One use of the word chaff is thin strips of foil used to confuse radar.

The House’s NSA bill could allow more spying than ever. You call this reform?

Trevor Timm, The Guardian

Tuesday 25 March 2014 09.07 EDT

The House proposal, to be unveiled this morning by Reps Mike Rogers and Dutch Ruppersberger, is the more worrying of the two. Rogers has been the NSA’s most ardent defender in Congress and has a long history of distorting the truth and practicing in outright fabrication, whether in touting his committee’s alleged “oversight” or by way of his attempts to impugn the motives of the once again vindicated whistleblower who started this whole reform debate, former NSA contractor Edward Snowden.

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His new bill seems to have the goal of trading government bulk collection for even more NSA power to search Americans’ data while it sits in the hands of the phone companies.

While the full draft of the bill isn’t yet public, the Guardian has seen a copy, and its description does not inspire confidence. Under the Rogers and Ruppersberger proposal, slyly named the “End Bulk Collection Act”, the telephone companies would hold on to phone data. But the government could search data from those companies based on “reasonable articulable suspicion” that someone is an agent of a foreign power, associated with an agent of a foreign power, or “in contact with, or known to, a suspected agent of a foreign power”. The NSA’s current phone records program is restricted to a reasonable articulable suspicion of terrorism.

A judge would reportedly not have to approve the collection beforehand, and the language suggests the government could obtain the phone records on citizens at least two “hops” away from the suspect, meaning if you talked to someone who talked to a suspect, your records could be searched by the NSA. Coupled with the expanded “foreign power” language, this kind of law coming out of Congress could, arguably, allow the NSA to analyze more data of innocent Americans than it could before.

President Obama’s reported proposal sounds more promising, though we have even fewer details than the Intelligence Committee proposal. The administration’s plan would supposedly end the collection of phone records by the NSA, without requiring a dangerous new data retention mandate for the phone companies, while restricting analysis to the current rules around terrorism and, importantly, still requiring a judge to sign off on each phone-record search made to the phone companies – under what the New York Times described as “a new kind of court order”.

This phone plan, apparently, represents Obama coming full-circle as his self-imposed deadline on NSA reform arrives Friday, when the court order authorizing bulk collection runs out. But there’s no indication that the president’s plan would stop other types of bulk collection – such as internet or financial records – and there’s still a big question about what the NSA could do with the data they receive on innocent people two “hops” away from a suspect.

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Rep James Sensenbrenner’s bill, the USA Freedom Act, would make a much stronger and more comprehensive bill than either new proposal – at least for those interested in real NSA reform. Sensenbrenner, who originally wrote the Patriot Act provision that the NSA re-interpreted in secret, called the House Intelligence proposal “a convoluted bill that accepts the administration’s deliberate misinterpretations of the law”. Although, even his bill could be strengthened to ensure bulk collection of Americans’ records is no longer an option for the NSA, or any other government agency.

Obama to set out proposal to end NSA’s mass collection of phone data

Spencer Ackerman, The Guardian

Wednesday 26 March 2014 08.47 EDT

Under plans to be put forward by the Obama administration in the next few days, the National Security Agency would end the bulk collection of telephone records, and instead would need to seek a court order to search records held by the telephone companies.

A separate proposal, to be published on Tuesday by the leaders of the House intelligence committee, would not necessarily require a judge’s prior approval to access phone or email data.

Neither the White House nor the House intelligence committee proposal would require telecommunications firms to keep such records any longer than the current 18-month maximum, a significant shift away from the five years during which they are currently held by NSA.

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The bill, titled the End Bulk Collection Act of 2014 and currently circulating on Capitol Hill, would prevent the government from acquiring “records of any electronic communication without the use of specific identifiers or selection terms.”

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But the bill would allow the government to collect electronic communications records based on “reasonable articulable suspicion”, rather than probable cause or relevance to a terrorism investigation, from someone deemed to be an agent of a foreign power, associated with an agent of a foreign power, or “in contact with, or known to, a suspected agent of a foreign power.”

A draft of the bill acquired by the Guardian proposes the acquisition of such phone or email data for up to a year and would not necessarily require prior approval by a judge. Authorisation of the collection would come jointly from the US attorney general and director of national intelligence.

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The House intelligence committee proposal represents competition to a different bill introduced last fall by privacy advocates in the Senate and House judiciary committees known as the USA Freedom Act. That bill, which has 163 co-sponsors in both chambers, does not lower the legal standard for data collection on US persons, and would prohibit the NSA from searching for Americans’ identifying information in its foreign-oriented communications content databases, something the House intelligence bill would not.

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But in a sign of the continuing contentiousness on Capitol Hill over changes to NSA surveillance, James Sensenbrenner, a Wisconsin Republican and co-author of the USA Freedom Act, preemptively rejected the House intelligence committee proposal, calling it “a convoluted bill that accepts the administration’s deliberate misinterpretations of the law.

