Future Tense

Fears of U.S. Mass Surveillance Spur Data Protection Proposals in Europe

Ryan Gallagher — Fri, 17 May 2013 18:21:04 GMT

From real-time snooping on Gmail to grabbing reporters’ phone records, the U.S. government’s surveillance powers are a hot topic at home. But the issue is also making waves in Europe. There, fears over U.S. spy agencies’ ability to “browse the cloud” have helped spur proposals for sweeping new data protections that could eventually be in force across all 27 EU member states.

The European Parliament is currently working on two new draft laws that would reform regulations governing how personal data are processed in the E.U. One updates data privacy legislation from 1995, and is aimed in part at keeping pace with changes in data processing brought about in recent years by the Internet.The other is a directive that addresses how data can be processed in cross-border police investigations.

As I reported back in January, a report warned EU parliamentarians that a 2008 amendment to the Foreign Intelligence Surveillance Act had authorized “purely political surveillance on foreigners' data” if the data are stored using U.S. cloud services like those provided by Google, Microsoft, and Facebook. The report was co-authored by Microsoft’s former chief privacy adviser, Caspar Bowden, who said that the FISA amendment had enabled “continuous mass-surveillance of ordinary lawful democratic political activities,” effectively authorizing the U.S. government to monitor European journalists, activists, and politicians who are engaged in any issue in which the United States has a stake.

Since Bowden’s report, several amendments to the data protection reform bill have been put forward, and they appear to be directly aimed at addressing potential U.S. snooping. One, proposed by Dutch member of European Parliament Sophia in 't Veld, would prohibit the transfer of personal data to cloud services under the jurisdiction of a “third country” (such as the United States) unless various criteria are met. These include obtaining the consent of the citizen and ensuring that he or she is notified of the “possibility of the personal data being subject to intelligence gathering or surveillance by third-country authorities.” A similar amendment put forward by Greek MEP Dimitrios Droutsa would also require that citizens are notified if their data are to be transferred to a third country’s jurisdiction. And another, proposed by Spanish MEP Carmen Romero López, would encourage whistleblowers to expose “unlawful processing of personal data” in cases involving third countries, offering safeguards against “laws prohibiting the uncovering of such unlawful processing”—which could include state secrecy laws designed to prevent disclosure of surveillance tactics.

At a seminar Wednesday in Brussels, Belgium, in 't Veld blasted the European Commission, the European Parliament’s executive body, for being “extremely passive” in challenging U.S. authorities over FISA spying.* “We all know that our closest friend and ally across the Atlantic has a specific interest in collecting personal data mainly for all sorts of law enforcement and security purposes,” in 't Veld said, adding that she believed FISA allowed American spy agencies to "browse the cloud," and “give themselves access to all data including our data.” She said that the European Parliament needs to “sort out differences with our transatlantic partner about getting access to data.”

Bowden, the co-author of the January report, told me in a phone interview Thursday that he was concerned the data protection reforms may still contain loopholes, even with the proposed amendments. “The regulatory language only refers to 'requests' by foreign governments for data, and nowhere and never to automated and continuous mass-surveillance through a fibre-optic tap,” he said, referring to the kind of real-time monitoring the U.S. National Security Agency was alleged to have conducted in the aftermath of 9/11. The former Microsoft privacy chief criticized data protection authorities for what he said was a reluctance to get involved with anything labeled “national security.” They “seem oblivious to the fact that it should be part of their job to protect European citizens from political spying conducted under a foreign government's national security laws," Bowden said.

So far there have been nearly 4,000 amendments added to the proposed data protection reform, which is the highest number of amendments ever made to a single legislative file in the European Parliament. The text still has to be agreed with the member states, but lawmakers aim to reach an agreement before the end of 2013. The process has been the subject of much controversy, with some MEPs allegedly copy-pasting U.S. lobbyists’ proposed amendments verbatim. The lobbyists were accused in February of orchestrating a “massive campaign” to “water down the EU privacy regulation.”

*Correction, May 17, 2013: This article originally misstated the location of the seminar in which in 't Veld criticized the European Commission. It was in Brussels, Belgium, not Strasbourg, France.

