Peer-To-Peer News - The Week In Review - May 23rd, ’20

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May 23rd, 2020




Hollywood and Tech Prep For Another Round of Copyright Wars
Margaret Harding McGill

A new report from the U.S. Copyright Office is set to tee off another round in the long-running fight between tech platforms and the entertainment industry over copyright infringement.

Why it matters: Owners of music and movie libraries say piracy remains rampant online, and the entertainment lobby, which has long pushed tech platforms to do more to police for infringing material, now sees an opening to win concessions.

"There’s been a breach in the dam that was giving complete and absolute protection to Silicon Valley based on this sort of thinking that we can’t touch them," Recording Industry Association of America (RIAA) CEO Mitch Glazier told Axios.

Driving the news: The Copyright Office on Thursday released a report, five years in the making, assessing the effectiveness of the current process for getting online platforms to remove copyrighted material that users post without permission.

• The report concludes that the balance between online companies and rights-holders is "askew," and outlines areas for updates, including criteria for determining who gets to be immune from liability and policies intended to deter repeat offenders, which the Copyright Office said may not be working.
• The current system is built on 1998's Digital Millennium Copyright Act (DMCA), which provides liability protection for online companies whose users illegally upload copyrighted material if the online companies take it down when they are notified by the rights-holder.
• Both the RIAA and the Motion Picture Association applauded the report.

Yes, but: The Re:Create Coalition, a copyright-focused advocacy group, said such changes would chill free expression and creativity, with executive director Joshua Lamel saying the report "only suggests changes that rightsholders asked for."

Where it stands: RIAA and other music industry groups, including the Music Artists Coalition and the National Music Publishers Association, have outlined three key concessions they want from tech platforms they say would address issues identified in the report:

• Help cracking down on stream ripping. "Stream rippers" are tools that pull the audio from content like music videos on YouTube and make the songs available for internet users to download.
• Better monitoring for infringements. Social media platforms like Twitter should provide tools to allow copyright holders to monitor for infringement and use an automated takedown system. YouTube already offers a similar service.
• Reducing repeat notices. Rights-holders complain of playing whack-a-mole, in which their work reappears constantly despite successful takedown notices.

Between the lines: The Copyright Office report enumerates holes in the existing system but doesn't make its own recommendations for legislative fixes.

• Sens. Thom Tillis (R-N.C.) and Chris Coons (D-Del.), the leaders of the Senate Judiciary intellectual property subcommittee, began a series of hearings earlier this year to gather input on considering changes to the DMCA.
• The committee plans to focus on the notice and takedown system at a June 2 hearing.

The other side: The Internet Association argues changes are not warranted, and that platforms have proactively worked with rights-holders to protect content.

• The current rules "recognize that rightsholders are the best judge of potentially infringing content and set a baseline that many IA member companies go above and beyond to impede access to illegal content, and ensure creators are fairly compensated," Internet Association interim president Jon Berroya said in a statement.
• YouTube's Content ID program lets movie studios, record labels and others submit reference files of copyrighted materials, which are then scanned across YouTube for matches. Rights-holders can request that material is taken down, or choose to monetize it. More than 90% of Content ID claims result in monetization.

The catch: Changes made to protect copyright could lead to censorship or other abuse, some tech firms and public interest groups have argued.

• YouTube said more than 10% of the copyright takedown requests it received via its web form last year were found to be a likely false claim of copyright ownership. Another 19% were either incomplete or misunderstood the removal process.
• A Wall Street Journal report this month found that takedown notices were exploited to remove hundreds of unfavorable news articles or posts from Google search results.

One fun thing: The original app developed by Pied Piper, the startup at the center of HBO's "Silicon Valley" comedy, aimed to identify and root out copyright-infringing music files. (It went nowhere, but its compression algorithm wowed investors.)
https://www.axios.com/hollywood-and-...497a7ce3a.html





Cell-Tower Attacks by Idiots Who Claim 5G Spreads COVID-19 Reportedly Hit US

US warns carriers to boost security, citing reports of attacks in several states.
Jon Brodkin

The Department of Homeland Security is reportedly issuing alerts to wireless telecom providers and law enforcement agencies about potential attacks on cell towers and telecommunications workers by 5G/coronavirus conspiracy theorists. The DHS warned that there have already been "arson and physical attacks against cell towers in several US states."

