President and Congress announce battle plans for Crypto Wars 2.0

If Edward Snowden says something is even worse than it looks one should look at it twice. The tweet which said this refered directly to a New York Times article from February 25 with the headline "Obama Administration Set to Expand Sharing of Data That N.S.A. Intercepts." This initiative by the President during his last few months in office is the edge of a concerted effort to expand surveillance of the global public that is being mounted by every stakeholder group within the beltway. Congress, think tanks, lobbying groups and the intelligence community are all seeking to work with the adminstration to push through huge changes in spying authority as soon as consent can be manufactured.

The President's move sources from the National Security Council, which has already been coordinating inter-agency cooperation to errode any remaining legal safeguards to privacy. According to the Times article "President Obama, meeting Thursday with his National Security Council, wants more intelligence experts to see information intercepted by the National Security Agency." The article continued with "The change would relax longstanding restrictions on access to the contents of the phone calls and email the security agency vacuums up around the world, including bulk collection of satellite transmissions, communications between foreigners as they cross network switches in the United States, and messages acquired overseas or provided by allies."

The restrictions referenced are placed on the NSA by its founding charter and enabling statutes as an agency concerned with foreign and military signals intelligence. Information is not be collected on "US Persons" despite the agency's post-911 practice of exporting cloud data from the United States to make it foreign and then re-importing it. Snowden's leak just a few days prior of the FBI's direct access to this data through NSA search programs makes this new initiative seem moot. It appears the President is seeking to legalize an existing and longstanding practice.

Republicans in Congress were quick to avoid being upstaged by the President on a national security issue, especially if it would involve erroding individual rights. Senator Mark Warner (R-VA), a sitting member of the Senate Intelligence Committee and Representative Michael Mcaul (R-TX), Chairman of the House Homeland Security Committe, have joined forces to sponsor a bill launching a Congressional Commission on Digital Security.

The inititative to launch this commission was unveiled simultanously to the administrations expanded efforts at a live streamed panel discussion at the Bi-Partisan Policy Center. The Bi-Partisan Policy is an elite think tank that seeks to build cross party unity around centrist solutions to what it considers to be pressing problems, like electoral challenges to center-right elite consensus. Warner and Mcaul began the presentation, which was followed by a panel of intelligence community insiders turned K-street lobbyists.

The moderator, David Perera, of the consumate beltway insider media outlet Politico, noted that “Apple supports the commission because they know in DC commissions are where controverisal issues go to die.” to which Senator Warner mumbled something negative. The commission would have 16 members and one ex-officio member from the administration. The 16 members selected by Congress would “have a dialogue amongst the stakeholders, who are they? the fbi, the tech sector, the intelligence community” according to Mcaul. No mention of civil liberties or the general public was made although something unintelligible was said by Mcaul about "and the privacy uh advocates."

Senator Warner called the public's access to strong encryption and therefore meaningful and enforceable privacy “the biggest challenge to federal law enforcement I've seen in my lifetime.” Warner also noted that the commissions work was backed by broad sectors of the national security state. “We've seen support for this idea coming not only from the federal law enforcement side, privately, but also from the Cyrus Vances of the world, the federal Manhattan District Attorney.“

Cryus Vance Jr is the elected District Attorney for Manhattan. Despite Warner's misconceptions, Vance does not work for the federal government. Vance is an outspoken critic of meaningful encryption in public hands and prepared a report on the issue that was released in November of 2015. That report's work began quickly after Apple announced new encryption capacity for its Iphone 6 devices in 2014.

When asked if the viability of American products on the world market could be harmed or if the changes that the commission would ram through would hurt innovation Mcaul replied “America leads the way and these international standards will be looked at by China, by other countries, by Europe.” Thus the totalitarian government of China who routinely censor the internet would be more of a stakeholder in the American privacy debate than the American public.


The second pannel brought together two representatives from defense and intelligence aligned think tanks, a former deputy director of the NSA now teaching at the Naval Academy and one former ACLU staffer who had perviously retired from a career in counter-terrorism with the FBI. The FBI man turned ACLU staffer turned Brennan Center fellow, Michael German, rarely spoke and was rarely called on. When speaking he made vague references to "comming together around shared principles" without directly enumerating what principles, if any, he personally had.

The panel discussion was lead off and dominated by Susan Hennessey, who is a fellow at the Brookings institution, where James Comey first declared his intentions towards apple in a speech in 2014. Prior to her employment there she was a lawyer for the NSA's office of General Council, where she helped craft surveillance enabling legislation. She also is the managing editor of the blog Lawfare, which exists to promulgate the concept of lawfare, a term popularized by former Air Force General Dunlap. Dunlap currently is the director of Duke Law School's Center on Law, Ethics and National Security. The founding statement of the Lawfare blog states "The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others."

Only former NSA Deputy Director Chris Inglis was introduced before Hennessey took control of the panel discussion from the moderator by saying "the utility of the commission is to have a more pragmatic view and leave some of the ideological positions behind.” She state those ideological positions were did not need to be discussed because “we are certain of the more strident ideological leanings of people in the silicon valley.” She then specifically cited Apple as “presenting technical facts as an ideological trick.”

Hennessey's own framework, and apparently the driving ideological force behind this commission, is deeply rooted in the intelligence community and has little in common with any common ly held concepts of human rights. She is a key advocate of a school of thought that sees law first and foremost as a weapon. The fact that it is not an effective weapon to be used against human rights is a problem that she intends to solve. As she says “Technology is exceeding the law.”

This panel is a launching pad to build consensus across Congress, both political parties, the administration, law enforcement and the intelligence community on how best to legalize privacy violations that are happening on an ad-hc basis and face with increasing public resistance and dissent.

Date Originally Published: 
Thursday, March 3, 2016
Gerry Bello