Apple talks broke down, the DOJ made a secret application on Feb. 16, 2016, two and a half months after the massacre, to a federal judge for a search warrant for this key to access the killer’s iPhone.

The warrant was improperly granted because Apple was not given notice of the DOJ application. So, the judge who issued the order denied Apple due process—its day in court. That alone is sufficient to invalidate the order. Were Apple a defendant in a criminal case or were Apple to possess hard evidence that could exonerate or help to convict, the secret application would have been justified.

But that is not the case here.

Instead, the DOJ has obtained the most unique search warrant I have ever seen in 40 years of examining them. Here, the DOJ has persuaded a judge to issue a search warrant for A THING THAT DOES NOT EXIST, by forcing Apple to create a key that the FBI is incapable of creating.

There is no authority for the government to compel a nonparty to its case to do its work, against the nonparty’s will, and against profound constitutional values. Essentially, the DOJ wants Apple to hack into its own computer product, thereby telling anyone who can access the key how to do the same.

If the courts conscripted Apple to work for the government and thereby destroy or diminish its own product, the decision would constitute a form of slavery, which is prohibited by our values and by the Thirteenth Amendment.

Yet, somewhere, the government has the data it seeks but will not admit to it, lest a myth it has foisted upon us all be burst. Since at least 2009, the government’s domestic spies have captured the metadata—the time, place, telephone numbers and duration of all telephone calls—as well as the content of telephone calls made in America under a perverse interpretation of the FISA statute and the Patriot Act, which a federal appeals court has since invalidated.

The DOJ knows where this data on this killer’s cellphone can be found, but if it subpoenas the National Security Agency (NSA), and the NSA complies with that subpoena, and all this becomes public, that will put the lie to the government’s incredible denials that it spies upon all of us all the time. Surely it was spying on the San Bernardino killers.

If We Can’t Trust Government, We Must Trust Technology

If We Can’t Trust Government, We Must Trust Technology


The showdown between Apple and the FBI is not, as many now claim, a conflict between privacy and security. It is a conflict about legitimacy.

America’s national security agencies insist on wielding unaccountable power coupled with “trust us, we’re the good guys”, but the majority of users have no such trust. Terrorism is real, and surveillance can sometimes help prevent it, but the only path to sustainable accommodation between technologies of secrecy and adequately informed policing is through a root-and-branch reform of the checks and balances in the national security system.

The most important principle that the Obama administration and Congress need to heed in this conflict is: “Physician, heal thyself.”

The FBI, to recap, is demanding that Apple develop software that would allow it to access the secure data on the work phone of one of the two perpetrators of the San Bernardino attack.

Apple has refused to do so, arguing that in order to build the ability to access this phone, it would effectively be creating a backdoor into all phones.

The debate is being publicly framed on both sides as a deep conflict between security and freedom; between the civil rights of users to maintain their privacy, and the legitimate needs of law enforcement and national security. Yet this is the wrong way to think about it.

The fundamental problem is the breakdown of trust in institutions and organizations. In particular, the loss of confidence in oversight of the American national security establishment.

It is important to remember that Apple’s initial decision to redesign its products so that even Apple cannot get at a user’s data was in direct response to the Snowden revelations. We learned from Snowden that the US national security system spent the years after 9/11 eviscerating the system of delegated oversight that had governed national security surveillance after Watergate and other whistleblower revelations exposed pervasive intelligence abuses in the 1960s and 70s.

Apple’s design of an operating system impervious even to its own efforts to crack it was a response to a global loss of trust in the institutions of surveillance oversight. It embodied an ethic that said: “You don’t have to trust us; you don’t have to trust the democratic oversight processes of our government. You simply have to have confidence in our math.”

This approach builds security in a fundamentally untrustworthy world.

Many people I know and admire are troubled by the present impasse. After all, what if you really do need information from a terrorist about to act, or a kidnapper holding a child hostage? These are real and legitimate concerns, but we will not solve them by looking in the wrong places. The FBI’s reliance on the All Writs Act from 1789 says: “I am the government and you MUST do as you are told!” How legitimate or illegitimate what the government does is irrelevant, so this logic goes, to the citizen’s duty to obey a legally issued order.

The problem with the FBI’s approach is that it betrays exactly the mentality that got us into the mess we are in. Without commitment by the federal government to be transparent and accountable under institutions that function effectively, users will escape to technology. If Apple is forced to cave, users will go elsewhere. American firms do not have a monopoly on math.

Ron Paul Delivers a Reality Check to Americans on Government Snooping

Ron Paul Delivers a Reality Check to Americans on Government Snooping


Apple Inc. (NASDAQ:AAPL) is in a feud with the U.S. Federal Bureau of Investigation (FBI). Some advocate Apple’s stance; others oppose it. Former Congressman and Libertarian Ron Paul is very clear on which side he stands.

