The Obama administration’s central strategy against strong encryption seems to be waging war on the companies that are providing and popularizing it: most notably Apple and Google.
The intimidation campaign got a boost Thursday when a blog that frequently promotes the interests of the national security establishment raised the prospect of Apple being found liable for providing material support to a terrorist.
Benjamin Wittes, editor-in-chief of the LawFare blog, suggested that Apple could in fact face that liability if it continued to provide encryption services to a suspected terrorist. He noted that the post was in response to an idea raised by Sen. Sheldon Whitehouse, D-R.I., in a hearing earlier this month.
“In the facts we considered,” wrote Wittes and his co-author, Harvard law student Zoe Bedell, “a court might — believe it or not — consider Apple as having violated the criminal prohibition against material support for terrorism.”
FBI Director James Comey and others have said that end-to-end encryption makes law enforcement harder because service providers don’t have access to the actual communications, and therefore cannot turn them over when served with a warrant.
Wittes and Bedell argue that Apple’s decision to “move aggressively to implement end-to-end encrypted systems, and indeed to boast about them” after being “publicly and repeatedly warned by law enforcement at the very highest levels that ISIS is recruiting Americans” — in part through the use of encrypted messaging apps — could make the company liable if “an ISIS recruit uses exactly this pattern to kill some Americans.”
The blog compares Apple’s actions to a bank sending money to a charity supporting Hamas — knowing that it was a listed foreign terrorist organization.
“The question ultimately turns on whether Apple’s conduct in providing encryption services could, under any circumstances, be construed as material support,” Wittes and Bedell write. The answer, they say, “may be unnerving to executives at Apple.”
One way to avoid such liability, Wittes and Bedell argue, would be to end encrypted services to suspected terrorists. But, they acknowledge, “Cutting off service may be the last thing investigators want, as it would tip off the suspect that his activity has been noticed.”
In a hearing on July 8 before the Senate Judiciary Committee, Justice Department officials insisted that companies need to be able to provide them with unencrypted, clear access to people’s communications if presented with a warrant.
The problem is that eliminating end-to-end encryption or providing law enforcement with some sort of special key would also create opportunities for hackers.
Within minutes of the Lawfare post going up, privacy advocates and technologists expressed outrage: Chris Soghoian, principal technologist for the American Civil Liberties Union, called it a continuation in Wittes’ “brain-dead jihad against encryption,” while Jake Laperruque, a fellow at the Center for Democracy and Technology, wrote that Wittes’ post “equates selling a phone that’s secure from hackers with giving money to terrorists.”
If Apple and Google were to cave under the pressure of being likened to terrorist-helpers, and stop making end-to-end encryption, that could be the start of a “slippery slope” that ends the mainstream availability of strong encryption, said Amie Stepanovich, U.S policy manager for Access.
But even so, strong encryption will always exist, whether produced by small companies or foreign outlets. Terrorists can take their business elsewhere, while normal Americans will be left without a user-friendly, easily accessible way of protecting of their communications. “These tools are available and the government can’t get to all of them,” says Stepanovich.
Wittes, while couching his post as hypothetical, left little doubt about his personal sentiment. “All that said,” he and his coauthor wrote, “it’s a bit of a puzzle how a company that knowingly provides encrypted communications services to a specific person identified to it as engaged in terrorist activity escapes liability if and when that person then kills an American in a terrorist incident that relies on that encryption.”
The authors didn’t say what exactly they wanted Apple to do instead. Wittes tweeted after publishing the post that he is “not sure at all that Apple is not doing the right thing by encrypting end to end.”
Correction: An earlier version of this article misquoted Wittes’ tweet, mischaracterizing its meaning.
Thanks to Reliance on “Signature” Drone Strikes, US Military Doesn’t Know Who It’s Killing
Tuesday, 04 August 2015 00:00
By Adam Hudson, Truthout | Report
[Excerpts]
In fact, the US war machine is already building strong ties with Silicon Valley. Google, for example, sells its technologies to numerous US military, intelligence and law enforcement agencies, such as the FBI, CIA, NSA, DEA and NGA.
Google also has partnerships with two of the country’s biggest defense contractors – Lockheed Martin and Northrop Grumman. Google worked with Lockheed in 2007 to design geospatial technologies, particularly a Google Earth product for the NGA’s activities in Iraq during the 2003-2011 war. Google also partners with military/intelligence contractors like Science Applications International Corporation (SAIC) and Blackbird Technologies. Blackbird supplies locators that track, tag and locate suspected enemies to the US military, particularly the US Navy and SOCOM.
Palantir is another tech company with deep ties to the national security state. The Palo-Alto-based company makes and sells data-mining and analysis software to multiple branches of the US military, as well as intelligence and law enforcement agencies: Its customers include the US Marine Corps, SOCOM, CIA, NSA, FBI, Defense Intelligence Agency, Department of Homeland Security, National Counterterrorism Center, Los Angeles Police Department (LAPD), and New York Police Department (NYPD). According to the Wall Street Journal, Palantir’s software is unique because it can quickly scan and categorize – via a ” ‘tagging’ technique similar to that used by the search functions on most Web sites” – multiple sources of incoming data, like a first or last name or phone number. This helps analysts “connect the dots” among large pools of information.
http://www.truth-out.org/news/item/32166-thanks-to-reliance-on-signature-drone-strikes-us-military-doesn-t-know-who-it-s-killing
Thanks to Reliance on “Signature” Drone Strikes, US Military Doesn’t Know Who It’s Killing
Tuesday, 04 August 2015 00:00
By Adam Hudson, Truthout | Report
[Excerpt]
In an earlier email interview, former CIA case officer Robert Steele explained, “Signals intelligence has always relied primarily on seeing the dots and connecting the dots, not on knowing what the dots are saying. When combined with a history of the dots, and particularly the dots coming together in meetings, or a black (anonymous) cellphone residing next to a white (known) cellphone, such that the black acquires the white identity by extension, it becomes possible to ‘map’ human activity in relation to weapons caches, mosques, meetings, etcetera.”
COMMENT: What a load of bullshit, Robert Steele, former CIA!
http://www.truth-out.org/news/item/32166-thanks-to-reliance-on-signature-drone-strikes-us-military-doesn-t-know-who-it-s-killing
Re: Google & (D) Barack Obama’s – Top Contributors, 2012
This table lists the top donors to this candidate in the 2012 election cycle. The organizations themselves did not donate, rather the money came from the organizations’ PACs, their individual members or employees or owners, and those individuals’ immediate families. Organization totals include subsidiaries and affiliates.
Because of contribution limits, organizations that bundle together many individual contributions are often among the top donors to presidential candidates. These contributions can come from the organization’s members or employees (and their families). The organization may support one candidate, or hedge its bets by supporting multiple candidates. Groups with national networks of donors – like EMILY’s List and Club for Growth – make for particularly big bundlers.
University of California $1,350,139
Microsoft Corp $815,645
Google Inc $804,249
US Government $736,722
Harvard University $680,918
US Dept of State $638,237
Kaiser Permanente $592,761
Stanford University $532,246
Columbia University $478,123
Deloitte LLP $458,275
Time Warner $447,521
DLA Piper $415,390
US Dept of Justice $402,280
Sidley Austin LLP $400,671
US Dept of Health & Human Services $391,978
IBM Corp $370,491
Walt Disney Co $369,598
New York University $357,822
University of Chicago $354,282
University of Michigan $351,118
http://www.opensecrets.org/pres12/contrib.php?id=N00009638
Related: What is the National Security Agency?
[Excerpts]
Unlike other security agencies of the US, the NSA is limited by charter to the analysis of communications in other countries. Since the attacks on 11 September 2001, more power has been given to the agency to carry out domestic surveillance, however. This was not the initial intent of the agency.
The agency has several functions. It analyzes communications via phone, radio, television, and Internet; collects information and organizes it; and reports to and shares information with the Department of Defense, which is its overhead agency. A branch of the NSA called the Signals Intelligence Directorate (SID) carries out this work. It plays a vital role in the US intelligence community.
