The Secret Government Rulebook For Labeling You a Terrorist

By Jeremy Scahill and Ryan Devereaux 23 Jul 2014

The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist, according to a key government document obtained by The Intercept.

The “March 2013 Watchlisting Guidance,” a 166-page document issued last year by the National Counterterrorism Center, spells out the government’s secret rules for putting individuals on its main terrorist database, as well as the no fly list and the selectee list, which triggers enhanced screening at airports and border crossings. The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place entire “categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.

Over the years, the Obama and Bush Administrations have fiercely resisted disclosing the criteria for placing names on the databases—though the guidelines are officially labeled as unclassified. In May, Attorney General Eric Holder even invoked the state secrets privilege to prevent watchlisting guidelines from being disclosed in litigation launched by an American who was on the no fly list. In an affidavit, Holder called them a “clear roadmap” to the government’s terrorist-tracking apparatus, adding: “The Watchlisting Guidance, although unclassified, contains national security information that, if disclosed … could cause significant harm to national security.”

The rulebook, which The Intercept is publishing in full, was developed behind closed doors by representatives of the nation’s intelligence, military, and law-enforcement establishment, including the Pentagon, CIA, NSA, and FBI. Emblazoned with the crests of 19 agencies, it offers the most complete and revealing look into the secret history of the government’s terror list policies to date. It reveals a confounding and convoluted system filled with exceptions to its own rules, and it relies on the elastic concept of “reasonable suspicion” as a standard for determining whether someone is a possible threat. Because the government tracks “suspected terrorists” as well as “known terrorists,” individuals can be watchlisted if they are suspected of being a suspected terrorist, or if they are suspected of associating with people who are suspected of terrorism activity.

“Instead of a watchlist limited to actual, known terrorists, the government has built a vast system based on the unproven and flawed premise that it can predict if a person will commit a terrorist act in the future,” says Hina Shamsi, the head of the ACLU’s National Security Project. 

“On that dangerous theory, the government is secretly blacklisting people as suspected terrorists and giving them the impossible task of proving themselves innocent of a threat they haven’t carried out.” Shamsi, who reviewed the document, added, “These criteria should never have been kept secret.”

The document’s definition of “terrorist” activity includes actions that fall far short of bombing or hijacking. In addition to expected crimes, such as assassination or hostage-taking, the guidelines also define destruction of government property and damaging computers used by financial institutions as activities meriting placement on a list. They also define as terrorism any act that is “dangerous” to property and intended to influence government policy through intimidation.

This combination—a broad definition of what constitutes terrorism and a low threshold for designating someone a terrorist—opens the way to ensnaring innocent people in secret government dragnets. It can also be counterproductive. When resources are devoted to tracking people who are not genuine risks to national security, the actual threats get fewer resources—and might go unnoticed.

“If reasonable suspicion is the only standard you need to label somebody, then it’s a slippery slope we’re sliding down here, because then you can label anybody anything,” says David Gomez, a former senior FBI special agent with experience running high-profile terrorism investigations. “Because you appear on a telephone list of somebody doesn’t make you a terrorist. That’s the kind of information that gets put in there.”

The fallout is personal too. There are severe consequences for people unfairly labeled a terrorist by the U.S. government, which shares its watchlist data with local law enforcement, foreign governments, and “private entities.” Once the U.S. government secretly labels you a terrorist or terrorist suspect, other institutions tend to treat you as one. It can become difficult to get a job (or simply to stay out of jail). It can become burdensome—or impossible—to travel. And routine encounters with law enforcement can turn into ordeals.

A chart from the “March 2013 Watchlisting Guidance”

In 2012 Tim Healy, the former director of the FBI’s Terrorist Screening Center, described to CBS News how watchlists are used by police officers. “So if you are speeding, you get pulled over, they’ll query that name,” he said. “And if they are encountering a known or suspected terrorist, it will pop up and say call the Terrorist Screening Center…. So now the officer on the street knows he may be dealing with a known or suspected terrorist.” Of course, the problem is that the “known or suspected terrorist” might just be an ordinary citizen who should not be treated as a menace to public safety.

Until 2001, the government did not prioritize building a watchlist system. On 9/11, the government’s list of people barred from flying included just 16 names. Today, the no fly list has swelled to tens of thousands of “known or suspected terrorists” (the guidelines refer to them as KSTs). The selectee list subjects people to extra scrutiny and questioning at airports and border crossings. The government has created several other databases, too. The largest is the Terrorist Identities Datamart Environment (TIDE), which gathers terrorism information from sensitive military and intelligence sources around the world. Because it contains classified information that cannot be widely distributed, there is yet another list, the Terrorist Screening Database, or TSDB, which has been stripped of TIDE’s classified data so that it can be shared. When government officials refer to “the watchlist,” they are typically referring to the TSDB. (TIDE is the responsibility of the National Counterterrorism Center; the TSDB is managed by the Terrorist Screening Center at the FBI.)

In a statement, a spokesman for the National Counterterrorism Center told The Intercept that “the watchlisting system is an important part of our layered defense to protect the United States against future terrorist attacks” and that “watchlisting continues to mature to meet an evolving, diffuse threat.” He added that U.S. citizens are afforded extra protections to guard against improper listing, and that no one can be placed on a list solely for activities protected by the First Amendment. A representative of the Terrorist Screening Center did not respond to a request for comment.

