This week we talk about gunmakers, blacksmiths, and Lina Khan. We also discuss the FTC, employer-employee relations, and competition law. Show notes / transcript: https://letsknowthings.com/episode347 

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Non-Competes

A calm, non-shouty, non-polemical, weekly news analysis podcast for folks of all stripes and leanings who want to know more about what's happening in the world around them. Hosted by analytic journalist Colin Wright since 2016. 

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News

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This week we talk about ENSO, El Niño, and attribution science. We also discuss climate change, natural disasters, and the trade winds. Recommended Book: Titanium Noir by Nick Harkaway Transcript The field of attribution science, sometimes referred to as "extreme event attribution," focuses on figuring out whether and to what degree a particular weather event—especially rare weather disasters—are attributable to climate change. Severe floods and tornadoes and hurricanes all happen from time to time, which is why such events are sometimes referred to as once in a decade or once in a century disasters: the right natural variables align in the right way, and you have a disaster that is rare to the point that it's only likely to happen once every 10 or 100 years, but such rare events still happen, and sometimes more frequently than those numbers would imply; they're not impossible. And they're not necessarily the result of climate change. Folks working in this space, which is a blend of meteorology and the rapidly evolving field of climate science, do their best to figure out what causes what, and how those odds might have been impacted by the shifts we're seeing in global average temperatures in particular, and the knock-on effects of that warming, like shifts in the global water cycle; both of which influence all sorts of other planetary variables. The most common means of achieving this end is to run simulations based on historical climate data and extrapolating those trend-lines forward, allowing for natural variation, but otherwise sticking with the range of normal fluctuations that would have been expected, had we not started to churn so much CO2 and other greenhouse gases into the atmosphere beginning with the industrial revolution. So if we hadn't done the Industrial Revolution the way we did it, what would our global climate and weather systems look like? They have a bunch of models with different assumptions baked into them that they have running, and they can simulate conditions, today, based on those models, and compare them with the reality of how things actually are in the real world, a world in which we did start to burn fossil fuels at a frantic rate, with all the pros and cons of that decision aggregating into our current climactic circumstances. This comparison, between a baseline, non-climate-change-impacted Earth, and what we see happening on real Earth, allows us to gauge the different in likelihoods for various weather systems and increasingly even specific weather events, like massive floods or hurricanes. It also allows us to ascertain what elements of a disaster or system are more or less likely, or the same, compared to that baseline Earth; so maybe we look at a regional heat wave and discover that it was a rare event made more likely by climate change, but that the intensity of the heat wasn't impacted—as was the case with a heat wave in Russia in 2010; climate change made the heat wave more likely, but had such a heat wave occurred, despite its low likelihood, in that non-industrial revolution scenario, the heat would have been roughly the same intensity as it was in real life. Both components of this system, attributing events and patterns to climate change, and confirming that they were not impacted, that they were just run of the mill bad luck, the consequence of natural systems, are arguably important, as while the former provides data for folks wanting to predict future climate change-related outcomes, and provides some degree of ammunition for the argument that climate change is making these sorts of things worse, which helps put a price tag on not moving faster to shift away from fossil fuels, it's also vital that we understand how climate and weather systems work, in general, and that we are able to set proper expectations as to what will change and how, as the atmosphere's composition continues to change, while also understanding what will remain the same, what various regions around the world need to be prepared for in a vacuum, leaving climate change out of it, and how our global weather systems work on a granular level, so that as outside influences like climate change, but not limited to climate change, act upon them, we can make better predictions about how that will adjust or overhaul the practical reality for people and ecosystems impacted by them. What I'd like to talk about today is a natural weather phenomenon that is expected to return soon, and how this phenomenon might change our latent, global weather patterns, for the better, for the worse, and for the neutral, and in turn how it might be changed by the climactic adjustments we're tracking using these simulations. — The El Niño-Southern Oscillation, or ENSO phenomenon, is the monicker we've given to a collection of sea surface temperature and wind variations in the Pacific Ocean that, largely unpredictably, tweak the patterns of these systems from time to time, influenced by and influencing a large number of other, micro- and macro-scale systems around the world. Most directly, ENSO dictates how warm it will be across the tropics and subtropics, El Niño bringing warm waters to the surface of the relevant oceans and the Southern Oscillation referring to air pressure variations spanning the ocean between Tahiti and Darwin, Australia, low pressure tending to occur over warm bodies of water, and higher pressure over colder bodies of water. When the water in this part of the Pacific, the central and east-central equatorial pacific, is warmer, on the surface, that reduces atmospheric pressure thereabouts, which in turn reduces the strength of the Pacific trade winds. That reduction, among other things, decreases rainfall over parts of Australia, India, and Indonesia, while upping the same, while also stoking additional cyclone risk, in the tropical Pacific Ocean. Fundamental to understanding why this is a big deal is understanding that this tweak in water and atmospheric conditions