The preposterous claim that 5G can spread the coronavirus, either by suppressing the immune system or by directly transmitting the virus over radio waves, led to dozens of tower burnings in the UK and mainland Europe. Now, the DHS "is preparing to advise the US telecom industry on steps it can take to prevent attacks on 5G cell towers following a rash of incidents in Western Europe fueled by the false claim that the technology spreads the pathogen causing COVID-19," The Washington Post reported last week.

The DHS alert will include "advice on ways to reduce the risk of attack, including installing appropriate sensing and barriers, cyber-intrusion detection systems, closed-circuit television and monitoring drone activity near towers," the Post article said. A telecom-industry official said that carriers in the US "have seen sporadic attacks on their cell towers that were apparently prompted by COVID-19 disinformation" over the past few weeks, the Post wrote.

In addition to warning telecoms, DHS reportedly issued an intelligence report on the topic "to senior federal officials and law enforcement agencies around the country," ABC News reported Saturday. DHS also teamed with the FBI and National Counterterrorism Center to issue a joint intelligence bulletin to federal officials and law enforcement agencies, the ABC News report said.

"We assess conspiracy theories linking the spread of COVID-19 to the expansion of the 5G cellular network are inciting attacks against the communications infrastructure globally and that these threats probably will increase as the disease continues to spread, including calls for violence against telecommunications workers," the DHS intelligence report said, according to ABC.

ABC did not publish the full intelligence report but provided several quotes from it. We contacted DHS and the USTelecom trade group today and will update this article if we get any response.

Update at 5:20pm ET: The DHS told Ars that it does not "comment on classified products, including official marked documents," but that it "remains committed to protecting the American public from infrastructure attacks" and that its "intelligence arm remains vigilant in looking for any kind of emerging threat to the homeland."

“Misinformation campaigns”

ABC quoted DHS as saying that "since December 2019, unidentified actors conducted at least five arson incidents targeting cell towers in Memphis, Tenn., that resulted in more than $100,000 in damages... Additionally, 14 cell towers in western Tennessee, between February and April, were purposely turned off by way of disabling their electrical breakers."

The warning to law enforcement agencies said that an April 22 Facebook post "encouraged individuals associated with anarchist extremist ideology to commit acts of sabotage by attacking buildings and 5G towers around the world… in furtherance of an 'International Day of Sabotage'" and that videos have been posted online "showing people how to damage or destroy cell towers," according to ABC.

"Violent extremists have drawn from misinformation campaigns online that claim wireless infrastructure is deleterious to human health and helps spread COVID-19, resulting in a global effort by like-minded individuals to share operational guidance and justification for conducting attacks against 5G infrastructure, some of which have already prompted arson and physical attacks against cell towers in several US states," the DHS report said. The DHS report also warned of possible attacks against the electric grid.

The World Health Organization maintains a list of COVID-19 myths, including the 5G conspiracy theory. "Viruses cannot travel on radio waves/mobile networks," the WHO explains. "COVID-19 is spreading in many countries that do not have 5G mobile networks."

Rather than being spread by radio waves, the WHO notes, "COVID-19 is spread through respiratory droplets when an infected person coughs, sneezes or speaks. People can also be infected by touching a contaminated surface and then their eyes, mouth, or nose."

Conspiracy theories also suggest that 5G contributes to the coronavirus pandemic by suppressing the immune system. But as Ars Science Editor John Timmer wrote recently, the immune-system claim is "completely evidence- and mechanism-free.

"In both these cases, the only 'evidence' offered in support is the timing of 5G rollouts versus the appearance of the coronavirus in some locations, as well as maps that compare the locations of 5G services to the locations with the highest incidence of SARS-CoV-2," Timmer wrote. "Neither of these make sense as evidence. 5G was present in a variety of locations for a while without coronavirus appearing in them," and "plenty of cities without 5G service have also had high incidence of the virus."
https://arstechnica.com/tech-policy/...ists-us-warns/





Poor Americans Face Hurdles in Getting Promised Internet

Broadband companies like Charter and Comcast vowed to help low-income people during the pandemic. But taking them up on the offer hasn’t always been easy.
David McCabe

The people behind a nonprofit that helps workers at the famed Churchill Downs racetrack in Louisville, Ky., had spotted a great opportunity.

With the city’s schools closed because of the coronavirus, some of the workers at the racetrack needed fast internet access for their children. And Charter, an internet provider in the area, was offering two free months of service to any household with a student or a teacher.

One by one, the nonprofit helped sign up families — more than 30 in total.

Then the bills started showing up.