“It limits, but does not end, bulk collection. Provisions included in the draft fall well short of the safeguards in the USA Freedom Act and do not strike the proper balance between privacy and security,” Sensenbrenner said in a statement late on Monday.

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According to a New York Times report late on Monday, Obama will propose ending bulk phone data collection and replacing it with individualised orders for telecom firms to provide phone records up to two “hops” – or degrees of separation – from a phone number suspected of wrongdoing. The effort goes further towards the position favoured by privacy advocates than Obama proposed in January. Obama will request the Fisa court approve the current bulk collection program for a final 90-day renewal as he attempts to implement the new plan.

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“Until Congress passes new authorizing legislation, the president has directed his administration to renew the current program, as modified substantially by the president in his January speech.”

Obama is cancelling the NSA dragnet. So why did all three branches sign off?

Jameel Jaffer, American Civil Liberties Union, The Guardian

Tuesday 25 March 2014 10.09 EDT

To anyone who criticized the National Security Agency’s phone-records dragnet over the last nine months or so, the American intelligence community had this stock response: all three branches of government signed off on it.

The intelligence community was right, at least in a sense, but what it presented as a defense of the surveillance program was actually an indictment of our oversight system. What it presented as a defense of the program was actually a scandal.

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(I)f the administration is right that the dragnet was unnecessary, we should ask how all three branches of government got it so wrong.

The answer, in a word, is secrecy. When intelligence officials proposed the dragnet, there was no one on the other side to explain that the government’s goals could be achieved with less-intrusive means. There was no one there to mention that the law the government was invoking couldn’t lawfully be used to collect call-records. There was no one there to mention that the bulk collection of call records was unconstitutional.

Instead, there was an entirely one-sided system in which government attorneys presented the supposed interests of the intelligence community in the most expansive way possible, and the judges of a poorly resourced court tried unsuccessfully, and sometimes halfheartedly, to imagine what ordinary citizens might say in response. Over time, and perhaps without entirely meaning to, the court developed a wholly new body of law, a body of law animated not by democratic principles but by the values of the intelligence community – collect, analyze, conceal.

The intelligence committees that were meant to serve as a further check on unwarranted government surveillance failed just as profoundly.

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One can confidently predict that the administration’s proposal to end the NSA’s bulk collection of phone records will not go far enough. According to the Times report, the administration’s proposal will still have the NSA collecting records about people who are two steps removed from terrorism suspects, not just records about the terrorism suspects themselves. The administration doesn’t seem to be contemplating new limits on the agency’s authority to retain, analyze or disseminate the records it collects. And it isn’t proposing to end bulk collection of all records – just the bulk collection of phone records. And of course Congress must approve the proposal.

But, as David Cole has observed, this much can be said about the administration’s proposal already: the president is acknowledging that a surveillance program endorsed by all three branches of government, and in place for more than a decade, has not been able to survive public scrutiny. It’s an acknowledgement that the intelligence agencies, the surveillance court and the intelligence committees struck a balance behind closed doors that could not be defended in public.

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25 Years After Exxon Valdez, BP Was the Hidden Culprit

By Greg Palast, TruthDig

Posted on Mar 23, 2014

Two decades ago I was the investigator for the legal team that sold you the bullshit that a drunken captain was the principal cause of the Exxon Valdez disaster, the oil tanker crackup that poisoned over a thousand miles of Alaska’s coastline 25 years ago on March 24, 1989.

The truth is far uglier, and the real culprit-British Petroleum, now BP-got away without a scratch to its reputation or to its pocketbook.

And because BP’s willful negligence, prevarications and fraud in the Exxon Valdez spill cost the company nothing, its disdain for the law, for the environment and for the safety of its workers was repeated in the Gulf of Mexico with deadly consequences, resulting, two decades later, in the Deepwater Horizon disaster.

Just this month, the Obama administration authorized BP to return to drilling in the Gulf.

Hoyer: Congress should lay ‘groundwork’ for grand bargain budget deal

By Mike Lillis, The Hill

March 24, 2014, 06:00 am

House Minority Whip Steny Hoyer will call on Congress Monday to lay the “groundwork” for a budget “grand bargain,” warning that a failure to do so risks upending the United State’s status as the world’s premier economic power.

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“Short of reaching a big deal, we can still leverage opportunities before us to make progress toward the goal that proponents of a such a deal have long sought,” Hoyer will say Monday during a budget forum in Washington sponsored by Third Way, according to the prepared remarks. “If we’re going to show the world that America is serious about tackling our problems head-on, Congress will have several opportunities this year to work in a bipartisan way to fix structural problems in our budget.”