In a heated interview with Trish Regan of Fox News, Ron Paul made a very vocal argument in Apple’s support. Upon being asked if he was on the side of the tech companies, the former congressman said, “I think the tech companies right now are on the side of liberty. They’re on the side of the people who would like to have their encryption protected.” (Source: “Ron Paul Says Apple ‘on Side of Liberty’ in Phone Feud With FBI,” Fox News, February 18, 2016.)

In response to Regan’s repeated grilling, Ron Paul said, “More people should look at this like a second amendment. You know the second amendment is there to protect us against tyranny and against our government.”

As Paul reiterated, “The government doesn’t have the right to snoop on us constantly.”

Upon getting badgered for supporting Apple’s stand against the government, Ron Paul explained, “This is telling Apple they have to produce a program that deactivates something that they have built into the system for millions and millions of people that the people want and paid for. So this is different than a simple subpoena and a simple a search warrant.”

“They want the lock and the key to do this eternally on everybody.” Ron Paul reminded viewers, “The encryption is there to protect the people against illegal snooping and to honor the constitution.”

Bear in mind that Apple is resisting the FBI’s demands to hack into the San Bernandino shooter Syed Farook’s “iPhone.” According to Apple, the FBI is demanding a “key” to the iPhone’s encryption code that will open a backdoor channel. As a consequence, Apple users will face the risk of privacy invasion in the future.

FBI flying surveillance aircraft over US cities; planes traced to fake companies

FBI flying surveillance aircraft over US cities; planes traced to fake companies


The FBI is operating a small air force with scores of low-flying planes across the country carrying video and, at times, cellphone surveillance technology — all hidden behind fictitious companies that are fronts for the government, The Associated Press has learned.

The planes’ surveillance equipment is generally used without a judge’s approval, and the FBI said the flights are used for specific, ongoing investigations. In a recent 30-day period, the agency flew above more than 30 cities in 11 states across the country, an AP review found.

Aerial surveillance represents a changing frontier for law enforcement, providing what the government maintains is an important tool in criminal, terrorism or intelligence probes. But the program raises questions about whether there should be updated policies protecting civil liberties as new technologies pose intrusive opportunities for government spying.

U.S. law enforcement officials confirmed for the first time the wide-scale use of the aircraft, which the AP traced to at least 13 fake companies, such as FVX Research, KQM Aviation, NBR Aviation and PXW Services. Even basic aspects of the program are withheld from the public in censored versions of official reports from the Justice Department’s inspector general.

“The FBI’s aviation program is not secret,” spokesman Christopher Allen said in a statement. “Specific aircraft and their capabilities are protected for operational security purposes.” Allen added that the FBI’s planes “are not equipped, designed or used for bulk collection activities or mass surveillance.”

But the planes can capture video of unrelated criminal activity on the ground that could be handed over for prosecutions.

Some of the aircraft can also be equipped with technology that can identify thousands of people below through the cellphones they carry, even if they’re not making a call or in public. Officials said that practice, which mimics cell towers and gets phones to reveal basic subscriber information, is rare.

Details confirmed by the FBI track closely with published reports since at least 2003 that a government surveillance program might be behind suspicious-looking planes slowly circling neighborhoods. The AP traced at least 50 aircraft back to the FBI, and identified more than 100 flights since late April orbiting both major cities and rural areas.

The FBI Used to Have Integrity. Now Agents Lie, Cheat, and Break the Law.

The FBI Used to Have Integrity. Now Agents Lie, Cheat, and Break the Law


Does the FBI manifest fidelity, bravery, and integrity, or does it cut constitutional corners in order to incriminate? Can the FBI cut the cable television lines to your house and then show up pretending to be the cable guy and install listening devices? Can FBI agents and technicians testify falsely and cause the innocent to be convicted, incarcerated and, in some cases, executed?

In 2014, FBI agents in Las Vegas were on the trail of Wei Seng Phua, whom they believed was running an illegal gambling operation out of his hotel room at Caesars Palace. Instead of following him, asking questions about him, and using other traditional investigative techniques, a few agents came up with the idea of planting a wiretap in Phua’s hotel room.

They bribed a hotel employee, who gave them access to a place in the hotel where they could disable the cable television wires to Phua’s room. When he called for repair, they showed up pretending to be cable guys, and he let them into his room. They repaired what they had disabled, but they also illegally wiretapped the phones in the room. Then they overheard his telephone conversations about his illegal gambling, and they arrested him. A grand jury indicted him based on what was overheard.

