Saturday, June 8th, 2013 — Good Afternoon, Stay Safe
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Report shows increase in claims against police
By Kori Tuitt — Friday, June 7th, 2013; 2:20 p.m. ‘The Amsterdam News’ / New York, NY
City Comptroller and Mayoral candidate, John C. Liu, announced Tuesday that the number of claims against police officers, especially regarding misconduct, is on the rise.
The number of new Police Action claims increased by 22 percent in the 2012 fiscal year, which is July 1, 2011 to June 31, 2012. According to the Office of the City Comptroller’s report, Police Action claims are a result of “improper police conduct,” which include false arrests, shooting suspects and excessive force or assault. The Office of the Comptroller settles and adjusts claims for and against the City.
Among the five boroughs the Bronx had the highest number of personal injury claims at 5,648 and Brooklyn had the highest number of property damage claims at 1,979, according to the Office of the Comptroller’s claims report. The borough with the lowest number of claims for both personal injury and property damage was Staten Island.
“It’s hard to ignore the link between rising claims and a growing chasm between communities and the police,” the comptroller said in a press release.
Liu added that this increase in claims is going to cost taxpayers more money. The combined value of all the settlements from police claims paid by the City during the 2012 fiscal year was $151.9 million.
“The NYPD takes seriously suits stemming from actual misconduct. But active officers doing their jobs appropriately are often sued,” said NYPD Deputy Commissioner Paul Browne. “In this most litigious city, it’s always happy hour at the plaintiff’s bar.”
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Weiner criticizes NYPD's stop-and-frisk tactic
By Unnamed Author(s) (The Associated Press) — Saturday, June 8th, 2013; 11:38 a.m. EDT
NEW YORK — New York City mayoral candidate Anthony Weiner criticized the NYPD's "stop and frisk" program during an appearance at the Rev. Al Sharpton's headquarters in Harlem.
The former congressman said Saturday that police have to make sure they aren't targeting young black and Hispanic men because of their race.
Every year, police officers briefly detain and question hundreds of thousands of innocent New Yorkers in an attempt to find weapons or drugs.
The police department says the stops deter crime.
Weiner says there is "virtually zero" chance his own toddler son will be stopped by police when he is 17 years old.
But Weiner said that Jordan might get in trouble. He added, "Being my son I have a feeling he might."
The reference to Weiner's 2011 texting scandal drew laughter.
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Brooklyn DA candidates respond to racial disparities in marijuana arrests
By Charisma L. Miller, Esq. — Friday, June 7th, 2013; 3:00 p.m. ‘The Brooklyn Daily Eagle’ / Brooklyn
Black people in Brooklyn and Manhattan are almost 10 times more likely than white people to be arrested on low-level marijuana possession charges, and similar racial disparities can be seen around the largest cities in upstate New York, a civil rights group charged Thursday.
The New York Civil Liberties Union’s analysis of statewide low-level arrests and summonses for violations and misdemeanors from 2010 came two days after its parent organization, the American Civil Liberties Union, reported that blacks nationwide face marijuana arrests more than whites even though marijuana use by both races is similar.
The challengers for Brooklyn District Attorney have each expressed concern with the racial disparity outlined in the NYCLU’s report. "Too many young people of color are being arrested for low-level drug charges that leave a permanent stain on their records for what should be a violation,” candidate Ken Thompson said in a statement.
For candidate Abe George it is “abundantly clear … that marijuana has become the disingenuous predicate of law enforcement to harass, stop, frisk and arrest a disproportionate number of minority citizens in Brooklyn.”
Current Brooklyn DA Charles Hynes commented that his office initiated the Brooklyn Racial Justice Task Force, a small pilot program, to address marijuana cases involving 16- and 17-year-olds.
While each candidate expresses some degree of outrage at the way minorities are treated for possession charges, the topic of marijuana has been a slightly contentious topic of debate in the race for Brooklyn’s head prosecutor.
Last week, at a candidates’ forum sponsored by Democratic Leaders for the 21st Century, George and Hynes debated positions on minor marijuana possession charges. At one point in the debate, George called Hynes out to be a “liar” as to his office’s prosecution of cases involving small possessions of marijuana. Hynes’ replied that George was merely being “rude.”
“Hynes claimed … that he does not prosecute marijuana misdemeanors,” George’s campaign noted. “Hynes is either mischaracterizing his record, or has no idea about what is happening in his own office.”
George promises to decriminalize the possession of small amounts of marijuana in public view by treating those offenses as non-criminal violations rather than as misdemeanors – a point of view that each candidate appears to agree on.
For Thompson, marijuana “arrests are clogging our court system and diverting police and prosecutorial resources from serious crimes that are on the rise under D.A. Hynes' watch.” Thompson believes the problem will be alleviated with the passage of proposed legislation that would make the penalties for private and public possession of small amounts of marijuana the same.
Currently, private possession of marijuana is a violation with a maximum fine of $100 for the first offense. Public display of marijuana, on the other hand, is a misdemeanor.
In 2011, NYPD Commissioner Raymond Kelly issued a memo to correct that discrepancy. He reminded police officers that "[a] crime will not be charged to an individual who is requested or compelled to engage in the behavior that results in the public display of marihuana," during stop-and-frisks.
Police officers, during stop-and-frisks, may force people to remove items from their pockets or open their bags, thus forcing them to display amounts of marijuana that otherwise would not have been in public view.
Gov. Andrew Cuomo proposed legislation in 2012 that would make the penalties for private and public possession of small amounts of marijuana the same, thus making public possession a violation instead of a misdemeanor.
