Secret Terrorism-Espionage Wiretaps Increased in 2011

ABC News
By Jason Ryan
May 4, 2012

The Justice Department sought 1,745 secret wiretapping warrants in 2011, an increase of 239 over 2010, according to correspondence sent to Congressional leaders and oversight committees posted on the Justice Department website.  The secret warrants are governed under the Foreign Intelligence Surveillance Act (FISA) and are used in terrorist and espionage investigations by the FBI. The secret warrants are prepared by FBI agents and prosecutors to present to the secret Foreign Intelligence Surveillance Court in Washington.

Sent to Congressional leaders and Vice President Joseph Biden, the letter from Assistant Attorney General Ronald Weich said, “During the calendar year 2011, the government made 1,745 applications to the Foreign Intelligence Surveillance Court ( hereinafter FISC) …for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes.”

A copy of the letters can be viewed here.

The letter says that 1,676 of the applications were for electronic surveillance. It is impossible to determine based on the information made available if the 69 other warrants were for physical searches during terrorism and espionage investigations.  Some FISA warrants can cover both electronic intercepts and physical searches when FBI agents secretly enter an area and pull information off of computers or documents they are seeking as part of their investigation.

Justice Department spokesman Dean Boyd declined to comment on any specific reasons for the fluctuations in the numbers.

“The number of applications that the government submits to the Foreign Intelligence Surveillance Court (FISC) to conduct court-authorized surveillance in national security matters varies from year-to-year and depends on myriad of different factors.  The annual numbers have gone up and down and up over the past decade.”  Boyd said when asked about the change in numbers.

The number of FISA applications was highest in 2007 when there were 2,370 applications to conduct electronic and physical surveillance. The number steadily grew after the 9/11 attacks.

Changes to the law in 2008 by Congress changed parts of the law, and the numbers dropped significantly.  Before the changes were enacted a FISA warrant was needed to conduct surveillance on two foreign targets overseas if the surveillance was conducted for communications that passed on any U.S.-based circuits such as emails or Internet phones that may be routed through U.S. computer servers.

The Bush administration had established the controversial Terrorist Surveillance Program which allowed the NSA to wiretap terrorism suspects inside the United States if they were contacting known al Qaeda suspects overseas without a FISA warrant. The program known as Stellar Wind was eventually canceled and brought under review by the FISC.

The new Justice Department letter dated April 30, 2012 also notes that the FBI issued 16,511 National Security Letters (NSL) to obtain certain records and information in investigations. The letter asserts that the requests were for investigations relating to 7,201 different US persons. The number of National Security Letters declined dramatically from 2010 when the FBI had sought 24,287 NSLs.

In the immediate years after the 9/11 attacks the Justice Department Inspector General found that NSLs were overused by FBI agents to gather information.

The FBI submitted 205 requests to the Foreign Intelligence Surveillance Court under Section 215 of the USA PATRIOT Act, the so-called “Library Provision,” which allows the FBI to obtain business record information. This number almost doubled when compared to the 2010 numbers when 96 section 215 orders were submitted to the court.

Certain sections of the Foreign Intelligence Surveillance Act are slated to expire at the end of 2012. Attorney General Eric Holder and Director of National Intelligence James Clapper sent a letter in February to Congressional leaders urging them to reauthorize the sections of the law that are set to expire.

A background policy paper prepared by the Justice Department and the Director of National Intelligence said, “It is essential that these authorities remain in place without interruption — and without threat of interruption — so that those who have been entrusted with their use can continue to protect the nation from its enemies.”

 

Direct Link:  http://abcnews.go.com/blogs/politics/2012/05/secret-terrorism-espionage-wiretaps-increased-in-2011/

 

 

 

U.S. Agents Aided Mexican Drug Trafficker to Infiltrate His Criminal Ring

 

The New York Times

By GINGER THOMPSON
January 9, 2012

 

Reuters
Harold Mauricio Poveda-Ortega, an accused Colombian drug trafficker, in custody in 2010.

 

WASHINGTON — American drug enforcement agents posing as money launderers secretly helped a powerful Mexican drug trafficker and his principal Colombian cocaine supplier move millions in drug proceeds around the world, as part of an effort to infiltrate and dismantle the criminal organizations wreaking havoc south of the border, according to newly obtained Mexican government documents.

The documents, part of an extradition order by the Mexican Foreign Ministry against the Colombian supplier, describe American counternarcotics agents, Mexican law enforcement officials and a Colombian informant working undercover together over several months in 2007. Together, they conducted numerous wire transfers of tens of thousands of dollars at a time, smuggled millions of dollars in bulk cash — and escorted at least one large shipment of cocaine from Ecuador to Dallas to Madrid.