The other aspect of the NSA that has become increasingly important in the computer age is researching and studying how information in the US, especially classified information, is held and disseminated…
http://www.wisegeek.org/what-is-the-national-security-agency.htm
Related: Biography of NSA Director of Signals Intelligence
TERESA H. SHEA
Senior Executive Service
TITLE: Signals Intelligence Director
[Excerpt]
Most recently, Ms. Shea served as the Special United States Liaison Officer London (SUSLOL) assigned to the U.S. Embassy in London, England. As SUSLOL, Ms. Shea worked to maintain and improve upon the close and continuing partnership among NSA and its British counterpart, GCHQ.
http://www.matthewaid.com/post/50504323013/biography-of-nsa-director-of-signals-intelligence
CRONYISM 101: ALL THE NSA WILL SAY ABOUT ITS ALARMINGLY ENTREPRENEURIAL TOP SPY IS THAT SHE’S RESIGNING
Published: October 25, 2014
SOURCE: THE INTERCEPT
[Excerpt]
[Teresa] Shea is not the only high-ranking current or former NSA official coming under scrutiny for their financial dealings. Former agency director Keith Alexander was engaged in commodity trading linked to countries such as Russia and China — countries upon which the NSA spied heavily — while he was working at the agency.
http://www.blacklistednews.com/Cronyism_101%3A_All_the_NSA_Will_Say_About_Its_Alarmingly_Entrepreneurial_Top_Spy_Is_That_She%E2%80%99s_Resigning/38782/0/38/38/Y/M.html
Original: https://firstlook.org/theintercept/2014/10/24/nsa-official-implicated-potential-conflicts-interest-resigns/
*What’s about the makers of the pressure-cooker used in the Boston bombings?
*Someone must have manufactured the guns that all the school shooters use?
*Who made the bullet that killed J.F. Kennedy?
Nice job, Heir. You’re the eleventh commenter to attribute to Wittes an argument that he explicitly rejected. The following comments should be added to the six listed below:
Nice job to you, too, Ms. McLaughlin. I suppose you got exactly what you wanted: a virtual unanimity of your readers coming away with a completely distorted notion of the argument that Wittes actually made. That’s an amazing achievement.
You brought up an interesting line of questioning that I think actually bears quite a bit on the subject at hand:
Let’s say those pressure cookers were internet-enabled (IoT out of control). Would the manufacturers/operators, had they had that information, have been ‘legally responsible’ for the use of said pressure cookers if someone had approached them to give information on said pressure cookers and they did not comply? Let’s say their sensors were somehow able to see 3 (or however many) pressure cookers converging in one location, and there’s no time for a warrant and no known postings of a block party/potluck.
Let’s say that car had on-board wifi and/or some sort of OnStar-type thing. If said manufacturer/operator had access to data on a car’s GPS and one were to approach them (no time for a warrant, natch) and ask them for that data (remember, no warrant) would the car manufacturer be considered ‘at fault’ if they didn’t provide that information and a crime were to be successfully committed, the criminals to get away?
What if bullets had RF? Or guns?
If a company or individual has information on something, does that make the company or individual at fault if it does not go along with a third-party use (governmental or otherwise)? What if an NSL were involved?
Would you agree or disagree that by incorporating trackability into any technology you are in some way making yourself liable should you not comply with any legal order (lawful, unlawful, legal, illegal, or anything else)? Would it not make more sense to remove that sort of capability in the first place? Note I didn’t say culpable or responsible. Let’s assume people have all the free will in the world to commit crimes (or not commit crimes).
Where would you say the line should be drawn? In my opinion it should basically be to remove that sort of capacity, thereby removing the capacity for it to be abused (by ALL parties), but I am quite open to hearing your opinions (and anybody else’s). It seems to me that the current mores are ‘if you can collect it, then someone must comply if asked’ — if they don’t comply, and they don’t have tens of millions of dollars to fight a lawsuit, what happens?
Wittes considered that possibility:
That’s why he said on Twitter (quoted by McLaughlin (originally misquoted)): “I am not sure at all that Apple is not doing the right thing by encrypting end to end.” He meant that in terms of avoiding liability. That’s why it’s incorrect to read Wittes as having taken a position against encryption, and that misreading is the basis of McLaughlin’s article.
You’re not answering the question(s), though. One *cannot* remove the ABILITY for these things to be done, and thus for it all to be tracked, or logged… And as long as a company CAN do something the American government (and for that matter corporations, for profit) has a pesky ability to encourage companies to, if companies don’t do it themselves; compulsion is a strong force, as are armies of government lawyers. Wanting something is enough to destroy a project if it doesn’t want to comply.
Let’s put aside the encryption argument for a moment. That’s what I was attempting to do by bringing up those other subjects. Or let’s talk about email in general: Why have the laws on ‘stored email’ not changed despite the nature and model of data access and email storage having changed grossly in the past 2-3 decades? (in case you’re not familiar with American law on this, see https://en.wikipedia.org/wiki/Stored_Communications_Act ; compare it to how most people use email now). Things aren’t being used for what they’re intended to be used for and that makes using things for more nefarious (or spy-y) purposes a lot easier (and it’s not like the US government is practicing much self-restraint). Do people have the right to turn off the tracking on their pressure cooker? Do people have the ability to REALLY delete their email if it sits on a backup? I’m talking larger picture.
Yes, he was arguing about avoiding liability — but shouldn’t we be asking why that liability can exist, to begin with? We’re the society and we create the society we live in. If we don’t make these choices, they’ll be made for us (and I don’t trust the American (or British) wallet to make my choices for me and the rest of the world — or even for Americans, on the whole).
That’s just semantics. In Wittes’ hypothetical, Apple does not have the ABILITY to “comply in any useful way with the warrant”. I get that you want to go beyond Wittes’ analysis, but I’m not interested in doing that. My only intention here has been to present his analysis accurately. Once that’s done, I agree with you, what he’s saying is very limited. That’s my point. His article doesn’t deserve all this hysteria. There’s no reason to lie about what he’s saying. “Obama Administration War Against Apple and Google Just Got Uglier” – that’s nonsense. I read Wittes and just shrugged. Maybe it’s legally sound, maybe it’s not; I’m not really qualified to judge. And, as I said, if his analysis is sound, then it will benefit Apple and privacy advocates as much as the government, because it’s advantageous to know what’s possible under the law. If it’s true that Apply may be held liable under the circumstances that Wittes assumes, and if that’s to be considered an outrage, then the outrage should be directed at the law, not at Wittes’ interpretation of it. That’s really all I have to say about this.
Fair enough. You’ve been pretty defensive of Wittes. I don’t think I’ve ever really seen this side of you before (though I haven’t been looking for it, either), and I guess it piqued my curiosity. Hopefully my philosophical attempts weren’t taken in offense. :)
They would have to prosecute the biggest corporation one that has support from groups who do not like corporations. That will never happen in America.
Ben Wittes is a policy wonk who is only to be taken seriously insofar as he is a touchstone and cheerleader for any idea consolidating power within the U.S. corpo-statist class .
Did you know that car makers could be sued for providing the getaway car in a bank robbery? Therefore, we need to all ride horses so the government can catch the bad guys!
*McLaughable
What about Exxon and Kroger being found liable for providing material support to a terrorist…as they need gas and groceries.
This article by McLaughlin, and her follow-up featuring Edward Snowden, prompted another response by Wittes (in addition to the one I posted below).
Did the Intercept Just Admit It Makes Up Facts?
Uggggggggh. *TWITTTER* Are you kidding me? That godforsaken wasteland of one-liners doesn’t give enough space or context to figure out what *anything* means. Twitter content only seems to be useful for three things: bullying people, getting people fired/not hired, and prosecuting them for speech crimes.
‘Lawfarists’ pretending they know anything about encryption aren’t worth reading at all. I’m so tired of ‘policy’ and ‘analysis’ being done by people that have 0 practical or theoretical experience in anything even remotely related to the subject they believe they’re writing about. If you want to write law about crypto, then you should (a) know law and (b) know crypto. Yes, that’s hard. But it’s hardly impossible and I’m not sure why anybody should get a pass. Yes, that means I advocate more — *ETHICAL* — biologists, doctors, chemists, physicists, mathematicians, computer scientists, etc, in politics, policy, journalism and law. And whatever the hell lawfare’s blog is.
In Wittes’ hypothetical, the only salient point regarding encryption is that it prevents Apple from complying with a warrant for the content of a terror suspect’s communications. That’s all Wittes needs to know about encryption for purposes of his analysis.
Hey barncat, thanks for the reply. Sorry this’ll be short — net’s about to cut out. You wrote: “Apple, quite reasonably given its technical architecture”
Wittes is claiming to understand (a) how Apple’s technical architecture works by (b) making a judgment based on that claimed understanding that it’s ‘reasonable’. I don’t really have time to get into what I agree with and disagree with (and I think we can both agree I do that too much anyway ;)), but IMHO he’s claiming to make judgments about things he really doesn’t have the background to adjudge. I have to admit I’ve already tossed the original article out of my working memory by now; I almost didn’t see your comment.
..it’s a bit of a puzzle how a company that knowingly provides encrypted communications services to a specific person identified to it as engaged in terrorist activity…
How does apple “knowingly supply to a person identified”
How is the person identified?
How is “identifying them” an accusation with any basis in legal action?