The Hottest Internet Companies of the Past Year Were Yahoo and AOL

Will Oremus — Fri, 17 May 2013 18:06:27 GMT

This was supposed to be the year of Facebook. One year ago tomorrow, the social network went public, offering its shares for $38 apiece in one of the biggest tech IPOs ever. But the price began to slip almost immediately, and today it stands at just $26 a share, meaning that the company’s initial investors have lost a third of what they put in.

What tech companies should they have invested in instead? Some of the biggest names of recent years, like Google and Amazon, have seen solid, steady growth in their share prices since Facebook went public. But as the German market-research portal Statista points out, there are at least two Internet giants whose stocks performed even better in the past year—and they probably aren’t the ones you’d expect.

AOL, of all companies, has seen its stock soar from $26 a share in May 2012 to more than $37 today—almost the exact inverse of how Facebook’s shares have performed. Its fellow dinosaur Yahoo has done even better, leaping from around $15 last year to over $26 today. If you had the foresight (or orneriness) to buy shares in those two companies instead of Facebook a year ago, congratulations: You’ve earned the right to party like it’s 1999.

In AOL’s case, CEO Tim Armstrong’s bid to reinvent the company as an ad-supported media business finally showed signs of progress in the past year. Meanwhile, the company somehow manages to keep raking in some half a billion dollars every year from dial-up subscribers, more than offsetting the losses in its other divisions.

At Yahoo, new CEO Marissa Mayer has engineered what may be a more sustainable turnaround. She has succeeded in shaking up a moribund corporate culture by buying hot startups, bringing in star talent, and cracking down on employees who were using “I’m working from home” as an excuse to slack off. Her anti-telecommuting edict drew a lot of flak, but it seems to be working.

Once in danger of becoming a punchline, Yahoo has returned to making headlines for bold moves rather than flagging revenues or leadership controversies. Today it’s in the news thanks to rumors that it might acquire Tumblr. Reporting on the talks, AllThingsD asked whether Yahoo will try to become “cool again” by acquiring the New York-based blogging platform, which is especially popular with teens and twentysomethings. That might be a stretch. It’s not like owning Hulu makes NBC, Fox, and Disney-ABC “cool again.” What it does is make them key players in an emerging new market that might otherwise threaten their existing businesses. Buying companies like Tumblr could do the same for Yahoo. Yahoo may never be cool again—was it ever cool in the first place?—but it has already achieved something better than that. It’s relevant again.

Will Google Glass Have Facial Recognition? Congress Wants to Know.

Will Oremus — Fri, 17 May 2013 14:51:10 GMT

A flurry of alarmist articles about the privacy implications of Google Glass has caught the attention of the Congress’ Bi-Partisan Privacy Caucus. The group, led by Texas Republican Joe Barton, sent a letter to Google CEO Larry Page on Thursday. “We are curious whether this new technology could infringe on the privacy of the average American,” they wrote. And they listed eight questions they want answered by June 14 at the latest. Here are some of the queries:

Will Glass collect data from users without their consent?
How will Google protect the privacy of non-users?
Will Glass have facial recognition capabilities? If so, will people be able to opt out?
Will Google consider privacy in deciding whether to approve third-party apps?

Some are easily answered. No doubt Google will consider privacy in deciding whether to approve third-party apps—the question is how careful it will be and where it will draw the line. And surely the company does not plan on collecting user data without their consent—the real issue is whether users will understand exactly what they’re consenting to when they sign the company’s privacy policy and user agreements.

To its credit, the committee does not seem to be freaking out about the possibility of Glass being used as a surreptitious recording device. I explained in depth last week why such fears are overblown.

Instead, the committee homes in on facial recognition as the device’s biggest potential privacy issue. Indeed, the prospect of a Glass app that could immediately pull up the name and personal information of anyone you look at would represent a significant new overlap between people’s online and offline lives.

Coincidentally, Google addressed this very issue in a fireside chat at its I/O conference on Friday—sort of. AllThingsD reports that Google Glass product director Steve Lee said of facial recognition, “We’ve definitely experimented with it, but it’s not in the product today. … I can imagine it existing.”

It will be interesting to see whether Google offers anything more concrete in its response to Congress—and, if not, whether the Congressional privacy hawks find that vague answer satisfactory.

Here’s the full text of Congress’ letter to Google.

