Members of the European Parliament (EP) have voted to suspend a security agreement with the United States, amid growing concerns over US spying activities against Europe.
“The EU should suspend its Terrorist Finance Tracking Program (TFTP) agreement with the US in response to the US National Security Agency’s alleged tapping of EU citizens’ bank data held by the Belgian company SWIFT,” read a resolution passed by the EP on Wednesday by 280 votes to 254 and 30 abstentions.
While the resolution is non-binding, the EP stressed that it “will take account of the European Commission’s response to this demand when considering whether to give its consent to future international agreements.”
In 2010, the European Union and the United States agreed on the TFTP, which allowed the US limited access to the global financial database SWIFT as part of an anti-terrorism campaign.
The Wednesday vote came, however, after revelations by former American intelligence contractor Edward Snowden that the United States was using the access to spy on Europe instead of using it for counterterrorism purposes.
The European lawmakers also called on EU member states to launch an investigation into the reports on the US espionage involving SWIFT.
Revelations of massive spying operations by the United States have triggered condemnations across Europe and Latin America.
In a latest revelation, Snowden said Washington has spied on the phone conversations of German chancellor Angela Merkel. The disclosure prompted the German chancellor to call US President Barack Obama to seek reassurance that her phone calls were no more targeted by US spying.
On October 21, the French newspaper Le Monde disclosed massive surveillance by the US on French citizens and diplomats. The news angered French President Francois Hollande, who expressed “extreme reprobation” for the reported collection by the US of 70 million digital communications between December 10, 2012 and January 8, 2013.
Today the Third Circuit Court of Appeals ruled that law enforcement agents must obtain a warrant based on probable cause to attach a GPS device to a car and track its movements. The case, United States v. Katzin, is the first in which a federal appeals court has explicitly held that a warrant is required for GPS tracking by police. The ACLU submitted an amicus brief in the case (joined by the ACLU of Pennsylvania, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers) and presented oral argument to the court in March.
In this case, police suspected three brothers, Harry, Mark, and Michael Katzin, of robbing several pharmacies. Without getting a warrant from a judge, FBI agents attached a GPS tracking device to Harry Katzin’s car in order to follow its movements. The government used the GPS device to track the Katzins as they drove to and from another pharmacy, and arrested them as they drove away. Before trial, the Katzins argued that police had violated their Fourth Amendment rights by using the GPS tracker without a warrant, and the district court agreed. Today’s ruling affirms that decision.
Last year, in United States v. Jones, the Supreme Court unanimously held that attaching a GPS tracker to a car to follow its movements is a search under the Fourth Amendment. The Court did not decide whether police need a warrant to conduct such a search, however, and the government argued in this case that an exception to the usual requirement of a warrant should apply. The Third Circuit rejected the government’s arguments, explaining that GPS tracking is a “vastly broader endeavor” than the kinds of limited searches that courts have allowed without warrants. In particular, the court held that the “automobile exception” to the warrant requirement does not apply to GPS tracking. The exception is designed to permit warrantless searches of cars to reveal contraband before the cars can drive away. But, as the court explained, that narrow exception does not “permit [police] to leave behind an ever-watchful electronic sentinel in order to collect future evidence” without judicial oversight.
The court also rejected a second argument made by the government: that the so-called “good faith” exception should permit use of evidence derived from the GPS tracking, even if it violated the Fourth Amendment. Because the GPS tracker was attached to the Katzins’ car before the Supreme Court decided Jones, and before the Third Circuit had addressed the issue, the government argued that FBI agents couldn’t have known that using a GPS device might raise questions under the Fourth Amendment, and therefore they acted in good faith by choosing not to seek a warrant. The court explained that this does not excuse police from the requirement of getting a warrant:
Where an officer decides to take the Fourth Amendment inquiry into his own hands, rather than to seek a warrant from a neutral magistrate — particularly where the law is as far from settled as it was in this case — he acts in a constitutionally reckless fashion. Here, law enforcement personnel made a deliberate decision to forego securing a warrant before attaching a GPS device directly to a target vehicle in the absence of binding Fourth Amendment precedent authorizing such a practice. . . . Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations.
Today’s opinion offers a full-throated defense of the Fourth Amendment, and installs an important safeguard against unjustified government surveillance. As courts around the country consider challenges to warrantless location tracking by police (whether using GPS devices or cellphonesignals), they would do well to follow the Third Circuit’s lead.
Everyday communications of Italians are also on the watch list of the US National Security Agency, a new report has revealed. While an Italian parliamentary committee seeks clarification of NSA activities, local security sources defend the snooping.
Italy’s spy watchdog COPASIR has recently learned details of large-scale monitoring of Italians by the US intelligence agency NSA, according to a report published by Corriere della Sera.
COPASIR stands for Parliamentary Committee for the Intelligence and Security Services and for State Secret Control, and is tasked with overseeing the activities of Italy’s own spy agencies. The body has free access to intelligence agencies’ offices and documents and has the authority to overcome judicial and banking secrecy.
In order to confirm the snooping on Italians, the committee members had to go to the United States and meet with US intelligence agency directors, as well as with congressional committee chairs.
A delegation of parliamentarians from the COPASIR confirmed their concerns regarding the extent of the NSA’s PRISM surveillance program during an official visit to the US three weeks ago, the media said. As part of the program, phone calls and computer communications of “millions of Italians” are reportedly being gathered.
Moreover, Corriere della Sera added that the implications extended to “a monitoring network that started years ago and is still active,” of which the Italian government and spy agencies might have been well aware of.
Such discoveries have prompted uneasy questions to officials, with leading members of COPASIR now seeking clarification from the government, and reportedly awaiting the junior minister for the intelligence services, Marco Minniti, to visit the committee’s offices on Wednesday afternoon.
Meanwhile, Italian intelligence sources quoted in the report rushed to justify the surveillance activities of their partners.
The acquisition of the sensitive private information “has as its sole aim the fight against terrorism,” one source was quoted as saying, while another denied that the NSA’s spying ever breached Italy’s sovereignty.
“We have never had any evidence that this kind of monitoring might have involved political spying on Italian public figures. All our investigations into any such eventuality have proved negative,” the source maintained.
However, such explanations did not satisfy COPASIR, nor did the NSA deputy director’s promise of “a complete overview of communications to and from the United States.”
According to the Italian media, the committee member Claudio Fava from Left Ecology Freedom (SEL) party, was “openly perplexed” as he commented on such statements.
“It’s a data trawling system based on various sensors. US intelligence experts explained that their main concern was to comply with American data protection laws and intervene to safeguard national security. Whether this conflicts with other countries’ laws is of no concern to them but it should be to us,” Fava was quoted as saying.
Another COPASIR member, Felice Casson of the Democratic Party (PD), said that the replies the committee received from top Italian intelligence officials were “far from reassuring.”
“It is clear that the United States has acquired information on individuals and institutions across Europe. What concrete elements exist to rule out that this has happened to politicians and institutions in Italy?” Casson questioned.
Leading Democratic Party (PD) politician Ettore Rosato also demanded an explanation from the government, saying that “a few months ago, when the first [NSA whistleblower Edward Snowden’s] revelations emerged, both the prime minister, Enrico Letta, and the foreign minister, Emma Bonino, professed astonishment at what came out.”
So far, the documents obtained by various world media from the former NSA contractor Snowden have revealed that the Italian embassy in Washington was subject to spying along with the diplomatic missions of other countries. Italian intelligence sources have been careful to deny the claims only “off the record,” Corriere della Sera says.
Right before the NSA scandal emerged, the collaboration between Italian and American intelligence services was “at its peak,” and, according to the media, included sharing of communications through the SIGINT interception system. However, such cooperation appeared to have been justified by the ongoing allied wars in Iraq and Afghanistan and the search for western hostages there, the media adds.
But in the wake of recent revelations on the US spying activities in France, which triggered a media frenzy and public outrage, the media speculates Italy may find it difficult to maintain the same “stance” towards the NSA programs.
