NSA Goes From Saying Bulk Metadata Collection ‘Saves Lives’ To ‘Prevented 54 Attacks’ To ‘Well, It’s A Nice Insurance Policy’
By Mike Masnick | Techdirt | January 13, 2014
Want to know why no one trusts anything NSA officials and their defenders have to say any more? When the bulk metadata collection was first revealed, those defenders went on and on about how the program “saved countless lives” and was instrumental in stopping terrorist attacks. Some skeptics then asked what terrorist attacks, and we were told “around 50” though details weren’t forthcoming. Eventually, we were told that the real number was “54 terrorist events” (note: not attacks) and a review of them later revealed that basically none of them were legitimate. There was one “event” prevented via the program on US soil, and it was a taxi driver in San Diego sending some money to a terrorist group in Somalia, rather than an actual terrorist attack.
In fact, both judges and the intelligence task force seemed shocked at the lack of any actual evidence to support that these programs were useful.
And yet, the NSA and its defenders keep insisting that they’re necessary. Director of National Intelligence, James Clapper, a few months ago, tried out a new spin, claiming that effectiveness wasn’t the right metric, but rather “peace of mind.” Of course, the obvious response to that is to point out that spying on everyone makes most of us fairly uneasy, and we’d have a lot more “peace of mind” if they dropped the program.
And, now, the NSA number 2 guy, who’s about to retire, John C. “Chris” Inglis, gave a long interview with NPR, in which he is now claiming that even if the program hasn’t been particularly useful in the past, that “it’s a good insurance policy.”
“I’m not going to give that insurance policy up, because it’s a necessary component to cover a seam that I can’t otherwise cover.”
Basically, we want to keep this information because we want that information, even if it’s not been shown to be at all useful. Of course, that’s the same logic one can use to defend just about any violation of the 4th Amendment. Putting a private drone with a camera and a recording device streaming everything it sees and hears while following around NSA deputy director Chris Inglis may not discover that he’s a corrupt bureaucrat willing to lie to the public, but it seems like a reasonable “insurance policy” to make sure he stays honest. After all, without that, the American public can’t prove that he’s not corrupt — so it seems like a reasonable “insurance policy to cover a seam we can’t otherwise cover.” At least, in the logic of Chris Inglis.
Related articles

Ways to watch Press TV
Press TV – January 12, 2014
Following a move by the European satellite provider Eutelsat SA to take Press TV off the air in a flagrant violation of freedom of speech, Press TV viewers can continue to watch the news channel via the following satellites or by visiting the following websites:
You can watch Press TV by visiting the following websites:
Press TV watch live services (Worldwide)
OHTV Box (internet Set-top box) (Worldwide)
Livestation (internet platform. Supports PC MAC, Linux and all tablet PCs and smartphones)
You could also view our broadcast in Europe through the following satellites:
Optus D2 (152E)
12581
22500
3/4
H
DVB-S,QPSK,MPEG-2
ST 2 (88E)
11051
30000
1/2
V
DVB-S2,8PSK,MPEG-4
Paksat 1R (38E)
4060
23000
5/6
H
DVB-S,QPSK,MPEG-2
Badr 5 (26E)
11881
27500
5/6
H
DVB-S2,8PSK,MPEG-4
Badr 5 (26E)
12303
27500
3/4
H
DVB-S,QPSK,MPEG-2
Badr 4 (26E)
12054
27500
3/4
V
DVB-S,QPSK,MPEG-2
Nilesat 201 A (7W)
11823
27500
5/6
V
DVB-S,QPSK,MPEG-2
Arabsat 5C (20E)
3964
30000
2/3
V
DVB-S2,8PSK,MPEG-4
Arabsat 5C (20E) (HD)
3913
12911
5/6
V
DVB-S2,8PSK,MPEG-4
Express AM44 (11W)
11109
9479
3/4
H
DVB-S2,QPSK,MPEG-2
Thaicom 5 (78.5 E)
3575
6500
3/4
H
DVB-S2,QPSK,MPEG-2
Related Interviews:
7 Things You Missed If You Didn’t Read Wired’s Big Story On How The NSA Is Killing The Internet
By Mike Masnick | Techdirt | January 7, 2014
Steven Levy, who specializes in massive articles looking into aspects of the tech industry, has a new one for Wired, called How the NSA Almost Killed the Internet. It basically looks at how the NSA legally coerced the tech companies into having to comply with certain court orders to hand over information, and how the tech companies have been gagged from explaining what’s going on. And then… he gets the NSA’s side of the story. Much of what’s in there is stuff that you probably already know (especially if you read Techdirt regularly), but I wanted to call out a few tidbits that I hadn’t seen or heard anywhere else before:
- Google doesn’t charge the government for requests for information:
FISA requires the government to reimburse companies for the cost of retrieving information. Google says it doesn’t bother to charge the government. But one company says it uses that clause, hoping to limit the extent of the requests. “At first, we thought we shouldn’t charge for it,” says an executive of that company. “Then we realized, it’s good—it forces them to stop and think.”