No, it is NOT Apple’s responsibility to ensure that ANY of it’s customers are or are not terrorists as defined by the the United States Government. But it IS Apple’s RESPONSIBILITY to ensure the privacy of it’s customer’s data.
Goodness, could this be the reason that Microsoft 10 is free to those who download it? Microsoft sells out the consumer for the Government idiots-oh excuse me, it;s the consumer who are the idiots-? Another point in the governments drive to snoop in “Granny’s drawers/depends”. Perverts, the whole lot of them, pretending to be servants of the whole population of the U.S.A.
This is the reason why Apple never gained dominance in the desktop market. The government has been in league with Microsoft for decades, proliferating their very porous operating system around the globe so they could hack into any government or citizens machine.
Totally. When Microsofts EXCEEDINGLY WILLING NSA shit hit the fan did anyone else notice Steve Ballmer ordered a complete expedited reorganization of the company from top to bottom in the summer and fall of 2013 just before retiring (got outa Dodge) as CEO in Febraury 2014?
By that logic, gun and ammunition manufacturers could also be held responsible for so-called terrorist attacks, even more directly so.
That aside, I’m pretty sure Apple has many more fans than Obama, and the idiot Comey. I’m very disappointed in Sen. Sheldon Whitehouse, D-R.I., who I thought was a good guy. But it all comes down to Congress being the real enemy of the people; just study the legislation they pass and it shows them to be the greatest violator of civil and human rights for we taxpayers, and the advocates for the worst of the evil corporations, destructive resource extractive companies, animal torture companies that have gotten animal rights and environmental activists declared terrorists, etc. Senators Sheldon Whitehouse, Feinstein, Schumer, and Kerry, along with Obomber and HRC demonstrated their contempt for our rights by declaring Ed Snowden a coward and traitor. So why vote for Dems, because except for a few social issues, they are as bad as the Republicans. Nader was right. Vote third party–Force real change.
This leads us to a conclusion that the government believes it has the right to read email and other forms of documentation of all private citizens. I guess Obama would feel that way. I would hope that this would result in a 9-0 Supreme Court decision against the government.
Darn. If only I hadn’t subscribed to an account w/gmail in June 2008, I might be experiencing my own life as a “private citizen”.
Is it April 1st already?
It doesn’t work like that. If anything, that Apple cannot provide the information shields them. If they could provide the information – then they could/should be compelled to do so. In this respect, significant privacy controls should be applied to reduce paperwork.
The idea of charging a company with material support for selling a civilian product is insane. Are you going to charge their landlord for providing a home to hide in, the town for providing roads to drive on, the power company for providing electricity to power a computer to send these messages, charge their mother for feeding them as a child….
Does even one security expert work for the government? Everybody knows that if there’s a law enforcement key, it will be found by somebody other than law enforcement and leaked to criminals all over the world. Even if they don’t understand computer security, at least they can remember how quickly the DVD encryption was hacked, right? Luckily we have a few SCOTUS justices who are very strongly in favor of the right to privacy. I think we should be safe… for now.
SCOTUS voted nine (9) to zero (0) to treat your smartphone and everything inside it
like a LETTERBOX. The Chief Justice appoints FISC judges and his contributions to the language of the decision were more entertainingly dismissive of the DOJ than many recently successful post snowden federal and state court cases (Stingray cases, FOIA cases, Posse Commitatus cases, Larry Klayman cases etc.)
YOU have right to be be secure in your PERSON (no mind reading nanobots) PAPERS (digital files all kinds all types
1st 2nd 3rd party) and EFFECTS (that crumpled up cigarette wrapper with
balloons of heroin in it…) from unreasoble search and seizure…
Wittes has posted a response to criticism of the blog post under discussion.
The guy is accusing and insulting everyone except one person who commented on his post.
Claiming to have read all the comments from those within the “civil liberties community” and finding only one to be worthy of consideration makes it clear his comment is projection… he’s lying and hurling invective… and he clearly thinks he’s being clever but just comes across as a smartass.
He said there was only one worthy of consideration because there was only one that wasn’t “simply hurling invective or just plain lying about what we said”. Two examples of the latter (lying) were cited irresponsibly by McLaughlin in the article:
Wittes certainly did not take a position against encryption, and Laperruque’s mindless misrepresentation is the exact same one that is pervasive in the comments here. And Wittes mentions this:
Did Greenwald even read the essay? It has nothing to do with prosecution, only civil liability. If you think Wittes is “projecting” you need to show some replies he got (before he responded) that were honest and substantive.
What’s interesting about Wittes’ response is that when he gets to the one reply worthy of consideration, he shifts gears and devotes several paragraphs to answering it! What does that say about his sincerity? He claims to have written a dispassionate legal analysis and to be “more than happy to be [proven] wrong in this particular analysis”, and his behavior here is fully consistent with that claim.
No, he comes across as someone who’s calmly defending himself against a shitstorm. The bottom line here is that, prior to the publication of his blog post, Wittes had long been established as one of the Bad Guys. And bad guys do not have to be treated fairly. They don’t even have to be read. They have an agenda, and the agenda pollutes everything they write. You see their name above an article, you don’t stop to think, you just attack. And if someone like myself does read the bad guy and argues that he’s being treated unfairly, then that someone immediately falls under suspicion (“If people don’t see things the way you two see things”). It’s all ugly and pathetic.
You repeating the claim that only one single comment in the “civil liberties community” was free of lying and invective doesn’t make it true.
Sputtering false claims and invective is not “defending himself” or “calm”.
You seem to have an awful lot invested in this supposed stranger and victim.
You can keep claiming the criticism of his conclusions isn’t based on the post too, but not only was the criticism clearly related to the subject at hand, but dollars to donuts I’d wager few who commented had ever heard of the guy, so the “bad guy being treated unfairly” argument makes no sense… so reaching conclusions based on that false claim doesn’t make any sense either.
It certainly is true that people with a record like his deserve closer scrutiny though, and his responses to the justified criticism make that clear.
Only incompetent “law enforcement” types and the temporary occupant in the White House and destroyer of freedoms would deem Constitutional privacy rights as a threat. We need better people to stop the terrorists not the same incompetents going after good people and American icons.
We can clearly see the totalitarian leanings of Wittes. The Government must see all, hear all, know all, or else we’ll all die.
Pathetic.
This is without a doubt the stupidest comment section in the history of The Intercept.
Those comments were written by six different commenters, and not one of them was challenged. Every one of them is responding to an argument in Wittes’ (and Bedell’s) essay that he explicitly rejects.
Neither in the article nor the comment section is there any sign of a sincere effort to reply to Wittes’ actual text. It’s pathetic.
We get it.
If people don’t see things the way you two see things, they’re stupid.
Understanding the nuance of his carefully crafted conclusions requires the context of the whole text, since the conclusions alone appear ridiculous.
It’s a very convincing and relatable approach.
What I wrote has nothing to do with his conclusions. And, yes, you did seem to get Wittes’ argument.
That’s a pertinent reply.
I’m not seeing things the way Wittes sees them; I’m just trying to understand how Wittes is seeing things in his essay. And I’ve called no one stupid. I said this comment section is stupid, meaning the comments, and the ones I quoted clearly are. I’m saying that no one (with one or two exceptions like yourself) has tried to read Wittes fairly and reply to his actual text. And that’s pathetic.
I don’t think people are outraged at Wittes per se, but the legal philosophy behind what he is saying, as reflected in the Arab Bank case. And while he gives the quote you say above, he then says that it doesn’t apply when a specific terrorist is identified with a warrant. But (though I’m no lawyer) the point of the Arab Bank case seems to be that the terrorist DOESN’T HAVE TO BE identified by a warrant or a watch list or a black list or an informal communication or anything else from the government; it’s the responsibility of the bank to dive deep into its databases and try to replicate everything the government does on its own, and it had better do a better job than the government does! Which is why, I presume, he finishes up with a text highlighting how any number of companies might be held “jointly and severally” liable for possibly making the risk of terrorism more likely – not something you’d need to do if you actually know which subscriber is the one receiving this hypothetical material support. So I took the text above to be a statement of what would be true by a common sense reading of the law, and the rest as the roadmap for a loophole for the government to get around it.
That’s the whole point: a warrant is required. That’s why “Holding Apple liable here [without the warrant] would make no more sense than holding a car maker liable if one of its vehicles ended up being used in a car bombing”, which is the same absurd argument those six commenters (nine as of now) are attributing to him.
