“A Major Wakeup Call For All Canadians” – Snowden-Documents reveal more of the CSE’s formidable powers

The CSE – Communications Security Establishment – is Canada’s own surveillance agency. So far, little has been known about it and anyway, in the wake of the Snowden-disclosures, greater attention has been paid to the NSA and the GCHQ. This might now change. Latest revelations reported jointly by Canada’s CBC and The Intercept reveal that CBS

has developed a vast arsenal of cyberwarfare tools alongside its U.S. and British counterparts to hack into computers and phones in many parts of the world.

According to CBC,

The CSE toolbox includes the ability to redirect someone to a fake website, create unrest by pretending to be another government or hacker, and siphon classified information out of computer networks.

This will of course sound familiar to anyone who has been following the reporting based on the documents provided by Edward Snowden. For example, it was revealed a while ago that the NSA has the ability to redirect someone to fake websites which appear to be social media like Facebook.

Previous revelations about the CBS have included the information that it

maintains a network of infected private computers — what’s called a botnet ​— that it uses to disguise itself when hacking targets.

CBC further reports that CBS and NSA cooperate closely. No surprises there. What is new are revelations about CBS’s “cyber-spy capabilities that go beyond hacking for intelligence, including:

– destroying infrastructure, which could include electricity, transportation or banking systems;

– creating unrest by using false-flags — ie. making a target think another country conducted the operation;

– disrupting online traffic by such techniques as deleting emails, freezing internet connections, blocking websites and redirecting wire money transfers.

These are highly offensive and disruptive capabilities.

According to National Security Expert Christian Leuprecht, Canada has no intention “– for now – to become embroiled in a dangerous cyberwar by using its most destructive tools to attack other countries.”

Well, that’s a relief! Or not. The “for now” hints that starting a cyberwar at some point isn’t something everyone in Canada categorically rejects.

In any case, the most recent revelations have prompted Ronald Deibert, director of the Citizen Lab, an internet research group at University of Toronto’s Munk School of Global Affairs to say:

These are awesome powers that should only be granted to the government with enormous trepidation and only with a correspondingly massive investment in equally powerful systems of oversight, review and public accountability.

Christopher Parsons, a surveillance expert at Citizen Lab, pointed out that Canada’s computer networks had already been “turned into a battlefield without any Canadian being asked: Should it be done? How should it be done?”

The CSE itself has issued a statement saying, among other things that “the leaked materials are dated documents…As a result, the information in these documents does not necessarily reflect current CSE practices or programs” while also complaining that “the publication of these documents renders our methods less effective when addressing threats to Canada and Canadians” – the latter being the much-used damage to national security argument that has already been called into question in relation to the US and the UK.

Naturally, there have been calls for debate in Canada, which is especially important at a time when “the Anti-Terrorism Act, Bill C-51, currently being debated, could legalize use of some of the capabilities outlined in these classified documents.” For example, while the bill in question provides increased powers to CSIS, Canada’s domestic surveillance agency, it would allow CSIS “to more readily use or exploit the latent domestic capabilities that CSE [its sister-agency] has built up.” Currently, CSE – according to its own statement – already “provides technical assistance to federal law enforcement and security agencies…at their specific request and only under the requesting agency’s legal authority, such as a warrant”.

In light of this, recent and past revelations should indeed serve as a “major wake-up call for all Canadians” to debate whether or not their surveillance agencies should have powers that would allow them, for example to “[rig] the outcome of online polls, [send] out fake messages on Facebook across entire countries, and [post] negative information about targets online to damage their reputations.”

That debate is long overdue – and not just in Canada either. Whether Canadians will heed this wake-up call and begin the debate is an entirely different matter, of course. Opposition to Bill C-51 suggests that at least some of them are.

Glenn Greenwald: U.S. Threatened Germany Over Snowden Asylum

Reblogging this because it will give English readers an idea of what I have written about in my German post today. Needless to say I completely agree with this author.

JONATHAN TURLEY

By Darren Smith, Weekend Contributor

220px-Glenn_greenwald_portrait Glenn Greenwald

During a conference held to award Journalist Glenn Greenwald the Siebenpfeiffer Prize for Journalism, Greenwald reported a conversation in which German Vice Chancellor Sigmar Gabriel. In this the Vice Chancellor commented to him that the United States threatened Germany with withholding vital intelligence of terrorist activity if the nation granted asylum to Edward Snowden or otherwise allowed him to travel to Germany.

The event shows the extreme measures the Administration is willing to take regarding whistleblowers and others labeled as threats.

View original post 662 more words

Drohung oder nicht: Sigmar Gabriels Äußerungen zum Snowden-Asyl bleiben bedenklich

Über die Einstellung der Bundesregierung zum Thema Asyl für Edward Snowden und das widersprüchliche Verhalten von Vizekanzler Gabriel habe ich mir hier ja schon wiederholt ereifert und schließlich bei Herrn Gabriel wegen seiner komplett gegensätzlichen Äußerungen vor und nach der letzten Bundestagswahl nachgefragt. Eine Antwort blieb bisher aus.

