Privacy

An article in The Progressive by Matthew Rothschild worries that the FBI’s InfraGard program is deputizing businesses, training them for martial law, and giving them a free pass to “shoot to kill.” Rothschild writes: The members of this rapidly growing group, called InfraGard, receive secret warnings of terrorist threats before the public does—and, at least on one occasion, before elected officials. In return, they provide information to the government, which alarms the ACLU. But there may be more to it than that. One business executive, who showed me his InfraGard card, told me they have permission to “shoot to kill” in the event of martial law.Nonsense. I’ve been a member of the Phoenix InfraGard Members Alliance for years. It’s a 501(c)(3) organization sponsored by the FBI whose members have been subjected to some rudimentary screening (comparable to what a non-cleared employee of the federal government would get). Most InfraGard meetings are open to the general public (contrary to Rothschild’s statement that “InfraGard is not readily accessible to the general public”), but the organization facilitates communications between members about sensitive subjects like vulnerabilities in privately owned infrastructure and the changing landscape of threats. The FBI provides some reports of threat information to InfraGard members through a secure website, which is unclassified but potentially sensitive information. InfraGard members get no special “shoot to kill” or law enforcement powers of any kind–and membership in the organization is open to anyone who can pass the screening. As Rothschild notes in the first sentence of his article, there are over 23,000 members–that is a pretty large size for a conspiracy plot. At one point in the article, Rothschild quotes InfraGard National Members Alliance chairman Phyllis Schneck referring to a “special telecommunications card that will enable your call to go through when others will not.” This is referring to a GETS card, for the Government Emergency Telecommunications Service, which provides priority service for call completion in times of emergency or disaster to personnel who are working to support critical infrastructure. There is a similar service for wireless priority (Wireless Priority Service), and yet another for critical businesses and organizations (like hospitals) which need to have their telecommunications service re-established first after a loss of service due to disaster (Telecommunications Service Priority). These programs are government programs that are independent of InfraGard, though InfraGard has helped members who represent pieces of critical infrastructure obtain GETS cards. The ACLU’s concern about InfraGard being used as a tip line to turn businesses into spies is a more plausible but still, in my opinion, unfounded concern. Businesses are not under any pressure to provide information to InfraGard, other than normal reporting of criminal events to law enforcement. The only time I’ve been specifically asked to give information to InfraGard is when I’ve been asked to speak at a regular meeting, which I’ve done a few times in talks that have been open to the public about malware threats and botnets. Check out the comments in The Progressive for some outright hysteria about fascism and martial law. I saw similar absurdity regarding the Department of Homeland Security’s TOPOFF 4 exercise, which was a sensible emergency planning exercise. Some people apparently are unable to distinguish common-sense information sharing and planning in order to defend against genuine threats from the institution of a fascist dictatorship and martial law. Now, I think there are plausible criticisms to be made of the federal government’s use of non-governmental organizations–when they’re used to sidestep laws and regulations like the Freedom of Information Act, to give lots of government grant money to organizations run by former government employees, to legally mandate funding of and reporting to private organizations and so forth. The FBI has created quite a few such organizations to do things like collect information about missing and exploited children, online crime, and so forth, typically staffed by former agents. But personally, I’ve not witnessed anything in InfraGard that has led me to have any concerns that it’s being used to enlist private businesses into questionable activities–rather, it’s been entirely devoted to sharing information that private businesses can use to shore up their own security and for law enforcement to prosecute criminals. UPDATE (February 9, 2008): The irony is that Matthew Rothschild previously wrote, regarding 9/11 truthers: We have enough proof that the Bush administration is a bunch of lying evildoers. We don’t need to make it up.He’s right about that, but he’s now helped spread nonsense about InfraGard and seriously damaged