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Privacy vs. Security: How The Debate Changes

The pilot who crashed the Germanwings plane, taking 150 lives, was too ill to work, according to doctors’ notes found at his home. But Germany’s strict medical privacy laws barred the doctors from conveying that judgment to the airline.

A horrific event that could have been averted with a sharing of information happened because of laws designed to protect privacy. As typically occurs in such cases, the same public that supported such laws turns around and asks, Why didn’t the authorities know?

It’s really hard to get an intelligent conversation going about the balance between privacy and security. Posturing over government intrusion into our personal lives blossoms at times of calm and then wilts when terrorists hijack the headlines.

Not long ago, privacy advocates were inflaming the public over the National Security Agency’s surveillance programs. In doing so, they often exploit the public’s confusion on what information is collected.

Last October, CNN anchor Carol Costello grilled Senator Dan Coats, an Indiana Republican, on NSA spying activities, in an exchange that indicated she didn’t quite know what metadata is. As Coats tried to explain, metadata is information about numbers we call (the date, time and duration of each call) — not what was said in the calls.

That’s what the government computers track. If they flag a worrisome pattern, a court must grant permission for a human being to listen in on the content.

Another tactic of the program’s critics is to point to every terrible thing that happens as evidence the program doesn’t work. “It didn’t stop Americans from being beheaded,” Costello said.

No, the NSA didn’t stop radical groups from kidnapping Americans in Middle Eastern war zones and executing them in their cruel way. It can’t stop every terrorist outrage in the world, including in Boston. But it has been credited with uncovering plots to wreak havoc.

The grownup question is, where do we draw the line between our right to privacy and our desire to be protected?

Should we care if a government computer collects the metadata on all our calls? I don’t. The phone company has that information. As for noting the websites we visit, Google knows all about that.

Sure, metadata can provide clues on one’s interests — say, searches on a disease or visits to pornography sites. A rogue NSA worker might tap this information for illegal purposes, but there’s been scant evidence that such abuse has occurred, the hyperbolic charges notwithstanding.

Recall the furor in France after Edward Snowden released stolen documents describing the NSA surveillance programs. Now, in the wake of the Charlie Hebdo massacre, French leaders are proposing an NSA-style program that would let their country’s intelligence agencies do similar sweeps of metadata.

Recall the anger in Germany over the Snowden revelations. The CIA’s top official there was expelled. And President Obama had to apologize for American monitoring of Chancellor Angela Merkel’s cellphone, something we should not have done.

But now, when so many German citizens are joining radical groups in Syria — nine so far have participated in suicide attacks — the German government is more tied into American intelligence than it was before. After all, the U.S. is the only country to track foreign fighters crossing into Syria.

In the U.S., the horror of the beheadings has caused public protests against U.S. spying programs to rapidly face. Our society seems especially vulnerable to the hurt inflicted by terrorism; witness the attention paid the Boston Marathon bombing trial — a relatively small attack by the standards of modern terrorism.

The next time something gruesome happens, expect to hear, “Why didn’t they stop that?” To say we can be secure without giving up some privacy is child’s talk.

Follow Froma Harrop on Twitter @FromaHarrop. She can be reached at fharrop@gmail.com. To find out more about Froma Harrop and read features by other Creators writers and cartoonists, visit the Creators Web page at www.creators.com.

AFP Photo/Paul J. Richards

Talk Of Petraeus Indictment Raises Legal Questions For His Ex-Paramour

By Michael Doyle, McClatchy Washington Bureau (TNS)

WASHINGTON — Former CIA Director David Petraeus is not the only one in potential legal jeopardy for the reported discovery of classified information on his former paramour’s computer.

Unauthorized recipients of classified information, too, can be prosecuted along with alleged leakers. And though these sorts of prosecutions are exceedingly rare and difficult to win, even their remote possibility might merit close tending now by Charlotte, N.C., resident Paula Broadwell.