Dennoch gab es diese Woche Neuigkeiten zum Thema. Glenn Greenwald, der gemeinsam mit Edward Snowden in Deutschland auf der CeBIT gesprochen und zudem den Siebenpfeffer-Preis im Saarland erhalten hatte, zitiert Gabriel, die amerikanische Regierung habe der deutschen Regierung damit gedroht, die Zusammenarbeit zwischen NSA und BND einzuschränken, sollte Deutschland Edward Snowden Asyl gewähren. Dies unmittelbar nach der Meldung, das britische GCHQ habe eine ganz ähnliche Drohung ausgesprochen, solle der BND dem NSA-Untersuchungsausschuss des deutschen Bundestags weiterhin das GCHQ betreffende Akten zur Einsicht vorlegen. Nun erpressen also nach den Briten auch die Amis die Deutschen?

Wenn was Greenwald schreibt stimmt, stellt sich die Frage, was für Rüpel da eigentlich die Großmächte dieser Welt regieren. Denn in der Tat würde das Beenden der Zusammenarbeit mit Deutschland in Geheimdienstfragen doch, wie Greenwald schreibt, bedeuten, dass die USA die deutsche Bevölkerung wissentlich und mit voller Absicht der Gefahr eines terroristischen Anschlags aussetzen würden, sofern die USA davon wüssten, Deutschland diese Information jedoch aus schlichtem Groll vorenthielten. Dass Massenüberwachung im Stile der NSA nachweislich wenig nutzbringend ist, ist hierbei nebensächlich. Es ist die Intention hinter einer solchen Drohung, die völlig inakzeptabel wäre. Hier wäre dann also ein Land, das sich selbst immer wieder als Verfechter weltweiter Menschenrechte hinstellt und zudem wiederholt an die jahrzehntelange Freundschaft mit Deutschland appelliert, bereit, diesen „Freund“ sich selbst zu überlassen, sobald dieser nicht gehorsam ist? Das klingt so abstrus, dass man es sich kaum vorstellen kann. Die Disproportionalität wäre schlicht undenkbar: Der Zorn über die unterlassene Auslieferung eines einzelnen Mannes, der – nebenbei bemerkt – in den USA auf kein faires Verfahren hoffen kann, kann kein Anlass dafür sein, die gesamte deutsche Bevölkerung eben jener Gefahr auszusetzen, mit der die Massenüberwachung durch NSA und Co. wieder und wieder gerechtfertigt wird. Aber haben USA und Großbritannien diese Drohungen wirklich so ausgesprochen?

Laut der Deutschen Welle hat die Regierung Obama dies bereits dementiert. Allerdings weist Greenwald darauf hin, dass dies nicht die erste angebliche Drohung dieser Art wäre. Ähnliches soll auch schon zwischen den USA und Großbritannien vorgefallen sein. Greenwald hält es daher für plausibel, dass Gabriels Aussagen der Wahrheit entsprechen, auch wenn bisher sonst niemand aus der deutschen Regierung von einer Drohung durch die USA berichtet hat. Auch Darren Smith gibt zu Bedenken, dass vergangene Dementis der US-Regierung nicht gerade für deren Glaubwürdigkeit sprechen.

Eine Drohung wie Greenwald sie zitiert wäre zumindest eine Erklärung dafür, weshalb sich die Bundesregierung auf jede nur erdenkliche Weise gegen eine Vernehmung Edward Snowdens durch den NSA-Ausschuss sträubt. Sie würde außerdem erklären, wieso Herr Gabriel selbst vor der letzten Bundestagswahl zum Thema Snowden-Asyl das Gegenteil von dem gesagt hat, was er nach der Wahl sagte. Dass Greenwald sich „etwas aus den Fingern saugt“ scheint unwahrscheinlich: man mag über den Mann denken, wie man will, als Lügner ist er eigentlich nicht bekannt. Gabriel dagegen dreht bekanntermaßen gerne sein Fähnchen mit dem Wind. Die Sprecherin des Vizekanzlers behauptet indes, Gabriel habe schlicht

auf die Rechtslage hingewiesen: Es gebe keine juristische Grundlage dafür, Edward Snowden in Deutschland Asyl zu gewähren. Alle weiteren Spekulationen erübrigten sich damit.

Das ist so auch nicht ganz korrekt: über die rechtliche Grundlage herrscht nach wie vor Uneinigkeit und auch hier schlug Gabriel vor seiner Ernennung zu Merkels Vize ganz andere Töne an. Und über das Paradoxon, einerseits Greenwald zu ehren, sich andererseits aber für die Vorratsdatenspeicherung auszusprechen muss man eigentlich gar nicht reden – letzteres stößt völlig zu Recht beim SPD-Parteinachwuchs auf Verärgerung und Ablehnung.

