Category Archives: NSA

In March of 2015, the Wikimedia foundation joined together with eight other non-profits in a challenge to NSAs mass surveillance program. This week, the U.S. Court of Appeals for the Fourth Circuit permitted the suit to move forward, but in the process, peeled off all plaintiffs other than Wikimedia itself.

The case comes to the Fourth Circuit as an appeal from the the U.S. District Court of Maryland. In October 2015, the District Court dismissed the case for lack of standing, basing its decision on Supreme Courts 2013 ruling in Clapper v. Amnesty International USA. In Clapper, the Court upheld the dismissal of a similar challenge from human rights groups because their complaint was speculative, alleging only a reasonable likelihood that their communications would be intercepted, not actual or imminent injury. Lacking concrete information about government programs, the Clapper plaintiffs failed to properly plead an injury in fact, and so lacked Article III standing. The same logic, held Judge Ellis of the Maryland District Court, should apply to Wikimedias challenge. This week, however, the Fourth Circuit rejected this comparison. Unlike Clapper, the court explained, the injuries alleged by the plaintiffs in this case are not speculative, but current, actual, and based on particularized allegations.

But the Fourth Circuit didnt stop there and just vacate the entirety of Judge Ellis judgement. Instead, it distinguished between Wikimedias claim of injury and those of the other plaintiffs: Because Wikimedias claim of injury by NSAs Upstream collection is based on particularized facts and sound inferences--construed in the light most favorable to Wikimedia for the purpose of the motion--it survives a motion to dismiss. By contrast, because the other plaintiffs allegation of injury (based on the allegation that NSA is intercepting, copying, and reviewing substantially all textbased communications entering and leaving the United States, including their own) is unsupported by enough well-pleaded facts, the District Courts dismissal was proper.

Below, we first summarize the Fourth Circuits reasoning with respect to Wikimedia, and then turn to its analysis of the other eight plaintiffs claim of injury.

The Wikimedia Allegation: Not Speculative,and Well-pleaded

The factual assertions in the Wikimedia Allegation are based on a combination of public information about the operation of Section 702, PCLOB reports about what NSA is doing, as well as technical analysis how NSA must be accomplishing what PCLOB reports.

Under Section 702 of the Foreign Intelligence Surveillance Act, the government is permitted to target for surveillance non-US persons reasonably believe to be outside the United States. The procedures for making such determinations are reviewed and approved by the FISC. According to the plaintiffs, NSA conducts this surveillance by installing surveillance devices on at least some of the 49 international submarine cables that carry communication in and out of the United States which comprise the internet backbone. NSA, the plaintiffs suggest, lacks the technical capability to sift the communication prior to collection. It therefore must collect and copy substantially all international text-based communicationsand many domestic ones as they flow across this backbone in the United States. Only after this initial collection, can NSA attempt[] to filter out and discard some wholly domestic communications, and then review and retain only those copied communications for that contain targeted selectors (such as specific IP or email addresses).

The essence of the Wikimedia allegation is that because of the technical realities of this Upstream collection, and because of the sheer volume of Wikimedias communications, the NSA has almost certainly collected at least some of the organizations communications. Wikimedia reasons that because Upstream surveillance requires the NSA to copy even wholly domestic communications before filtering them out and discarding them, and because Wikimedia engages in more than one trillion international communications each year, with individuals who are located in virtually every country on earth, the NSA must necessarily be intercepting, copying, and reviewing some of Wikimedias communications.

Declassified documents show that a single service provider facilitates upstream surveillance at seven major international chokepoints in the United States. But given the quantity of its communication, even if the NSA is only collecting communication from a single Internet backbone link, Wikimedia asserts its communications must have been intercepted. Thus, Wikimedias acute privacy interest in its communications, are implicated by NSA programs.

The Fourth Circuit largely accepted Wikimedias arguments for the purpose of the motion. In order to establish Article III standing, a plaintiff must show an injury in fact. And in order to survive a motion to dismiss, a complaint must have sufficient factual matter in the complaint, such that the contents were accepted as true, it would state a claim of relief that is plausible on its face. Following the Third Circuits decision in Schuchardt v. President of the United States, the Fourth Circuit analyzed plaintiffs claims in two steps: first, it analyzed whether the allegations were sufficiently particularized to satisfy the injury-in-fact requirement and second, it analyzed whether the allegations contain sufficient detail to be credited as true for the purpose of resolving a facial challenge to a complaint. Wikimedias claims, ruled the Court, met both criteria.

The court lays out what it sees as three presumptively key facts from Wikimedias allegation:

Taken together, these three points indicate that Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all the communications along at least one of those roads, and therefore may have violated Wikimedias Fourth Amendment rights. Its allegations are thus predicated on specific asserted facts and directly implicate the potential interests of Wikimedia in a concrete and particularized manner.