The system has been criticized for years. In 2004, Sen. Ted Kennedy complained that he was barred from boarding flights on five separate occasions because his name resembled the alias of a suspected terrorist. Two years later, CBS News obtained a copy of the no fly list and reported that it included Bolivian president Evo Morales and Lebanese parliament head Nabih Berri. One of the watchlists snared Mikey Hicks, a Cub Scout who got his first of many airport pat-downs at age two. In 2007, the Justice Department’s inspector general issued a scathing report identifying “significant weaknesses” in the system. And in 2009, after a Nigerian terrorist was able to board a passenger flight to Detroit and nearly detonated a bomb sewn into his underwear despite his name having been placed on the TIDE list, President Obama admitted that there had been a “systemic failure.”

Obama hoped that his response to the “underwear bomber” would be a turning point. In 2010, he gave increased powers and responsibilities to the agencies that nominate individuals to the lists, placing pressure on them to add names. His administration also issued a set of new guidelines for the watchlists. Problems persisted, however. In 2012, the U.S. Government Accountability Office published a report that bluntly noted there was no agency responsible for figuring out “whether watchlist-related screening or vetting is achieving intended results.” The guidelines were revised and expanded in 2013—and a source within the intelligence community subsequently provided a copy to The Intercept.

“Concrete facts are not necessary”

The five chapters and 11 appendices of the “Watchlisting Guidance” are filled with acronyms, legal citations, and numbered paragraphs; it reads like an arcane textbook with a vocabulary all its own. Different types of data on suspected terrorists are referred to as “derogatory information,” “substantive derogatory information,” “extreme derogatory information” and “particularized derogatory information.” The names of suspected terrorists are passed along a bureaucratic ecosystem of “originators,” “nominators,” “aggregators,” “screeners,” and “encountering agencies.” And “upgrade,” usually a happy word for travellers, is repurposed to mean that an individual has been placed on a more restrictive list.

The heart of the document revolves around the rules for placing individuals on a watchlist. “All executive departments and agencies,” the document says, are responsible for collecting and sharing information on terrorist suspects with the National Counterterrorism Center. It sets a low standard—”reasonable suspicion“—for placing names on the watchlists, and offers a multitude of vague, confusing, or contradictory instructions for gauging it. In the chapter on “Minimum Substantive Derogatory Criteria”—even the title is hard to digest—the key sentence on reasonable suspicion offers little clarity:

“To meet the REASONABLE SUSPICION standard, the NOMINATOR, based on the totality of the circumstances, must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrants a determination that an individual is known or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to TERRORISM and/or TERRORIST ACTIVITIES.”

The rulebook makes no effort to define an essential phrase in the passage—”articulable intelligence or information.” After stressing that hunches are not reasonable suspicion and that “there must be an objective factual basis” for labeling someone a terrorist, it goes on to state that no actual facts are required:

“In determining whether a REASONABLE SUSPICION exists, due weight should be given to the specific reasonable inferences that a NOMINATOR is entitled to draw from the facts in light of his/her experience and not on unfounded suspicions or hunches. Although irrefutable evidence or concrete facts are not necessary, to be reasonable, suspicion should be as clear and as fully developed as circumstances permit.”

While the guidelines nominally prohibit nominations based on unreliable information, they explicitly regard “uncorroborated” Facebook or Twitter posts as sufficient grounds for putting an individual on one of the watchlists. “Single source information,” the guidelines state, “including but not limited to ‘walk-in,’ ‘write-in,’ or postings on social media sites, however, should not automatically be discounted … the NOMINATING AGENCY should evaluate the credibility of the source, as well as the nature and specificity of the information, and nominate even if that source is uncorroborated.”

There are a number of loopholes for putting people onto the watchlists even if reasonable suspicion cannot be met.

One is clearly defined: The immediate family of suspected terrorists—their spouses, children, parents, or siblings—may be watchlisted without any suspicion that they themselves are engaged in terrorist activity. But another loophole is quite broad—”associates” who have a defined relationship with a suspected terrorist, but whose involvement in terrorist activity is not known. A third loophole is broader still—individuals with “a possible nexus” to terrorism, but for whom there is not enough “derogatory information” to meet the reasonable suspicion standard.

Americans and foreigners can be nominated for the watchlists if they are associated with a terrorist group, even if that group has not been designated as a terrorist organization by the U.S. government. They can also be treated as “representatives” of a terrorist group even if they have “neither membership in nor association with the organization.” The guidelines do helpfully note that certain associations, such as providing janitorial services or delivering packages, are not grounds for being watchlisted.

The nomination system appears to lack meaningful checks and balances. Although government officials have repeatedly said there is a rigorous process for making sure no one is unfairly placed in the databases, the guidelines acknowledge that all nominations of “known terrorists” are considered justified unless the National Counterterrorism Center has evidence to the contrary. In a recent court filing, the government disclosed that there were 468,749 KST nominations in 2013, of which only 4,915 were rejected–a rate of about one percent. The rulebook appears to invert the legal principle of due process, defining nominations as “presumptively valid.”

