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Recent court ruling does NOT end NSA mass surveillance

In an important decision last week an appeals court in New York ruled that NSA collection of Americans’ phone records is unlawful. However, this does not put an end to NSA mass surveillance.

What the court ruling says:

  • NSA collection of metadata is in breach of the Patriot Act, going beyond its mandate.
  • Now it will be possible for others to sue the NSA.
  • The collection of metadata practice will not end here and now, even if it is deemed unlawful.
  • The ball is back with US politicians, now considering to extend the Patriot Act.

What it does not say:

  • That bulk collection of meta data is unconstitutional.
  • That this collection must come to an end.

The ruling is a step in the right direction. But in no way a final victory.

Read more:
• NSA mass phone surveillance revealed by Edward Snowden ruled illegal »
• The courts stood up to NSA mass surveillance. Now Congress must act. »
• The court ruling (PDF) »

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Our governments do not trust people with their own money

There are rumors that Greece will default to the IMF, nationalise the country’s banking system and introduce a parallel currency. [Link»]

If this will happen, Greece will have to introduce some sort of currency regulations – to stop a bank run, to stop money from floating out of the country and to uphold the value of the new, parallel currency.

This can not be done without coercion and control.

So, I guess Greece might not only end up being bankrupt – but also becoming something of a neo-socialist totalitarian society.

The thing to follow closely is how currency regulations (and nationalisation) will be enforced – as this has never been tried at this level in a society with modern mass surveillance capabilities.

At the same time other countries, e.g. France, are introducing ever tighter regulations and controls when it comes to cash and international money transfers. So there is surely a new European “market” for financial mass surveillance.

From the EU there are indications of a coming EU database for surveillance and analysis of all European bank transfers. (According to the 2009-14 European Commission.)

So, I guess the next big battle on surveillance and government control will be about money. Your money.

Our governments simply do not trust people with their own money.

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The worst of two worlds

For the sake of argument: Let’s assume that we are stuck with mass surveillance and Big Brotherism.

Such a society can be very unpleasant and very difficult to live in.

There is a trend among politicians and bureaucrats to regulate and micro manage more and more about our lives. Today, all western countries have more laws, regulations and rules than anyone can grasp and relate to. Every day most of us break the rules. Often several times every day.

Many of these rules are irrational, moralistic, prejudiced, paternalistic, subjective, stupid, unnecessary or malicious. Some laws creates crime where there is no victim. Some are outdated. Some are simply wrong.

In a total surveillance society this abundance of rules will lead to a situation where each and every one of us might be investigated, “corrected” and / or punished. Especially people in opposition, those who don’t fit in a “one size fits all” society and those who would like to live a free life (taking responsibility for their own actions). If people in power and their functionaries think that you are annoying — there will always be a reason for them to make an example of you, as a warning to others.

For a Big Brother society to be at all tolerable to live in — it must be open minded, tolerant and liberal. It must have fewer intrusive rules and more freedom.

But that is not the direction society is going, is it?

Today we live in a society where every day, we are under more surveillance, subject to more intrusive rules and under stricter control. That is a very toxic mix.

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Meanwhile, in Washington…

In the US, yesterday was National Freedom of Information Day. This is how it was celebrated in Washington…

The White House is removing a federal regulation that subjects its Office of Administration to the Freedom of Information Act, making official a policy under Presidents Bush and Obama to reject requests for records to that office.

Techdirt »

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European Parliament: You may limit fundamental rights on the internet

Today the European Parliament has adopted yet another resolution on child abuse online. And as usual it is written in a very sweeping language.

4. Recognises the different roles, duties and responsibilities of the state and private industry including in respect of investigation, prosecution, the right to privacy and data protection; calls for an effective working relationship and, subject to proper legal and judicial oversight and in respect of what is lawful and necessary in the best interests of the child and for the protection of children from child sex abuse online, information exchange between law enforcement agencies, other appropriate state duty bearers, judicial authorities, and when appropriate and necessary and in compliance with the law, the ICT industry, internet service providers (ISPs), the banking sector and non-governmental organisations, including youth and children’s organisations, with a view to ensuring the rights and protection of children online and regarding them as vulnerable persons under the law; calls on the Commission to take the initiative of asking all the Member States to take action to tackle all forms of cyber predation and cyber bullying;

Is this a way of saying that ISP:s should police the Internet? Maybe. Some people, for certain, will read it that way and use it to promote their agenda.

And what about this one..?

5. Stresses that measures limiting fundamental rights on the internet need to be necessary and proportionate, in line with Member State and European legislation and in compliance with the child’s rights under the UNCRC; recalls that illegal online content should be deleted immediately on the basis of due legal process; recalls that removal of illegal online content, in which the ICT industry plays a certain role, can only take place after judicial authorisation; emphasises the importance of respecting the principles of the due processes of law and the separation of powers;

So, the European Parliament just said that it’s OK to limit fundamental rights on the Internet? I think it did. If so, naturally it’s a good thing that it’s going to be done under rule of law and after due process. But is it at all acceptable to limit our fundamental rights? The reason they are called “fundamental” is that they should not be limited. At all. Ever.