One family that had signed up got a notice in the mail that it owed $120. Another saw a debt appear in its account on the Charter website. Another family got a notice that it owed roughly $75, including for phone service it didn’t get.

“This is a fear for our families,” said Isai Sanchez, 22, the youth program coordinator at the nonprofit, the Backside Learning Center. “Like, ‘How am I supposed to pay $120 right now for a service that I can’t afford?’”

One of Mr. Sanchez’s colleagues called Charter, which provides service under the Spectrum brand name, to ask about some of the surprise charges. The company eventually cleared some of the bills, blaming a miscommunication.

Internet providers like Charter and Comcast have introduced offers of free and low-cost internet with great fanfare in the last several weeks. The companies have said they want to help connect poor Americans during a pandemic that has shifted much of life online. Schools and community organizations have aggressively promoted the offers. Scores of customers have tried to sign up.

But people signing up for the programs have encountered unexpected difficulties and roadblocks, according to interviews with people who have tried to sign up or who have helped them. Their stories highlight the way that the pandemic has stretched the gap between Americans who have easy access to the internet and those who do not, cutting the latter group off from venues for learning, work and play.

The benefits and rules of the offers vary widely, so a customer may not qualify for free service while someone in identical circumstances elsewhere in the country can sign up. Sometimes, people must endure hourslong waits on the phone to sign up, which can lead some to give up before they ever talk to a customer service agent. Others have been deterred by language barriers or are wary of requests for identification.

Several large broadband companies, including Comcast, Charter and Altice, which operates Suddenlink and Optimum, initially said a household could not sign up if it had an unpaid bill for earlier service. They pulled back that requirement when reporters and politicians questioned it.

“We need a more stable solution that doesn’t have all the gaps in eligibility and delivery that these free and reduced offers provide us,” said Angela Siefer, the executive director of the National Digital Inclusion Alliance. Ms. Siefer supports a federal subsidy that would go directly to consumers to pay for home broadband.

Rich Ruggiero, a Charter spokesman, said the company had moved quickly to offer solid connectivity to Americans who did not have it. In March, 119,000 households signed up for its offer of 60 days of free service to teachers and students, the company reported. Mr. Ruggiero said the company expected as many as 400,000 new families to sign up by the end of June.

Charter has worked around the clock to handle the interest in new and discounted services, Mr. Ruggiero said, “as a way to help connect these families quickly and safely during this challenging time.” He said he couldn’t speculate about the situation in Louisville.

A Comcast spokesman, Charlie Douglas, said the company had “the nation’s largest and most comprehensive broadband adoption program for low-income Americans.”

“We’ve been working on the challenge of tackling the digital divide” for nearly a decade, he said.
ImageCharter’s headquarters in Stamford, Conn. A spokesman said the company was working diligently to connect families “quickly and safely during this challenging time.”

Customers are often left scrambling to figure out what offers are available for them. Charter’s program, for example, is aimed at students and teachers, while Comcast, the country’s largest internet provider, is offering free service to a variety of low-income groups, including those with subsidized housing or a veteran’s pension.

In addition, the companies do not serve all parts of the country.

Leah Christen of Fayette, Maine, near Augusta, heard that a cousin who lives an hour away had gotten a deal on internet service from Charter. She started making calls to find out if she could, too.

Last year, Ms. Christen, 36, broke a disc in her back, which made it impossible to go back to her job as a technician in a nursing home. With an infant daughter at home, she started to take classes at a community college to become a certified medical assistant.

Ms. Christen’s training and study groups were being held online, but she had no internet connection at home.

Charter said its service did not reach her home. Then she tried AT&T, which was offering two months of free service during the pandemic. An agent asked for her address, put her on hold for 15 minutes and returned to say the company’s service couldn’t reach her, either. (AT&T does not offer home internet service in Maine.)

“I’m not in the middle of nowhere,” Ms. Christen said. “I’m a half-hour from our capital, and I can’t get service.”

Some customers have found that no one from the internet providers can speak with them in their primary language. The companies generally offer information about the programs in English and Spanish, posing a problem in places with large immigrant populations, said officials in school districts around the country that have encouraged families to sign up for the deals.

Over 36 million people have filed for unemployment since March. One in five who were working in February reported losing a job or being furloughed in March or the beginning of April, data from a Federal Reserve survey released on May 14 showed, and that pain was highly concentrated among low earners. Fully 39 percent of former workers living in a household earning $40,000 or less lost work, compared with 13 percent in those making more than $100,000, a Fed official said.

