Too Big To Comply? NSA Says It’s Too Large, Complex to Comply With Court Order
06/10/2014


NSA
By Patrick C. Toomey, Staff Attorney, ACLU National Security Project at 9:52am

In an era of too-big-to-fail banks, we should have known it was coming: An intelligence agency too big to rein in — and brazen enough to say so.

In a remarkable legal filing on Friday afternoon, the NSA told a federal court that its spying operations are too massive and technically complex to comply with an order to preserve evidence. The NSA, in other words, now says that it cannot comply with the rules that apply to any other party before a court — the very rules that ensure legal accountability — because it is too big.

The filing came in a long-running lawsuit filed by the Electronic Frontier Foundation challenging the NSA's warrantless collection of Americans' private data. Recently, the plaintiffs in that case have fought to ensure that the NSA is preserving relevant evidence — a standard obligation in any lawsuit — and not destroying the very data that would show the agency spied on the plaintiffs' communications. Yet, as in so many other instances, the NSA appears to believe it is exempt from the normal rules.

In its filing on Friday, the NSA told the court:

    [A]ttempts to fully comply with the Court's June 5 Order would be a massive and uncertain endeavor because the NSA may have to shut down all databases and systems that contain Section 702 information in an effort to comply.

For an agency whose motto is "Collect It All," the NSA's claim that its mission could be endangered by a court order to preserve evidence is a remarkable one. That is especially true given the immense amount of data the NSA is known to process and warehouse for its own future use.

The NSA also argued that retaining evidence for EFF's privacy lawsuit would put it in violation of other rules designed to protect privacy. But what the NSA presents as an impossible choice between accountability and privacy is actually a false one. Surely, the NSA — with its ability to sift and sort terabytes of information — can devise procedures that allow it to preserve the plaintiffs' data here without retaining everyone's data.

The crucial question is this: If the NSA does not have to keep evidence of its spying activities, how can a court ever test whether it is in fact complying with the Constitution?

Perhaps most troubling, the new assertions continue the NSA's decade-long effort to evade judicial review — at least in any public court. For years, in cases like the ACLU's Amnesty v. Clapper, the NSA evaded review by telling courts that plaintiffs were speculating wildly when they claimed that the agency had intercepted their communications. Today, of course, we know those claims were prescient: Recent disclosures show that the NSA was scanning Americans' international emails en masse all along. Now, the NSA would put up a new roadblock — claiming that it is unable to preserve the very evidence that would allow a court to fully and fairly review those activities.

As Brett Max Kaufman and I have written before, our system of oversight is broken — this is only the latest warning sign flashing red. The NSA has grown far beyond the ability of its overseers to properly police its spying activities. That includes the secret FISA Court, which has struggled to monitor the NSA's compliance with basic limits on its surveillance activities. It includes the congressional oversight committees, which operate with too little information and too often appear captive to the interests of the intelligence community. And, now we are to believe, it includes the public courts as well.

No intelligence agency should be too big to be accountable to the rule of law.

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NSA Can Listen To You Through Your Phone – Even When It’s Off
1:44 PM 06/10/2014


National Security Agency leaker Edward Snowden told the world last month that the agency can eavesdrop through the microphones of cellphones even when they’re switched off — a claim experts have now confirmed.

According to a team of security researchers cited in a Mirror report, a hack for such surveillance lies within Apple’s iPhone software, which is capable of “playing dead” while it’s still turned on.

Los Angeles hardware engineer Eric McDonald explains that though an iPhone appears to be shutting down when switched off, it is actually entering a low-power mode that leaves essential communication chips still functional.

In this state, the handset can still receive commands – like being told to turn on its microphone.

“The screen would look black and nothing would happen if you pressed buttons but it’s conceivable that the baseband [the cellular function] is still on, or turns on periodically,” McDonald said. “And it would be very difficult to know whether the phone has been compromised.”

“An ‘implant’ is when the NSA intercepts your phone and installs hardware or software on it,” security consultant Robert David Graham wrote in his Errata Security blog.

According to Graham, getting the implant into the phone in the first place is “difficult,” but once there, the agency can usurp complete control of the device. Implants can be installed via a phone’s Internet connection, cellular network, or physical interception.

“Once the NSA installs an implant, then of course they can remotely ‘power on’ your phone, because it’s not really powered off — even when you think it is.”

American and British law enforcement and intelligence services have used mobile phones to surveil targets for years. A technique discovered in 2006 called “roving bug” also allowed spies to remotely switch on cellphone mics, and locate users within a few yards.

According to experts, an iPhone must be put into “DFU” mode to completely shut down all operations.

Read more: http://dailycaller.com/2014/06.....s-off/#ixzz34MgNrkGO