This is kind of a “damned if you do/damned if you don’t” situation. I know plenty of folks in the civil liberties community go back and forth on it. When companies do charge, then you see articles about how companies are “making a profit” off of violating our privacy. If they don’t charge, then you see arguments about how they’re making it too easy for the government to get info. Either way, the standard has been to charge basic costs, so it’s interesting to see that Google doesn’t charge at all, probably betting on the fact that if they did, it would be misrepresented. Of course, the fact that they don’t might be misrepresented as well.
- The NSA has no response to fear of future abuse of programs beyond “we’d never do that.” Seriously.
Critics charge that while there is not yet any evidence of massive abuse of the NSA’s collected data, there is also no guarantee that a future regime won’t ignore these touted protections. These officials discounted that possibility, saying that the majority of NSA employees wouldn’t stand for such a policy. “If that happened, there would be lines at the Inspector General’s office here, and at Congress as well—longer than a Disneyland line,” Ledgett says. (The fates of several NSA employees-turned-whistleblowers indicate that anyone in that hypothetical queue would be in for a ride far wilder than anything in Anaheim.)
Sure, except there’s a very long history of the NSA and the FBI doing exactly the opposite (the claim of no evidence of massive abuse is not actually true). And, as Levy notes in that final parenthetical, the way whistleblowers are treated these days would probably shorten that line quite a bit.
- Keith Alexander admits that companies were compelled to comply and admits that we should stand up for the companies not to be harmed by all of this:
“This isn’t the companies’ fault. They were compelled to do it. As a nation, we have a responsibility to stand up for the companies, both domestically and internationally. That is our nation’s best interest. We don’t want our companies to lose their economic capability and advantage. It’s for the future of our country.”
Those words could have come from a policy spokesperson for Google, Facebook, Microsoft, or Yahoo. Or one of the legislators criticizing the NSA’s tactics. Or even a civil liberties group opposing the NSA. But the source is US Army general Keith Alexander, director of the NSA. Still, even as he acknowledges that tech companies have been forced into a tough position, he insists that his programs are legal, necessary, and respectful of privacy.
This is just bizarre. If he doesn’t want the companies to lose their economic capability and advantage, maybe he shouldn’t have undermined a large portion of it.
- Companies were given about 90 minutes to respond to the (misleading) claims in the original PRISM article that they had given the NSA direct access to their servers.
“We had 90 minutes to respond,” says Facebook’s head of security, Joe Sullivan. No one at the company had ever heard of a program called Prism. And the most damning implication—that Facebook and the other companies granted the NSA direct access to their servers in order to suck up vast quantities of information—seemed outright wrong. CEO Mark Zuckerberg was taken aback by the charge and asked his executives whether it was true. Their answer: no.
Similar panicked conversations were taking place at Google, Apple, and Microsoft. “We asked around: Are there any surreptitious ways of getting information?” says Kent Walker, Google’s general counsel. “No.”
This remains one of the most unfortunate bits about the Snowden leaks. While I think that Barton Gellman, Glenn Greenwald and Laura Poitras have done an incredible job with most of their reporting, the original PRISM stories that appeared in the Washington Post and Guardian both came out rushed and were misleading, which is still impacting how people are reporting on these things today. The PRISM program and Section 702 of the FISA Amendments Act have serious issues that need exploring, but it’s all been distorted by the misleading initial claims, which implied things that just weren’t true.