Mr. Douglas, the Comcast spokesman, said information about its coronavirus response was available in 27 languages. The company's call centers can use an on-demand translation company to speak to customers, he said.

But getting through to a person can also be a problem. In Louisville, Mr. Sanchez said he had waited on hold for six hours when trying to sign up one family. Marlon Styles, the superintendent of the Middletown City School District near Dayton, Ohio, said demand for the free service was “significantly higher than the capacity of our providers.”

What happens after a free service offer ends can be another source of confusion.

Kimberlyn Barton, a part-time student at the University of Texas in Austin whose classes moved online, spent a recent week looking for affordable broadband service before she moves into a new apartment.

Ms. Barton, 36, is eligible for a federal broadband subsidy for low-income people and received emergency funding from the university to help pay for internet. When she called Charter, which services her new apartment, an agent told her about the company’s offer for students. But then the agent said the monthly cost would be $49 for the nine months after the offer ended and eventually go as high as $69, more than Ms. Barton was able to pay.

Mr. Ruggiero, the Charter spokesman, said that in addition to its internet service that starts at $49.99 a month, Charter offered a low-cost plan to people on certain forms of public assistance.

Ms. Barton expected to go with a cheaper AT&T plan.

When customers do get service, it can change the way they are able to work and their children are able to learn during the pandemic.

With that in mind, Mr. Sanchez, the youth mentor in Louisville, has spent recent weeks teaching himself to refurbish old laptops and distribute them to the children of workers.

Some of the families the center has signed up for internet service have used it to fill out their census forms.

Students have logged on to do their work “rather than wait to go to school, get on the bus, go to the library,” Mr. Sanchez said. “And since libraries are closed, it’s like, where else can you go?”
https://www.nytimes.com/2020/05/20/t...discounts.html





Cheap and Fast Municipal ISPs are Blocked in Almost Half of the US
Eric Griffith

Twenty-two states either obstruct or criminalize the option for cities, towns, and counties (or their utilities) to create an ISP. That lack of competition means the internet in those areas cost more. But things are (slowly) improving.

Every year, BroadbandNow delves into the world of municipal broadband with a report on which states have made it illegal for towns and cities and counties to set up their own ISPs, or make it really difficult. The report for 2020, written by telecom analyst Kendra Chamberlain, has a silver lining, though. Since the 2019 report, the number of states actively blocking or outlawing municipal broadband has dropped from 25 to 22. If your state above is in green, start searching now for a municipal provider—or at least for a smaller, faster ISP.

Those three states now allowing muni-based internet are Arkansas, California (which actually passed a law in 2018 to stop restrictions), and Connecticut. In addition, seven states now have task forces in place to try to get more broadband: Idaho, Louisiana, Minnesota, North Carolina, Oregon, Texas, and Washington.

The reason tends to be that lawmakers finally see the gaps in broadband coverage, and sometimes only locals are in a position to do something about it—or they're the only ones who care, since major ISPs don’t want to move into an area that won't give them more cost benefits.

By BroadbandNow's count, there are 331 municipal networks in the US. It knows, because the site exists to help people find internet service and tracks the pricing. It also found that the states with obstruction on muni networks all have higher-than-average ISP costs, based on pricing from Q2 2020. At least 55 percent of the US population with access to wired broadband live in states with no muni network roadblocks.

The barriers to entry vary from state to state, and some states have multiple barriers (as indicated in the map above). Some are vague bureaucratic nonsense; some are outright laws against selling local internet access that isn't from a private telecom (looking at you, Missouri and Nebraska), referendum requirements that benefit the telecoms, funding barriers. One state—Nevada—puts a weird population cap on which areas can have muni networks. And of course, one puts such excessive taxes on muni broadband that it's almost impossible to establish; nice going, Florida. Several states have multiple roadblocks on the books: Virginia, Wisconsin, and Alabama are the worst offenders.

Despite these stumbling blocks, some of these states have managed to establish muni networks. Florida actually has two. Tennessee has bureaucratic limits, but that hasn't stopped the Electric Power Board (EPB) of Chattanooga from delivering one of the first and best 1 Gigabit muni fiber networks for customers (it frequently appears in our Fastest ISPs stories)—but it can't extend outside its electric service area.