In the same year as the Kelly memo was released, Hynes’ office asserts, “We declined to prosecute and dismissed in court over 71 percent of cases that would be affected by the new law. We have taken steps to ameliorate the effects of marijuana laws as they currently exist.”
Police have disputed the notion that black people were being targeted. NYPD spokesman Paul Browne said marijuana arrests were down 32 percent this year on top of a 22 percent decline last year. He said while police enforce the law everywhere, enforcement is more focused in poor neighborhoods with the most violent crime.
The NYCLU report is a “wake-up call,” said Thompson. "Brooklyn's growing racial disparity in marijuana arrests is a wake-up call for comprehensive reform."
And for each candidate, it is proof that Brooklyn needs strong leadership in the DA’s Office.
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Former 81 Pct. Sgt. Raymond Stukes
NYPD sergeant caught in botched sting restored to full duty
Sgt. Raymond Stukes was put on desk duty after being connected to a 2009 sting operation set up for another cop. Though he was cleared of criminal charges in 2011, it wasn’t until yesterday that he was restored to full duty. Stukes said he intends to file a $15 million lawsuit alleging false arrest and wrongful prosecution.
By John Marzulli — Saturday, June 8th, 2013 ‘The New York Daily News’
Nearly four years after he was stripped of his gun and badge as a result of a botched sting investigation, an NYPD sergeant cleared of criminal charges in 2011 was finally restored to full duty Friday, the Daily News has learned.
“I didn’t do a single thing wrong,” Sgt. Raymond Stukes said with a trace of sadness after leaving Police Headquarters. “Not one person apologized; no one admits they made a mistake.”
“What can you say?” Stukes, 48, added. “You roll with the punches and, God willing, everything will work out.”
Stukes was ensnared in an integrity test in September 2009 carried out by Internal Affairs investigators targeting a female cop in the 81st Precinct who had been the subject of six complaints about “disputed” arrests and summonses, according to internal police documents.
Police officials denied at the time that the sting was connected to allegations of widespread corruption in the Brooklyn precinct made one month earlier to IAB by whistleblower cop Adrian Schoolcraft.
The female cop confronted an IAB undercover detective selling untaxed cigarettes, but it was another officer, Hector Tirado, who arrived on the scene and arrested the undercover on a fabricated complaint.
Stukes was indicted a year later because he purportedly signed Tirado’s arrest paperwork.
Tirado pleaded guilty and was fired from the force.
Stukes’ lawyer, Eric Sanders, said prosecutors were told it was not the sergeant’s signature on the documents.
Handwriting experts in the Brooklyn district attorney’s office and NYPD agreed, but it wasn’t until 18 months later that criminal charges were dropped, according to Sanders.
“It was the Brooklyn district attorney’s office and IAB that failed the integrity test, not Sgt. Stukes,” Sanders said.
A spokesman for Brooklyn District Attorney Charles Hynes said the case was dropped as soon as it was determined that the signature was forged.
During that time, Stukes, a 14-year veteran, remained on desk duty. He still faces disciplinary action for a minor violation of the NYPD patrol guide, but he is hopeful that administrative charge will be dismissed next week.
Stukes notified the city in March that he intends to file a $15 million lawsuit alleging false arrest and wrongful prosecution.
An NYPD spokeswoman did not respond to a request for comment.
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24 Precinct Police Chase / 911 Communications Div. Problems
Union and FDNY tussle over blame for delayed 911 dispatch to save Ariel Russo
The union representing the city's emergency operators denies that it was human error that caused the critical delay in responding to an SUV crash in upper Manhattan.
By Joe Kemp AND Ginger Adams Otis — Saturday, June 8th, 2013 ‘The New York Daily News’
The FDNY is still reviewing a four-minute lag in the handling of a 911 call for a 4-year-old girl fatally struck by an SUV as the union representing the city’s emergency operators denied reports that human error caused the delay.
FDNY Commissioner Salvatore Cassano said Friday that the four-minute wait was caused by a 911 Emergency Medical Service dispatcher who didn’t respond to the urgent call for help flashing across the computer screen at 8:15 a.m. Tuesday.
“It wasn’t picked up by the person that should have been reading that screen. There were no technology glitches,” Cassano said.
The call was for little Ariel Russo who was walking with her grandmother when she was struck and killed by a 17-year-old unlicensed driver fleeing police on W. 97th St. and Amsterdam Ave.
According to logs of 911 calls obtained by the Daily News, an ambulance arrived on the scene in eight minutes and there was an unusual four-minute delay in relaying the critical call data from NYPD operators via computer to the EMS dispatcher.
The closest firehouse is adjacent to the 24th Precinct on W. 100th St., about a 3-minute walk from the crash scene.
Israel Miranda, head of Local 2507 which represents EMTs and paramedics, said the 911 operator was not at fault.
“It never crossed her screen,” said Miranda.
“This is exactly the type of problems dispatchers have been having since the city put in its new, expensive system,” he said.
City Hall rolled out its new $88 million dollar computer-aided dispatch system, known as ICAD, late last month.
The software, developed by Alabama-based Intergraph Corp., was supposed to give NYPD and EMS 911 operators improved communication and faster dispatching capabilities.
But the upgraded system was buggy from the start. It had several unplanned crashes — one just hours after it was implemented — that forced operators to write down information from 911 calls on slips of paper.
NYPD brass said no emergencies were lost in the chaos and there was no threat to the public.
Since then, 911 operators have been told to reboot their computers throughout the day to avoid the frequent freezes — but the spotty computer links between NYPD and EMS dispatchers can delay the work of handling calls promptly, insiders said.