Unlike the speculation and guesswork of Clapper, Wikimedias combination of technical assertions and government documents amounted to a properly pleaded complaint. And unlike Clapper, the Wikimedia case concerns a motion to dismiss rather than a motion for summary judgment, dictating greater deference to complainant's account of facts.

While acknowledging that Wikimedias probability calculation (even if one assumes a 0.00000001% chance . . . of the NSA copying and reviewing any particular communication, the odds of the government copying and reviewing one of Wikimedias communication in a one year period would be greater than 99.999999999%), was incomplete and riddled with assumptions, the court concluded that it wasnt relevant for standing purposes. Importantly, given the motion to dismiss stage, the court also declined to consider the governments evidence (in the form of expert affidavits) disputing plaintiffs technical statements about NSA must operate. Without the opportunity to dispute the factual basis of the expert dispute, the government had little leg to stand on.

The Dragnet Allegation: Speculative, and Not Well-Pleaded

The other eight plaintiffs joined with Wikimedia in making the second allegation, which the court terms the Dragnet Allegation. The plaintiffs alleged that in the course of conducting Upstream surveillance the NSA is intercepting, copying, and reviewing substantially all text-based communications entering and leaving the United States, including their own. The core of the allegation is the assertion that due to the technical functionality of the internet, the NSA must be intercepting, copying, and reviewing information from most backbone chokepoints in order to engage effectively in Upstream collection. And if NSA is surveilling most backbone chokepoints, then it is likely that the plaintiffs communications have been examined. The plaintiffs allege that they have had to take burdensome and sometimes costly measures to protect themselves from this surveillance.

As with the Wikimedia Allegation, the district court dismissed the Dragnet Allegation under Clapper. The circuit court affirmed the dismissal, but on a different rationale, departing from the district courts reliance on Clapper for the reasons expressed above.

While the court writes that its analysis of standing for the Wikimedia Allegation applies also to the Dragnet Allegation as far as the presence of a particularized and cognizable ongoing injury, traceability, and redressability go (hence why Clapper is not controlling), it ultimately finds that the plaintiffs lack standing due to their failure to plausibly state a claim. The court considers the Wikimedia Allegation plausible, but the broader claims made in the Dragnet Allegation are harder for it to swallow:

In the Dragnet Allegation, Plaintiffs must plausibly establish that the NSA is intercepting substantially all text-based communications entering and leaving the United States, whereas its sufficient for purposes of the Wikimedia Allegation to show that the NSA is conducting Upstream surveillance on a single backbone link.

The plaintiffs pointed to the same evidence for the Dragnet Allegation as they do for the Wikimedia Allegation, with the addition of one New York Times article on Upstream surveillance: in other words, the mechanical details of how the internet functions and the NSAs stated goals of using Upstream collection to acquire information to, from, and about targets. But in the Wikimedia Allegation, the plaintiffs used that information to speculate about the way the NSA does what we know it to be doing (that is, engaging in Upstream collection). In contrast, in the Dragnet Allegation, the plaintiffs are using technical information and guesswork about NSAs incentives to speculate about the scope of NSA activities. Furthermore, the allegations fall short of the level of detail in Schuchardt, in which the Third Circuit found that the plaintiffs had demonstrated the sheer scale of the collection suggested a dragnet

This is a bridge too far for the court, which finds this claim implausible and therefore holds that the plaintiffs lack standing on Fourth Amendment grounds. Following this logic, the court also dismisses the plaintiffs First Amendment claims of chilled speech and their effort to establish standing on the grounds of their burdensome efforts to avoid surveillance, finding that in the absence of a plausible claim, these concerns constitute fears of hypothetical future harm such as are inadequate to provide standing under Clapper.

The plaintiffs creatively cite Fourth Circuit precedent in the form of a two-year-old antitrust case, SD3, LLC v. Black & Decker, as evidence that motive is an important factor in establishing standingpointing to NSAs alleged incentive to establish a dragnet. The court dismisses this assertion, saying that while it should come as not surprise that motive is an important factor in establishing an antitrust conspiracy, that the court had never intended to have the case stand for the broad proposition that motivation is always of special significance in plausibly pleading an injury. The court also distinguishes SD3 based on the level of detail provided by the plaintiffs on the existence of the boycott, which the court concludes were by and large absent, from the plaintiffs complaint here.

The court concludes by addressing Judge Andre Daviss dissent in part, specifically his assertion that the court need not have separately considered the non-Wikimedia plaintiffs standing. Given that the complaint rests upon the premise that the NSA is seizing each Plaintiffs unique communications, the questions of standing and relief for the Wikimedia and non-Wikimedia plaintiffs are also individualized and must be considered separately.