- The NSA claims it uses the very same encryption that it tries to push everyone else to use. Yes, the same encryption that Snowden docs have revealed was compromised by the NSA.
And the NSA insists that, despite the implications of those Snowden-leaked documents, it does not engage in weakening encryption standards. “The same standards we recommend are the standards we use,” Ledgett says. “We would not use standards we thought were vulnerable. That would be insane.”
Sorry, but no one believes that one at all. The clear takeover by the NSA of NIST standards shows that’s clearly not true.
- The NSA still doesn’t realize how serious all of this is. They still think it’s just been blown out of proportion.
They understand that journalism conferences routinely host sessions on protecting information from government snoops, as if we were living in some Soviet society. And they are aware that multiple security specialists in the nation’s top tech corporations now consider the US government their prime adversary.
But they do not see any of those points as a reason to stop gathering data. They chalk all of that negativity up to monumental misunderstandings triggered by a lone leaker and a hostile press.
- Patent troll Nathan Myhrvold is also completely clueless about national security:
Former Microsoft research head Nathan Myhrvold recently wrote a hair-raising treatise arguing that, considering the threat of terrorists with biology degrees who could wipe out a good portion of humanity, tough surveillance measures might not be so bad. Myhrvold calls out the tech companies for hypocrisy. They argue that the NSA should stop exploiting information in the name of national security, he says, but they are more than happy to do the same thing in pursuit of their bottom lines. “The cost is going to be lower efficiency in finding terrorist plots—and that cost means blood,” he says.
This is stupid on so many levels. First, the old argument that it’s somehow equivalent of tech companies and the NSA to make use of information — a claim that Levy ridiculously repeats multiple times in his article — is a line that has been debunked so many times it’s really beneath Levy to give it any life at all, let alone refuse to point out how stupid it is. Companies provide a direct service to users, and they make a decision: If I give this information, I get this service in return. It’s a decision made by the consumer, and a trade-off where they decide if it’s worth it. We can argue that people should have more information about the costs and benefits, but it’s still a trade-off where the final decision is their own. The NSA, on the other hand, is not providing a choice or a trade-off. They’re just taking everything in exchange for nothing. And, oh yeah, they have guns and can put you in jail — something no company can do.
Second, Myhrvold incorrectly buys completely the line that all this data collection has been helpful in stopping terrorists. There’s just one problem: there is no evidence to support that. Besides, based on his idiotic reasoning, we might as well just do away with pretty much all our rights. For example, I’m pretty sure that we could all have protected Myhrvold more completely if there were video cameras streaming video of everything he did within the privacy of his own home, cars, office or just walking around, right? We could certainly make sure that no one was attacking him or, better yet, that he wasn’t about to attack anyone. The cost of not spying on every moment of Nathan Myhrvold might mean “blood.” So, based on his own logic, we should violate his privacy, right?
All in all there’s a lot in the article that’s worth reading, but those were a few key points that really stood out.

Obama Plans Cosmetic Surveillance Changes After All, Will Set Up Pretend Fight Over NSLs
By Mike Masnick | Techdirt | January 6, 2014
Leaks coming out of the Obama administration suggest that the President is preparing mostly cosmetic changes to the intelligence community, following the recommendations from the intelligence task force — which were much stronger than many expected. The reports suggest things like putting a public advocate to represent the public’s views in certain cases before the FISC. This has been talked about for a while, and was the main concession plenty of people had been expecting anyway. That’s hardly anything big.
The article talks about two other potential reforms. The first is shifting the holding of phone call metadata from the NSA to the phone companies, allowing the NSA to still search through it after getting a court order. While this may be a marginal improvement, it still has tremendous problems. It will almost certainly come with some sort of data retention law — something that the feds have wanted for ages, and which civil liberties activists have been fighting against for years. Companies shouldn’t be required to hang on to data they don’t need, especially if getting rid of it can better protect their users’ privacy. Furthermore, while not letting the NSA hang onto the data is a good thing, there is a reasonable concern that if the telcos are hanging onto the data themselves, that they, too, might do bad things with it, with little to no oversight.
