Supreme Court Rules Police May Search A Home Without Obtaining A Warrant

Submitted by Tyler Durden on 02/27/2014 17:09 -0500

If the most disturbing, if underreported, news from yesterday, was Obama's "modification" of NSA capabilities, which contrary to his earlier promises, was just granted even greater powers as phone recording will now be stored for even longer than previously, then this latest development from the Supreme Court - one which some could argue just voided the Fourth amendment - is even more shocking. RT reports that the US Supreme Court has ruled that police may search a home without obtaining a warrant despite the objection of one occupant if that occupant has been removed from the premises. With its 6 to 3 decision in Fernandez v. California on Tuesday, the Court sided with law enforcement’s ability to conduct warrantless searches after restricting police powers with its 2006 decision on a similar case.

From RT:

In 2009, the Los Angeles Police Department sought suspect Walter Fernandez, believed to have stabbed someone in a violent gang robbery. When police first arrived at the suspect’s home, they heard yelling and screaming before Fernandez’s live-in girlfriend Roxanne Rojas answered the door, appearing “freshly bruised and bloody,” and with an infant in hand, according to argument recap by SCOTUSblog.

Fernandez was spotted by police, and said, “Get out. I know my rights. You can’t come in.” Yet police arrested him on charges of domestic violence. Later, once Fernandez was out of the home, police asked Rojas for permission to conduct a search, which yielded evidence implicating Fernandez in the robbery.

Probable cause or probable loss of all civil rights?

The Court’s decision justified the police actions, with Justice Samuel Alito writing the majority’s position.

“A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant,” Alito wrote. He added that “denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence.”

Alito was joined in the majority by Justices Breyer, Kennedy, Roberts, Scalia, and Thomas.

Justice Ruth Bader Ginsburg – joined in the minority by Justices Kagan and Sotomayor, marking a gender divide among the Justices in the case – wrote the dissenting opinion, calling the decision a blow to the Fourth Amendment, which prohibits “unreasonable searches and seizures.”

“Instead of adhering to the warrant requirement,” Ginsburg wrote, “today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.”Tuesday’s ruling, she added, “shrinks to petite size our holding in Georgia v. Randolph.”

Georgia v. Randolph was a similar case the Supreme Court addressed in 2006, in which a domestic violence suspect would not allow police to enter his home, though his wife did offer police consent. The police ultimately entered the home. The Court ruled in the case that the man’s refusal while being present in the home should have kept authorizes from entering.

“A physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant,” the majority ruled in that case.

In addressing Randolph in the majority opinion, Alito wrote that the difference between that case and Fernandez was the physical presence of the suspect.

“Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present,” he wrote.

“We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.”

Prior to Randolph and Fernandez, the Court ruled in the 1974 case United States v. Matlock that any one of the co-tenants in a home can consent to a police search of the premises.

Well there goes the fourth amen... oh look, over there: it's another all time high in the S&P 500. On paper, those who hold stocks have never been richer. Everyone else, barricade your doors, and the police come knocking, don't even bother answering - they will come in anyway. And also prepare your guns for return to the government: that particular "constitutional" amendment is the next to go.

Chicago PD Believes It Can See The Future, Starts Warning Citizens About Crimes They Might Commit

from the buttle/tuttle dept

We've talked a lot over the years about the attempts to get out "ahead of crime" by using computer programs and algorithms to try and predict who might commit a crime. Predictive computing can then either target specific areas or specific people that might be in need of some extra law enforcement attention. Except as we've noted repeatedly, these programs are only as valuable as the data they use. Garbage in, garbage out, but in this case you've got a human being on the other end of the equation whose life can be dramatically impacted by law enforcement holding what they believe is "proof" that you'll soon be up to no good.