causes low level surface trade winds, which usually blow from east to west, to either stop blowing or barely blow, or in some cases to reverse direction. If you think about how weather patterns form, determining everything from who gets rain and how much, to what temperatures are like in a given area—because those winds pull warm or cold air along with them as they pass over warmer or cooler parts of the planet, like mountains and glaciers, but also deserts and tropical rain forests—it becomes clear why this change-up is such a big deal. There's a neutral phase of this phenomenon that typically occur between warmer and colder phases, and during that neutral phase, we usually see other, similar systems that are interconnected and predicated on still other geographic and atmospheric variables, like the Pacific-North American teleconnection pattern, and the North Atlantic Oscillation, having more of an impact on global weather and water cycle patterns. When this system is in a warmer El Niño state, though, that tends to cause a lot of heat waves throughout tropical regions in particular, while also spiking global surface temperatures for around a year, with all the secondary consequences of suddenly jolting the global thermostat higher: melting glaciers and ice caps, increasing the range of disease-carrying pests, messing with planting seasons; things like that. The opposite side of this coin, La Niña, can also be quite disruptive though, its influence defined by cooler waters rising to the surface in that part of the Pacific, warmer waters headed westward where they have less influence on this component of the world's thermostat and weather machine, and that drop in water temperature in this part of the ocean tends to reset many of the dials that are turned up by El Niño, moderating some of the weather patterns that are amplified by those warmer waters and returning the trade winds to their normal settings, while also reducing global temperatures to what we might think of as their default. But the next La Niña phenomenon—which experts in this space say will likely arrive sometime in the next few months, June or July of 2024, marking a quick transition away from the record-setting El Niño system we've been living through since July of 2023, which has been designated the fourth most extreme in recorded history—this anticipated new La Niña setup will follow a truly intense opposite pattern, which means if it's not strong enough, it may not counteract all of the warming brought about by its precursor El Niño system, which means the next El Niño system could compound upon this outgoing one, in terms of its globe-heating effects. There are also concerns that, because of that strong El Niño, and it arriving at a period of human-caused warming—two forces raising the temperature on the thermostat simultaneously, basically—there's a chance that the moderating force of this La Niña might run up against an insurmountable variable adjustment, even if it is otherwise powerful enough; meaning, this ENSO phenomenon could contribute to a long term, even permanent increase in global temperatures because its warming effects are mirroring another, external warming effect caused by us and our greenhouse gas emissions. We don't know exactly what that would mean in practice and long-term, but it could lead to more. and more extreme versions of what we've seen this past year: namely a surge in weather disasters like extreme droughts and floods and wildfires that never really end; just bigger and bigger surges, combined with higher and higher temperatures. And again, that's possible even if the La Niña pattern that's set to arrive is of a normal, non-weak strength, because of how potent this outgoing El Niño has been, and because its effects may be compounded by climate change. If the new La Niña does prove potent enough to counteract this outgoing El Niño, that may help with short-term temperature changes, but we're then likely to see a substantially more severe hurricane season; which is normally what happens during these periods of change, La Niña conditions making hurricanes more likely, but it could be even more severe than usual because of lingering oceanic heat from the El Niño, which popped temperatures in the Atlantic to 2 degrees Fahrenheit higher than the average temperature from the past three decades—and oceanic heat is what powers hurricanes, informing how big and destructive they can become. Last year's Atlantic Ocean hurricane season was already above-average in terms of the number of hurricanes and their strength because of that heat, but the amalgamation of variable-tweaks inherent in a La Niña transition make hurricanes more likely, whatever the ocean's temperature, so the combination of, likely, more hurricanes, plus far warmer than usual oceanic temperatures, means more, but also potentially a lot more powerful, hurricanes this season. We've been watching these systems and transitions for a while now, and our science related to them—including our ability to predict what they're going to do, and how much—has gotten pretty good over the last few decades. But all of these systems and all of their variables are interconnected, each and every piece touching each and every other piece of the planet's cycles and ecosystems and compositions; so there's a lot we're not tracking, a lot we're not tracking with the resolution we'd need for it to be valuable in this regard, and a lot of entanglements and relationships we're not even aware of, yet. In particular, the impact that climate change is having on these systems, directly and indirectly, is a big question mark in all these computations. Yes, we understand all of this better than a few decades ago, and yes, our simulations and models have gotten pretty solid, and are getting better by the day as we develop better formulae and software, and deploy more fancy satellites and other tracking tools that allow us to keep tabs on the relevant variables in an up-to-the-second manner. But because of how complex all of this is, it's a truly chaotic jumble of systems, and because of how we're scrambling to play catch-up, the world changing around us faster than we're learning about those changes—these sorts of systems are evolving even as we come to understand how they work; so our most up to date information is always a little bit out of date, leaving us prone to new unknowns and larger shifts than we'd anticipated based on our existing data. Human-amplified climate change, then, is fiddling with all the knobs and switches, changing how these phenomena