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Mass Surveillance, Leak Investigations & the Chilling Effect Against Journalism

By: Monday July 28, 2014 9:21 pm

A number of American journalists, who work for small and large media organizations, contend that the spike in leak investigations is tied to government mass surveillance. They report experiences with sources, who are no longer willing to speak to them. They have found it increasingly difficult to build new relationships with sources. A chilling effect has made it exceptionally difficult to determine what to do to maintain confidentiality, according to a report by Human Rights Watch (HRW) and the American Civil Liberties Union (ACLU).

In response to revelations from NSA whistleblower Edward Snowden of dragnet and often indiscriminate surveillance, HRW and the ACLU decided to survey various journalists and lawyers, who have felt the climate shift as the scope of surveillance has been revealed and as President Barack Obama has launched more leak prosecutions than any previous American president.

I’ll address what is in the report on journalists and hopefully cover the part of the report that details the effect on lawyers in the coming days.

The Committee to Protect Journalists (CPJ) published a report last year that made the connection between leak investigations and mass surveillance. This report put together with interviews from journalists brings renewed attention to how the war on leaks by the Obama administration has become a much wider war on information that has impacted journalists as well as whistleblowers.

From the report [PDF], “Many journalists said that the government’s increased capacity to engage in surveillance—and the knowledge that it is doing so on an unprecedented scale—has made their concerns about how to protect sources much more acute and real.” They believed that the increased number of leak investigations was connected to government surveillance.

Peter Maass, a senior writer at The Intercept, asserted, “Leak investigations are a lot easier because you leave a data trail calling, swiping in and out of buildings, [and] walking down a street with cameras. It’s a lot easier for people to know where you’re going and how long you’re there.” And, Barton Gellman, who received documents from Snowden, said, “It used to be that leak investigations didn’t get far because it was too hard to uncover the source, but with digital tools it’s just much easier, and sources know that.”

These statements are not just conjecture. Lisa Monaco, assistant attorney general of the National Security Division of the Justice Department, told Senate intelligence committee in February 2012, “It bears noting that recent advances in technology have provided new opportunities for investigators, in terms of both identifying leak suspects and building successful prosecutions.”

“In particular, some Intelligence Community agencies have enhanced their ability to audit information technology systems, allowing investigators in some instances to obtain important information regarding the timing and scope of access to classified information by potential subjects,” Monaco added. “Improved tools—including auditing measures, employee physical access or badging records, and phone records—play an important role in internal investigations and aid in unmasking individuals who leak classified information. The Department applauds and encourages the continuing progress in this area.”

The continued revelations from Snowden have made journalists acutely aware of surveillance capabilities. One national security reporter, who did not want to be named, said the revelations showed what journalists are doing is “not good enough.”

“I used to think that the most careful people were not at risk, [that they] could protect sources and keep them from being known. Now we know that isn’t the case,” the national security reporter suggested. “That’s what Snowden meant for me. There’s a record of everywhere I’ve walked, everywhere I’ve been.”

New Yorker staff writer Jane Mayer, who authored The Dark Side on Vice President Dick Cheney and other Bush administration officials leading roles in torture, indefinite detention, renditions, secret CIA prisons and warrantless wiretappings, acknowledged that she can no longer “count the number of people afraid of the legal implications” of speaking to her. “The added layer of fear makes it so much harder.”

No journalists claimed to be able to guarantee that they could protect their communications with sources from the government, especially if the government had launched an investigation.

“If the government wants to get you, they will,” said Washington Post reporter Adam Goldman. And, Gellman argued, ““If a first-rate intelligence agency decides to target you specifically and invest serious resources, there’s nothing you can do.”

A “prominent journalist,” suggested that the US government might be able to “fill its intelligence gaps on US persons” with information from journalists that had been collected by “friendly foreign governments.”

The notion that the US government would collect data from journalists just for their own intelligence purposes is not far-fetched. In 2004, FBI agents obtained the phone records of Washington Post staff writer Ellen Nakashima, “who was based in Jakarta, Indonesia, at the time.” The FBI also “obtained telephone records of an Indonesian researcher in the paper’s Jakarta bureau, Natasha Tampubolon.” Plus, “Records of New York Times reporters Raymond Bonner and Jane Perlez, who worked in Jakarta in 2004, also were compromised.”

The FBI would not disclose what had prompted the seizure of records but the Post noted reporters targeted had been “writing articles about Islamic terrorism in Southeast Asia.”

Agents had initially sought information from a “7-month time period,” the “time period of interest for the leak investigation.” Twenty-two months of records for one Post reporter were given to the FBI by one analyst at a telecommunications company. “Only 38 days fell within the 7-month period of interest.” Twenty-two months of records for a telephone number attached to a bureau of the Post“which only 20 days fell within the 7-month period of interest” were also obtained. For five other phone numbers, “none of the retrieved records provided to the FBI fell within the 7-month period of interest.”