Seven Things Google Might Do With a Quantum Computer

Will Oremus — Thu, 16 May 2013 21:17:22 GMT

Google and NASA are the proud new owners of a quantum computer, which they will use to launch an artificial-intelligence lab at NASA’s Ames Research Center in California. Google announced the initiative, called the Quantum Artificial Intelligence Lab, in a blog post today: “Our goal: to study how quantum computing might advance machine learning.”

That sounds impressive. But what, exactly, does it mean?

As Greg Kuperberg explained in Future Tense last fall, a quantum computer is a new type of supercomputer that seeks to harness “quantum randomness” to perform operations far more efficiently traditional computers. The one Google and NASA bought was made by a company called D-Wave, and there is some debate about whether it’s really accurate to call it a quantum computer. Nonetheless, it recently solved at least one optimization problem 3,600 times faster than a conventional machine, raising the possibility that it could indeed lead to advances in machine learning.

That’s a big deal for Google, because machine-learning algorithms form the underpinning of the company’s most exciting new technologies. Basically, they’re procedures that allow computers not just to perform a specific set of predefined tasks, but to “learn” from their mistakes and user feedback and get better at those tasks over time—or even acquire the ability to perform new ones.

These algorithms are stunningly powerful, but they also tend to require massive computing power. For example, last year Google ran a cutting-edge machine-learning experiment in which computers learned to identify cats on YouTube—without being told in advance what cats looked like. That experiment required 16,000 computer processors running in parallel. As you can imagine, 16,000 processors are not going to fit onto your Android phone, let alone your Google Glass.

If Google can tap the theoretical power of quantum computing, those types of operations could get much easier. The company did not say precisely how it might use them in the real world. But off the top of my head, here are just a few of the Google technologies that could conceivably benefit from improved machine-learning algorithms:

Google Now, the mobile personal-assistant program that attempts to anticipate your needs
Self-driving cars
Google Goggles, which recognizes images like the Eiffel Tower when you point your phone’s camera at them
Search by Image
Voice Search
Google Prediction API
And, of course, good old Web search

That’s just for starters, though. For more ideas, check out Google’s vast caches of published research on machine learning and machine translation. Meanwhile, Google’s blog post alludes to quantum computing’s potential to tackle problems as far afield as protein folding and climate modeling. And who knows what NASA’s engineers might have in mind?

It’s possible that the D-Wave 2 will end up solving problems that Google and NASA haven’t even thought of yet. Or it might turn out to be a total bust. But that’s a luxury that both NASA and Google can afford, for different reasons. Here’s to moon shots.

Verizon Wireless Secretly Passed AP Reporters' Phone Records to Feds

Ryan Gallagher — Thu, 16 May 2013 19:06:19 GMT

If you are a customer of Verizon Wireless, you might want to consider switching carriers in light of the Associated Press phone snooping scandal.

When the feds came knocking for AP journalists’ call records last year, Verizon apparently turned the data over with no questions asked. The New York Times, citing an AP employee, reported Tuesday that at least two of the reporters’ personal cellphone records “were provided to the government by Verizon Wireless without any attempt to obtain permission to tell them so the reporters could ask a court to quash the subpoena.”

A quick refresher on the back story: It emerged Monday that the Justice Department obtained AP journalists’ phone records as part of what is believed to be an aggressive probe into a leak about a foiled terror plot, which led to a May 2012 AP scoop. The government seized the records for more that 20 separate phone lines assigned to AP staff in April and May of 2012, the AP reported. The seizure of the records has prompted a backlash from media organizations, while Attorney General Eric Holder has tried to justify the intrusion by insisting that the leak “put the American people at risk.” The AP says that it published the story only after receiving assurances from the government that “the national security concerns had passed.”

Controversially, the AP was not given advance notice of the seizure, which is considered the usual protocol when the government is seeking to obtain journalists’ records. However, Verizon Wireless could have notified the reporters, which may have helped them challenge its legality. Companies like Dropbox and Twitter have made it their policy to inform users (whenever possible) that the government is seeking access to their data, and Twitter has been applauded for how it has been willing to challenge authorities’ surveillance attempts in court. But Verizon—like AT&T, Facebook, and Comcast—has been criticized in the past for its lack of willingness to stand up for users’ privacy rights, which suggests its decision to hand over AP reporters’ records is true to form. The company has been rated as one of the worst in the United States for three consecutive years in the Electronic Frontier Foundation’s annual “Who Has Your Back?” reports.