With that in mind there's growing concerns about efforts in Chicago to use predictive analytical systems to generate a "heat list" -- or a list of 400 or so individuals most likely to be involved in violent crime. The Chicago efforts are based on a Yale sociologist's studies and use an algorithm created by an engineer at the Illinois Institute of Technology. People who find themselves on the list get personal visits from law enforcement warning them that they better be nice. The result is a collision between law enforcement that believes in the righteousness of these efforts and those who worry that they could, as an EFF rep states, create "an environment where police can show up at anyone's door at any time for any reason."

Law enforcement and the code creators, as you'd expect, argue that it's only the bad guys that need to worry about a system like this:

"A press liaison for the NIJ explains in an email: "These are persons who the model has determined are those most likely to be involved in a shooting or homicide, with probabilities that are hundreds of times that of an ordinary citizen." Commander Steven Caluris, who also works on the CPD's predictive policing program, put it a different way. "If you end up on that list, there's a reason you're there."

Unless law enforcement makes a mistake, your data is wrong (which it often will be), or we decide to expand the program significantly, right? Another concern bubbling up in Chicago is that the programs are effectively using racial profiling to target already-troubled areas where crime naturally would be greater due to poverty, without anybody bothering to perform a deeper analysis of why those areas might be having problems (aka targeting symptoms, not disease):

"...how are we deciding who gets on the list and who decides who gets on the list?" (EFF staff attorney Hanni) Fakhoury asks..."Are people ending up on this list simply because they live in a crappy part of town and know people who have been troublemakers? We are living in a time when information is easily shareable and easily accessible," Fakhoury says. "So, let's say we know that someone is connected to another person who was arrested. Or, let's say we know that someone's been arrested in the past. Is it fair to take advantage of that information? Are we just perpetuating the problem?" He continues: "How many people of color are on this heat list? Is the list all black kids? Is this list all kids from Chicago's South Side? If so, are we just closing ourselves off to this small subset of people?"

Chicago PD denies that there's any "racial, neighborhood, or other such information" being used in their heat list calculations, but a FOIA request to actually confirm that was denied, under the pretense that releasing such information could "endanger the life or physical safety of law enforcement personnel or any other person." So yeah, there's great transparency at work here as well.

Predictive computing is excellent for a good many things, from improving traffic congestion to designing sewer networks, but calculating the future movements of highly complicated and emotional human beings is a bridge too far. It's not particularly difficult to imagine a future where law enforcement (not always known for nuanced thinking or honest crime stat record keeping) starts using their belief in the infallibility of mathematics as the underpinnings for bad behavior, with the horrible experiences of the falsely accused dismissed as anecdotal experiences ("well shucks, most of the time the system is right, so its existence is justified"). It might just be time for a re-watch of Terry Gilliam's Brazil with an eye on reminding ourselves what a simple clerical error can do to the Archibald Buttles of the world.

DOJ Asks To Hang Onto Bulk Collections Longer, Citing Need To 'Preserve' Evidence It Has No Intention Of Presenting In Court

from the deck-stacking-at-its-finest dept

The DOJ is asking the courts to extend the amount of time it can hold onto bulk metadata records. The use-by date is normally five years, but the DOJ wants more time. It's stated reason for the request is to prevent spoliation of evidence that might be needed in the several lawsuits filed against the government since the exposure of the NSA's bulk collection programs.

Some things to note: the DOJ is asking for the first FISA order of 2014 to be amended to remove the 5-year expiration date, which seems to indicate that the amendment won't affect anything previously collected. The storage limit has been five years since at least 2006, so what the DOJ is asking for is for data to be held indefinitely, for an indefinite period going forward.

Obviously, this carves a rather large hole in the NSA's (already minimal) minimization procedures. The DOJ claims the retained data will be reserved for "non-analytic" purposes, but I don't really see how the it can make that assertion, considering the NSA, at this point, still collects and stores it. Searches could be limited to five years from date of search, but this presumes a lot of an agency run by people who routinely "explore the edges of the box." (Granted, historical data tends to become less useful the older it gets, but there are hardly any limits placed on the NSA's collection abilities, so it's really not a good idea to let the government start stripping these few stipulations away.)