Judge Andre Daviss Dissent-in-Part

Judge Davis, while concurring with courts finding that Clapper is not controlling and that Wikimedia has standing, dissented on the grounds that the non-Wikimedia plaintiffs do as well.

Davis explains that while he agrees with the majoritys decision to accept as plausible Wikimedias factual allegation, he disagrees with the majoritys assertion that the other plaintiffs have not plausibly alleged in the Dragnet Allegation that the NSA is surveilling most backbone links. He gives greater credence to the plaintiffs citation of the New York Times report to bolster their allegation, which the majority dismissed as essentially a restatement of the original allegation. More importantly, he argues that because of the technical functionality of the internet to which the plaintiffs point, NSA cannot know which link the communications it targets will traverse when they enter or leave the United States, and therefore the only way it can comprehensively acquire its targets communications is by surveilling virtually every backbone link. In his view, this allegation is a logical extension of the Wikimedia Allegation, and is therefore plausible as well.

In a footnote, Davis also criticizes the majoritys decision to assess the standing of the non-Wikimedia plaintiffs separate from that of Wikimedia. Quoting the Supreme Courts decision in Horne v. Flores, he argues that in all standing inquiries, the critical question is whether at least one petitioner has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.

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The Fourth Circuit Remands Wikimedia's Suit Against the NSA Back ... - Lawfare (blog)

President Donald Trumps firing of FBI director James Comey continues to reverberate in the KremlinGate scandal, which threatens to consume the Trump administration. By abruptly removing Comey, then mangling his excuses for why he did so, Trump created a needless crisis for the White House which shows no signs of abating.

The impartial observer might think that Trump fired Comey because he feared what the FBIs counterintelligence investigation of the presidents contacts with Russia might revealas the commander in chief has essentially admitted. Moreover, Trumps inappropriate efforts to secure Comeys personal loyalty had fallen flatthe FBI director rightly assured the president of his honesty but abjured any fealty to Trump personallyafter which the president is reported to have developed a palpable fear of the incorruptible Bureau boss. To protect Team Trump, Comey had to go.

But cashiering Comey was insufficient. True to form, Trump seemingly tookthe offensive against the FBI. According to multiple reports, the president approached top intelligence bosses to coax them into joining Trumps personal war with Comey. In particular, Trump is reported to have asked Dan Coats, the director of national intelligence (DNI), and Admiral Mike Rogers, director of the National Security Agency, to go public in denying that Team Trump had any ties to Russia during the 2016 election campaign.

The presidents take on the FBI investigation is well known, thanks to his frequent tweets castigating it as fake news, a hoax and even a witch hunt. However, asking top intelligence officials to publicly attack the FBI and its director isnt just unusualits unprecedented. Even President Nixon, in the depths of the Watergate scandal, which ultimately unraveled his administration, never went quite so far as to drag NSA into his public mess.

Admiral Rogers anecdotally flatlydenied Trumps request, whichif truewas inappropriate, unethical and dubiously legal, while Coats, a Trump appointee whos only been in the DNI job since mid-March, likewise refused to back the president against the FBI. This was a stunning setback for Trump, who seems to view our nations top security officials as his personal employees who ought to follow his presidential whim rather than the law and the Constitution, which all of them take an oath to defend.

Last week, when he appeared before the Senate Armed Services Committee, Coats declined to answer questions about the White Houses effort to undermine the FBI investigation of Team Trump, stating, I dont feel its appropriate to characterize discussions and conversations with the president in open session. Presumably DNI Coats would be more forthcoming in a closed Congressional session, where classified information can be revealed.

Director Rogers, in contrast, has made no public statements about the presidents effort to enlist him in his anti-Comey campaign. This is typical of his famously tight-lipped agencyfor decades, NSA was humorously said to stand for Never Say Anythingand why Trump approached Rogers is no mystery. As the nations signals intelligence force, NSA isnt just the biggest source of intelligence on earthits also the agency possessing the bulk ofthe classified information which establishes collusion between Trump and the Russians. Although whispers of such SIGINT have reached the media, the lions share remains hidden from public view, though its all known to the FBI.

If Trump could co-opt NSA in his fight with the Bureau, that would be a big win, protecting the White House from dangerous information, so its safe to assume that Rogers refusal burned Trump personally. Perhaps thats why, early this week, Admiral Rogers took the unusual step of addressing the entire NSA workforce to tell them what transpired with the president.

This is not Rogers style. Indeed, his tenure as NSAs director (called DIRNSA by insiders) has been characterized by distance from his employees, which has made things rockier than necessary. To be fair to Rogersa career intelligence officer well equipped for his current positionwhen he became DIRNSA in the spring of 2014, he inherited an agency in crisis.NSA was still reeling from the disastrous Ed Snowden affair, the biggest theft of classified information in espionage history.