The latest analysis of Snowden leaks from the German magazine Der Spiegel is a bombshell for Mexico.
“The NSA has been systematically eavesdropping on the Mexican government for years,” reads the opening line in the Oct. 20 issue.
The article goes on to detail three major programs that together constitute a massive espionage operation against Mexico. No one seems to have been immune from its intrusions, including two presidents.
The presidential computer network was infiltrated since 2010 when Felipe Calderon was still president. The ever-zealous National Security Agency (NSA) was apparently very proud of itself for hacking the private communications of the leader and cabinet members of an allied nation.
In a “top secret” report, its “Tailored Access Operations” division (TAO) crows:
“TAO successfully exploited a key mail server in the Mexican Presidencia domain within the Mexican Presidential network to gain first-ever access to President Felipe Calderon’s public email account”, calling it a “lucrative source” to gauge Mexican “political system and internal stability”. The leaked operation was code named “Flatliquid”.
Mexicans first found out that their nation, along with Brazil and other Latin American countries, was a major target back in September, when Brazil’s O Globo published an article by Glenn Greenwald, Roberto Kaz and Jose Casado on tapping Brazilian President Dilma Rousseff’s phone and other communications. The article noted that the NSA had Mexico in its sights too.
A specially designed NSA program spied on then-presidential candidate Enrique Peña Nieto to find out who he was planning to appoint to his cabinet and how he’d handle the volatile drug war—the cornerstone of US policy in Mexico.
That caused a stir and the Peña Nieto administration sent a diplomatic note and demanded a U.S. investigation.
Sunday’s revelations add details to the previous information and show a far vaster and more insidious operation than was first imagined. Text messages from Peña Nieto’s cell phone—85,489 to be exact, according to the Der Speigel-Snowden report– were harvested and organized into data bases, identifying nine close associates for surveillance and analysis.
A third program called “White Tamale” dates back to 2009, when the NSA managed to hack into the emails of high-level officials in the now-defunct Public Security Ministry.
“In the space of a single year, according to the internal documents, this operation produced 260 classified reports that allowed US politicians to conduct successful talks on political issues and to plan international investments.”
The documents note that the spy operation allowed the NSA to gain access to “diplomatic talking points”.
What does this mean? Wouldn’t using ill-begotten private communications in negotiations be something akin to blackmail?
In any case, it seems to have fulfilled its purpose because during the subsequent period U.S. intelligence, military, police and drug enforcement agencies achieved an unprecedented margin to operate in-country, effectively breaking down any remaining resistance to their activities on Mexican soil.
The Der Speigel article states that in spy operations in Mexico, “the drug trade” was given top priority level, while the country’s “political leadership”, “economic stability” and “international investment relations” received number-three priority rankings on a scale of five.
This latter category gives credence to charges from Brazilian President Dilma Rousseff that the NSA used its apparatus for industrial spying, seeking advantages. Her charges are borne out by documents that show that Brazilian oil company, PETROBRAS, was a target of U.S. espionage. The Mexico revelations were more general but also indicate economic espionage.
The NSA, as reflected in its own documents, seems to have no sense of boundaries—it qualifies its invasions as unqualified “successes”. Der Spiegel quotes another document that reads,
“These TAO accesses into several Mexican government agencies are just the beginning — we intend to go much further against this important target.”
It goes on to state that the divisions responsible for this surveillance are “poised for future successes.”
Mexico’s Muted Response
The response from NSA to questions was predictable,
“We are not going to comment publicly on every specific alleged intelligence activity, and as a matter of policy we have made clear that the United States gathers foreign intelligence of the type gathered by all nations.”
So far, no enterprising journalists have asked the Mexican government if it has 85 thousand text messages off of Obama’s phone.
Since September the Mexican government has known it was massively spied on by the United States. After the revelations regarding Peña Nieto’s communications and contacts with US diplomats, Mexico says President Obama agreed to carry out an investigation.
But what exactly does the Mexican government expect of this investigation? No one has questioned the authenticity of the documents. Everyone knows Snowden has them, otherwise why would the U.S. be trying to force his extradition and threatening countries offering asylum. And it seems that asking the U.S. government to investigate NSA be an exercise in futility, especially since the Der Speigel article states explicitly that the programs had presidential authorization.
Not surprisingly, Mexico’s response was widely considered weak.
So far, the response to this latest round of revelations hasn’t shown much more backbone. The foreign relations ministry called the practice “unacceptable, illegitimate and against the law”—and said it would be sending another diplomatic note.
“In a relationship between neighbors and partners, there is no room for the practices alleged to have taken place,” the ministry said.
When Der Speigel asked for a comment from Felipe Calderon, Harvard University, apparently the spokesperson for the beleaguered ex-president since it took him under its ivied wings as a Global Leaders Fellow at the Kennedy School, said it would give him the message.
A senior U.S. State Department official told CNN that the Mexican government reached out about the report, and that the two governments will be discussing it via diplomatic channels.
Peña Nieto has to react now. Brazil is taking specific steps to protect privacy from the long ear of the NSA. Rousseff has been outspoken in its indignation, taking it to the floor of the United Nations General Assembly and cancelling a state visit to Washington.
Mexico’s economic dependence on the United States under NAFTA puts the Peña administration in a tougher bind. Big business will put pressure on Peña to let it slide. The PRI is likely to be seriously annoyed, but it also knows an important part of its power base rests on its relationship with the U.S. government and economic elite, almost a tautology, as shown again in the fact that taxpayer-supported NSA spying was directed at industrial spying to give U.S. companies an edge in bidding, investing and competing.
Whatever the response, the revelations are a blow to a somewhat shaky relationship. Peña Nieto has made it clear it will not allow the same carte-blanche treatment U.S. agencies were given under former president Calderon, but he has also continued security integration and U.S. expansion under the guise of the war on drugs.
Calling into question the terms of the bi-national security relationship should not necessarily be viewed negatively. Demands for a more transparent and less military-oriented relationship between the U.S. and Mexico have been growing. The NSA documents reveal a global security doctrine that has spun dangerously out of control, with what Greenwald calls “the construction of a worldwide, ubiquitous electronic surveillance apparatus” that apparently has no qualms regarding the right to privacy or national sovereignty. Neither the Mexican nor the U.S. Congress has sufficient knowledge of what’s going on to provide reasonable oversight, and the Mexican government apparently has little knowledge of the realm of shadowy U.S. intelligence activity in its own country.
When you add in the private contractors hired under the $2 billion-dollar Merida aid package, it makes for a vast and murky world of post-Cold War conniving.
That can’t be good for diplomacy, or democracy.
Laura Carlsen is director of the Mexico City-based CIP Americas Program.
We’ve documented again and again how the government has refused to tell the truth about NSA surveillance to news organizations, Congress, and the American public. Now it seems clear we can add the Supreme Court to that list.
First, it’s important to remember that just months before Edward Snowden became a household name, the ACLU was before the Supreme Court challenging the FISA Amendments Act—a key pillar designed to justify much of the NSA’s surveillance. The ACLU argued that since their clients—journalists, advocates, and lawyers—were the prime candidates to be subject to this surveillance, the clients should be able to challenge the law as unconstitutional.
Unfortunately, the government successfully convinced the Court that the case should be thrown out on procedural grounds. The Court ruled the ACLU’s clients didn’t have “standing.” Essentially, because they had no definitive proof they were being spied on, so couldn’t challenge the law.
At the time, many thought this reasoning was absurd, including four dissenting Supreme Court Justices. Given the law’s incredibly broad reach, of course surveillance was occurring. “Perhaps, despite pouring rain, the streets will remain dry,” quipped Justice Breyer.
So in order to convince the Supreme Court to throw out the ACLU’s challenge, the government smartly argued someone could have standing tochallenge the law. Otherwise, it may have seemed absurd to at least one more Justice, and the case might have gone the other way.
Solicitor General Donald Verrilli told the Court any defendant charged with a crime would be officially notified if they were subject to NSA surveillance and then someone could challenge it—an actual target. Prosecutors, according to the government, just hadn’t used FISA evidence yet in any court case.