The extradition order — obtained by the Mexican magazine emeequis and shared with The New York Times — includes testimony by a Drug Enforcement Administration special agent who oversaw a covert money laundering investigation against a Colombian trafficker named Harold Mauricio Poveda-Ortega, also known as “The Rabbit.” He is accused of having sent some 150 tons of cocaine to Mexico between 2000 and 2010. Much of that cocaine, the authorities said, was destined for the United States.

Last month, The Times reported that these kinds of operations had begun in Mexico as part of the drug agency’s expanding role in that country’s fight against organized crime. The newly obtained documents provide rare details of the extent of that cooperation and the ways that it blurs the lines between fighting and facilitating crime.

Morris Panner, a former assistant United States attorney who is an adviser at the Center for International Criminal Justice at Harvard, said there were inherent risks in international law enforcement operations. “The same rules required domestically do not apply when agencies are operating overseas,” he said, “so the agencies can be forced to make up the rules as they go along.” Speaking about the Drug Enforcement Agency’s money laundering activities, he said: “It’s a slippery slope. If it’s not careful, the United States could end up helping the bad guys more than hurting them.”

Shown copies of the documents, a Justice Department spokesman did not dispute their authenticity, but declined to make an official available to speak about them. But in a written statement, the D.E.A. strongly defended its activities, saying that they had allowed the authorities in Mexico to kill or capture dozens of high-ranking and midlevel traffickers.

“Transnational organized groups can be defeated only by transnational law enforcement cooperation,” the agency wrote. “Such cooperation requires that law enforcement agencies — often from multiple countries — coordinate their activities, while at the same time always acting within their respective laws and authorities.”

The documents make clear that it can take years for these investigations to yield results. They show that in 2007 the authorities infiltrated Mr. Poveda-Ortega’s operations. Mr. Poveda-Ortega was considered the principal cocaine supplier to the Mexican drug cartel leader Arturo Beltran Leyva. Two years later, Mexican security forces caught up with and killed Mr. Beltran Leyva in a gunfight about an hour outside of Mexico City.

As for Mr. Poveda-Ortega, in 2008 he escaped a raid on his mansion outside Mexico City in which the authorities detained 15 of his associates and seized hundreds of thousands of dollars, along with two pet lions. But the authorities finally captured him in Mexico City in November 2010.

According to the newly obtained documents, Mexico agreed to extradite Mr. Poveda-Ortega to the United States last May. But the American authorities refused to say whether the extradition had occurred.

“That’s how long these investigations take,” said an American official in Mexico who would speak only on the condition that he not be identified discussing secret law enforcement operations. “They are an enormously complicated undertaking when it involves money laundering, wires, everything.”

The documents, which read in some parts like a dry legal affidavit and in others like a script for a B-movie, underscore that complexity. They mix mind-numbing lists of dates and amounts of illegal wire transfers that were conducted during the course of the investigation.

One scene described in the documents depicts the informant making deals to launder money during meetings with traffickers at a Mexico City shopping mall. Another describes undercover D.E.A. agents in Texas posing as pilots, offering to transport cocaine around the world for $1,000 per kilo.

Related

Those accounts come from the testimony by a D.E.A. special agent who described himself as a 12-year veteran and a resident of Texas. There is also testimony by a Colombian informant who posed as a money launderer and began collaborating with the D.E.A. after he was arrested on drug charges in 2003. The Times is withholding the agent’s and the informant’s names for security reasons.

In January 2007, the informant reached out to associates of Mr. Poveda-Ortega and began talking his way into a series of money-laundering jobs — each one bigger than the last — that helped him win the confidence of low-level traffickers and ultimately gain access to the kingpins.

A handful of undercover D.E.A. agents, according to the documents, posed as associates to the informant, including the two who offered their services as pilots and another who told the traffickers that he had several businesses that gave him access to bank accounts that the traffickers could use to deposit and disperse their drug money.

In June 2007, the traffickers bit, asking the informant to give them an account number for their deposits. And over a four-day period in July, they transferred tens of thousands of dollars at a time from money exchange houses in Mexico into an account the D.E.A. had established at a Bank of America branch in Dallas.

According to the testimony, the traffickers’ deposits totaled $1 million. And on the traffickers’ instructions, the informant withdrew the money and the D.E.A. arranged for it to be delivered to someone in Panama.

Testimony by the informant suggests that the traffickers were pleased with the service.