work right before our eyes, and each new system and cycle is part known, part complete surprise because of how even tiny changes can make huge differences when compounded by these spirals and cascades of cause and large-scale, multifaceted effect. In other words, we have a good sense of what we need to be worried about and watching for during this probable upcoming transition, and we maybe have some things to look forward to, alongside a few other things to worry about and prepare for. We'll also be watching to see how much global temperatures come down, as that will tell us to what degree this outgoing El Niño has been tweaking those temperatures, and to what degree climate change is to blame for the disconcerting numbers we've been seeing in this regard. But we'll also be watching to see how everything is being amplified and compounded by all of these interconnected effects, as it may be, still allowing for ups and downs and other variations year to year, that these patterns, and others like them, will lead to wider, broader, more dramatic swings for the foreseeable future because of all those changes, natural and human-caused. Show Notes https://www.reuters.com/business/environment/el-nino-end-by-june-la-nina-seen-second-half-2024-says-us-forecaster-2024-05-09/ https://www.axios.com/2024/05/09/el-nino-la-nina-hurricane-season https://www.vox.com/climate/24145756/la-nina-2024-el-nino-heat-hurricane-record-temperature-pacific https://oceanservice.noaa.gov/facts/ninonina.html https://theconversation.com/la-nina-is-coming-raising-the-chances-of-a-dangerous-atlantic-hurricane-season-an-atmospheric-scientist-explains-this-climate-phenomenon-228595 https://en.wikipedia.org/wiki/El_Ni%C3%B1o%E2%80%93Southern_Oscillation https://en.wikipedia.org/wiki/2020%E2%80%932023_La_Ni%C3%B1a_event https://en.wikipedia.org/wiki/Extreme_event_attribution https://www.usgs.gov/faqs/how-can-climate-change-affect-natural-disasters https://archive.ipcc.ch/publications_and_data/ar4/wg1/en/ch9s9-1-2.html https://crsreports.congress.gov/product/pdf/R/R47583 https://www.scientificamerican.com/article/scientists-can-now-blame-individual-natural-disasters-on-climate-change/ https://www.vox.com/climate/2024/2/28/24085691/atlantic-ocean-warming-climate-change-hurricanes-coral-reefs-bleaching https://en.wikipedia.org/wiki/El_Ni%C3%B1o%E2%80%93Southern_Oscillation https://en.wikipedia.org/wiki/2020%E2%80%932023_La_Ni%C3%B1a_event https://theconversation.com/is-climate-change-to-blame-for-extreme-weather-events-attribution-science-says-yes-for-some-heres-how-it-works-164941 

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La Niña 2024

This week we talk about APT28, spoofing, and hybrid warfare. We also discuss the Baltics, Tartu airport, and hacking. Recommended Book: The Middle Passage by James Hollis Transcript In early May of 2024, the German government formally blamed a Russian hacking group called APT28 for hacking members of the governing German Social Democratic Party in 2023, and warned of unnamed consequences. Those consequences may apply just to APT28, which is also sometimes called "Fancy Bear," or they may apply to the Russian government, as like many Russia-based hacking groups, APT28 often operates hand-in-glove with the Russian military intelligence service, which allows the Russian government to deny involvement in all sorts of attacks on all sorts of targets, while covertly funding and directing the actions of these groups. APT28 reportedly also launched attacks against German defense, aerospace, and information technology companies, alongside other business entities and agencies involved, even tangentially, with Ukraine and its defense measures against Russia's invasion. This hacking effort allegedly began in early 2022, shortly after Russia began its full-scale invasion of Ukraine, and the head of the Russian embassy in Germany has been summoned to account for these accusations—though based on prior attacks and allegations related to them by Russia's intelligence agencies, and the hacking groups it uses as proxies, that summoning is unlikely to result in anything beyond a demonstration of anger on the part of the German government, formally registered with Russia's representative in Berlin. For its part, Russia's government has said that it was in no way involved in any incidents of the kind the German government describes, though Germany's government seems pretty confident in their assessment on this, at this point, having waited a fair while to make this accusation, and utilizing its partnerships with the US, UK, Canada, and New Zealand to confirm attribution. This accusation has been leveled amidst of wave of similar attacks, also allegedly by Russia and its proxies, against other targets in the EU and NATO—including but not limited to the Czech Republic, Lithuania, Poland, Slovakia, and Sweden. Many of these attacks have apparently made use of an at-the-time unknown security flaw in Microsoft software that gave them access to compromised email accounts for long periods of time, allowing them to, among other things, scoop up intelligence reports from folks in the know in these countries, sifting their messages for data that would help Russia's forces in Ukraine. This group, and other Russia GRU, their intelligence service, proxies, have reportedly targeted government and critical infrastructure targets in at least 10 NATO countries since the fourth quarter of 2023, alone, according to analysis by Palo Alto Networks, and experts in this space have said they're concerned these sorts of attacks, while often oriented toward intelligence-gleaning and at times embarrassing their targets, may also be part of a larger effort to weaken and even hobble intelligence, military, and critical infrastructure networks in regional nations, which could, over time, reduce stability in these countries, increase extremism, and possibly prevent them from defending themselves and their neighbors in the event of a more formal attack by Russian forces. What I'd like to talk about today is another sort of attack, allegedly also launched by Russia against their neighbors in this part of the world, but this one a little less well-reported-upon, at this point, despite it potentially being even more broadly impactful. — The Global Positioning System, or GPS, was originally developed in 1973 by the US Department of Defense. Its first satellite was launched in 1978, and its initial, complete constellation of 24 satellites were in orbit and functional in 1993. This satellite network's full functionality was only