Turned out, that wasn’t true.
As the New York Timesreported last week, “Mr. Verrilli’s assurances clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.”
In other words, the argument the Solicitor General used to convince the Supreme Court to dismiss a challenge to the FISA Amendments Act was false, and the Solicitor General deceived the Supreme Court, though perhaps not wittingly. When Verrilli confronted the Justice Department’s national security lawyers who briefed him for his argument, they explained away this false statement as “a misunderstanding,” according to the New York Times.
The Solicitor General has apparently convinced the Justice Department to change its policy and they now claim they will start notifying defendants. If the Justice Department follows through, this move should have implications across the board and will be a welcome shift.
Remember, just a few weeks ago Reuters reported that the Drug Enforcement Administration (DEA) was receiving tips from the NSA, distributing them to local law enforcement, and then covering them up by then obtaining the same evidence under different pretenses. As we explained at the time, this not only violates the Fourth Amendment, but the Fifth and Sixth Amendments as well, which guarantee defendants a meaningful opportunity to present a defense and challenge the government’s case.
There’s also the enormous “Hemisphere” phone surveillance program, first revealed by the New York Times in August, which the DEA carries out in partnership with the AT&T. EFF just filed an amicus brief in a San Francisco case that looks suspiciously like Hemisphere surveillance was going on as well.
It’s too early to tell if the Justice Department is going to follow through on its promise to tell the truth about spying in criminal cases. Thankfully, the ACLU has sued under the Freedom of Information Act to find out the Justice Department official policies on notifying defendants of NSA surveillance.
This is only a start. Informing criminal defendants of warrantless wiretaps only exposes illegal spying on a small few, and the Justice Department has made no promises to inform the millions of ordinary American’s caught up in the NSA dragnet. But it’s an important step forward, and could lead to a court to rule on the legality of the program.
ACLU deputy legal director Jameel Jaffer has also called on the Solicitor General to file a formal acknowledgement with the Court that the government’s policy was misrepresented to the justices during arguments. As Jaffer explains, there is ample precedent for the government to do so in situations similar to this.
It’s important for the Court to know that the government has not been honest with them, as the Court considers other representations about secret programs. Unfortunately, this is not the only time the government has provided false and misleading information to a court.
The culture of misinformation around the NSA has to stop. EFF also calls on the Solicitor General to formally acknowledge to the Court its misrepresentations and promptly tell every defendant that was subject to NSA surveillance so they can challenge the unconstitutional laws behind it.
A few months ago I signed my name as co-defendant to a possible legal action threatened by an Israeli law firm, Shurat HaDin, targeting two Centre for Peace and Conflict Studies (CPACS) academics – Professors Jake Lynch and Stuart Rees for publically refusing to co-operate with Israel’s Hebrew university. Almost two thousand Australian and international academics, writers, human rights activists and other members of civil society have since joined this unprecedented historic act of solidarity signing as co-defendants along with the two targeted professors.
Jake Lynch was practicing a basic democratic right when he made a moral and ethical decision to refuse to collaborate with an academic representing Hebrew university. Part of Hebrew university campus and dormitories were built on illegally annexed Palestinian land in contravention of the four Geneva Conventions. The university also sponsors the archeological digs in the Occupied Territories, appropriating Palestinian historical artifacts, preventing Palestinians from accessing those sites and displacing them from there – an act considered to be plundering under International Humanitarian Law. There is a long list of other violations by Hebrew university such as its links to Elbit systems – one of Israel’s largest military security and surveillance companies that monitors and maintains Israel’s continued illegal occupation of Palestinian land. But this story is not just about Jake Lynch or Hebrew University, it is a story about how democracy functions.
Defending the rights of academics to express their views on controversial issues is a basic tenant of democracy. Given that democracies are a work in progress, it is up to us as citizens within democratic nations to use our voice to protect our civil liberties. Part of this means we have to empower those who have been disempowered and stripped of their basic human rights, both at home and abroad. This does not bode well for Israel – a state criticized by UN bodies and reputable human rights organizations for its flagrant human rights violations.
Israel’s supporters react to criticism in two ways. The first is by intimidating and slandering critics claiming they are anti-Semitic and/or terrorist sympathizers. The second is by attacking and eroding our democratic rights thus destroying the tools by which we are able to expose its abuses and war crimes.
Academic freedom is hindered when governments interfere with their citizens’ right to form and express independent political views.
In this case, Israel’s network of supporters has launched all the fire power at their disposal, slandering the academics while pressuring the Australian government to erode our democratic right to dissent. CPACS is now faced with the real threat of losing federal government funding for programs unrelated to the campaign “Boycott, Divestment, and Sanctions” (BDS), solely on the basis of the political views held by the Centre’s director Jake Lynch.
Academic freedom is hindered when governments interfere with their citizens’ right to form and express independent political views. Last year following lobbying by the National Tertiary Education Union, the former Gillard government introduced a proposal to reform the objectives of the Higher Education Support Act making it a condition of funding that higher education institutions uphold academic freedom. Jeannie Rea, the National Tertiary Education Union president told Sydney Morning Herald, ”these changes…are an explicit acknowledgment that university staff has a right and a responsibility to exercise free intellectual inquiry, including the right to expression of controversial or unpopular opinions without being disadvantaged or discriminated against.”
The significance of this reform was lost on Australia’s new government. Before winning the elections, the now Australian foreign minister Julie Bishop promised to deny funding for projects by all academics who voice support for boycotting Israel regardless of whether or not these projects are related to the Palestine/Israel conflict.
But make no mistake about it, this policy of repression will not only target pro-Palestine supporters or critics of Israel, it will impact all sectors in Australian civil society. PM Tony Abbott has plans to re-prioritize about $900m in annual Australian Research Council (ARC) grants ensuring that only projects that are deemed worthy by the Liberal government and in line with their ideological beliefs will receive funding. The National Tertiary Education Union was amongst the first to criticise this infringement on democracy. Other condemnations followed from many peak bodies in the sector including the Deans of Arts, the Council for Humanities Arts and Social Sciences (CHASS), Science and Technology Australia (STA), Social Sciences and Humanities, the Council of Australian Postgraduate Associations (CAPA) and Universities Australia.
I asked Jake Lynch to comment on the possibility that he may find himself without funding for his research. This was his response:
“Julie Bishop’s attempts to stifle dissent on a key issue of foreign policy amount to an abuse of office and reflect badly on the integrity of Australian public life. I fully accept that I am entitled to no public money to pursue or publicise the academic boycott of Israel, and indeed I have never sought, nor received any. But Ms Bishop’s threats to withhold government research funding even for unrelated topics is an attack on intellectual freedom, aimed at intimidating others from engaging critically with Australian government policies on the Israel-Palestine conflict.”
At the end of this month we will find out if Professor Jake Lynch will be denied funding for a Discovery Project grant from the Australian Research Council because of his critical views regarding a foreign state; views that are shared by notable human rights advocates world-wide including the Rev. Desmond Tutu. In the meantime, the list of co-defendents will continue to grow as more of us rise to say no to Israel’s bullying tactics that threaten our basic democratic right to non-violently oppose its racist violations of intentional humanitarian law.
Israel is indeed good for western democracies but not for the reasons it claims; it is good because it exposes the hypocrisy and faults that are inherent within other democratic systems. If we cannot openly debate controversial issues within university campuses or hold controversial views on a foreign government then our democratic rights and freedom of expression are in peril.
– Samah Sabawi is a Palestinian writer and Policy Adviser to Al-Shabaka, the Palestinian policy network.
Tonight, the Keene city council could have made history as the first ever political designation to reject arms manufacturer LENCO and the federal government’s pushing of the BEARCAT police attack “tank“.
They could have heard the voices of the people who were crying out against this intimidating monstrosity that will inevitably militarize the Keene police even more, and as city councilor Carl Jacobs appropriately pointed out, distance them further from the community they supposedly serve.
They could have. But they didn’t. The BEARCAT passed 9 to 4.