If you're curious for more details, you'll find plenty, plus the full methodology of how BroadbandNow comes to these conclusions, in the full report.
https://uk.pcmag.com/why-axis/127007...half-of-the-us





FBI Links Pensacola Shooter to Al-Qaeda with Cracked iPhones with ‘No Thanks to Apple’
Michael Potuck

It looks like the most recent contention between the FBI and Apple over device encryption has come to an end as the agency has unlocked the two iPhones belonging to the Pensacola shooter with “no thanks to Apple.” Going further, AG William Barr has again called for the government to force Apple and others to create backdoors into their devices.

Update: We’ve got an official response from Apple on the matter that highlights all the ways it helped the FBI and that it’s precisely because it takes security and privacy so seriously that it doesn’t believe in creating a backdoor:

The terrorist attack on members of the US armed services at the Naval Air Station in Pensacola, Florida was a devastating and heinous act. Apple responded to the FBI’s first requests for information just hours after the attack on December 6, 2019 and continued to support law enforcement during their investigation. We provided every piece of information available to us, including iCloud backups, account information and transactional data for multiple accounts, and we lent continuous and ongoing technical and investigative support to FBI offices in Jacksonville, Pensacola and New York over the months since.

On this and many thousands of other cases, we continue to work around-the-clock with the FBI and other investigators who keep Americans safe and bring criminals to justice. As a proud American company, we consider supporting law enforcement’s important work our responsibility. The false claims made about our company are an excuse to weaken encryption and other security measures that protect millions of users and our national security.

It is because we take our responsibility to national security so seriously that we do not believe in the creation of a backdoor — one which will make every device vulnerable to bad actors who threaten our national security and the data security of our customers. There is no such thing as a backdoor just for the good guys, and the American people do not have to choose between weakening encryption and effective investigations.

Customers count on Apple to keep their information secure and one of the ways in which we do so is by using strong encryption across our devices and servers. We sell the same iPhone everywhere, we don’t store customers’ passcodes and we don’t have the capacity to unlock passcode-protected devices. In data centers, we deploy strong hardware and software security protections to keep information safe and to ensure there are no backdoors into our systems. All of these practices apply equally to our operations in every country in the world.

Back in January, we learned that the FBI asked Apple to unlock two iPhones that were used by Mohammed Alshamrani, who attacked the Naval base in Pensacola, Florida. Apple handed over the data it had and said that it helped in all the ways it could outside of creating a backdoor for iPhones.

At first, it wasn’t known which iPhone models were in question but a week later, it surfaced that they were older ones, the iPhone 5 and 7. As we noted at the time, both are easily crackable through third-parties, but the FBI continued to ask for Apple’s help.

Then the next day, on January 15, news broke that the FBI had already unlocked an iPhone 11 Pro with a device called GrayKey, giving further evidence that the FBI could get the data it needed without a backdoor being created by Apple.

In February, the FBI said it had “reconstructed an iPhone belonging to the shooter” and that it was is “currently engaged with Apple hoping to see if we can get better help from them so we can get access to that phone.” That’s again despite the known methods of cracking the devices, so the move appeared to be another attempt to pressure Apple into creating a backdoor.

Not much was heard about the case until today when CNN reported that the FBI has finally gained access to the iPhones’ data.

US investigators uncovered the al Qaeda connection after the FBI broke through the encryption protecting the Saudi attacker’s iPhones, the officials said. Attorney General William Barr and the FBI are expected to announce the finding Monday in a news conference.

In a press release today, Attorney General William P. Barr announced the news. That also included an attack on Apple and another call for the government to force it and other tech companies to create a backdoor into devices.

“Thanks to the great work of the FBI – and no thanks to Apple – we were able to unlock Alshamrani’s phones,” said Attorney General Barr. “The trove of information found on these phones has proven to be invaluable to this ongoing investigation and critical to the security of the American people. However, if not for our FBI’s ingenuity, some luck, and hours upon hours of time and resources, this information would have remained undiscovered. The bottom line: our national security cannot remain in the hands of big corporations who put dollars over lawful access and public safety. The time has come for a legislative solution.”

Apple has consistently maintained that there’s no way to create a backdoor into its devices just for the government that won’t also be abused by those around the world for nefarious purposes, creating serious privacy and security for all users.
https://9to5mac.com/2020/05/18/fbi-l...anks-to-apple/





Trump's Secret New Watchlist Lets His Administration Track Americans Without Needing a Warrant
E.D. Cauchi AND William M. Arkin

The Trump administration has created a new and expansive national security watchlist that, for the first time since 9/11, includes Americans who have no connection to terrorism. The new watchlist, authorized through a classified Attorney General order and launched in 2017, is expected to grow to well over one million names. It also allows the government to track and monitor Americans without a warrant, even when there is no evidence they're breaking the law.