According to the NYT article that Wittes linked to: “The burden of proof in the trial, held at Federal District Court in Brooklyn, was high: The plaintiffs had to prove that the terrorist attacks were indeed conducted by Hamas, and that the bank’s support of Hamas was the ‘proximate cause’ of the events. In addition, the plaintiffs had to demonstrate that their injuries were ‘reasonably foreseeable’ as a consequence of the bank’s acts.” So, apparently evidence was presented that convinced a jury that the bank knew they were transferring money to potential terrorists. In Wittes’ analysis, that last condition could be met because Apple received the warrant informing them that a customer was a suspected terrorist (and they continued to provide service to the customer, and the customer did go on to commit an act of “international terrorism”).
First, to be clear, no one is being held liable for “possibly making the risk of terrorism more likely”; the liability is for damages that actually occurred in an act of “international terrorism”. Wittes’ point here is: “Assuming Apple’s conduct could be regarded as material support, a plaintiff would only have to prove that there was a substantial probability that Apple’s provision of encryption services was a—not the—cause of the injuries.” There is nothing in this section that obviates the need for a warrant in the case of Apple, or some other reason they could have been expected to know that they were providing encryption services to a suspected terrorist.
Not a story.
You could make the same argument against the Obama Administration for pulling troops out of Iraq, failing to arm our allies in Yemen & Syria and allowing Iran to develop a nuclear weapon. Obama is providing material support to terrorists.
You could make that argument, but it would be factually incorrect across the board.
We are providing weapons in Syria and Yemen, but the militants we’re supplying are our enemies.
So your accusations of material support by Obama is accurate, but your facts and reasoning are flawed.
I am finding this whole hoopla over encryption against Google to be a PR stunt because we know Google regularly meets with the White House: http://www.theverge.com/2015/3/25/8287961/google-ftc-white-house-lobbying
I think Google and the White House are organizing this stunt for people to continue to put their trust in them when in fact they work with the US gov’t..
I tend to agree with you on this. This is a PR stunt. Google is not concerned with privacy, they want to know everything about you because they profit from that information.
There may be some truth here…
Check out Google’s new, I believe insecure new two-page sign in. A LOT of us have been complaining about it on a Google forum, but said company has issues NO response.’
Then also, look at plans for their new, more invasive assistant with something called Google Now or Now on Tap or whatever which will be debuting in the fall, I believe
And let’s not leave out Microsoft. From what I’ve read, Windows 10 is a privacy and security nightmare. Pay attention to their new feature that will let your WiFi passwords be shared with EVERYONE on your contact list, and probably everyone on theirs, etc.
Does anyone care???
I believe it, but … if there is a precedent set that _Google_ doesn’t dare to claim it encrypts end-to-end, how will any small company or organization even think it has a chance to?
Yes, I realize that just because Google is allowed to do something doesn’t mean anyone else is. I mean, if you or I try to do the same kind of fair use replication of images as they do in a search, how far would we get? But it’s still better to have your car stuck in a swamp than to have it stuck under a swamp, no?
Wgo are you people doing that you are so worried about privacy. Who are you that anyone would care? If the government wants to know I bought a case of Hemroid cream
Dear Kewlzter –
First: just because you value your privacy so little doesn’t mean that others do also. Some of us DO NOT want to be subject to these intrusions and resent being told we should be.
Second: WAKE UP! Are you even paying attention? First it’s protesters, animal rights activists, environmental activists, whistleblowers… who will it be next? To be honest, I just hope and pray none of us have to find out (you, too!)
“Benjamin Wittes, editor-in-chief of the LawFare blog, suggested that Apple could in fact face that liability if it continued to provide encryption services to a suspected terrorist.”
With this type of reasoning one should then also be able to hold weapon manufacturers and weapon salesmen liable for any person who use their products to kill other people. Why isn’t that then the case?
Instead of fighting Apple and/or Google shouldn’t they take that fight where it belongs; in Syria/Iraq where ISIS actually are. That should also deter many new recruits, and if not; they will soon enough meet their end.
Yes, it worked so well in Iraq and Afghanistan and Libya, just to name a few.
Actually, we *could* have had the fight taken there without fighting a war. All we had to do was resist these stupid Soviet-style ideas to prevent Islamic fanatics from travelling to Syria. WHY? We should have eagerly waved goodbye, being sure not to neglect to lock the door behind them … and then, they’d be left competing with all the other nutcases for a limited niche in the local ecology. We just saw the headlines about “Jihadi John” fleeing from ISIS, but sometimes the (former) Americans would win, and in those cases, well, that would mean that American intervention was killing Syrian fanatics. You can say that the net number of Islamic fanatics in Syria wouldn’t go down, sure … but the net number in AMERICA would go down, and isn’t that what we really care about the most?
Providing universal encryption does not, by definition, promote or assist any particular use of that technology by any particular person. It’s no more “in support” of terrorism than is an automobile manufacturer “in support” of murder because someone drives an auto into a crowded sidewalk.
While there is no right to drive an automobile, there is a specific constitutional right to protection of persons against invasion of privacy by the state without a court-issued warrant for a particular search for evidence based on reasonable cause to believe a particular crime has been committed.
MAYBE, Wittes can be the first victim of the paranoia he just conjured for Cheeney and his chumps… Here’s hoping.
Not sure where to post this, but if you good folks haven’t read this, it’s worth noting:
http://www.theguardian.com/world/2015/jul/31/german-government-accuses-news-website-of-treason-over-leaks
Just found this while digesting my daily dose of bad news. Sigh.
I’m trying to figure out which is a better time to do said news-reading. So far night doesn’t work, morning doesn’t work, mid-day doesn’t work, and post-prandial and pre-prandial both do not work.
I’m seriously considering not reading the ‘news’ anymore. If you’ve found a time that’s tolerable, I salute you. :(
Hello there Useful Idiots –
Hey, I had to look up prandial (very unusual word!). Actually, I haven’t really found any GOOD time, I just sort of grit my teeth and read when I feel like being online.
I have been reading about Pluto, though. that’s some good news that’s actually somewhat of an antidote to the other stuff. I’ve become quite fond of that PLANET (oh, gee, have I just given away my stance on that great controversy.
Anyway, I just can’t seem to stop myself from looking to see what’s going on. Sometimes I feel as though I’m actually gawking at a train wreck.
Ah well, had to ask. :)
More on the Netzpolitik incident.
https://www.eff.org/deeplinks/2015/07/german-investigation-netzpolitik-coverage-leaked-surveillance-documents-confirmed
Hi Coram –
Thanks for that link which adds to the story. Gotta read TI’s story too.
As others have noted, the author of the post under discussion in this article has issues.
If Israel was officially recognized as terrorizers, his analysis would suddenly change.
In any case, I’m half expecting the NRA to jump into this fray with-
Encryption doesn’t kill people, people do.
OK, so it’s a much smaller half.
Of course, I’m still hung up on the “suspected” part, since innocent until proven guilty is supposedly law of the land and liability based on mere suspicion doesn’t quite flow with that current.
And then there’s the complicating factor of the blanket warrants being issued by our secret court.
Is there liability for the haystack, or just the needle?
And, if as is currently the reality, they don’t find that needle until after the fact (given that our rights violating agencies haven’t prevented a single attack with their snooping), how can liability exist?
And, and, if they entrap and create a needle, wouldn’t a shift in liability occur as well?
And, and, and, since it is currently US policy to fund and arm “vetted” militants who end up joining al Qaida or ISIS a few weeks later, isn’t the definition of material support now in the realm of blatant double standards?
I will close by asking one last question.
In countries with lists of terrorist organizations that differ from our own, will Apple be liable in their courts based on their lists?
I’m sure I’m not alone in having no trust in any major US company that deals in technology. That goes especially for Google, Amazon, and Facebook, but also for Apple. I think all these companies are in bed with the feral government. After all, didn’t one of Snowden’s leaked NSA slides refer to many of these companies as “corporate partners”?
(Speaking of Snowden, I’m going to write in his name when voting for president. Edward, freedom-loving people can’t thank you enough. You too, Glenn, Laura, et al.)
I think the public squabbles between these businesses and the three-letter-agency dickheads are staged for public consumption. They want people to believe that their communications are being made private again so people will start trusting Gmail, Apple’s Facetime, etc.
My humble recommendations:
1.) For ordinary communications that aren’t life-or-death sensitive but that you’d still like to keep private, the Swiss email service ProtonMail is worth a look. There’s a wait list, but it’s only a month or so at this time.
2.) Unless absolutely, positively necessary, truly sensitive communications should never be sent over a network (even if encrypted), or stored on any device that has the physical ability to wirelessly transmit information.
3.) Refuse to buy into the “Internet of Things” (IoT). Limit your Internet-connected devices to your computer and your cell phone. The IoT is probably a government-sponsored scheme to embed a tighter surveillance grid within our social infrastructure. It’s the next logical step after the proliferation of cell phones. Warn others of the danger also. The last thing we want is for “everything connected to the Web” to become the new normal. Trust me on this.