Despite the outpouring of opposition in the community against the BEARCAT, not a single councilor changed their vote from December, when they originally voted in favor of it. That vote was 13 to 1. Why were the numbers different? The new city councilors who took office in January were the ones to vote against it. So, the councilors who originally voted for it completely disregarded all the input they received from the community in various forms:
In a Keene Sentinel online poll, 72% said they city council was wrong to accept the BEARCAT. (Only 12% favored the BEARCAT in the poll.)
City councilor Bettina Chadbourne related during tonight’s meeting that of the 80 phone calls she received from various members of the community, (old, young, business owners, men, women, etc) only ten calls were in favor of the BEARCAT.
A random walk down Main St. would show anyone who bothered to ask people that the supermajority of people oppose the BEARCAT.
Most letters to the editor of the Keene Sentinel were in opposition to the BEARCAT.
During the meeting the councilors who favored the BEARCAT got no applause from the packed room, while the councilors who spoke in opposition to the BEARCAT were blasted with applause.
The reasons given for supporting the BEARCAT by the councilors were pathetic. Mitch Greenwald believes the Department of Homeland Security has our best interests in mind. Dale Pregent believes it will help in a flood. Janice Manwaring trusts the Keene Police to be good boys with their new, violent toy. Look for video here at Free Keene soon.
Not one of them changed their minds. The emails they received, the calls, the personal contacts – none of it mattered. None of it outweighed what the Keene police wanted. […]
Congratulations to the people calling themselves the Keene Police and City of Keene. Tonight they succeeded in proving that they don’t give a damn about what the people in the community want and effectively destroyed even more of the precious legitimacy that is so crucial to people seeing them as something other than an occupying criminal gang. Even though the advocates of peace lost in the vote, we won in the long view, because the aggressors have shown their hand yet again. They don’t care about your desires to live in a peaceful place. They only do what aggregates more power and money to them and their buddies. It’s clear they are the masters, not the servants. … Full article
France has called for an explanation for the “unacceptable” and “shocking” reports of NSA spying on French citizens. Leaked documents revealed the spy agency records millions of phone calls and monitors politicians and high-profile business people.
The US Ambassador to France Charles Rivkin was summoned by the French Foreign Ministry to account for the espionage allegations on Monday morning.
“I have immediately summoned the US ambassador and he will be received this morning at the Quai d’Orsay [the French Foreign Ministry],” French Foreign Minister Laurent Fabius told press. He added that “we must quickly assure that these practices aren’t repeated.”
In addition, citing the report on French publication Le Monde, Interior Minister Manuel Valls spoke out on national television against US spy practices.
“The revelations in Le Monde are shocking and demand adequate explanations from the American authorities in the coming hours,” said Valls on television channel Europe 1.
He went on to say that it is totally unacceptable for an allied country to spy on France.
Ambassador Rivkin refrained from commenting on the spy allegations on Monday morning and told Reuters that French-US ties are the “best they have been for a generation.”
Le Monde revealed in a report based on the security leaks of former CIA worker Edward Snowden that the NSA recorded 70.3 million phone calls between December 10, 2012, and January 8, 2013.
The NSA reportedly carries out its espionage in France using a program called ‘US-985D’ which is able to listen in on specific telephone calls and pick up on text messages according to key words used.
Moreover, Le Monde also wrote that it had reason to believe that the spying was not just limited to citizens suspected of being involved in terrorism. According to the data released by Snowden the NSA also eavesdropped on politicians and prominent business figures.
The newspaper did not give any indications as to the identity of the high-profile people.
France is not the only EU nation to be targeted by NSA surveillance. Germany took issue with the US government after it was revealed the NSA was tapping phone lines and recording electronic data in the country.
The EU will take steps to curtail US data mining on Monday in a vote to change data protection rules. The European Parliament’s Committee on Civil Liberties is expected to decide on the issue that would authorize fines for violation of EU data protection.
‘Investment benefits’
The US maintains that its spying activities are in the interests of national security and protect against terrorism. However, Snowden leaks released by Guardian reporter Glenn Greenwald showed the NSA had monitored Brazilian state-owned oil giant Petrobras and infiltrated the electronic communications of the Brazilian and Mexican presidents.
Mexico has also demanded an explanation for reports released by Der Spiegel on extensive spying on Mexican top officials and politicians.
Der Spiegal revealed that former President Felipe Calderon had also been a target for NSA espionage. Citing a classified internal report, it said the US monitors “diplomatic, economic and leadership communications which continue to provide insight into Mexico’s political system and internal stability.”
US electronic surveillance in Mexico reportedly targeted top officials, including both current and previous presidents. Intelligence produced by the NSA helped Americans get an upper hand in diplomatic talks and find good investment opportunities.
The US National Security Agency was apparently very happy with its successes in America’s southern neighbor, according to classified documents leaked by Edwards Snowden and analyzed by the German magazine, Der Spiegel. It reports on new details of the spying on the Mexican government, which dates back at least several years.
The fact that Mexican President Peña Nieto is of interest to the NSA was revealed earlier by Brazilian TV Globo, which also had access to the documents provided by Snowden. Spiegel says his predecessor Felipe Calderon was a target too, and the Americans hacked into his public email back in May 2010.
The access to Calderon electronic exchanges gave the US spies “diplomatic, economic and leadership communications which continue to provide insight into Mexico’s political system and internal stability,” the magazine cites an NSA top secret internal report as saying. The operation to hack into the presidential email account was dubbed “Flatliquid” by the American e-spooks.
The bitter irony of the situation is that Calderon during his term in office worked more closely with Washington than any other Mexican president before him. In 2007 he even authorized the creation of a secret facility for electronic surveillance, according to a July publication in the Mexican newspaper, Excelsior.
The surveillance on President Nieto started when he was campaigning for office in the early summer of 2012, the report goes on. The NSA targeted his phone and the phones of nine of his close associates to build a map of their regular contacts. From then it closely monitored those individuals’ phones as well, intercepting 85,489 text messages, including those sent by Nieto.
After the Globo TV report, which mentioned spying on Mexico only in passing, Nieto stated that US President Barack Obama had promised him that he would investigate the accusations and punish those responsible of any misconduct. The reaction was far milder than that from Brazilian President Dilma Rouseff, another target of NSA’s intensive interest, who has since canceled a planned trip to the US and delivered a withering speech at the UN General Assembly, which condemned American electronic surveillance.
Another NSA operation in Mexico dubbed “Whitetamale” allowed the agency to gain access to emails of high-ranking officials in country’s Public Security Secretariat, a law enforcement body that combats drug cartels and human trafficking rings. The hacking, which happened in August 2009, gave the US information about Mexican crime fighting, but also provided access to “diplomatic talking-points,” an internal NSA document says.
In a single year, this operation produced 260 classified reports that facilitated talks on political issues and helped the Americans plan international investments.
“These TAO [Tailored Access Operations – an NSA division that handles missions like hacking presidential emails] accesses into several Mexican government agencies are just the beginning – we intend to go much further against this important target,” the document reads. It praises the operation as a “tremendous success” and states that the divisions responsible for this surveillance are “poised for future successes.”
Economic espionage is a motive for NSA spying, which the agency vocally denied, but which appears in the previous leaks. The agency had spied on the Brazilian oil giant, Petrobras, according to earlier revelations. This combined with reports that the NSA hacked into the email of Brazilian President Dilma Rouseff, triggered a serious deterioration of relations between the two countries.
While the NSA declined comment to the German magazine, the Mexican Foreign Ministry replied with an email, which condemned any form of espionage on Mexican citizens. The NSA presumably could read that email at the same time as the journalists, Der Spiegel joked.
[Note: Since the lifting of the federal court gag order on October 2, Ladar Levison and his company, Lavabit, have been getting some media attention (including a somewhat snide and incomplete story on page one of the New York Times). What follows in an effort to reconstruct at least the outline of a personal nightmare inflicted by our government on a small business owner who had done no wrong, even in the government’s eyes – at least until he started taking his constitutional rights seriously.]
