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  • US investigates possible WikiLeaks leaker for 'communicating with the enemy'

    posted by Keito
    2012-09-28 10:32:20
    'US military's new legal theory threatens to convert unauthorized leaks into a capital offense. Who is the real 'enemy'?


    A US air force systems analyst who expressed support for WikiLeaks and accused leaker Bradley Manning triggered a formal military investigation last year to determine whether she herself had leaked any documents to the group. Air Force investigative documents, obtained through a Freedom of Information Act request, show that the analyst was repeatedly interviewed about her contacts with and support for WikiLeaks - what investigators repeatedly refer to as the "anti-US or anti-military group" - as well as her support for the group's founder, Julian Assange.

    The investigation was ultimately closed when they could find no evidence of unauthorized leaking, but what makes these documents noteworthy is the possible crime cited by military officials as the one they were investigating: namely, "Communicating With the Enemy", under Article 104 of the Uniform Code of Military Justice (UCMJ).

    That is one of the most serious crimes a person can commit - it carries the penalty of death - and is committed when a person engages in "unauthorized communication, correspondence, or intercourse with the enemy". The military investigation form also requires investigators to identify the "victim" of the crime they are investigating, and here, they designated "society" as the victim:

    How could leaking to WikiLeaks possibly constitute the crime of "communicating with the enemy"? Who exactly is the "enemy"? There are two possible answers to that question, both quite disturbing.

    The first possibility is the one suggested by today's Sydney Morning Herald article on these documents (as well as by WikiLeaks itself): that the US military now formally characterizes WikiLeaks and Assange as an "enemy", the same designation it gives to groups such as Al Qaeda and the Taliban. This would not be the first time such sentiments were expressed by the US military: recall that one of the earliest leaks from the then-largely-unknown group was a secret report prepared back in 2008 by the US Army which, as the New York Times put it, included WikiLeaks on the Pentagon's "list of the enemies threatening the security of the United States". That Army document then plotted how to destroy the group.

    But it's the second possibility that seems to me to be the far more likely one: namely, that the US government, as part of Obama's unprecedented war on whistleblowers, has now fully embraced the pernicious theory that any leaks of classified information can constitute the crime of "aiding the enemy" or "communicating with the enemy" by virtue of the fact that, indirectly, "the enemy" will - like everyone else in the world - ultimately learn of what is disclosed.

    Indeed, the US military is currently prosecuting accused WikiLeaks leaker Bradley Manning on multiple charges including "aiding the enemy", also under Article 104 of the UCMJ, and a capital offense (though prosecutors are requesting "only" life imprisonment rather than execution). Military prosecutors have since revealed that their theory is that the 23-year-old Army Private "aided al-Qaida by leaking hundreds of thousands of military and other government documents" -- specifically, that "Manning indirectly aided al-Qaida in the Arabian Peninsula by giving information to WikiLeaks."

    It seems clear that the US military now deems any leaks of classified information to constitute the capital offense of "aiding the enemy" or "communicating with the enemy" even if no information is passed directly to the "enemy" and there is no intent to aid or communicate with them. Merely informing the public about classified government activities now constitutes this capital crime because it "indirectly" informs the enemy.

    The implications of this theory are as obvious as they are disturbing. If someone can be charged with "aiding" or "communicating with the enemy" by virtue of leaking to WikiLeaks, then why wouldn't that same crime be committed by someone leaking classified information to any outlet: the New York Times, the Guardian, ABC News or anyone else? In other words, does this theory not inevitably and necessarily make all leaking of all classified information - whether to WikiLeaks or any media outlet - a capital offense: treason or a related crime?

    International Law Professor Kevin Jon Heller made a similar point when the charges against Manning were first revealed:

    "[I]f Manning has aided the enemy, so has any media organization that published the information he allegedly stole. Nothing in Article 104 requires proof that the defendant illegally acquired the information that aided the enemy. As a result, if the mere act of ensuring that harmful information is published on the internet qualifies either as indirectly 'giving intelligence to the enemy' (if the military can prove an enemy actually accessed the information) or as indirectly 'communicating with the enemy' (because any reasonable person knows that enemies can access information on the internet), there is no relevant factual difference between Manning and a media organization that published the relevant information."