What's absolutely disgusting about this request is the fact that the DOJ has no interest in allowingthese records to be admitted as evidence. In fact, the DOJ has already withheld this information from several defendants, effectively preventing them from discovering where the government obtained the evidence being used against them. The DOJ is talking a good game about due process, etc., but its track record shows it's willing to keep this information hidden for as long as possible.

Before the leaks, the DOJ didn't even have to acknowledge it used these programs to gather evidence against defendants. Before the leaks, other national law enforcement and investigative agencies were given this evidence and instructed to construct a paper trail to cover up the origins. The DOJ can't really get away with this anymore, but that won't stop it from pretending national security concerns outweigh a defendant's need to know what evidence is being used and how it was derived. And that's not even addressing those already imprisoned using evidence the DOJ actively hid from defendants, as Marcy Wheeler at emptywheel points out.

Of course, it was only 24 hours ago when DOJ was last caught violating that principle in Section 702, abrogating a defendant’s right to know where the evidence against him came from. And there are a whole slew of criminal defendants — most now imprisoned — whose 702 notice DOJ is still sitting on, whose rights DOJ felt perfectly entitled to similarly abrogate (we know this because back in June FBI was bragging about how many of them there were). So I am … surprised to hear DOJ suggest it gives a goddamn about criminal defendants' rights, because for at least the last 7 years it has been shirking precisely that duty as it pertains to FISA.

Wheeler also notes that the DOJ may be pretending to be concerned about the lawsuits it'scurrently facing, but it expressed no similar concern in the years before Snowden's leaks exposed the NSA's programs.

[A]s EFF's Cindy Cohn pointed out to the WSJ, Judge Vaughn Walker issued a retention order in EFF’s 2008 suit against the dragnet.

"Ms. Cohn also questioned why the government was only now considering this move, even though the EFF filed a lawsuit over NSA data collection in 2008.

In that case, a judge ordered evidence preserved related to claims brought by AT&T customers. What the government is considering now is far broader."

At that point, the DOJ has no problem letting evidence against the NSA expire, but now it wants an indefinite extension to records going forward, using the pretense that it cares about due process as leverage. The NSA wins either way. Longer retention means more access to the collection, on or off the books. And it knows the incredibly misnamed Dept. of Justice will do its best to keep collected surveillance data out of the harsh judicial sunlight.

and.....

http://www.blacklistednews.com/Feds_move_to_keep_NSA_call_data_indefinitely/33215/0/0/0/Y/M.html

SOURCE: POLITICO

Citing the need to preserve evidence related to pending lawsuits, the Obama administration is asking for permission to keep data on billions of U.S. phone calls indefinitely instead of destroying it after five years.

In a motion filed Tuesday with the Foreign Intelligence Surveillance Court, the Justice Department says the series of lawsuits over the program — including one filed by Sen. Rand Paul (R-Ky.) — create a duty for the government to hang on to the so-called metadata currently in the National Security Agency’s computer systems.

“Based upon the issues raised by Plaintiffs in the … lawsuits and the Government’s potential defenses to those claims, the United States must ensure that all potentially relevant evidence is retained which includes the [business record] metadata obtained in bulk from certain telecommunications service providers pursuant to this Court’s production orders,” Justice Department lawyers write in a motion (posted here).

Read More...

You Read It Here First: Government Spies On Innocent People Via Webcams, Laptops, Xbox

Latest Snowden Leak confirms story Infowars first broke EIGHT YEARS AGO

Steve Watson
Infowars.com
February 27, 2014

The latest revelation concerning mass government spying confirms an issue that Infowars has been covering for close to a decade. British and American governments are spying on people in their own homes via web cams, laptop microphones and devices such as the X-box.

The London Guardian has the details in a report based on information leaked by NSA whistleblower Edward Snowden.