4.) Buy as much firepower as you can afford, even if it’s just a 12 gauge shotgun, and train as much as you can. When the goon squads start rounding up dissidents, let them know that they might take your life, but you’ll take a few of them with you, and in any event you’ll die proud and free.
quote”4.) Buy as much firepower as you can afford, even if it’s just a 12 gauge shotgun,…”unquote
Notwithstanding you’re other suggestions, I’ll second this one. And so do all the people who’ve bought weapons in the last year. As for the collectivist anti-gun crew… chew on this:
http://www.ammoland.com/2015/07/886825-nics-indicates-record-gun-sales-for-june-2015/#axzz3hSpyaeFZ
Oh, and btw..
http://sipseystreetirregulars.blogspot.com/2015/07/gun-rights-advocates-have-devastating.html
Why does Anonymous get more jail time than street thugs? Because violence promotes elite interests and Anonymous does not.
If you’re going to invest in firepower, might want to consider jiu-jitsu instead of the sumo they’re quite well prepared for.
The government has been warned repeatedly that a backdoor is extremely dangerous. The security implications of a backdoor are far more serious than they are for unbreakable encryption.
If the government forces this issue, the US will be in serious jeopardy and it will be the fault of our own law enforcement “professionals”.
If you want to bring down America: Force this issue and ignore technologists, Obama.
Even if the US national security is not at risk with backdoors and no secure encryption, its economic security will be. The internet was its best industry and its highway of commerce, and now if there’s a back door, the hackers will find it and you can forget about a secure web to do business in. Might as well go to a cash economy.
Hah!
What is absent from these comments is the crucial identification of lawfare.com, Mr. Wittes’s organization. Lawfare is yet another Zionist attack institution aimed at criminalizing and neutralizing all things Critical of Israel, in particular, all things Islam. Islamic charities are destroyed and their operators put in jail, because it’s politically feasible, and is yet another step in establishing comprehensively the perception that “Muslim” equals “terrorist”.
In a New York Zionist court, with a New York Zionist judge, and a New York Zionist jury, lawfare.com sued the Islamic Republic of Iran and, quite understandably in that venue, won a billion dollar judgment with which to harass the Islamic Republic. Lawfare’s activities are but another example of the Zionist corruption of American institutions. In this case the judiciary. Just another variation of — to use the ultimate examples — AIPAC’s subversion of the United States Congress, and the Neo-conservative takeover of American foreign policy.
My guess is that in this case lawfare is attempting to intimidate Apple and Google while building a foundation, creating legal “scholarship” that they will later be able to cite as a form of “precedent” so that when there is another terrorist attack, lawfare will jump to represent the victims in that same New York court with that same Zionist judge and jury against Google or Apple or whoever.
Like the old life- or career-destroying slam of anti-Semitism, lawfare’s threatened attack of the lawyers is yet another masterful tactic in the Zionist campaign to protect criminal Israel.
Jeff Davis Confederate President
One Lawfare founders assertion that corporate (Apple, Google, Skype etc.) implementation of strong encryption
amounts to providing material support
to future (hypothetical) muslim terrorists attackers endangers all of Apple, Google and Skypes’ Israeli Customers.
@csoghoian: In which @benjaminwittes continues his braindead jihad against encryption. https://t.co/oIWeilMg4c
@benjaminwittes: In which @AZoeB85 and I ask an unnerving question: Could #Apple be construed as violating the material support? http://t.co/iLisHcf4Ks
Please. These companies get billions in regular tax breaks and subsidies. There is no war.
Related articles: Obama’s Cybersecurity or Cyberwarfare Plan?
Why Surveillance Won’t Prevent Cyber Attacks
http://prospect.org/article/why-surveillance-wont-prevent-cyber-attacks
A Surveillance Bill in Cybersecurity Clothing
http://www.truth-out.org/news/item/32136-a-surveillance-bill-in-cybersecurity-clothing
“These programs were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power.”
– Edward Snowden
Programs and operations that are designed to control, intimidate and manipulate behavior, or alter states of mind do, in fact, induce a myriad of responses in the subject(s). These responses cover the full range of emotional and psychological states; to include that of sheer terror. I know.
Seems to me we just had an article (Dylann Roof Is Not a “Terrorist” — But Animal Rights Activists Who Free Minks From Slaughter Are) where the criminals used encryption and were still caught. This was done with a warrant I would imagine… Encryption wont stop the government if actual suspicion exists and that is fine with me.
https://www.fbi.gov/sandiego/press-releases/2015/animal-rights-activists-accused-of-going-on-cross-country-spree-targeting-fur-industry
The forums gods blessed me with my first successful blockquote today :)
I can’t beat the excellent comments below, e.g. Carl Weetabix. But I should say this doesn’t seem like an exercise in logic but one in totalitarianism. Once a government gets rid of rights, and passes laws by which anyone (logically) could be found guilty, the next step is that they can tell whoever they want to do whatever they want or else be branded a criminal.
One problem with this is that there are more experienced totalitarians out there already. If companies have to worry about being found criminal or liable for failing to monitor, failing to censor, failing to do whatever they’re told the second they’re told, then why not relocate to the biggest, most technologically advanced country in the world and do it right? In China they can have cheaper labor, cheaper supplies, and if they can get on board with the party line there, they should have a product that is legal anywhere in the world. Free speech used to be the gold standard, sure, but if that fails, the Great Firewall is a clear second. In five or ten years, the notion of basing computer services in the U.S. could seem as absurd as if somebody wanted to manufacture computers here. Even the handful of technicians needed for the local CDNs might be hired exclusively from a pool of H-1Bs who ‘have the experience of working with the global digital market’, rather than being indoctrinated with archaic terrorist propaganda about faux Indians who attack British trade ships. Eventually even the schools would catch up, changing their curriculum to face the fact that the U.S. lost the Cold War due to its hooliganistic doctrines that fail to comprehend the rational design of scientific socialism. But I wouldn’t expect the industry to come back even after that, because there can only be one #1.
So, if an auto company sells a car which a terrorist uses as a getaway vehicle, they’d be liable and it would be an argument that no car manufacturer can make cars with door locks or key-activated ignition switches. Is that a fair metaphor?
Or maybe it’s a situation in which no bank can used encrypted communications, which means credit card and ATM data is available to any enterprising hacker, just so the terrorists can’t use encryption. That what they’re going for? Because if that’s the case, not only do we lose what little security we had on the Internet, but we might as well go to a cash economy.
Certainly it’s an argument for Google, Apple et al to relocate, but to where? Alpha Centauri? The national-security people certainly won’t leave us more secure if the most dynamic part of the economy is suddenly under siege.
That is why my company is developing cyber technology to eliminate the need for encryption – 100% secure and lawful.
Given that “no encryption” and “100% secure” are polar opposites, I’d love to know what your solution is.
But see, he said CYBER technology, not technology. The Cyber makes it magic. I was more amused by ‘and lawful’ btw.
Less snake oil, OP. Get a better job. Or a better business model if it’s yours.
Huh, this was new news to me. Thanks for posting.
I wonder what they meant by “knowingly provides encrypted communications services to a specific person…”. Isn’t there an end user agreement everyone has to agree before Apple or Google grants them an account? So how is that counted as “knowingly”? Prior to 911, why were the terrorists not stopped at the security check? Did security check staffs knowingly allow them to pass? I am baffled.
A court order for Apple to downgrade its current strong encryption method would simply push terrorists to other providers who provide the better security and couldn’t care less about what Obama’s administration wants. For a handful of terrorists, it would take each of them 15 minutes to complete the migration. But then, millions of normal users around the world will have to choose either give up the accounts they have used for decades, or continue using them knowing there is a flawed encryption method forced upon them.
Ordering one or two company to downgrade end-to-end encryption would have little impact on terrorists. However, it would inevitably add a hackable access well for many hackers, who can’t sniff around now. Does it have little impact on American’s security? Is normal people’s security counted towards national security? Is that what people want?
What a great way to encourage apple and google to move their operations offshore.
If the Justice Dept. takes on Apple over this, I predict Apple will not stand down. They’ll fight it in court and Comey and company will get a nice smackdown regarding the Bill of Rights. I DARE them to pick this fight. Or, if Apple fights and loses, we’ve entered into facism and it’s time to declare the great American experiment as over and failed.
Nope, not over and failed. They (federal government and POTUS) will have planted the seeds for another revolution if they’re not careful.
We’ve entered into fascism no matter what Apple/Google does or doesn’t fight.
Question I have is, let’s say somehow corps decided not to play the gov game and do things their own way, thus basically becoming a gov of their own — the way society is now, isn’t that also more or less also providing a semi-guaranteed entree to fascism (just with different leaders)?