“At the beginning of August 2007, Harry asked my help receiving $3 million to $4 million in American money to be laundered,” the informant testified, referring to one of the Colombian traffickers involved in the investigation. “During subsequent recorded telephone calls I told Harry I couldn’t handle that much money.” Still, the informant and the D.E.A. tried to keep up. On one occasion, they enlisted a Mexican undercover law enforcement agent to pick up $499,250 from their trafficking targets in Mexico City. And a month later, that same agent picked up another load valued at more than $1 million.

The more the money flowed, the stronger the relationship became between the informants and the traffickers. In one candid conversation, the traffickers boasted about who was able to move the biggest loads of money, the way fishermen brag about their catches. One said he could easily move $4 million to $5 million a month. Then the others spoke about the tricks of the trade, including how they had used various methods, including prepaid debit cards and an Herbalife account, to move the money.

The next day, the informant was summoned to his first meeting in Mexico City with Mr. Poveda-Ortega and Mr. Beltran Leyva, who asked him to help them ship a 330-kilogram load to Spain from Ecuador. The documents say the shipment was transported over two weeks in October, with undercover Ecuadorean agents retrieving the cocaine from a tour bus in Quito and American agents testing its purity in Dallas before sending it on to Madrid.

The testimony describes the informant reassuring the traffickers in code, using words like “girlfriend” or “chick” to refer to the cocaine, and saying that she had arrived just fine. But in reality, the testimony indicates, the Spanish authorities, tipped off in advance by the D.E.A., seized the load shortly after its arrival, rather than risk losing it.

 

Direct Link:  http://www.nytimes.com/2012/01/09/world/americas/us-agents-aided-mexican-drug-trafficker-to-infiltrate-ring.html?_r=1&nl=todaysheadlines&emc=tha22

 

Fast and Furious Scandal Cries Out for Answers

Fox News
Dec. 8, 2011

 

 

Attorney General Eric Holder testifies on Capitol Hill in Washington before the House Judiciary Committee. (AP)
The “Fast & Furious” scandal is getting messier and messier. New e-mails finally released late this past Friday reveal that the Department of Justice personal viewed the then-secret operation as a way to push for more gun control laws. Despite administration promises to the contrary, whistleblowers have endured “isolation, retaliation and transfer.”

Meanwhile the operation’s managers have done pretty well, some have even received promotions.

Thursday Attorney General Eric Holder admitted that the operation was “wholly unacceptable,” but he still offers absolutely no explanation to explain why the program was instituted.


Related Video: New reaction to Fast, Furious testimony

Statement from Fast and Furious hearing

What’s going on here? Let’s see…

- You have a government agency ordering gun dealers to make sales to suspected criminals that the dealers didn’t want to sell to.

- You have government agents testifying that the being purchased were not being traced. No attempt was made to even alert the Mexican government that the United States of America was given guns to drug gangs in their country.

Up until now the only justification from the Obama administration for this “program” is that the Bush administration supposedly did the same thing with operation “Wide Receiver.”

In fact, it is a defense that the Justice Department and Congressional Democrats have raise multiple times. Congressman Elijah Cummings’ office just made this defense on Wednesday.

But the “Fast & Furious” and “Wide Receiver” programs are not remotely similar on the most important fact: The Bush administration tried to trace the guns and informed the Mexican authorities when the guns went across the border, but the Obama administration did not.

And it is well-known how ineffective tracing programs have been anyway.

The problem is that if “Wide Receiver” failed in tracing the guns and was subsequently shutdown, why is the solution to not even bother to try tracing the firearms? Holder’s conclusion in testimony before Congress was simply: “Guns lost during this operation will continue to show up at crime scenes on both sides of the border.”

Would Holder have been as forgiving if a gun dealer had been caught intentionally doing the same thing that the Obama administration has been caught doing?

The new e-mails documenting Justice Department discussions on the political benefits from the “Fast & Furious” program are disturbing and they are only going to give more ammunition to conspiracy theorists for why the Obama administration instituted the program to begin with.

People who haven’t trusted the Obama administration on this issue have already pointed out that “Fast & Furious” started pushing guns into Mexico at the same time that the Obama administration was making its inaccurate claims about the United States being a major source of Mexican crime guns.

The new internal messages reveal that in early January this year, a month before there was any publicity about “Fast & Furious,” Department of Justice personnel were pointing out: “this case ["Fast & Furious] could be a strong supporting factor [for new regulations] if we can determine how many multiple sales of long guns occurred during the course of this case.”