Profiling categories of people

While the nomination process appears methodical on paper, in practice there is a shortcut around the entire system. Known as a “threat-based expedited upgrade,” it gives a single White House official the unilateral authority to elevate entire “categories of people” whose names appear in the larger databases onto the no fly or selectee lists. This can occur, the guidelines state, when there is a “particular threat stream” indicating that a certain type of individual may commit a terrorist act.

This extraordinary power for “categorical watchlisting”—otherwise known as profiling—is vested in the assistant to the president for homeland security and counterterrorism, a position formerly held by CIA Director John Brennan that does not require Senate confirmation.

The rulebook does not indicate what “categories of people” have been subjected to threat-based upgrades. It is not clear, for example, whether a category might be as broad as military-age males from Yemen. The guidelines do make clear that American citizens and green card holders are subject to such upgrades, though government officials are required to review their status in an “expedited” procedure. Upgrades can remain in effect for 72 hours before being reviewed by a small committee of senior officials. If approved, they can remain in place for 30 days before a renewal is required, and can continue “until the threat no longer exists.”

“In a set of watchlisting criteria riddled with exceptions that swallow rules, this exception is perhaps the most expansive and certainly one of the most troubling,” Shamsi, the ACLU attorney, says. “It’s reminiscent of the Bush administration’s heavily criticized color-coded threat alerts, except that here, bureaucrats can exercise virtually standard-less authority in secret with specific negative consequences for entire categories of people.”

The National Counterterrorism Center declined to provide any details on the upgrade authority, including how often it has been exercised and for what categories of people.

Pocket litter and scuba gear

The guidelines provide the clearest explanation yet of what is happening when Americans and foreigners are pulled aside at airports and border crossings by government agents. The fifth chapter, titled “Encounter Management and Analysis,” details the type of information that is targeted for collection during “encounters” with people on the watchlists, as well as the different organizations that should collect the data. The Department of Homeland Security is described as having the largest number of encounters, but other authorities, ranging from the State Department and Coast Guard to foreign governments and “certain private entities,” are also involved in assembling “encounter packages” when watchlisted individuals cross their paths. The encounters can be face-to-face meetings or electronic interactions—for instance, when a watchlisted individual applies for a visa.

In addition to data like fingerprints, travel itineraries, identification documents and gun licenses, the rules encourage screeners to acquire health insurance information, drug prescriptions, “any cards with an electronic strip on it (hotel cards, grocery cards, gift cards, frequent flyer cards),” cellphones, email addresses, binoculars, peroxide, bank account numbers, pay stubs, academic transcripts, parking and speeding tickets, and want ads. The digital information singled out for collection includes social media accounts, cell phone lists, speed dial numbers, laptop images, thumb drives, iPods, Kindles, and cameras. All of the information is then uploaded to the TIDE database.

Screeners are also instructed to collect data on any “pocket litter,” scuba gear, EZ Passes, library cards, and the titles of any books, along with information about their condition—”e.g., new, dog-eared, annotated, unopened.” Business cards and conference materials are also targeted, as well as “anything with an account number” and information about any gold or jewelry worn by the watchlisted individual. Even “animal information”—details about pets from veterinarians or tracking chips—is requested. The rulebook also encourages the collection of biometric or biographical data about the travel partners of watchlisted individuals.

The list of government entities that collect this data includes the U.S. Agency for International Development, which is neither an intelligence nor law-enforcement agency. As the rulebook notes, USAID funds foreign aid programs that promote environmentalism, health care, and education. USAID, which presents itself as committed to fighting global poverty, nonetheless appears to serve as a conduit for sensitive intelligence about foreigners. According to the guidelines, “When USAID receives an application seeking financial assistance, prior to granting, these applications are subject to vetting by USAID intelligence analysts at the TSC.” The guidelines do not disclose the volume of names provided by USAID, the type of information it provides, or the number and duties of the “USAID intelligence analysts.”

A USAID spokesman told The Intercept that “in certain high risk countries, such as Afghanistan, USAID has determined that vetting potential partner organizations with the terrorist watchlist is warranted to protect U.S. taxpayer dollars and to minimize the risk of inadvertent funding of terrorism.” He stated that since 2007, the agency has checked “the names and other personal identifying information of key individuals of contractors and grantees, and sub-recipients.”

Death and the watchlist

The government has been widely criticized for making it impossible for people to know why they have been placed on a watchlist, and for making it nearly impossible to get off. The guidelines bluntly state that “the general policy of the U.S. Government is to neither confirm nor deny an individual’s watchlist status.” But the courts have taken exception to the official silence and footdragging: In June, a federal judge described the government’s secretive removal process as unconstitutional and “wholly ineffective.”

The difficulty of getting off the list is highlighted by a passage in the guidelines stating that an individual can be kept on the watchlist, or even placed onto the watchlist, despite being acquitted of a terrorism-related crime. The rulebook justifies this by noting that conviction in U.S. courts requires evidence beyond a reasonable doubt, whereas watchlisting requires only a reasonable suspicion. Once suspicion is raised, even a jury’s verdict cannot erase it.

