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NSA

The Tory Party vs. Rand Paul

by Liberty Guard Author June 3, 2015

written by Liberty Guard Author

If John McCain, John Cornyn, Mitch McConnell, and the other Republican senators lashing into Rand Paul because of his efforts to force expiration of Sec. 215 of the USA PATRIOT Act had been alive and part of the debate back in 1775-76, they would have been blasting Patrick Henry for supporting Liberty. Colonialists McCain, Cornyn and McConnell would have been firmly in the Tory camp; defending the powers of the Crown to “protect” the colonialists through such tools as Writs of Assistance.

Today, in this 21st Century, the tools may have changed, but the foundational principle on which our independence was fought – a federal government of limited and defined powers — remains the same; yet it is in far greater danger today than 240 years ago.

To McCain and other defenders of the all-powerful and all-seeing national security labyrinth that has mushroomed in the last 14 years, Rand Paul’s stand against permitting the National Security Agency to continue exercising a power to electronically surveil American citizens’ private communications without reasonable cause – an abuse a federal Court of Appeals already has ruled to be unlawful — is “reckless” and a threat to America.

These modern-day Tories might as well champion the words of ol’ King George III, who characterized his benevolent tyranny thus: “I wish nothing but good; therefore, everyone who does not agree with me is a traitor and a scoundrel.”

And what has this “scoundrel’ Rand Paul done? Dismantle the NSA? Destroy the power of the Intelligence Community to monitor real threats? Take away the ability of the CIA to conduct legitimate covert operations? Hardly.

All Paul has done to earn the enmity of the “Anything-It-Takes-to-Make-Us-Safe” caucus in the Senate is to try and reform Sec. 215 of the USA PATRIOT Act to bring it in line with the law and the Fourth Amendment.

Moreover, it is not as if the federal government does not have, and would continue to have, a full arsenal of tools at its disposal to identify, monitor and thwart real terrorist threats. And already moves are afoot openly – and quietly – to ensure that during this interim period when Sec. 215 is at least formally in limbo, those communications that pose a threat and are worthy of monitoring, are in fact monitored.

It would be naïve indeed to think the massive surveillance apparatus at the NSA is at a true standstill after years of abuse justified by the government’s broad interpretation the USA PATRIOT Act’s provisions. Already, there are attempts to weaken the USA Freedom Act – which passed the House last month and places at least some limits on Sec. 215 abuses. For example, Senate surveillance hawks want to keep secret the rulings of the Foreign Intelligence Surveillance Court (FISC) that has, unshackled by public knowledge or input, shaped how and what information the government collects on American citizens. Other proposals include extending the time the government is allowed to collect bulk phone metadata before handing over control of databases to telecom companies; and requiring the companies to give government advance notice of any changes to their retention policies. This latter provision would give Congress time to enact legislation prohibiting such changes if believed to hamper the government’s snooping efforts.

Of course, even such moves by McConnell and other Rand Paul-bashers do not soften their disdain for the junior Senator from Kentucky. McConnell continues to fume at Paul’s refusal to “play nice”; and he stopped just short of naming Paul directly when accusing the opposition of leading “a campaign of demagoguery and disinformation launched in the wake of unlawful actions of Edward Snowden.”

McCain – never one known for congeniality or subtlety — has taken an even lower road, in accusing Paul of putting “a higher priority on his fundraising and his ambitions than on the security of the nation.” Not that McCain would ever use “national security” as a fund-raising theme.

Threats to American freedom are nothing new. And our Founding Fathers understood that if Liberty was to have enduring life, limitations on government power must be made permanent and not allowed to fade depending on the nature of a particular threat. Thus, our Founders chiseled the Fourth Amendment into the bedrock of our young nation even as we faced a very real and present threat from our former master, Great Britain – an enemy far more powerful than modern-day terrorist organizations.

It is depressing in the extreme that these lessons – this history – have now been forgotten and blithely discarded by so many of our political “leaders” more concerned about restoring the powers of the Crown than protecting the Liberty of the individual.