“It would be very complicated, and I doubt the government would want to go there,” said Mark S. Zaid, a Washington-based attorney specializing in national security issues.

At the same time, Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, noted that “the government takes the position that the unauthorized receipt and possession of classified information can be a violation of the law.”

It is, Aftergood stressed, a “contentious area.”

It’s also a shadowy area that’s back in the spotlight, amid reports that Justice Department prosecutors have recommended bringing charges against Petraeus. The New York Times, citing anonymous “officials,” first reported last Friday that prosecutors have recommended that the retired Army general face charges.

The decision whether to prosecute Petraeus, with its potential ripple effects on Broadwell, will be made at the “highest levels,” Attorney General Eric Holder said Sunday.

“The determination has yet to be made and we will just see how things play out before any final decision is made,” Holder said on NBC.

Broadwell’s attorney, Robert Muse of Washington, declined to comment Monday.

Broadwell co-authored a highly sympathetic biography of Petraeus, with whom she was subsequently revealed to have been romantically involved. In December 2012, federal prosecutors said they would not pursue cyberstalking charges against her, following an investigation into emails allegedly sent by Broadwell to another woman.

“As federal prosecutors, we are guided in the discharge of our responsibilities by considerations of fairness and justice,” William Daniels, spokesman for Tampa-based U.S. Attorney for the Middle District of Florida Robert E. O’Neill, said at the time.

The prosecutors’ December 2012 statement did not deal with the separate issue of classified information. News reports from 2012, citing anonymous sources, recounted that FBI agents, in the course of their alleged cyberstalking investigation, had found classified documents on Broadwell’s computer.

In previous news accounts, Petraeus has been quoted as denying that he provided classified information to Broadwell. Broadwell also previously has denied getting classified documents from Petraeus.

What law, or laws, might theoretically apply to any recipient of classified documents could turn on several questions, including the jobs of those who hold the information.

“Yes, there is potential liability, on paper,” Zaid said, “but there are lots of laws on the books that are never enforced.”

One federal law governs those who are an “officer, employee, contractor or consultant” for the U.S. government. Such an individual who “becomes possessed” of classified documents, “knowingly removes” them without authority and retains them at an “unauthorized location” can face a prison term of up to one year.

Broadwell, a West Point graduate, was a major in the Army Reserves at the time the Petraeus scandal became public. She had a security clearance, a point that Zaid cautioned “could change the dynamic” by increasing her legal liability.

Stricter penalties, including a prison term of up to 10 years, come with violating the Espionage Act’s prohibition against the gathering, transmitting or receipt of defense information with the intent or reason to believe the information will be used against the United States.

But that charge would be difficult to pursue.

“Although reporters frequently gain access to classified information, there has never been a non-espionage case in which a person has actually been charged with unauthorized receipt of classified information,” Aftergood said.

In 2005, Justice Department prosecutors brought charges against two former officials with the American Israel Political Action Committee. The men were accused of receiving classified information and transmitting it to lobbyists, journalists and diplomats.

But four years later, underscoring the courtroom complications, prosecutors dropped all charges against the two men. The trial judge had set a high bar for conviction, saying prosecutors would have to prove the defendants knew distributing the information would harm the United States.

“It was wrong to apply the Espionage Act to people who clearly were not spies,” defense attorneys Abbe Lowell, John Nassikas and Baruch Weiss said in a statement at the time.

Photo via Wikimedia Commons

Child-Porn Conviction Is Tossed: Navy Surveillance Is Blamed

By Mike Carter, The Seattle Times

SEATTLE — Navy criminal investigators repeatedly and routinely peeked into the computers of private citizens in Washington state and elsewhere, a violation of the law so “massive” and egregious that an appeals court says it has no choice but to throw out the evidence against an Algona, Washington, man sentenced to 18 years in prison for distribution of child pornography.