More evidence has also surfaced showing how uncomfortable gun dealers were in selling these guns that they didn’t want to sell. One dealer wrote BATF officials in April 2010: “[W]e were hoping to put together something like a letter of understanding to alleviate concerns of some type of recourse against us down the road for selling these items. We just want to make sure we are cooperating with ATF and that we are not viewed as selling to the bad guys.”

Unfortunately, Holders’ testimony Thursday didn’t make things any clearer. His definition of “lying” depending on one’s state of mind sounded positively Clintonian.

But ultimately the Obama administration still faces a bigger problem. Can they ever come up with any remotely plausible explanation for why anyone would have started a program to push untraceable guns into Mexico? The longer it takes to provide an explanation, the more plausible the conspiracy theorists sound that this was all done for politics.
Direct Link:  http://www.foxnews.com/opinion/2011/12/09/fast-and-furious-scandal-cries-out-for-answers/#ixzz1g6EZxNGO

 

 

U.S. Agents Launder Mexican Profits of Drug Cartels
The New York Times
Josue Gonzalez/Reuters
December 3, 2011


A crime scene in Monterrey, Mexico, last week. Drug-related violence has claimed the lives of more than 40,000 people since late 2006, Mexican officials say.
By GINGER THOMPSON

WASHINGTON — Undercover American narcotics agents have laundered or smuggled millions of dollars in drug proceeds as part of Washington’s expanding role in Mexico’s fight against drug cartels, according to current and former federal law enforcement officials.

The agents, primarily with the Drug Enforcement Administration, have handled shipments of hundreds of thousands of dollars in illegal cash across borders, those officials said, to identify how criminal organizations move their money, where they keep their assets and, most important, who their leaders are.

They said agents had deposited the drug proceeds in accounts designated by traffickers, or in shell accounts set up by agents.

The officials said that while the D.E.A. conducted such operations in other countries, it began doing so in Mexico only in the past few years. The high-risk activities raise delicate questions about the agency’s effectiveness in bringing down drug kingpins, underscore diplomatic concerns about Mexican sovereignty, and blur the line between surveillance and facilitating crime. As it launders drug money, the agency often allows cartels to continue their operations over months or even years before making seizures or arrests.

Agency officials declined to publicly discuss details of their work, citing concerns about compromising their investigations. But Michael S. Vigil, a former senior agency official who is currently working for a private contracting company called Mission Essential Personnel, said, “We tried to make sure there was always close supervision of these operations so that we were accomplishing our objectives, and agents weren’t laundering money for the sake of laundering money.”

Another former agency official, who asked not to be identified speaking publicly about delicate operations, said, “My rule was that if we are going to launder money, we better show results. Otherwise, the D.E.A. could wind up being the largest money launderer in the business, and that money results in violence and deaths.”

Those are precisely the kinds of concerns members of Congress have raised about a gun-smuggling operation known as Fast and Furious, in which agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed people suspected of being low-level smugglers to buy and transport guns across the border in the hope that they would lead to higher-level operatives working for Mexican cartels. After the agency lost track of hundreds of weapons, some later turned up in Mexico; two were found on the United States side of the border where an American Border Patrol agent had been shot to death.

Former D.E.A. officials rejected comparisons between letting guns and money walk away. Money, they said, poses far less of a threat to public safety. And unlike guns, it can lead more directly to the top ranks of criminal organizations.

“These are not the people whose faces are known on the street,” said Robert Mazur, a former D.E.A. agent and the author of a book about his years as an undercover agent inside the Medellín cartel in Colombia. “They are super-insulated. And the only way to get to them is to follow their money.”

Another former drug agency official offered this explanation for the laundering operations: “Building up the evidence to connect the cash to drugs, and connect the first cash pickup to a cartel’s command and control, is a very time consuming process. These people aren’t running a drugstore in downtown L.A. that we can go and lock the doors and place a seizure sticker on the window. These are sophisticated, international operations that practice very tight security. And as far as the Mexican cartels go, they operate in a corrupt country, from cities that the cops can’t even go into.”

The laundering operations that the United States conducts elsewhere — about 50 so-called Attorney General Exempt Operations are under way around the world — had been forbidden in Mexico after American customs agents conducted a cross-border sting without notifying Mexican authorities in 1998, which was how most American undercover work was conducted there up to that point.

But that changed in recent years after President Felipe Calderón declared war against the country’s drug cartels and enlisted the United States to play a leading role in fighting them because of concerns that his security forces had little experience and long histories of corruption.