Originally published here on townhall.com

June 3, 2015 0 comment

From the Desk of Bob Barr

Court Declares NSA Spy Program Illegal, Senate GOP Leaders Respond, “So What?

by Liberty Guard Author May 13, 2015

written by Liberty Guard Author

In March 2013, Director of National Intelligence James Clapper sat before the Senate Intelligence Committee when Sen. Ron Wyden asked him if the NSA collected “any type of data at all on millions or hundreds of millions of Americans?” Clapper’s unequivocal response: “No, sir.” It was a lie; but it was not until months later that Clapper finally offered a tepid apology for what he claimed was a “mistake.” His excuse — delivered with all the sincerity he could muster and still keep a straight face — was that he “simply didn’t think about Section 215 of the Patriot Act” when he delivered his earlier, unqualified denial.

Clapper moved on to other endeavors, as did the Senate; and his bald-faced lie largely faded away. Thankfully, just last week, a federal Appeals Court panel in New York showed it was not so willing to “let bygones be bygones.” In an opinion that was unusually blistering in its tone and wording, the Court stated that the manner in which the National Security Agency (NSA) has been using Section 215 to scoop up so-called “metadata” on virtually all cell phone and other electronic communications, is simply illegal.

The Second Circuit opinion comports clearly with both the language and the intent of this section of the Patriot Act. I should know; I was a member of the House Judiciary Committee that debated the legislation in committee and on the floor of the House back in the immediate aftermath of the 911 attacks. More broadly, of course, the Court recognized that the government’s absurdly expansive reading of the section would, if allowed to continue, make a mockery of any reasonable expectation of privacy enshrined in and protected by the Fourth Amendment.

Sadly, but true to form, many Republican Senators, including Majority Leader Mitch McConnell and presidential hopeful Marco Rubio, remain steadfast in support of the surveillance program now clearly found to be unlawful. They vow to bring legislation to the floor that would continue the program without any limitation. This doubling-down strategy is accompanied by the usual cries that “the sky is falling,” and that “Lone Wolf” terrorists will run rampant in the streets of American cities, if NSA is reined in to the slightest degree in its zeal to gather metadata.

The manner in which some of these surveillance supporters convey their support has been misleading, to say the least. Sen. Rubio, for example, recently encouraged his Twitter followers to let him know if they agree that “now’s not the time to end NSA.” No one, of course, is moving to close down NSA; critics are simply asking that the Congress limit the Agency’s surveillance powers over law-abiding Americans to lawful means. But, in senatorial or presidential politics, accuracy often is the victim of hyperbole.

Last week’s ruling is a refreshing reminder that there still are judges in America who understand the Constitution, who can read and abide by the common sense meaning of legislation, and who are sufficiently courageous to stand up and say so. It is true that there are individuals in the Congress who hold similar views; but unfortunately at least on the Republican side, they appear to be in the minority.

One Republican who clearly “gets it,” is Sen. Rand Paul, who is threatening to filibuster the effort by his Party’s leadership to kick the NSA can down the road and thereby permit it to continue at least for the time being to operate outside the law. All Americans – inside the Congress or elsewhere – who believe in constitutionally-based governance, should energetically support Rand Paul’s effort.

Originally posted here via townhall.com

May 13, 2015 0 comment

From the Desk of Bob Barr

The Real “DarkNet”: Law Enforcement Information Sharing And Fusion Centers

by Liberty Guard Author January 21, 2015

written by Liberty Guard Author

Earlier this month, I wrote about a case out of Maryland involving a Florida resident who was pulled-over by Maryland Transportation Authority (MDTA) police, and subjected to harassment and intimidation, all because the driver was the holder of a Florida concealed carry permit. The incident raised serious questions about the clear bias against firearm owners in a state with a reputation for being notoriously anti-Second Amendment. More troubling, is the still–unanswered question about how MDTA police even knew of an individual concealed carry permit issued outside of their state.

As egregious as are the circumstances surrounding the Maryland incident, it is just one of a growing number of examples of how information about individuals exercising their constitutional rights, is being data-based and shared by law enforcement databases as “suspicious activity.”