However, most of the article from the LA Times focuses on National Security Letter (NSL) reform. We’ve written about those for years. NSLs are the way that the FBI can demand information from companies without any judicial review at all and, even more insane, with a complete gag order that prevents the recipient from telling anyone (including, at times, your lawyer). The FBI has an incredibly long history of “serious misuse” of NSLs, and has shown little to no interest in fixing the process. Nearly a year ago, a court actually ruled them unconstitutional, but there’s an ongoing appeals process that will take quite a bit of time.
However, as the article notes, the DOJ/FBI and other surveillance maximalists are all horrified by the idea that Obama might actually require judicial approval of NSLs, for all but “emergency” situations. What this sounds like is that the President may suggest something along those lines, there will be a well coordinated press attack from surveillance hawks freaking out about the danger this puts us all in… and then he’ll back down on that one point. And we’ll be left with… basically nothing, but the President will go around insisting that he reformed the intelligence community, while everything more or less stays the same.
Related articles

Canada’s CSE admits to ‘incidental’ spying
Press TV – January 7, 2014
Communications Security Establishment Canada (CSE) has admitted that it “incidentally” spied on Canadians, making it the first time the agency deviates from its standard statement that it does not “target” the electronic communications of Canadian citizens.
The country’s foreign intelligence agency said in a statement published on its website that “it is possible that we may incidentally intercept Canadian communications or information.”
A spokesman for the agency said the statement was an initial response to the media attention following the disclosures by American whistleblower Edward Snowden.
According to the CSE, additional information about how it operates is to be posted in coming months “to share more information about our organization in as transparent a manner as possible while still respecting our security obligations.”
However, experts say the effort by the CSE is mostly government mantra and it does not address issues raised by Snowden leaks.
Wesley Wark, a security intelligence expert at the University of Ottawa, said the statement does not discuss the disclosures about collections of metadata or about the use of CSE’s foreign intelligence partners, including the United States, for information exchanges about targets, including Canadians of national security concern.
The leaked documents published in recent months have revealed among others that Canada has set up cover spying posts around the world and spied on trading partners at the request of the US National Security Agency (NSA).
Reports published in Canadian media and based on the leaks have shown that Canada allowed the NSA to conduct surveillance operations on its soil during the 2010 summits of G8 and G20.
Other reports have shown that the Canadian intelligence agency spied on communications at Brazil’s Mining and Energy Ministry, as it has mining interests in the South American country.
Related articles

Palestinians schools must adopt Israeli narrative of the conflict
MEMO | January 7, 2014
Israel is to tell the Palestinian Authority to change the history syllabus used in its schools as a condition ahead of negotiating final status issues. According to a specialist in Israeli studies, Saleh Al-Na’ami, Israel’s defence minister has said that Palestinian schools must teach the Israeli narrative of events before and since 1948, when what Palestinians call the Nakba (Catastrophe) of the creation of the state of Israel took place.
“They [the PA] need to cancel the Palestinian narrative of the history of the Palestinian-Israeli conflict,” Moshe Ya’alon is alleged to have said.
Haaretz reported that the weekly ministerial meeting on Sunday included a discussion about such a change in the Palestinian school syllabus. Ya’alon is also reported to be insisting on an end to Palestinians using speeches in mosques to “incite” the population against the Israeli occupation.
Related article

Court Decision Exempts Secret Memo From FOIA, Sets Stage For Future Secret Laws To Go Unchallenged
By Tim Cushing | Techdirt | January 6, 2014
The “most transparent administration” received another win for continued secrecy, thanks to an appeals court decision that allowed it to continue to withhold a DOJ memo that created an exploitable loophole in consumer data privacy protections.
The document at issue is a classified memo issued by the Office of Legal Counsel on Jan. 8, 2010. A report later that year by the Justice Department’s inspector general at the time, Glenn A. Fine, disclosed the memo’s existence and its broad conclusion that telephone companies may voluntarily provide records to the government “without legal process or a qualifying emergency,” notwithstanding the Electronic Communications Privacy Act.