    Professor Heller goes on to note that while "WikiLeaks or the New York Times could not actually be charged under Article 104" because "the UCMJ only applies to soldiers", there is nonetheless "still something profoundly disturbing about the prospect of convicting Manning and sentencing him to life imprisonment for doing exactly what media organizations did, as well".

    What these new documents reveal is that this odious theory is not confined to Manning. The US military appears to be treating all potential leaks - at least those to WikiLeaks - as "aiding" or "communicating with" the enemy. But there is no possible limiting principle that would confine that theory only to such leaks; they would necessarily apply to all leaks of classified information to any media outlets.

    It is always worth underscoring that the New York Times has published far more government secrets than WikiLeaks ever has, and more importantly, has published far more sensitive secrets than WikiLeaks has (unlike WikiLeaks, which has never published anything that was designated "Top Secret", the New York Times has repeatedly done so: the Pentagon Papers, the Bush NSA wiretapping program, the SWIFT banking surveillance system, and the cyberwarfare program aimed at Iran were all "Top Secret" when the newspaper revealed them, as was the network of CIA secret prisons exposed by the Washington Post). There is simply no way to convert basic leaks to WikiLeaks into capital offenses - as the Obama administration is plainly doing - without sweeping up all leaks into that attack.

    Of course, that outcome would almost certainly be a feature, not a bug, for Obama officials. This is, after all, the same administration that has prosecuted whistleblowers under espionage charges that threatened to send them to prison for life without any evidence of harm to national security, and has brought double the number of such prosecutions as all prior administrations combined. Converting all leaks into capital offenses would be perfectly consistent with the unprecedented secrecy fixation on the part of the Most Transparent Administration Ever™.

    The irony from these developments is glaring. The real "enemies" of American "society" are not those who seek to inform the American people about the bad acts engaged in by their government in secret. As Democrats once recognized prior to the age of Obama - in the age of Daniel Ellsberg - people who do that are more aptly referred to as "heroes". The actual "enemies" are those who abuse secrecy powers to conceal government actions and to threaten with life imprisonment or even execution those who blow the whistle on high-level wrongdoing.'

    http://www.guardian.co.uk/commentisfree/2012/sep/27/wikileaks-investigation-enemy
  • Copyright Killbots Strike Again: Official DNC Livestream Taken Down By Just About Every Copyright Holder

    posted by Keito
    2012-09-05 21:21:27
    'Here we go again. Less than 24 hours ago, content-protection bots killed a livestream of the Hugo Awards, thanks to the brief appearance of fully approved clips from an episode of Dr. Who. The whole situation was completely absurd to anyone harboring the tiniest vestige of common sense, but IP-protection software isn't built on common sense: it's built on algorithms.

    This time, content protection via crawling bots have taken down another approved, perfectly legal stream. The victim this time? The Democratic National Convention's official stream, hosted at YouTube. As Wired reports, if you're looking to catch up on last night's activities, including a speech by Michelle Obama, don't bother:

    The video, posted by the official YouTube account for the convention, DemConvention2012, was blocked, according to YouTube, for ostensibly infringing on the copyright of one of many possible suspects:

    ***

    This video contains content from WMG, SME, Associated Press (AP), UMG, Dow Jones, New York Times Digital, The Harry Fox Agency, Inc. (HFA), Warner Chappell, UMPG Publishing and EMI Music Publishing, one or more of whom have blocked it in your country on copyright grounds.
    Sorry about that.

    ***

    When contacted by Wired for comment, Erica Sackin, an Obama campaign staffer who works on digital outreach, had no knowledge of the outage, asked this reporter for the url and then upon seeing the takedown, said, "I'll have to call you back."

    The video has since been updated to state that "This video is private." There's probably quite a bit going on behind the scenes at the moment, but fortunately Wired snagged the complete list of claimants for future reference.