The Reach of Mexico’s Drug Cartels

Today, in operations supervised by the Justice Department and orchestrated to get around sovereignty restrictions, the United States is running numerous undercover laundering investigations against Mexico’s most powerful cartels. One D.E.A. official said it was not unusual for American agents to pick up two or three loads of Mexican drug money each week. A second official said that as Mexican cartels extended their operations from Latin America to Africa, Europe and the Middle East, the reach of the operations had grown as well. When asked how much money had been laundered as a part of the operations, the official would only say, “A lot.”

“If you’re going to get into the business of laundering money,” the official added, “then you have to be able to launder money.”

Former counternarcotics officials, who also would speak only on the condition of anonymity about clandestine operations, offered a clearer glimpse of their scale and how they worked. In some cases, the officials said, Mexican agents, posing as smugglers and accompanied by American authorities, pick up traffickers’ cash in Mexico. American agents transport the cash on government flights to the United States, where it is deposited into traffickers’ accounts, and then wired to companies that provide goods and services to the cartel.

In other cases, D.E.A. agents, posing as launderers, pick up drug proceeds in the United States, deposit them in banks in this country and then wire them to the traffickers in Mexico.

The former officials said that the drug agency tried to seize as much money as it laundered — partly in the fees the operatives charged traffickers for their services and another part in carefully choreographed arrests at pickup points identified by their undercover operatives.

And the former officials said that federal law enforcement agencies had to seek Justice Department approval to launder amounts greater than $10 million in any single operation. But they said that the cap was treated more as a guideline than a rule, and that it had been waived on many occasions to attract the interest of high-value targets.

“They tell you they’re bringing you $250,000, and they bring you a million,” one former agent said of the traffickers. “What’s the agent supposed to do then, tell them no, he can’t do it? They’ll kill him.”

It is not clear whether such operations are worth the risks. So far there are few signs that following the money has disrupted the cartels’ operations, and little evidence that Mexican drug traffickers are feeling any serious financial pain. Last year, the D.E.A. seized about $1 billion in cash and drug assets, while Mexico seized an estimated $26 million in money laundering investigations, a tiny fraction of the estimated $18 billion to $39 billion in drug money that flows between the countries each year.

Mexico has tightened restrictions on large cash purchases and on bank deposits in dollars in the past five years. But a proposed overhaul of the Mexican attorney general’s office has stalled, its architects said, as have proposed laws that would crack down on money laundered through big corporations and retail chains.

“Mexico still thinks the best way to seize dirty money is to arrest a trafficker, then turn him upside down to see how much change falls out of his pockets,” said Sergio Ferragut, a professor at the Autonomous Technological Institute of Mexico and the author of a book on money laundering, which he said was “still a sensitive subject for Mexican authorities.”

Mr. Calderón boasts that his government’s efforts — deploying the military across the country — have fractured many of the country’s powerful cartels and led to the arrests of about two dozen high-level and midlevel traffickers.

But there has been no significant dip in the volume of drugs moving across the country. Reports of human rights violations by police officers and soldiers have soared. And drug-related violence has left more than 40,000 people dead since Mr. Calderón took office in December 2006.

The death toll is greater than in any period since Mexico’s revolution a century ago, and the policy of close cooperation with Washington may not survive.

“We need to concentrate all our efforts on combating violence and crime that affects people, instead of concentrating on the drug issue,” said a former foreign minister, Jorge G. Castañeda, at a conference hosted last month by the Cato Institute in Washington. “It makes absolutely no sense for us to put up 50,000 body bags to stop drugs from entering the United States.”

Direct Link: http://www.nytimes.com/2011/12/04/world/americas/us-drug-agents-launder-profits-of-mexican-cartels.html

 

FBI arrests 7 Amish men on hate-crime charges
L.A. TIMES
by Michael Muskal
November 23, 2011


FBI agents on Wednesday raided an Ohio compound and arrested seven Amish men on hate charges in connection with haircutting attacks on other members of the usually isolated Christian religion.

The early morning arrests opened a window in the world of the Amish, who are known for shunning modern conveniences, using horses and buggies rather than cars, and preferring to deal with their problems within their traditional and ordered communities, without going to outside civil authorities.

Court papers, distributed by the Justice Department after the raid, paint a picture of those arrested as a schismatic group with some of the attributes of a cult, at battle with the traditionalist and pacifist religion.

At the center of the splinter group is Samuel Mullet Sr., who with his family and followers left the established Amish community in Frederickstown, Ohio, in 1995 to establish a separate group in Bergholz, Ohio. Ohio ranks right behind Pennsylvania with the second-largest number of Amish, about 61,000 in the rural areas outside Cleveland.