his own credibility. I find it interesting that people are so willing to conclude that InfraGard is a paramilitary organization, when it’s actually an educational and information sharing organization that has no enforcement or even emergency, disaster, or incident response function (though certainly some of its members have emergency, disaster, and incident response functions for the organizations they work for). UPDATE (February 10, 2008): I suspect tomorrow Christine Moerke of Alliant Energy will be getting calls from reporters asking what specifically she confirmed. I hope they ask for details about the conference in question, whether it was run by InfraGard or DHS, what the subject matter was, and who said what. If there’s actually an InfraGard chapter endorsing the idea that InfraGard members form armed citizen patrols authorized to use deadly force in time of martial law, that’s a chapter that needs to have its leadership removed. My suspicion, though, is that some statements about protection of infrastructure by their own security forces in times of disaster or emergency have been misconstrued. Alliant Energy operates nuclear plants, nuclear plants do have armed guards, and in Arizona, ARS 13-4903 describes the circumstances under which nuclear plant security officers are authorized to use deadly force. Those people, however, are thoroughly trained and regularly tested regarding the use of force and the use of deadly force in particular, which is not the case for InfraGard members. UPDATE (February 11, 2008): Somehow, above, I neglected to make the most obvious point–that the FBI doesn’t have the authority to grant immunity to prosecution for killing. If anyone from the FBI made that statement to InfraGard members, they were saying something that they have no authority to deliver on. UPDATE (February 12, 2008): I’ve struck out part of the above about the ACLU’s concern about spying being unfounded, as I think that’s too strong of a denial. There is a potential slippery slope here. The 9/11 Commission Report pointed to various communication problems that led to the failure to prevent the 9/11 attacks. These problems included failure to share information (mainly from the CIA to the FBI and INS), failure to communicate information within the FBI (like Phoenix Special Agent Ken Williams’ memo about suspicious Middle Easterners in flight schools), and failure to have enough resources to translate NSA intercepts (some specific chatter about the attacks was translated after the attacks had already occurred). As a result, the CIA has been working closely with the FBI on counterterrorism and counterintelligence at least since 2001. (Also see Dana Priest, “CIA Is Expanding Domestic Operations,” The Washington Post, October 23, 2002, p. A02, which is no longer available on the Post’s site but can be found elsewhere on the web, on sites whose other content is so nutty I refuse to link, as well as this January 2006 statement from FBI Director Robert Mueller on the InfraGard website, which includes the statement that “Today, the FBI and CIA are not only sharing information on a regular basis, we are exchanging employees and working together on cases every day.”) The slippery slope is this–the CIA is an organization which recruits and develops in its officers a sense of flexible ethics which has frequently resulted in incredible abuses, and which arguably has done more harm than good to U.S. interests. (My opinion on the CIA may be found in my posts on this blog labeled “CIA”; I highly recommend Tim Weiner’s Legacy of Ashes: The History of the CIA.) Some of that ethical flexibility may well rub off on FBI agents who work closely with CIA case officers. (The FBI itself has also had a history of serious abuses, an objective account of which may be found in Ronald Kessler’s book The Bureau: The Secret History of the FBI.) And then, that same ethical flexibility may rub off on InfraGard members as a result of their relationships with the FBI (and potentially relationships with the CIA, as well). The intelligence community seems to have a hunger for more and more information from more and more sources, but it is already awash in a sea of information that it has trouble processing today. (It doesn’t help that the Army fires direly needed Arabic translators because they are gay.) The need is to accurately assess the information that it has, and ensure that bits and pieces aren’t cherry-picked to produce desired conclusions, as well as ensure that information isn’t sought or assembled to serve personal and political ends of particular interests rather than combatting genuine threats to the country and its citizens. My recommendation is that all InfraGard members read Kessler’s The Bureau, Weiner’s Legacy of Ashes, and view the film that won the 2007 Academy Award for best foreign film, “The Lives of Others,” to help