Aber selbst wenn die Handlungen und Aussagen der BuReg und Herrn Gabriels auf eine solche schlicht unfassbare Drohung der USA zurückgehen, macht das die Sache kaum besser. Denn es zeigt zum einen, wozu die USA bereit sind, um ihren Willen in der Welt durchzusetzen. Zum anderen spricht es Bände über die sogenannte Freundschaft zwischen USA und Deutschland. Zum Dritten gibt es doch sehr zu denken, wie sehr Deutschland offenbar von den USA abhängig ist. Wobei die Sache mit der Abhängigkeit ja schon infolge der Drohungen der britischen Regierung „geklärt“ wurde: „Ohne die Infos der Amis und der Briten aus der Funkaufklärung wären wir blind“, warnte da ein Verfassungsschützer im FOCUS.

Aber ob nun, wie Greenwald schreibt, Gabriel die Wahrheit gesagt hat oder sich die BuReg (nicht zum ersten Mal) schlicht hinter einem Vorwand versteckt: es wäre in jedem Fall schwierig zu sagen, was schlimmer ist – die Rüpelhaftigkeit des „Freundes“ Amerika oder die Rückgratlosigkeit der BuReg. Wobei die BuReg, wie ich bereits anderer Stelle bemerkte, sich für Drohungen auch nicht zu schade ist. Man denke nur mal an das hier bereits besprochene Rechtsgutachten in der Snowden-Frage oder die gerade erschienene Zwischenbilanz des Grünen-Obmanns im NSA-Ausschuss Konstantin von Notz, der verzögerte, unvollständige und geschwärzte Aktenlieferungen ebenso beschreibt, wie persönlichen Druck auf die Ausschussmitglieder. Die Geheimhaltung der BuReg zu den Machenschaften ausländischer Dienste in Deutschland treibt, wie es auf Golem heisst, bizarre Blüten. Das klingt nicht so, als seien die USA allein verantwortlich für die Weigerung der Regierung Merkel, Snowden nach Deutschland zu holen. Eher wohl danach, dass die Regierung nicht zulassen will, dass zu detaillierte Informationen über die eigene Beteiligung an der durch von Notz beschriebenen „Missachtung von Menschenrechten und Rechtsstaatlichkeit“ an die Öffentlichkeit gelangen.

Gabriels widersprüchliche Aussagen scheinen jedenfalls ein weiterer Beweis dafür, dass man auch in Deutschland mit vielen Politikern keine rationale Debatte über Snowden und Massenüberwachung führen kann – und das noch nicht einmal, wenn man im eigens dazu ernannten NSA-Untersuchungsausschuss sitzt. Dessen Aufklärungsarbeit schreitet mühsam voran, macht aber laut von Notz dennoch Fortschritte. Ob das eingedenk der Tatsache, dass einem Ausschuss, in dem „[d]ie kleine Opposition aus Linken und Grünen… die Last [der Aufklärung] weitgehend allein [trägt]“ nur „zwei Jahre Zeit [bleiben], um der Öffentlichkeit das Ausmaß des anhaltenden Skandals zu verdeutlichen und den notwendigen Druck für gesetzliche Veränderungen aufzubauen“ nun Grund zum Optimismus ist, ist fraglich:

Ob der Ausschuss im nächsten Jahr daher viel mehr Neues zutage fördert, ist…alles andere als sicher. Auf eine Vernehmung Snowdens in Deutschland sollte er allerdings nicht hoffen.

War eh klar. Armes Deutschland!

The ISC’s post-Snowden report: not that much of a landmark after all

This week saw what has been described as “a landmark report prompted by the revelations of Edward Snowden”. It was issued by the British parliament’s intelligence and security committee (ISC), following an 18-months inquiry.

While the report has been hailed by some because it finds that the legal framework that regulates the work of the British intelligence agencies is “unnecessarily complicated and – crucially – almost impenetrable”, allowing “[t]he current laws [to] be construed as providing the agencies with a “blank cheque to carry out whatever actives they deem necessary”,” it also – equally crucially –

finds that existing laws are not being broken by the agencies and insists the bulk collection of data by the government does not amount to mass surveillance or a threat to individual privacy.

Misleading definitions

The latter finding is more than a little misleading. That is because the ISC understands mass surveillance to mean that any records that are being stored have to be read by a human for the practice to be counted as surveillance. Therefore, “as most of the material GCHQ collects is never looked at by its staff, this cannot be said to be mass surveillance.”

Not only is this definition of surveillance – which is shared by the NSA – far from uncontested. What is more, while “[t]he ISC report notes on several occasions that GCHQ stores only a small percentage of what it intercepts (the exact figure is redacted)”, this doesn’t take into account the fact

a huge portion of traffic [the GCHQ] intercepts is peer-to-peer file sharing, and video streaming. These large files are of no value to the agency, and so are filtered out of its intercepts. That means the agency could be storing every bit of (say) email traffic that crosses its sensors, but still say it is not retaining the vast majority of what it intercepts.

We have come across this kind of semantics many times before:

1.) bulk collection and mass data retention aren’t mass surveillance as long as no human looks at the data (never minding the fact that just because no one is looking at it now that doesn’t mean they won’t be looking at it later).

2.) the majority of content is filtered out (a claim that may be more than a little disingenuous because the kind of content that is of little value to the agencies are files of huge sizes, as compared the kind of content the agencies are interested in, which is much smaller in size. Thus when the agencies claim that they filter out the majority of content, what they might actually be talking about is mass in terms of file size, not mass in terms of revelatory records.)