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Congress is running low on must-past legislation that might provide a vehicle for some of the controversial budget changes of the order Hoyer is urging. And even Republican plans for sweeping fiscal reforms, such as Rep. Dave Camp’s (R-Mich.) recently unveiled tax policy overhaul, have been largely ignored by GOP leaders, who don’t want to highlight party divisions in a high-stakes election year.

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“It’s at this moment – when we don’t have a crisis breathing down our necks – that we have the best chance to lay the groundwork for the hard decisions we will need to make,” he will say.

Hoyer said a package of expiring tax benefits – known collectively as the “tax extenders” – offers Congress one such opportunity for fiscal reform, while a must-pass transportation bill provides the chance for new infrastructure investments.

The Most Important Point of All Was Ignored

by Joe Firestone, New Economic Perspectives

Posted on March 23, 2014

SS is not bankrupt now, it has $2.6 Trillion in Treasury IOUs in the SS “trust fund” accumulated because Treasury has used FICA collections to “pay for” other Federal spending since 1983, when the Government began to collect more from workers and employers than was paid out to beneficiaries. The accumulated IOUs, projected interest on them, and future FICA collections are projected as being enough to “cover” 100% of SS benefits until 2033, and then 75% of benefits thereafter. 100% of benefits could be “covered” from 2033 on, if the payroll tax cap on Social Security were to be removed.

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Huntsman (and Hoyer) is conflating the SS “Trust Fund” running out of money in 2033, with SS running out of money. The first is happening as it was always planned to happen when the Reagan Administration and Congress agreed to raise FICA payments to almost double the amount previously paid, for the boomer generation to cover its retirement benefits; but the second depends on what Congress will do in the future to close the gap between current projected FICA revenues and projected benefits.

These two are different because the Government can do various things to close that gap. Huntsman mentions only cutting benefits or moving the SS retirement age to either 70 or even 75, so that enough will be left in the fund to close the revenue/benefits gap. But there are other ways of doing this easily; most notably removing the payroll tax cap so that the well-off, or those who are prospering, will pay the same share of their income into Social Security as most of the rest of us, and/or there can also be gradual small increases in the employee and employer contributions that will close the projected gaps indefinitely.Other points of less importance, and moral arguments, which from my point of view are among the most important, about the right to a decent secure retirement for the elderly are made, as well.

But, there is one point, the most important one of all, which is not made in all these “progressive” push back arguments against Abby Hunstman’s right wing Petersonian “Fix the Debt” rant. That is the point that there is no entitlement crisis and no emergency, and neither an increase in payroll taxes, nor robbing from “future generations” is necessary to close the projected gap after 2033 because Congress can pass legislation providing for annual automatic funding of expected costs for all SS and Medicare trust funds.

That’s done now for Supplementary Medical Insurance (Medicare Part B), and Prescription Drug Benefits (Medicare Part D), and the same practice using similar legislative language can be extended to the SS Old Age and Survivors Insurance (OASI) and Disability Insurance (DI) trust funds. End of story. Once that is done, no gaps between SS revenue and benefits can be projected by institutions, such as CBO, under current law.

You may doubt this solution by pointing out that legislation like this just pushes off Huntsman’s Social Security solvency problem to the Treasury at large, rather than its being SS’s problem, but it doesn’t solve the real insolvency problem. Only it does, because the Government as a whole has no fiscal solvency problem, since it can always use its authority to create the reserves in the Treasury spending accounts to pay all its bills including all those exceeding its revenues.

The customary way of creating such reserves is to sell Treasury debt instruments, destroying reserves in the private sector, and getting the Fed to place an equal amount of reserves in its accounts. But, there is another way it can be done under current law, and still other ways open to Congress, if they want to pay all the SS benefits they would have guaranteed by the proposed change in the law that would solve this faux problem.

The way any gap appropriated by Congress can be closed under current law, is to use Platinum Coin Seigniorage (PCS) to do it. As many of my readers know, I’ve explained how this would work in my e-book. But, the basic idea is that coin seigniorage can be used by the Treasury to require the Fed to use its reserve creation authority to place reserves in Treasury accounts, without Treasury engaging in any additional taxing or borrowing.

So, this capability coupled with Congress providing for annual automatic funding would end the Huntsman, Peterson, Bowles, Simpson, Ryan, (Hoyer,) and Obama revenue gap problems with Social Security and all other entitlements, for that matter, without these poor folks having to worry about taxing the rich, like them. And, if Congress doesn’t like that alternative way of placing reserves in Treasury’s accounts so it can spend Congressional appropriations, then it can always just go ahead and place the Fed within the Treasury Department, giving the Secretary the direct authority to order the Fed to fill its accounts with enough reserves to cover any revenue shortfalls, without either raising taxes or issuing more debt instruments.