Following its investigation of the September 11, 2001 terror attacks, the 9/11 Commission cited a lack of cooperation and information-sharing among law enforcement agencies, as a major vulnerability in America’s national security. One of byproducts of the Commission’s recommendations was the creation of more than 40 state and urban area fusion centers. These were designed to serve as localized clearinghouses for the “receipt, analysis, gathering, and sharing of threat-related information” from partners within law enforcement, public safety, and even the private sector.

The selling point for the states (in addition to money) was that access to such a national network of “suspicious activity” data, would improve the safety of local law enforcement, and make them more effective at stopping crime. For the Feds, the collection and analysis of localized threat assessments, and a far larger flow of information from local law enforcement to the Department of Homeland Security, was the driving force. Thus the DHS (in effect, the entire federal government) gained unprecedented access to a vast data trove on private citizens that goes far beyond anything relating to criminal activity, much less terrorism.

Furthermore, by tapping into a “national” exchange of information that is, in part, contributed to by partners in the private sector, the DHS also found a way to circumvent privacy restrictions in the Privacy Act of 1974. Now, DHS can use the efficiency and flexibility of the private sector to mine and analyze data that, by law, it is prohibited from collecting and maintaining on its own. Moreover, national crime database systems such as the Regional Information Sharing Systems (RISSnet) are federally funded, but controlled by state and local level law enforcement entities; adding even more insulation from oversight despite its “critical” role in the overall Information Sharing Environment — the federal nexus of information sharing through which all of this data eventually flows.

The original goal may have been to improve communication between levels of law enforcement, but instead law enforcement has created one enormous Cloud of data on private citizens, that is breathtaking in its scope. This vast database is subject to virtually no oversight or accountability as to what information is collected, who is able to access the data, or how the data is used in “fighting crime.” In essence, this “fusion” has created the same type of shadowy “DarkNet” for law enforcement information sharing for which the federal government has demonized (and prosecuted) the private sector. The end result leaves local law enforcement with resources once only available to federal agencies, and federal agencies with access to surveillance capabilities previously available only to local law enforcement.

The only privacy protections afforded to citizens within the ISE are the same hollow promises of respecting “civil liberties” made by those who reject any hint of greater civil liberties oversight, or state and local law enforcement refusing to participate in this information sharing – something not likely to happen given the clear trends of over-criminalization and over-militarization. Ultimately, it is the lack of privacy protections or civil liberties oversight that allows law enforcement to turn completely legal activities, like owning a gun or supporting third-party candidates, into actionable intelligence based on some vague notion of “suspicious activity.”

Given the vastness of these networks, and collusion between private sector and law enforcement officials at the local, state and federal levels, only Congress has the necessary leverage to penetrate the shield that for so long has protected this law enforcement “DarkNet” from scrutiny. Its task however, will not be easy. Despite serious deficiencies in the fusion centers system documented in a two-year, bipartisan investigation by the Senate Permanent Subcommittee on Investigations the system remains, in the view of the respected Electronic Frontier Foundation, completely immune from oversight.

Now that Republicans, led by pro-privacy leaders such as Sen. Rand Paul and Rep. Justin Amash, have regained control over the House and the Senate, GOP officials should, at a minimum, immediately call for hearings. The value of such hearings lies in uncovering what exactly is being shared among law enforcement agencies about private citizens on these networks; and then to legislate safeguards to ensure the constitutional rights respected in one state are not used against law-abiding citizens in another. Otherwise, the type of abuse against a lawful Florida concealed-carry permit holder by Maryland traffic police, will become even more commonplace in states where freedom is trumped by “security.”

January 21, 2015 0 comment

From the Desk of Bob Barr

Sony’s Cyber-Carelessness a Wake-Up Call for Government and Taxpayers

by Liberty Guard Author December 24, 2014

written by Liberty Guard Author

“There is no overall Strategy in the departments of IT,” reads one 2012 internal evaluation from within the Information Technology department at Sony Pictures. “Unfortunately my department which is supposed to be in the front line of progress is actually close to obsolete,” reads another. These evaluations, leaked as part of a devastating data breach, paint an ominous picture for the ongoing cyber-attack against Sony that has rocked the entertainment industry; and even has implications for American foreign policy as North Korea appears to be the likely (or at least a likely) perpetrator of the attack.