The EFF has been engaged with the government over the release of this document since 2011, when a district court judge ruled the document was exempt from FOIA requests because it was part of executive branch “internal deliberations.” In other words, despite the fact that the OLC memos can be considered legally binding (and exempt those following the memos’ advice or instructions from legal repercussions), the memo is not considered “working law.” The EFF has argued that these memos are not “deliberative,” but are rather secret laws deployed in such a fashion as to avoid being exposed by FOIA requests.
The presiding judge explained his decision with this reasoning.
“Even if the O.L.C. opinion describes the legal parameters of what the F.B.I. is permitted to do, it does not state or determine the F.B.I.’s policy,” Judge Harry T. Edwards wrote in the decision on Friday. “The F.B.I. was free to decline to adopt the investigative tactics deemed legally permissible in the O.L.C. opinion.”
According to the FBI, it did decline to follow the memo’s parameters.
The bureau, which has abandoned exigent letters, said that it did not employ the legal theory outlined in the memo when using the letters, and that it had no plans to use it in the future.
But the DOJ’s arguments for keeping the memo secret calls the FBI’s assertion into question.
During the litigation, the Justice Department also told the court that parts of the memo contained classified information, “highly specific in nature and known to very few individuals,” about a secret intelligence-gathering technique that the F.B.I. is using against “hostile entities.”
Either the FBI is utilizing the memo’s legal theories or the memo covers so much ground that the FBI is using something entirely unrelated, making the first statement truthful as far as it extends to exigent letters only.
Judge Edwards’ rationale gives the government every reason to utilize the Office of Legal Counsel to provide it with the legal justification it needs to deploy questionable tactics and programs. (Previous OLC memos were used to justify warrantless wiretaps and “brutal questioning of detainees.”) The ruling makes it easier for any OLC memo to be exempted from FOIA requests, providing for even more government secrecy.
David Sobel, a lawyer for the EFF, called the ruling “troubling,” describing the office’s memos as a body of “secret law” that the public has a right to know about. He said he hoped the ruling would reinvigorate efforts among some lawmakers to enact a law opening such memos to greater scrutiny outside the executive branch.
“It’s kind of hard to imagine how a different case in the D.C. Circuit is likely to have a different outcome in light of this opinion,” he said.
Because the document remains a secret, its true significance remains a source of speculation. The New York Times says the memo is most likely the legal basis for the CIA’s voluntary agreement with AT&T, which allows the agency to search its massive database of international calls (and tip local numbers to the FBI for further investigation). And it’s not as if this secret memo is the only tool the government has for demanding data. The FBI may have abandoned “exigent letters” but it’s still using National Security Letters to obtain data without a court order. (No mention is made of the FBI’s exigent Post-It notes or over-the-shoulder database searches.)
The DOJ is understandably pleased with this decision as it plays to its obfuscatory tendencies. This is also a dubious win for this administration — and those that follow. Having an in-house agency on tap that can create new laws and interpretations of existing statutes without having to risk having its legally-binding memos scrutinized by the public will be a tool too powerful for many to ignore.
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France-UAE satellite deal shaky after US spy tech discovered onboard – report
RT | January 6, 2014
The sale of two intelligence satellites to the UAE by France for nearly a billion dollars could go south after they were found to contain American technology designed to intercept data transmitted to the ground station.
The equipment, costing 3.4 billion dirhams ($930 million), constitutes two high-resolution Pleiades-type Falcon Eye military intelligence satellites, which a top UAE defense source has said contain specific US-made components designed to intercept the satellites’ communications with their accompanying ground station, Defensenews.com said in a report.
“The discovery [of the US-made components] was reported to the deputy supreme commander [Sheikh Mohamm ed Bin Zayed] in September,” an unnamed defense source said. “We have requested the French to change these components and also consulted with the Russian and Chinese firms.”
“If this issue is not resolved, the UAE is willing to scrap the whole deal,” said the source, adding that the incident has seen an increase in talks with Moscow, which – along with Beijing – has also been a frequent defense tech supplier to the Gulf state.