    Take a good, long look at that list. There's a few of the usual suspects in there, including AP, UMG and Warner, entities not known to be shy about claiming content that isn't theirs.

    Now, these entities aren't directly responsible for this takedown. This is more of an automated match situation, but it still doesn't change the fact that the inherent stupidity of the action, automated or not, does absolutely nothing to lock down stray, unmonetized content and absolutely everything to highlight the ridiculous nature of copyright protection in a digital age.

    If Google can work with copyright holders to produce content matching software, it seems like it might be possible to designate certain accounts or entities as "off limits" from the wandering killbots. If the stream is authorized by, I don't know, the party of the current President of the United States, maybe, just fucking maybe, everything's "above board."

    Sure, defining legitimate, pre-approved accounts may prove to be as difficult as determining which content is infringing and which isn't, but this should be the sort of thing that content holders should be working toward, rather than simply moving from disaster to disaster, smugly secure in the knowledge that filthy file sharers are getting content-blocked thousands of times a day.

    Nice going, huge list of content holders. Your boundless, maximalist enthusiasm is just another nail in the coffin containing what's left of copyright's reputation.'

    http://www.techdirt.com/articles/20120904/22172920275/copyright-killbots-strike-again-official-dnc-livestream-taken-down-just-about-every-copyright-holder.shtml
  • RAP NEWS 15: Big Brother is WWWatching You

    posted by Keito
    2012-09-05 19:59:51
  • Frank Church: Surveillance State evils

    posted by Keito
    2012-09-04 20:42:36
    '35 years ago, a leading liberal Senator issued a grave warning about allowing the NSA to spy domestically.

    “Th[e National Security Agency's] capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. [If a dictator ever took over, the N.S.A.] could enable it to impose total tyranny, and there would be no way to fight back.“

    _____________

    That dramatic warning comes not from an individual who is typically held up as a symbol of anti-government paranoia. Rather, it was issued by one of the most admired and influential politicians among American liberals in the last several decades: Frank Church of Idaho, the 4-term U.S. Senator who served from 1957 to 1981. He was, among other things, one of the Senate’s earliest opponents of the Vietnam War, a former Chairman of the Senate Foreign Relations Committee, and the Chairman of the Committee (bearing his name) that in the mid-1970s investigated the widespread surveillance abuses committed under every President since FDR (that was the investigation that led to the enactment of FISA, the criminal law prohibiting the Executive Branch from intercepting the communications of American citizens without first obtaining a warrant from a court: the law which the Bush administration got caught violating and which, in response, was gutted by the Democratic-led Congress in 2008, with the support of then-Senator Obama; the abuses uncovered by the Church Committee also led to the enactment of further criminal prohibitions on the cooperation by America’s telecoms in any such illegal government spying, prohibitions that were waived away when the same 2008 Congress retroactively immunized America’s telecom giants from having done so).

    At the time of the Church Committee, it was the FBI that conducted most domestic surveillance. Since its inception, the NSA was strictly barred from spying on American citizens or on American soil. That prohibition was centrally ingrained in the mindset of the agency. Church issued that above-quoted warning out of fear that, one day, the NSA’s massive, unparalleled surveillance capabilities would be directed inward, at the American people. Until the Church Committee’s investigation, most Americans, including its highest elected officials, knew almost nothing about the NSA (it was referred to as No Such Agency by its employees). As James Bamford wrote about Church’s reaction to his own findings about the NSA’s capabilities, “he came away stunned.” At the time, Church also said: “I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.”

    Of course, that bridge has long ago been crossed, without even much discussion, let alone controversy. In the immediate aftermath of 9/11, George Bush ordered the NSA to spy on the communications of Americans on American soil, and they’ve been doing it ever since, with increasing aggression and fewer and fewer constraints. That development is but one arm in the creation of an American Surveillance State that is, literally, ubiquitous — one that makes it close to impossible for American citizens to communicate or act without detection from the U.S. Government — a state of affairs Americans have long been taught since childhood is a hallmark of tyranny. Such are the times — in both America generally and the Democratic Party in particular — that those who now echo the warnings issued 35 years ago by Sen. Church (when surveillance was much more restrained, legally and technologically) are scorned by all Serious People as radical hysterics.