In addition to Mullet, the Justice Department said that his sons, Johnny, Daniel and Lester, were also arrested, as was Emanuel Schrock, Mullett’s son-in-law. Levi F. Miller and Eli M. Miller, identified as members of the Bergholz community, were also arrested.

All are charged with conspiring to carry out a series of assaults over the last few months on Amish men and women, cutting off their beards and head hair with scissors and battery-powered clippers. The acts were especially heinous to the Amish who believe there is a biblical injunction to shaving when men marry.

If convicted, the suspects face up to life in prison, the government said.

Wednesday’s raids cap years of disputes between Mullet and other parts of the Amish community. In 2005, eight families who were part of Mullet’s group moved away from Bergholz, citing religious differences. Mullet, as head of the splinter group, excommunicated those who left.

But in keeping with Amish policies, other bishops investigated the excommunication and overturned Mullet’s decision and allowed the families to join other Amish communities in Ohio, according to an affidavit filed with the criminal complaint.

One of the victims of the haircutting was a bishop who served on the committee that overturned the excommunications, according to court papers.

According to the affidavit, Mullet’s daughter-in-law and former son-in-law explained how Mullet “controls all aspects of the lives of the Bergholz clan members. … In disregard for Amish teachings and scripture, Samuel Mullet Sr. has forced extreme punishments and physical injury to those in the community who defy him, including forcing members to sleep for days at a time in a chicken coop” and allowing others to beat those who disobey.

In addition, the pair alleged that Mullet “has been ‘counseling’ the married women in the Bergholz clan and taking them into his home so that he may cleanse them of the devil with acts of sexual intimacy.”

In an October interview with the Associated Press, Mullet said that he didn’t order the haircutting but didn’t stop his sons and others from carrying it out. He said the goal of the haircutting was to send a message to local Amish that they should be ashamed of themselves for the way they were treating Mullet and his community, according to the court papers.

“They changed the rulings of our church here, and they’re trying to force their way down our throat, make us do like they want us to do, and we’re not going to do that,” Mullet said.

Direct Link: http://latimesblogs.latimes.com/nationnow/2011/11/fbi-arrests-7-amish-men-on-hate-crime-charges-.html

 

Fib on Facebook? U.S. Law Calls It Criminal, Critics Warn
By Judson Berger
November 17, 2011

Ever fib about your age on a dating site?

 

What about on Facebook?

These infractions could be a federal crime under an obscure 1986 anti-hacking law that was passed well before the advent of social networking sites. Advocacy groups on both sides of the aisle are now pressing lawmakers to re-write the law, to prevent an administration push to toughen penalties from treating online mischief-makers the same as criminal hackers.

The debate centers on a law known as the Computer Fraud and Abuse Act, which has been broadened several times since 1986. Critics of the law point most frequently to a section that imposes penalties on anyone who knowingly “exceeds authorized access” on a computer to obtain information.

“Authorized access,” they warn, could refer to anything from a website’s “Terms of Use” agreement to an employer’s restrictions on computer use. They cite cases where federal prosecutors have charged individuals for breaching these agreements — and question whether that standard could hold casual slip-ups on the Internet to the same standard as malicious cyber-criminal activity.

“Now it is possible for someone to be prosecuted for violating the user agreement in a social networking site,” Rep. Bobby Scott, D-Va., said at a hearing Tuesday on Capitol Hill.

The hearing by a House Judiciary subcommittee marked the latest public debate in D.C. over the law.

The Obama administration is currently pushing to increase penalties under the Computer Fraud and Abuse Act. The Department of Justice downplays concerns about the broadness of the language, and stresses that the government is trying to deter serious cyber-threats and cyber-criminals — such as the mass theft of credit card data.

But Berin Szoka, president of TechFreedom, said it’s critical that Congress make sure the law targets real criminals.

“Hacking is a real problem,” he told FoxNews.com. “But … any effort to expand (the law) has to also insure that the law is not used to criminalize violations of terms of service.”

George Washington University Law Professor Orin Kerr testified on Capitol Hill Tuesday that as written, the law criminalizes routine computer use in a way that could implicate just about anybody.

For instance, Kerr noted that while he lives in Arlington, Va., his Facebook profile states that he lives in Washington, D.C.

“According to the Justice Department, I violate federal criminal law every time I log in,” Kerr said. Kerr suggested tweaking the language of the law to clarify that it does not apply to people who violate “terms of service” agreements.