Not even death provides a guarantee of getting off the list. The guidelines say the names of dead people will stay on the list if there is reason to believe the deceased’s identity may be used by a suspected terrorist–which the National Counterterrorism Center calls a “demonstrated terrorist tactic.” In fact, for the same reason, the rules permit the deceased spouses of suspected terrorists to be placed onto the list after they have died.

For the living, the process of getting off the watchlist is simple yet opaque. A complaint can be filed through the Department of Homeland Security Traveler Redress Inquiry Program, which launches an internal review that is not subject to oversight by any court or entity outside the counterterrorism community. The review can result in removal from a watchlist or an adjustment of watchlist status, but the individual will not be told if he or she prevails. The guidelines highlight one of the reasons why it has been difficult to get off the list—if multiple agencies have contributed information on a watchlisted individual, all of them must agree to removing him or her.

If a U.S. citizen is placed on the no fly list while abroad and is turned away from a flight bound for the U.S., the guidelines say they should be referred to the nearest U.S. embassy or consulate, which is prohibited from informing them why they were blocked from flying. According to the rules, these individuals can be granted a “One-Time Waiver” to fly, though they will not be told that they are traveling on a waiver. Back in the United States, they will be unable to board another flight.

The document states that nominating agencies are “under a continuing obligation” to provide exculpatory information when it emerges. It adds that the agencies are expected to conduct annual reviews of watchlisted American citizens and green card holders. It is unclear whether foreigners—or the dead—are reviewed at the same pace. As the rulebook notes, “watchlisting is not an exact science.”

Josh Begley, Lynn Dombek, and Peter Maass contributed to this story.

Photo credits: TSA: G.J. McCarthy/Dallas Morning News/Corbis (2); Guidance: Josh Begley; White House: Win McNamee/Getty Images; Airport: Nick Ut/AP Photo

//

2013 Watchlisting Guidance (PDF)

Search engines are pressured to doctor results to favor copyright industries

By Muriel Kane - RAW Story
Sunday, March 4, 2012

There has been a great deal of concern recently over proposed legislation and treaties — such as SOPA, PIPA, ACTA, and TPP — that would hand the copyright industries what are widely seen as unwarranted powers to go after allegedly infringing websites.

According to TechDirt’s Glyn Moody, however, informal deals struck between governments and corporations could be just as harmful — and the British government is currently engaged in just such an effort.

Moody, the author of Rebel Code: Linux and the Open Source Revolution, writes that “with the implicit threat that tough legislation will be brought in if voluntary agreements aren’t drawn up promptly enough, governments are using this technique to avoid even the minimal scrutiny that consultations on proposed new laws would permit.”

He points to a post by James Firth which reveals that “the UK government and in particular Ed Vaizey, Minister for Culture, Communications and the Creative Industries, is pressuring search engines to police search results in a way that goes well beyond notice and take-down.”

What the British government is after amounts to the artificial promotion of “approved” online music and film services, combined with a blacklist of websites accused of infringement which would be completely excluded from search results.

As Moody notes, a system of this sort could easily lead to the censorship of a great deal of legitimate content with no oversight or appeal. So far, the search engine companies appear reluctant to go along with doctoring search results to favor a single industry’s economic interests, especially since it could lead them to incur charges of colluding in anti-competitive behavior. However, they may be willing to go along with an advertising blacklist, which would be less extreme but no less high-handed.

“Legislation, with full consultation from all parties, is a far better way of proceeding,” Moody concludes. “After all, it’s why we have a legislative process with checks and balances in the first place — to craft a solution that is both workable and fair. The new fashion for backroom agreements among a small group of unelected insiders is nothing less than an attack on that process, and hence on democracy itself.”

PROTECT IP / SOPA Breaks The Internet

PROTECT IP / SOPA Breaks The Internet from Fight for the Future on Vimeo.

Congress Wants To Make Streaming A Felony

Congress to consider S. 978, the new "Ten Strikes" bill

Here they go again: The big business lobbyists who are behind the Internet Blacklist Bill are already making the sequel. THIS WEEK Senators will be voting on a "Ten Strikes" bill to make it a felony to stream copyrighted content -- like music in the background of a Youtube video -- more than ten times.

As the writers at TechDirt point out, under this bill you could go to jail for posting video of your friends singing karaoke:

The entertainment industry is freaking out about sites that embed and stream infringing content, and want law enforcement to put people in jail over it, rather than filing civil lawsuits.... We already pointed to one possibility: that people embedding YouTube videos could face five years in jail. Now, others are pointing out that it could also put kids who lip sync to popular songs, and post the resulting videos on YouTube, in jail as well. 

That's right: Ten strikes and you could get jail time.  Less than two weeks ago, the Hollywood industry magazine, Variety, reported, "Industry lobbyists pressed House members on Wednesday to pass legislation that would make illegal streaming of movies, TV shows and other types of content a felony...."

Only days later, the MPAA is getting its wish.

White House Threatens to Blacklist Paper for Covering Protest

Friday, April 29, 2011 by Fairness and Accuracy In Reporting (FAIR)
by Peter Hart

 

The San Francisco Chronicle is apparently in trouble with the White House for posting video of a protest against the White House's treatment of suspected WikiLeaks source Bradley Manning. The Chronicle's Carolyn Lochhead reports:

The White House threatened Thursday to exclude the San Francisco Chronicle from pooled coverage of its events in the Bay Area after the paper posted a video of a protest at a San Francisco fundraiser for President Obama last week, Chronicle editor Ward Bushee said. White House guidelines governing press coverage of such events are too restrictive, Bushee said, and the newspaper was within its rights to film the protest and post the video.