The Fourth Amendment of the U. S. Constitution is anti-police-state
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” [emphasis added]
The founding document of the United States is inherently suspicious of a government’s willingness to abuse its powers, a suspicion rooted in centuries of tyranny around the world. Even the U.S. government, as well as state and local governments, have abused their powers from time to time since the country’s beginning. The drift toward an American police state intensified under the guise of anti-Communism, but that was mostly a convenient cover for state intrusion into people’s lives. The Soviet Union collapsed, but the nascent American police state kept growing. The Patriot Act of 2001, a massive assault on personal and political liberty, was largely written before 9/11 and passed, largely unexamined, in the hysterical atmosphere and raw panic of that over-hyped “new Pearl Harbor.”
Now we have a police state apparatus of almost unimagined dimension, most of which is kept secret and remains unknown, despite the efforts of a few reporters and whistle blowers, who tell the truth at their personal peril.
The “American police state” is likely an abstraction in the minds of many people, and as long as they remain unknowing and passive, it’s likely to leave them alone. But even law-abiding innocence is not a sure protection of a person’s right to be secure. And when the police state comes after you in one of its hydra-headed forms, the assault can be devastating.
For starters, the state won’t always tell you when it begins
The intrusion of the police state into your life can shatter your world even before you realize it’s begun. Fight it, or surrender to it, the cost is huge. Recovery may be possible, eventually, if it’s ever allowed, but it will be hard, and it will take time.
In May 2013, Ladar Levison was 32 when the police state first came after him. The dreaded “knock on the door” was actually only an FBI business card on his door at home. And Levison’s initial interactions with the FBI were reportedly mild and civil, at first by email and later in person. The FBI was interested in Levision because he owned and operated a secure email service called Lavabit. From the FBI point of view, Lavabit was too secure, because the NSA and the rest of the security state couldn’t get into it.
Right out of college, Levison had started Lavabit as a sole proprietorship in April 2004 (the same month Google launched Gmail at a much greater scale). Having grown up in San Francisco, Levison studied computer science at Southern Methodist University in Dallas, where he still lives. While working on his start-up, he supported himself mostly with internet security projects for financial services. He also worked as a consultant on website development for clients such as Dr Pepper, Nokia, and Adidas.
What Lavabit was selling was secure email, much more secure than anything Google, Microsoft, or most other email providers were offering. The demand was not that great at first. It took six years for Lavabit to gather enough paying subscribers to allow Levison to devote himself to the business full time in 2010. Even when the FBI became interested in Lavabit in May 2013, it was still a small company, with two employees and about 400,000 subscribers. But one of those subscribers was another American about Levison’s age, 30-year old Edward Snowden, the whistleblower whose leaked documents have added so much to our understanding of the dimensions and activities of the American police state. Snowden opened his moc.tibaval@nedwonsde email account in 2010.
Political repression may not be the government’s overt intent, but it works
At this point, there’s no indication that Levison and Lavabit ever had anything but a commercial relationship with Snowden. It’s even possible that Snowden had nothing to do with the FBI’s initial interest in Lavabit. It may be that Lavabit’s effective security was sufficient offense to the surveillance forces to make it an object of attack for its own sake. In May 2013, Levison says he had the impression the FBI agents who talked to him didn’t even know who or what was the subject of their investigation. The FBI hasn’t said.
Levison is not an obviously political person, he hasn’t been revealed to be involved in party politics or political causes. “Until last summer, Mr. Levison, a Republican of libertarian leanings, had not been active in politics,” according to the New York Times October 9. He seems to be the person he seems to be: a thoughtful, hardworking, physically fit, computer business guy who has had a dog named Princess since January 2010 and who spends a lot of his spare time keeping in shape playing beach volleyball.
Princess has her own album on his Facebook page, where the dominant theme by far is Levison’s competition in beach volleyball (with albums for Sunday Night, as well as Monday, Tuesday, Wednesday, and Thursday Nights) and there is one picture of Levison with Rep. Ron Paul. Levison’s page shows membership in just one Facebook group, “OCCUPY (Support) EDWARD SNOWDEN and All Other Whistleblowers,” to which someone else added him about two months ago. Among his 43 “Likes,” Levison lists two Interests (programming and computers), lots of volleyball Activities, and six books, including William Gibson’s Neuromancer, George Orwell’s 1984, and Dostoevski’s Crime and Punishment.
From another perspective, Levison is as political as the Fourth Amendment, which is as profoundly political as it gets. It was the Patriot Act’s assault on the Fourth Amendment, Levison says, that contributed to his decision to start Lavabit in 2004, when the act was up for renewal and much in the news. Among the many objections to the act was that it gave to federal agents excessive authority to, in effect, write their own search warrants on no other authority but their own. In the Orwellian language of the act, these personal searched warrants are known as “national security letters.” Levison designed the security architecture of the Lavabit email and storage services to be beyond the reach of unwarranted searches, even in national security letters. As Levison recalled on Democracy Now! in August:
“And as I was designing and developing the custom platform, it was right around when the PATRIOT Act came out. And that’s really what colored my opinion and my philosophy, and why I chose to take the extra effort and build in the secure storage features and sort of focus on the privacy niche and the security focus niche…. [for] people who want email but don’t necessarily want it lumped in and profiled along with their searches or their browsing history or any of their other Internet activities.”
You can’t reveal what you don’t know – and that provides more security
During May 2013, Levison met for “a couple hours” with FBI agents at his office, where he explained how his security system and his business operated. As Levison told Democracy NOW! the service included his personal pledge of security:
“I’ve always liked to say my service was by geeks, for geeks. It’s grown up over the last 10 years, it’s sort of settled itself into serving those that are very privacy-conscious and security-focused. We offered secure access via high-grade encryption. And at least for our paid users, not for our free accounts—I think that’s an important distinction—we offered secure storage, where incoming emails were stored in such a way that they could only be accessed with the user’s password, so that, you know, even myself couldn’t retrieve those emails.
“And that’s what we meant by encrypted email. That’s a term that’s sort of been thrown around because there are so many different standards for encryption, but in our case it was encrypted in secure storage, because, as a third party, you know, I didn’t want to be put in a situation where I had to turn over private information. I just didn’t have it. I didn’t have access to it.”
Over the years, Lavabit has received and complied with “at least two dozen subpoenas” from the local sheriff’s office to the federal courts, Levison says, “I’ve always complied with the law.” Each of those subpoenas targeted a specific individual and appeared to Levison to be consistent with the Fourth Amendment. As recently as June 2013, he complied with an unrelated subpoena seeking information on one of his subscribers accused of violating child pornography law.
A secret subpoena from the American police state is different
On June 6, 2013, the Guardian began publishing surveillance state revelations based on documents from Edward Snowden, the Lavabit.com email subscriber. On June 9, Snowden revealed that he was the whistlblower who leaked documents to the Guardian and others. The first secret court order against Lavabit came the next day.
On or about June 10, the Justice Dept., on behalf of the FBI, went to federal court to compel Lavabit to provide information “relevant and material to an ongoing criminal investigation” involving someone with a single Lavabit email account. The FBI has not identified the subject of this investigation, but it is widely believed to be Snowden.
The United States District Court for the Eastern District of Virginia (the Fourth Circuit) granted the FBI’s request and issued the disclosure order against Lavabit that same day. A one-page, single-spaced attachment to the order listed the categories of information to be disclosed, including names, addresses, phone records, other subscriber identities, billing records, activity records, and “information about each communication” – in other words, everything about the email account “not including the contents of communications.” The order did not mention encryption keys, SSL keys, or the like. These are closely guarded secrets in a security business like Lavabit.
The U.S. Magistrate Judge who signed the initial order gave Lavabit 10 days to comply. He also sealed the court records from public view and further ordered that Lavabit “shall not disclose the existence of the application of the United States, or the existence of this order” to anyone except “an attorney for Lavabit.” In other words, Levison was subject to a gag order before he ever found out the FBI was definitely coming after him.