It is therefore important to bear in mind that

the simple fact of your communications or internet activity being stored gives the potential for it to be accessed, deliberately or accidentally, properly or not (some intelligence staff have lost their jobs for improperly accessing personal data, the report reveals).

The fact that some intelligence staff have lost their jobs for improperly accessing personal data is more worrying than the ISC – which maintains that there were only “a small number of” incidents – lets on. It shows the potential for abuse and makes another of the report’s findings all the more worrying:

In the single most important revelation, the report reveals for the first time that the agencies have had the capability to trawl through personal records and form and examine “bulk personal datasets” without any statutory oversight (my emphasis).

 

Bulk personal datasets, no statutory oversight

Now, “bulk personal datasets” may sound a bit obscure so here is what they are:

datasets containing personal information about a wide range of people [which] vary in size from hundreds to millions of records…there is no legal constraint on storage, restraint, retention, sharing and destruction.

Someone correct me if I’m wrong but what I understand this to mean is that there is potentially a whole load of personal data, up to millions of records on some people, with no legal constraint on how that data is stored, kept, shared or destroyed. So, potentially huge stacks of personal data have been collected on some or all of us and there is no legal framework making sure that the data doesn’t get stored indefinitely or shared with third parties (which we know has been happening and was previously ruled unlawful). What is even more concerning – this is where the oversight bit comes in – is that “[s]urveillance agencies do not require ministerial authorisation to access the information.” So not only could the agencies store everything, they could also access it without authorisation from a minister (or judge) if they so wished.

While the report doesn’t reveal the nature of the information stored in these datasets, they have been likened to a telephone directory of “people in a certain category of interest to the agencies.” This may sound reassuringly exclusive but it probably isn’t:

Firstly, the idea of a phone directory

gives a hint as to what these datasets are likely to be: information collected by private companies and resold to the government. Such information could potentially cover… credit ratings information, or information from social networking apps. It could also include information like address history (to see who used to live together) or phone number history.

To take the telephone directory metaphor further, your name and phone number can potentially tell the agencies a lot about you, if the spooks connected that data to other records. Put together, different sets of metadata could paint quite a detailed picture of who you are and who you associate with. This is particularly troubling when you consider that “the call records of UK citizens can be accessed without individual warrants.”

Secondly, “people in a certain category of interest to the agencies” is incredibly vague. When does a person become a person of interest? Does this include, for example, anti-fracking protesters, people who attend certain political rallies, people who attend cryptoparties? It’s been known to happen.

 

Metadata: much more intrusive than the ICS concedes

Speaking of the much-discussed metadata: the ISC considers metadata access much less intrusive than content and therefore argues that it “needs fewer safeguards to collect”. However, whether or not accessing records of your entire call history – how often you called someone, when and for how long – is less intrusive or telling than listening to the content of individual calls is open to discussion.

An example: your phone records could show that you made a call to your gynaecologist, then several calls to your boyfriend a couple of days later and then a call to an abortion clinic. Far from being less intrusive, this could give people a pretty good idea about what the content of your individual calls might have been – and possibly also allow a good guess at the status of your relationship.

Interestingly, the ISC makes a distinction between what is calls “regular” as opposed to “irregular” metadata. Irregular metadata, such as “your exact location, internet history, or even passwords”, the ISC concedes, “has the “potential to reveal a great deal about a person’s private life”.” As such, the ISC recommends that is should be called “communications data plus” and have additional safeguards versus regular metadata.” At least that concession is “a stark contrast to the views of the intelligence agency bosses” and the ISC recommends “new privacy constraints on the communications data that goes beyond the narrow definition of “what, when, where of communications”, such as web domains visited or location tracking information in a smartphone.” However, Paul Bernal raises some crucial points about the ICS’s understanding (or lack thereof) of the value of metadata to the GCHQ that are worth reading. As is his entire blog post on the subject.
Internal vs external communications: a meaningless distinction

One of the most bewildering aspects of the data collection and retention debate has been the much-contested distinction between “internal” and “external” communications. This is important because foreign intelligence agencies aren’t allowed to access the “internal” communications of the country they operate in, while domestic intelligence agencies need warrants to do so. Hence, someone in the UK making a phone call to someone else in the UK would be protected from GCHQ surveillance, while MI5 and MI6 would need to obtain a warrant to access the communications. In the internet age, the distinction between these two types of comms isn’t as clear-cut, however, and thus allows for the exploitations of various legal loopholes: if someone in the UK chats to someone else in the UK via Facebook, that communication takes place on a Facebook server that is located somewhere in the US and could therefore be classed as external. The ISC itself concedes that the distinction between external and internal communications has been rendered meaningless.

This is especially interesting when considering that while the ISC report states that the communications of someone in the UK cannot be searched for (within all those communications that the spooks have stored) without a warrant, it doesn’t say that these cannot be read without a warrant. What this means is that if you in the UK spoke to your friend in Germany, your end of the communication could not be searched for by the GCHQ but your friend’s could. The spooks could get at your communications through your friend and – because no warrant is required to read them – peruse them at their leisure.

