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As the privacy and civil liberty community braces for Donald Trumps impending control of US intelligence agencies like the NSA, critics have called onthe Obama administration to rein in those spying powers before a man with a reputation for vindictive grudges takes charge. Now, just in time for President-elect Trump to inherit the most powerful spying machine in the world, Obamas Justice Department has signed off on new rules to let the NSA share more of its unfiltered intelligence with its fellow agenciesincluding those with a domestic law enforcement agenda.

Over the last month, Director of National Intelligence James Clapper and Attorney General Loretta Lynch signed off onchanges to NSA rules that allow the agency to loosen the standards for what raw surveillance data it can hand off to the other 16 Americanintelligence agencies, which include not only the CIA and military intelligence branches, but also the FBI and the Drug Enforcement Administration. The new rules, which were first reported and released in a partially redacted form by the New York Times, are designed to keep those agencies from exploiting NSA intelligence for law enforcement investigations, permitting its use only in intelligence operations.

But privacy advocates are nonetheless concerned that the NSAs more fluid sharing of its collected data will lead to the NSAs powerful spying abilities blurring into the investigation and prosecution of Americans. While the NSA previously filtered out personal information the agency didnt deem relevant before sharing it, those filters wont exist under the new rules. The privacy intrusions have also arrived, experts say, just in time for Trumps new administration to exploit them.

The fact that theyre relaxing these privacy-protective rules just as Trump is taking the reins of the surveillance state is inexplicable to me, says Nate Cardozo, an attorney with the Electronic Frontier Foundation. The changes theyre making today are widening the aperture for abuse to happen just as abuses are becoming more likely.

Privacy advocates concerns center around loopholes in the rules that allow agencies like the FBI and DEA to search the NSAs collected data forpurposessuch as investigating an agent of a foreign power. Any evidence of illegal behavior that a searcher stumbles on can be used in a criminal prosecution. That means the rule change, according to Cardozo, introduces new possibilities for law enforcement agencies like the DEA and FBI to carry out whats known as parallel construction. That maneuver involves secretly using the NSAs intelligence to identify or track a criminal suspect, and then fabricating a plausible trail of evidence to present to a court as an after-the-fact explanation of the investigations origin. The technique was the subject of an ACLU lawsuit against the Office of the Director of National Intelligence in 2012, and resulted inthe Justice Department admitting to repeatedly using the technique to hide the NSAs involvement in criminal investigations.

It used to be that if NSA itself saw the evidence of a crime, they could give a tip to the FBI, and the FBI would engage in parallel construction, says Cardozo. Now FBI will be able to get into the raw data themselves and do what they will with it.

The intelligence communitys lawyers and legal alums counter that the 12333 rule change was actually necessary ahead of Trump taking power. The change, says former NSA lawyer Susan Hennessey, makes it far more politically complicated for the Trump administration to rewrite the rules themselves, which might have allowed for even more liberal use of the NSAs data. This change, for instance, was years in the making; now finalized, amending them rules again could take years longer. For anyone concerned about possible abuses following transition, these procedures being finalized should be welcome news, Hennessey writes to WIRED. Id imagine finalizing these rules, and thus making future changes exponentially more difficult, was a very high priority for the outgoing administration.

The Office of the Director of National Intelligences general counsel Robert Litt also defended the changes in a blog post published early last year as the news rules were being considered. These procedures are not about law enforcement, but about improving our intelligence capabilities, Litt wrote. There will be no greater access to signals intelligence information for law enforcement purposes than there is today.

But the edge cases where agencies involved in law enforcement can legally search for Americans names and stumble across evidence of prosecutable criminal behavior arent sufficiently defined, says Julian Sanchez, a privacy-focused fellow at the Cato Institute. Some of those exceptions are even redacted from the declassified version of the document, he points out. We have no idea whether theres a huge loophole hiding behind those black bars, Sanchez says. It ought to be possible to characterize to the general public what the broad conditions under which someone can go searching for your communications. The chain is only as strong as the weakest link.