Liability?
So the arms manufacturer in the US whose guns end up in Irak in the ends of ISIS could be liable too, then. Since neither Apple nor gun manufacturers in the US intended their tools to be used by terrorists.
Getting tired of this bs the government is throwing at us to violate our rights.
Never mind the guns. How about all those Toyota pickups they’re mounted on?
Authorities don’t get power by relating facts.
“Collect it All”, “Process it All”, “Exploit it All”, “Partner it All”, “Sniff it All” (for us) ™ … and then be “responsible” for it all … (again, for us …)
USG is so stupid that at times it is virtually impossible to figure out what they could possibly have in mind:
1) Who, what determined who is a “terrorist” or not?
2) Who, where, how would you draw the line?
3) Can’t they understand they “terrorists” will find a way to communicate, which will be harder for them to monitor?
By the way, they have been doing exactly this in the US. They tell your telco and ISP to stop offering you the services you are paying for. I have been using my roommates since then. Still they will always find ways to mess with it
RCL
>“Collect it All”, “Process it All”, “Exploit it All”, “Partner it All”, “Sniff it All” (for us) ™ … and then be “responsible” for it all … (again, for us …)”
Which is what this is for.
http://motherboard.vice.com/read/obamas-new-executive-order-says-the-us-will-build-an-exascale-supercomputer
As we technical people are fond to say: “you can’t fix stupid”. Actually, they should have been able to have fixed it already if they could
there they go
RCL
Exactamundo!
I guess the US constitution is lending support for terrorism by legalizing freedom of speech. Someone must do something about this.
Hear, hear…
That piece of ‘paper’ is old anyway. It should be digitised then burnt for fuel — modernise everything! Then, over a long-enough time span, we won’t have to be reminded of what has been lost nor have any pesky ideals to aspire to.
That’s why Obama/Bush/Cheney/Clinton et al. have been so focused on obliterating the constitution, and horrendously successful, at that.
Why is our information not sufficiently secure from theft and illicit use? There is a clear technological answer to securing our information both in transit and at rest, but the logic of Wittes’s article clearly articulates that our information is not sufficiently secure from theft and illicit use because of politics, state power, and ideology (Logic of those who worship at the religion of state power)
Anybody who provides any free services could be prosecuted under this theory. Is broadcast television liable for providing advertising-supported comedy to terrorists, improving their morale?
…Waits for American propaganda films like ‘Zero Dark Thirty’, ‘Sniper’, various films about the Chinese and Norks as threats, and the like, to be considered morale boosters. I figure I’ll be waiting a long long time.
Does this mean that Wittes’ and Obama’s next target will be the manufacturers of pressure cookers? How about the manufacturers of box cutters or carpet knives? How about kitchen utensils in general. All of those items, and thousands more, could be used for a “terrorist” act. If and when that might happen are the “weapons” going to be traced back to the manufacturers and also the retail sales outlets so that they can be prosecuted for “having violated the criminal prohibition against material support for terrorism.”
Local department store has a big sale on pressure cookers right now. I considered buying a few so I could give them as Christmas presents and then another for myself (I’d really like one; I hate cooking).
Then I went ‘oh’.
Pro-privacy PR for Apple and Google?
“Microsoft, Apple, Google and Facebook among firms supplying data to NSA, FBI in secret program”
http://www.thestar.com/news/world/2013/06/06/nsa_fbi_get_data_from_nine_internet_giants_in_secret_program.html
“Apple issues statement on customer privacy in wake of PRISM allegations”
http://bgr.com/2013/06/17/apple-statement-nsa-prism-privacy/
“Google in bed with U.S. intelligence”
http://www.homelandstupidity.us/2006/02/22/google-in-bed-with-us-intelligence/
Lets suppose for the sake of augment that our silicon valley tenant farmers harvesting data were really really shocked when they learned about this stuff, ok?
Their engineers should have noticed their web servers were leaking capacity, somehow, through ports that weren’t configured for service.
If one simply reverses the string in an email, example:
“Hello there” ..
to
“ereht olleH” …,
it’ll drive the pocket protector-ed quasi geeks working for the snoop shops crazy.
I guess the obvious question is why Apple wouldn’t be liable even if it did not encrypt all transmissions? They are “knowingly” providing a communication means that terrorists can use to organize terrorist activities, encrypted or not. Similarly all of the ISPs between Apple and the so-called terrorist are enabling the terrorists simply by providing a communication means. Cisco, who provides routers to ISPs, is enabling terrorists by providing technology that can pass packets for the ISPs passing Apple’s traffic. Food manufacturers supply food that, because they are taking no special effort to prevent, could be used to feed terrorists.
In fact, Wittes, by not choking the living life out of every human on the planet, is facilitating terrorism by sitting in an office writing banal posts, when some of those silly people might blow Americans up.
I don’t mean to trivialize terrorism, but in a country that allows gun manufacturers to distribute guns with almost no tracking whatsoever, well, it seems a little crazy to imply encrypting communication, as supported by the 4th Amendment, should somehow be the first place to look when looking for someone to be “liable”.
Nailed it. As the quality and quantity of unique submissions from commenters
here expands and improves the greater discretion the rest of us may exercise selectively addressing the unaddressed…
So you support the 4th Amendment, but not the 2nd? There is wisdom in preventing the government from knowing where all the guns are.
Our second ammendment rights are as sacred as any other but “collect it all”
means that every gun sale and resale
from your local gun show across the border to fast and furious is registered
recorded and identified. Pretty sure that NRA “Gun Registry” ship has sailed.
That’s nonsense. Wittes is expressing a legal opinion based on what he’s laid out (“All that said”). The essay is a legal analysis, and, to the degree that it’s well-reasoned, it will be just as useful to Apple and privacy advocates as it will be to the government. Reading a person’s biases (inferred or admitted) into everything they write is unfair and unproductive.
Most legal opinions I have seen don’t begin, “it’s a bit of a puzzle..”.
Wittes ramblings may not have much of a legal basis, but they do have a purpose. He is angling for some well heeled IT companies to provide funding to the Brookings Institute to devise clever counter-arguments. I doubt his bluff will pay off, but you never know.
I don’t worry too much about a person’s biases, since assuming that people act out of self interest seems to generally function as an acceptable working hypothesis.
It’s a legal opinion within a legal analysis published on a blog, not submitted to a court.
There’s also this, at the end of McLaughlin’s article:
And he followed that up with this tweet:
So, Wittes is emphatic that he’s not taking a side in his analysis, and there is nothing in the text that indicates otherwise.
(*) As McLaughlin noted, this quote had to be corrected. Originally, she omitted the second “not”. I guess that explains why she ends with a quote that contradicts her assertion about “personal sentiment”; she decided to live with her mistake rather than delete the quote entirely. The article is such a mess, it hardly makes a difference.
Of course not. He doesn’t have a client yet, so he’s attempting to show he can take either side of the argument. As a lawyer, you want to keep the pool of prospective clients as large as possible. The exception is if you are so good in a specific area that you can afford to fish in a smaller pool.
That’s fine. But what he’s really doing is just teasing out the implications of the “material support” law with regard to encryption. Unless an error can be found in his reasoning — which is impossible without reading his argument — the animosity that’s being directed at Wittes should instead be directed at those who passed and signed the law.
“It’s a legal opinion within a legal analysis published on a blog, not submitted to a court. ”
That’s not a legal opinion. That’s an opinion.
I accidentally replied to this here.
Replying here — I wouldn’t even call what he did a legal analysis. I wouldn’t consider it analysis by any means. It really was pretty much just him spouting opinion, and I’m not sure it was even legal opinion. Most of it was just unsubstantiated and he’s clearly shopping around for a wealthy sponsor. I’m just going with ‘blog piece’ (is ‘piece’ the correct word? I’m never sure what the noun should be in any blog piece only the modifier ‘blog’, but you get my gist I assume).
To be fair, though, the governments have been so fast and loose with what’s “legal” that calling anything ‘legal’ is getting difficult. Blog pieces like his often stoke fires when they suggest any sort of governmental expansionism as a *possibility*; someone’ll want it. Look at the expansion of RICO.
As I wrote in another comment in the followup that quoted Snowden my suspicion is this won’t really hurt the big companies, it’ll favour them — it’ll be used to go after all the other companies that might compete (or just want to be in business)).
“It’s a legal opinion within a legal analysis published on a blog, not submitted to a court.”
Let me suggest a modest correction.
