Later On

A blog written for those whose interests more or less match mine.

The US deserves better than the FBI

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The FBI’s ineptitude is amazing, and their vigorous recruitment and financing of incompetent (and sometimes mentally troubled) would-be terrorist simply in order to create crimes the FBI can then forestall is at least problematic. Their incompetence in their forensic lab work has been a scandal. And their inability to understand why secure encryption cannot include “back doors” is astonishing. Surely they must be able to realize that an easy way to break an encryption method assists criminals more than law enforcement.

Now the FBI is telling purely hypothetical horror stories about what might possibly someday happen if the FBI is not allowed to break into encryption they want. They have to tell hypothetical stories because they have no actual stories of any problems. Jenna McLaughlin reports in The Intercept:

Federal law enforcement officials decrying the proliferation of strong encryption said Tuesday that the only reason they lack actual examples of how often it shields criminals is that they’ve done a “bad job” of collecting them.

“I will be the first person to tell you that we’ve done a really bad job collecting empirical data. We need to do a much better job of that,” said Amy Hess, the FBI’s assistant executive director of science and technology, at an encryption debate hosted by Passcode, a new security and privacy blog from the Christian Science Monitor.

Asked how often investigations are stymied by encryption, Kiran Raj, a senior counsel of the Department of Justice, responded with a non-answer. “It is an important point that you make, that we have to provide the sense of a scale,” he said.

Neither Hess nor Raj said what they planned to do about it.

Hess said that data currently available on investigations, including the annual wiretap report indicating that agents encountered encryption only a handful of times during the course of the year, is simply wrong. “The fallacy that that data is built on,” she said, is that “if [agents] think an individual is going to use some sort of encrypted device, they’re not going to pursue it” any further.

Raj said that requests for the content of phone communications — text messages, emails, and more — only come at the end of a very exhaustive list of less intrusive methods. “We call it an investigative technique of last resort,” he said. But when pressed on why there’s no evidence of the number of times agents hit this final wall, he simply said that these are “hard issues.”

Previous examples provided by FBI Director James Comey in October to illustrate the dangers of “going dark” turned out to be almost laughable. Comey acknowledged at the time that he had “asked my folks just to canvas” for examples he could use, “but I don’t think I’ve found that one yet.” Then he immediately added: “I’m not looking.”

Manhattan District Attorney Cyrus Vance Jr. cited one possible example in an August New York Times op-ed — where an encrypted mobile phone may have stymied a murder investigation in Illinois — but that seems to be pretty much all anyone has come up with.

The lack of evidence has hardly toned down the rhetoric. [This reminds me of the rhetoric about the “war on cops,” when in fact fewer cops have been killed during the two terms of Obama’s presidency than in any other two terms in a lifetime. – LG]

Continue reading.

In other FBI-related news, a Federal court lifted a National Security Letter gag order, the first time in 14 years for such an action. Jenna McLaughlin is the reporter on that, as well. From The Intercept:

A federal district court judge in New York has fully lifted an 11-year-old gag order that the FBI imposed on Nicholas Merrill, the founder of a small Internet service provider, to prevent him from speaking about a National Security Letter served on him in 2004.

It marked the first time such a gag order has been fully lifted since the USA Patriot Act in 2001 expanded the FBI’s authority to unilaterally demand that certain businesses turn over records simply by writing a letter saying the information is needed for national security purposes.

Like other NSL recipients, Merrill was also instructed that he could not mention the order to anyone.

Merrill said the court ruling allowing him to discuss the details of the sealed request in full will allow him to ignite a debate among Americans about the unchecked surveillance powers of the U.S. government.

“For more than a decade, the FBI has fought tooth and nail in order to prevent me from speaking freely about the NSL I received,” Merrill said in a press release published by the Calyx Institute, where he serves as director.

U.S. District Court Judge Victor Marrero’s decision “vindicates the public’s right to know how the FBI uses warrantless surveillance to peer into our digital lives,” Merrill said. “I hope today’s victory will finally allow Americans to engage in an informed debate about proper the scope of the government’s warrantless surveillance powers.”

Merrill and the American Civil Liberties Union launched what turned out to be a long legal battle against the FBI in 2004 in the case “Doe v. Ashcroft”. Merrill finally won the right to reveal his own identity in 2010.

The FBI withdrew its National Security Letter request after Merrill continually refused to comply, but Merrill decided to keep fighting the gag order. Law students and attorneys of the Media Freedom and Information Access Clinic at Yale Law School represented him in his 2015 case against the Justice Department and the FBI seeking to overturn the gag order.

In his ruling, the judge found no “good reason” to continue to silence Merrill about his experience with the FBI. If Merrill were only allowed to disclose details about the request “in a world in which no threat of terrorism exists,” or in the case that the FBI disclosed the records itself—two extremely unlikely possibilities — it would effectively prevent “accountability of the government to the people,” the judge wrote. . .

Continue reading.

And a paragraph from this article by Evan Osnos in the New Yorker:

The growing use of informants in the campaign against terrorism has drawn criticism from lawyers and activists, and even from some judges; they say that the F.B.I. has used informants to manipulate people who are vulnerable because of mental illness or financial desperation. In a terrorism case in 2011, known as the Newburgh Four, Judge Colleen McMahon faulted the F.B.I. for “trolling among the citizens of a troubled community, offering very poor people money if they will play some role, any role, in criminal activity.” In that case, an informant in Newburgh, New York, offered four men a quarter of a million dollars, a BMW, and other rewards to shoot down military planes, and to set off explosives at two synagogues in the Bronx. They joined the plot. The judge called their actions “beyond despicable,” but, referring to the ringleader, she said that the bureau had manufactured a terrorist out of a former Walmart employee whose “buffoonery is positively Shakespearean in its scope.” (She rejected the prosecutor’s request for life sentences, and sent the accused to prison for twenty-five years, the statutory minimum.)

Written by LeisureGuy

16 September 2015 at 3:30 pm

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