It might seem odd that a company as large and as cash-rich as Sony would find itself in the middle of a massive data-security breach. However, as leaked internal documents now make clear, the possibility for such an assault was not a matter of “if,” but “when.” These documents paint an unflattering picture of Sony’s corporate IT culture; suggesting that not only were the company’s data security practices woefully deficient for a company of its size and complexity, but its ability to evolve to meet new cyber-security threats was hamstrung by corporate bureaucracy and outright apathy.

Far more important than what price Sony will pay for its cyber- somnambulance are the lessons for the federal government, whose vast data assets are to potential hackers infinitely more enticing and valuable than those of any corporation.

Many of the unflattering descriptions of dysfunction and incompetence within the IT department at Sony could readily be applied to nearly any program of the federal government; but most especially to those related to technology. A prime case in point is the launch of Obamacare. According to Bloomberg news, as of last February the federal government had spent more than $800 million on computer systems to run the online healthcare portal that serves as a gateway to the Obamacare system. In spite of this staggering amount of taxpayer dollars, the system — which did not even make it out of the starting gate without catastrophic system failures — remains to this day, nearly a year later, plagued with fundamental functionality issues and critical data security flaws that have yet to be resolved.

The news in early September that the Healthcare.gov portal had been hacked elicited little surprise, except for the fact that the attack occurred more than one full month before anyone noticed. While no data appears to have been stolen, and the attack appeared to be the beginning stages of a larger attack, it was definitive proof of the nightmare scenario predicted by privacy watchdogs: An arrogant and inept government agency now was in charge of massive quantities of highly sensitive personal information, and it could not even detect an attack on that information in spite of hundreds of millions of dollars spent to do just that.

Sound familiar?

Unlike Sony, in which the fallout from its data breach is limited primarily to its employees and contractors, the federal government holds within its databases personal information on hundreds of millions of individuals touching on virtually every aspect of their lives: criminal, financial, health, travel, and even private communications harvested through the National Security Agency’s data collection programs. Reflecting Uncle Sam’s insatiable appetite for data, these databases are only growing larger and more comprehensive. This makes government targets not only attractive to agenda-driven attackers from countries like North Korea, Russia, China, and others, but also to entities looking to use such information for financial gain.

As we see with Obamacare, the idea that the government can be trusted with protecting information on us that it compiles is not only foolish in theory, but a responsibility it has proven itself incapable of meeting time and again in the real world. Moreover, the refusal to accept this grim reality out of a desire to save face, as Democrats have done regarding Obamacare, only compounds the problems.

Even when the government does get around to discussing cyber-security, its goals usually are more about expanding its own power in domestic surveillance, than it is about data protection for citizens. For example, legislation supposed to protect Internet privacy, such as the Stop Online Piracy Act (SOPA) and the Cyber Intelligence Sharing and Protection Act (CISPA), wound up trampling the very privacy concerns they were supposed to protect.

If we are to take any lesson from the Sony hacking, it is that a culture of incompetence and apathy to data security, such as we so often see in some of the largest federal agencies, creates a target-rich environment for hackers and energizes their endeavors. As government’s demands for data continue to grow both in the scope of data it collects on citizens and in the highly sensitive nature of such information, we should be strongly questioning not only if government is qualified to protect this data from theft, but if it should even be harvesting it in the first place. After all, hackers cannot attack a database that does not exist.

December 24, 2014 0 comment

From the Desk of Bob Barr

Congress Gives Uncle Same “ESP” – Enhanced Surveillance Powers

by Liberty Guard Author December 17, 2014

written by Liberty Guard Author

In 1964, wrote that American society was quickly heading toward what she called “the stage of ultimate inversion,” in which “the government is free to do anything it pleases, while the citizens may act only by permission.” Rand, who came to America to escape the tyranny of the Soviet Union, saw in mid-20th Century America a country following a similar course as the one she escaped; in which government ruled by “brute force” and increased its power as it eroded individual rights.