The Justice Department, however, argues that the language in the law on “authorized access” should stand to give the department the tools it needs to prosecute bona fide criminals.

“Restricting the statute in this way would make it difficult or impossible to deter and address serious insider threats through prosecution,” Justice official Richard Downing said in written testimony submitted to the House Judiciary Committee.

Downing explained that most employers have “clear and reasonable restrictions” on how sensitive computer data can be accessed by employees. The department, he said, prosecutes people who violate those rules to obtain sensitive information. Changing the law would prevent prosecution of “serious insider cases” — for instance, a health insurance administrator accessed hundreds of thousands of worker names and Social Security numbers in 2006, and was prosecuted under this law.

Kerr praised the Senate Judiciary Committee for recently amending the law in an attempt to narrow its scope to ensure that routine computer usage is not criminalized. The Senate committee in September approved an amendment that would exempt people whose only infraction is a violation of a user agreement.

A House Judiciary Committee aide told FoxNews.com that the Justice Department is “concerned” about the action taken by the Senate. The House, though, has not yet taken up any proposal on the issue.

Asked for comment, a Justice Department spokesman referred back to Downing’s testimony.

Kerr and several other groups appealed to Congress back in August to change the law. In a joint letter, they expressed concern about an “overbroad application of the law.” A key concern is that by relying on terms of use agreements, the courts would effectively allow those contractual agreements to define what is and is not a criminal act.

“If a person assumes a fictitious identify at a party, there is no federal crime,” the letter said. “Yet if they assume that same identity on a social network that prohibits pseudonyms, there may again be a CFAA violation.”

The organizations on the letter included the American Civil Liberties Union, the Electronic Frontier Foundation, the Center for Democracy and Technology and conservative groups like FreedomWorks and Americans for Tax Reform.

While defending the law, Downing pressed for increasing maximum penalties on some violations.

He claimed cyber-crimes are still treated more delicately in U.S. law than related physical crimes. Downing, the deputy chief at the computer crime division, noted the maximum penalty for computer fraud is five years, but 20 years for mail and wire fraud.

“Criminals from across the country and around the world are taking advantage of the relative anonymity provided by the Internet to compromise our critical infrastructure, obtain trade secrets, intrude into bank accounts, and steal the personal and financial information of ordinary Americans,” Downing said. “Federal law needs to more effectively deter this spreading criminality.”

Though the Justice Department has used the law to go after those who violate terms of service agreements, its track record is spotty. In perhaps the most famous case in recent history, a federal judge threw out the 2008 convictions against Missouri mother Lori Drew. Drew was prosecuted under the Computer Fraud and Abuse Act for creating a fake MySpace page, in violation of MySpace’s terms, and using it to harass a teenage girl who later killed herself.

Direct Link: http://www.foxnews.com/politics/2011/11/17/fib-on-facebook-us-law-calls-it-criminal-critics-warn/#ixzz1e1MFT83I

 

Justice Dept. proposes lying, hiding existence of records under new FOIA rule
The DAILY CALLER
10/25/2011
By C.J. Ciaramella

A classified folder rests President Barack Obama’s desk during a morning meeting in the Oval Office, June 8, 2009. (Official White House Photo by Pete Souza)

This official White House photograph is being made available for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way or used in materials, advertisements, products, or promotions that in any way suggest approval or endorsement of the President, the First Family, or the White House.

A proposed revision to Freedom of Information Act rules would allow federal agencies to lie to citizens and reporters seeking certain records, telling them the records don’t exist.

The Justice Department has proposed the change as part of a large revision of FOIA rules for federal agencies. Specifically, the rule would direct government agencies who are denying a request under an established FOIA exemption to “respond to the request as if the excluded records did not exist,” rather than citing the relevant exemption.

The proposed rule has alarmed government transparency advocates across the political spectrum, who’ve called it “Orwellian” and say it will “twist” public access to government.

The draft FOIA revisions were first published in March, but the Justice Department re-opened comment submissions in September after several open-government groups raised objections. A Justice Department spokesperson said the agency is committed to public input and transparency, which is why it re-opened public comments on the rule — an unusual step in the process.

In a public comment regarding the rule change, the ACLU, along with Citizens for Responsibility and Ethics in Washington (CREW) and OpenTheGovernment.org, said the move “will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people.”

Anne Weismann, the chief counsel of CREW, said the Justice Department has a legitimate purpose behind the rules: to protect sensitive information about ongoing investigations. However, she said lying about the records “is an overbroad and improper response.”