available to the US military until 2000, when then-President Bill Clinton announced that it would be opened up for civilian use, as well. This allowed aviation and similar industries to start using it on the vehicles and other assets, and normal, everyday people were thenceforth able to buy devices that tapped this network to help them figure out where they were in the world, and get to and from wherever they wanted to go. A high-level explanation of how GPS works is that all of these satellites contain atomic clocks that are incredibly stable and which remain synchronized with each other, all showing the exact same, very precise time. These satellites broadcast signals that indicate what time their clocks currently read. GPS devices, as long as they can connect to the signals broadcast by a few of these satellites, can figure out where they're located by noting the tiny differences in the time between these broadcasts: signals from satellites that are further away will take longer to arrive, and that time difference will be noted by a given device, which then allows it to triangulate a geolocation based on the distance between the device and those several satellites. This is a simple concept that has created in a world in which most personal electronic devices now contain the right hardware and software to tap these satellite signals, compute these distances, and casually place us—via our smartphones, cars, computers, watches, etc—on the world map, in a highly accurate fashion. This type of technology has proven to be so useful that even before it was made available for civilian use, catalyzing the world that we live in today, other governments were already investing in their own satellite networks, most predicated on the same general concept; they wanted to own their own constellation of satellites and technologies, though, just in case, because the GPS network could theoretically be locked down by the US government at some point, and because they wanted to make sure they had their own militarizable version of the tech, should they need it. There are also flaws in the US GPS system that make it less ideal for some use-cases and in some parts of the world, so some GPS copycats fill in the blanks on some of those flaws, while others operate better at some latitudes than vanilla GPS does. All of which brings us to recent troubles that the global aviation industry has had in some parts of the world, related to their flight tracking systems. Most modern aircraft use some kind of global navigation satellite system, which includes GPS, but also Europe's Galileo, Russia's GLONASS, and China's BeiDou, among other competitors. These signals can sometimes be interrupted or made fuzzy by natural phenomena, like solar flares and the weather, and all of these systems have their own peculiarities and flaws, and sometimes the hardware systems they use to lock onto these signals, or the software they use to compute a location based on them, will go haywire for normal, tech-misbehaving reasons. Beginning in the 1990s, though, we began to see electronic countermeasures oriented toward messing with these global navigation satellite system technologies. These technologies, often called satellite navigation deceivers, are used by pretty much every government on the planet, alongside a slew of nongovernment actors that engage in military or terrorist activities, and they operate using a variety of jamming methods, but most common is basically throwing out a bunch of signals that look like GPS or other navigation system signals, and this has the practical effect of rendering these gadgets unusable, because they don't know which signal is legit and which is garbage; a bit like blasting loud noises to keep people from talking to each other, messing with their communication capacity. It's also possible to engage in what's called GPS Spoofing, which means instead of throwing out gobs of garbage signals, you actually send just a few signals that are intended to look legit and to be accepted by, for instance, a plane's GPS device, which then makes the aircraft's navigation systems think the plane is somewhere other than it is—maybe just a little off, maybe on the other side of the planet. Notably, neither of these sorts of attacks are actually that hard to pull off anymore, and it's possible to build a GPS-jamming device at home, if you really want to, though spoofing is a fair bit more difficult.  Also worth knowing is that while making your own jammer is absolutely frowned upon by most governments, and it's actually illegal in the US and UK, across most of the world it's kind of a Wild West in this regard, and you can generally get away with making one if you want to, though there's a chance you'd still be arrested if you caused any real trouble with it. And it is possible to cause trouble with these things: most pilots and crew are aware of how these devices work and can watch for their effects, using backup tools to keep tabs on their locations when they need to; but using those backup tools requires a lot more effort and attention, and there's a chance that if they're hit by these issues at a bad moment, when they're distracted by other things, or when they're coming in for a landing or attempting to navigate safely around another aircraft, that could present a dangerous situation. That's why, until May 31, at the minimum, Finnair will no longer be flying to Tartu airport—which is a very small airport in Estonia, but it's home to the Baltic Defense College, which is one of NATO's educational hubs, and losing a daily flight to Tartu (the only daily flight at this particular airport) from Helsinki, will disconnect this area, via plane, at least, from the rest of Europe, which is inconvenient and embarrassing. This daily flight was cancelled because of ongoing disruptions to the airport's GPS system, which was previously an on-and-off sort of thing, but which, since 2022, when Russia launched its full-scale invasion of Ukraine, has become a lot worse. And Tartu relies exclusively on GPS for planes landing at the airport, and thus doesn't have another fallback system, if GPS fails at a vital, dangerous moment. This is a running theme throughout the Baltic region, an area populated by now-democratic NATO members that were formerly part of the Soviet Union, and which are considered to be at risk of a Russian invasion or other sort of attack if the invasion of Ukraine goes Russia's way. Almost all aircraft flying through this area have experienced GPS-jamming issues since 2022, and though that Finnair