Cassano said Tuesday’s delay was not related to the ICAD’s rocky integration.
“(The worker) just failed to read the screen. We’ll deal with that. ... Their screen should never be left unread, because these are lifesaving calls,” said the chief.
FDNY spokesman Frank Gribbon said the EMS operator didn’t see the message before getting up for a break. “This call remained open and not acknowledged when the worker got up to take a break and was relieved by another dispatcher,” he said.
When the second dispatcher took over, the urgent call popped up — it was “highlighted” through a backup system because it went unanswered for three minutes, Gribbon said — and handled it immediately.
“This backup system had activated while dispatcher No. 1 was working and still the call was not handled,” he said.
But according to Miranda, the 911 operator didn’t get any message from the computer that the urgent call had come in — and was only out of the seat for a matter of seconds before the replacement worker took over.
“They’ve wasted $88 million on software with a bad track record, and they want to blame the overworked operators at the call centers,” he said.
“The bigger issue is that all this money was spent on a new system that is still not working properly,” he said.
ICAD is part of a larger overhaul of the city’s 911 system ordered by Mayor Bloomberg after Sept. 11. Delays and problems with several major contractors have ballooned costs to $2 billion from $1.3 billion.
Mayoral spokesman Mark LaVorgna defended the new system’s performance.
“An individual dispatcher didn’t do their job. The technology worked, they had the call information, but they didn’t send the ambulance. By the time another dispatcher caught the mistake, minutes had passed. That cannot happen,” he said.
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911 Worker’s Error Delayed Response to Crash That Killed Girl, Officials Say
By MARC SANTORA and NATE SCHWEBER — Saturday, June 8th, 2013 ‘The New York Times’
Emergency medical workers were delayed in responding to a car crash in Manhattan that left a 4-year-old girl dead because a 911 dispatcher failed to see an incoming report on his computer for several minutes, fire officials said on Friday.
Officials, however, could not explain why the dispatcher did not see the call, which caused a delay of roughly four minutes in sending out an ambulance.
But fire officials vigorously disputed any suggestion that the delay was reflective of a wider problem with New York City’s new 911 system, saying it was a mistake made by one person.
“The person responsible for reading that screen did not read that screen,” Fire Commissioner Salvatore J. Cassano told reporters at a news conference. “Somebody made a mistake, and we are looking into it.”
The girl, Ariel Russo, suffered grievous injuries on Tuesday when she was struck on a sidewalk on the Upper West Side by a sport utility vehicle being driven by an unlicensed teenager fleeing the police. However, according to both witnesses and city officials, she was alive when an ambulance finally arrived.
“I don’t know if the four minutes would have made any difference,” Mr. Cassano said.
Ariel’s grandmother was injured in the crash but survived.
The admission of human error comes as the Bloomberg administration fends off criticism of the rollout of a new, more advanced 911 dispatching system.
In recent weeks, just as a new $88 million dispatch relay system is coming online, emergency operators in New York City have been forced on multiple occasions to resort to using pen and paper to record 911 calls and dispatch emergency workers after their computer system went dark.
City officials have said those problems have not resulted in any delays in response times.
Mayor Michael R. Bloomberg, speaking on his weekly radio show, said errors were to be expected whenever any new technology was used.
“You wish you didn’t have bugs, but that’s the real world,” Mr. Bloomberg said.
The overhaul of the 911 system, a $2 billion project meant to replace systems that are decades old, is enormously complex; it requires bringing new technology online even as parts of the old network remain, while ensuring that all components work together, city officials said. One major piece was completed in 2011, when a new system for 911 operators came online.
Operators electronically relay information from callers to either police, fire or E.M.S. dispatchers — each group has traditionally had its own system. At the end of May, the dispatch relay used by the Police Department was the first of the new systems to become operational. It was tested for six months before it went live, officials said. With an average of 30,000 calls coming in a day, there has been no noticeable change in the average response time, officials said.
The upgraded fire and E.M.S. dispatch relays are expected to be operational in the coming months.
Deputy Mayor Caswell F. Holloway, who has helped lead the 911 overhaul, bristled at any suggestion that the new system was not working properly. “The replacement of the 911 system is probably the most important public safety telecommunications project we have undertaken,” he said.
While he would have preferred for it to have taken less time to put into effect, Mr. Holloway said there was a “zero tolerance” for mistakes.
Fire officials scheduled the news conference after The Daily News reported on delays in responding to the fatal crash.
The officials repeatedly emphasized that the delay was not a technical one and that it was unrelated to the new system.
Mr. Cassano said any suggestion that the delay was because of a technical error was “just very irresponsible.”
Officials said the first call to 911 came in at 8:15 a.m. on Tuesday. It was promptly forwarded to a dispatcher and appeared on that person’s screen two seconds later.
Then, for reasons that have yet to be explained, it sat there until 8:19.
At that point, another dispatcher noticed it and an ambulance was sent, arriving at the scene roughly four minutes later.
Traffic on a police scanner that morning, however, painted a chaotic scene as one of the first police officers at the site of the crash grew more and more frustrated by his failure to communicate with the dispatcher.
Using a police term for ambulance, the officer repeatedly asked, “Where is the bus?” according to both emergency officials and someone who monitored the conversation over the scanner as it unfolded. The dispatcher on the other end sounded confused and nervous and could not provide an immediate answer.
The officer grew more frustrated, saying he had a semiconscious little girl in desperate need of help.
In the heat of the moment, one fire official said, it is not uncommon for the first responders to grow anxious when a life is on the line. Minutes have a way of seeming like an eternity, the official said.