In 1964, Ayn Rand wrote that American society was quickly heading toward what she called “the stage of ultimate inversion,” in which “the government is free to do anything it pleases, while the citizens may act only by permission.” Rand, who came to America to escape the tyranny of the Soviet Union, saw in mid-20th Century America a country following a similar course as the one she escaped; in which government ruled by “brute force” and increased its power as it eroded individual rights.

Now, more than three decades after her death, and with the age of the Internet in full swing, Rand’s fears of government “inversion” have become truer than ever. Last week’s bipartisan congressional passage of the FY 2015 Intelligence Authorization Act is clear proof of how far we have travelled down the road Rand predicted.

Since the mid-1990s, when anti-terror initiatives championed initially by the Clinton Administration and GOP leaders in the Congress provided the foundation for the massive federal surveillance apparatus in which we now live, privacy watchdogs have warned about the mission creep of federal authority deemed necessary to “protect us.” However, it was not until the 2013 leaks by National Security Agency contractor Edward Snowden and journalist Glenn Greenwald, exposing the breadth and technological sophistication of the government’s surveillance programs, that the public finally recognized what the blank check of “trust us” was really costing us.

As it does with every scandal it faces, the Obama Administration defended against the allegations with the usual gobbledygook, masked as promises of reform. Compounding the problem, the refusal by Republicans in Congress to so much as even debate limiting domestic spying, ensured that in spite of the overwhelming public outcry to the contrary, nothing would be done to limit the abuses. In fact, as last week’s vote on the FY 2015 Intelligence Authorization Act demonstrates, the only actions Congress and the Administration favor are those that expand government surveillance powers.

Buried in Section 309 of the Intelligence Authorization Act for Fiscal Year 2015 are — for the first time in “public” statute — procedures for how federal agencies can retain “incidentally acquired communications” obtained through domestic surveillance programs, including communications known to be between U.S. citizens with absolutely no ties to “terrorism’ (which had served as the justification for the initial authority). As Rep. Justin Amash (R-Mich.) explained in a Facebook message detailing the truly odious nature of the bill’s expedited passage, it was only after he quickly organized his legislative staff for a review that anyone noticed “one of the most egregious sections of law [Amash] encountered during [his] time as a representative.”

For years, the government’s ability to surreptitiously collect, analyze, store, and disseminate the private communications of U.S. citizens not suspected of violating any laws was based on dubious legal memos, classified decisions of the secret FISA courts, assumed powers in Executive Actions, and “plausible denials” concocted by federal officials responsible for conducting the very actions they were defending.

Congress’ most recent and feeble attempt at “reforming” that process in fact has enshrined in law those powers that, until now, existed in legal limbo. Any attempt at actual reform through court challenges now has been rendered even more difficult.

On the surface, Section 309 may appear an attempt to place a finite limit on how long government can retain the records of digital communications of U.S. citizens obtained without warrants or court orders. However, as the saying goes, the devil is in the details. Exceptions to the five-year limit carved out in the procedures, such as for communications “reasonably believed to have a secret meaning” or — a government favorite — communications “necessary to protect the national security of the United States,” renders moot any meaningful limitations.

But perhaps the most problematic language in Section 309 is the exception made for communications “reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency,” which provides the legal authority to continue creating a digital rap sheet on virtually any U.S. citizen spanning federal, state and local governments, without any real consideration as to whether a crime has been committed.

Last week in this column, I explained how the government’s over-criminalization serves as a mechanism to control the citizenry. The government leverages minor, impossible-to-avoid criminal offenses to ensure cooperation when it so desires for either regulatory control or financial gain. The erosion of personal privacy through powers such as those found in the Intelligence Authorization Act serves only as a “multiplier” — moving us as at an accelerating rate toward that inversion state against which Ayn Rand warned us many decades ago.

December 17, 2014 0 comment

From the Desk of Bob Barr

Government’s Demand For Data Truly Is Insatiable

by Liberty Guard Author October 1, 2014

written by Liberty Guard Author

The launch of the new iPhone 6 late last month set a record for Apple, selling 10-million units in the first three days. In spite of the record-setting sales, it was not long before consumer enthusiasm for the new technology dulled with reports of alleged problems, including a potential for bending if sat on for long periods; a phenomenon quickly dubbed “Bendgate.” The release of the iPhone 6 presented another, more serious problem for a much different demographic: government snoops.