    Yesterday, Democracy Now had an extraordinary program devoted to America’s Surveillance State. The show had three guests, each of whose treatment by the U.S. Government reflects how invasive, dangerous and out-of-control America’s Surveillance State has become:

    William Binney: he worked at the NSA for almost 40 years, and resigned in October, 2001, in protest of the NSA’s turn to domestic spying. Binney immediately went to the House Intelligence Committee to warn them of the illegal spying the NSA was doing, and that resulted in nothing. In July, 2007 — while then-Attorney General Alberto Gonzales was testifying before the Senate about Bush’s warrantless NSA spying program — Binney’s home was invaded by a dozen FBI agents, who pointed guns at him, in an obvious effort to intimidate him out of telling the Senate the falsehoods and omissions in Gonzales’ testimony about NSA domestic spying (another NSA whistleblower, Thomas Drake, had his home searched several months later, and was subsequently prosecuted by the Obama DOJ — unsuccessfully — for his whistleblowing).

    Jacob Appelbaum: an Internet security expert and hacker, he is currently at the University of Washington and engaged in some of the world’s most important work in the fight for Internet freedom. He’s a key member of the Tor Project, which is devoted to enabling people around the world to use the Internet with complete anonymity: so as to thwart government surveillance and to prevent nation-based Internet censorship. In 2010, he was also identified as a spokesman for WikiLeaks. Rolling Stone dubbed him “The Most Dangerous Man in Cyberspace,” writing: “In a sense, he’s a bizarro version of Mark Zuckerberg: If Facebook’s ambition is to ‘make the world more open and connected,’ Appelbaum has dedicated his life to fighting for anonymity and privacy. . . . ’I don’t want to live in a world where everyone is watched all the time,’ he says. ‘I want to be left alone as much as possible. I don’t want a data trail to tell a story that isn’t true’.”

    For the last two years, Appelbaum has been repeatedly detained and harassed at American airports upon his return to the country, including having his laptops and cellphone seized — all without a search warrant, of course — and never returned. The U.S. Government has issued secret orders to Internet providers demanding they provide information about his email communications and social networking activities. He’s never been charged with, let alone convicted of, any crime.

    Laura Poitras: she is the filmmaker about whom I wrote two weeks ago. After producing an Oscar-nominated film on the American occupation of Iraq, followed by a documentary about U.S. treatment of Islamic radicals in Yemen, she has been detained, searched, and interrogated every time she has returned to the U.S. She, too, has had her laptop and cell phone seized without a search warrant, and her reporters’ notes repeatedly copied. This harassment has intensified as she works on her latest film about America’s Surveillance State and the war on whistleblowers, which includes — among other things — interviews with NSA whistleblowers such as Binney and Drake.

    So just look at what happens to people in the U.S. if they challenge government actions in any meaningful way — if they engage in any meaningful dissent. We love to tell ourselves that there are robust political freedoms and a thriving free political press in the U.S. because you’re allowed to have an MSNBC show or blog in order to proclaim every day how awesome and magnanimous the President of the United States is and how terrible his GOP political adversaries are — how brave, cutting and edgy! — or to go on Fox News and do the opposite. But people who are engaged in actual dissent, outside the tiny and narrow permissible boundaries of pom-pom waving for one of the two political parties — those who are focused on the truly significant acts which the government and its owners are doing in secret — are subjected to this type of intimidation, threats, surveillance, and climate of fear, all without a whiff of illegal conduct (as even The New York Times‘ most celebrated investigative reporter, James Risen, will tell you).

    Whether a country is actually free is determined not by how well-rewarded its convention-affirming media elites are and how ignored its passive citizens are but by how it treats its dissidents, those posing authentic challenges to what the government does. The stories of the three Democracy Now guests — and so many others — provide that answer loudly and clearly.

    Beyond the stories of these guests, I want to highlight two particularly significant exchanges from yesterday’s show (and I really urge you to find the time this weekend to watch the whole thing; it’s embedded below or, alternatively, can be viewed here). First is this:

    JUAN GONZALEZ: And the differences in the [Bush and Obama] administrations?