Beyond legal loopholes, sharing broaderaccess to unfiltered NSA data could lead to more flat-out illegal abuse, too, says the EFFs Cardozo. He points to cases of so-called LOVEINT, or love intelligence, the informal term for agents whohave, in a few rare cases, used their spying privilegesto surveil former lovers or spouses. Giving a whole bunch more peopleoutside NSA raw, unfiltered data that includes Americans communications is just asking for it, asking for more LOVEINTto happen, says Cardozo.

Keeping American surveillance agencies from surveilling Americans, Cardozo concedes, has always been in part a matter of trust that theywont break the law or abuse legal loopholes. But the untested Trump administration makes that trust more tenuous than ever before; Trump has, after all, demonstrated in private and on Twitter that he keeps an enemies list, publicly mused about wishing he had the power to hack his political opponents, and called for the investigation into the leak of an intelligence report to NBC News before even starting his term. All of that suggests a chief executive who willtest the edgesof US surveillancerulesat every possibility.

The defendersof the NSA have always said, yes these are powerful tools that could be abused in the wrong hands, but we trust thepeople in charge, says Cardozo. Now its hard to disagree more strongly. We dont trust the people who are about to take the reins of the NSA, the intelligence community, the Justice Department, to use these tools responsibly.

Link:
NSA Loosens Its Privacy Rules Ahead of Trump Taking Office

With weeks to go in his tenure, President Obama on Friday moved to end the controversial dual-hat arrangement under which the National Security Agency and the nations cyberwarfare command are headed by the same military officer.

It is unclear whether President-elect Donald Trump will support such a move. A transition official, who spoke on the condition of anonymity to discuss the next administrations plans, said only that cybersecurity has been and will be a central focus of the transition effort.

Pressure had grown on Obama to make such a move on the grounds that the two jobs are too large for one person to handle, that the two organizations have fundamentally different missions and that U.S. Cyber Command, or Cybercom, needed its own leader to become a full-fledged fighting force.

[Obama to be urged to split cyberwar command from NSA

While the dual-hat arrangement was once appropriate in order to enable a fledgling Cybercom to leverage NSAs advanced capabilities and expertise, Cybercom has since matured to the point where it needs its own leader, Obama said in a statement accompanying his signing of the 2017 defense authorization bill.

Cybercoms mission is, when ordered, to disrupt and destroy adversaries networks. It is also to defend the nation against incoming threats to critical systems and to protect the militarys computers from cyberattack.

The NSA also has a defensive mission to protect the governments classified networks but is better known for its role in conducting electronic spying on overseas targets to gather intelligence on adversaries and foreign governments.

Cybercom, established in 2009 inside the NSA headquarters at Fort Meade, Md., has long depended on the spy agencys capabilities. NSA and Cybercom personnel sit side by side and use the same networks that were built by the NSA.

The two organizations should have separate leaders who are able to devote themselves to each organizations respective mission and responsibilities, but should continue to leverage the shared capabilities and synergies developed under the dual-hat arrangement, Obama wrote.

Defense Secretary Ashton B. Carter and Director of National Intelligence James R. Clapper Jr. earlier recommended to Obama that the two organizations have separate heads.

Obama had been on the verge of ending the dual-hat leadership in late 2013 but was persuaded to hold off when senior officials, including the NSAs director at the time, Army Gen. Keith B. Alexander, argued that the two agencies needed one leader to ensure that the NSA did not withhold resources from Cybercom.

Others, including a presidential review commission, recommended that each of the two groups have its own leader and that the NSA director be a civilian. Since its inception in 1952, the NSA has been led by military officers.

The bill that Obama signed bars the splitting of the leadership role until the defense secretary and the chairman of the Joint Chiefs of Staff jointly certify that to do so would not diminish Cybercoms effectiveness.

Obama took a swipe at Congress for imposing that requirement on him.

The Congress ... should not place unnecessary and bureaucratic administrative burdens and conditions on ending the dual-hat arrangement at a time when the speed and nature of cyber threats requires agility in making decisions about how best to organize and manage the nations cyber capabilities, he wrote.