The grand jury was not told of the wire cutting and the con job, but a federal judge was. Last week, he criticized the FBI for conducting an illegal search of Phua’s room, in direct contravention of the Fourth Amendment, which the agents swore to uphold, and he barred the government from using the tapes of the telephone conversations as evidence against Phua. If the government can get away with this, he ruled, then constitutional guarantees are meaningless.

These lawless agents should have been indicted by a state grand jury for breaking and entering by false pretense, but Caesars declined to seek their prosecution. No surprise.

It was surprising, however, when the FBI was forced to admit last week that in the 1980s and 1990s, its agents and lab technicians who examined hair samples testified falsely in 257 of 268 cases that resulted in convictions. Of the convictions, 18 persons were sentenced to death, and of those, 12 have been executed.

FBI Holds Secret Meeting To Scare Congress Into Backdooring Phone Encryption

FBI Holds Secret Meeting To Scare Congress Into Backdooring Phone Encryption


In September, both Apple and Google announced plans to encrypt information on iOS and Android devices by default. Almost immediately, there was a collective freakout by law enforcement types. But, try as they might, these law enforcement folks couldn’t paint any realistic scenario of where this would be a serious problem. Sure, they conjured up scenarios, but upon inspection they pretty much all fell apart. Instead, what was clear was that encryption could protect users from people copying information off of phones without permission, and, in fact, the FBI itself recommends you encrypt the data on your phone.


But it didn’t stop FBI director James Comey from ignoring the advice of his own agency and pushing for a new law that would create back doors (he called them front doors, but when asked to explain the difference, he admitted that he wasn’t “smart enough” to understand the distinction) in such encryption.

FBI: new Apple, Google phones too secure, could put users 'beyond the law'

FBI: new Apple, Google phones too secure, could put users 'beyond the law'


The FBI director James Comey has expressed concern that Apple and Google are making phones that cannot be searched by the government.

Speaking to reporters in a briefing Thursday, Mr. Comey said he is worried that such phones could place users “beyond the law,” The Wall Street Journal reported. He added that he’s been in talks with the companies “to understand what they’re thinking and why they think it makes sense.”

FBI Director Says Apple and Google Are Putting Their Customers 'Beyond The Law'

FBI Director Says Apple and Google Are Putting Their Customers 'Beyond The Law'


It’s worth noting that earlier this year, law enforcement argued to the Supreme Court that it shouldn’t actually need that court order to search someone’s phone, but the high court disagreed.

Comey had already expressed concern about Apple’s new iCan’tOpenThisOS to the press last month, so I’d hoped that 60 Minutes interviewer Scott Pelley would push Comey more on what law enforcement might do to try to force Google and Apple’s hands. He did not, instead leaving the topic with Comey suggesting that Apple is making us all live in a more dangerous global neighborhood with its new encrypted operating system. Pelley failed to make the point that a locked trunk or locked home could have inside a hostage, a body, or contraband that needs to be seized. Phones can’t store those things for us (yet). They contain only our self-incriminating data.

Megalextoria: News and Politics » FBI: We need wiretap-ready Web sites

The FBI is asking Internet companies not to oppose a controversial proposal that would require firms, including Microsoft, Facebook, Yahoo, and Google, to build in backdoors for government surveillance.

via megalextoria.com

FBI classified information about OWS assassination plot

Only one month into the Occupy Wall Street demonstrations last year, plans were formulated to identify key figures in the movement and execute them with a coordinated assault using sniper rifles, new documents reveal.

The revelation -- discussed in a heavily redacted FBI memo unearthed late last month through a Freedom of Information Act request -- reveals that the Federal Bureau of Investigation was aware of plans for a violent assault on the peaceful protest movement but stayed silent on rumors of an assassination attempt only until now.

via megalextoria.com

FBI organizes almost all terror plots in the US

The report reveals that the FBI regularly infiltrates communities where they suspect terrorist-minded individuals to be engaging with others. Regardless of their intentions, agents are sent in to converse within the community, find suspects that could potentially carry out "lone wolf" attacks and then, more or less, encourage them to do so. By providing weaponry, funds and a plan, FBI-directed agents will encourage otherwise-unwilling participants to plot out terrorist attacks, only to bust them before any events fully materialize.

via megalextoria.com

FBI's abuse of the surveillance state is the real scandal needing investigation

But, as unwarranted and invasive as this all is, there is some sweet justice in having the stars of America’s national security state destroyed by the very surveillance system which they implemented and over which they preside. As Trevor Timm of the Electronic Frontier Foundation put it this morning: “Who knew the key to stopping the Surveillance State was to just wait until it got so big that it ate itself?

via megalextoria.com