The British surveillance agency GCHQ, with help from the NSA, actively spied on nearly 2 million Yahoo users via webcams built into their computers. The documents show that the agency intercepted millions of images as part of a secret program codenamed OPTIC NERVE.

The report also states that Americans were almost certainly targeted as part of the bulk collection of data, and that there is no law to prevent such activity in Britain.

The documents show that images were collected from webcams at regular intervals, one image every five minutes, and were used by the spy agency to trial automated facial recognition programs.

The Guardian describes the process as “eerily reminiscent of the telescreens evoked in George Orwell’s 1984.”

The documents dub the practice as “bulk access to Yahoo webcam images/events”, and spies working at GCHQ compared it to a police database of mugshots. “Face detection has the potential to aid selection of useful images for ‘mugshots’ or even for face recognition by assessing the angle of the face,” the papers read. “The best images are ones where the person is facing the camera with their face upright.”

Essentially, the spy agency appear to have been building a huge digital database containing the faces of Yahoo users.

The documents advise employees at GCHQ on how to use the system, noting “[I]f you search for similar IDs to your target, you will be able to request automatic comparison of the face in the similar IDs to those in your target’s ID”.

In one presentation contained within the documents, more technologically advanced systems, such as iris recognition cameras, are discussed as potential surveillance tools. The paper even chillingly states “think Tom Cruise in Minority Report”.

The documents state that Yahoo users were specifically singled out because “Yahoo webcam is known to be used by GCHQ targets”.

The papers also note that a large quantity of the data collected contained nudity or sexually explicit imagery. The spy agency seemingly made no effort to prevent the collection of such images.

Yahoo described the practice as “a whole new level of violation of our users’ privacy,” and strenuously denied having any knowledge of the program.

Infowars first reported in 2006, EIGHT YEARS AGO, that innocent people were being spied on through their computers. We specifically described the practice as Minority Report style technology, as the GCHQ had done.

We have since covered the issue consistently, warning that “Hundreds of millions of Internet-active Americans will all be potential targets for secret surveillance.”

Of course, some quarters dismissed our reports as “conspiracy theories”, while worried internet usersquestioned whether the reports were accurate.

The GCHQ program was seemingly not limited to Yahoo user web cams either. Another presentation within the leaked internal papers discusses the capabilities of the Xbox 360′s Kinect camera, saying it generated “fairly normal webcam traffic” and that it was being evaluated as a potential surveillance tool.

We have also documented the potential use of Xbox for surveillance purposes, noting that Skype calls made on the devices can be intercepted. We have also warned that the ‘always on’ camera of the new Xbox One, which is so powerful it can see through clothing, is wide open to abuse by hackers and government agencies.

According to the leaked documents, the OPTIC NERVE program began as a prototype in 2008 and was still active in 2012. There is no indication that the program has been deactivated.

Security expert Bruce Schneier writes that this latest revelation highlights how there is no distinction between actively spying on a person and what he called “Eavesdropping by algorithm”, in other words, automated computer surveillance. The NSA and the Obama administration have attempted to argue that what they are doing cannot be called “spying” or even “collecting” data, because when the data is gathered, a person is not looking at it. Director of National Intelligence James Clapper still uses this explanation to claim he never lied to Congress when he answered ‘no’ to the question “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

The fallout from the OPTIC NERVE program, the creation of facial recognition databases, and the fact that spooks provably looked at images of people, even NAKED images of people, highlights the fact, Schneier argues, that the “NSA’s definition of ‘collect’ makes no sense whatsoever”, and that our governments are indeed actively spying on us.