I contacted Verizon Wireless for comment, querying whether the AP incident may prompt the company to change its policy regarding how it responds to such requests. Spokeswoman Debra Lewis said Verizon Wireless complied “with legal processes with regard to requests from law enforcement” but wouldn’t comment on specific cases. In regard to a change of policy, Lewis said she was “not going to speculate on what may or may not happen in the future.”

Either way, the debacle is likely to come as a much needed wake up call for some reporters, even if companies fail to change their questionable practices. The message is simple: Don’t communicate with sensitive sources on the phone, regardless of who your carrier is. Encryption is an option, but safest is to do things the old-fashioned way: face-to-face, with a notepad and a pen.

Update, May 16: Lawmakers introduced Thursday a bill intended to prevent another AP-style phone records grab from occurring in the future. The one-sentence Telephone Records Protection Act would apply to all Americans and would stop the feds from being able to seize phone records with a mere administrative subpoena, as occurred in the AP case. Instead, the TRPA would force the feds to meet a higher legal standard to obtain a court order, Wired reports, requiring the authorities to state “specific and articulable facts” to prove to a court that the records and information being sought is “relevant and material to an ongoing criminal investigation.” The bill was introduced by Reps. Justin Amash, R-Mich.; Zoe Lofgren, D-Calif.; Rep. Mick Mulvaney, R-S.C.; and Jared Polis, D-Colo.

"The Apocalypse Is Complicated": A Future Tense Event Recap

Torie Bosch — Thu, 16 May 2013 15:27:25 GMT

The bad news: It is very likely that sometime in the next million years, Earth will face an extinction event of some sort. According to Annalee Newitz, we could be “locked up in ice, bombarded with cosmic radiation, ripped up by mega volcanoes. … An invasive species could take over the planet, the earth could be shattered by asteroid impacts, and it could also be choked up by greenhouse gases.”

The good news: Even if billions die, there will still be billions left. “There’s always survivors,” she says.

Newitz is editor of the sci-fi site io9 and the author of the new book Scatter, Adapt, and Remember: How Humans Will Survive a Mass Extinction. On Wednesday night, at a Future Tense happy hour in Washington, D.C., she discussed her book with Megan Garber, who covers technology for the Atlantic’s technology channel. Extinction, apocalypse, climate farming, Exodus, space elevators, “good Death Stars”—it was your usual D.C. cocktail chatter.

Newitz told the audience at the Science Club that she has long nursed “a fascination for doom and apocalypse,” so when she started writing the book, she envisioned it as a “nonfiction version of a Godzilla movie.” But in looking at the history of extinction events—both before and during humanity’s time on Earth so far—and assessing the risks that will face us in the million years to come, she realized that in truth, “The apocalypse is complicated.” And we need to start planning for it.

Scatter, Adapt, and Remember emphasizes the vital role storytelling plays when it comes to human survival. The way we share information can shape how others see the world and the actions they take. For instance, the story of Exodus is a great lesson for long-term survival, she argued. It demonstrates how there can be “bravery in retreat”: If it’s clear that things are going in a terrible direction, “Don’t stay and fight. Leave.” In this case, that means “we need to be putting ourselves on a path toward space colonization, because the Earth is a dangerous place,” she says. (Newitz also recently discussed in Slate why humanity needs a plan to escape to space.)

Another important part of the Exodus story, Newitz says, is that the Jews who wandered the desert knew that they themselves would not make it to the Promised Land. But future generations would—and we, too, need to think beyond the present day. Much as she would like to, Newitz realizes that she herself may never make it to Mars. She wants others to make the trip there eventually, but humanity isn’t great at taking the long view. “We like short-term payoffs. We like pleasures that happen in our lifetimes. We aren’t going to be satisfied if someone says, ‘Hey, in a thousand years, it’s going to be great.’ ”

Whatever threats come our way in the millennia to come, Newitz is optimistic. “The one thing I know for sure is we will survive,” she says. “We have all the characteristics of a survivor species. It’s just, what the hell will we look like at the end of this?”