Obama said that the Pentagon and the Office of the Director of National Intelligence have planned a phased transition during which the NSA can continue to provide vital operational support to Cybercom.

See the article here:
Obama moves to split cyberwarfare command from the NSA

Click here for more on NSA Surveillance

What if it emerged that the President of the United States was flagrantly violating the Constitution and a law passed by the Congress to protect Americans against abuses by a super-secret spy agency? What if, instead of apologizing, he said, in essence, "I have the power to do that, because I say I can." That frightening scenario is exactly what we are now witnessing in the case of the warrantless NSA spying ordered by President Bush that was reported December 16, 2005 by the New York Times.

According to the Times, Bush signed a presidential order in 2002 allowing the National Security Agency to monitor without a warrant the international (and sometimes domestic) telephone calls and e-mail messages of hundreds or thousands of citizens and legal residents inside the United States. The program eventually came to include some purely internal controls - but no requirement that warrants be obtained from the Foreign Intelligence Surveillance Court as the 4th Amendment to the Constitution and the foreign intelligence surveillance laws require.

In other words, no independent review or judicial oversight.

That kind of surveillance is illegal. Period.

The day after this shocking abuse of power became public, President Bush admitted that he had authorized it, but argued that he had the authority to do so. But the law governing government eavesdropping on American citizens is well-established and crystal clear. President Bush's claim that he is not bound by that law is simply astounding. It is a Presidential power grab that poses a challenge in the deepest sense to the integrity of the American system of government - the separation of powers between the legislative and executive branches, the concept of checks and balances on executive power, the notion that the president is subject to the law like everyone else, and the general respect for the "rule of law" on which our democratic system depends.

The ACLU ran the following advertisement in the December 29, 2005 edition of The New York Times:

The tensions between the need for intelligence agencies to protect the nation and the danger that they would become a domestic spy agency have been explicitly and repeatedly fought out in American history. The National Security Act of 1947 contained a specific ban on intelligence operatives from operating domestically. In the 1970s, America learned about the extensive domestic political spying carried out by the FBI, the military, the CIA, and the NSA, and Congress passed new laws to prevent a repeat of those abuses. Surveillance laws were debated and modified under presidents Ford, Carter, Reagan, Bush Sr. and Clinton.

But, President Bush would sweep aside this entire body of democratically debated and painstakingly crafted restrictions on domestic surveillance by the executive branch with his extraordinary assertion that he can simply ignore this law because he is the Commander-in-Chief. In a December 17 radio address, for example, Bush asserted that the spying was "fully consistent with my constitutional responsibilities and authorities." But his constitutional duty is to "take care that the laws be faithfully executed" (Article II, Section 3); the law here clearly establishes well-defined procedures for eavesdropping on U.S. persons, and the fact is, Bush ordered that those procedures not be followed.

Government eavesdropping on Americans is an extremely serious matter; the ability to intrude on the private realm is a tremendous power that can be used to monitor, embarass, control, disgrace, or ruin an individual. Because it is so invasive, the technology of wiretapping has been subject to carefully crafted statutory controls almost since it was invented. Ignoring those controls and wiretapping without a court order is a crime that carries a significant prison sentence (in fact, criminal violations of the wiretap statute were among the articles of impeachment that were drafted against President Nixon shortly before his resignation).

Unfortunately, although the law in this matter is crystal clear, many Americans, faced with President Bush's bold assertions of "inherent" authority for these actions, will not know what to believe. There are only 5 points they need to understand:

The law on surveillance begins with the Fourth Amendment to the Constitution, which states clearly that Americans' privacy may not be invaded without a warrant based on probable cause.

United States Constitution Fourth Amendment

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 US Supreme Court (US v. Katz 389 US 347) has made it clear that this core privacy protection does cover government eavesdropping. As a result, all electronic surveillance by the government in the United States is illegal, unless it falls under one of a small number of precise exceptions specifically carved out in the law.