Chronicle reporter Carla Marinucci was the designated "pool" reporter at an Obama fundraiser--meaning that her write-up would be shared with other reporters who were not allowed into the event.

But something truly newsworthy happened--and she reported it:

At the St. Regis event, a group of protesters who paid collectively $76,000 to attend the fundraiser interrupted Obama with a song complaining about the administration's treatment of PFC Bradley Manning, the soldier who allegedly leaked U.S. classified documents to the WikiLeaks website.

As part of a "print-only pool," Marinucci was limited by White House guidelines to provide a print-only report, but Marinucci also took a video of the protest, which she posted in her written story on the online edition of the Chronicle at SFGate.com and on its politics blog after she sent her written pool report.

The Chronicle's story closes with this ironic point about the White House's view of technology and information-sharing:

At Facebook the day before the San Francisco fundraiser, Obama said, "The main reason we wanted to do this is, first of all, because more and more people, especially young people, are getting their information through different media. And obviously, what all of you have built together is helping to revolutionize how people get information, how they process information, how they're connecting with each other."

Apparently Marinucci posting a video was a little too much revolutionizing.

Independent News Site Fraudulently Blacklisted by Internet Explorer After Negative Bill Gates Article

Friday, November 5, 2010@Activist Post

Is the Internet Blacklist already being enforced via web browsers?  Microsoft's Internet Explorer recommended that visitors should not access Activist Post today, claiming the site contains threats to outside computers.  First, we want to assure all of our visitors that this is blatantly FALSE. Our site does not contain any viruses, malware, or data-harvesting capabilities.  We have a voluntary and confidential sign-up mechanism for our free weekly newsletter, which apparently now falls under the category of illegal data mining according to Microsoft.

Our website runs on a Google Blogger back-end which immediately declines any material that may be "malicious."  This back-end also makes it easy for us to scan our entire site for potential viruses or other problems.  This scan is, and always has been, 100% clean.  Furthermore, our technical team ran a check at Website Grader which tests various aspects of a site, including cleanliness Activist Post scored a 97% (FAR above the average).  Yet, Microsoft has taken an anonymous tip from a user as enough evidence to deter access to our site.  Meanwhile, other browsers such as Chrome, Safari, and Firefox have similar malware protection, yet none of them flagged Activist Post today.

What's interesting about the timing of this possible censorship is that it comes on a day when we posted an article that reflects negatively on Bill Gates.  It appears that his empire carries out vendettas by deterring access to websites not favorable to their overlord.  We did receive a complaint through our contact form from a reader listing the e-mail address: office@heavenaboveyourlife.com.  This email address is not valid and the domain is not currently registered.

All of the information about the cleanliness of our site, and the potential false tip, was easily obtained by our tech staff within minutes.  Why couldn't a behemoth like Microsoft do the same?

This appears to be the latest tactic the establishment will use to shut down access to alternative voices, making visitors believe that the site is "harmful" to their computer.  We have been informed by Microsoft that this is basically a guilty-until-proven-innocent situation, since we certainly weren't contacted to counter any claim in advance of the warning they posted. 

Internet Explorer users represent 42% of our visitors, while representing a similar overall market share.  For alternative sites that are 100% user-funded through visiting sponsors and donations, this can be a damaging blow that has the potential to force people out of business.  Welcome to the free market of ideas.

Our technical team is working hard on restoring our site to Internet Explorer users.  Presently, it is fully accessible and safe to view from Firefox, Google Chrome, and Safari.  In protest of such shenanigans, we hope that readers will drop IE and use a different browser, as this type of censorship is likely to continue from the Gates Gestapo.  One can also send a statement to Microsoft that our site has been clean in your experience.  Click HERE to submit.

UPDATE:  We're hearing reports that site accessibility with Internet Explorer has been returned.  If you continue to have problems accessing our site with that browser please do the following: In Internet Explorer go to the Tools menu, select "Smart Screen Filter" and choose to "Turn Off Smart Screen Filter."  After completing this, accessibility should be returned immediately.

Congressional Plans for Internet Blacklist in the Works

A group of powerful Senators -- Republicans and Democrats alike -- have signed onto a bill that would vastly expand the government's power to censor the Internet.

By David Segal and Aaron Swarz, AlterNet
Posted on October 1, 2010

When it really matters to them, Congressmembers can come together -- with a panache and wry wit you didn't know they had. As banned books week gets underway, and President Obama admonishes oppressive regimes for their censorship of the Internet, a group of powerful Senators -- Republicans and Democrats alike -- have signed onto a bill that would vastly expand the government's power to censor the Internet.

The Combating Online Infringement and Counterfeits Act (COICA) was introduced in late September, but it's greased and ready to move, with a hearing in front of the Judiciary Committee this Thursday. US citizens could soon find themselves joining Iranians and Chinese in being blocked from accessing broad chunks of the public Internet.
Click here to sign petition.