How Journalists Can Protect Themselves From the U.S. Government

Dan Gillmor — Wed, 15 May 2013 21:42:00 GMT

It is beginning to dawn on America's journalists—a group predisposed, in aggregate, to admire and vote for Barack Obama—that the president and his administration are becoming a clear and present danger to the craft they practice. The Obama Justice Department's collection of vast phone records from the Associated Press, hot news in the past two days, has news people in a tizzy if not a fury.

They are right to be angry, if a bit hypocritical given news organizations' widespread indifference to civil liberties breaches that don't affect them so directly. The AP records collection—by most accounts aimed at identifying a leaker inside the government—is an escalation of the administration's unprecedented war on leaks, a war that has made journalists a secondary but no less real target of surveillance.

Once they get over being shocked, shocked at the administration's increasingly obvious antipathy toward what they do, American journalists will have to face up to the changed conditions in which they operate.

They will have to take many more precautions as they do their work—especially when it comes to the absolutely essential work of finding government whistleblowers. The alternative is being almost entirely neutered, because no whistleblower in his or her right mind today should have much trust in journalists' ability to prevent discovery.

The need to beef up journalistic security has been clear for some time. Last year, believable allegations surfaced that Chinese hackers, with likely ties to the Beijing regime, were hacking major news organizations' servers, prompting a flurry of countermeasures that may or may not be working.

More recently, hackers apparently tricked their way into getting the AP's main Twitter passwords and then made bogus posts, including one that briefly whacked the financial markets. There were two key lessons for journalists here: a) be certain that they keep their accounts with third-party services under strict control and b) question whether they could afford the blowback from using third-party services that do not themselves employ up-to-date security practices.

Now it's time now for U.S. media companies and individual bloggers alike to recognize that they live in an environment in which their own government—not to mention criminal or corporate hackers—may well be using all of the tools at its considerable disposal, legal or not, to spy on them. They will increasingly need to practice their craft here at home as if they were independent journalists or dissidents living under an authoritarian regime.

Unless they and their sources are taking extraordinary precautions, journalists should take for granted that most mobile carriers will hand over pretty much anything the government wants, pretty much anytime it asks. This is true of most Internet service providers as well, in part because many the same companies that provide voice-based telecom services.

Security experts have been urging journalists—and all of us who value privacy and safety—to think much harder about how we harden our communications against intrusion in general. We can't plan for every contingency, and we have to understand that if a powerful nation-state like this one is willing to break laws and/or work in secret it can get to things others cannot. But we can adapt to various threats.

I asked the ACLU's Christopher Soghoian for some advice a year ago, for an article in Columbia Journalism Review, and he offered a several essential suggestions beyond the ones he'd previously made in a New York Times op-ed.

For example, he advises against using phones for any conversations with endangered sources unless both sides are using untraceable prepaid devices. He urges folks to use virtual private networks, which encrypt information, but notes that governments (and others) can in many cases still know who's talking to whom. In general, he told me, talk in person if at all possible.

Some journalists have taken worthwhile steps. In a noteworthy current example, The New Yorker just launched a "Strongbox" service, which will give sources an anonymous way—if they use it right—to send information to the magazine's journalists. The service leverages the Web-based Tor network, which anonymizes traffic. Every news organization that wants to do its job properly should put systems like this in place.

Meanwhile, journalists can find a variety of useful security information from organizations like the Committee to Protect Journalists, which has focused mostly on threats abroad. CPJ's "Journalist Security Guide" is a great place to start.*

Two days after the AP phone records handover was made public, the White House tried some damage control. It urged Congress to pass a so-called "reporters shield" law, even though no such proposal has never achieved critical mass in Washington. It might help—a little—if it becomes law. But the administration has pressed for a "national security exception" that, given its record, would be liberally applied.

The reality is that journalists need to help themselves, in the United States and everywhere else. We need what they do, and their work is increasingly at risk.

Correction, May 15, 2013: This article originally misidentified the Journalist Security Guide as the Journalists Security Guide. (Return to the corrected sentence.)

Google CEO Is Tired of Rivals, Laws, Wants to Start His Own Country

Will Oremus — Wed, 15 May 2013 21:34:35 GMT

In a surprise appearance at Google’s I/O conference today, CEO Larry Page took the stage to philosophize and take questions about the company’s products, their role in the world, and how Google can solve world hunger. Along the way, he blew off some steam about politics, the media, and all those other pesky tech companies that keep treating Google as a rival instead of welcoming it as ~~an overlord~~ a collaborative partner.