innoculate them against such a slippery slope. UPDATE: Amy Goodman interviewed Matt Rothschild for “Democracy Now!” on Wisconsin Public Television, in which it is pretty clear to me that Rothschild is exaggerating something he doesn’t understand–what he cites as evidence doesn’t support what he claims. Here’s a key excerpt, see the link for the full transcript: MR: […] And one other member of InfraGard [Christine Moerke of Alliant Energy] confirmed to me that she had actually been at meetings and participated in meetings where the discussion of lethal force came up, as far as what businesspeople are entitled to do in times of an emergency to protect their little aspect of the infrastructure. AG: But just to clarify, Matt Rothschild, who exactly is empowered to shoot to kill if martial law were declared? The business leaders themselves? MR: The business leaders themselves were told, at least in this one meeting, that if there is martial law declared or if there’s a time of an emergency, that members of InfraGard would have permission to protect—you know, whether it’s the local utility or, you know, their computers or the financial sector, whatever aspect. Whatever aspect of the infrastructure they’re involved with, they’d have permission to shoot to kill, to use lethal force to protect their aspect of the infrastructure, and they wouldn’t be able to be prosecuted, they were told. […] You know, this is a secretive organization. They’re not supposed to talk to the press. You need to get vetted by the FBI before you can join it. They get almost daily information that the public doesn’t get. And then they have these extraordinary, really astonishing powers being vested in them by FBI and Homeland Security, shoot-to-kill powers. I mean, this is scary stuff. MR: The business leaders themselves were told, at least in this one meeting, that if there is martial law declared or if there’s a time of an emergency, that members of InfraGard would have permission to protect—you know, whether it’s the local utility or, you know, their computers or the financial sector, whatever aspect. Whatever aspect of the infrastructure they’re involved with, they’d have permission to shoot to kill, to use lethal force to protect their aspect of the infrastructure, and they wouldn’t be able to be prosecuted, they were told.It looks to me like the following transformation has occurred: 1. At a DHS conference on emergency response, somebody asks if owners of critical pieces of infrastructure should be expected to use deadly force if necessary to protect it (e.g., a nuclear power plant). 2. Somebody at DHS answers yes. They may even add that in some cases the law provides specific justification for use of deadly force (as in the Arizona statute I cite above). 3. Matt turns that into a general right to “shoot-to-kill” in times of martial law by any InfraGard member. 4. The blogosphere turns that into roving citizen patrols unleashed on the nation as the Bush hit squad after declaration of martial law. I don’t see his key source–Christine Moerke–confirming anything beyond #1 and #2. Note other exaggerations and contradictions–Rothschild claims that InfraGard is highly secretive and selective, yet has quickly grown to over 23,000 members and has multiple public websites. He fails to note that most InfraGard meetings are open to the general public, or that it has been discussed in many articles in the national press over the last decade. Rothschild speaks of “business leaders,” which the blogosphere has turned into “CEOs,” yet I suspect the most common “business leader” represented in InfraGard is an IT or physical security manager. UPDATE (February 15, 2008): The FBI has issued an official response to Rothschild’s Progressive article (PDF), which says, in part: In short, the article’s claims are patently false. For the record, the FBI has not deputized InfraGard, its members, businesses, or anything else in the program. The title, however catchy, is a complete fabrication. Moreover, InfraGard members have no extraordinary powers and have no greater right to “shoot to kill” than other civilians. The FBI encourages InfraGard members – and all Americans – to report crime and suspected terrorist activity to the appropriate authorities.The FBI response also states that Rothschild has “refused even to identify when or where the claimed ‘small meeting’ occurred in which issues of martial law were discussed,” and promises to follow up with further clarifying details if they get that information. UPDATE (February 25, 2008): Here’s another blogger with a rational response to The Progressive article. UPDATE (March 2, 2008): Matthew Rothschild has responded to the FBI’s response on Alex Jones’ Info Wars blog, and he stands behind every word of his original article. He doesn’t display any knowledge of or response to any of the criticisms I’ve offered. ...