British Hacker Faces Extradition To US, Not To Mention Five Years' Imprisonment In UK For Failing To Hand Over Encryption Keys

from the anything-else? dept

Techdirt followed the the saga of the hacker Gary McKinnon, whom the US authorities wished to extradite from the UK to face charges of causing damage to military computers, for some years before the UK Home Secretary blocked his extradition, and the case against him in the UK was dropped. That was a great result for McKinnon after a 10-year fight to avoid extradition, but it meant that the key issues that his situation raised were never addressed. Now a new case with many similarities to that of McKinnon's looks like it will revisit some of those legal questions -- and add some more of its own:

A British man has been charged in the US with hacking into thousands of computer systems, including those of the US army and Nasa, in an alleged attempt to steal confidential data.

Lauri Love, 28, is accused of causing millions of pounds of damage to the US government with a year-long hacking campaign waged from his home in Stradishall, a village in Suffolk.

But even before he can begin to fight that case, Love has an additional problem to deal with because of the following:

On February 7th the deadline for Lauri Love to turn his encryption keys over to the UK government expired.

As the post on FreeAnons explains: The UK government are now free to charge Lauri for his lack of cooperation with their demand for his passwords, in accordance with section 49 of the controversial Regulation of Investigatory Powers Act 2000, but what is section 49 and why is it being levied against Lauri Love?

Section 49 essentially allows the UK government to compel, under threat of up to five years imprisonment (this doubles to ten years if national security is seen to be at stake), any citizen to disclose their personal encryption keys. The law allows for this legal compulsion on grounds ranging from "the interests of national security" to "the purpose of preventing or detecting crime" and "interests of the economic well-being of the United Kingdom".
Actually, RIPA's punishment for withholding keys seems to be up to two years' imprisonment in general, and up to five when the magic spell "national security" is invoked, but it's still a long time. And the crucial point is the following: Lauri has been charged with no crime in Britain, yet their government is still invoking this law to attempt to force him to provide information that could incriminate him or damage his defense should he go to trial.
So Love faces two extremely serious problems: the threat of imprisonment from RIPA, and the threat of extradition to the US, with a long prison sentence there if he's found guilty. Here's what the US Department of Justice is accusing him of: The indictment, which was released by the US department of justice on Monday, describes Love as a "sophisticated and prolific computer hacker who specialised in gaining access to the computer networks of large organisations, including government agencies, collecting confidential data including personally identifiable information from within the compromised networks, and exfiltrating the data out of the compromised networks".
"Gaining access", "collecting confidential data", "exfiltrating data out": isn't that precisely what the NSA and GCHQ have been doing around the world on a rather larger scale...?

White House Panelist On NSA Says NSA May Enable a “Police State”

Washington’s Blog
February 27, 2014

Richard Clarke is one of the four White House panelists on NSA spying, and the former top counter-terror czar in the Clinton and Bush administrations.

Image: Reddit Logo (Wikimedia Commons).

Clarke has previously said that mass surveillance isn’t needed to keep us safe. And see this.

As Tech Target reports:

Revelations about NSA monitoring activities over the last year show the potential for a police state mechanism, according to the former U.S. cybersecurity czar, but there is still time to avoid the dire consequences.

***

“[T]hey have created, with the growth of technologies, the potential for a police state.”

***

“Once you give up your rights, you can never get them back. Once you turn on that police state, you can never turn it off.”

Indeed, top American officials have warned for decades of a police state enabled by the NSA.

And a former top NSA official said that we’ve already got a police state. He told Washington’s Blog:

I am glad he [Clarke] also understands the threat to democracy.

The only reason I recognized that in 2001 is because I worked the Soviet problem for close to 30 years … and what NSA was doing was exactly what the Soviet’s tried to do (as well as the Stasi and the Gestapo/SS).

And see this.

Reddit Mods Bury Glenn Greenwald's Story On GCHQ/NSA Use Of Internet To 'Destroy Reputations'

from the what-is-this?-Reddigg? dept

Mike's coverage of leaks showing the NSA and GCHQ using the internet to "manipulate, deceive and destroy reputations" (as reported by Glenn Greenwald at firstlook.org) hit the front page of Reddit yesterday, generating lots of traffic for Techdirt. This traffic truly should have gone to firstlook.org, but never made it there. A look at the top comments on our coverage show why:

Why is this story being removed from all the popular subs over and over by mods?