While Snowden has taunted NSA with tweets sent from his Russian hideaway, more security disasters have followed. The strange case of Harold Martin, yet another rogue defense contractor who stole gigantic amounts of classified information from the agency, constituted another Snowdenesque embarrassment, even though theres no evidence that Martin was engaged in espionage.

Worse for Rogers was the theft of highly classified hacking tools from NSA by the so-called Shadow Brokers, which is widely believed to be a front for Russian intelligence. The dumping of those top-secret exploits online, after modification by rogue hackers, has resulted in worldwide cyberattacks impacting millionsyet another black mark on Rogers tenure as DIRNSA. In response to these very public setbacks, Rogers has seldom addressed the NSA workforce about them or much else.

This weeks town hall event, which was broadcast to agency facilities worldwide, was therefore met with surprise and anticipation by the NSA workforce, and Rogers did not disappoint. I have spoken with several NSA officials who witnessed the directors talk and Im reporting their firsthand accounts, which corroborate each other, on condition of anonymity.

In his town hall talk, Rogers reportedly admitted that President Trump asked him to discredit the FBI and James Comey, which the admiral flatly refused to do. As Rogers explained, he informed the commander in chief, I know you wont like it, but I have to tell what I have seena probable reference to specific intelligence establishing collusion between the Kremlin and Team Trump.

Rogers then added that such SIGINT exists, and it is damning. He stated, There is no question that we [meaning NSA] have evidence of election involvement and questionable contacts with the Russians. Although Rogers did not cite the specific intelligence he was referring to, agency officials with direct knowledge have informed me that DIRNSA was obviously referring to a series of SIGINT reports from 2016 based on intercepts of communications between known Russian intelligence officials and key members of Trumps campaign, in which they discussed methods of damaging Hillary Clinton.

NSA employees walked out of the town hall impressed by the directors forthright discussion of his interactions with the Trump administration, particularly with how Rogers insisted that he had no desire to politicize the situation beyond what the president has already done. Americas spies are unaccustomed to playing partisan politics as Trump has apparentlyasked them to do, and it appears that the White Houses ham-fistedeffort to get NSA to attack the FBI and its credibility was a serious mistake.

Its therefore high time for the House and Senate intelligence committees to invite Admiral Rogers to talk to them about what transpired with the White House. Its evident that DIRNSA has something important to say. Since Mike Rogers is said to have kept notes of the presidents effort to enlist him in Trumps personal war with the FBI, as any seasoned Beltway bureaucrat would do, his account ought to be impressively detailed.

John Schindler is a security expert and former National Security Agency analyst and counterintelligence officer. A specialist in espionage and terrorism, hes also been a Navy officer and a War College professor. Hes published four books and is on Twitter at @20committee.

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Exclusive: NSA Chief Admits Donald Trump Colluded With Russia - Observer

National Security Agency (NSA) Director Admiral Michael Rogers participates in a session at the third annual Intelligence and National Security Summit in Washington, U.S., September 8, 2016. REUTERS/Gary Cameron/File Photo

Reports surfaced on Friday that National Security Agency (NSA) chief Mike Rogers told NSA workers that there is evidence that President Donald Trump and his 2016 campaign colluded with the Russian government to defeat Democratic nominee Hillary Clinton in 2016.

Former NSA agent John Schindler wrote in the New York Observer Friday that Rogers addressed an agency-wide town hall meeting this week that was broadcast to all of the agencys facilities around the world. In it, Rogers purportedly confirmed reports that came out last week alleging that Trump asked him to speak out against the Russia investigation.

Rogers, according to current NSA agents with whom Schindler claims to have spoken who has a very dodgy reputation in some circles said that he has seen intelligence information regarding contacts between Trump and the Kremlin.

There is no question that we [meaning NSA] have evidence of election involvement and questionable contacts with the Russians, the director reportedly said.

NSA employees walked out of the town hall impressed by the directors forthright discussion of his interactions with the Trump administration, particularly with how Rogers insisted that he had no desire to politicize the situation beyond what the president has already done, Schindler said.

The House and Senate Intelligence Committees should subpoena Rogers, Schindler said, and find out what he knows with regard to Trump and the 2016 campaign.

Schindler is regarded by some people as a conspiracy theorist along the lines of former Heat Street editor Louise Mensch, with whom Schindler enjoys an amiable online relationship. The two publish scoops reinforcing each other and share a common enemy in those who declare that anti-Trumpists are dabbling in red-baiting and conspiracy mongering.

However, as a former agent, Schindler has deep ties at the NSA.