After the ambulance arrived, the girl was taken to St. Luke’s-Roosevelt Hospital Center, where she was pronounced dead.
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Phone Monitoring Program Helped Thwart 2009 NYC Subway System Bomb Plot
By KIMBERLY DOZIER (The Associated Press) — Saturday, June 8th, 2013; 8:06 a.m. EDT
WASHINGTON (AP) -- The government's broad programs to collect U.S. phone records and Internet traffic helped disrupt a 2009 plot to bomb the New York City subways, a senior U.S. intelligence official said.
But the assertion raises as many questions as it answers because court testimony indicated the subway plot investigation began with an email.
Over the past days, The Guardian newspaper and The Washington Post have revealed classified documents showing how the National Security Agency sweeps up phone records and Internet data in its hunt for terrorists. Those programs have come under criticism from civil libertarians and some in Congress who say they were too broad and collected too much about innocent Americans.
In one of those programs, the NSA's collected daily records of millions of phone calls made and received by U.S. citizens not suspected of any wrongdoing.
On Thursday, Rep. Mike Rogers, R-Mich., who leads the House Intelligence Committee, credited that effort with thwarting a terrorism plot. But he did not elaborate.
The senior U.S. intelligence official who asserted Friday that the phone records program together with other technical intercepts thwarted the subway plot would not provide other details. The official was not authorized to discuss the plot publicly and requested anonymity.
Afghan-American Najibullah Zazi pleaded guilty in the 2009 plot, saying he had been recruited by al-Qaida in Pakistan.
The break in that case came, according to court documents and testimony, when Zazi emailed a Yahoo address seeking help with his bomb recipe.
At that time, British intelligence officials knew the Yahoo address was associated with an al-Qaida leader in Pakistan. That's because, according to British government documents released in 2010, officials had discovered it on the computer of a terror suspect there months earlier.
Because the NSA and British intelligence work so closely together and so little is known about how the NSA monitors email traffic, it's possible that both agencies were monitoring the Yahoo address at the time Zazi sent the critical email in 2009.
What's unclear, though, is how the phone program aided the investigation, which utilized court-authorized wiretaps of Zazi and his friends.
Based on what's known about the phone-records program, the NSA might have had an archive of all the phone calls Zazi had made, which might have helped authorities look for possible co-conspirators.
Because the phone program remains classified, however, it's impossible to say with certainty how the program benefited the investigation.
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New York State
NY bill would make harassing cops a felony
Any type of physical action aimed at intimidating a police officer could be punishable by up to 4 years
By Unnamed Author(s) — Friday, June 7th, 2013 ‘PoliceOne.Com News’
NEW YORK — The State Senate passed a bill Wednesday that aims to make it a felony to “harass, annoy, or threaten a police officer while on duty.”
Bill S.2402, sponsored by Senator Joe Griffo, would potentially make it a crime for a person to make any type of physical action aimed at intimidating a police officer. Harassment of a police officer would be recognized as a Class E Felony, punishable by up to four years in prison.
“At a time when shocking incidents of disrespect and outright confrontation are at an all-time high, the men and women who patrol the streets of our cities deserve every possible protection we can offer them,” Senator Griffo stated, according to a press release.
Currently, an altercation between an officer and civilian that does not result in injury can only be punished by a violation. The proposed bill that could change that is being sent to the Assembly.
“Professionally, I am grateful to see this bill pass through the Senate. Our police officers have a very dangerous job and need the support of our government leaders to help make them safe,” said Utica Police Department Chief Mark Williams. “All too often persons are physically challenging police officers in the line of duty. The consequences are way too low for the offender and it sends the wrong message to the public.”
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Annoying a Police Officer Is Still Legal in New York
By Jacob Gershman — Saturday, June 8th, 2013 ‘The Wall Street Journal’ / New York, NY
Did New York’s Senate really pass a bill making it a felony to annoy a police officer? That’s what was reported in several outlets in widely circulated stories about an apparently extreme measure aimed at rowdy protesters.
No, that’s not what the legislation says. You could still annoy a police officer under the measure. But subjecting an on-duty police officer to physical contact with the intent to harass, annoy, threaten or alarm would be a felony, resulting in up to four years in prison. The Assembly hasn’t advanced the bill.
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New Jersey
Prosecutor outlines trove of evidence against cop in firebomb attack on captain's home
By Sue Epstein — Saturday, June 8th, 2013 ‘The Newark Star-Ledger’ / Newark, NJ
NEW BRUNSWICK — The Edison police officer charged with attempted murder for allegedly torching his captain’s home last month started the fire by lighting a pair of gasoline-filled water jugs on the front porch, a prosecutor said in court Friday.
The detail emerged during a bail hearing in which Middlesex County Assistant Prosecutor Thomas Mannion laid out some of the state’s evidence against Officer Michael Dotro, a 10-year veteran who authorities say was angry about a recent transfer and a forced psychological evaluation.
Dotro, Mannion said, used blue shop rags as wicks for the home-made firebombs.
An identical blue shop rag with an odor of gasoline was found in Dotro’s pickup truck when investigators executed search warrants at his Manalapan home May 23, the day of the officer’s arrest. Additional rags matching the wicks were found in Dotro’s garage, Mannion said.
The searches provided a trove of potential evidence in the case against Dotro, 35, who is charged with aggravated arson and five counts of attempted murder in the May 20 fire in Monroe Township.
Capt. Mark Anderko, his wife, his two children and his 92-year-old mother escaped without injury.
Found on the front steps of Anderko’s home, Mannion said, was a bath towel. An identical bath towel was found in Dotro’s house.
