Law of Secrecy

"While all deception requires secrecy, all secrecy is not meant to deceive" - Sissela Bok

As The Intercept’s reason for being, Snowden becomes contributing journalist

Since its inception, the journalist media outlet The Intercept, founded in part by Glenn Greenwald, has focused primarily on the substantive ramifications found in classified documents stolen and leaked by former NSA contractor Edward Snowden.  Now, after a year on the run, it only seems fitting that Edward Snowden has become a contributing journalist to The Intercept organization.  His first article was published this Sunday with rather dramatic effect. 

In his article, Snowden accuses New Zealand’s prime minister of lying to his constituents about digital mass-surveillance on the population of the island nation.  Speaking from his own personal experiences, Snowden wrote in his article:

Like many nations around the world, New Zealand over the last year has engaged in a serious and intense debate about government surveillance. The nation’s prime minister, John Key of the National Party, has denied that New Zealand’s spy agency GCSB engages in mass surveillance, mostly as a means of convincing the country to enact a new law vesting the agency with greater powers. This week, as a national election approaches, Key repeated those denials in anticipation of a report in The Intercept today exposing the Key government’s actions in implementing a system to record citizens’ metadata.

Let me be clear: any statement that mass surveillance is not performed in New Zealand, or that the internet communications are not comprehensively intercepted and monitored, or that this is not intentionally and actively abetted by the GCSB, is categorically false. If you live in New Zealand, you are being watched. At the NSA I routinely came across the communications of New Zealanders in my work with a mass surveillance tool we share with GCSB, called “XKEYSCORE.” It allows total, granular access to the database of communications collected in the course of mass surveillance. It is not limited to or even used largely for the purposes of cybersecurity, as has been claimed, but is instead used primarily for reading individuals’ private email, text messages, and internet traffic. I know this because it was my full-time job in Hawaii, where I worked every day in an NSA facility with a top secret clearance.

Snowden continues on to alert the New Zealand populace of the politics involved with mass-surveillance and how their government has been fully complicit in the types of behaviors he himself exposed about his own government last year.  But what seems more important to note is that Edward Snowden is taking direct action to re-identify himself from the NSA contractor turned fugitive he is infamously known for.

So now that we’ve weathered the Snowden Effect in terms of video feeds and leaks to publications, it will be interesting to see what the journalist Edward Snowden will be able to bring to the table.  There can’t be much outside of his own experiences (which virtually ended in June of last year) that he can elaborate on, considering his present Russian domiciliary confinement.  Is this the beginning of the end of the #SnowdenEffect, or the establishment of a direct line for Snowden to reach the world?

DOJ Requests Congress to Bolster FIRREA Whistleblower Program

Thanks in part to the financial crisis of 2008 and the subsequent passage of the Wall Street Reform and Consumer Protection Act, aka the Dodd-Frank Act, corporate whistleblowers finally have the means and the incentive to report internal corporate malfeasance.  Since then the federal government has continued to encourage whistleblowers to come forward and just recently the Department of Justice has suggested reinvigorating a 1980’s era whistleblower statute to further encourage proper reporting.  As  reported by the Wall Street Journal:

To help Washington stop financial crimes, [United States Attorney General Eric] Holder urged Congress to allow bigger whistleblower rewards under the 1989 Financial Institutions Reform, Recovery and Enforcement Act, called Firrea. Current law caps any Firrea whistleblower payment at $1.6 million.

Increasing the size of whistleblower rewards “could significantly improve the Justice Department’s ability to gather evidence of wrongdoing while complex financial crimes are still in progress—making it easier to complete investigations and to stop misconduct before it becomes so widespread that it foments the next crisis,” Mr. Holder said.

Mr. Holder suggested the Firrea whistleblower provision should look more like the False Claims Act, a law that aims to sniff out fraud against the government by offering as much as 25% or 30% of the amount recovered. The 2010 Dodd-Frank Act gave the Securities and Exchange Commission a similar provision that rewards corporate whistleblowers with up to 30% of a successful settlement amount. The SEC paid out more than $14 million to whistleblowers under the program last year.

Justice Department officials were unable on Wednesday to identify any Firrea whistleblower awards made to date, even under the current cap. Former Justice Department lawyer Andrew Schilling, now at BuckleySandler LLP, where he specializes in False Claims Act and Firrea cases, said he was unaware of the government having ever announced a whistleblower payout in a case based solely on Firrea law claims.