Hence, one of the report’s recommendations is that

the communications of UK nationals abroad should receive the same level of protection under the law irrespective of where the person is located. The interception and communication of data should be authorised through an individual warrant signed by a secretary of state.

What this requirement doesn’t address is the question of what happens when a UK national in the UK communicates with a non-UK national outside of the UK who wouldn’t be covered by that level of protection. Back we are to a loophole.

 

Edward Snowden “not helpful” according to the ISC

The ISC’s view on Edward Snowden – without whom a review of these practices would not have taken place – is noteworthy:

The committee would take the view that stealing classified information and releasing it across the world is not helpful. But this report is not about Edward Snowden.

Given that the committee has just concluded an 18-month inquiry into the practices of the UK’s intelligence agencies and found the legislation governing these practices in dire need of reform and grounds for “serious concern”, the idea that Snowden has been unhelpful by making people across the globe aware of what the NSA, the GCHQ and others like them are doing seems bizarre.

 

Don’t get too excited: it’s not as “hallmark” as all that

The call for an overhaul of a “piecemeal and… unnecessarily complicated” legal framework and greater transparency is indeed important and the ISC’s demand that all “capabilities which provide the content of an individual’s communications should be subject to the same legal safeguards” (i.e. justified as legal, necessary and proportionate and subject to a ministerial warrant) is somewhat promising (even though some ministers, like Philip Hammond, do not seem to quite understand what exactly it is, they are signing warrants for).

Yet, the ISC’s “lengthy defence of the bulk collection of data”, its finding that “all the surveillance activities of the intelligence agencies are lawful and proportionate” and its conclusion that bulk collection “does not amount to mass surveillance since the agencies have neither the resources nor desire to examine all the information they gather” means that we cannot get too excited about the report either – as many civil liberties and civil rights activists who have criticised both the report and the ISC have pointed out.

The Guardian’s Alan Travis takes issue with the fact that

[i]t is hard to believe reading the ISC report that in the past few weeks GCHQ has twice been found to have been acting unlawfully for the past seven years for failing to disclose the human rights safeguards it employs in its bulk data collection programmes.

In parts, the report indeed does make it seem as if privacy was perceived as little more than “a technicality”.

Personally, I find it concerning that the ISC finds that “[t]he disruption of terror attacks trumps privacy concerns when it comes to bulk interception”. Not only does this continue the scaremongering we have seen so much of over the past years and months but also is there little evidence that bulk collection and mass data retention are effective tools for preventing terrorist attacks.

The ISC’s statement that “[w]hile we recognise privacy concerns about bulk interception, we do not subscribe to the point of view that it is acceptable to let some terrorist attacks happen in order to uphold the individual right to privacy – nor do we believe that the vast majority of the British public would” is disingenuous not only because of the lack of evidence that bulk collection stops terrorists but also because the British public, effectively, hasn’t been asked.

It shall be interesting to see how substantial legislative reforms will be in the time to come and whether a “a serious and sustainable framework” that – crucially – includes “a “shield law” for journalists” that will allow them “to protect their sources, materials and communications” will be achieved, or if the ISC report has indeed paved the way for the Snooper’s Charter.

Philip Hammond proves the point: politics doesn’t want a rational debate about surveillance

On 10th March 2015, I had an article published (in German) on the GCHQ’s threats to end cooperation with Germany’s foreign intelligence agency if the German NSA-Inquiry continued looking into the questionable surveillance practices of the GCHQ. I quoted Guardian editor-in-chief Alan Rusbridger who suggested at a discussion panel on the Snowden-revelations on 2nd March that politicians in the UK find it almost impossible to have a rational discussion about the subject of surveillance. On the same day that my article went online, UK Foreign Secretary Philip Hammond went ahead and, once again, proved Rusbridger’s point.   Say what? Snowden debate “cannot be allowed to run on forever” Hammond said that Britain needed to “draw a line under the debate about mass surveillance by the intelligence agencies sooner rather than later to stop them getting distracted from their work.” Hammond also threatened added that his party (the Conservatives) “would legislate early in the next parliament to give the security services extra powers” because the debate about privacy sparked by the American whistleblower Edward Snowden… “cannot be allowed to run on forever”:

We need to have it, address the issues arising from it and move on sooner rather than later if the agencies are not to become distracted from their task. The prime minister, home secretary and I are determined we should draw a line under the debate by legislating early in the next parliament to give our agencies clearly and transparently the powers they need and to ensure our oversight regime keeps pace with technological change and addresses the reasonable concerns of our citizens.