Investigators also found 1-gallon water jugs — like the ones used in the blaze — in Dotro’s laundry room and shed, the prosecutor said.
The fire was reported at 3:50 a.m. Some time before, Dotro’s pickup truck was recorded by a surveillance camera at a Manalapan Quick Chek, Mannion told Superior Court Judge Bradley Ferencz in New Brunswick. At the time, Dotro was driving in the direction of Anderko’s house.
About two weeks earlier, a surveillance camera at the same store recorded Dotro buying gas, Mannion said.
Finally, Mannion said Dotro and his wife exchanged text messages about an hour before the fire, proving the officer was "up and about" at the time.
Ferencz, having signed warrants in the case, said in court there was additional evidence not presented Friday.
"I am left with the analysis so far that there is significant likelihood, given the state’s offer, of conviction," he said.
Dotro had been held on $5 million cash bail, one of the highest bonds in Middlesex County history. Ferencz agreed to lower the bail to $2 million cash. Dotro remains behind bars.
Defense attorney Lawrence Bitterman sought $500,000 bail, arguing Dotro had no reason to flee and that "monetary conditions should not be used as punishment" or "be the result of a public outcry."
Lowering bail to $2 million, Bitterman contended, was akin to "no bail reduction."
Dotro wore green jail garb and sat next to the defense lawyer. His wife sat in the first row of observer seats behind him, flanked by several Edison police officers in plainclothes.
The Star-Ledger has previously reported that Dotro was angry at Anderko after the captain moved him from the night shift to days and ordered him to undergo a fitness-for-duty evaluation with a psychologist. That assessment, sparked by Dotro’s 11th excessive force complaint in a decade, took place four days before the fire.
In court Friday, Mannion said the transfer was "something he was not happy about." The prosecutor said Anderko also told Dotro he would be getting a "performance enhancement," a form of remedial training.
Anderko frequently handles discipline on the force. Dotro’s feelings about him were made clear shortly after the fire, Mannion said, when the president of the police union sent out an email to the executive board — on which Dotro sits — asking for contributions toward a $5,000 donation.
Mannion said Dotro responded, "Nope. That guy’s been messing with us for years and I won’t give him a dime."
Star-Ledger staff writer Mark Mueller contributed to this report.
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Homeland Security
Tech Companies Concede to Surveillance Program
By CLAIRE CAIN MILLER — Saturday, June 8th, 2013 ‘The New York Times’
SAN FRANCISCO — When government officials came to Silicon Valley to demand easier ways for the world’s largest Internet companies to turn over user data as part of a secret surveillance program, the companies bristled. In the end, though, many cooperated at least a bit.
Twitter declined to make it easier for the government. But other companies were more compliant, according to people briefed on the negotiations. They opened discussions with national security officials about developing technical methods to more efficiently and securely share the personal data of foreign users in response to lawful government requests. And in some cases, they changed their computer systems to do so.
The negotiations shed a light on how Internet companies, increasingly at the center of people’s personal lives, interact with the spy agencies that look to their vast trove of information — e-mails, videos, online chats, photos and search queries — for intelligence. They illustrate how intricately the government and tech companies work together, and the depth of their behind-the-scenes transactions.
The companies that negotiated with the government include Google, which owns YouTube; Microsoft, which owns Hotmail and Skype; Yahoo; Facebook; AOL; Apple; and Paltalk, according to one of the people briefed on the discussions. The companies were legally required to share the data under the Foreign Intelligence Surveillance Act. People briefed on the discussions spoke on the condition of anonymity because they are prohibited by law from discussing the content of FISA requests or even acknowledging their existence.
In at least two cases, at Google and Facebook, one of the plans discussed was to build separate, secure portals, like a digital version of the secure physical rooms that have long existed for classified information, in some instances on company servers. Through these online rooms, the government would request data, companies would deposit it and the government would retrieve it, people briefed on the discussions said.
The negotiations have continued in recent months, as Martin E. Dempsey, chairman of the Joint Chiefs of Staff, traveled to Silicon Valley to meet with executives including those at Facebook, Microsoft, Google and Intel. Though the official purpose of those meetings was to discuss the future of the Internet, the conversations also touched on how the companies would collaborate with the government in its intelligence-gathering efforts, said a person who attended.
While handing over data in response to a legitimate FISA request is a legal requirement, making it easier for the government to get the information is not, which is why Twitter could decline to do so.
Details on the discussions help explain the disparity between initial descriptions of the government program and the companies’ responses.
Each of the nine companies said it had no knowledge of a government program providing officials with access to its servers, and drew a bright line between giving the government wholesale access to its servers to collect user data and giving them specific data in response to individual court orders. Each said it did not provide the government with full, indiscriminate access to its servers.
The companies said they do, however, comply with individual court orders, including under FISA. The negotiations, and the technical systems for sharing data with the government, fit in that category because they involve access to data under individual FISA requests. And in some cases, the data is transmitted to the government electronically, using a company’s servers.
“The U.S. government does not have direct access or a ‘back door’ to the information stored in our data centers,” Google’s chief executive, Larry Page, and its chief legal officer, David Drummond, said in a statement on Friday. “We provide user data to governments only in accordance with the law.”
Statements from Microsoft, Yahoo, Facebook, Apple, AOL and Paltalk made the same distinction.
But instead of adding a back door to their servers, the companies were essentially asked to erect a locked mailbox and give the government the key, people briefed on the negotiations said. Facebook, for instance, built such a system for requesting and sharing the information, they said.