In the meantime, on June 14, the Justice Dept. filed a sealed criminal complaint against Snowden, who was then in Hong Kong. The government accused him of three offenses – theft of government property and two forms of “unauthorized communication” the Espionage Act of 1917. The criminal complaint, which was made public a week later, gave the government 60 days to file a formal indictment.
Getting unsatisfying compliance, the FBI decided to raise the stakes
According to a later Justice Dept. filing: “Mr. Levison received that order on June 11, 2013. Mr. Levison responded by mail, which was not received by the government until June 27, 2013. Mr. Levison provided very little of the information sought….” [emphasis added]
On June 28, the day after getting Levison’s belated response to the June 10 order, the Justice Dept. went back to the Fourth Circuit Court in Alexandria seeking an order “authorizing the installation and use of a pen register/trap device on an electronic mail account” – an FBI wiretap on email. Levison had no notice of the government motion and no opportunity to contest it. A new judge on the case, Magistrate Judge Theresa Buchanan, promptly ordered the wiretap installed on the basis that the government “has certified that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation….” Like the first order, this order did not mention encryption keys, SSL keys, or the like.
FBI special agents met with Levison in Dallas the same day to discuss the new order, which Levison had not yet received, as well as a prior summons to appear before a grand jury. The agents presumably explained to Levison that the court had issued a secret order based on a secret motion, itself based on secret evidence (or none at all) and that Levison was not only compelled to comply but was also still under court order to keep the whole secret process a secret, this time with no exception even for his attorney.
According to a later government filing, “Mr. Levison told the agents that he would not comply with the pen register order and wanted to speak to an attorney. It was unclear whether Mr. Levison would not comply with the order because it was technically not feasible or difficult or was not consistent with his business practice of providing secure, encrypted email service for his customers.”
As Levison months later explained to reporters about Lavabit: “We’re wholly focused on secure email. Without it, we have no business.” In Levison’s view, breaking Lavabit’s security without the right to tell his customers would have been to commit commercial fraud.
Judge Buchanan keeps the pressure on Levison and Lavabit
Following this meeting, the Justice Dept. immediately went before Judge Buchanan seeking an order to compel Lavabit to comply with the other Magistrate’s earlier order and install the FBI wiretap and to “furnish agents from the Federal Bureau of Investigation, forthwith, all information, facilities, and technical assistance necessary to accomplish the installation and use of the pen/trap device…” as ordered pursuant to federal law [U.S. Code, Title 18, sec. 3123].
Judge Buchanan immediately granted the “Order Compelling Compliance Forthwith,” based in part on her findings that “Lavabit informed the Federral Bureau of Investigation that the user of the account had enabled Lavabit’s encryption services and thus the pen/trap device would not collect the relevant information” and that “Lavabit informed the FBI that it had the technological capability to obtain the information but did not want to ‘defeat [its] own system’…”
Judge Buchanan ordered Lavabit to provide “unencrypted data pursuant to the Order.” Noting that failure to comply “forthwith” would subject Lavabit to “any penalty within the power of the court,” Judge Buchanan added in her own handwriting, “including the possibility of criminal contempt of court.” This order was issued under seal.
Previously, Levison faced the possibility of being fined for civil contempt if he failed to comply. Now he also faced going to jail. And the court’s most recent orders, in their plain language, prevented Levison from discussing his situation with anyone, not even an attorney.
According to the FBI, agents “made numerous attempts, without success, to speak and meet directly with Mr. Levison” during the next ten days. On July 9, the Justice Dept. returned to the Fourth Circuit court seeking an order for Lavabit to show cause why it “has failed to comply with the orders entered June 29” by Magistrate Buchanan, and why Lavabit should not be held in contempt of court for its failure to comply.
Judge Hilton decides a hearing with the parties present might help
Judge Claude Hilton issued the show cause order the same day, including a summons for Lavabit to appear at a hearing a week later. Judge Hilton is a secrecy case veteran, having served on the secretive FISA (Foreign Intelligence Surveillance Act) court from 2000 to 2007. The Judge continued to keep the Lavabit case under seal, but reinstated Lavabit’s exception to the gag rule when consulting with an attorney.
The next day, Levison went to the FBI field office in Dallas for a meeting/conference call that included prosecutors and FBI agents in Washington and his attorney in San Francisco, convened “to discuss Mr. Levison’s questions and concerns… [that] focused primarily on how the pen register device would be installed on the Lavabit LLC system, what data would be captured by the device, what data would be viewed and preserved by the government… [and] whether Mr. Levison would be able to provide ‘keys’ for encrypted information.”
The parties did not reach an agreement at the meeting and the next day, July 11, Levison’s attorney informed the FBI that she no longer represented Levison or Lavabit. The same day, Levison “indicated that he would not come to court [for the July 16 show cause hearing] unless the government paid for his travel,” according to a government filing.
Rather than engage in a dispute over travel expenses, the FBI served Levison with a subpoena to appear before a Fourth Circuit grand jury, also on July 16. The government is responsible for the travel arrangements of grand jury witnesses, and the FBI so advised Levison by email. The grand jury subpoena left little wriggle room in its effort to force Lavabit to surrender the encryption keys that were essential to its business:
“In addition to your personal appearance, you are directed to bring to the grand jury the public and private encryption keys used by lavabit.com in any SSL (Secure Socket Layer) or TLS (Transport Security Layer) sessions, including HTTPS sessions with clients using lavabit.com website and encrypted SMTP communications (or Internet communications using other protocols) with mail servers;
“Any other information necessary to accomplish the installation and use of the pen/trap device ordered by Judge Buchanan on June 28….”
“I don’t trust you, but you should trust me” and vice-versa
Levison responded on July 13 with an email to the U.S. Attorney’s office, offering an alternative to the FBI-operated wiretap. Levison proposed that he would collect the court-designated data himself. While he didn’t state it in the email, this would address one of Levison’s primary concerns, that there was no effective oversight to prevent the FBI from gathering more data than the court had allowed. Levison proposed to design and implement the solution, gather the data manually, and provide it to the FBI at the end of the 60-day court order – for a price of $2,000. For another $1,500, he offered to provide data “more frequently,” which would require implementing an automated system.
The U.S. Attorney chose not to explore the offer. In a brusque and internally contradictory reply email the same day, an assistant U.S. Attorney explained “that the proposal was inadequate because, among other things, it did not provide for real-time transmission of results, and it was not clear that Mr. Levison’s request for money constituted the ‘reasonable expenses’ authorized by the statute.” The government later admitted to the court that it was “unclear” as to precise details of the proposal. The clear implication of Levison’s proposal is a willingness to provide real-time transmission for reasonable compensation. But that would leave Levison in control. The government didn’t consider that a useful compromise.
On July 15, Levison flew to Washington for his show cause hearing at 10 the next morning, although he thought it was set for 10:30 and arrived late. He was appearing pro se, representing himself without an attorney.
Even a federal court hearing can be a comedy of errors
The government goal for the July 16 hearing remained unchanged: “Lavabit LLC may comply with the pen register order by simply allowing the FBI to install the pen register devise and provide the FBI with the encryption keys.” Lacking compliance, the government asked the court to impose a civil contempt sanction of $1,000 a day until Lavabit complied.
The government also requested a search warrant for the encryption keys. Judge Hilton granted the search warrant before the hearing began.
As it turned out, the 20-minute hearing resulted in no change in the legal standing of the parties, but did produce a transcript with moments of unintentional hilarity.
Present in the courtroom were Judge Hilton and the court staff. U.S. Attorney James Trump represented the government, along with three other lawyers and an FBI agent. Levison was alone.
The U.S. Attorney wanted to know if Levison was going to comply with the wiretap order, but Judge Hilton wouldn’t ask and Levison wouldn’t say. Or rather, Levison said he had always been ready and willing to comply with installation of the wiretap, but he was reluctant to give up the encryption codes, which would give the FBI access to all 400,000 of his subscribers even though the court order named only one. “There was never an explicit demand that I turn over those keys,” Levison said.