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Did Admiral Mike Rogers tell the NSA that Trump colluded with the ... - Raw Story

The secret court that oversees government snooping took the Obama administration to task late last year, suggesting it created "a very serious Fourth Amendment issue" by violating rules the government itself had implemented regarding the surveillance of Americans.

According to top-secret documentsmade public by the Foreign Intelligence Surveillance Court often referred to as the FISA court the government admitted that, just days before the 2016 election, NSA analysts were violating surveillance rules on a regular basis. This pattern of overreach, coupled with the timing of the governments disclosure, resulted in an unusually harsh rebuke of the administrations practices and principles.

A former CBS journalist suing the federal government for allegedly spying on her said the documents prove the illegal snooping was pervasive and widely abused.

POTENTIAL 'SMOKING GUN' SHOWING OBAMA ADMINISTRATION SPIED ON TRUMP TEAM, SOURCE SAYS

"Sources of mine have indicated that political players have increasingly devised premises to gather intel on political targets by wrapping them up in 'incidental' collection of foreigners, as if by accident," Sharyl Attkisson, who is pursuing a federal lawsuit the Department of Justice has tried to dismiss, told the Fox News Investigative Unit.

According to the FISA Court opinion, it was on September 26, 2016 that the government submitted an undisclosed number of "certifications" for the court to review. The review process was supposed to be completed within 30 days, or by October 26, 2016.

Just two days before that review was to be completed and less than two weeks before the 2016 election the government informed the court that NSA analysts had been violating rules, established in 2011, designed to protect the internet communications of Americans.

The NSA has suggested these were inadvertent compliance lapses, and points out that the agency "self-reported" these problems, meaning they were the ones to bring this issue to the attention of the court.

There was just one problem.

The violations that the government disclosed on October 24, 2016, were based on a report from the NSA's Inspector General that had been released 10 months earlier, in January 2016. This means that when the government submitted its certifications for review in September, they were likely aware of that IG report but failed to mention the malpractice going on at the NSA.

The Court at the time blamed an institutional lack of candor" for the government's failure to disclose that information weeks earlier, and gave the government until April 28, 2017, to come up with a solution. After failing to come to an agreement, the NSA announced that it was stopping the type of surveillance in question.

The so-called lapses among NSA staffers had to do with Section 702 of the Foreign Intelligence Surveillance Act, and the upstream surveillance of what the intelligence community refers to as about communications.

REPORT: OBAMA LIED AND OBAMA SPIED

According to the NSA, Section 702 "allows the intelligence community to conduct surveillance on only specific foreign targets located outside the United States to collect foreign intelligence, including intelligence needed in the fight against international terrorism and cyber threats."

Upstream surveillance, according to the ACLU, was first disclosed by NSA leaker Edward Snowden, and involves the NSAs bulk interception and searching of Americans international internet communications including emails, chats, and web-browsing traffic.

This Thursday, June 6, 2013, file photo, shows a sign outside the National Security Administration (NSA) campus in Fort Meade, Md. (AP Photo)

Until the NSA stopped it, the upstream snooping program notified them directly if someone inside the U.S. composed an email that contained the email address of a foreign intelligence agent who was being monitored. According to an NSA declaration reportedly made during the Bush administration, these communications did not have to be to or from the foreign agent, they simply had to mention the email address.

According to the FISA Court documents just made public, the notifications sent to the NSA often led to the unmasking of American citizens caught up in monitoring. And as the court pointed out, many of the requests being made to unmask the Americans taking part in these communications were in direct violation of safeguards established by the Obama administration.

According to the FISA Court documents, so-called minimization procedures adopted in 2011 to curb unlawful surveillance have prohibited use of U.S.-person identifiers to query the results of upstream Internet collections under Section 702.

And, according to the governments October 26, 2016 admission, NSA analysts had been conducting such queries in violation of that prohibition, with much greater frequency than had been previously disclosed.

The suspended surveillance program has been a target of fierce criticism from Republican and Democratic lawmakers, as well as journalists and even Snowden.

Sen. Rand Paul, R-Kentucky, told Fox & Friends on Wednesday that the terrible program was basically a back doorway to sort of get at Americans' privacy without using a warrant.

When the NSA announced it was stopping certain Section 702 activities, Senate Intelligence Committee member Ron Wyden, D-Oregon, said he had raised concerns for years that this amounted to an end run around the Fourth Amendment.

Snowden tweeted that the NSAs actions represented the most substantive of the post-2013 NSA reforms, if the principle is applied to all other programs.

Attkisson, who sued to determine who had access to a government IP address that she says was discovered on her CBS work computer during a forensics exam, said shes concerned the truth will never come out.