United States Code Title 50, Chapter 36, Subchapter 1 Section 1809. Criminal sanctions

(a) Prohibited activities A person is guilty of an offense if he intentionally-

(1) engages in electronic surveillance under color of law except as authorized by statute

In other words, the NSA can only spy where it is explicitly granted permission to do so by statute. Citizens concerned about surveillance do not have to answer the question, "what law restricts the NSA's spying?" Rather, the government is required to supply an answer to the question "what law permits the NSA to spy?"

There are only three laws that authorize any exceptions to the ban on electronic eavesdropping by the government. Congress has explicitly stated that these three laws are the exclusive means by which domestic electronic surveillance can be carried out (18 USC, Section 2511(2)(f)). They are:

Title III and ECPA govern domestic criminal wiretaps and are not relevant to the NSA's spying. FISA is the law under which the NSA should have operated. It authorizes the government to conduct surveillance in certain situations without meeting all of the requirements of the Fourth Amendment that apply under criminal law, but requires that an independent Foreign Intelligence Surveillance Court oversee that surveillance to make sure that Americans who have no ties to foreign terrorist organizations or other "foreign powers" are not spied upon.

FISA was significantly loosened by the Patriot Act (which, for example, allowed it to be used for some criminal investigations), and parts of it now stand in clear violation of the Constitution's Fourth Amendment in the view of the ACLU and many others. However, even the post-Patriot Act version of FISA does not authorize the president to conduct warrantless eavesdropping on U.S. citizens or permanent legal residents in the U.S. without an order from the FISA Court. Yet it is that very court order requirement - imposed to protect innocent Americans - that the President has ignored.

In fact, one member of the FISA Court, Judge James Roberston, has apparently resigned from the court in protest of President Bush's secret authorization of this program. And the New York Times reported that the court's chief judge complained about the program when she was (belatedly) notified of it, and refused to allow information gathered under the program to be used as the basis for FISA wiretap orders.

Congress after 9/11 approved an Authorization to Use Military Force against those responsible for the attacks in order to authorize the president to conduct foreign military operations such as the invasion of Afghanistan.

But that resolution contains no language changing, overriding or repealing any laws passed by Congress. Congress does not repeal legislation through hints and innuendos, and the Authorization to Use Military Force does not authorize the president to violate the law against surveillance without a warrant any more than it authorizes him to carry out an armed robbery or seize control of Citibank in order to pay for operations against terrorists. In fact, when President Truman tried to seize control of steel mills that were gripped by strikes in 1952, the Supreme Court decisively rejected his authority to make such a seizure, even in the face of arguments that the strike would interfere with the supply of weapons and ammunition to American troops then under fire on the battlefields of the Korean War.

U.S. Supreme Court YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)

"The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. . . .

"Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. . . . The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. . . .

"The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times."

The Supreme Court also rejected similar assertions of inherent executive power by Richard Nixon.

In fact, FISA contains explicit language describing the president's powers "during time of war" and provides that "the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period not to exceed fifteen days following a declaration of war by the Congress." 50 U.S.C. 1811 (emphasis added). So even if we accept the argument that the use-of-force resolution places us on a war footing, warrantless surveillance would have been legal for only 15 days after the resolution was passed on September 18, 2001.

Point #5: The need for quick action does not justify an end-run around the courts The FISA law takes account of the need for emergency surveillance, and the need for quick action cannot be used as a rationale for going outside the law. FISA allows wiretapping without a court order in an emergency; the court must simply be notified within 72 hours. The government is aware of this emergency power and has used it repeatedly. In addition, the Foreign Intelligence court is physically located in the Justice Department building, and the FISA law requires that at least two of the FISA judges reside in the Washington, DC area, for precisely the reason that rapid action is sometimes needed.

If President Bush still for some reason finds these provisions to be inadequate, he must take his case to Congress and ask for the law to be changed, not simply ignore it.

President Bush's claim that he has "inherent authority" as Commander-in-Chief to use our spy agencies to eavesdrop on Americans is astonishing, and such spying is clearly illegal. It must be halted immediately, and its origins must be thoroughly investigated by Congress and by a special counsel. (See letter from the ACLU to Attorney General Gonzales calling for a special counsel).