The Washington Times reported on December 21 that several years ago, Chinese intelligence successfully subverted the National Security Agency in Hawaii. First, by creating a company based in Hawaii to do Chinese translations which successfully obtained government contracts with the NSA to translate intercepted Chinese communications. The intercepted communications included sufficient information to identify the sources, giving the Chinese the ability to control what information was obtained by the NSA either by preventing significant information from being carried over by the compromised channel or by introducing disinformation. This shows one of the problems that faces a world superpower whose own language is commonly used and which does little or nothing to encourage its citizens to learn other languages. Understanding communications in other languages require the assistance of translators who may be working for the enemy, and the enemy can almost get away with speaking freely anywhere while being overheard, since the likelihood of comprehension is so small. The more communications you need translated, the more translators you need, and the greater the likelihood of compromise. UPDATE (January 2, 2008): Noah Schachtman at Wired and Jeffrey Carr at IntelFusion cast some doubt on this story. ...

Declan McCullagh live-blogged the U.S. House of Representatives hearing on “Yahoo Inc.’s Provision of False Information to Congress," which was about an incident in which Yahoo responded to a subpoena from the Chinese government for the identity of a subscriber who turned out to be a Chinese reporter, who was convicted of leaking “state secrets." Anybody note anything ironic or hypocritical in these excerpts? 10:20 a.m. ET: Apparently, the Beijing State Security Bureau provided a document to Yahoo–similar to the FBI’s national security letters–to Yahoo China on April 24, 2004. It invoked the term “state secrets” when demanding information about Shi Tao. Callahan never saw the document, which was written in Chinese, before testifying last year. Lantos says Callahan should have demanded a translation before his testimony, and Yahoo should have known that any request invoking state secrets is suspect because “state secrets is a trick phrase used to fabricate phony but devastating (charges against an) innocent person who shares our values in an open and free society." 10:30 a.m. ET Now the two Yahoo execs are being asked to apologize to Shi Tao’s mother, who is sitting in a front row of the hearing room. Lantos: “I would urge you to beg the forgiveness of the mother whose son is languishing behind bars thanks to Yahoo’s actions.” I wonder if Lantos and other Patriot Act supporters will apologize to Americans like Brandon Mayfield (falsely jailed under the Patriot Act) or Sami al-Hussayen (a Webmaster who provided hyperlinks to Muslim sites and was prosecuted under the Patriot Act). 10:45 a.m. ET Rep. Chris Smith, the New Jersey Republican who was chairman of the Foreign Affairs panel last year, is now speaking. He’s saying that “Yahoo knew the police requests had to do with ‘state secrets.’” That may not be as descriptive as he (and the other panelists) seem to think. It seems to me that it’s a catchall term that’s probably invoked regularly by China’s security apparatchiks. It’s not like the police requests said “give us this information so we can put an innocent journalist in jail." 12:20 p.m. ET Now it’s Rep. Dana Rohrabacher, a California Republican: “Were any of them fired?” He’s referring to Yahoo employees. Rohrabacher again: “Are you going to comply with requests from authoritarian governments in the future?” Callahan replies: “We are looking at ways to operationally and legally structure the entity… so we would not have to do that." 12:52 p.m. ET Lantos again, to Yahoo’s Callahan, excerpted: “Morally you are pygmies… An appallingly disappointing performance. I think we cannot begin to tell you how disappointing Mr. Yang’s and your performance was… attempt to obfuscate and divert… outrageous behavior."Why don’t we see some of this moral outrage from Congress directed at the executive branch of the United States, at a time when 64% of the country disapproves and 50% of the country strongly disapproves of the president’s performance (beating Nixon’s worst performance)?

The Maricopa County Sheriff’s Office last night arrested Michael Lacey and Jim Larkin, owners of the Phoenix alternative newspaper New Times, for publishing a story under their bylines which revealed the contents of a grand jury subpoena received by the paper. Revealing the contents of a subpoena is a misdemeanor. Lacey and Larkin, who have long battled with Maricopa County Sheriff Joe Arpaio and County Attorney Andrew Thomas, wrote a story about the subpoena because they considered it an attack on the freedom of the press. The subpoena demanded records relating to all visitors to the New Times website over the last four years, including information about what websites they visited prior to the New Times website (i.e., referral URLs)–essentially, the request is for the complete website logs for the newspaper’s website for the last three years. It also demanded reporters’ notes and any other documents pertaining to stories about Arpaio for the last three years. Lacey and Larkin wrote that they believed their article to violate the law, but they published it as a form of civil disobedience in order to challenge the unconstitutional abuses of Arpaio, Thomas, and prosecutor Dennis Wilenchik. The trigger for the events which led to the subpoena (and the apparent event of interest given the dates in the subpoena) appears to be a New Times article from July 8, 2004 which commented on Arpaio’s commercial real estate investments and ended with Arpaio’s home address, but the paper’s criticism of Arpaio for mismanagement, inmate deaths, and grandstanding in front of TV cameras goes back many years more. Sheriff Joe used to have a dialup Internet account with Primenet, my former employer. At one point one of his assistants, Lisa Allen, contacted Primenet to attempt to get information about a subscriber who had left a critical comment on his website, without a subpoena. We declined to provide such information without a subpoena. UPDATE (October 19, 2007): County Attorney Andrew Thomas has announced that he has dropped the charges against New Times and dismissed special prosecutor Dennis Wilenchik. UPDATE (November 13, 2007): New Times ran an October 25 followup story. UPDATE (October 28, 2008): It has come out that the order for Lacey and Larkin’s arrest was given by Arpaio’s chief deputy David Hendershott, whom Arpaio allowed to retire so he could receive a $43,000/year pension, and hired him back as a civilian at his same $120,000/year salary. Hendershott now makes $177,486/year working for Arpaio. ...