And then we have this one…

8. Calls on the Commission to further assess commercial distribution business models in hidden services, including a monitoring of the Deep Web and the Darknet criminal markets in order to determine proliferation of commercial sexual exploitation of children online as a potential consequence of further migration from a traditional payment system to a new, largely unregulated digital economy;

It would be interesting to know how.

It’s also worth noticing that the European Parliament opens up for playing the child porn card to regulate and control digital currencies. (Yes, they think they can.)

I understand that the European Parliament would like to be seen to do something about child abuse. But I fear that it — once again — only will open up for Internet regulation. Without helping a single abused child.

Even though this not is legislation, parliamentary resolutions are often used by people who want to control information, regulate the Internet and limit our civil rights.

Link: Motion for a resolution to wind up the debate on the statement by the Commission pursuant to Rule 123(2) of the Rules of Procedure on child sex abuse images online (2015/2564(RSP)) »

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If mass surveillance is a permanent state — we must organise our resistance

From the Snowden files, people know for sure. There is mass surveillance.

It is conducted on a global scale by various NSA schemes. In most countries there are national surveillance programmes. And in the EU, data retention means logging all our phone calls, text messages, e-mails, net connections and mobile positions. (This is done in most EU countries, despite the European Court of Justice having invalidated the EU data retention directive for breaching human rights.)

Then we have the things we do not know. Obviously the Russians and the Chinese have their own global mass surveillance systems. And in the western world there are many surveillance programmes still unknown for the public. (Sometimes outsourced to private contractors.)

It’s massive. It’s overwhelming. It’s more or less uncontrollable.

There are some signs of reform of mass surveillance in western democracies. But in essence, it’s just window dressing. Our governments have no intention giving up their instruments of control.

We need reform. We need whistleblowers. We need democratic oversight.

But, basically, mass surveillance seems to be a permanent state.

So, what to do?

People ought to use encryption by default. But they don’t. It’s to complicated for most people. (PGP/GPG encryption is just used by four million people in the world. Ever.)

This is what must change. We need default mode, no hustle, easy to use encryption working in the background when it comes to e-mails, phone calls, text messages and chats. Encryption must be a no-brainer for all.

And on another level we continuously need to protect and strengthen all communications protocols running in the background on the internet and in our telecommunications systems.

For now, this seems to be a never ending armes race between civil society and governments (and other bad guys).

On a political level, the fight for peoples right to privacy will continue. And it will be furious. But we must recognise that this is a two front war — where political and technical activism must go hand in hand. To be successful, the two arms of the privacy movement need more and better platforms to coordinate.

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Edward Snowden on the balance of power between the governing and the governed

We can devise means, through the application and sophistication of science, to remind governments that if they will not be responsible stewards of our rights, we the people will implement systems that provide for a means of not just enforcing our rights, but removing from governments the ability to interfere with those rights.

You can see the beginnings of this dynamic today in the statements of government officials complaining about the adoption of encryption by major technology providers. The idea here isn’t to fling ourselves into anarchy and do away with government, but to remind the government that there must always be a balance of power between the governing and the governed, and that as the progress of science increasingly empowers communities and individuals, there will be more and more areas of our lives where—if government insists on behaving poorly and with a callous disregard for the citizen—we can find ways to reduce or remove their powers on a new—and permanent—basis.

Our rights are not granted by governments. They are inherent to our nature. But it’s entirely the opposite for governments: their privileges are precisely equal to only those which we suffer them to enjoy.

Read more: Edward Snowden’s Libertarian Moment: We “will remove from governments the ability to interfere with [our] rights” »

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When censorship meets mass surveillance

Censorship is nothing unique to old fashioned dictatorships. There are lots of things that you are not allowed to say in todays western democracies.

In many countries you are not allowed to deny certain historic events and certain war crimes in public. Some countries have laws against blasphemy. In some you can not make statements that may be perceived as supportive for certain ideologies or militant organisations. In a few countries you may not be overly positive about homosexuality in public. In others you may not be offensive on HBTQ matters. And most countries have laws against hate speech — that are especially troublesome, as they give certain groups and individuals special rights.

Until recently, the red line was drawn where you made a public speech, published a newspaper article or distributed a leaflet or a poster. But today it has become more complicated.

Should a tweet be considered a public statement? A Facebook post? An Instagram picture? An e-mail on a mailing list? A G+ post to your personal circle of friends?

To complicate things further, the Internet knows no boarders. What is legally published in one country can be read — and illegal — in another.

With mass surveillance you must assume that the government is picking up on everything you do on your computer, smartphone or tablet. If the government wants to know what you are up to, it will know. This might lead to operations like in France recently, where the authorities have been trawling social media for people who might have defended terrorism in one way or another.

There are even cases in Britain where personal SMS/text messages have  been enough for the police to knock on the door, asking people what they are up to.

Censorship and mass surveillance is a particularly bad combination. It will create a mental Panopticon.