Message the admins about the censorship of this article by /r/news and/r/worldnews mods. They have never seemed to care about this in the past but if enough users message them it will hopefully at least provoke a response of some kind. Something needs to be done about this or this site needs to be abandoned as a platform for legitimate political discourse.

Important Update: So, it turns out that the /r/news mod /u/BipolarBear0 who has been deleting all the instances of this story has previously been caught running a voting brigade to get anti-Semitic content upvoted on /r/conspiracy to discredit the sub. A fact which he admitted to me in another thread just a few minutes ago (he claims he was doing an "experiment"...) . This guy needs to be banned from the site.

A little further down in the thread:

Last night, the original article from firstlook.org was taken down and tagged as "not appropriate subreddit." Meanwhile, another copy of the story was allowed to rise, despite having an editorialized title. Later, the version that had been taken down--which was older and had fewer upvotes because it had been removed--was put back up and the younger version with more upvotes was removed, allegedly because the topic was "already covered."

This tactic has been used to keep other similar stories from rising, such as the one about the NSA sharing information with Israel.

Time and time again, the content on /r/worldnews, /r/technology, /r/news, and/r/politics is manipulated by moderator intervention.

While everyone lets the implications of this kind of content manipulation on reddit regarding stories about online content manipulation sink in, I think it's worth noting that /r/technology has a bot that removes stories about the NSA.

Ninja edit: subscribe to /r/undelete and /r/longtail if you're interested in keeping an eye on popular content that's been removed by mods.

Censorship on reddit? It seems almost ridiculous considering the amount of subreddits available for those submitting stories. But it's there all the same (although not actually "censorship" so much as a bad direction for a community based on meritocracy to go in). According to commenters, both r/news and r/worldnews (two of the biggest subreddits), the firstlook.org post was removed over and over again once they began collecting upvotes, forcing each submission to start over at "0" and face an uphill struggle for visibility.

Screenshots and lists of removed posts have been compiled showing the various subs' mods' actions to bury the firstlook.org story. But why? Sooner or later, it was bound to sneak through, like ours did (a link to the Examiner's coverage did as well).

Speculation on this runs rampant, but most commenters agree that too many mods are abusing their power in order to bury anything they don't like. We saw some of this infighting late last year when r/politics composed a very arbitrary list [since rescinded, mostly] of banned submissions sources (including us) in an effort to crack down on overly-politicized articles (on a politics sub no less) and what the mods declared to be "blogspam," a catchall term that somehow included award-winning news outlets like Mother Jones.

The decision to clamp down on news detailing this particular leak brought a whole lot of irony with it. The efforts made to remove an unflattering story about intelligence agencies' dirty little efforts to use the internet to destroy reputations and manipulate public perception led to tongue-in-cheek speculation that Reddit itself is compromised. (And there's certainly no way to be sure it isn't…)

Techdirt may have been the inadvertent beneficiary of bad behavior by subreddit mods, but that's hardly reason to celebrate. If the mod situation is as bad as it appears to be, Reddit is going to start heading down the path of Digg, whose infamous "bury brigade" worked tirelessly to ensure only certain news coverage made its way to the top of the list.

This isn't an easily-solvable problem, thanks to Reddit's hydra-like structure, with hundreds of subreddits and no clear demarcation of command. The corporate Reddit, which ostensibly "controls" the community, has largely taken a hands-off approach. This is still the best option and the reversal of the r/politics arbitrary ban list shows the community still has the power to solve some of its mod problems. But widespread story burial, coupled with evidence of subreddits being gamed by mods, isn't exactly comforting, especially considering Reddit's journalistic aspirations.