    WILLIAM BINNEY: Actually, I think the surveillance has increased. In fact, I would suggest that they’ve assembled on the order of 20 trillion transactions about U.S. citizens with other U.S. citizens.

    AMY GOODMAN: How many?

    WILLIAM BINNEY: Twenty trillion.

    AMY GOODMAN: And you’re saying that this surveillance has increased? Not only the—

    WILLIAM BINNEY: Yes.

    AMY GOODMAN: —targeting of whistleblowers, like your colleagues, like people like Tom Drake, who are actually indicted under the Obama administration—

    WILLIAM BINNEY: Right.

    AMY GOODMAN: —more times—the number of people who have been indicted are more than all presidents combined in the past.

    WILLIAM BINNEY: Right. And I think it’s to silence what’s going on. But the point is, the data that’s being assembled is about everybody. And from that data, then they can target anyone they want . . . That, by the way, estimate only was involving phone calls and emails. It didn’t involve any queries on the net or any assembles—other—any financial transactions or credit card stuff, if they’re assembling that. I do not know that, OK.

    That sounds like a number so large as to be fantastical, but it’s entirely consistent with what The Washington Post, in its 2010 “Top Secret America” series, reported: “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.” Read that sentence again and I defy anyone to deny that the U.S. has become the type of full-fledged, limitless Surveillance State about which Sen. Church warned.

    Note, too, how this weapon has been not just maintained, but — as Binney said — aggressively expanded under President Obama. Obama’s unprecedented war on whistleblowing has been, in large part, designed to shield from the American public any knowledge of just how invasive this Surveillance State has become. Two Obama-loyal Democratic Senators — Ron Wyden of Oregon and Mark Udall of Colorado — have spent two full years warning that the Obama administration is “interpreting” its spying powers under the Patriot Act in ways so “twisted” and broad that it would shock the American public if it learned of what was being done, and have even been accusing the DOJ and Attorney General Holder of actively misleading the public in material ways about its spying powers (unlike brave whistleblowers who have risked their own interests to bring corruption and illegality to the public’s attention — Binney, Drake, Bradley Manning, etc — Wyden and Udall have failed to tell the public about this illegal spying (even though they could do so on the Senate floor and be immune from prosecution) because they apparently fear losing their precious seat on the Intelligence Committee, but what’s the point of having a seat on the Intelligence Committee if you render yourself completely impotent even when you learn of systematic surveillance lawbreaking?).

    None of this should be surprising: Obama — in direct violation of his primary campaign pledge — infamously voted for the FISA Amendments Act of 2008 that not only immunized lawbreaking telecoms, but also legalized much of the NSA domestic spying program Bush had ordered in the aftermath of 9/11. At the time, he and his acolytes insisted that Obama was doing so only so that he could win the election and then use his power to fix these spying abuses, yet another Obama-glorifying claim that has turned out to be laughable in its unreliability. The Obama administration also advocated for full-scale renewal of the Patriot Act last year, and it was Harry Reid who attacked Rand Paul for urging reforms to that law by accusing him of helping the Terrorists with his interference.

    But whereas massive Surveillance State abuses were once a feigned concern of progressives, they now no longer are. Just last week, The New York Times began an editorial about the proposed massive expansion of Internet spying powers in Britain with this sentence: “The George W. Bush team must be consumed with envy” — because, of course, Barack Obama has no interest in such things.

    Similarly, Hilary Bok is a Philosophy Professor at Johns Hopkins who blogged about civil liberties and executive power abuses during the Bush years under the name “Hilzoy.” I have a lot of respect for her; she gave valuable insight into the draft of my first book on Bush’s surveillance abuses. But barely five months into the Obama presidency, she announced that she would no longer blog because she started blogging to combat the “insanity” that prevailed in the U.S. but now, in the wake of Obama’s election, “it seems to me that the madness is over” — even as the out-of-control Surveillance State she spent so much time protesting continues to explode. Along the same lines, let me know if MSNBC ever mentions, let alone denounces, any of these trends or stories of oppression of the type experienced by Binney, Appelbaum and Poitras. That is one major reason why it continues unabated: because the political faction with a history of opposing these abuses — American liberalism, which spearheaded the Church Committee reforms — has largely decided that the Democratic President whom they elected can be trusted with these vast and unaccountable powers or, worse, they just pretend that this isn’t happening.