It started when a guy from Mozilla asked a question about the future of the Web and mobile platforms. Page dove right in. “I’ve personally been quite sad at the industry’s behavior around all these things," he said. "If you take something as simple as IM, we’ve had an open offer to interoperate forever. Just this week Microsoft took advantage of that by interoperating with us. You can’t have people milking off of just one company.”

He was referring to Microsoft’s announcement that it would incorporate Google Talk into Outlook.com, even though it doesn’t allow Google to incorporate Outlook functions into Gmail. But as AllThingsD’s Mike Isaac noted, he left out the part where Google recently sent Microsoft a cease-and-desist letter demanding that it remove the YouTube app from its Windows Phones.

Page wasn’t finished. “You can’t focus on negativity and zero-sum games,” he said. “I don’t know how to deal with all of those things, and I’m sad that the Web isn’t advancing as fast as it should be. We struggle with people like Microsoft.” A question about Oracle and Java got him going again. “We’ve had a difficult relationship with Oracle, including having to appear in court,” Page said. “Money is obviously more important to them than any collaboration.”

It turns out this is also the media’s fault. “Every story I read about Google is us vs. some other company, or some stupid thing. I just don’t find that very interesting. We should be building great things that don’t exist. Being negative isn’t how we make progress.”

To recap, Page criticized Microsoft for treating Google as a rival, blasted Oracle for caring too much about money, and then whined about everyone being so negative. Heck, if it weren’t for those other companies standing in the way, Google would have probably already solved world hunger. Well, except for all the laws and bureaucrats and journalists who are also standing in the way.

Fortunately, Page has an idea. What if Google could just build its own country with its own rules and do whatever it thought best for everyone?

“Maybe we can set aside part of the world,” he mused. “I like going to Burning Man. As a technologist maybe we need some safe places where we can try things and not have to deploy to the entire world.” (As The Verge noted in its live blog, “Larry wants a beta-test country, guys.”) He later lamented that people are reluctant to disclose their medical problems and speculated that the insurance industry was to blame. “We should change it so they have to insure people,” he said. “Maybe we have a safe place where people can go live in a world like that and see if it works.” Other tech companies could presumably come too, as long as they agreed to give Google free access to all their products and data and not to worry about making money themselves.

Help Larry out here, readers: What should he call his new country? Googletopia? Glassachusetts? Canada?

"OK, Google": Forget Web Search, Now You Can Hold a Conversation With Your Computer

Will Oremus — Wed, 15 May 2013 18:56:34 GMT

Forget “OK, Glass.” As of today, the hot new voice command is “OK, Google.” As in, “OK, Google: Show me things to do in Santa Cruz.”

At its I/O developer conference in San Francisco on Wednesday, Google announced a more-or-less mind-blowing set of new search features that will have you talking to your computer as if it’s a person—or, more specifically, as if it’s the Star Trek computer. Among them is a feature for its Chrome browser called “hot-wording” that lets you issue commands and ask questions of Google on your laptop or desktop machine by saying “OK, Google.” It answers both by voice and with Knowledge Graph cards as well as traditional Web-search resuls.

When Google VP Johanna Wright asked her browser to show her things to do in Santa Cruz, it responded, “OK. Here are some things to do in Santa Cruz,” and displayed images of Natural Bridges State Beach, Mission Santa Cruz, and the beach boardwalk. She homed in on the beach boardwalk and asked, “OK, Google: How far is it from here?” Note that she said "it" and "here," not "the Santa Cruz Beach Boardwalk" and "the Moscone Center." Nevertheless Google intuited her meaning and replied out loud: “The distance from your location to the Santa Cruz beach boardwalk is 73 miles.” At the same time, the browser pulled up a map and directions.

Earlier in the same presentation, fellow Google VP Amit Singhal showed how Google search is moving beyond the Web to organize your personal emails, photos, calendar appointments, and other information. A search for “pictures from my trip to London” brought up Singhal’s own snapshots from a vacation he took last year. A search for “my restaurant reservation” pulled up the time and location of his reservation for dinner tonight.