The data shared in these ways, the people said, is shared after company lawyers have reviewed the FISA request according to company practice. It is not sent automatically or in bulk, and the government does not have full access to company servers. Instead, they said, it is a more secure and efficient way to hand over the data.
Tech companies might have also denied knowledge of the full scope of cooperation with national security officials because employees whose job it is to comply with FISA requests are not allowed to discuss the details even with others at the company, and in some cases have national security clearance, according to both a former senior government official and a lawyer representing a technology company.
FISA orders can range from inquiries about specific people to a broad sweep for intelligence, like logs of certain search terms, lawyers who work with the orders said. There were 1,856 such requests last year, an increase of 6 percent from the year before.
In one recent instance, the National Security Agency sent an agent to a tech company’s headquarters to monitor a suspect in a cyberattack, a lawyer representing the company said. The agent installed government-developed software on the company’s server and remained at the site for several weeks to download data to an agency laptop.
In other instances, the lawyer said, the agency seeks real-time transmission of data, which companies send digitally.
Twitter spokesmen did not respond to questions about the government requests, but said in general of the company’s philosophy toward information requests: Users “have a right to fight invalid government requests, and we stand with them in that fight.”
Twitter, Google and other companies have typically fought aggressively against requests they believe reach too far. Google, Microsoft and Twitter publish transparency reports detailing government requests for information, but these reports do not include FISA requests because they are not allowed to acknowledge them.
Yet since tech companies’ cooperation with the government was revealed Thursday, tech executives have been performing a familiar dance, expressing outrage at the extent of the government’s power to access personal data and calling for more transparency, while at the same time heaping praise upon the president as he visited Silicon Valley.
Even as the White House scrambled to defend its online surveillance, President Obama was mingling with donors at the Silicon Valley home of Mike McCue, Flipboard’s chief, eating dinner at the opulent home of Vinod Khosla, the venture capitalist, and cracking jokes about Mr. Khosla’s big, shaggy dogs.
On Friday, Mark Zuckerberg, Facebook’s chief executive, posted on Facebook a call for more government transparency. “It’s the only way to protect everyone’s civil liberties and create the safe and free society we all want over the long term,” he wrote.
Reporting was contributed by Nick Bilton, Vindu Goel, Nicole Perlroth and Somini Sengupta in San Francisco; Edward Wyatt in Washington; Brian X. Chen and Leslie Kaufman in New York; and Nick Wingfield in Seattle.
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FISA: A Law With Many Loopholes
By Jacob Gershman — Saturday, June 8th, 2013 ‘The Wall Street Journal’ / New York, NY
To find the legal authority underpinning the top-secret Prism surveillance program, we once again turn to the Foreign Intelligence Surveillance Act.
Law Blog on Thursday wrote about the statute allowing the government to compel the production of “business records” relevant to a foreign intelligence probe.
Another statute, Section 702 of FISA, provides procedures for spying on the online communication of foreigners or groups located outside our borders.
In a statement Thursday, Director of National Intelligence James R. Clapper said Section 702 “cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.”
But the statute passed by Congress in 2008 leaves quite a bit of wiggle room, according to legal experts. Here are some potential loopholes:
‘Reasonably believed’: The Attorney General and the intelligence director must certify to a special surveillance judge that targets are “reasonably believed to be located outside the United States.” How certain is that? According to the Washington Post, that means a 51% confidence, similar to the preponderance of evidence standard.
“Given the scale of collection here, even if [the error rate] were only a few percent, we’d still be talking about a huge number of American communications,” Julian Sanchez, a research fellow at the Cato Institute, told Law Blog.
Also, the government doesn’t have to be 51% sure that the target isn’t an American citizen nor a legal resident. The government just has to assert that it’s not intentionally targeting a citizen or legal resident.
Who’s the target? There’s another ambiguity around the notion of a target. It’s unclear whether NSA interprets the law to allow the government to tap into accounts belonging to Americans as long as the surveillance is broadly directed at a foreign group, like Al Qaeda, according to Mr. Sanchez.
Optional verifying: The targeting procedures are subject to judicial review by the Foreign Intelligence Surveillance Court, but “the court is not required to look behind the assertions made in the certifications” submitted by the attorney and the national intelligence director, according to an analysis of the law prepared by the Congressional Research Service, a nonpartisan and independent group that advises Congress on legal matters.
Exigent circumstances: In the absence of a court order, the attorney general and intelligence director may also authorize targeting if they determine that “exigent circumstances exist which would cause the loss or delay of important national security intelligence, according to the Congressional Research Service. The government has seven days to submit the “certification” paperwork to the court, but it can move forward with the spying during that week.
“They’re assuring us that there are secret procedures in place to protect privacy, but there’s never been a public evaluation of them,” Michelle Richardson, legislative counsel for the American Civil Liberties Union’s Washington Legislative Office, told Law Blog. “We’re disinclined to take their word for it knowing that they are doing things like collecting everybody’s telephone records.”
Mr. Clapper in his statement said that information collected under Prism “is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats.”
Mr. Clapper also said in his statement that “activities authorized” by the law “involve extensive procedures . . . to ensure that only non-U.S. persons outside the U.S. are targeted . . . ”
A spokesperson for Mr. Clapper’s office did not immediately respond to a request seeking comment.
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Obama Calls Surveillance Programs Legal and Limited
By PETER BAKER and DAVID E. SANGER — Saturday, June 8th, 2013 ‘The New York Times’
WASHINGTON — President Obama offered a robust defense of newly revealed surveillance programs on Friday as more classified secrets spilled into public, complicating a summit meeting with China’s new president focused partly on human rights and cybersecurity.