So, these are the easy ways to end the faux crisis which won’t befall us anyway until 2033. Why won’t the “progressives” pushing back against Abby Huntsman mention solutions like these? Why do they, instead, always propose solutions that will raise taxes on the wealthy? Are they afraid to let the people know that the Government isn’t like a household and doesn’t have the same financial problems they have, just written large? Are they so insistent on solutions that will tax higher income and wealthy people, because they must kill the two birds of full employment and greater equality through taxing with a single stone?

I like the eliminate the Fed option.  Fed independence of Treasury is the merest chimera of a fiction anyway except to the extent that it is a creature of and toady to the Banks.

Some Facts About How NSA Stories Are Reported

By Glenn Greenwald, The Intercept

23 Mar 2014, 6:41 AM EDT

Who created the uber-nationalistic standard that the only valid disclosures are ones involving the rights of Americans? Are we are all supposed to regard non-Americans as irrelevant? Is the NSA’s bulk, suspicionless surveillance of the private communications of hundreds of millions of human beings inherently proper simply because its victims aren’t American citizens? Even more extreme: are American journalists (and whistleblowers like Snowden) supposed to keep the public ignorant of anything and everything the US Government does to people provided those people aren’t blessed with American citizenship? Do you condemn whoever leaked the existence of top secret CIA black sites to Dana Priest on the ground that it didn’t involve violations of the rights of Americans? It makes sense that US government officials view the world this way: their function is to advance the self-perceived interests of the US government, but that’s not the role of actual journalists or whistleblowers.

The public interest from the Huawei story is obvious. It demonstrates that the NSA has been doing exactly that which the US Government has spent years vocally complaining is being done by China. While the US has been telling the world that the Chinese government is spying on them through backdoors in Huawei products, it’s actually the NSA that has been doing that. It also yet again gives the lie to the claim that the NSA does not engage in economic espionage.

It shows massive deceit and hypocrisy by US officials: with their own citizens and to the world. DOJ official Jack Goldsmith, often a government and NSA defender, understood this point perfectly, writing yesterday that “The Huawei revelations are devastating rebuttals to hypocritical U.S. complaints about Chinese penetration of U.S. networks, and also make USG protestations about not stealing intellectual property to help U.S. firms’ competitiveness seem like the self-serving hairsplitting that it is.”

Leak Shows NSA Breached Huawei’s Internal Servers, Grabbed Executive Emails And Source Code

by Tim Cushing, TechDirt

Mon, Mar 24th 2014 3:36am

As Karl Bode pointed out in an earlier story about the US government warning Americans away from Huawei network equipment, many of the Huawei spying allegations can be traced back to its main competitor, Cisco. Marcy Wheeler at emptywheel sees the NSA’s Huawei spying as little more than a way for it to protect some of its main collection points.

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If there’s been no evidence uncovered that Huawei equipment is being deployed with Chinese government-friendly backdoors, then the NSA is engaged in self-serving corporate espionage, one that keeps Cisco — and consequently, the NSA — in wide circulation.

Even if you believe this is exactly the sort of thing our intelligence agencies should be doing, it’s hard to ignore the inherent hypocrisy of the government’s words and actions.

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While the revelations that the NSA is surveilling a foreign company deemed untrustworthy by government officials are hardly surprising, the whole situation is tainted by the US government’s hardline against Huawei. Many accusations have surfaced over the last decade but have remained unproven, even as the US government has locked Huawei out of domestic contracts and persuaded other countries to seek different vendors. This isn’t passive monitoring being deployed to detect threats. This is an active invasion of a private company’s internal network in order to subvert its hardware and software, all of which will likely benefit its largest competitor, either directly or indirectly. The NSA isn’t Cisco’s personal army, but their mutual goals (widespread Cisco deployment) are so closely aligned, the agency might as well be.

How the NSA Deals with a Threat to Its Backbone Hegemony

By emptywheel

Published March 22, 2014

Now, for what it’s worth, the NYT story feels like a limited hangout – an attempt to pre-empt what Spiegel will say on Monday, and also include a bunch of details on NSA spying on legitimate Chinese targets so the chattering class can talk about how Snowden is a tool of Chinese and Russian spies. (Note, the NYT story relies on interviews with a “half dozen” current and former officials for much of the information on legitimate Chinese targets here, a point noted by approximately none of the people complaining.)

But the articles make it clear that 3 years after they started this targeted program, SHOTGIANT, and at least a year after they gained access to the emails of Huawei’s CEO and Chair, NSA still had no evidence that Huawei is just a tool of the People’s Liberation Army, as the US government had been claiming before and since. Perhaps they’ve found evidence in the interim, but they hadn’t as recently as 2010.

Nevertheless the NSA still managed to steal Huawei’s source code. Not just so it could more easily spy on people who exclusively use Huawei’s networks. But also, it seems clear, in an attempt to prevent Huawei from winning even more business away from Cisco.

I suspect we’ll learn far more on Monday. But for now, we know that even the White House got involved in an operation targeting a company that threatens our hegemony on telecom backbones.

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