And while two separate laws require the government to announce new systems of data collection of Americans, there has been no acknowledgement of the expanded watchlist.

The criteria to be placed on the new watchlist demands that an individual be associated with "transnational" criminal organizations, including front organizations that are actually foreign government entities. Transnational criminal organizations include not just drug cartels, crime syndicates and gangs, but also political groups such as nationalist parties and information activists. Individuals can be watchlisted when they are suspected of corruption, money laundering, computer hacking, stock market manipulation, health care fraud, even wildlife trafficking.

Government officials familiar with the new watchlist say that it will eventually include tens of thousands of Americans, reaching into more than a hundred cities across the United States.

The new Transnational Organized Crime (TOC) watchlist is modeled after the Terrorist Screening Database, which was created in the wake of the September 11, 2001 attacks as a single repository of terrorist suspects. Over the years, that watchlist has grown to include 1.2 million people, among whom are roughly 6,000 Americans that the FBI associates with domestic terrorism.

Like the terrorist watchlist, the new TOC watchlist authorizes agencies to collect information even when there is no evidence of a crime or intent to commit a crime. This authority circumvents criminal justice requirements for due process, equal protection under the law, and freedom of association under the Constitution.

National security officials say that though the government is still debating the full scope of the new watchlist, they are concerned that applying the terrorism standard imperils Americans' civil liberties and privacy rights.

"When we put Americans on that list, there damn well better be a good reason investigatively that they committed a criminal act. Otherwise, I think that's unconstitutional," says Frank Taylor, a retired Air Force Brig. General and career law enforcement professional. Taylor held senior leadership positions under both the Bush and Obama administrations, most recently as head of intelligence for the Department of Homeland Security.

Newsweek's investigation into the TOC watchlist is based on an extensive review of hundreds of pages of government documents spanning a decade and interviews with more than a dozen current and former senior intelligence and national security officials. Few people know about the TOC watchlist or its expansive scope, even at some of the highest levels of the national security establishment. Half a dozen senior officials across multiple departments were unaware that a TOC watchlist existed at all until Newsweek contacted them. The FBI and Office of the Director of National Intelligence declined to answer questions about the new system.

The Transnational Organized Crime (TOC) watchlist can trace its origins to a 2010 National Intelligence Estimate which concluded that TOCs were "loose, amorphous, highly adaptable" networks. They were the power players maintaining the global black market that sold drugs, provided money to terrorists, traded weapons, smuggled people across borders and bribed public officials.

At the time, says Mathew Burrows, a former advisor to the National Intelligence Council who worked on the estimate, "counter-terrorism was taking all the oxygen out of the room." Officials worried that they were so narrowly focused on Foreign Terrorist Organizations, they were neglecting to equally protect against what they considered "emerging" threats.

The resulting intelligence report described transnational organized crime as a trillion dollar a year underground economy that posed a threat to U.S. national security. In reaction, President Obama tasked the national security agencies to come up with a government-wide plan to fight them. The resulting National Strategy to Combat Transnational Organized Crime released in July 2011 directed the creation of a comprehensive information sharing system that could identify TOC "members and associates."

This effectively shifted TOCs from the world of law enforcement, where police investigate crimes after they occur and pursue criminals based on evidence, to counter-terrorism, where the objective is to hunt down suspects before they strike. Adopting the prevention mandate allowed tracking, surveillance and the gathering of evidence based only on associations and suspicion: standards that exceeded what the courts—and the Constitution—otherwise allowed.

"I thought we were making a huge mistake to not better share information," says Amy Pope, Special Assistant to President Obama for Transborder Security and the official who led the Interagency Policy Committee that devised the TOC watchlist in response to the strategy.

For the next four years, law enforcement and intelligence community leaders fought over what to share, what the new standard meant and who was going be in control. On August 6, 2015, Attorney General Loretta E. Lynch signed Order No. 3548, granting the FBI's Terrorist Screening Center "the authority to manage, disseminate, perform identity verification, and encounter management functions regarding TOC Actors."

TOC watchlisting quietly launched in late 2016 under a six-month pilot with 8,000 names. Most were members of the Sinaloa drug cartel, considered one of most powerful transnational criminal organizations in the world. It was headed by Joaquin "El Chapo" Guzmán, who was extradited to the United States the day before Donald Trump's inauguration.