"I'm told by sources that it should only take a day or a week, at most, for the intel community to provide [lawmakers with] the details of which Americans, journalists and public officials were 'incidentally' surveilled, which ones were unmasked, who requested the unmaskings, when, and for what supposed purpose," Attkisson said. "Yet months have gone by. Im afraid that as time passes, any evidence becomes less likely to persist."

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Obama's NSA rebuked for snooping on Americans; journo says it proves wide pattern - Fox News

This article first appeared on the Just Security site.

The news that Donald Trump asked the Director of National Intelligence, Daniel Coats, and the director of the National Security Agency, Adm. Michael Rogers, to publicly deny the existence of any evidence of collusion between the Russians and the Trump campaign to influence the presidential election may, or may not, contribute to the overall emerging picture of obstruction of justice by the president.

This revelation underscores several important points about the investigation.

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First, as is so often the case in criminal investigations, the devil is in the details. That is particularly true in this case, because the investigation will likely focus on Trumps intent, that is, whether he corruptly attempted to interfere with or impede the FBI investigation, meaning with an improper purpose.

Assessing intent requires a close examination of direct evidence (like Trumps own statements about his intent), and circumstantial evidence (including Trumps actions and words before, during and after the alleged acts of obstruction).

On the face of it, its not evident that Trumps request to Coats and Rogers to comment publicly on the state of the evidence amounts to obstruction. However, according to the Washington Post article , several officials interpreted Trumps request as an attempt to interfere with the investigation.

(That said, NBC News is reporting from a single source that a former official told NBC News that Coats and Rogers did not believe they were being asked to do something illegal. It was more of a public relations request.)

Determining what Trump intended will require establishing and closely analyzing what precisely he said, and the context of his words. Was he clumsily trying to get information out to the public, or was he trying to put pressure on the FBIs investigation?

Admiral Michael Rogers, commander of U.S. Cyber Command and Director of the National Security Agency, testifies during a House Armed Services Emerging Threats and Capabilities Subcommittee hearing on Capitol Hill in Washington, March 4, 2015. Drew Angerer/Getty

How others understood Trumps words at the time will often be powerful evidence of how they were intended, but not always determinative.

Second, despite the steady revelations over the last two weeks, there may not ultimately be a smoking gun, a single piece of evidence that definitively establishes Trumps intent.

It is more likely that his intent will be discerned from all the available evidence considered together, in this case Trumps alleged request of then-FBI Director James Comey to declare his loyalty, Trumps privately expressed hope to Comey that he find a way to let the Flynn investigation go, Trumps firing of Comey, the false narrative that Trump created about the firing, Trumps statements to the Russians about dismissing Comey and Trumps own public statements about what he did.

This new revelation about Trumps request to Coats and Rogers, once its details are filled in, will need to be assessed along with all these other pieces of evidence.

Perhaps more damning than the Coats and Rogers revelation, the Washington Post story also contained the following alarming disclosure:

In addition to the requests to Coats and Rogers, senior White House officials sounded out top intelligence officials about the possibility of intervening directly with Comey to encourage the FBI to drop its probe of Michael Flynn, Trumps former national security adviser, according to people familiar with the matter. The officials said the White House appeared uncertain about its power to influence the FBI.

Can we ask him to shut down the investigation? Are you able to assist in this matter? one official said of the line of questioning from the White House.

It is difficult to believe that the senior White House officials referenced here were not being encouraged or directed by Trump to find a way to shut down the FBIs investigation. What subordinates said at the time, how they behaved, and what instructions they received from above will also help establish whether Trump committed obstruction of justice.

Third, there will always be some explanation. Following the revelation that Trump told the Russians that Comey was a nut job and that firing him had relieved great pressure on the President, National Security Adviser H.R. McMaster and Secretary of State Rex Tillerson both labored to offer benign (though notably different) explanations for Trumps words.

It would not be the first time in this affair that administration officials have sought to spin (or lie about) the facts. Investigators, and the public, will need to assess these explanations, relying in part on their common sense, to decide whether they are plausible on their face and how they fit (or dont fit) with all the available evidence.

Finally, it is again worth remembering that the question of whether Trump committed obstruction of justice, to a criminal standard, is just one part of the larger inquiry. The question of criminality cannot be the beginning and end of the investigation.

Important also is to ask whether Trump or any administration officials acted unethically; in violation of rules, regulations, or policy; incompetently; or in a manner that could undermine U.S. security or interests.

The story about Trumps request to Coats and Rogers may contribute to the obstruction inquiry, but it raises many of these other questions as well. For example, the Post cites senior intelligence officials who saw the requests as a threat to the independence of U.S. spy agencies.

For this reason, it is essential that the congressional investigations continue to probe these larger questions and to assess whether personnel, policy, or legislative reforms are warranted.