I cannot be the only one who was momentarily rendered speechless by these comments. Apart from the fact that I find Hammond’s kind concession that we “need to have” the debate extremely patronising, I also have a couple of questions: Just what is Hammond talking about when he says that we need to have this debate but then also move on from it “sooner rather than later”? How is a rushed debate that is ended by the government if and when it wishes a fruitful debate at all? Speaking of: which debate, actually? I have commented repeatedly on how debate in the UK was muted at best and how that didn’t look likely to change any time soon – not least because the UK government has repeatedly made efforts to stifle it. Which beckons the question what it is that Hammond is so desperate to move on from. Without doubt the rather uncomfortable revelations that keep being reported based on the Snowden documents. Like the one that NSA and GCHQ in cooperation hacked Gemalto, the world’s largest SIM card manufacturer. Or perhaps legal challenges like the one which recently led to a ruling by the Investigatory Powers Tribunal that the sharing of mass surveillance data between GCHA and the NSA was unlawful for the past seven years. This was followed closely by an admission from the British government that “[t]he regime under which UK intelligence agencies, including MI5 and MI6, have been monitoring conversations between lawyers and their clients for the past five years [was] unlawful” and “that the activities of the security services have failed to comply fully with human rights laws.” None of that inspires the kind of confidence that should prompt us to pack in the debate or grant the intelligence agencies more powers.   Debate isn’t the enemy If, for the sake of the argument, we were to give Hammond the benefit of the doubt, we might want to interpret his comments to mean that the government is seeking to clearly regulate surveillance powers and subject them to proper oversight and a strict, legal framework. Any faith of such kind is shaken by the knowledge, however, that regulating surveillance in the past has sometimes meant to make previously illegal practices legal and then continue them and that legislation governing current surveillance powers is often riddled with loopholes “big enough to drive a bus through”. Similarly, meaningful oversight has been proven, time and again, to be insufficient. In any case, the new legislation Hammond seems to have in mind does not inspire any confidence whatsoever:

I am quite clear that the ability to intercept bulk communications data, to subject that metadata to electronic analysis and seek to extract the tiny, tiny percentage of communications that may be of any direct security interest does not represent an enhancement of the agencies’ powers. Rather it represents an adaptation of those powers to the realities of the 21st century.

Okay, so what it seems that Hammond would like the agencies to be able to do is to collect communications metadata in bulk and then filter out “the tiny, tiny percentage of communications that may be of any direct security interest”. Sound familiar? That’s because it’s already happening. So no; surveillance powers would not be extended. They would be kept as they are – possibly within amended legal framework that would make any challenge to them even harder than it already is. What is more, these are powers that have already been proven to be ineffective! I have a different suggestion: how about legislating in a way that makes the work of the agencies more efficient rather than – as David Cameron has previously suggested and Hammond also hints – come up with bonkers solutions like banning encrypted communications? Encryption is not “the enemy”, debate isn’t “the enemy”. Millions of citizens not suspected of any wrongdoing aren’t “the enemy”. Mass surveillance, however, is very dangerous for democracy, especially if not subjected to proper oversight. How are we to trust laws that are passed quickly and early simply to “reassure the public” and put an end to a debate about our civil liberties versus our security? Laws like the Snooper’s Charter for example which was torpedoed by the Lib Dems for good reason in the past? Make no mistake: what Hammond is suggesting is new legislation that will “reassure” the public, not necessarily make it safer by curbing surveillance and making surveillance more effective. Nor does he seem to want to seriously consider people’s concerns – for that to be possible, we would need to have the debate. Perhaps because politicians find it impossible to have a rational discussion about mass surveillance not just in the UK, is it that they declare a debate over before it has even properly begun.   Human Rights standards: a slippery slope We cannot let this happen, especially when considering Hammond’s comments that “he was seeing more and more cases cross his desk in which he had to make decisions about sharing intelligence with agencies from other countries that do not uphold the same human rights standards as the UK”:

Not all of the countries with whom we might like to share information in the interest of national security adhere to the same high standards as the UK in how they treat suspects. These are often finely balanced decisions.

Let this sink in: what Hammond seems to be saying here is that intelligence is shared with countries that do not adhere to the same human rights standards as the UK – in addition to the UK intelligence agencies engaging in practices that are considered in breach of European Human Rights laws. This raises even more questions – and frightening ones at that: Do we really want to be complicit (by allowing our government to be) in violating human rights? Do we really want our government to continue to openly criticise other nations for their human rights record and then cooperate with them behind closed doors? Let me put the question a different way: are things like torture and drone killings ever justified and do we want to be complicit in them in any way? If we think the answer to that is yes then we might as well let Hammond et al go ahead. But before we do, I have one more question: Just what does Hammond mean when he says that the security services being “distracted” by the debate? Seriously? The security services are distracted from doing their job because citizens in a democratic society are having a healthy debate about unhealthy practices? Apart from the fact that the debate hasn’t been as emphatic as all that, frankly, the suggestion is plain ridiculous and I am mentioning it to show how nonsensical some of Hammond’s arguments really are. Surely, professional organisations like the GCHQ or the MI5 can tolerate a bit of debate without losing their effectiveness?   Keep calm and carry on debating The threat to Britain, its security services or the effectiveness of their work isn’t a debate that we are barely even having. It is, as Simon Jenkins remarks in response to different but equally worrying comments from Hammond, “hysteria”:

[Hysteria] drives language to extremes. It encourages reckless responses and feeds the greed of the security industry. All sense of proportion vanishes as the politics of the scare grips every politician, every lobbyist, every media outlet.