The Firrea law “was used very rarely and in very small cases on and off since 1989, and it wasn’t until 2010 that the U.S. attorney’s office in New York started bringing cases with Firrea claims in them, and then it sort of took off,” Mr. Schilling said.

In the past year, Firrea investigations were used to strike record-setting settlements with J.P. Morgan Chase& Co., Citigroup Inc., and Bank of America Corp. for billions of dollars.

You should watch this development closely - if this type of reward program is reinvigorated in light of the successes of reward programs under the False Claims Act and Dodd-Frank, then it stands to reason that other agencies would want to boost enforcement through rewarding whistleblower tips.  Although England recently rejected a bounty whistleblower program, it will be interesting to see if the United States chooses to expand its efforts with this type of program.


Federal Whistleblowers Express Frustration with Patent Office Employees

“As a government employee, I can no longer sit by and watch this problem get any worse,” the supervisor’s complaint [stated]. “We have lost sight that we are a government agency who works for the taxpayers. We are not accountable to the taxpayers.”

This snippet from a 2012 whistleblower transcript obtained and described in a recent Washington Post article encompasses the frustrations that management and lower-level employees alike have experienced with union protected examiners at the U.S. Patent & Trademark Office.  Lawmakers on Capital Hill are now investigating the allegations of the whistleblower accounts:

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Secret Court Releases Yahoo’s Failed 2008 Challenge of NSA Data Mining Operations

The “secret court”, officially known as the Foreign Intelligence Surveillance Court, declassified and released to the public the majority of what is believed to be the most aggressive challenge to date of the NSA’s data mining operations.  Back in 2008 internet mogul Yahoo! resisted and challenged the National Security Agency’s tactic of mining major private tech company’s stored metadata under the now decommissioned terrorist-prevention PRISM program; a program that wasn’t publicly known or acknowledged until after being exposed in 2013 with the publishing of leaked documents supplied by Edward Snowden.  Even though the FISC judges declared a judgment in favor of the NSA more than five years ago, the recent release of the documents demonstrates the government’s forceful and assertive tendencies to acquire the information they desired by any means necessary.

The Guardian reported today on the secret court’s release of the declassified documents and Yahoo’s subsequent, and only now permissible, public response:

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Wrapping It Up: Police use phone metadata to expose Navy Seal turned Defense Contractor

A developing small-town story in Bath Township, Ohio caught #LawofSecrecy’s attention today after it was discovered that the details of the story accentuated the unintended theme of this week’s posts.  The article, concerning a former Navy Seal who was shot in a domestic dispute, was published last week in the Navy Times.

Chris Heben, a War on Terror combat veteran, received national attention via social media after he published his ‘heroic’ version of the events that took place on the night of the shooting from his hospital bed during his recovery.  But it’s not the details of the shooting that are relevant to #LawofSecrecy, rather it’s how the story turned into an exposure of lies which have now led Heben to be facing criminal charges for falsification and obstructing official business:

Investigators pulled Heben’s cellphone records, which indicated that he hadn’t been at the shopping center at the time the alleged shooting happened, [Police Chief Michael] McNeely said.

Mobile phones ping the nearest cell tower, leaving a digital map of everywhere a carried phone goes.

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Support Our Troops or Support Our Corporations? Or is it both?

The Intercept, the notorious journalist Snowden/Greenwald themed media outlet, published an article this week concerning a recently completed report that outlines the spending habits of the United States military’s most elite and clandestine command from 2009-2013.  The report exposes a growing trend toward sub-contracting out many aspects of global military operations to private civilian defense contractors.  Conducted by the Oxford Research Group via the Remote Control Project and compiled solely from publicly available information on the Tampa, Florida based U.S. Special Operations Command, the report itself states:

This report shows how corporations are integrated into some of the most sensitive aspects of special operations activities: flying drones and overseeing target acquisition, facilitating communications between forward operating locations and central command hubs, interrogating prisoners and translating captured material, and managing the flow of information from regional populations to the US military presence and back again.  Information has been important in warfare since time immemorial, but as the quantities of available information grow, and as information technology becomes increasingly embedded in warfare systems, corporations are relied upon to create, store and move this information.  The procurement activities of the Special Operations Command - The “tip of the spear” - offer a snapshot of some prominent roles of information in modern warfare.