Mr. Obama departed from his script at a health care event in California to try to reassure Americans that he had not abused government authority by collecting telephone call logs and foreigners’ e-mail messages. But the disclosure hours later of secret contingency planning to target other countries for possible cyberattacks made his get-together with President Xi Jinping later in the day all the more awkward because cyberattacks by the Chinese are high on the American agenda.
The latest of three documents published over three days by the British newspaper The Guardian added to the understanding of the Obama administration’s approach to national security in an age of multifaceted threats and became another factor in the renewed debate over the balance between privacy and security.
The identity of the person who gave those documents to The Guardian and The Washington Post is not known, but The Post has described its source as a career intelligence officer angry at “what he believes to be a gross intrusion on privacy” by the Obama administration.
Once a critic of President George W. Bush’s hawkish policies, Mr. Obama was ready with an explanation for why he has preserved and extended some of them when a reporter asked him at the health care event if he could assure Americans that the government was not building a database of their personal information. “Nobody is listening to your telephone calls,” Mr. Obama said. “That’s not what this program’s about.”
But he argued that “modest encroachments on privacy” were “worth us doing” to protect the country, and he said that Congress and the courts had authorized those programs.
A National Security Agency telephone surveillance program collects phone numbers and the duration of calls, not the content, he said. An Internet surveillance program targets foreigners living abroad, not Americans, he added.
“There are some trade-offs involved,” Mr. Obama said. “I came with a healthy skepticism about these programs. My team evaluated them. We scrubbed them thoroughly.” In the end, he concluded that “they help us prevent terrorist attacks.”
But the disclosures united liberal Democrats and libertarian Republicans in accusing him of abandoning values he once espoused. “We believe the large-scale collection of this information by the government has a very significant impact on Americans’ privacy, whether senior government officials recognize that fact or not,” Senators Ron Wyden of Oregon and Mark Udall of Colorado, both Democrats, wrote in a joint response to the president’s remarks.
Senator Richard J. Durbin, the Senate’s No. 2 Democrat and an Obama ally from Illinois, rebuffed the president’s contention that Congress had been kept abreast of the programs, saying only a handful of top leaders are regularly briefed.
“To say that there’s Congressional approval suggests a level of information and oversight that’s just not there,” he said in an interview. He added that the sort of data mining revealed in recent days “really pushes the role of government to the limit.”
Advocates of Congressional intervention said public pressure could revive legislation to at least force more transparency about the programs. “The timing has never been better to revisit our past decisions,” said Senator Mike Lee, a Utah Republican.
But it was not clear whether there would be a popular backlash to the programs beyond some outrage on Twitter and Facebook, and even critics like Mr. Durbin were skeptical. Many Americans interviewed around the country on Friday shared concerns about their civil liberties but expressed a certain grudging resignation as well.
In Congress, the main vehicle for any changes, a reauthorization of the 1978 law that created the Foreign Intelligence Surveillance Court, passed only last December and is not due for renewal for five years. During the debate last winter, the Senate voted on a bipartisan basis to reject amendments to force transparency or curtail surveillance.
Moreover, beyond Mr. Durbin, Congressional leaders and senior lawmakers on the intelligence committees expressed few qualms. The House speaker, John A. Boehner, Republican of Ohio, said Mr. Obama must be more forceful in explaining the programs but declined to discuss his own position. Senator Harry Reid of Nevada, the Democratic majority leader, dismissed concerns. “Everyone should just calm down and understand this isn’t anything that is brand new,” he said.
Just hours after the president spoke, The Guardian posted online a copy of a classified directive Mr. Obama signed last year laying out conditions under which the president could order cyberattacks against another country, akin to the attacks on Iran’s uranium enrichment plant.
The directive ordered the government to “identify potential targets of national importance” against which offensive cyberoperations “can offer a favorable balance of effectiveness and risk as compared with other instruments of national power.” That means, in essence, that the Pentagon’s Cyber Command and the intelligence agencies would maintain lists of targets around the world that could be damaged more effectively, and more covertly, by a computer attack than by a missile or bomber attack.
As previously reported, the document says only the president can authorize offensive cyberoperations, just as only he can authorize the use of nuclear weapons. The directive also reserves the right to take “anticipatory action against imminent threats” to protect critical infrastructure in the United States, including power utilities, cellphone networks and financial markets.
That raised the possibility that the United States could strike first if it feared a large attack from China or another country. Officials have blamed China for a variety of computer spying and cyberattacks, a subject featured on Mr. Obama’s agenda with Mr. Xi in Southern California.
Josh Earnest, a White House spokesman, said the revelations would not hinder the president’s discussions with Mr. Xi.
David E. Sanger contributed reporting from Washington, and Jackie Calmes from San Jose, Calif.
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Administration Says Mining of Data Is Crucial to Fight Terror
By ERIC SCHMITT, DAVID E. SANGER and CHARLIE SAVAGE — Saturday, June 8th, 2013 ‘The New York Times’
WASHINGTON — In early September 2009, an e-mail passed through an Internet address in Peshawar, Pakistan, that was being monitored by the vast computers controlled by American intelligence analysts. It set off alarms. The address, linked to senior Qaeda operatives, had been dormant for months.
Investigators worked their way backward and traced the e-mail to an address in Aurora, Colo., outside Denver. It took them to Najibullah Zazi, a 24-year-old former coffee cart operator, who was asking a Qaeda facilitator about how to mix ingredients for a flour-based explosive, according to law enforcement officials. A later e-mail read: “The marriage is ready” — code that a major attack was planned.