The features are the next steps in Google’s long-term progression from a search-engine website to a ubiquitous artificial-intelligence machine that can answer any question you have on whatever device you happen to be using at the time. For now that includes your smartphone, your tablet, and your computer. In the future it might include your smart watch or smart glasses, your self-driving car, and who knows what else.

Ok, Google: That’s pretty impressive.

For more on the new features, visit Google's Inside Search blog.

The U.S. Government Spies on Reporters All Too Frequently

Ryan Gallagher — Tue, 14 May 2013 19:37:14 GMT

On Monday, the Associated Press revealed that some of its reporters were recently spied on by the Justice Department in what it called a “massive and unprecedented intrusion.” The feds secretly obtained AP journalists’ phone records as part of what is believed to be an ongoing investigation into leaks of classified information. But it’s not the first time U.S. authorities have adopted draconian surveillance tactics to uncover journalists’ confidential sources.

The AP incident involved the DoJ obtaining two months of reporters’ phone records, which listed outgoing calls for the work and personal phone numbers of AP journalists and editors. AP said in a report published Monday that it was not clear whether the records also included incoming calls or the duration of the calls, but noted that “the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012.” The DoJ’s investigation is thought to be linked to an ongoing criminal investigation that is attempting to track down the source of leaks that led to a May 2012 scoop about a foiled terror plot planned by so-called “underpants bomber” Umar Farouk Abdulmutallab.

Typically, phone records obtained by the feds will show date, time, and duration of incoming and outgoing calls and/or text messages, according to the ACLU. While the data do not reveal the actual content of a call, they can be used to show a network of contacts and reveal relationships between people—information that is particularly sensitive for journalists working with confidential sources. The feds can input the records into a database before analyzing them using investigative software like the “i2 Analyst's Notebook,” a popular law enforcement tool sold by IBM. The raw phone records data can be transformed into detailed interactive charts that map out links between people. A few examples of what these charts look like can be found here, here, and here.

But obtaining phone records of journalists is an extreme course of action that has serious ramifications. There are special rules in place in the United States that authorities are supposed to adhere to when obtaining journalists’ communication records, and they’re intended to protect press freedom and stop prosecutors from compromising journalists’ constitutionally protected newsgathering role. Federal regulations instruct investigators that they can obtain journalists’ phone records only as a last resort, and the decision to seek the records should receive the “express authorization of the Attorney General.” The authorization should be given on the basis that “effective law enforcement and the fair administration of justice” is deemed, in the specific circumstances, to outweigh “the public’s interest in the free dissemination of ideas and information.”

In recent years, however, the FBI has flagrantly disregarded these rules on multiple occasions. A scathing 2010 review by the DoJ’s inspector general criticized how the feds had spied on Washington Post and New York Times reporters in a leaks investigation carried out in 2004. The feds obtained 22 months of reporters’ phone records “without any legal process or Attorney General approval,” the inspector found, which illustrated “the absence of internal controls” and was judged to be “negligent in various respects.” The same report detailed two other cases of the FBI obtaining reporters’ phone records without following the proper procedures. One of these cases was described as “deficient and troubling” and the other a “clear abuse of authority” that violated the Electronic Communication Privacy Act, federal regulation, and DoJ policy.

The legality of the feds’ latest snooping on journalists is already being called into question. AP President Gary Pruitt wrote a furious letter to Attorney General Eric Holder on Monday, demanding that the authorities “destroy all copies” of the records on AP reporters. Pruitt described the investigation as “a serious interference with AP’s constitutional rights to gather and report the news” and said there was “no possible justification” for the intrusion. Holder can expect to face a grilling on the matter Wednesday afternoon, when he is coincidentally scheduled to appear before a DoJ oversight hearing being held by the House Judiciary Committee.

It’s worth noting that the debacle comes amid an unprecedented wider crackdown on leaks instigated by the Obama administration’s DoJ, which has so far prosecuted more whistleblowers under the Espionage Act than all previous administrations combined. The targeting of AP journalists’ phone records to reveal confidential sources, like the ongoing criminal investigation into WikiLeaks for its publishing work, will stand as another egregious example of disproportionate action taken by a government attempting to assert its authority over state secrets like a high school bully on steroids. “The fact is I really do respect the press,” Obama said late last month in a speech at the White House correspondents’ dinner. But so long as his administration continues to target whistleblowers and reporters, those words will ring hollow.