Like any platform with millions of users, issues will never be non-existent. But a failure to address the abuse of power by mods of larger subreddits will hurt Reddit in the long run. Power coupled with an almost-complete lack of accountability is always a bad thing. But this problem will need to be solved internally by the subreddits themselves. There's power in numbers, something subreddit subscribers should be able to leverage to start cleaning this mess up.

How Covert Agents Infiltrate the Internet to Manipulate, Deceive, and Destroy Reputations

By Glenn Greenwald24 Feb 2014, 6:25 PM EST973

A page from a GCHQ top secret document prepared by its secretive JTRIG unit

One of the many pressing stories that remains to be told from the Snowden archive is how western intelligence agencies are attempting to manipulate and control online discourse with extreme tactics of deception and reputation-destruction. It’s time to tell a chunk of that story, complete with the relevant documents.

Over the last several weeks, I worked with NBC News to publish a series of articles about “dirty trick” tactics used by GCHQ’s previously secret unit, JTRIG (Joint Threat Research Intelligence Group). These were based on four classified GCHQ documents presented to the NSA and the other three partners in the English-speaking “Five Eyes” alliance. Today, we at the Intercept are publishing another new JTRIG document, in full, entitled “The Art of Deception: Training for Online Covert Operations.”

By publishing these stories one by one, our NBC reporting highlighted some of the key, discrete revelations: the monitoring of YouTube and Blogger, the targeting of Anonymous with the very same DDoS attacks they accuse “hacktivists” of using, the use of “honey traps” (luring people into compromising situations using sex) and destructive viruses. But, here, I want to focus and elaborate on the overarching point revealed by all of these documents: namely, that these agencies are attempting to control, infiltrate, manipulate, and warp online discourse, and in doing so, are compromising the integrity of the internet itself.

Among the core self-identified purposes of JTRIG are two tactics: (1) to inject all sorts of false material onto the internet in order to destroy the reputation of its targets; and (2) to use social sciences and other techniques to manipulate online discourse and activism to generate outcomes it considers desirable. To see how extremist these programs are, just consider the tactics they boast of using to achieve those ends: “false flag operations” (posting material to the internet and falsely attributing it to someone else), fake victim blog posts (pretending to be a victim of the individual whose reputation they want to destroy), and posting “negative information” on various forums. Here is one illustrative list of tactics from the latest GCHQ document we’re publishing today:

Other tactics aimed at individuals are listed here, under the revealing title “discredit a target”:

Then there are the tactics used to destroy companies the agency targets:

GCHQ describes the purpose of JTRIG in starkly clear terms: “using online techniques to make something happen in the real or cyber world,” including “information ops (influence or disruption).”

Critically, the “targets” for this deceit and reputation-destruction extend far beyond the customary roster of normal spycraft: hostile nations and their leaders, military agencies, and intelligence services. In fact, the discussion of many of these techniques occurs in the context of using them in lieu of “traditional law enforcement” against people suspected (but not charged or convicted) of ordinary crimes or, more broadly still, “hacktivism”, meaning those who use online protest activity for political ends.

The title page of one of these documents reflects the agency’s own awareness that it is “pushing the boundaries” by using “cyber offensive” techniques against people who have nothing to do with terrorism or national security threats, and indeed, centrally involves law enforcement agents who investigate ordinary crimes:

No matter your views on Anonymous, “hacktivists” or garden-variety criminals, it is not difficult to see how dangerous it is to have secret government agencies being able to target any individuals they want – who have never been charged with, let alone convicted of, any crimes – with these sorts of online, deception-based tactics of reputation destruction and disruption. There is a strong argument to make, as Jay Leiderman demonstrated in the Guardianin the context of the Paypal 14 hacktivist persecution, that the “denial of service” tactics used by hacktivists result in (at most) trivial damage (far less than the cyber-warfare tactics favored by the US and UK) and are far more akin to the type of political protest protected by the First Amendment.