However, it is not clear whether the US equipment can be taken off of the French satellites.
The satellites come courtesy of prime contractor Airbus Defence and Space and payload manufacturer Thales Alenia, neither of whom could be reached for comment.
The system, comprised of satellites and a ground station, will require 20 trained engineers to operate. Under the July 22 deal, signed by Sheikh Mohammed, Crown Prince of Dubai and deputy supreme commander of the armed forces, and French Defense Minister Jean-Yves Le Drian, delivery of the satellites and the ground station was to be made sometime in 2018.
A total of 11 international bidders were competing in the Flacon Eye race for more than a decade to ship their technologies to the UAE, which in late 2012 announced that they had chosen to go with the French and the Americans.
According to the source, the French won because of the filters which their rival Americans imposed on the use of the equipment – a policy dubbed “shutter control.” The US government restricts sale of commercial high resolution satellite images from spacecraft it licenses, if they are deemed a threat to its national security.
One French defense specialist found it surprising that France had had US spy technology on board its equipment, especially when France’s use of the Pleiades surveillance system is considered to be of critical importance to its national security.
According to Defensenews, UAE threats to call off the deal are seen by some commentators as a way to secure a better bargain from the French, because “the satellites would be part of a big package deal… it’s not surprising the UAE drives a hard bargain. They’re using it as a layer of power.”
The unnamed defense specialist referred to the possibility that the Emirates may wish to drive the price down for other equipment, such as the Dessault Aviation Rafale fighter jet.

When Your Phone Is Not Your Friend
By Peter Lee | China Matters | January 2, 2014
Gadzooks! They’ve cracked the iPhone!?
Newly leaked documents from the National Security Agency highlight Dropout Jeep, a piece of software that could target one of the country’s most popular devices — the iPhone.
According to documents published by the German news website Spiegel Online and dated Oct. 1, 2008, Dropout Jeep would give the NSA the ability to retrieve contact information, read through text messages, listen to voicemails and even turn on the iPhone camera and microphone.
The document goes on to say that while Drop Jeep was currently limited to installation through “close access methods,” the NSA would research ways to install the program remotely in future versions.
If you’re wondering how the NSA developed this fiendish capability, fingers are being pointed at Apple, but a trip through the Wayback machine suggests another possible culprit:
From a 2011 article by Mark Elgan at Computerworld:
Cellphone users say they want more privacy, and app makers are listening.
No, they’re not listening to user requests. They’re literally listening to the sounds in your office, kitchen, living room and bedroom.
A new class of smartphone app has emerged that uses the microphone built into your phone as a covert listening device — a “bug,” in common parlance.
…
The issue was brought to the world’s attention recently on a podcast called This Week in Tech. Host Leo Laporte and his panel shocked listeners by unmasking three popular apps that activate your phone’s microphone to collect sound patterns from inside your home, meeting, office or wherever you are.
…
The new apps are often sneakier about it [than older apps, which were activated by users in order to identify a song that was playing, etc.–CH]. The vast majority of people who use the Color app, for example, have no idea that their microphones are being activated to gather sounds.Welcome to the future.
…
[M]arketers love cellphones, which are viewed as universal sensors for conducting highly granular, real-time market research.Of course, lots of apps transmit all kinds of private data back to the app maker. Some send back each phone’s Unique Device Identification (UDI), the number assigned to each mobile phone, which can be used to positively identify it. Other apps tell the servers the phone’s location. Many apps actually snoop around on your phone, gathering up personal information, such as gender, age and ZIP code, and zapping it back to the company over your phone’s data connection.
Methinks it would behoove consumers wondering how the NSA might get into their iPhones to hie themselves to their local App Store.
A little further back in the Wayback machine brings us to the analog era, my favorite, when all that was needed to turn your home phone into a microphone was some fiddling at the telco switch. From Bloomberg in 1999:
It’s hardly a secret that phone taps are a favorite ploy of industrial spies as well as law-enforcement agencies. What isn’t well-known is that the phone doesn’t even have to be off the hook to be tapped. It’s possible to activate a hung-up phone remotely and use it to eavesdrop. This techno-trick recently came to light as a result of a drug dealer’s court case in the Netherlands–but it is said that the technique will work on virtually any phone anywhere.