The records were uploaded to a database and remained in the database for over 3 years.

An “Insider Threat” program instituted after military whistleblower Chelsea Manning’s disclosure of hundreds of thousands of government documents to WikiLeaks has increased the ability of agencies to target leaks to media as if they were acts of espionage.

In the aftermath of Snowden’s disclosures, Director of National Intelligence James Clapper has been involved in developing a system of total surveillance of security clearance holders, including when they are “off the job.” Clapper has also instituted a policy prohibiting any unauthorized contact with media.

These developments have led to the “sudden disappearance of formerly reliable sources, or the reluctance of sources to discuss seemingly innocuous and unclassified matters.”

“One decorated intelligence and national security journalist indicated that even retired sources are increasingly reluctant to speak,” according to the report. “Though firing or revocation of security clearances no longer worries them, they fear prosecution, and ‘now [they] have to worry that their communications can be reached on a basis far short of probable cause.’”

The climate impacts a specific sector of journalism. As one can imagine, intelligence reporters have it the worst. Then, as one national security reporter contended, journalists covering the Justice Department and terrorism are victims of this chilling effect. Of course, military and national security reporters are subjected to the effect too.

It puts journalists in a situation where they have to decide how committed they are to independent journalism. Certainly, there are spokespeople at all the agencies, who will tell them what they want the public to think about the work they are doing. They can simply reprint those statements and ask questions and see how far they get. Sometimes, government officials will even feed those journalists leaks to promote policies, operations or initiatives in government that make agencies look good. But, for journalists who believe in freedom of the press and the public’s right to know, this is no way to practice journalism.

It is very difficult to get going when journalists want to make first contact with a source, as Gellman explained. But the report explained that some journalists will try the following to still do their job with some peace of mind that they are secure:

…[W]hen forced to call a source, a couple of journalists indicated a preference for using landlines over cell phones, noting how easily one can intercept the contents of a cell phone call. “Almost anybody with the right equipment can eavesdrop on a cellphone call; landlines are more secure from snooping (though of course [the] government … can capture content with [a] wiretap),” observed Peter Maass…

Of course, that still leaves the issue of how much information the government really needs to successfully prosecute a person for a leak. That a person is talking to a reporter can be enough.

“The government doesn’t need to know what people are talking  about—just that they’re talking. That can go a long way in supporting the prosecution’s case in a leak investigation,” Maass stated.

One national security reporter suggested burner phones to “thwart” a leak investigation. But HRW and the ACLU found that a lot of reporters do not want to act like spies while doing their job, especially when they are not doing anything that should be considered criminal.

Overall, the report provides a portrait of how surveillance is speeding the decline of investigative journalism.

“What you’re losing now is spontaneity,” Mayer explained. There are fewere “spur-of-the-moment stories.” It is also curtailing freedom of speech because, “Most of these leaks are just criticism, frankly.” Nobody is wanting to become an enemy of the state but are patriots concerned about their government.

Yet, as the Washington Post’s Dana Priest put it, the government thinks “anything classified should stay secret.” They are “getting the balance between guarding information and making it public wrong.”

Which means that reporters, who have previously been stationed in countries like China, where they had to worry about surveillance, are finding that they have to worry about US government surveillance too.

The Obama administration does not care if investigative journalism is collateral damage. Its priority is to control the free flow of information so its message is not undermined by critics. And, in the end, the administration has pursued measures against any leaks related to national security or the military because the law—including the Espionage Act—and advanced technology can so easily be targeted against those responsible for them.

Congressman Grayson Requests Answers from Clapper on NSA’s Weakening of Encryption Standards

By: Monday July 28, 2014 4:11 pm

Rep. Alan Grayson

Democratic congressman Alan Grayson, who serves on the Science, Space, and Technology Committee in the US House of Representatives, has written a letter to Director of National Intelligence James Clapper. It requests answers related to how the NSA has weakened encryption standards.

As ProPublica and The New York Times reported in September 2013, documents from NSA whistleblower Edward Snowden showed the National Institute of Standards and Technology (NIST), the US’s “encryption standards body,” had adopted a standard in 2006 that contained a “fatal weakness,” which the NSA had developed. The standard was then aggressively pushed so the International Organization for Standardization, which has 163 countries as its members, would adopt the intentionally flawed standard.

Grayson was fairly specific in his questions. He asked in his letter [PDF] if the NSA had generated “parameters of Dual_EC_DRBG.”

“From 2005-2007, outside cryptographers raised the possibility that NSA introduced a ‘trapdoor’ (i.e. knowledge of the mathematical relationship between the elliptic curve points (P,Q)) into his generator.”