“The problem is, if you’re a FOIA requester and the agency says they don’t have the records, you have no reason to doubt that,” Weismann said. “But if they cite an exemption, you have the option to sue.”

Those groups have suggested an alternate federal response that would not require any revisions to the rules. “We interpret all or part of your request as a request for records which, if they exist, would not be subject to the disclosure requirements of FOIA pursuant to section 552(c), and we therefore will not process that portion of your request.”

Conservative government watchdog Judicial Watch has also lambasted the proposed rules change. (RELATED: Obama admin. pulls references to Islam from terror training materials, official says)

The news is “not surprising, coming from the Obama administration,” said Christopher J. Farrell, director of investigations and research at Judicial Watch.

“The Obama administration is already doing it right now by actively misleading the public concerning White House visitor logs,” Farrell said. “Every day, the Obama administration misrepresents and conceals the true, complete record of who is going in and out of the White House — all the while proclaiming themselves champions of transparency. It’s truly Orwellian. The proposed rule change should be rejected.”

However, the Justice Department says it has long had this standing authority. A 1987 memo from then-Attorney General Edwin Meese III advises the Justice Department that it has the legal authority to deny existence of records, using the same language as the new rule.

“Where an exclusion is employed, the agency is legally empowered to ‘treat’ the excluded records as not subject to the FOIA at all,” Meese wrote. “Accordingly, a requester can properly be advised in such a situation that “there exist no records responsive to your FOIA request.” Such phrasing — as opposed to any more detailed statement that, for example, any records specified in a particular request ‘could not be located’ — most rationally and fairly implements an exclusion’s effect.”

If the new rule were to go into effect, there is a good chance it might be challenged in court. Courts have traditionally given the Justice Department fairly broad powers regarding records disclosure, but recent precedent may give the DOJ trouble.

In a case involving the FBI and records disclosure, U.S. District Judge Cormac Carney wrote that the “Government cannot, under any circumstance, affirmatively mislead the Court.”

Under current FOIA practice, the government may withhold information and issue a denial saying it can neither confirm nor deny the existence of records. Such a denial is known as a “Glomar response” — named after the legal battle between the Los Angeles Times and the CIA in the 1970s over records concerning the CIA’s attempts to salvage a sunken Soviet submarine.

Upon taking office, President Obama released a memorandum declaring his administration was “committed to operating with an unprecedented level of openness. Specifically, he pledged to bolster the strength of the FOIA act, calling it “the most prominent expression of a profound national commitment to ensuring an open government.”

Read more: http://dailycaller.com/2011/10/24/justice-dept-proposes-lying-hiding-existence-of-records-under-new-foia-rule/#ixzz1dtVFZwB7

 

Justice Dept. Drops Non-Disclosure Proposal For FOIA Requests
NPR News
November 4, 2011
by EYDER PERALTA

The United States Justice Department announced, yesterday, that it was dropping a proposed controversial rule that would allow it to deny the existence of sensitive documents requested under the Freedom of Information Act.

Sen. Chuck Grassley, a Republican from Iowa, sent a letter to the Justice Department about the rule and in a press release said the department had told him it was dropping plans to implement it. Grassley said:

Grassley said that while the proposed regulation is being stopped, there remain questions about how agencies handle these requests. He said that there’s a balance that needs to be struck between ensuring national security or other sensitive requests and the public’s right to know.

“The Justice Department decided that misleading the American people would be wrong, and made the right decision to pull the proposed regulation. The American people are increasingly cynical with the federal government, and increasing transparency can be an important tool to build more trust,” Grassley said. “In other words, the public’s business ought to be public.”

The controversy stems from an effort by the Justice Department to codify a longstanding policy known as a “Glomar denial,” which allows the government to “neither confirm nor deny” the existence of records. That rule was used sparingly. The AP reports:

There were three types of requests where Meese’s order allowed such a response because they involved sensitive law enforcement operations.

First, the government could tell FOIA requesters that it had no records if merely confirming their existence would tip off people they were under criminal investigation. The other two situations — known legally as “exclusions” — were when federal law enforcement agencies needed to issue a denial to protect the identities of informants and when the FBI was asked for records about foreign intelligence or counterintelligence or international terrorism.

Under the proposed rule, the requester would lawfully have been told that no records responsive to a FOIA request exist.

Codifying the policy was opposed by the American Civil Liberties Union and other open government advocates.

Direct Link: http://www.npr.org/blogs/thetwo-way/2011/11/04/142024547/justice-dept-drops-non-disclosure-proposal-for-foia-requests

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