With Donald Trump's ascent to the White House, watchlisting changed. Three days into the new administration, the FBI issued a technical modification to the National Crime Information Center Operating Manual, notifying users that the "Known or Appropriately Suspected Terrorist File" was being renamed the "Known or Suspected Terrorist File." Appropriately Suspected had been added by the civil liberties-oriented Obama administration and its deletion signaled what one official labels "body language" that opened a floodgate.

Weeks later, President Trump unveiled Executive Order 13773, which mandated all federal agencies to make dismantling TOCs a "high priority." Then on October 4, the president signed National Security Presidential Memorandum 7, which supplanted "transnational crime" language altogether with a new and broader focus: national security threat actors (NSTAs).

NSPM-7 defined the individuals, organizations, groups and networks "assessed to be a threat to the safety, security, or national interests of the United States" to include "cyber threat actors, foreign intelligence threat actors, military threat actors, transnational criminal actors, and weapons proliferators." However, the administration stated that it envisioned "an expansion ... to also include additional threat actor categories, as appropriate."

"We simply cannot keep the United States and its citizens secure with authorities drafted before smartphones and social media, as such technology has further blurred the line between the 'home game' and 'away game'," then-Acting Homeland Security Secretary Elaine Duke said. Under this mandate, the Homeland Security and Justice Departments were already broadening their surveillance of MS-13, the transnational gang that originated in Los Angeles, California, one made up of thousands of American citizens.

"I wouldn't say it was completely open season on any Hispanic American," an attorney for the Department of Homeland Security says, "but previous concerns that looking at American citizens might have run afoul of civilian liberties restrictions disappeared in the new administration." The government attorney, who requested anonymity because he is not authorized to speak on the record, says the "transnational" connection now includes merely having family in El Salvador, that individuals can be included on the new watchlist as "TOC actors" because of family connections, even if they are located in Los Angeles and have no other transnational link.

In May 2019, President Trump further signed an additional Executive Order that broadened the definition of a transnational criminal from "a foreign person" to "a group of persons that includes one or more foreign persons."

The Inspector General's 2018 FBI audit gives a sense of just how broad these categories became. It said the Bureau was actively working to take down "TOC networks" that engaged in "drug trafficking, money laundering, human trafficking, alien smuggling, public corruption, weapons trafficking, extortion, kidnapping, exploitation and trafficking of natural resources, theft of cultural property such as art and antiquities, and insurance and health care frauds."

Last May, FBI Director Christopher Wray told Congress that TOC's are additionally "targeting stock market fraud and manipulation," engaged in "cyber-facilitated bank fraud and embezzlement" and "identity theft." The Department of Homeland Security added "document vendors, corrupt officials, [and] attorneys" to the list of "enabling networks" of transnational organizations.

"Insider threats" make up yet another category: leakers like Chelsea Manning and Edward Snowden, or corporate scientists and university professors researching sensitive areas like weapons or biotechnology. In February, FBI Director Wray told the House Judiciary Committee that the bureau had recently expanded initiatives "to focus on insider threats partnering with TCO [transnational criminal organization] actors."

By early 2020, the new watchlist was TOC in name only.

"It's an intelligence analyst's nightmare," says Nate Snyder, a former Department of Homeland Security counterterrorism official, about this loosening of definitions and conflation of terrorist and criminal threats. You wouldn't "treat this pandemic like you would a flood or a hurricane. The same thing could be said if you're taking a gang and you're now affiliating them with a terrorist organization. One is not like the other."

Today, anyone from local and tribal police to state and federal agencies, and even some allied foreign governments, can nominate people to the list.

A watchlist is not a top-ten wanted list nor is it a criminal investigation case file where there is legal predicate that a person has committed a crime or is engaged in a conspiracy to do so. Neither is it merely an intelligence collection requirement. It is an "action" list, signaling to both law enforcement and intelligence agencies that individuals are of interest, in some cases merely to be watched, and in others, to be hunted down. But being on a watchlist doesn't necessarily mean a person has done anything wrong. The terrorist watchlist, for example, upon which the TOC watchlist is based, has a reasonable-suspicion standard to add people, but it also has what's called a "secret exception." In September 2019, U.S. District Judge Anthony Trenga affirmed that "an individual's placement into the [terrorist watchlist] does not require any evidence that the person engaged in criminal activity, committed a crime, or will commit a crime in the future."