    Then there’s this: Appelbaum describing the various government efforts to intrude into his private discussions and Internet activities, all without a warrant:

    JACOB APPELBAUM: But in the period of time since they’ve started detaining me [at airports], around a dozen-plus times. I’ve been detained a number of times. The first time I was actually detained by the Immigration and Customs Enforcement, I was put into a special room, where they frisked me, put me up against the wall. One guy cupped me in a particularly uncomfortable way. Another one held my wrists. They took my cell phones. I’m not really actually able to talk about what happened to those next.

    AMY GOODMAN: Why?

    JACOB APPELBAUM: Because we don’t live in a free country. And if I did, I guess I could tell you about it, right?And they took my laptop, but they gave it back. They were a little surprised it didn’t have a hard drive. I guess that threw them for a loop. And, you know, then they interrogated me, denied me access to a lawyer. And when they did the interrogation, they has a member of the U.S. Army, on American soil. And they refused to let me go. They tried—you know, they tried their usual scare tactics. So they sort of implied that if I didn’t make a deal with them, that I’d be sexually assaulted in prison, you know, which is the thing that they do these days as a method of punitive punishment, and they of course suggested that would happen.

    AMY GOODMAN: How did they imply this?

    JACOB APPELBAUM: Well, you know, they say, “You know, computer hackers like to think they’re all tough. But really, when it comes down to it, you don’t look like you’re going to do so good in prison.” You know, that kind of stuff.

    JUAN GONZALEZ: And what was the main thrust of the questions they were asking you?

    JACOB APPELBAUM:Well, they wanted to know about my political views. They wanted to know about my work in any capacity as a journalist, actually, the notion that I could be in some way associated with Julian. They wanted, basically, to know any—

    AMY GOODMAN: Julian Assange.

    JACOB APPELBAUM: Julian Assange, the one and only. And they wanted—they wanted, essentially, to ask me questions about the Iraq war, the Afghan war, what I thought politically. They didn’t ask me anything about terrorism. They didn’t ask me anything about smuggling or drugs or any of the customs things that you would expect customs to be doing. They didn’t ask me if I had anything to declare about taxes, for example, or about importing things. They did it purely for political reasons and to intimidate me, denied me a lawyer. They gave me water, but refused me a bathroom, to give you an idea about what they were doing.

    AMY GOODMAN: What happened to your Twitter account?

    JACOB APPELBAUM: Well, the U.S. government, as I learned while I was in Iceland, actually, sent what’s called an administrative subpoena, or a 2703(d) order. And this is, essentially, less than a search warrant, and it asserts that you can get just the metadata and that the third party really doesn’t have a standing to challenge it, although in our case we were very lucky, in that we got to have—Twitter actually did challenge it, which was really wonderful. And we have been fighting this in court.

    And without going into too much detail about the current court proceedings, we lost a stay recently, which says that Twitter has to give the data to the government. Twitter did, as I understand it, produce that data, I was told. And that metadata actually paints—you know, metadata and aggregate is content, and it paints a picture. So that’s all the IP addresses I logged in from. It’s all of the, you know, communications that are about my communications, which is Bill’s specialty, and he can, I’m sure, talk about how dangerous that metadata is.

    What Appelbaum is referring to is the fact that the Patriot Act has decreed then when the U.S. Government demands information about an individual — all without a search warrant — the party who receives the demand is criminally prohibited from discussing that demand. That’s why Appelbaum can be targeted with such intimidating, constant and chilling invasions without any allegation of wrongdoing: because the powers of the Surveillance State are exercised almost entirely in the dark. That’s what makes it so significant that two Democratic Senators have been warning for two years now that these powers are being exercised far beyond what the statute permits, far beyond what the public can even imagine, and that the Obama DOJ is lying about it.