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Cell Phones & Surveillance: The New “Third-Party” Line

After all of the bureaucratic surveillance practices that have come to light over the past 15 months, the American public is now beginning to comprehend how and where these tactics are actually being implemented on the ground-level in our communities.  While the learning curve may be gradual, there’s now an understanding among Americans of what metadata is, how the FISA court issues secret warrants to a gambit of agencies, and that pretty much anything that is transmitted over an internet or phone line can potentially exist forever.

Yesterday, #LawofSecrecy covered the Washington Post’s expose on Black Asphalt, an underground internet-network of law enforcement officials (where officers share private citizens’ personal information gathered from routine traffic stops) in what appears to be a new market segment for private government contractors to participate in the domestic War on Drugs.  A fitting follow-up to that story is an article that Newsweek published last week on how law enforcement departments all across the country are “intercepting” cell phone data of citizens with more and more varieties of new technology while phony cell phone towers are now being spotted all across the country.  It appears that no one really knows who owns the “interceptor” towers or where they came from, but what has been proven is that police are routinely using these types of technology in their daily fight against crime.  As was reported by Newsweek:

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Government Contractors For Hire: Trading the War on Terror For the War on Drugs

The Washington Post broke a series of stories over the weekend about a previously unheard of underground local law enforcement network that has spread across the United States, Black Asphalt.  The origins of Black Asphalt lie in the murky realm of private contracting agencies working with the federal government as ‘guns-for-hire’ and ‘gun trainers-for-hire’ during the early 2000’s, the same dark rooms the notorious para-military contractor Blackwater arose from.  Only for Black Asphalt, instead of being offered a chance at high-cash rewards for private combat tours of the middle east in the War on Terror like Blackwater, members of Black Asphalt are scouring U.S. interstates and highways for their cash bounty in the form of a large cash/drug bust in the War on Drugs.  And just like during the War on Terror, many innocents have been caught-up in the War on Drugs since this #cashforbusts relationship with the federal government developed.

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After First Hearing, 2nd Circuit Skeptical of NSA Bulk Collection Program

On Tuesday, the 2nd Circuit Court of Appeals heard the first arguments in a case that questions the constitutionality of the NSA’s domestic metadata collection program.  The case, filed by the American Civil Liberties Union shortly after the first Snowden leaks, is an appeal from a December 2013 federal district court decision declaring that the NSA’s data collection practices were not in violation of the Fourth Amendment or Section 215 of the Patriot Act.

The Washington Post reported on the appellate court’s subtle departure from the district court’s earlier reasoning:

In nearly two hours of argument, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit questioned whether Congress knowingly consented to the formerly classified program when it twice reauthorized the statute and whether the government’s interpretation of the law opens the way to bulk collection of other types of personal data.

“It’s hard to imagine that [Section 215’s] rather innocuous language” means the government could collect so many records in bulk that have never been acquired before with a grand jury subpoena, Judge Gerard E. Lynch told Assistant Attorney General Stuart Delery.

“You’re really saying, ‘They’re not relevant to an investigation right now; we just want to have them in case they become relevant’ ” in the future, he said.

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The Next Step In Surveillance: Automated License Plate Readers

California is pushing the boundaries for the public’s tolerance of surveillance yet again after the Superior Court of California endorsed local law enforcement’s implementation of license plate recognition technology on all basic squad cars.  All initial apprehensions to the uptick in the Surveillance State’s capabilities aside, what is even more important to note regarding this precedent-setting case is the state court’s treatment of the collected data as secret, classified information.

The complaint, filed by the Electronic Frontier Foundation and the American Civil Liberties Union, requested that the court require local law enforcement agencies to turn over the information collected by automated license plate readers (ALPR) as public information.  The EFF themselves responded to the court’s dismissal of their request:

But the ruling isn’t what you might think—the court didn’t decide that location information is too private and too sensitive to release to the public. Instead, the court held that the ALPR data qualifies as the kind of investigative record police can keep secret and that the harm to law enforcement investigations from disclosing data outweighs the value to the public of seeing what data police collect on them.  If you think that sounds like a big, blank check to California police to build surveillance programs outside of public scrutiny, you’re right.

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