“Did NSA introduce such a trapdoor?” Grayson asked. “If NSA did not explicitly introduce such a trapdoor, did NSA also take measures to ensure that in generating these parameters it could not inadvertently have access to a trapdoor?”

For those wondering what this question means, Nick Sullivan,  who worked for six years at Apple on cryptography before becoming a part of CloudFlare, wrote a “primer” addressing the issue with Dual_EC_DRBG.

Dual_EC_DRBG is an algorithm. It was the “default random number generator for several cryptographic products from RSA, a computer and network security company. RSA was apparently paid $10 million by the US government allegedly to use this algorithm, which was “obscure and widely maligned,” in their “widely distributed products.”

Also, Grayson asked how the NSA has may have generated certain parameters and if the NSA or any intelligence community entity, government contractor or subcontractor has ever “possessed or retained any information that would allow it to predict future outputs of Dual_EC_DRBG, if provided with a selection of output from the generator.”

Why exactly did the NSA promote the standardization of this algorithm? And, Grayson asked, if NSA explicitly requested that subcontractors, such as CygnaCom, “refrain from discussing the generation and provenance” of the algorithm parameters “with government entities, including NIST”?

Previously, NIST’s Visiting Committee on Advanced Technology (VCAT) conducted a review and released a report [PDF] recommending, “Because of NSA’s SIGINT [signals intelligence] mission, NIST should be very careful in its interactions with NSA regarding standards. NIST should draw on NSA’s expertise, but NIST must not defer to NSA on security-relevant decisions. NIST itself, and the cryptographic community that looks to NIST’s standards, must be able to conclude confidently that NSA did not have any opportunity to undermine any NIST standard.”

VCAT concluded that the algorithm at issue here should have raised at least two red flags for NIST. One, it did not “pass statistical tests for randomness.” It was also well-known that there was a “trapdoor possibility.” Yet, NIST still allowed the NSA to make recommendations, which made it possible for NSA to have a trapdoor in the standard. It trusted the NSA “not to create a trapdoor, which was a serious mistake.”

Grayson has introduced an amendment [PDF] to remove the “statutory requirement for NIST to consult with NSA in developing encryption standards.

When the House Science and Technology Committee adopted it in May, Amie Stepanovich of Access, an international human rights mostly focused on digital freedom, concluded that the amendment would “help support data integrity by ensuring that the standards used to protect all internet users are not artificially weakened.”

Official photo of Rep. Alan Grayson and in the public domain.

New York Times Reporters Avoid Investigative Journalism When Covering Israel’s Bombing of UN-Run School

By: Monday July 28, 2014 12:02 pm

New York Times reporters seem to have neglected to engage in investigative journalism when reporting on last week’s attack by Israeli forces on a school in Gaza.

The school in Beit Hanoun, which was being run by the United Nations Relief and Works Agency (UNRWA), was shelled on July 24. At least sixteen people were killed and about 200 people were wounded in the attack, which occurred when the UN agency was trying to evacuate people. Palestinians have said that Israeli forces shelled the courtyard area where the bloodshed occurred and the Israeli military has now put out two versions of events intended to contradict the stories of survivors.

Rather than get to the bottom of why the accounts of what happened are so different, Isabel Kershner and Ben Hubbard, reporters for the New York Times, printed the new claims from the military and wrote, “It was not immediately possible to reconcile the accounts.”

But is it not the job of journalists to get to the bottom of any claims before passing them off as truth?

The headline for the Times’ story unambiguously read, “Israel Says Its Forces Did Not Kill Palestinians Sheltering at UN School.” That imputes some measure of credibility to the claims of Israel. So, was this headline from editors reasonable given the fact that Israel’s claims are rather incredible or, at best, impossible to verify?

The Israeli military forces immediately claimed that “rockets launched by Hamas had landed in the Beit Hanoun area during fighting with its forces, and that those rockets may be responsible for the deaths.” Then, a spokesperson for the military said it did not know if the school was hit by a “stray shell” from the military or “Hamas fire.” Then, the military indicated it had been coordinating with the UNRWA to evacuate the school, the UNRWA had given the Israeli military coordinates for the school and the military had “fired mortars in the area of the school.” The military additionally claimed Hamas had fired at the school, though no survivors had reported such fire.

However, NBC News’ Richard Engel tweeted:

The Guardian’s Peter Beaumont visited the site of the attack and reported that he was unable to find no debris from any Palestinian rockets. “The injuries and the number of fatalities were consistent with a powerful explosion that sent shrapnel tearing through the air, in some cases causing traumatic amputations,” Beaumont added.