I remember reading somewhere that this was a much-cherished technology for various British intelligence outfits working through British Telecom and its previous incarnation, Post Office Telecommunications.
And from Mark Bowden’s book on the US-assisted manhunt for Pablo Escobar in the early 1990s, Killing Pablo, here is a nugget from the analog cell phone era which, I expect, still applies today:
There was another nifty secret feature to Centra Spike’s capability [a US Army sigint outfit that, unlike the NSA, was tasked with providing tactical intelligence to special operations–CH]. So long as their target left the battery in his cell phone, Centra Spike could remotely turn it on whenever they wished. Without triggering the phone’s lights or beeper, the phone could be activated so that it emitted a low-intensity signal, enough for the unit to get a fix on its general location…
With this background, the extravagant cybercaution of Brookings China wonk Kenneth Lieberthal is understandable:
When Kenneth G. Lieberthal, a China expert at the Brookings Institution, travels to that country, he follows a routine that seems straight from a spy film.
He leaves his cellphone and laptop at home and instead brings “loaner” devices, which he erases before he leaves the United States and wipes clean the minute he returns. In China, he disables Bluetooth and Wi-Fi, never lets his phone out of his sight and, in meetings, not only turns off his phone but also removes the battery, for fear his microphone could be turned on remotely. He connects to the Internet only through an encrypted, password-protected channel, and copies and pastes his password from a USB thumb drive. He never types in a password directly, because, he said, “the Chinese are very good at installing key-logging software on your laptop.”
I have a feeling that Mr. Lieberthal’s countermeasures are informed both by awareness of PRC perfidy, and knowledge of the immense penetration and surveillance capabilities the industrial-security partnership has brought to the telecom and networking game around the world.
If you’re in China–or anywhere else–that phone in your pocket: it’s not your friend.
Court Says Border Searches Of Your Computer Are Okay Because You Shouldn’t Keep Important Info On Your Computer
By Mike Masnick | Techdirt | December 31, 2013
This one is hardly a surprise, given how many (though not all) courts have ruled concerning searches of computing devices at the border. The government’s general theory is that there is no 4th Amendment right at the border, and thus customs officials can search anything. The argument that they’re trying to prevent “bad stuff” from getting into the country really doesn’t make much sense though. If bad stuff is “on a computer” it could easily be sent digitally across the border with no intervention from a customs official. Furthermore, making border searches of laptops and phones even more troubling is the nature of how information is stored. When we pack for a trip we deliberately choose what to include in our suitcase — so we know what’s coming with us. However, on our electronic devices, we pretty much store absolutely everything. Arguing that these are subject to a full search seems problematic — but many courts have found otherwise.
And, now there’s another one. A judge in NY has dismissed a challenge to the searches brought by the ACLU. The judge, Edward Korman, repeatedly quotes former head of Homeland Security, Michael Chertoff, who now makes money by hyping up the threats the country faces, so it’s not like he’s the most unbiased of folks to be relying on for how important these border searches really are. Judge Korman claims that the defendants have no standing to bring the case in the first place. There is one individual (a PhD. student) who actually had his computer searched, and then some professional organizations who worried about their members having their computers searched. The judge is simply not impressed by their arguments… at all. He notes that Customs and Border Patrol appears to search so few laptops that it’s highly unlikely that any individual will have theirs searched — and thus these groups can’t really allege a likely harm. He points out that it’s wrong to use a declaratory judgment case to address “a claim of alleged injury based on speculation as to conduct which may or may not occur at some unspecified future date.”
As for the one guy, Pascal Abidor, who did have his laptop searched, Judge Korman is also not impressed, noting that he’s not suing over that particular search, but the possibility of future searches. The judge seems a bit perplexed by this decision, but notes that it takes away his ability to get standing:
Abidor could have established standing in this case by adding a cause of action for damages based on his claim that he was subject to an unreasonable search. Such a cause of action would have provided the occasion for a trial or a motion for summary judgment that would have fully developed the record with respect to both the initial quick look search and subsequent forensic search. No such action is alleged.