The U.S. Attorney argued that Judge Buchanan had effectively if not specifically ordered Levison to turn over the encryption keys. Judge Hilton wasn’t touching that: “I’m not sure I ought to be enforcing Judge Buchanan’s order.” Judge Hilton said that his order was to install the wiretap and Levison had said he’d do that, so – “You’re trying to get me to deal with a contempt before there’s any contempt, and I have a problem with that.”
Levison moved to unseal all but the sensitive information in the proceedings. Judge Holton denied the motion, based on the underlying criminal investigation. Levison asked the judge to order “some sort of external audit to ensure that your oders are followed to the letter” as to FBI data collection. The judge refused. Levison moved to continue the hearing to allow him to retain counsel. Judge Hilton granted the continuance.
Levison and Lavabit get legal representation from a Virginia firm
Levison’s new attorney is Jesse Binnall of Bronley & Binnall PLLC in Fairfax, Virginia. Binnall, 34, was a communication major at George Mason University and graduated from the Law School there in 2009. Binnall and Levison would later be among the first guests on the New Ron Paul Channel in mid-August.
On July 25, Binnall filed under seal a “Motion to quash” the outstanding grand jury subpoena and the search warrant against Lavabit. The motion requested “that this Court direct that Lavabit does not have to produce its Master Key. Alternatively, Lavabit and Mr. Levinson request that they be given an opportunity to revoke the. current encryption key and reissue a new encryption key at the Government’s expense. Lastly, Lavabit and Mr. Levinson request that, if they are required to produce the Master Key, that they be reimbursed for its costs which were directly incurred in producing the Master Key….”
In support of his motion, Binnall made a number of arguments against the actions of the government, which had not faced serious legal opposition up to this point.
Binnall pointed out that giving the government access to Lavabit’s Master Key is tantamount to giving the government access to all of Lavabit’s 400,000 users. That amounts to a general warrant that is unconstitutional, Binnall wrote, and:
“It is axiomatic that the Fourth Amendment prohibits general warrants [with Supreme Court cases cited]…. The Fourth Amendment’s particularity requirement is meant to ‘prevent the seizure of one thing under a warrant describing another’ [citation omitted]. This is precisely the concern with the Lavabit Subpoena and Warrant and, in this circumstance, the particularity requirement will not protect Lavabit. By turning over the Master Key, the Government will have the ability to search each and every ‘place,’ ‘person [and] thing’ on Lavabit’s network…. Additionally, the Government has no probable cause to gain access to the other users accounts.”
The government seemed unconcerned about Levison’s business survival
Bindall also argued that the court should quash the subpoena and search warrant as creating an “undue burden” on Lavabit as defined by law [U.S. Code Title 18, sec. 2703]:
“Not only has Lavabit expended a great deal of time and money in attempting to cooperate with the Government thus far, but, Lavabit will pay the ultimate price –the loss of its customers’ trust and business – should the Court require that the Master Key be turned over. Lavabit’s business, which is founded on the preservation of electronic privacy, could be destroyed if it is required to produce its Master Key.”
Also on July 25, Binnall filed a motion to unseal court records and to lift the gag order on his client, since the “gag order infringes upon freedom of speech under the First Amendment, and should he subjected to constitutional case law. “
Unsurprisingly, the U.S. Attorney filed a motion in opposition.
At the motion hearing on August 1, Judge Hilton engaged in lengthy colloquy with attorney Binnall. Before the 25-minute hearing was half over, the judge had denied both motions and the U.S. Attorney had said little more than “Good morning.” Judge Hilton gave Levison and Lavabit until 5 p.m. Dallas time on August 2 to comply.
Levison’s compliance took an unexpected form
The next day in Dallas, at about 1:30 p.m., Levison provided information that purported to be full compliance with the court’s orders. Whether it was actual compliance remains uncertain. The government was not happy and engaged with attorney Binnall to achieve satisfactory compliance, without success. On August 5 the government filed a motion for sanctions against Levison, calling his apparent compliance “unworkable” and describing it as follows:
“Mr. Levison gave the FBI a printout of what he represented to be the encryption keys needed to operate the pen register. This printout, in what appears to be 4-point type, consists of 11 pages of largely illegible characters. See Attachment A. (The attachment was created by scanning the document provided by Mr. Levison; the original document was described by the Dal!as FBI agents as slightly clearer than the scanned copy but nevertheless illegible.) Moreover, each of the five encryption keys contains 512 individual characters — or a total of 2560 characters. To make use of these keys, the FBI would have to manually input all 2560 characters, and one incorrect keystroke in this laborious process would render the FBI collection system incapable of collecting decrypted data.”
When this compliance effort became public two months later, TechCrunch called it “an epic troll.” At the time, the government was not amused and called for the court to sanction Levison $5,000 a day, beginning at noon August 5. The court promptly granted the motion, while reminding the parties that all aspects of the matter remained under seal. Known only to the participants and some court employees, the case was still unknown to the public.
Levison makes a tantalizing public announcement
That secrecy ended on August 8, when Ladar Levison shut down Lavabit, posting a short notice on the Lavabit.com website, together with a link to the Lavabit Legal Defense Fund. As Levison explained:
“I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on – the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.
“What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.
“This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.”
Also on August 8, Levison fully complied with the Fourth Circuit courts orders, turning over the encryption keys to a now defunct service. He had incurred 2 days of sanctions – owing the government $10,000 – which remains pending.
The next day, Silent Circle, a global encrypted communications service, stayed in business but preemptively wiped out its email service (about 5 per cent of its customers) in anticipation of a government request that the company wouldn’t want to have to obey. “Meanwhile, Silent Circle is working on replacing its defunct e-mail service with a system that doesn’t rely on traditional e-mail protocols and keeps no messages or metadata within the company’s grasp. It is based on a protocol often used for instant messages and other applications. [CEO Mike] Janke says the goal is for this to not be e-mail, but ‘for all intents and purposes it looks, feels, and acts like e-mail,’” according to MIT Technology Review.
Lavabit’s closing drew some news coverage over the next week, but any story was hampered by the gag order that severely limited what Levison and Binnall could safely say. As Levison told Forbes the day after shutting down Lavabit:
“This is about protecting all of our users, not just one in particular. It’s not my place to decide whether an investigation is just, but the government has the legal authority to force you to do things you’re uncomfortable with….The fact that I can’t talk about this is as big a problem as what they asked me to do…. The methods being used to conduct those investigations should not be secret.”
The FBI and the Justice Dept. Have not commented publicly about the Lavabit case beyond their court filings.
Being secret, federal court appeal gets no news coverage
On August 15, Lavabit attorney Binnall filed notice – under seal – that he was appealing the federal district court’s rulings of August 1 and August 5 to the United States Court of Appeals for the Fourth Circuit. In other words, the government can not only keep the public ignorant of what it’s doing, it can also prevent the public from knowing that anyone objects to the government’s actions as unconstitutional.
In the Lavabit case, at least, this changed abruptly on October 2, when Judge Claude Hilton ordered a censored version of 23 documents (162 pages) made public. The redactions in these documents appear, from context, to be intended mostly to conceal details of the criminal investigation into Snowden or some other lavabit.com user. Since the unsealing of the court documents, news coverage had expansed, and Levison and Binnall have appeared in public across the country to argue their cause. As Levison put it on his Facebook page October 2:
“If the Obama administration feels compelled to continue violating the privacy rights of the masses just so they can conduct surveillance on the few then he should at least ask Congress for laws providing that authority instead of using the courts to force businesses into secretly becoming complicit in crimes against the American people.”
In 2005, a U.S. Senator addressed a similar concern, when Congress was about to pass a law creating the “national security letter,” a secret government process much more intense and unforgiving than what Levison went through last summer:
“This is legislation that puts our own Justice Department above the law. When national security letters are issued, they allow federal agents to conduct any search on any American, no matter how extensive, how wide-ranging, without ever going before a judge to prove that the search is necessary. All that is needed is a sign-off from a local FBI agent. That’s it.