flight is the only one to have been cancelled as a result of all this jamming, so far, there are concerns that this could really scramble travel and shipping in the region, as it's making all flying in the area that much more risky on a continuous basis. Finland's government is framing this jamming as part of a hybrid warfare effort on Russia's part—alongside other hybrid efforts, like bussing migrants to Finland's borders in order to strain national coffers and nudge politics toward reactionary extremes. Some other nations are thinking along the same lines, though there's a chance that, rather than this jamming representing an intentional assault on these neighboring nations, it may actually be something closer to overflow from other, nearby jamming activities: Russia jamming GPS signals in Ukraine, for instance, or the governance of the Kaliningrad region, which is a Russian enclave separated from the rest of Russia and surrounded by Poland and Lithuania, engaging in their own, localized jamming, and those signals are then picked up across national borders, because that's how these signals work—just like sound can travel further than you might intend. It's possible we're seeing a bit of both here, overflow from that huge regional conflict, but also intentional jabs meant to make life more difficult for NATO nations, stressing their systems and costing them money and other resources, while also maybe testing the region's capacity to cope with such GPS disruptions and blackouts in the event of a potential future conflict. Another point worth making here, though, is that we see a lot of this sort of behavior in conflict zones, globally. FlightRadar24 recently introduced a live GPS jamming map to keep track of this sort of thing, and as of the day I'm recording this, alongside these consistent irregularities in the Baltic region, Ukraine, and parts of Eastern Europe, there's jamming occurring in the Middle East, near Israel, throughout Turkey, which has ongoing conflicts with insurgents in the afflicted areas, a portion of Moldova that is attempting to break away with the support of Russia, similar to what happened in Ukraine back in 2014, a northern portion of India where the Indian government has an ongoing conflict with separatists, and in Myanmar, where the military government is embroiled in fighting with a variety of groups that have unified to overthrow them. This has become common in conflict zones over the past few decades, then, as those who want to deny this data, and the capabilities it grants, to their enemies tend to blanket the relevant airwaves with disruptive noise or incorrect location information, rendering the GPS and similar networks less useful or entirely useless thereabouts. In Ukraine, the military has already worked out ways around this noise and false information, incorporating alternative navigation systems into their infrastructure, allowing them to use whichever one is the most accurate at any given moment. And it's likely, especially if this dynamic continues, which it probably will, as again, this is a fairly easy thing to accomplish, it's likely that spreading out and becoming less reliant on just one navigation system will probably become more common, or possibly even the de facto setup, which will be beneficial in the sense that each of these systems has its own pros and cons, but perhaps less so in that more satellites will be necessary to keep that larger, multi-model network operating at full capacity, and that'll make it more expensive to operate these systems, while also creating more opportunities for satellite collisions up in the relevant orbit—an orbit that's becoming increasingly crowded, and which is already packed with an abundance of no longer operational craft that must be avoided and operated-around. Show Notes https://www.dw.com/en/gps-jamming-in-the-baltic-region-is-russia-responsible/a-68993942 https://www.bbc.com/news/articles/cne900k4wvjo https://www.economist.com/the-economist-explains/2024/04/30/who-is-jamming-airliners-gps-in-the-baltic https://www.ft.com/content/37776b16-0b92-4a23-9f90-199d45d955c3 https://www.reuters.com/business/aerospace-defense/what-is-gps-jamming-why-it-is-problem-aviation-2024-04-30/ https://www.politico.eu/article/gps-jamming-is-a-side-effect-of-russian-military-activity-finnish-transport-agency-says/ https://www.flightradar24.com/data/gps-jamming https://www.flightradar24.com/blog/types-of-gps-jamming/ https://en.wikipedia.org/wiki/Aviaconversiya https://www.reuters.com/world/europe/russian-hackers-targeted-nato-eastern-european-militaries-google-2022-03-30/ https://www.cnn.com/2023/12/07/politics/russian-hackers-nato-forces-diplomats/index.html https://www.reuters.com/technology/cybersecurity/russian-cyber-attacks-targeted-defence-aerospace-sectors-berlin-says-2024-05-03/ https://www.aljazeera.com/news/2024/5/3/germany-accuses-russia-of-intolerable-cyberattack-warns-of-consequences https://en.wikipedia.org/wiki/Fancy_Bear 

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GPS Jamming

TikTok Ban

This week we talk about STELLARWIND, 9/11, and the NSA. We also discuss warrantless surveillance, intelligence agencies, and FISA. Recommended Book: Period: The Real Story of Menstruation by Kate Clancy Transcript Immediately after the terrorist attacks in the US on September 11, 2001, then President George W. Bush gave his approval for the National Security Agency, the NSA, to run a portfolio of significant and ever-evolving cross-agency efforts aimed at preventing future attacks of that kind, scale, and scope. The thinking behind this collection of authorizations to various US intelligence agencies, which would operate in tandem with the NSA, was that we somehow didn't see this well-orchestrated, complex plan coming, and though revelations in later years suggested we kind of did, we just didn't act on the intelligence we had, in those early, post-attack days, everyone at the top was scrambling to reassure the country that things would be okay, while also worrying that more attacks from someone, somewhere, might be impending. So the President signed a bunch of go-aheads that typically wouldn't have been signed, and the government gave a lot of power to the NSA to amalgamate the resulting intelligence data in ways that also wouldn't have previously been okay'd, but that, in those unusual circumstances, were considered to be not just acceptable, but desirable and necessary. This jumble of intelligence service activities, approved by the president and delegated to the NSA, became known as the President's