But, as Judge Korman notes, if he can’t show any real likelihood of future harm, he can’t show standing.
Even after dismissing for lack of standing, the judge decides to take on the issue anyway, and this is where he starts to get really insulting to anyone who thinks that perhaps they should have some privacy rights at the border. He openly mocks the plaintiffs for arguing for the need for a “reasonable suspicion” standard for searches, noting that this bar is so low that it’s not like they’d get much more privacy out if it anyway:
Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to “guarantee” confidentiality to their sources.
He goes on to suggest that since traveling internationally involves going into other countries, these same people would probably have even less privacy over their data, since other countries may be even more willing to search their computers. He even cites the situation of David Miranda having his electronics searched in the UK.
Surely, Pascal Abidor cannot be so naive to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bassar al-Assad or Hassan Nasrallah. Indeed, the New York Times recently reported on the saga of David Michael Miranda who was detained for nine hours by British authorities “while on a stop in London’s Heathrow airport during a trip from Germany to Brazil.”
While the judge’s point is correct that other countries are unlikely to protect the privacy of travelers as well, and that means that any information on a laptop may be inherently unsafe, it seems like a bit of a weak copout to argue that since other countries have no respect for your electronic privacy, that the US shouldn’t either.
He goes even further, arguing that because there’s a “special need” at the border to stop bad people, that it’s perfectly fine to ignore things like probable cause or reasonable suspicion — again quoting Michael Chertoff to suggest that border laptop searches have stopped “bad people” from entering the US.
But then he argues that since everyone knows they may be searched at the border, there isn’t really an invasion of privacy:
The invasion of privacy occasioned by such a border search, however, like the search of luggage, briefcases, and even clothing worn by a person entering the United States, is mitigated by other factors….. As Professor LaFave observes, because “the individual crossing a border is on notice that certain types of searchers are likely to be made, his privacy is less invaded by those searches.” …. Thus, “[t]he individual traveler determines the time and place of the search by his own actions, and he thus has ample opportunity to diminish the impact of that search by limiting the nature and character of the effects which he brings with him.”… Indeed, because of the large number of laptop computers (close to a million per year) that are lost by travelers–numbers that far exceed the comparative handful of laptops that are searched at the border–the sensible advice to all travelers is to “[t]hink twice about the information you carry on your laptop,” and to ask themselves: “Is it really necessary to have so much information accessible to you on your computer.”
This seems problematic on multiple levels. First, if we go by the idea that there’s less of a privacy violation because you know it’s coming, then that gives the government the right to ignore the 4th Amendment so long as it tells you ahead of time that it’s going to ignore the 4th Amendment. Even the Supreme Court in Smith v. Maryland — the infamous case concerning the 3rd party doctrine — states that such a scenario is ridiculous, and that just because you know that you’re going to be searched, it doesn’t automatically make the search reasonable.
As for the suggestion that you shouldn’t store stuff on your computers, I’m sure that’s great in theory, but I’d like judges to make decisions based in reality. This suggestion is basically “don’t use your computer for what it’s designed for, because we might search it.” That’s not exactly compelling.
Again, given past precedents, and the specific facts of this case, it’s not entirely surprising. That doesn’t mean it’s not disappointing to see yet another middle finger given to the 4th Amendment to close out the year.
Related articles
- Lawsuit Challenging Laptop Searches at US Border Is Dismissed by Federal Judge (dissenter.firedoglake.com)
- RT: Constitution ‘exemption’ zone spans 100 miles inland of US border – judg (jhaines6.wordpress.com)









Leftist commentators consistently push a shallow and economically reductive narrative that frames American foreign policy as the sole domain of greedy White capitalists while choosing to ignore the obvious Jewish power structure directing these events. When the veneer of this supposed corporate imperialism is stripped away, it becomes clear that the United States has often served as a vehicle for the specific goals of organized Jewry. The life of Samuel Zemurray stands as prime evidence of this hidden mechanism.