I don’t quite agree with Jenkins that the answer to this may be self-censorship. But hysteria in politics to legalise programmes that are a threat to democracy is indeed something we need to be wary of. In any case, what Hammond’s comments prove is not only that a rational discussion about surveillance is hardly possible in British politics, but also that we must not wait for politicians to accomplish the “balancing act” (Rusbridger again) between security and civil liberties on our behalf. Because they won’t.

Snowden and Petraeus: lenience for one hasn’t made returning home any more likely for the other

I would love to come home, and would do so if I could get a fair trial, but right now, I can’t.

                ~ Edward Snowden

 

Okay, so these days we once again hear a lot about how Edward Snowden would like to return to the US. His Russian lawyer, Anatoly Kucherena said at a recent press conference: “He has a desire to go back, and we are doing everything possible to make that happen.”

In contrast to what some of the media make it look like, this isn’t news. Snowden has been saying pretty much since day one that he would like to return to the US. This is confirmed by Jesselyn Radack, the national security and human rights director for the Government Accountability Project, who represents Snowden, as well as whistleblowers John Kiriakou and Thomas Drake. Radack, however, qualifies the statement:

[Snowden] would love nothing more than to return to the United States, but not to face an unfair, heavy-handed, largely secret prosecution under the Espionage Act — a strict liability crime, against which he cannot mount a defense based on his good intentions.

Glenn Greenwald, obviously annoyed that Kucherena’s statement is, once again, misleadingly reported as breaking news, comments on this in the Intercept.

 

No precedent for Snowden: the case of David Petraeus

What may have sparked renewed interest in Snowden’s wish to return to the US, is the plea deal that the US Department of Justice struck recently with David Petraeus. Petraeus is a former CIA director who passed on classified information to his biographer, Paula Broadwell, with whom he was having an extramarital affair. Petraeus recently pleaded guilty to “a single misdemeanor… for improperly “retaining” classified information, and prosecutors agreed to recommend a sentence of two years probation and no jail time.”

Since then, there has been much discussion in the press about what many see as the US government’s lenient treatment of Petraeus when compared to other leakers such as Edward Snowden, Chelsea Manning or John Kiriakou. Equally, there have been many people making the argument that the cases of Snowden and Petraeus don’t compare because one is a highly decorated ex-army general who “unwittingly” leaked classified information to a single person, while the other is a lowly government contractor who “stole” troves of classified documents and gave them to the public (via journalists).

As such, Debra J. Saunders in the American Spectator calls Petraeus an “American Hero”, arguing that “there are good reasons to spare Petraeus from prison,” not only because of his military prowess but also because his leak, apparently, “never really posed a risk” to national security and the information only made it “as far as” Paula Broadwell. So while “Petraeus was wrong to keep handwritten highly classified notes and even more wrong to hand them over” to his biographer/mistress this is seen as a lot less problematic than the public interest leaks of whistleblowers like Snowden and Manning.  Even though the “Black Books” Petraeus handed over to Broadwell contained

classified information regarding the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings … and [his personal] discussions with the president of the United States. Much of this was Top Secret, and some was SCI (Sensitive Compartmented Information) higher than Top Secret.

That is exactly the kind of information the US government has been using as an argument to demonise Edward Snowden and the journalists who have been reporting on his documents. US officials keep insisting that details like the names of undercover operatives or cyber operations, which Snowden, in their view, has somehow made vulnerable to terrorists, are precisely what makes his leaks so dangerous to national security. Yet no such detail has ever made it into the public domain. For good reason: Snowden made it an explicit condition of his cooperation with the reporting journalists that such detail must not be disclosed. So rather than making it “gleefully…available to America’s enemies,” as former CIA spokesman Bill Harlow claims, Snowden seems to have taken better care of his material than Petraeus did, who – unintentionally or not – handled top secret information very leniently. And before anyone makes the argument that highly volatile information may be out there somewhere (with trusted journalists) thanks to Snowden and thus potentially at risk, note that:

former Attorney General Alberto Gonzales … [kept] classified information at his house; John Deutch, the former CIA director…[stored] classified documents on a home computer; and former National Security Adviser Sandy Berger…removed classified documents from the National Archives.

None of these people seem to have handled the classified information they were privy to with the diligence it is obviously due, yet none of them have face charges similar to those that Edward Snowden would face upon his return to the US.

It is also interesting how Petraeus’ supporters have been talking down the leak of documents which Pentagon Papers whistleblower Daniel Ellsberg correctly describes as “actually quite spectacular”, as well as the fact that Petraeus lied to the FBI which is a crime in itself. The “misdemeanour” that Petraeus agreed to as part of plea deal was that he had “improperly retained” classified information. Retained – that is kept. That’s not even a euphemism, it’s simply false; retained and “passed on”, as Petraeus did to Paula Broadwell, were quite different things last time I looked in a dictionary. “Retained” may cover that part of the charge which holds that Petraeus “stored” the identities of covert agents…in several unauthorized locations”. It does not, however, cover “disclosing [these identities] to an unauthorized person”.