There’s an interesting and entertaining article at Esquire about Brad Blanton’s Radical Honesty movement, which seems to me to take a good idea–being honest–too far into inappropriate sharing or “too much information.” I think even little white lies (and especially “bullshit”) can be extremely insidious, and should be avoided, but that doesn’t mean removing all filters between thought and speech. James Morrow wrote a 1992 novel called City of Truth in which he described a world where everyone always speaks the truth in a way quite similar to the radical honesty movement, but the main character finds a need to lie in order to save his son’s life. Plato and Machiavelli would agree with each other that no political leader could survive by adopting the radical honesty approach. I think that’s disappointingly true. (Via The Agitator.) ...

The Bush administration, commenting on Congress’ expansion of the Executive branch’s warrantless wiretapping powers without needing approval of the FISA Court, says that the legislation is “just advisory. The president can still do whatever he wants to do." Constitution? What Constitution? (Via Talking Points Memo.)

Julian Sanchez points out the staggering misrepresentation by those arguing that the recent increase in wiretapping power amounts to nothing more than an update of FISA procedures to reflect current technology. (Hat tip to Tim Lee at the Technology Liberation Front.)

Both houses of Congress have passed a bill that updates the Foreign Intelligence Surveillance Act (FISA) to allow warrantless wiretapping when at least one party is a foreigner, without any requirement that the foreigner be suspected of having connections to terrorists. Wiretaps in such cases do not require approval of the FISA court, only of the attorney general and the director of national intelligence. As Tim Lee at Technology Liberation Front observes: So let me get this straight: the White House says “we think we should be able to eavesdrop on virtually any domestic-to-foreign phone call without court oversight, based on the say-so of one of the president’s subordinates.” And the Democrats response was “Hell no! Warrantless spying should require the say-so of two of the president’s subordinates!”Arizona’s Congressmen voted along party lines except for Harry Mitchell, who sided with the Republicans in favor of the bill, which provides for this expansion of powers for the next six months. (UPDATE, August 8, 2007: Actually, McCain didn’t vote on this bill at all, it’s another of his no-shows.) Kudos to Pastor, Grijalva, and Giffords for voting against this. (Hat tip to Technology Liberation Front and Stranger Fruit.) UPDATE (August 7, 2007): Ed Brayton at Dispatches from the Culture Wars has more on how this bill has gutted any oversight of what the Executive branch is doing. ...

The New York Times editorialized that vice president Dick Cheney was the person who sent then White House counsel Alberto Gonzales and chief of staff Andrew Card to the hospital bedside of Attorney General John Ashcroft to try to get him to reauthorize the warrantless wiretapping program that the acting Attorney General James Comey and many Department of Justice staff (including Comey and FBI Director Robert Mueller) threatened to resign over. Larry King asked Cheney about it, and his response is that he had no recollection of such an event, and besides, he didn’t read the New York Times editorial. Sounds like a lie to me, and Larry King seems to suggest he thinks so as well. Talking Points Memo thinks they’ve identified a Cheney “tell." (And no, it’s not just that his lips are moving…)

There’s now much discussion in the blogosphere about former Deputy Attorney General James B. Comey’s testimony before Congress. Comey related that in 2004, the warrantless wiretapping program had come up for reauthorization–the previous authorization was due to expire the following day. Comey, filling in for Attorney General John Ashcroft, who was in the hospital for emergency gall bladder surgery, refused to sign Bush’s order for reauthorization. Bush secretly sent his White House Counsel Alberto Gonzales and Chief of Staff Andrew Card to Ashcroft’s hospital bedside to get his signature, but an aide to Ashcroft tipped off Comey. Comey rushed to the hospital, and obtained from FBI Director Robert Mueller a directive to Ashcroft’s security staff to not remove Comey even if Gonzales and Card insisted upon it. At the hospital, Ashcroft also refused to sign the reauthorization directive. Comey related that the entire senior staff of the Department of Justice, including himself and FBI Director Mueller, were prepared to resign over the issue. Had that happened–in an election year, no less–perhaps the outcome of that election would have been different. Bush consulted directly with Comey and Mueller, and gave them assurances that the program would be modified to comply with Department of Justice recommendations, and Comey signed the reauthorization several weeks later. It’s not clear whether it continued to operate without authorization for that period of weeks. A Talking Points Memo reader comments: ...