Given the extensive (indeed, excessive) surveillance powers that the government already possesses, the Administration's blatantly illegal use of warrantless surveillance raises an important question: why? One possibility, raised by the New York Times in a Dec. 24, 2005 story ("Spy Agency Mined Vast Data Trove, Officials Report"), is that the NSA is relying on assistance from several unnamed telecommunications companies to "trace and analyze large volumes of communications" and is "much larger than the White House has acknowledged."

This, as security expert Bruce Schneier has noted, suggests the Bush Administration has developed a "a whole new surveillance paradigm" - exploiting the NSA's well known capabilities to spy on individuals not one at a time, as FISA permits, but to run communications en masse through computers in the search for suspicious individuals or patterns. This "new paradigm" may well be connected to the NSA program sometimes known as "Echelon," which carries out just that kind of mass collection of communications (see http://www.nsawatch.org). This "wholesale" surveillance, as Schneier calls it, would constitute an illegal invasion of Americans' privacy on a scale that has never before been seen. (See Schneier, "NSA and Bush's Illegal Eavesdropping," Salon.com)

According to the Times, several telecommunications companies provided the NSA with direct access to streams of communications over their networks. In other words, the NSA appears to have direct access to a large volume of Americans' communications - with not simply the assent, but the cooperation of the companies handling those communications.

We do not know from the report which companies are involved or precisely how or what the NSA can access. But this revelation raises questions about both the legal authority of the NSA to request and receive this data, and whether these companies may have violated either the Federal laws protecting these communications or their own stated privacy polices (which may, for example, provide that they will only turn over their customers' data with their consent or in response to a proper order).

Regardless of the scale of this spying, we are facing a historic moment: the President of the United States has claimed a sweeping wartime power to brush aside the clear limits on his power set by our Constitution and laws - a chilling assertion of presidential power that has not been seen since Richard Nixon.

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NSA Spying on Americans Is Illegal | American Civil Liberties ...

Ad will collapse in seconds CLOSE /espionage November 17, 2016 2:06 a.m. By Charley Lanyon

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If youve spent any time in New York, youve seen it: The skyscraper formerly known as the AT&T Long Lines Building at 33 Thomas Street in Lower Manhattan. Whereas other skyscrapers light up when night falls, the Long Lines Building stays dark, a pitch-black cutout in an otherwise glittering skyline. While other iconic New York buildings are shining towers of glass, this one is all dull-gray concrete, 29 floors and no windows.

For most New Yorkers, the Long Lines Building is just a curiosity, another pretty-ugly part of our city, easy to ignore and better for it. Now, owing to a report in the Intercept, you wont be able to look at it the same way again.

Long-known to the public as a major communications hub, owned by AT&T and run by its local subsidiary the New York Telephone Company, thanks to NSA whistle-blower Edward Snowden, we now know that the Long Lines Building is also a top-secret NSA listening station code-named TITANPOINTE.

The Long Lines Building, it turns out, is forgettable because it was designed to be forgettable. It was also designed by the architectural firm John Carl Warnecke & Associates to withstand a nuclear bomb, and protect 1,500 people for two weeks from toxic radiation.

In a long-form investigation, the Intercept was able to combine revelations about the NSAs surveillance program made public in Edward Snowdens leak together with architectural plans, public records, and interviews with former AT&T employees to bring to light this secret hub of international espionage hiding in plain sight.

According to the report, the code name TITANPOINTE features dozens of times in the NSA documents, often in classified reports about surveillance operations, and often in partnership with another code name, LITHIUM, already known to be AT&T.

AT&Ts partnership with U.S. government surveillance programs is already well-known.

According to former AT&T engineers with knowledge of the program, the building is home to one of the United States major gateway switches, which routes international calls from the United States to countries all over the world.

Top-secret NSA memos leaked by Snowden seem to suggest that the NSA has been able to listen in to these calls directly from a secret site within the building. If these revelations are true, the Long Lines Building is also likely the major venue where now infamous surveillance programs targeting the United Nations, the International Monetary Fund, and close U.S. allies like Germany and Japan were staged.