Surveillance Program, and they were kept secret, in part because of how unprecedented they were, and in part because those in charge didn't want to risk their opposition—those they knew about, like Al Qaeda, but also those that might be waiting in the wings to attack the US while it was perceptually weakened and vulnerable—they didn't want to risk those entities knowing what they were doing, what they knew about, how they were collecting data, and so on. The info that was gleaned via these programs was compiled and stored in an SCI, which stands for Sensitive Compartment Information, and which refers to a type of document control system, a bit like Top Secret or Classified, in that it allows those running it to set what level of access people must have to view, process, use, or even discuss its contents, and this particular SCI was codenamed STELLARWIND. Among other activities, the programs feeding data into the Stellarwind SCI mined huge databases of email and phone communications, alongside web-browsing and financial activities; all sorts of tracking information that's collected by various components of intelligence, law enforcement, and other government and government-adjacent services were tapped and harvested. All of this data was then funneled into this one program, and though the degree to which this much information is useful up for debate, because having a slew of data doesn't mean that data is organized in useful ways, in 2004 the US Justice Department discovered that the NSA was not just collecting this sort of data when it was connected to foreign entities or entities that have been connected to terrorism, it was also collecting it from sources and people, including just average everyday Americans and small businesses that were doing no terrorism at all, and which had no links to terrorism, and it was doing so on American soil. After this discovery, then-President Bush said, well, the NSA is allowed to do that, that's fine, but they can only look at collected metadata related to terrorism—so they can collect whatever they want, sweep up gobs of information, file-away whatever drifts into their expansive and undifferentiating nets, but they're not allowed to look at and use anything not related to terrorism; and with that clarification to keep the Justice Department from doing anything that might hinder the program, the president reauthorized it that same year, 2004. There was disagreement within the government about the legality of all this, some entities saying that warrantless wiretapping of American citizens was illegal, even if the collected data was supposedly unusable unless some kind of terrorism connection could be ginned up to justify it. But those in charge ultimately decided that it would be irresponsible not to use these wiretapping powers the NSA wielded to protect American lives, and even said that Congress had no power to stop them from doing so, because it fell within their wheelhouse, that of defense against potential future foreign attack. All of the President's Surveillance Programs officially expired on February 1 of 2007, but new legislation that same year, and more in 2008, extended some of these activities, all with the justification of protecting the US from future terrorist attacks, and in 2009, a report published by the Inspectors General of the country's intelligence agencies found, in essence, that the now-retired President's Surveillance Program went way beyond what was allowed, in terms of collecting this sort of data without a warrant, and indicated that there was little oversight keeping folks from looking at data they weren't supposed to be looking at, while also indicating that the program probably wasn't very effective—so there was all this data, collected on dubious legal grounds, approved during a period of fear and perceived vulnerability, that was also becoming this a major headache for folks concerned about what amounted to a big, secret surveillance program that was targeting the very people it was supposedly meant to protect from terrorism, all in the pursuit of purported security benefits that were more theoretical than real. A former NSA codebreaker went on the record with WIRED magazine in 2012, outlining how the NSA was surveilling Americans in this way, which got the codename Stellarwind into the press as a consequence, and the following year, in 2013, the Washington Post and The Guardian published a draft of that 2009 Inspector General report that said the program was going far beyond the bounds of what was legal and right and effective—that draft leaked by NSA employee and subcontractor Edward Snowden. Further revelations based on that leak came out in 2014, at which point there was abundant public evidence that much of what was happening within the Stellarwind program was kept secret even after supposed earlier divulgences, and a lot of it was seemingly very illegal, though this program still functions in various capacities and at various scales, even now, in 2024. What I'd like to talk about today is a portion of the Stellarwind program that was recently extended, though not without controversy and pushback. — The Foreign Intelligence Surveillance Act, or FISA, was passed in 1978 in response to the fairly brazen and regular violations of Americans' privacy under the Nixon administration; namely that his government regularly spied on, and used intelligence and law enforcement services to mess with, political and activist groups that Nixon didn't like. FISA was meant to establish guardrails for when and how that sort of surveillance could be conducted, who could access the relevant data, and how it could be used—though notably, all of this applied to collecting intelligence in US territory; the rules are a lot looser when it comes to surveillance of non-americans in other countries. Among other things, FISA established the Foreign Intelligence Surveillance Court, which is a court that decides who can use these tools and access this data—they oversee the divvying-out of surveillance warrants—and FISA was the basis for all those President's Surveillance Programs following 9/11; so it was meant to prevent abuses of surveillance and intelligence tools by the US government against its citizens, and this general framework was used as a scaffolding for those enhanced surveillance powers the government gave itself after the 9/11 attacks; it was also a primary resource for those who found all those post-9/11 additional powers to be illegal oversteps. One evolution of FISA following September 11 was the introduction of what's