COICA creates two blacklists of Internet domain names. Courts could add sites to the first list; the Attorney General would have control over the second. Internet service providers and others (everyone from Comcast to PayPal to Google AdSense) would be required to block any domains on the first list. They would also receive immunity (and presumably the good favor of the government) if they block domains on the second list.

The lists are for sites "dedicated to infringing activity," but that's defined very broadly -- any domain name where counterfeit goods or copyrighted material are "central to the activity of the Internet site" could be blocked.

One example of what this means in practice: sites like YouTube could be censored in the US. Copyright holders like Viacom often argue copyrighted material is central to the activity of YouTube, but under current US law, YouTube is perfectly legal as long as they take down copyrighted material when they're informed about it -- which is why Viacom lost to YouTube in court.

But if COICA passes, Viacom wouldn't even need to prove YouTube is doing anything illegal to get it shut down -- as long as they can persuade the courts that enough other people are using it for copyright infringement, the whole site could be censored.

Perhaps even more disturbing: Even if Viacom couldn't get a court to compel censorship of a YouTube or a similar site, the DOJ could put it on the second blacklist and encourage ISPs to block it even without a court order. (ISPs have ample reason to abide the will of the powerful DOJ, even if the law doesn't formally require them to do so.)

COICA's passage would be a tremendous blow to free speech on the Internet -- and likely a first step towards much broader online censorship. Please help us fight back: The first step is signing our petition. We'll give you the tools to share it with your friends and call your Senator.

AT&T wants 3 strikes tribunal, government website blacklist
By Nate Anderson

Pop quiz: what organization recently provided the following quotes on "graduated response" to the White House's Intellectual Property Enforcement Coordinator, Victoria Espinel?

"Private entities are not created or meant to conduct the law enforcement and judicial balancing act that would be required; they are not charged with sitting in judgment of facts; and they are not empowered to punish alleged criminals without a court order or other government sanction. Indeed, the liability implications of ISPs acting as a quasi-law-enforcement/judicial branch could be enormous."

"There are instances in which such [infringement] notices [from rightsholders] may be misdirected against non-infringing members of the household, against persons who have valid defenses, or against persons who are victims of unauthorized access to their home networks."

"It should give the government pause that a third-party allegation, alone, without any sanction by government or order by a court, could cause an entire family to be deprived of communications, access to financial or medical information, the ability to access government services, or even the ability of children to do their school work or interact with their teachers."

It sounds like something right from the Electronic Frontier Foundation's playbook, but in fact all of these concerns were mooted by AT&T. The company simply refuses to play the role of a voluntary Internet cop, dishing out penalties on behalf of rightsholders, and we couldn't agree more with the problems that AT&T highlighted.

But that doesn't mean AT&T is opposed to various forms of "three strikes" or "graduated response" programs meant to deter online copyright infringement; it just wants someone else to implement them. If the government wants to get into the enforcement business, AT&T would be fine with that. Actually, the company would be more than fine with the proposal—it suggests that the government get into the business of adjudicating such cases and dishing out penalties.

This might sound like a role for the courts, but AT&T and rightsholders argue that the current legal process AT&T. AT&T proposes a "streamlined and reasonable adjudication system for rights holders to resolve civil infringement claims against end users." Call it "court lite."

If you're thinking to yourself, "Self, isn't this exactly what they have in France?" you're on the right track. France has gone this route, creating an official tribunal called HADOPI to oversee the graduated response system (after constitutional concerns, a judge now has to oversee the final step in the process). In France, the ultimate penalty is Internet disconnection; AT&T says nothing about what penalties it prefers in the US.

Such a system "would provide a meaningful deterrent by heightening end-users' understanding that infringement activities are being monitored by the content industry and that there are material consequences associated with their actions."

Also, AT&T thinks that getting the US government into website blocking would be a pretty terrific idea. AT&T suggests that the Department of Justice "create and maintain a list of international websites known to host and traffic in infringed copyrighted works."

After "thorough investigation and governmental due process," the Department of Justice could simply require ISPs to block all access to those sites.

Warnings work

The odd thing about these proposals is how little they seem to be needed. AT&T has been forwarding infringement notices to subscribers for some time. It has developed an "Automatic Customer Notification Service" to automate this process, though it will not share user data with rightsholders unless it gets a court order.

One might suspect that simple warnings would do no good, but AT&T says that "in our experience, the automated notice-forwarding systems that ISPs have established are highly effective at deterring the offending behavior."

Verizon makes the same observation. In a separate letter, Verizon tells the government that it has "implemented a notice forwarding program as part of our commercial relationships with several content owners that we believe strikes an appropriate balance between the legitimate interests of rights holders in protecting their copyrights and the important privacy and other interests of our wireline Internet access customers."

The voluntary program was in place for all of 2009, and it has "proven very effective in not only notifying customers about allegations of infringing behavior involving their Internet connection, but also, importantly, at educating customers about copyrights and the importance of stopping any potentially infringing behavior, all with minimal adverse customer reaction." (Verizon also refuses to pass subscriber information to rightsholders without a court order, so this is merely an informational notice.)