It is an opinion posing as a “legal opinion” within an analysis posing as a “legal analysis” …
The similarity between the terms warfare and lawfare is anything but accidental. When Clausewitz said “War is a mere continuation of politics by other means”, he was suggesting the equivalence of war and politics. In the case at hand, warfare and lawfare are equivalent. Lawfare is merely warfare by other means. And the war in which Lawfare is engaged is Israel’s Zionist war against any and all of Israel’s adversaries, critics, and competitors.
Contrary to popular opinion, there are no rules in warfare. That notion itself is one of the first deceptions of warfare. There is but one “fact” and one alone in war.
And that “fact” takes precedence over all other considerations, and that “fact” is victory. Winning is everything.
In civil affairs for the most part, telling the truth is presumed. It is the accepted standard of conduct. Truthfulness, mutuality, and cooperation are the tools of productive relationships.
Warfare, in stark contrast, being the ultimate condition of non-cooperation, has as its standard of conduct deception, secrecy, and spying (and of course killing). Lawfare is just warfare by other means, and it is on this basis and in this context that we should examine the activities and assertions, the rhetoric and analysis, of the Lawfare organization.
The lawfare people are masters of faux legal rhetoric. Nonpareil in the art of “Truthiness”. So you have to look hard, read very carefully, and think very precisely to avoid being manipulated by the deceitfulness. One small example from the case at hand:
Earlier on in the article we find the this:
“Benjamin Wittes, editor-in-chief of the LawFare blog, suggested that Apple could in fact face that liability if it continued to provide encryption services to a suspected terrorist.”
and then this:
“One way to avoid such liability, Wittes and Bedell argue, would be to end encrypted services to suspected terrorists.”
But then, towards the end of the article we find something ever so slightly different in the following quote from Wittes:
“All that said,” he and his coauthor wrote, “it’s a bit of a puzzle how a company that knowingly provides encrypted communications services to a specific person identified to it as engaged in terrorist activity escapes liability if and when that person then kills an American in a terrorist incident that relies on that encryption.”
Can you spot the difference?
The first two excerpts from the article speak of “terrorist suspects”. This is a broad brush in our current climate of corrupted definitions. In one instance it translates to any Muslim or any person connected to them within three degrees of separation. But it also includes as well, any person anywhere of any religion or ideological bent who has ever made any comment critical of Israel or of the National Security State . This is the open door to the disposal of the Fourth Amendment and the current National Security State paradigm of comprehensive, suspicion-based, and warrantless spying on everyone. This is aimed at supporting and justifying precisely the unconstitutional and lawless authoritarian overreach which democracy and privacy advocates condemn.
Now look at that last quote.
Quietly, with masterful stealth, he who was once a mere terrorist “suspect” has now become:
“…a specific person identified to it as engaged in terrorist activity…”
How very clever to close one’s argument by imperceptibly redefining the target as someone of definitive criminality. Would it be unreasonable for me to suggest that a “person identified as engaged in terrorist activity” would also be someone subject to very close surveillance if not immediate arrest?
The depth of the problem we face here in the use of propaganda and subversion in time of war is vastly greater than this single attack on our freedoms by Lawfare. A centerpiece of this corruption of language and rationality is the one-size-fits-all indictment of the (now virtually meaningless) term “Terrorist”. Like “Witch!”, or “fire!” in a crowded theater, or “Commie!”, or “anti-Semite!”, or its current near equivalent “Muslim”, “Terrorist!” is the shriek that inspires instantaneous hysterical fear, sets the lynch mob in motion, requires no evidence or explanation, and disposes of whatever tissue of reality the idea of the presumption of innocence might have once theoretically possessed.
We live dangerously within a tapestry of lies.
Oh, and the other sneaky little fallacy is in the deceitful interpretation of the principle of “material support”. It may very well be that Lawfare has in some prior court case persuaded the court to find — in error — that inadvertent material support is just as actionable as intentional material support. However it is my view that any reasonable — ie non-Zionist — jurist would interpret the material support statute as intending to criminalize that aid to militant organizations which is given intentionally and knowingly in support of their militant activities. As other commenters have noted there is an absurdity in assuming that car dealers and grocery stores are also giving material support to anti-American and anti-Israeli militant organizations when they sell them cars or food. Service providers in all the corners of our society engage in unremarkable coventional commerce. Well duh! They offer their services to everyone as part of the normal activity of daily life. They are not nor should they be engaged in worrying about what someone is going to do with their car or their cantaloupe. There are police and spooks for that.
It is entirely self-evident that material support means ***deliberate***, ***intentional*** support for the prescribed militant activities, not inadvertent support arising from being in the world and participating in everyday commerce.
Yeah, that’s a harmless little bit of imprecision by Wittes. He’s previously made it clear that, in his hypothetical, Apple has received a warrant for the “communications content” of a customer who is merely suspected:
The reason the customer is no longer a suspect at the end of the essay is because there’s only liability if Apple: 1) continues to provide encryption services after receiving the warrant, and 2) the suspect goes on to actually commit an act of “international terrorism”. (Plaintiffs sue Apple for damages in accordance with “the civil terrorism remedies provision of the Antiterrorism Act”.)
Wittes’ analysis CANNOT be understood from reading McLaughlin’s article. You must read the original.
“Yeah, that’s a harmless little bit of imprecision by Wittes. ”
You’re quick to call it a ‘harmless little bit of imprecision’. To me it’s a sneaky and likely inadvertent indicator of quite definitive bias.
That is a very, very terrific post.
The major fallacy in Wittes’ arguments is that it implies the US government itself is not an authoritarian national surveillance state; when in all reality the US government is an authoritarian national surveillance state with respect to the natural law treatment of human civil liberties.
http://wp.me/p4X83e-d7
The terrorists couldn’t communicate if someone hadn’t taught them to read and write. So I hope they will be prosecuting elementary school teachers too. Language is one of the most dangerous human inventions ever. So it should be reclassified as top secret, and only taught on a need to know basis.
They definitely need to ban all paper and writing implements. Scum like Hammermill and Bic knowingly provide their products to terrorists who can use them to pass communications, then eat such communications so as to thwart surveillance and warrants. If that isn’t literally material support for terrorism I don’t know what is.
Hm. So you’re saying we need to outlaw stomachs then? Or only stomach acid?
It’s a legal opinion in the sense that it’s an opinion about the law (as it might apply to Apple and its end-to-end encryption service). My point is that, based on what he wrote, there is zero justification for McLaughlin’s claim that Wittes “left little doubt about his personal sentiment”. That’s nonsense. What he wrote is just straightforward legal analysis, and it should be evaluated on its own merits. It’s McLaughlin who is flaunting her “personal sentiment”.
Prosecuting/persecuting teachers; thats what Obama’s Secretary of Cannon Fodder, Arne Duncan, and his brother in arms, Scott Walker, and a host of others, including Michelle Rhee, and Billy-boy Gates have been doing for years. There is purpose behind the ongoing destruction/privatization of the American education system. An educated, aware, communicative populace that is capable of rational thought and analysis, is a large painful thorn in the side of dictatorial/plutocratic/warmongering ambition.
that was the part that made me crack in laughters …
Who the eff is il Duce?
Il Duce is the Shakespeare of TI!
RCL
Why is that tweet quoted? As Wittes tweeted in reply — “uh no. We specifically reject that theory…” — it’s a complete misrepresentation of what was written:
This, from early in the article, is true:
So, why link to a statement that is clearly inaccurate?
The actual statement is even more ridiculous than the position attributed to Wittes by the CDT summary. It is equivalent to asserting that Ford is liable for continuing to provide transportation services to a suspected terrorist who bought their cars.
It’s equivalent to providing services essential to the operation of the car after being informed by the govt that it’s being operated by a suspected terrorist “to help further his aims” (emphasis in original):
But whether you’re right or not, it’s not an excuse for Wittes to be misrepresented. The opinion that was attributed to him is one that he explicitly rejected in the essay. It should not have been quoted.
This is a low-blow. More and more each day I’m reminded of J Edgar Hoover’s brand of political speech.
The real solution:
Companies need to stand up tall and say “fuck you” in the face of the threat to encryption.
The way Comey speaks about the “problem” he really has the appearance of an uneducated hick. And Google needs to say “there there, does some need nap time?”
If the DOJ ever issues a legal threat such as this to one of these companies, they need to fight it tooth and nail in court. And if the court find them guilty, well then they just need to start defying the “law”. How far down do we have to bend over before we stand back up?
Incidentally, I think we can find the DOJ guilty of providing material support to terrorists if they ban end-to-end encryption, seeing as how that would dramatically undermine the national security. I don’t care how much of an “expert” you are in “law enforcement”, you can’t defy mathematics and all the scientists agree, what the government is asking for is not possible. End of story. If Comey succeeds in outlawing end-to-end encryption, I think that would designate him a terrorist, and a very dangerous one at that.
Only a couple of problems with what you wrote.