    The domestic NSA-led Surveillance State which Frank Church so stridently warned about has obviously come to fruition. The way to avoid its grip is simply to acquiesce to the nation’s most powerful factions, to obediently remain within the permitted boundaries of political discourse and activism. Accepting that bargain enables one to maintain the delusion of freedom — “he who does not move does not notice his chains,” observed Rosa Luxemburg — but the true measure of political liberty is whether one is free to make a different choice.'

    http://www.salon.com/2012/04/21/e_2/
  • Sworn Declaration of Whistleblower William Binney on NSA Domestic Surveillance Capabilities

    posted by Keito
    2012-09-04 20:30:23
    The following sworn declaration of William Binney, a former employee of the NSA and specialist in traffic analysis, was filed July 2, 2012 in support of the Electronic Frontier Foundation’s case against the National Security Agency (Jewel v. NSA) regarding their illegal domestic surveillance programs which, according to Binney “are consistent, as a mathematical matter, with seizing both the routing information and the contents of all electronic communications” inside the U.S. Thanks to Jacob Appelbaum for originally drawing attention to the declaration.


    I, William Binney, declare:

    1. I am a former employee of the National Security Agency (“NSA”), the signals intelligence agency within the Department of Defense. Unless otherwise indicated, I have personal knowledge of each and every fact set forth below and can competently testify thereto.

    2. A true and correct copy of my resume is attached hereto as Exhibit A.

    3. In the late 1990′s, the increasing use of the Internet for communications presented the NSA with a special kind of problem: The NSA could not collect and smartly select from the large volume of data traversing the Internet the nuggets of needed information about “Entities of Interest” or “Communities of Interest,” while protecting the privacy of U.S. persons. Human analysts had to manually identify the groups and entities associated with activities that the NSA sought to monitor. That process was so laborious that it significantly hampered the NSA’s ability to do large scale data analysis.

    4. One of my roles at the NSA was to find a means of automating the work of human analysts. I supervised and participated in the development of a program called “Thin Thread” within the NSA. Thin Thread was designed to identify networks of connections between individuals from their electronic communications over the Internet in an automated fashion in real time. The concept was for devices running Thin Thread to monitor international communications traffic passing over the Internet. Where one side of an international communication was domestic, the NSA had to comply with the requirements of the Foreign Intelligence Surveillance Act (“FISA”). With Thin Thread, the data would be encrypted (and the privacy of U.S. citizens protected) until such time as a warrant could be obtained from the Foreign Intelligence Surveillance Comi.

    5. The advent of the September 11 attacks brought a complete change in the approach 18 of the NSA toward doing its job. FISA ceased to be an operative concern, and the individual liberties preserved in the U.S. Constitution were no longer a consideration. It was at that time that the NSA began to implement the group of intelligence activities now known as the President’s Surveillance Program (“PSP”). While I was not personally read into the PSP, various members of my Thin Thread team were given the task of implementing various aspects of the PSP. They confided in me and told me that the PSP involved the collection of domestic electronic communications traffic without any of the privacy protections built into Thin Thread.

    6. I resigned from the NSA in late 2001. I could not stay after the NSA began purposefully violating the Constitution.

    7. The NSA chose not to implement Thin Thread. To the best of my knowledge, the NSA does not have a means of analyzing Internet data for the purpose of identifying Entities or Communities of Interest in real time. The NSA has the capability to do individualized searches, similar to Google, for particular electronic communications in real time through such criteria as target addresses, locations, countries and phone numbers, as well as watch-listed names, keywords, and phrases in email. The NSA also has the capability to seize and store most electronic communications passing through its U.S. intercept centers. The wholesale collection of data allows the NSA to identify and analyze Entities or Communities of interest later in a static database. Based on my proximity to the PSP and my years of experience at the NSA, I can draw informed conclusions from the available facts. Those facts indicate that the NSA is doing both.