called Section 702, which is provision that allows the US government to undertake targeted surveillance efforts against non US citizens outside the US, leveraging the full weight of the US government to do so, including but not limited to coercing telecommunications companies, like internet or phone companies, to hand over whatever data and recordings and such they might have available. Section 702 is meant to be very targeted and specific, never allowing the surveillance of any US citizen, anywhere, any person from any country who's in the US, or any foreign person located anywhere on the planet who is communicating with a US citizen—which is a technique that was previously leveraged by some components of Stellarwinds, the idea being that if you wanted to surveil an American but had no evidence they have links to terrorism, you would just capture their phone calls and other communications with non-Americans, and you'd be good to go. There's a fairly rigid set of protocols involved in using Section 702 for surveillance, including Department of Justice oversight on every targeting request, and opportunities to deny the collection of, or subsequent access to data that is collected by a sequence of analysts who are disconnected from those requesting said data. That's what the rules and processes for this provision say, anyway. In practice, Section 702 has allegedly been used to track members of Congress, journalists, victims of various sorts of crime, political donors, and protestors—targeting them for surveillance, but also used to search existing data that's already been collected, baselessly, via so-called "backdoor searches" with no connection to terrorism or anything else that would allow for the formal use of these tools, seemingly in violation of those supposed hardcore guardrails, at the behest of the FBI, CIA, and NSA. And this seemingly happens on a fairly regular basis—more than 200,000 warrantless, backdoor searches are performed each year. All of which adds interesting context to a recent congressional vote to reauthorize Section 702 for another two years, right as it was about to expire. This extension vote was laden with drama, in part because two major US internet companies said they would no longer comply if Section 702 wasn't renewed, as the government had had its request to keep collecting data for another year approved, but it no longer had legal backing to demand such data from companies, with the ability to coerce them to hand over digital communications data, like email and text records, if they denied more polite requests. So these companies said, well, you can collect whatever data you can get your hands on, but you can't get your hands on our data, anymore. There was also political drama, though, in the shape of former US President, and current Presidential candidate Trump's loudly stated antagonism toward renewing this provision, something that aligned him with privacy oriented groups that he typically doesn't like or align with. A vote that would have ended all warrantless searches on these sorts of communications failed to pass earlier in April, due to a tied 212 to 212 vote in the House, and another that would have accomplished a similar outcome and which was voted upon a few days later was defeated by just a handful of votes. The conflict here is seemingly that while there are significant and persistent privacy issues with this and related programs, it's also considered to be a potentially useful tool in the US intelligence community's utility belt. And though most politicians would like to be seen as defending the privacy of American citizen from prying government eyes, few want to be seen as hobbling its defense infrastructure, even if the defense value of this and connected programs have been questioned and challenged, time and time again. What eventually helped a Section 702 extension bill attain approval from Congress was a compromise that approved the extension of some components of it, that allowed it to take new communications technologies into account, arguably making it more useful for surveillance purposes while simultaneously increasing the privacy risks it poses, but pairing those add-ons with a shortened extension period, down from five years to two. Which means it's likely there will be another showdown over whether it should be extended in just a few years, at which point it can be killed or further edited, depending on how this new, slightly iterated version, is functioning at that point. All of which is interesting and newly relevant in part because we're stepping into what some have called a new Cold War, with all sorts of real-deal military conflicts on the ground threatening to expand and encompass more of the planet, alongside rifts in the relationships between behemoths like the US and China, which could erupt into larger versions of the same, if these governments aren't careful. At such moments, we tend to see more support for measures that give heightened power to governments and other defense-oriented entities, even at the expense of individual rights. So rather than clipping the wings of this and similar programs in a few years when renewal is once more on the docket, it may be that Congress further empowers it—depending on how today's conflicts play out, and how the relationships between the US and its primary rivals evolve in the meantime. Show Notes https://www.washingtonpost.com/national-security/2024/04/19/fisa-702-surveillance-internet/ https://www.washingtonpost.com/national-security/2024/04/20/congress-extends-controversial-warrantless-surveillance-law-two-years/ https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act https://www.dni.gov/files/CLPT/documents/2023_ASTR_for_CY2022.pdf#page=24 https://www.intelligence.gov/assets/documents/702%20Documents/declassified/2023/FISC_2023_FISA_702_Certifications_Opinion_April11_2023.pdf#page=89 https://www.dni.gov/files/icotr/Section702-Basics-Infographic.pdf https://www.aclu.org/issues/national-security/warrantless-surveillance-under-section-702-fisa https://www.brennancenter.org/our-work/research-reports/whats-next-reforming-section-702-foreign-intelligence-surveillance-act https://www.brennancenter.org/our-work/research-reports/fisa-section-702-civil-rights-abuses https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act https://www.nytimes.com/2024/04/20/us/politics/senate-passes-surveillance-law-extension.html https://en.wikipedia.org/wiki/President%27s_Surveillance_Program https://en.wikipedia.org/wiki/Sensitive_compartmented_information https://en.wikipedia.org/wiki/Stellar_Wind 