Alex Whiting is a Professor of Practice at Harvard Law School. From 2010-13, he served as the Investigation Coordinator and the Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court.

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Why Did Trump Tell NSA Chiefs to Deny Russian Plot? - Newsweek

In the aftermath of the WannaCry ransomware attacks this month, Microsoft took the unprecedented step of publically calling out the National Security Agency for hoarding vulnerabilities and exploits, such as EternalBlue.

The WannaCry ransomware worm used a critical vulnerability in the Windows Server Message Block protocol, known as EternalBlue, which was released to the public by the Shadow Brokers last month.

The Shadow Brokers claim to have stolen EternalBlue and other exploits and cyberweapons from another hacking outfit called the Equation Group, which has been tied to the NSA. While Microsoft issued a patch for the vulnerability a month before its disclosure, many organizations failed to update their Windows systems and were left exposed to the WannaCry ransomware worm.

Brad Smith, president and chief legal officer at Microsoft, wrote a blog post regarding WannaCry and claimed it was "yet another example of why the stockpiling of vulnerabilities by governments is such a problem." He also criticized the NSA by name for failing to disclose EternalBlue and other serious exploits to vendors like Microsoft so they could be patched.

"This is an emerging pattern in 2017," Smith wrote. "We have seen vulnerabilities stored by the CIA show up on WikiLeaks, and now this vulnerability stolen from the NSA has affected customers around the world."

In part two of Risk & Repeat's discussion on the WannaCry ransomware attacks, SearchSecurity Senior Reporter Michael Heller joins editors Rob Wright and Peter Loshin to discuss Microsoft's pointed criticism of the U.S. government, the repercussions of the NSA's practice of hoarding vulnerabilities and the effect WannaCry may have on the Vulnerabilities Equities Process.

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Risk & Repeat: Microsoft slams NSA over EternalBlue - TechTarget

New York Times

Federal Court Revives Wikimedia's Challenge to NSA Surveillance New York Times The ruling, by the Court of Appeals for the Fourth Circuit, is significant because it increases the chances that the Supreme Court may someday scrutinize whether the N.S.A.'s so-called upstream system for internet surveillance complies with Fourth ... Court revives Wikimedia lawsuit against NSAWashington Post Wikimedia's lawsuit against the NSA is backThe Verge Wikimedia's Constitutional Challenges of NSA Upstream Surveillance Moves ForwardEFF U.S. News & World Report -Common Dreams -Reuters -DocumentCloud all 29 news articles »

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Federal Court Revives Wikimedia's Challenge to NSA Surveillance - New York Times

National Security Agency Director Mike Rogers was asked by President Donald Trump to publicly push back against the FBI probe into Russia's interference in the 2016 election and possible collusion by Trump associates, a source familiar with the matter told ABC News.

According to the source, Rogers rebuffed the president's request, deeming it inappropriate. The encounter between Rogers and Trump was documented in a contemporaneous memo.

The White House told ABC News in response to the story that it "does not confirm or deny unsubstantiated claims based on illegal leaks from anonymous individuals. The president will continue to focus on his agenda that he was elected to pursue by the American people."

Trumps request to Rogers is not the first time he has made such an appeal to a top intelligence official.

Following Trump's firing of James Comey on May 9, it was revealed that the former FBI director reportedly wrote a memo detailing a request Trump made to him in February to drop the FBIs investigation of National Security Adviser Mike Flynn.

Rogers later testified in front of the House Armed Services Committee but was not asked about the report.

The Washington Post was the first to report that Trump made the appeal to Rogers in March. The Post also reported that Trump made the same request to Director of National Intelligence Dan Coats.

Asked about the report when he appeared today before the Senate Armed Services Committee, Coats declined to comment.

"I have always believed that given the nature of my position and the information which we share it's not appropriate for me to comment publicly on any of that," Coats said. "So on this topic, as well as other topics, I don't feel it's appropriate to characterize discussions and conversations with the president."

Coats said he was not aware of any attempts to contact other intelligence officials to drop the investigation into Flynn.

Though he would not confirm or deny The Post report, Coats said he would be forthcoming if hes asked about it by special counsel Robert Mueller, who was appointed to investigate Russian interference in the 2016 election.

ABC News' Alexander Mallin contributed to this report.

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Trump asked NSA director to publicly push back against FBI's Russia investigation - ABC News

On one front, he was being considered as a candidate for the job of director of national intelligence under President-elect Donald Trump. On another front, there were questions about whether he would be fired as director of the National Security Agency by then-President Barack Obama.

Obama's defense and intelligence chiefs had recommended firing Rogers due to the belief that Rogers was not working fast enough on a critical reorganization to address the cyberthreat, but Rogers survived and remained in his role as the director of the NSA and head of US Cyber Command under Trump.