    8. The NSA could have installed its intercept equipment at the nation’s fiber-optic cable landing stations. See Greg’s Cable Map, cablemap.info. There are more than two dozen such sites on the U.S. coasts where fiber-optic cables come ashore. If the NSA had taken that route, it would have been able to limit its interception of electronic communications to international/international and international/domestic communications and exclude domestic/domestic communications. Instead the NSA chose to put its intercept equipment at key junction points (for example Folsom Street) and probably throughout the nation, thereby giving itself access to purely domestic communications. The conclusion of J. Scott Marcus in his declaration that the “collection of infrastructure … has all the capability necessary to conduct large scale covert gathering of IP-based communications information, not only for communications to overseas locations, but .for purely domestic communications as well,” is correct.

    9. I estimate that the NSA installed no fewer than ten and possibly in excess of twenty intercept centers within the United States. I am familiar with the contents of Mark Klein’s declaration. The AT&T center on Folsom Street in San Francisco is one of the NSA intercept centers. Mr. Klein indicated that the NSA’s equipment intercepted Internet traffic on AT&T’s peering network. It makes sense for the NSA to intercept traffic on AT &T’s peering network. The idea would be to avoid having to install interception equipment on each of the thousands of parallel data lines that eventually lead into and out of peering networks. By focusing on peering networks, the NSA intercepts data at the choke point in the system through which all data must pass in order to move from one party’s network to another’s. This is particularly important because a block data is often broken up into many smaller packets for transmission. These packets may traverse different routes before reaching the destination computer which gathers them and reassembles the original block.

    10. One of the most notable pieces of equipment identified in Mr. Klein’s declaration is the NARUS Semantic Traffic Analyzer. According to the NARUS website, each NARUS device collects telecommunications data at the rate of ten gigabits per second and organizes the data into coherent streams based on the protocol associated with a specific type of collected data. A protocol is an agreed-upon way for data to be broken down into packets for transmission over the Internet, for the packets to be routed over the Internet to a designated destination and for the packets to be re-assembled at its destination. Protocols exist at each layer of the OSI (Open Systems Interconnection) 7-layer telecommunications model and are used for a wide variety of data, not just electronic communications. That means that NARUS can reconstruct all information transmitted through the peering network and forward all of the electronic communications to a database for analysis. The NARUS device can also select predetermined data from that path and forward the data to organizations having interest in the data. As I indicated above, the predetermined data would involve target addresses, locations, countries, and phone numbers, as well as watch-listed names, keywords, and phrases.

    11. A further notable development has been the NSA’s public announcement in October 2009 that it was building a massive, $1.2 billion digital storage facility in Ft. Williams, Utah. According to some reports, the Utah facility will eventually have a data storage capacity measured in yottabytes (1024 bytes). Even if the Utah facility were to have no more than the amount of data storage that is presently commercially available, then one would expect the data storage to be in the range of multiples often exebytes (1018 bytes). See www.cleversafe.com. (According to Cleversafe, its ten exebyte storage solution fills no more than two hundred square feet). In April 2011, the NSA also announced that it would build a new supercomputing center at its Ft. Meade, Maryland headquarters.

    12. The amount of data that each NARUS device can process per second is large (10 gigabits is 10 billion bits). To illustrate the sheer size of the data storage capacity ofthe Utah facility, one could assume the installation of twenty-five NARUS devices in the U.S. and that all of 2 the NARUS-processed data is sent via fiber-optic cable to Utah. That means that the NARUS processing rate of 10 billion bits per second means that one machine can produce approximately 4 x 1016 bytes per year. That in turn means that it would take twenty-five devices one year to fill an exebyte or ten years to fill ten exebytes.

    13. The sheer size of that capacity indicates that the NSA is not filtering personal electronic communications such as email before storage but is, in fact, storing all that they are collecting. The capacity of NSA’s planned infrastructure far exceeds the capacity necessary for the storage of discreet, targeted communications or even for the storage of the routing information from all electronic communications. The capacity of NSA’s planned infrastructure is consistent, as a mathematical matter, with seizing both the routing information and the contents of all electronic communications.

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