What followed in the next few days was a cross-country pursuit in which the police stopped Mr. Zazi on the George Washington Bridge, let him go, and after several false starts, arrested him in New York. He eventually pleaded guilty to plotting to carry out backpack bombings in the city’s subway system.
It is that kind of success that President Obama seemed to be referring to on Friday in California when he defended the National Security Agency’s stockpiling of telephone call logs of Americans and gaining access to foreigners’ e-mail and other data from Microsoft, Google, Yahoo and other companies.
He argued that “modest encroachments on privacy” — including keeping records of phone numbers called and the length of calls that can be used to track terrorists, though not listening in to calls — were “worth us doing” to protect the country. The programs, he said, were authorized by Congress and regularly reviewed by federal courts.
But privacy advocates questioned the portrayal of the program’s intrusion on Americans’ communications as modest. When Americans communicate with a targeted person overseas, the program can vacuum up and store for later searching — without a warrant — their calls and e-mails, too.
Mr. Obama acknowledged that he had hesitations when he inherited the program from George W. Bush, but told reporters that he soon became convinced of its necessity. “You can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience,” he said. “We’re going to have to make some choices as a society.”
To defenders of the N.S.A., the Zazi case underscores how the agency’s Internet surveillance system, called Prism, which was set up over the past decade to collect data from online providers of e-mail and chat services, has yielded concrete results.
“We were able to glean critical information,” said a senior intelligence official, who spoke on the condition of anonymity. “It was through an e-mail correspondence that we had access to only through Prism.”
John Miller, a former senior intelligence official who now works for CBS News, said on “CBS This Morning,” “That’s how a program like this is supposed to work.”
Veterans of the Obama intelligence agencies say the large collections of digital data are vital in the search for terrorists. “If you’re looking for a needle in the haystack, you need a haystack,” Jeremy Bash, chief of staff to Leon E. Panetta, the former C.I.A. director and defense secretary, said on MSNBC on Friday.
Under the program, intelligence officials must present Internet companies with specific requests for information on a case-by-case basis, showing that the target is a foreigner and located outside the United States, a senior law enforcement official said Friday. If the N.S.A. comes across information about an American citizen during the search, it turns over that material to the F.B.I. for an assessment, the official said.
An administration official said Friday that agencies were evaluating whether they could publicly identify particular terrorism cases that came to the government’s attention through the telephone or Internet programs.
Representative Mike Rogers, the Michigan Republican who is chairman of the House intelligence committee, said Thursday that the phone program “was used to stop a terrorist attack.” He did not identify the plot, or explain whether the call logs in the case would have been unavailable by ordinary subpoenas.
Two Democratic senators on the Intelligence Committee who have been warning about the bulk collection of records under the Patriot Act, Ron Wyden of Oregon and Mark Udall of Colorado, said Friday that their study of the calling log program has convinced them that it was not worth its cost to privacy.
“As far as we can see, all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy of law-abiding Americans,” they said.
In contrast to the call log program, there appears to be greater public evidence that programs like Prism have led to specific useful information. The Prism program relies on a 2008 law, the FISA Amendments Act, that allows surveillance without individualized warrants if it is targeted at foreigners abroad, even if it takes place on domestic soil.
Last December, when Congress was preparing to vote on extending the law, Senator Dianne Feinstein, Democrat of California, who is chairwoman of the Senate Intelligence Committee, linked the law to eight recent terrorism-related cases, saying, “these cases show the program has worked.”
The cases included plots to bomb the New York Federal Reserve Bank, the United States Capitol, locations in Tampa, Fla., and New York City and troops returning from combat overseas. She also listed a plot to assassinate the Saudi ambassador in the United States; plans by three men to travel to Afghanistan “to attend terrorist training and commit violent jihad”; and a conspiracy to provide support to a terrorist group in Uzbekistan called the Islamic Jihad Union.
While most of those accused in those cases pleaded guilty — and therefore much of the evidence against them was not publicly disclosed — a case involving two Pakistani-American brothers in Florida accused of planning to set off a bomb in New York is still active, as is one involving a Chicago-area teenager accused of planning to bomb a bar.
In both cases, defense lawyers have cited Ms. Feinstein’s statement and demanded to know whether any evidence against their clients was swept up under the 2008 surveillance law that undergirds Prism. If so, they said, they want to challenge the evidence as unconstitutional.
But prosecutors in the Florida case have told a judge that they are not required to say whether the evidence came from an order under the 2008 law. Last year, the Supreme Court threw out a challenge to the law — without any review of its constitutionality — because the plaintiffs, a group of Americans who communicate with people overseas, could not prove that they had come under surveillance.
The Justice Department had assured the justices that it would notify criminal defendants if any evidence obtained or derived from such surveillance was used against them. Alexander Abdo of the American Civil Liberties Union, which helped bring the Supreme Court case, said the government’s shifting stance amounted to “playing a shell game with Americans’ privacy rights.”
“It’s a strategy meant to insulate the 2008 law from judicial review, and thus far the strategy that has succeeded,” he said.
Still, in the Chicago case, the defense lawyer, Thomas Anthony Durkin, said there was circumstantial evidence that his client, Adel Daoud, 19, came to the government’s attention by activities that were swept up in surveillance targeted at overseas Web sites.
Mr. Durkin said that in the spring of 2012, his client read an issue of Inspire, the English-language propaganda magazine of Al Qaeda’s branch in Yemen. Mr. Daoud, he said, had been researching a high school term paper on Al Qaeda.
Mark Mazzetti and Michael S. Schmidt contributed reporting.
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Mike Bosak
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