 

More likely precedents for Snowden: Drake, Manning, Kiriakou

Retaining, is what NSA whistleblower Thomas Drake did with – as Jesselyn Radack points outunclassified information. Unclassified. Yet, Drake’s was considered an offence worth spending the rest of his life in prison. Drake was lucky; the charges were dropped after he, like Petraeus, pleaded guilty to a misdemeanour. However, the impact of the prosecution on Drake’s life was significant:

I had everybody that I knew turn their back on me. The everyday reality was the crushing possibility that I’d end up in prison no matter what I did.

Prosecution has had similar life-altering effects on other whistleblowers, such as Chelsea Manning, John Kiriakou and, of course, Edward Snowden, all of whom ended up in jail or exile. Petraeus on the other hand, will neither go to jail, nor will he have to leave the US. On the contrary, it is likely that he will be able to “focus on his lucrative post-government career as a partner in a private equity firm and a worldwide speaker on national security issues.”

 

Double Standards

Blatant double standards of what Peter Maass in the Intercept calls a “two-tier justice system in which senior officials are slapped on the wrist for serious violations while lesser officials are harshly prosecuted for relatively minor infractions” are obvious in the discrepant treatment of conscientious whistleblowers like Edward Snowden and pillow talkers like David Petraeus. However, that’s not going to make either the government or its affiliated media think twice about considering a similar deal with Snowden who – by many of them – is not considered a patriot or whistleblower. Unlike Petraeus, Snowden has been charged under the Espionage Act which means that, if put on trial in the US, he would have no public interest defence and hence no chance for a fair trial:

he would be barred by U.S. courts from even raising his key defense: that the information he revealed to journalists should never have been concealed in the first place and he was thus justified in disclosing it to journalists. In other words, when U.S. political and media figures say Snowden should “man up,” come home and argue to a court that he did nothing wrong, they are deceiving the public, since they have made certain that whistleblowers charged with “espionage” are legally barred from even raising that defense.

The same is true when the media make it sound as if Snowden’s return to the US is imminent – or more likely than it was the various times it was reported before. Sadly, Snowden still cannot – 20 months on – expect the same leniency as David Petraeus. As Jesselyn Radack writes:

The “kind of leniency” extended to Petraeus “is reserved for generals sharing information with their mistress-biographers — not normal Americans trying to expose government wrongdoing.”

Which is the actual problem:

The issue is not whether General Petraeus was dealt with too leniently…” says lawyer Abbe Lowell. “The issue is whether others are dealt with far too severely for conduct that is no different.

Thus, the real issue is, as Trevor Timm writes:

The government had the chance to hold Petreaus out as an example on the same felony Espionage Act charges they’ve leveled (unfairly) against every conscientious whistleblower they’ve indicted. Their answer? Leaking should no longer be a felony. Let’s make sure we hold them to that, and not only for CIA Directors.

Or, as Snowden’s ACLU lawyer Ben Wizner put it:

If Petraeus deserves exceptional treatment because of his service to the nation, then surely the same exception should be offered to Edward Snowden, whose actions have led to a historic global debate that will strengthen free societies.

Once that happens, Edward Snowden might be able to return home, despite what the more ludicrous arguments to the contrary claim. However, this is likely to take a lot longer than it’s currently being made out to be:

I’m very clear with Ed,” [Jesselyn Radack] says. “We are not talking about a one- or two-year resolution. It could be a decade before things significantly change for you. Because people have to calm the fuck down. That could take a long time.”

In other news: Guardian live, Petraeus plea bargain, GCHQ vs Germany

A couple of things:

Firstly, the Guardian hosted an event last Monday at which a screening of Citizenfour was followed by a discussion panel that included editor-in-chief Alan Rusbridger, Janine Gibson, chief ed of theguardian.com, defence and intelligence correspondent Ewen MacAskill and Stuart Millar, the deputy editor of Guardian US. It was pretty inspiring. You can watch the video here.

Secondly, it is once more being reported as news that Edward Snowden would like to return to the US or that he would like asylum in Switzerland. This isn’t news. Snowden has said both before. Perhaps one of this reasons why this is getting attention again is the recent plea bargain struck between the US DOJ and former CIA director David Petraeus who gave “Paula Broadwell, his friendly biographer with whom he was then having an extramarital affair” information that “was among the most sensitive in the US government” and that looks a lot more damaging than anything Snowden leaked. Yet, after Petraeus agreed “to a single misdemeanor guilty plea for improperly “retaining” classified information… prosecutors agreed to recommend a sentence of two years probation and no jail time”. The double standards evident in Petraeus’ treatment when compared to other leakers are striking. Trevor Timm comments on this here.

Thirdly, the German government and its NSA committee are currently having a row with the British government and the GCHQ because the Brits have threatened to end cooperation between the GCHQ and Germany’s BND if certain documents are reviewed by the NSA committee. This is good old-fashioned blackmail, probably supplemented by some further stonewalling from the German government (it’s not like they haven’t been doing that pretty much since day one).

I’ll be back with more idc.