“Once a business or a person receives notification that they will be searched, they are prohibited from telling anyone about it, and they’re even prohibited from challenging this automatic gag order in court. Even though judges have already found that similar restrictions violate the First Amendment, this conference report disregards the case law and the right to challenge the gag order.
“If you do decide to consult an attorney for legal advice, hold on. You will have to tell the FBI that you’ve done so. Think about that. You want to talk to a lawyer about whether or not your actions are going to be causing you to get into trouble. You’ve got to tell the FBI that you’re consulting a lawyer. This is unheard of. There is no such requirement in any other area of the law. I see no reason why it’s justified here.
“And if someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document, through the library books that you read, the phone calls that you’ve made, the emails that you’ve sent, this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear your plea; no jury will hear your case. This is just plain wrong.”
The question is: how much of a police state do we have already?
That Senator was concerned eight years ago, and that Senator was Barack Obama. Today, national security letters are part of the law of the land, the Obama administration uses them, and if you get one, talking about it is against the law. In that context, since Ladar Levison apparently did not get a national security letter, he was lucky. The country, not so much.
On October 10, in the United States Court of Appeals for the Fourth Circuit, Lavabit filed the opening brief of its appeal of the lower court’s orders. The United States has until November 4 to file its answer. This will take awhile, it will take effort to follow, but it matters.
President Barack Obama has chosen a former Pentagon attorney who defended the extrajudicial killing of American citizens to man the helm of the United States Department of Homeland Security and replace outgoing Secretary Janet Napolitano.
Jeh Johnson, a general counsel for the Pentagon during the president’s first term in office, was named by Mr. Obama as his choice for new DHS secretary during a Friday afternoon press conference.
“The president is selecting Johnson because he is one the most highly qualified and respected national security leaders,” a senior administration official told the Washington Post on Thursday while speaking condition of anonymity. “During his tenure at the Department of Defense, he was known for his sound judgment and counsel.”
Johnson, 56, served as a special counsel during John Kerry’s unsuccessful 2004 run for the presidency before assisting with Obama’s campaign four years later. During his first week in office, Obama nominated Johnson as DoD general counsel and he was confirmed by the Senate in Feb. 2009.
Up until his resignation from Defense Department attorney in December 2012, Johnson advised the largest military in the world, including during historic matters regarding the repeal of the Pentagon’s ban on openly gay troops and the reform of military commissions.
That same span in the Pentagon was also marred by Obama administration decisions that opponents of the president’s latest pick have been quick to pounce on.
While working as one of the top attorneys for the US military, Johnson authorized the execution of Anwar al-Awlaki, an American citizen and suspected senior figure in Al-Qaeda who was killed by a drone strike in Yemen in late 2011. That slaying was carried out by an operation conducted by the Pentagon in cooperation with the Central Intelligence Agency and has drawn immense criticism directed at the White House and the president’s extrajudicial killing of an American citizen.
The New York Times reported shortly after that Johnson told attendees at a speech at Yale Law School that “Belligerents who also happen to be US citizens do not enjoy immunity where non-citizen belligerents are valid military objectives.”
The president postponed offering full justification for the attack until this past May when he said, “I do not believe it would be constitutional for the government to target and kill any US citizen — with a drone, or with a shotgun — without due process . . . But when a US citizen goes abroad to wage war against America and is actively plotting to kill US citizens, and when neither the United States, nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team.”
Johnson also served as general counsel during the height of the WikiLeaks scandal that involved the unauthorized disclosure of hundreds of thousands of sensitive documents. In a letter to the whistleblower organization published in August 2010, Johnson blamed WikiLeaks for their “illegal and irresponsible actions,” and said that the leaking of classified materials aided America’s enemy in “their own terrorist aims.” Earlier this year, a military judge said that Chelsea Manning, the Army analyst who admitted to giving those files to WikiLeaks, did not aid Al-Qaeda by supplying the website with documents.
Johnson said in the same letter that the Pentagon “demands that NOTHING further be released by WikiLeaks, that ALL of the US Government classified documents that WikiLeaks has obtained be returned immediately and that WikiLeaks remove and destroy all of these records from its databases.”
Mr. Obama officially nominated Johnson at a 2 p.m. meeting, paving the way for the Senate to formally decide if they will appoint the president’s pick.
“If confirmed by the Senate, I promise all of my energy, focus and ability towards the task of safeguarding our nation’s national and homeland security,” Johnson said after being introduced by the president.
The NSA has attacked key European institutions such as the EU parliament and banking system, using malware to find out all there is to know about other countries in a power game, Andy Mueller-Moguhn, founder of Buggedplannet.info, tells RT.
He says that in a world where so many communications go over the web we all have something to protect rather than something to hide, as proponents of mass surveillance often argue.
RT:No matter what precautions companies take or measures to protect the privacy of subscribers isn’t the agency [NSA] capable of bypassing all these routes?
Andy Mueller-Moguhn: I would say it like this; unfortunately in Germany we have a situation that the trustworthiness or our foreign and interior intelligence service watching their high level of cooperation with the NSA and GCHQ does not make them trustworthy at all. If they can intercept the stuff, they might hand it over in a bargain to the Americans, which is not helpful.
So this means that what is to be done, is to ensure on whatever level in whatever country that encryption for the end user is becoming available like easy to use and as a standard tool, because you send your postal letters in an envelope so should you do with your emails.
RT:Let’s look at the situation from both sides. On the one hand we have the privacy of citizens that has of course to be respected, but on the other hand there are some companies who are fighting hard to protect their privacy. Doesn’t that give us a cause for concern, that they have something to hide, some skeletons in the closet as they say?
AMM: The point is that we have seen that installations of the United States National Security Agency, attacking also carriers in Europe, as we’ve seen with things that have nothing to do with terrorism or with fighting terrorism. They have a lot to do with power games or with knowing everything about other countries, about business, about embassies, about other country’s governments as we also see with the Brazilian presidential interception.
So obviously the thing that you have nothing to hide is totally wrong in the case that everybody has something to protect and in the days where everything, cultural, economic, political, things go over the internet and advance knowledge of a political decision, which can have for example an impact on stock rates, on currencies, on country’s reputations and so on. This is worth a lot of money and we have not really come to the bottom, we have seen a big part of this NSA approach, we have seen a lot of money, a lot of effort internationally to intercept all communications, but we have not yet come to the question, who is the customer, in the sense who are the guys ordering this, getting the product and using that.
That it is still a very interesting question where we come to monetary, political and other influences being taken with blackmailing, with greymailing, with advanced knowledge about what other people think, act and do.
RT:You mentioned an interesting point here saying that it’s not the point whether we have something to hide, but it’s what we have to protect. In that case what’s your take on the role of America as a global policeman? Does it have any moral authority to conduct global surveillance?
AMM: The point is that we have seen attacks, not passive interception but buggedplannet.info was subject to an attack in the sense that there was malware installed in the system, there were exploits used, the NSA literally took control over the network. This cannot be excused with fighting terrorism at all. This obviously was targeting the European parliament, it was targeting the European airspace control, it was targeting the SWIFT network or the banking network, so obviously there is no moral excuse here in terms of this being to do with fighting terrorism or ensuring security. This is about the global interest of the United States against other European and other peaceful acting countries and democratic organized entities.
By Freddie Ponton | 21st Century Wire | September 5, 2026
Before the killings that helped bring down Ukraine’s president in February 2014, American diplomats were discussing who should enter its government. In a leaked telephone call, senior State Department official Victoria Nuland told US ambassador Geoffrey Pyatt, “I think Yats is the guy,” referring to opposition leader Arseniy Yatseniuk. Washington had clear preferences and was working to advance them. Later that month, Yatseniuk became prime minister.
Ivan Katchanovski’s The Maidan Massacre in Ukraine examines the violence that preceded that transfer of power. Drawing on television footage, witness testimony, forensic examinations and Ukrainian court proceedings, he argues that elements of the opposition shot protesters and police in a false-flag operation. His case centres on evidence of protesters being shot from opposition-controlled locations, including Hotel Ukraina, overlooking the killing ground. … continue
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