In fact, Rogers has spent more time testifying about that topic than just about any other US official and is facing more questions from lawmakers on Tuesday as the probe continues to look into possible collusion between Russian officials and associates of the Trump campaign.

The revelations, first reported by The Washington Post, deepen the intrigue over alleged links between Trump's campaign and Russia as they follow the President's firing of Comey and his subsequent statement he did so because of the Russia probe.

Both Coats and Rogers were uncomfortable with the nature of the President's request and refused to comply, sources with knowledge of the situation told CNN.

Rogers also played a key role in last month's House hearing with Comey when he joined the FBI director in refuting Trump's claim that Obama had had his phones tapped during the campaign. He specifically batted down the notion that the Obama administration requested that the British eavesdrop on Trump, an unfounded assertion made on Fox News and later cited by White House officials.

Despite ultimately winning the election, Macron had been the victim of a "massive and coordinated hacking operation," his campaign team said.

"We had talked to our French counterparts ... and we gave them a heads up: 'Look, we are watching the Russians. We are seeing them penetrate some of your infrastructure. Here's what we've seen ... what can we do to assist?'" Rogers told lawmakers on the Senate armed services committee earlier this month.

Prior to assuming his current role at the NSA in 2014, Rogers served as the director for Intelligence for both the Joint Chiefs of Staff and US Pacific Command, and most recently as commander, US Fleet Cyber Command.

A native of Chicago, Rogers attended Auburn University. He graduated in 1981 and received his commission through the Naval Reserve Officers Training Corps. He was selected for re-designation to information warfare in 1986 after initially serving as a surface warfare officer.

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Who is NSA Director Mike Rogers? - CNN

Cybersecurity researchers have discovered a new worm that uses seven of the NSA's leaked exploits.

If the NSA's leaked hacking tools had a Voltron, it would be EternalRocks.

On Sunday, researchers confirmed new malware, named EternalRocks, that uses seven exploits first discovered by the National Security Agency and leaked in April by the Shadow Brokers group. Experts described the malware as a "doomsday" worm that could strike suddenly.

Earlier this month, the WannaCry ransomware plagued hospitals, schools and offices around the world and spread to more than 300,000 computers. It uses two NSA exploits that were leaked by the Shadow Brokers, EternalBlue and DoublePulsar. A few days later, researchers found Adylkuzz, new malware that spread using those same exploits and created botnets to mine for cryptocurrency.

Now, there's EternalRocks. Miroslav Stampar, a cybersecurity expert for Croatia's CERT, first discovered the hodgepodge of hacks on Wednesday. The earliest findings of EternalRocks goes all the way back to May 3, he wrote in a description on GitHub.

EternalRocks uses EternalBlue, DoublePulsar, EternalChampion, EternalRomance, EternalSynergy, ArchiTouch and SMBTouch -- all tools leaked by the Shadow Brokers. Stampar said he found the packed hack after it infected his honeypot, a trap set to monitor incoming malware.

The majority of the tools exploit vulnerabilities with standard file sharing technology used by PCs called Microsoft Windows Server Message Block, which is how WannaCry spread so quickly without being noticed. Microsoft patched these vulnerabilities in March, but many outdated computers remain at risk.

Unlike WannaCry, which alerts victims they've been infected through ransomware, EternalRocks remains hidden and quiet on computers. Once in a computer, it downloads Tor's private browser and sends a signal to the worm's hidden servers.

Then, it waits. For 24 hours, EternalRocks does nothing. But after a day, the server responds and starts downloading and self-replicating. That means security experts who want to get more information and study the malware will be delayed by a day.

"By delaying the communications the bad actors are attempting to be more stealthy," Michael Patterson, CEO of security firm Plixer, said in an emailed statement. "The race to detect and stop all malware was lost years ago."

It even names itself WannaCry in an attempt to hide from security researchers, Stampar said. Like variants of WannaCry, EternalRocks also doesn't have a kill-switch, so it can't be as easily blocked off.

For now, EternalRocks remains dormant as it continues to spread and infect more computers. Stampar warns the worm can be weaponized at any time, the same way that WannaCry's ransomware struck all at once after it had already infected thousands of computers.

Because of its stealthy nature, it's unclear how many computers EternalRocks has infected. It's also unclear what EternalRocks will be weaponized into. Plixer said the worm could be immediately turned into more ransomware or trojan attacks for banking.

The NSA has been widely criticized for holding onto these exploits without warning the companies involved. On Wednesday, Congress introduced a bill that would force the government to hand over its cyber arsenal to independent review boards.

The NSA didn't immediately respond to a request for comment.

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'Doomsday' worm uses seven NSA exploits (WannaCry used two) - CNET