The broader point is that, far beyond hacktivists, these surveillance agencies have vested themselves with the power to deliberately ruin people’s reputations and disrupt their online political activity even though they’ve been charged with no crimes, and even though their actions have no conceivable connection to terrorism or even national security threats. As Anonymous expert Gabriella Coleman of McGill University told me, “targeting Anonymous and hacktivists amounts to targeting citizens for expressing their political beliefs, resulting in the stifling of legitimate dissent.” Pointing to this study she published, Professor Coleman vehemently contested the assertion that “there is anything terrorist/violent in their actions.”

Government plans to monitor and influence internet communications, and covertly infiltrate online communities in order to sow dissension and disseminate false information, have long been the source of speculation. Harvard Law Professor Cass Sunstein, a close Obama adviser and the White House’s former head of the Office of Information and Regulatory Affairs, wrote a controversial paper in 2008 proposing that the US government employ teams of covert agents and pseudo-”independent” advocates to “cognitively infiltrate” online groups and websites, as well as other activist groups.

Sunstein also proposed sending covert agents into “chat rooms, online social networks, or even real-space groups” which spread what he views as false and damaging “conspiracy theories” about the government. Ironically, the very same Sunstein was recently named by Obama to serve as a member of the NSA review panel created by the White House, one that – while disputing key NSA claims – proceeded to propose many cosmetic reforms to the agency’s powers (most of which were ignored by the President who appointed them).

But these GCHQ documents are the first to prove that a major western government is using some of the most controversial techniques to disseminate deception online and harm the reputations of targets. Under the tactics they use, the state is deliberately spreading lies on the internet about whichever individuals it targets, including the use of what GCHQ itself calls “false flag operations” and emails to people’s families and friends. Who would possibly trust a government to exercise these powers at all, let alone do so in secret, with virtually no oversight, and outside of any cognizable legal framework?

Then there is the use of psychology and other social sciences to not only understand, but shape and control, how online activism and discourse unfolds. Today’s newly published document touts the work of GCHQ’s “Human Science Operations Cell,” devoted to “online human intelligence” and “strategic influence and disruption”:

Under the title “Online Covert Action”, the document details a variety of means to engage in “influence and info ops” as well as “disruption and computer net attack,” while dissecting how human beings can be manipulated using “leaders,” “trust,” “obedience” and “compliance”:

The documents lay out theories of how humans interact with one another, particularly online, and then attempt to identify ways to influence the outcomes – or “game” it:

We submitted numerous questions to GCHQ, including: (1) Does GCHQ in fact engage in “false flag operations” where material is posted to the Internet and falsely attributed to someone else?; (2) Does GCHQ engage in efforts to influence or manipulate political discourse online?; and (3) Does GCHQ’s mandate include targeting common criminals (such as boiler room operators), or only foreign threats?

As usual, they ignored those questions and opted instead to send their vague and nonresponsive boilerplate: “It is a longstanding policy that we do not comment on intelligence matters. Furthermore, all of GCHQ’s work is carried out in accordance with a strict legal and policy framework which ensures that our activities are authorised, necessary and proportionate, and that there is rigorous oversight, including from the Secretary of State, the Interception and Intelligence Services Commissioners and the Parliamentary Intelligence and Security Committee. All our operational processes rigorously support this position.”

These agencies’ refusal to “comment on intelligence matters” – meaning: talk at all about anything and everything they do – is precisely why whistleblowing is so urgent, the journalism that supports it so clearly in the public interest, and the increasingly unhinged attacks by these agencies so easy to understand. Claims that government agencies are infiltrating online communities and engaging in “false flag operations” to discredit targets are often dismissed as conspiracy theories, but these documents leave no doubt they are doing precisely that.

Whatever else is true, no government should be able to engage in these tactics: what justification is there for having government agencies target people – who have been charged with no crime – for reputation-destruction, infiltrate online political communities, and develop techniques for manipulating online discourse? But to allow those actions with no public knowledge or accountability is particularly unjustifiable.

Catharsis Ours

Thursday, February 27, 2014