The program has been hugely successful. "In 2009, the first full year for which we have data, roughly 70 percent of the notices we processed were for customers receiving their first notice," said Verizon. "As customers progress through our multi-step process we see the number of notices processed declining rapidly at each stage, which demonstrates that the Verizon notice forwarding system is having the intended effect of decreasing dramatically the number of customers who receive multiple notices of alleged infringement. And importantly, the program is working with minimal customer complaints."

Critics of such warning-only schemes often charge that they can't possibly work without a serious deterrent, such as Internet disconnection. But warning letters are a serious deterrent, for two reasons. First, you can already be sued by rightsholders, and if you don't think this is a big deal, look at the $675,000 judgment against Joel Tenenbaum.

Second, there's the "dad factor." A pretty high percentage of these notices probably go to families in which widespread P2P activity is frowned upon, especially when it puts a family member at risk of a federal lawsuit. Simply alerting parents to the issue is enough, in many cases, to bring an end to it in the household.

Ensnared by Error on Growing U.S. Watch List

Ensnared by Error on Growing U.S. Watch List
By MIKE McINTIRE

Rahinah Ibrahim, a Stanford University doctoral student, arrived at San Francisco International Airport with her 14-year-old daughter for a 9 a.m. flight home to Malaysia. She asked for a wheelchair, having recently had a hysterectomy.

Instead, when a ticket agent found her name on the no-fly list, Ms. Ibrahim was handcuffed, searched and jailed amid a flurry of phone calls involving the local police, the F.B.I. and the Department of Homeland Security. Two hours after her flight left, Ms. Ibrahim was released without explanation. She flew to Malaysia the next day.

But when she tried to return to the United States, she discovered that her visa had been revoked. And when she complained that she did not belong on a terrorist watch list, the government’s response came a year later in a form letter saying only that her case had been reviewed and that any changes warranted had been made.

Every year, thousands of people find themselves caught up in the government’s terrorist screening process. Some are legitimate targets of concern, others are victims of errors in judgment or simple mistaken identity.

Either way, their numbers are likely to rise as the Obama administration recalibrates the standards for identifying potential terrorists, in response to intelligence failures that let a would-be bomber fly to Detroit from Amsterdam last Christmas. On Friday, the administration altered rules for identifying which passengers flying to the United States should face extra scrutiny at the gate. And it is reviewing ways to make it easier to place suspects on the watch list.

“The entire federal government is leaning very far forward on putting people on lists,” Russell E. Travers, a deputy director of the National Counterterrorism Center, said at a recent Senate hearing. Before the attempted attack on Christmas, Mr. Travers said, “I never had anybody tell me that the list was too small.”

Now, he added, “It’s getting bigger, and it will get even bigger.”

Even as the universe of those identified as a risk expands, the decision-making involved remains so secretive that people cannot be told whether they are on the watch list, why they may be on it or even whether they have been removed. The secrecy, government officials say, keeps terrorists off balance. But civil liberties advocates say it can hide mistakes and keep people wrongly singled out from seeking redress.

Now, five years after Ms. Ibrahim’s arrest at the United Airlines ticket counter, a lawsuit she filed is chipping away at that wall of secrecy. While judges have dismissed many similar cases, a federal appeals court let hers proceed, endorsing a new legal strategy for challenging placement on the watch list. In December, a federal judge scoffed at the government’s claim for secrecy and ordered it to release files on Ms. Ibrahim’s detention.

Ms. Ibrahim’s case has also raised legal questions about detaining people whose names appear on the no-fly list, and it casts light on the role of private contractors in deciding whether someone should be held. The police in San Francisco said they had acted on the instructions of a contractor working for the Homeland Security Department.

The government is fighting back, and there is no guarantee that Ms. Ibrahim, a 44-year-old mother of four, will ever learn more about what happened. However, an examination of her case, along with documents from other lawsuits, government audits and official testimony, offers some broad hints about the murky system.

The watch list is actually a succession of lists, beginning with the Terrorist Identities Datamart Environment, or TIDE, a centralized database of potential suspects. Mr. Travers said that about 10,000 names come in daily through intelligence reports, but that a large percentage are dismissed because they are based on “some combination of circular reporting, poison pens, mistaken identities, lies and so forth.”

Analysts at the counterterrorism center then work with the Terrorist Screening Center of the F.B.I. to add names to what is called the consolidated watch list, which may have any number of consequences for those on it, like questioning by the police during a traffic stop or additional screening crossing the border. That list, in turn, has various subsets, including the no-fly list and the selectee list, which requires passengers to undergo extra screening.

The consolidated list has the names of more than 400,000 people, about 97 percent of them foreigners, while the no-fly and selectee lists have about 6,000 and 20,000, respectively.

The standards for adding names to the lists have gone through a cycle of tightening, then relaxing. After the Sept. 11 attacks, hundreds of names were added with few guidelines, eventually leading to complaints that too many innocent travelers were being stopped. Two years ago, the government developed a reasonable suspicion standard and secret protocols for applying it; their last major revision was outlined in a 72-page memorandum in February 2009 that clarified the “minimum substantive derogatory criteria.”

A federal official involved in the process said that under those rules, associating with a known or suspected terrorist was not enough to warrant being listed; there had to be evidence that the person supported terrorism. The criteria also generally require more than a single source of “derogatory information,” said the official, who requested anonymity to discuss security matters.