1) Not your fault, but the article’s: The government never made these statements. This article is based on a blog piece by Wittes and Bedell, not by anyone in the government. The concatenation and extension to this being the view of the Obama administration or something they would do is entirely Jenna McLaughlin’s.
2) You’re absolutely right, you can’t defy mathematics. And one of the fundamental and most basic principles in mathematics is that something is only true or not true when there is a mathematical proof either way. It doesn’t matter one zillionth of an iota whether anybody or everybody “agrees”.
Google processes emails for aggregate (and maybe not so aggregate) information, it’s in everybody’s click contract that they signed with the company forming a gmail account. Not only that, they do so for many people using android systems when those systems require being logged into their gmail accounts to use the device. Do you think Google can generate aggregate data from AES encrypted source? If so, why? And if not, then what exactly is Google’s business model in an end-to-end world? So again, what do you mean by “strong encryption” what do you mean by “end-to-end encryption” and what do you mean by “secure”? What endpoints? Secure from whom?
RE 1) I’m aware this article addresses the comments of some pundit who has been spewing nonsense since Snowden. I was speaking generally to the climate of official government speak recently on the topic. Comey makes outrageous comments weekly on this topic now.
RE 2) I’m well aware of google’s toxic business, that is why I avoid their services when possible. I do my own encryption and decryption and would never trust a website to do that for me. HA, I don’t use own a smartphone, I can’t imagine any time in my life when I will.
When I send an encrypted message over gmail I know they can not analyze it — or rather their analysis only returns that the message is encrypted, nothing more. Hypothetically, if Google were to offer true end-to-end encryption, the marketable purpose of that would be to attract people like me who are sick of corporate spying as much as government spying. I don’t think they offer end-to-end encryption, not in any meaningful way I have observed. What they have started offering is storage encryption on their “smart” devices. I use my own disk encryption on my computers, as I don’t own “smart” devices.
“Secure” means secure from third-parties. Any third party. I don’t want any one intercepting any of my communications. That is not unreasonable. Part of the problem is people are conditioned to believe that this desire is unreasonable — it is a big problem that all the digital abusers out there are winning the psychological war. “Only pedos and terrorists use encryption!” MY ASS.
But if you want me to get more specific: I don’t want criminals intercepting my messages. The DOJ is one of the biggest criminal organizations that exists today, and I definitely don’t want state-sponsored criminals to intercept my communications. Look up COINTELPRO to understand why.
The internet was meant to set us all free, that was the promise. But somewhere between 9/11 and the rise of “smart” phone culture that promise faded very fast. Now they’re talking about “the internet of things”, HA, are you all out of your minds??
What a stupid perversion of the internet. We’re not curing cancer, we’re not curing AIDS, we’re not doing any of the scientific things the internet was meant to foster. Our “best and brightest” are getting jobs at facebook and google — and they’re coming up with a way to remotely unlock your house door! I’m not impressed, and adopters of this technology are naive beyond pity.
They already Internet-of-thinged Michael Hastings some time ago (as part of a pilot project?):
// __ In Response to Theories on Michael Hastings’ Fatal Crash
~
youtube.com/watch?v=yUC3GFDoO4s&hd=1
~
USG is already repurposing the apartments of targeted individuals as dungeons:
https://ipsoscustodes.wordpress.com/2015/05/27/zersetzung-made-in-u-s-a/
so, in the near future prisons would be redundant and landlords are giving people RFID devices as the only way to open the entrance gate to their buildings. “Imagine!” just, “Imagine!” as Lennon would say how we will be living in the years to come
RCL
Unfortunately Hastings didn’t know what a Faraday cage was, nor did he know he didn’t really own his car.
All cars nowadays are computerized and their controls can be -very- easily hacked. As you could do with anything you can connect to wirelessly (wireless must air their presence …)
// __ SecurityWeek.Com – Barnaby Jack Hacks ATM At Black Hat
https://www.youtube.com/watch?v=qwMuMSPW3bU
~
https://en.wikipedia.org/wiki/Barnaby_Jack
“According to the coroner, Jack died of a cocktail of prescription drugs and cocaine.[17]”
~
Had Hastings known, we could have safely encased the controls of his car in some metallic, surface sheet, without affecting its functioning at all. Cars are used to drive you around, right? Not to emit its geolocation and every single variable describing its functional state including the way to hack its controls.
RCL
“HA, I don’t use own a smartphone, I can’t imagine any time in my life when I will.”
The minute the market offers no other options (and that time is soon), you won’t really have a choice in the matter if you want to have a telephone at all unless you go VoIP, which itself is highly analysable, on a highly analysable backbone. Was a time noone could imagine touchtone — now good luck finding a rotary. Will be a time when you can’t get on the phone network at all even if you keep some old ones handy (unlike the rotary situation); mobile phone communications isn’t agnostic. Just to prepare you a bit for the future. :)
Mine’s a refurbished 1954 Bakelite series standard black phone.
It’s still a beautiful piece of engineering even if there’s no place to use it anymore. We did use it for 13 years back when. It’s got all sterling silver contacts, and the case is so hard that you can throw it at a wall and the wall will break.
Ah, I love those. Great doorstops, or weapons. But people gotta have their non-fault-tolerant, disaster-unequipped soft phones that stop working when you really need em. We’re so going backwards.
Re: RE 1) Benjamin Wittes has been “spewing nonsense” on the Lawfare blog since he co-created the site in 2010, nothing to do with Edward Snowden, who was then working for Dell in Japan. Comey may make outrageous, or even not outrageous comments on encryption, but he isn’t connected to Lawfare blog, and he’s never made a comment as far as I know about declaring Apple or Google to be material supporters of terrorism.
Re: RE 2) The point wasn’t “google’s toxic business”, the point was that their business model, from which they derive nearly all of their income, is antithetical to end to end encryption. They announced the stunt to follow Apple’s publicity stunt. That was because Apple very clearly isn’t that interested in encryption either, they just needed to look like the most secure possible carrier on the internet so they could launch their Apple Pay in the face of having been hacked for the Jennifer Lawrence photos. My question to you was do you really think they will implement genuine end to end encryption when their business model depends on being able to read what’s written?
You do your own encryption and decryption? Meaning what? Did you design and build it yourself? I don’t use a smartphone either. Doesn’t make me an expert on encryption. BTW, I actually can imagine in my lifetime designing and building my own encryption.
Re: the rest of it) Attracting “people like me” isn’t Google’s business. Google’s business is attracting the people who want to suck up your information and use it to sell you stuff. Why should I look up COINTELPRO? To take a nostalgia trip down memory lane? I was around when the Church committee convened. Secure doesn’t mean secure from any third party. It means “takes longer to crack.” And that’s all. Do “criminals” include carriers?
“The internet was meant to set us all free, that was the promise.” Really? Who promised that? The promise was that the sharing of information would make us innovative and strong. I know that for the same reason that I don’t have to look up COINTELPRO. I am not a subscriber to the fantasy of the Internet of Things.
The perversion of the internet came about in stages, and the privatization and commercialization of the internet was built-in to its plans before it officially became “the internet”. The perversion of its use to collect information came out of the TV/Video industry in the mid-1990s, and probably the first corporation to start selling “user information” in a big way was Blockbuster Video. The demands that users put on fully internet companies to offer their services free of charge are what led to those companies adopting an advertising model for revenue and eventually becoming large scale information brokers.
We actually are gradually curing various cancers, and the AIDS epidemic has peaked. The internet played a role, but it was never intended to, and didn’t, solve those problems. Many of us are still doing lots of scientific things using the internet. You’re not impressed with what the 20-somethings come up with at corporations that are forced by their consumer bases to lie about what they are in business for? Start paying for what you use.
It isn’t that I don’t agree with you about quite a lot of what you emote. But you really do need to start using the internet to do “scientific things” and research some of those “facts” of yours. Nobody else is going to do it for you, including here at The Intercept.
O’Bomber next plans to remove all oxygen from the atmosphere so terrorists can’t breathe.
Food for thought: They also walk on earth. Seriously. I have seen the foorage.
By this rule, you could sue a milk producer or grocery store for selling milk, on the premise that is provides “support” for the terrorist in the checkout line. Great legal reasoning, there, dontcha think?
I guess you haven’t heard about those raw dairy and artisinal cheese terrorists the law has been after for a while now. Okay, granted it’s across-the-board not just supplying to ‘terrorists’…
Hope Firstlook is paying you overtime as you keep on producing worthy articles.
I use Tor and if the thin edge of the wedge is driven I can see Firstlook falling under the same unbrellla of forced complicance.They want to see all and know all .
I agree. Jenna, you’ve been on fire this week! Just don’t work yourself to death.