The three-judge panel of the U.S. 9th Circuit Court of Appeals, in a decision handed down last week, said the 2012 prosecution of Michael Allan Dreyer by the U.S. Attorney’s Office in Seattle demonstrated Naval Criminal Investigative Service (NCIS) agents “routinely carry out broad surveillance activities that violate” the Posse Comitatus Act, a Reconstruction-era law that prohibits the military from enforcing civilian laws.

The court called the violations “extraordinary” and said evidence presented in Dreyer’s prosecution appears to show that “it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over that information to civilian law enforcement when no military connection exists.”

That is what happened to Dreyer, now 60, who became the target of an NCIS investigation in 2010 when Agent Steve Logan, who was stationed in Georgia, used a law-enforcement software program called “RoundUp” to troll for child pornography on computers in Washington using a legal file-sharing network called “Gnutella.”

According to court documents, Logan identified a computer sharing suspicious files, downloaded three of them, then got a subpoena for Comcast, which identified Dreyer as the IP address owner.

Logan, according to court documents, checked to see if Dreyer was a member of the armed forces and determined he was not.

Logan then summarized his investigation and forwarded it to the NCIS office in Washington state, which turned it over to the Algona Police Department, according to the documents.

The case was filed by the U.S. Attorney’s Office in federal court, where Dreyer faced up to 40 years in prison due to a prior conviction.

Dreyer was arrested in April 2011 and fought to suppress the evidence, which included explicit videos of adults having sex with preteen boys and girls.

U.S. District Judge Marsha Pechman allowed the videos to be used and Dreyer was convicted of possession and distribution of child pornography after a four-day jury trial in September 2012. Dreyer — who previously had served 27 months for a federal child-pornography conviction in 2000 — was sentenced to 18 years in prison and a lifetime of supervised release when he gets out.

However, the 9th Circuit judges found the NCIS behavior so outrageous that it “demonstrates the need to deter future violations” and sent Dreyer’s case back to the district court with an order that Pechman exclude the NCIS evidence against him.

Erik Levin, the former federal public defender who represented Dreyer during his trial and appeal, said the ruling likely means he will go free.

The U.S. Attorney’s Office is considering asking the case be reheard by the entire Court of Appeals. U.S. Attorney Jenny Durkan, whose office prosecuted Dreyer and argued the appeal, said Wednesday it is possible the court misunderstood some of the technology the agent was using and the scope of his searches.

Durkan said some information in the 9th Circuit’s opinion “is wrong.”

Otherwise, she said she could not comment on pending litigation.

Telephone and email messages sent to NCIS headquarters in Washington, D.C., were not returned Wednesday.

The government, in its appellate briefs, argued Logan was a civilian employee of the NCIS, and that his role in the investigation was peripheral and fell within exceptions to the Posse Comitatus Act.

The panel unanimously, and strongly, disagreed.

Senior 9th Circuit Judge Andrew Kleinfeld found that the case “amounts to the military acting as a national police force to investigate civilian law violations by civilians.”

“There could be no bona fide military purpose to this indiscriminate peeking into civilian computers,” Kleinfeld wrote. “Letting a criminal go free to deter national military investigation of civilians is worth it.”

The judges also excoriated the government for defending the role of the NCIS and its investigation and said the court has warned the Justice Department about it before. This time, the court said, the violation comes with a price to get the government’s attention — Dreyer’s release from prison.

“Such an expansive reading of the military role in the enforcement of civilian laws demonstrates a profound lack of regard for the important limitations on the role of the military in our civilian society,” wrote Judge Marsha Berzon.

Logan, the NCIS agent, had argued he had chosen to scan computers in Washington partly because of the state’s many military bases.

While he initially was only able to identify the suspect’s whereabouts within a 30-mile radius of the IP address he identified, he wrote in a search warrant that the “large [U.S. Navy/Department of Defense] saturation” indicated a “likelihood” the suspect was in the military.

By that logic, Berzon said, Posse Comitatus would be “rendered meaningless.”

“To accept that position would mean that NCIS agents could, for example, routinely stop suspected drunk drivers in downtown Seattle on the off-chance that a driver is a member of the military, and then turn over all information collected about civilians to the Seattle Police Department for prosecution.”