A task force formed after the Christmas Day episode is considering changes to the process, including making it easier to label suspects extremists and giving greater weight to credible “single-source walk-ins,” the official said. The suspect in the attempted bombing, Umar Farouk Abdulmutallab, was known to American intelligence analysts because his father, a banker in Nigeria, had reported him to the authorities, but he had not been placed on the watch list.

Putting United States citizens on the watch list requires more than just a single tip, although one tip could prompt an investigation that eventually leads to placement on the list. Local police officers are encouraged to file “suspicious activity reports” with the F.B.I. or the Homeland Security Department, which finances about 70 intergovernmental intelligence cooperatives nationwide.

While federal policies prohibit profiling, a wide range of innocent activities can be deemed suspicious. Guidelines distributed by several cooperatives advise landlords to be alert for tenants who prefer ground-floor apartments and have little furniture. Among the warning signs listed by one in Ohio are “immersion in a purely Muslim environment” and the “study of technical subjects” like engineering.

By such standards, Erich Scherfen could look suspicious. A veteran of the Persian Gulf war and a commercial pilot from Pennsylvania, Mr. Scherfen converted to Islam and married a Pakistani-born woman, Rubina Tureen, who runs a small business selling religious books. They have taken part in Islamic conferences and interfaith seminars.

In May 2006, a co-worker told the state police that Mr. Scherfen had retrofitted the family car to carry bombs, court records show. (He said he had simply removed a broken seat from his old Mazda.) Not long after, Mr. Scherfen and Ms. Tureen began being detained at airports, jeopardizing his job.

The couple filed a lawsuit, and his job was saved after a judge was given secret evidence that apparently indicated that Mr. Scherfen had been taken off the selectee list.

“I think some ill-informed people were putting the dots together and came to faulty conclusions,” Ms. Tureen said.

Their lawsuit cited rulings in Ms. Ibrahim’s case as precedents.

A Muslim who came to the United States to study civil engineering, Ms. Ibrahim impressed colleagues at Stanford. “Of all the people you could think of who might be on a list of terrorism suspects, she would be pretty close to the bottom,” said Raymond Levitt, one of her faculty advisers.

The judge presiding over her lawsuit appeared skeptical, too.

“It looks like to me it was a monumental mistake, and they identified the wrong person,” the judge, William H. Alsup of Federal District Court in San Francisco, said at a hearing in December. “I’m just guessing.”

The authorities will not say why they singled out Ms. Ibrahim. A week before her scheduled flight to Malaysia in January 2005, she was visited by two F.B.I. agents, said her lawyer, Marwa Elzankaly.

“They actually claimed they did not know why they were there to interview her,” Ms. Elzankaly said, “and basically just asked her a few background questions about herself, her family, her line of work, her travel plans and her education.”

When the airport ticket agent discovered her name on the no-fly list, he called the San Francisco police, who contacted the Transportation Security Administration in Washington. There, they reached a watch officer working for U.S. Investigations Services, one of several private contractors the agency has hired for its 24-hour operations center.

The contractors’ duties “include receiving telephone inquiries and providing direction as to how to handle passengers,” said Kristin Lee, an agency spokeswoman.

The police incident report says the watch officer told the police to “deny the flight to Ibrahim, contact the F.B.I. and detain her for further questioning.” She was driven to a police substation, where she was searched and placed in a holding cell. Eventually, an F.B.I. agent told the police to let her go, adding that she was being moved to the selectee list and could fly home.

Outraged, she decided to sue for wrongful arrest and to find out why she was on the list. But the law creating the T.S.A. made it virtually impossible to mount a legal challenge against it.

Instead, Ms. Ibrahim’s lawsuit focused on the F.B.I.’s Terrorist Screening Center, which does not have the same legal protections. After much of her case was thrown out, a divided United States Court of Appeals for the Ninth Circuit reinstated it.

“If your name or my name or anybody’s name in this courtroom were put on that list, we would suffer grievously,” the chief judge, Alex Kozinski, said at a hearing in April 2008. “And we want to have some way of going to our government and possibly to our courts and saying, ‘Look, I shouldn’t be on that list.’ ”

Another issue raised by Ms. Ibrahim’s case is whether inclusion on the no-fly list is sufficient grounds for arrest. At a hearing last December, government lawyers agreed that it was not, although the courts generally allow brief detentions for investigative purposes.

The police, as part of their defense, offered to explain why they detained Ms. Ibrahim, but the F.B.I. and Department of Homeland Security refuse to allow it.

Meanwhile, Ms. Ibrahim earned her doctorate from Stanford but has been unable to return to the United States to participate in the lawsuit. Her lawyers said in a court filing that when she applied for a new visa last September, American Embassy officials in Kuala Lumpur questioned her about the suit, asking what it would take to settle it.

Last month, Ms. Ibrahim accepted a $225,000 settlement from the San Francisco police and U.S. Investigations Services. But she is pursuing her claims against the federal government. None of the defendants’ lawyers would comment for this article.

At the December hearing, Judge Alsup showed his displeasure at the government, telling Justice Department lawyers that they were abusing the secrecy privilege.

“You’re holding onto this five-year-old information like, you know, like another 9/11 is going to happen if you somehow release it,” the judge said, according to a transcript. “That’s just baloney.”