On “Democracy Now!”, UNRWA spokesperson Chris Gunness responded to Israeli claims, “Qassam rockets are notoriously inaccurate. So the idea that within a few minutes a group of Qassam rockets could hit roughly the same area seems beyond miraculous,” and, “It’s perhaps useful to ask them why it is that weapons, when they fly into Israel, it’s said that they’re completely inaccurate; apparently they can all land in roughly the same space within a matter of minutes yesterday in Beit Hanoun. I think that needs some kind of unpacking.”

The military adjusted its story on July 27 after it concluded an “investigation” into what happened at the school. Haaretz reported that the investigation shockingly concluded, “One of the mortars fell in the school’s courtyard whilst it was empty of people.”

“In light of the investigation’s findings, we have rejected claims of casualties in the school grounds as they were presented by various elements immediately after the incident took place, and,“The IDF regrets any harm to citizens who are not involved in the fighting but continually emphasizes that this occurs as a sad result of Hamas’ choice to use civilians as human shields.”

Lt. Col. Peter Lerner, a chief Israeli military spokesperson, suggested that the wounded may have been “brought to the compound after injury,” which clearly implies the scenes of horror after the bombing may have been staged.

Lerner, according to the Times, “provided a video with 10 seconds of black-and-white footage shot by an Israeli drone that showed a blast in what appeared to be an empty courtyard.” He added, “It is extremely unlikely that anyone was killed as a result of that mortar.”

“The video did not include a time code, but Colonel Lerner said it was shot between 2 and 4 p.m. The United Nations said the attack had taken place at 2:55 p.m,” the Times report noted.

The obvious question for Lerner would be whether his forces have video showing the moments when people were in the courtyard. That would make it possible to unpack these claims and get closer to the truth of what happened.

The Poor Door: Building Has Separate Entrances for Rich and Poor

By: Monday July 28, 2014 6:33 am

Not that America has become a divided, classist society or anything. Oh wait, it has. Poor Doors New York City approved plans for a new 33-story luxury high-rise at 40 Riverside Drive on the Upper West Side of Manhattan that will include a separate entrance for tenants in “affordable” housing, what some have called the [...]

Podcast: The Double Standard That Police Display Toward Protests in Support of Palestinians

By: Sunday July 27, 2014 11:30 am

Thousands of people have been demonstrating in support of Palestinians and against Israel’s assault on Gaza in major cities across the United States. Police have shown some willingness to facilitate protests, but organizers have also experienced a double standard in the way police handle Palestinian supporters versus Israel supporters. Multiple examples of this double standard, [...]

CIA Intercepted Whistleblower Communications Related to Senate Investigation into Torture

By: Saturday July 26, 2014 10:05 am

The inspector general for the CIA obtained a “legally protected email and other unspecified communications” between whistleblower officials and lawmakers related to alleged whistleblower retaliation. The CIA inspector general allegedly failed to investigate claims of retaliation against an agency official for helping the Senate intelligence committee with the production of their report on torture, according [...]

Tsarnaev Lawyers Renew Effort to Convince Court to Hold Law Enforcement Officials Responsible for Leaks

By: Friday July 25, 2014 5:38 pm

For months, lawyers for Dzhokhar Tsarnaev have been pushing a federal district court in Massachusetts to hold a hearing and address the issue of law enforcement officials leaking details related to the investigation into the Boston Marathon bombing. Lawyers renewed their objection to leaks as they continue to occur, despite the objections of the court. [...]

US Media Outlets Cite Israeli Military Propaganda, Cast Doubt on Whether Israel Bombed UN-Run School

By: Friday July 25, 2014 1:39 pm

After shelling a Gaza school run by the United Nations Relief and Works Agency (UNRWA), where Palestinian refugees were being sheltered, Israel immediately sought to blame Hamas for an attack that resulted in 16 people being killed and at least 200 people being wounded. The Israeli military forces immediately claimed that “rockets launched by Hamas [...]

New Facebook Page Equates Sex with Israeli War on Gaza

By: Friday July 25, 2014 10:11 am

The daily leaven of brutality out of Gaza is increasingly grotesque. While Hamas throws a few rockets into Israeli territory, the full force of a modern army is unleashed on the civilian population. Weapons designed for a 21st century battlefield– 500 pound bombs, skin-shredding flechette projectiles, 120mm tank cannons– are instead used inside urban areas [...]

‘Breaking The Set’ Segment on Leaked Guidebook for Placing Individuals on Terrorism Watchlists

By: Thursday July 24, 2014 10:33 pm

The Intercept published a major story yesterday on a guidebook from the National Counterterrorism Center (NCTC) that contains criteria employees should follow when placing people on the United States’ terrorism watchlists, including the No-Fly List. (I posted my own analysis of the story here.) The guidebook is vague, riddled with loopholes and gives employees a lot [...]

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