Elizabeth Goitein, co-director of the liberty and national-security program at the Brennan Center for Justice, told the Intercept:

It looks like big brother has been living in New York City all along. He just has a really ugly apartment.

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One protester had a heart attack, and another went into surgery after her arm was injured by a concussion grenade.

He has a history of using his charity to cover his legal bills.

He didnt say anything about his most controversial plans, such as the wall and a Muslim registry.

Media sources described the summit as a firing squad, but Trump spokesperson Kellyanne Conway claimed the mood was cordial.

Two weeks after the election, and trailing Democrat Roy Cooper, the Republican incumbent is refusing to concede.

Officials on one campus in Massachusetts decided flying the American flag is more trouble than its worth.

Below freezing wind chill for your Tuesday morning commute.

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Presidential wins arent great predictors of future senate elections.

The Kansas secretary of State met with Donald Trump Sunday and inadvertently provided insight into what he was proposing at DHS.

The New York Times obtained a copy of a contract with a law firm that the city is paying.

Profiting off the presidency is prohibited by the Emoluments Clause of the Constitution but its not much of a deterrent.

Americas president-elect gave Shinz Abe a handful of shirts in return.

The governor of New Jersey favored lobbyists, too, which angered Trump.

At least two appeared to be targeted ambush-style attacks; one of them, in San Antonio, was fatal.

A new poll shows Trumps favorability has risen since the election, even as he remains an unusually unpopular president-elect.

The question is, why are Democrats desperate to help them pass it?

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Mike Pence responded, Were going to have a president who will never say what well never do.

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Original post:
New Yorks NSA Listening Station Is Hiding in Plain Sight

NSA Director Adm. Michael Rogers. REUTERS/Larry Downing

The leader of the National Security Agency says there shouldn't be "any doubt in anybody's mind" that there was "a conscious effort by a nation-state" to sway the result of the 2016 presidential election.

Adm. Michael Rogers, who leads both the NSA and US Cyber Command, made the comments during a conference presented by The Wall Street Journal in response to a question about WikiLeaks' release of nearly 20,000 internal emails from the Democratic National Committee.

"There shouldn't be any doubt in anybody's mind," Rogers said. "This was not something that was done casually. This was not something that was done by chance. This was not a target that was selected purely arbitrarily. This was a conscious effort by a nation-state to attempt to achieve a specific effect."

Rogers did not specify the nation-state or the specific effect, though US intelligence officials say they suspect Russia provided the emails to WikiLeaks after hackers stole them from DNC servers and the personal email account of Hillary Clinton's campaign manager, John Podesta.

At least two different hacker groups associated with the Russian government were found inside the networks of the DNC over the past year reading emails, chats, and downloading private documents. Many of those files were later released by WikiLeaks.

The hack, which was investigated by the FBI and the cybersecurity firm Crowdstrike, was linked to Russia through a lengthy technical analysis, which was detailed on the firm's blog. Former NSA research scientist Dave Aitel, who now leads another cybersecurity firm, has called the analysis "pretty dead on."

The hack of Podesta's private Gmail address was traced by cybersecurity researchers to hackers with Russia's foreign intelligence service, the GRU, because the group made an error during its campaign of "spear phishing" targets tricking them into clicking on malicious links or give up their passwords. The researchers found that the group had targeted more than 100 email addresses that were associated with the Clinton campaign, according to The New York Times.

The Obama administration in October publicly accused Russia of being behind the hacks.

"The US intelligence community is confident that the Russian Government directed the recent compromises of emails," reads a statement from the Department of Homeland Security. "These thefts and disclosures are intended to interfere with the US election process."

Republican Sen. Lindsey Graham of South Carolina said on Tuesday that he wants the Senate to open an investigation into whether the Russian government meddled in the US election. Russian President Vladimir Putin has repeatedly denied his country was behind the hacks.

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NSA CHIEF: Nation-state made 'conscious effort' to sway the ...