Rather than continuing to be the rope in a tug-of-war between consumer privacy and warrantless government requests for consumer data, Apple smartly took itself out of the game altogether. The techno-giant did this through its new iOS 8 operating system which Apple claims makes it not “technically feasible for [Apple] to respond to government warrants for the extraction of this data from devices.” Not surprisingly, Apple’s movedid not sit well with government officials who not only see surreptitious surveillance as their duty, but a right no citizen should have the power to impede.

The surge in technological innovation over the last few years has raised the stakes in this fight, highlighted by the recent Supreme Court rulingRiley v. California in which the Justices clearly noted the differences in searching paper files versus digital data. However, the federal government’s efforts to undermine the development and use of devices or programs (such as encryption keys) that protect citizens’ communications against government snooping, goes back more than two decades.

In 1994, for example, Congress passed the Communications Assistance for Law Enforcement Act (CALEA), which forces telecommunication carriers and manufacturers to modify their digital communications platforms and hardware in order to facilitate the government’s ability to surreptitiously monitor communications made over those networks. The original version of CALEA, which pertained primarily to telephone communications, was expanded in 2004 to include internet traffic and VoIP services. Even this did not slake the government’s thirst for access to information.

In 2012, the FBI began pushing for even greater access to even more digital technology — messaging services and email — complaining that it was “going dark” because rapidly-advancing technology was making it too difficult for its agents to conduct electronic surveillance. Like CALEA, technology companies would be forced to build “back doors” into programing code to facilitate electronic eavesdropping; failure to comply with the rules would result in $25,000 per-day fines. The Obama administration strongly backed these new rules, but plans to present legislation to Congress were delayed after blowback from the Snowden-NSA revelations; still, the “going dark” mantra is repeated regularly by FBI officials.

Concerns with the current and proposed rules regarding access to digital data go beyond personal privacy. Infrastructure modification requirements — either to existing networks or to those being built — come with a residual price tag and compliance costs that consumers ultimately will bear. Moreover, as the Electronic Freedom Foundation notes, these rules give the FBI and other federal agencies “veto power over proposed innovations to the Internet in order to make spying easier.”

Not content to limit their efforts to legislation, the Feds also continue behind-the-scenes efforts to undermine methods of encryption as well as the ability of private citizens or companies to be able to encrypt their communications against the government.

Last September, ProPublica and the New York Times released a damning report about the NSA’s multi-billion dollar, decades-long war on private encryption. According to the article, based on more of Edward Snowden’s leaked documents, the NSA “deployed custom-built, superfast computers to break codes, and began collaborating with technology companies in the United States and abroad to build entry points into their products,” thereby making private encryption effectively useless at keeping the prying eyes of government out of digital communications. In fact, this has long been a goal of federal law enforcement agencies going back to at least 1994, when Uncle Sam proposed mandating use of the “Clipper Chip” to override private encryption. This illustrates clearly that no matter how much information government gains, it always seeks more.

The implications of the debate are far-reaching, especially as technology continues to advance, and the value of digital information transmitted across the communication spectrum increases. The leak of private photos of celebrities is but the latest example of how data security is intimately tied to personal privacy rights. Allowing government unfettered access to any data stored or transmitted digitally, which is its ultimate goal, permanently surrenders control of this information to anyone with this “back door” access – good guys, bad guys or simple voyeurs.

This is precisely what Ayn Rand foresaw and understood when she said more than half a century ago, “When you take away a man’s privacy, you gain the power to control him absolutely.” She saw the future and it is here.

October 1, 2014 0 comment

NSA

The Tory Party vs. Rand Paul

Court Declares NSA Spy Program Illegal, Senate GOP Leaders Respond, “So What?

The Real “DarkNet”: Law Enforcement Information Sharing And Fusion Centers

Sony’s Cyber-Carelessness a Wake-Up Call for Government and Taxpayers

Congress Gives Uncle Same “ESP” – Enhanced Surveillance Powers

Government’s Demand For Data Truly Is Insatiable

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