The opinion comes as the reach of government and law enforcement has come under fire after a series of disclosures of domestic surveillance by former National Security Administration systems analyst Edward Snowden.

Levin, who now practices law in Berkeley, California, also noted the controversy over the so-called “militarization of police” in the aftermath of the riots in Ferguson, Missouri, following the shooting death by police of a black teenager. Exceptions to the Posse Comitatus Act allow the military to provide some equipment to police.

“This,” Levin said, “is the real militarization of police — when the military becomes the police.”

AFP Photo/Greg Wood

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Israel Intelligence Reservists Say They’ll No Longer Spy On Palestinians

By Joel Greenberg, McClatchy Foreign Staff

JERUSALEM — More than two dozen reservists from the Israeli army’s elite intelligence-gathering unit have sent a public letter to Prime Minister Benjamin Netanyahu and the army chief of staff declaring their refusal to serve on intelligence missions against Palestinians.

The 27 reservists are part of a group of 43 signatories of the letter who identified themselves as veterans of the unit, known by its number, 8200.
Their protest, made public Friday, carried special weight because of the elite status of the secretive unit, which specializes in electronic surveillance and is the largest unit in the Israeli army. Its work includes collection of data used to monitor and target Palestinians.

The letter asserts that despite the prevalent perception that intelligence work “is free of moral dilemmas and only contributes to the reduction of violence and harm to innocent people … we learned during our military service that intelligence is an integral part of the military control of the occupied territories.”

Palestinians in the West Bank and Gaza Strip are “completely exposed to espionage and surveillance by Israeli intelligence,” as opposed to citizens of Israel and other countries where there are restrictions on information gathering by the authorities, the letter asserts.

“We cannot in good conscience continue serving this system and violate the rights of millions of people,” the letter says.

The letter was released weeks after an Israeli offensive against Islamist militants in Gaza in which more than 2,000 Palestinians were killed, most of them civilians, but organizers said the declaration was more than a year in the making.

The army defended Unit 8200’s work, saying that it operated under ethical guidelines strictly supervised by senior officers and that the military intelligence branch has “no record” of the violations alleged by the reservists.

In personal testimonies about their work made available to McClatchy, veterans of the unit described pervasive and unfettered intrusion into the private lives of ordinary Palestinians, including use of information about sexual preferences and medical conditions to coerce people into becoming informers.

The 8200 unit analyzes electronic data gleaned from wiretapped phone calls, emails, and radio communications in the Palestinian areas and across the Middle East, and key information collected by the unit has been shared with the United States. The unit also handles the military’s cyber-warfare operations.

The army statement said that the unit gathers “critical information” and its training program places “a special emphasis on morality, ethics, and proper procedure.”

“Soldiers and officers in the unit act in accordance with their training and remain under the strict supervision of high ranking officers,” the army said. “The Intelligence Corps has no record that the specific violations in the letter ever took place.”

However, testimonies provided to McClatchy by signers of the letter, who did not identify themselves publicly under army secrecy rules, portray the unit’s activities differently. They describe unbridled prying into Palestinians’ private lives to gain intimate information that could be used to turn them into informers.

“We knew the exact medical conditions of some of our targets,” said one signer. “I felt bad knowing precisely the problems of every one of them and about us talking and laughing about this information freely, or that we knew exactly who was cheating on his wife, with whom and how often.”

The reservists’ letter was not the first of its kind to be published in Israel. In 2002, dozens of reserve combat soldiers signed a declaration that they would refuse to carry out occupation duty in the Palestinian areas. In 2003 a similar pledge was made by more than a dozen reservists from the elite Sayeret Matkal commando unit, and a group of 27 reserve pilots declared their refusal to fly missions in Palestinian population centers, attacks they said harmed innocent civilians.

Greenberg is a McClatchy special correspondent.

AFP Photo/Menahem Kahana

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