The Department of Justice says that the TOC watchlist is "an actor centered database" that eliminates "intermittent and incomplete" surveillance, opening the way for "investigative opportunities" and intelligence collection. In layman's terms, watchlisting sets off a series of alarms when a person travels, banks, or posts on social media. Watchlisting can prompt government officials to confiscate cellphones and laptops, seeking out passwords, associates and travel patterns. Information collected then becomes part of a dossier of purported wrongdoing that can limit a person's ability to pass a background check and even test-drive a car. And officials can then use all of what has been collected to justify spying on a person's emails and phone calls.

"Once you're on the watchlist, the government has the ability to collect tremendous amounts of information," says retired FBI Supervisory Special Agent Jeff Danik, who spent most of his 28-year career tracking terrorist activity, including several years inside the classified watchlisting hub. "This data is a bomb," he says. "You should have great respect for the damage that it can do."

While the authority to collect intelligence on foreigners is virtually unrestricted, the same is not true for "U.S. persons"—that is, American citizens and green card holders who are protected by the Constitution. While the TOC watchlist tracks members of transnational gangs and people affiliated with international crime syndicates, it also keeps tabs on Americans who, in an increasingly globalized world, are deemed transnational criminals merely because they talk to people in other countries.

A senior career intelligence official told Newsweek that the Trump administration recently released classified guidance that details the protocols governing the TOC watchlist. The official says those new policies, coupled with the "one or more foreign persons" criteria, could result in tens of thousands of Americans being watchlisted—many added simply because they visit or frequent certain foreign websites and social media hubs.

The Trump administration never announced the creation of the new TOC watchlist, or the fact that a new government system has been created that subjects U.S. persons to government scrutiny. Two laws, the Privacy Act of 1974 and the E-Government Act of 2002, require the federal government to notify the public of new and altered systems of records containing personal information on Americans and to assess its potential impact on civil liberties. And yet, there has been no Department of Justice disclosure of the existence of the TOC watchlist in the Federal Register, which was required "at least 30 days prior" to any system going live. Nor has a "Privacy Impact Assessment" for the TOC watchlist been published, as the law instructs. A November 2019 transparency report by the Homeland Security Civil Rights & Civil Liberties Office refers to the TOC watchlist as a "pilot" under development with no acknowledgement that it's already operational.

Newsweek's calls and emails to the Justice Department's Privacy Office and FOIA requests have gone unanswered, as did messages to the government's Privacy and Civil Liberties Oversight Board, which is currently auditing the terrorist watchlist.

"There's an incredible amount of information the government holds and if it's not bound by these kinds of principles, it can be misused," Pope says. "I think that they're applying standards that, to me, are entirely discriminatory. And because it is the Executive Branch, they could do a lot of damage before they're stopped."

Even before the new TOC watchlist was created, the terrorist "watchlisting enterprise" faced legal challenges. Critics claim that its secret quality has a direct and chilling effect on freedom of assembly, movement and even speech. A group of Muslim Americans, who sued the federal government in 2016, say that because of the watchlist, they have been handcuffed at gunpoint, detained and interrogated for hours while having their digital accounts searched.

Last September, U.S. District Judge Trenga ruled that the Terrorist Screening Database violated Americans' Constitutional right to due process. Writing that watchlisting "suspected terrorists" was "based to a large extent on subjective judgments," he ordered that the government revise its policy to give people a fair chance to challenge their placement in the database and get taken out. The government has appealed that ruling.

Several former senior government officials told Newsweek that they have lost trust in the institutions they once helped lead and expressed concern that, without adequate safeguards, watchlisting could be misused to target innocent people because of politics or prejudice.

Newsweek reached out to Congressional offices with direct oversight roles, all of whom declined to comment. However, congressional voices have called into question the reliability and independence of auditors in the Trump administration. The chairs of both the House Homeland Security Committee and the Committee on Government Oversight and Reform recently raised concerns that Executive Branch Inspectors General have been "failing to provide basic oversight of [the Department of Homeland Security]," one of the main agencies that contributes to and collects intelligence based on the watchlisting system.

"Compiling lists of national security enemies strikes me as what Hitler did in Germany in the 1930s or what Stalin did in Russia in the '30s, '40s and '50s," says General Taylor, the former head of intelligence for the Department of Homeland Security, referring to American citizens. "That is nothing more than trying to take a sledgehammer when you need a stiletto."
https://www.newsweek.com/trumps-secr...arrant-1504772

















Until next week,

- js.



















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