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Big Brotherism at the EU summit this week

Thursday and Friday EU leaders will get together for yet another summit. There are burning issues such as Ukraine and Greece on the agenda — but also a couple of surveillance topics to watch closely.

One is EU PNR – a register on our intra-EU air travel. The idea is to collect various data about us and our travel habits, to be saved for five years.

The European Parliament has tried to block EU PNR, as it does not meet its standards when it comes to privacy and data protection. Just a few days ago the majority position was that you should not retain personal data about all air passengers in the EU — only when it comes to “a smaller target list of suspects”.

But in Strasbourg today, the Parliament adopted an notably vague resolution. From the press release

MEPs pledge to work “towards the finalisation of an EU PNR directive by the end of the year” and encourage member states to make progress on the Data Protection Package, so that negotiations on both proposals can take place in parallel. They aim to ensure that data collection and sharing is based on a coherent data protection framework offering legally-binding personal data protection standards across the EU.

This can — or should — be read as a signal to the summit to go ahead with EU PNR. The Parliaments has just indicated that it will co-operate. This is just the kind of resolution normally adopted when EU member states applies arm twisting to the peoples elected representatives. Now, the Parliament has committed to deliver this year.

Then we have the matter of encryption. Still there is nothing from the US administration — expected to put forward its new policy on encryption any day now. But in the UK we have demands from Prime Minister Cameron, that national security agencies must be able to access all of citizens telecommunications.

This surely must be on the EU summit agenda this week. The risk, however, is if topics like Ukraine and Greece drags out — EU leaders will just rubber stamp all other prepared dossiers, like this one.

If there will be a move to sidestep encryption (and everything points in that direction) next Thursdays Global Security Summit in the US will be the time and the place. But first, EU leaders ought to coordinate.

The third point on my watch list is the role of Internet service providers and social platforms. It has been very quiet since the informal meeting with EU justice and interior ministers in Riga a week and a half ago. There it was decided to deepen cooperation with the Internet industry “and to strengthen the commitment of social media platforms in order to reduce illegal content online”.

Will this be taken to the next level by EU leaders this week? Or is regulation already being prepared in the opaque European Commission administration?

Eyes and ears, please. The EU summit kicks off tomorrow.

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In two weeks time, world leaders may decide to undermine encryption

There are telltale signs that the US administration will move against encryption. The latest comes from Bob Litt, the General Counsel for the Office of the US Director of National Intelligence (ODNI).

In a speech this week he echoed the demand that government should be allowed access to all our information. Among other things, he touched on the idea of a magical golden key.

I’m not a cryptographer, but I am an optimist: I believe that if our businesses and academics put their mind to it, they will find a solution that does not compromise the integrity of encryption technology but that enables both encryption to protect privacy and decryption under lawful authority to protect national security.

Even if this is not a ban on encryption, it is very serious. Mike Masnick at  Techdirt explains…

I’m not sure how many times in how many different ways this needs to be explained, but what they’re asking for is a fantasy. You cannot put a backdoor in encryption and create a magic rule that says “only the government can use this in lawful situations.” That’s just not how it works. At all. The very idea of decryption by a third party “compromises the integrity of the encryption technology,” almost by definition.

But I’m not sure this will be considered as a valid argument by our ignorant politicians.

It would make little sense for the US to go for a “magical golden key” on its own. Likely other members of the NSA Five Eyes group (UK, Canada, Australia and New Zeeland) will do the same.

And the EU? Europe normally follows the US in these matters. There will be an Global Security Summit in Washington later this month. And there are reasons to believe that also politicians in most EU member states would like to give their authorities the ability to circumvent encryption.

As EU member state ministers for justice and home affairs made their last meeting (in Riga) an informal one, this topic might very well have been up for discussion. (But the public is not allowed to know exactly what went on.) This is exactly what you might expect — and exactly the kind of thing the Council would keep under wraps, to avoid debate and protests until it’s too late. And the timing is just right.

The way the world is right now (Ukraine, IS and potential monetary crises) it should be no problem for world leaders to package the whole thing as “emergency legislation”.

The European Parliament will object, no doubt. But it will be sidestepped. All EU member states have to do is to agree to make this national legislation in all (or most) member states.

As a matter of fact, the EU has no formal competence when it comes to national security matters. So it will have to be a multilateral arrangement.

All the European Parliament can do is to try to protect human and civil rights in a wider sense. But that will probably not go beyond a sharply formulated resolution.

The matter can be sent to the European Court of Justice (for breach of the EU Charter of Fundamental Rights) or the European Court of Human Rights (upholding the European Convention on Human Rights). But in both cases a court process may drag out for years.

In this matter, politicians can do almost as they want. And they will not fail to make use of current world events as an excuse. (Never waste a good crisis.) The only thing that might stop them is general outcry — on a massive scale.

Soon we will know. All eyes on the Global Security Summit in the US on February 18.

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Techdirt: Intelligence Community’s Top Lawyer Endorses Desire For Unicorns, Leprechauns & Golden Keys That Don’t Undermine Encryption »

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