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Section 702

This week we talk about diplomatic immunity, Trump’s court cases, and the Supreme Court. We also discuss Nixon, Clinton, and the US Constitution. Recommended Book: My upcoming book, How To Turn 39 (https://books2read.com/htt39), which is available for pre-order today :) Transcript There's a concept in international law—diplomatic immunity—that says, in essence, certain government officials should be immune from the laws of foreign countries, including those within which they're operating. This is a very old concept, based on similar rights that were granted to envoys and messengers back in the oldest documented periods of human civilizations. The idea is that if different cultures, whether organized into tribes or kingdoms or nation states, are going to be able to deal with each other, they need to maintain open and reliable means of communication. Thus, the folks tasked with carrying messages between leaders of these different groups would need to be fairly confident that they wouldn't be hassled or attacked or prosecuted by the people they were bringing those messages to, and whose messages they were bringing back to their own leaders. Such representatives have at times been imprisoned or killed by their hosts, but this is relatively rare, because any governing body that treated ambassadors from other cultures in this way would have trouble dealing with anyone outside their current legal sway, and that would in turn mean less trade, less reliable peace, and less opportunity to generally cross-pollinate with cultures they might benefit from cross-pollinating with. As a general rule, at least in the modern iteration of diplomatic immunity, folks operating under the auspices of this policy can still be punished for their misdeeds, it's just that they'll generally be declared persona non grata, expelled from the country where they did something wrong, rather than punished under that country's laws. In some rare instances a country hosting a misbehaving or criminal ambassador or other diplomat might ask that person's home country to waive their immunity, basically saying, look, this person killed someone or got drunk and drove recklessly through our capitol city's downtown, we'd like to try them in our courts, and it may be that the government running that misbehaving person's home country says, okay, yeah, that's messed up, you go ahead; but usually—even if that person has done something truly reprehensible—they'll instead say, no, sorry, we'll pull them back and they won't be allowed to return to your country or serve as an ambassador anywhere else, because they've shown themselves to be unreliable, and we might even try them in a court here, in their home country, but we can't allow our people, no matter what they do, to fall under the legal jurisdiction of some other nation, because that would set a bad precedent, and it may make people wary of working for us in this capacity in the future—surely you understand. There are tiers of diplomatic immunity, depending on the seniority of the diplomat or other representative in question, and the Congress of Vienna of the early 1800s charted out the basis for how these things work, in much detail, formalizing a lot of what was already in the ether back then, and creating an outline that was then further formalized in 1961's Vienna Convention on Diplomatic Relations, which has been almost universally ratified and respected, though of course there's been a lot of grey area in terms of what harassment of a representative, which is a no-no according to this convention, entails, and to what degree it can be proven, and thus punished, if violated. We saw a lot of grey area utility during the height of the Cold War in particular, in part because many diplomats were moonlighting as spies, which is still true today, though it was even more overt and worrisome to their host countries, back then, so harassment, kidnappings, even assassinations of diplomats were more common then, than today, though they were still almost universally done covertly so that no one seemed to be violating these nearly universally accepted terms. What I'd like to talk about today is another type of legal immunity—in this case, Presidential Immunity in the US—and why this type of immunity is at the center of former US President Trump's ongoing legal cases. — In the United States, many politicians and high-level appointees enjoy some of the immunity-related privileges in their own country that diplomats of various stripes have traditionally enjoyed elsewhere. Most of these figures are only protected by this immunity under very specific circumstances, though, not universally. Judges, while doing court-related, judge-work, for instance, have absolute civil immunity—so a judge who falls afoul of the law in the course of their duty as a judge, doing judge-things, will tend to get away with whatever it is they did wrong, though this won't generally apply to non-judge things they do during that same period So a judge would have trouble arguing that they should get off with a warning for murdering someone because they happened to kill that person while they were on their lunch break, but they would likely be okay if they accidentally ruled in a way that exceeded their jurisdiction, even if their having done so caused all sorts of secondary problems. Similarly, and also within the US court system, a prosecutor can't be sued for withholding evidence, even if their having done so leads to a wrongful conviction, which would be a bad thing that happened as a result of their actions, but because they acted while performing their protected duty, they'll almost certainly be okay from a legal standpoint, even if not always a moral one. These are not rules novel to the US system of governance; most of them were borrowed from earlier forms of the same, and a lot of the US's version of these immunity rules are derived from those that exist within the British parliamentary system, where parliamentarians can't be prosecuted for things they say while in Parliament, and the same is true for politicians while engaged in their work on the floor of the US House of Senate. Interestingly though, while the US Constitution provides that kind of legislative immunity to Congresspeople, it doesn't grant the same, or anything similar, to the President; and this was apparently a hotly debated topic back in the Constitution-writing days, as those who set up the rules of the land were aware that it might be beneficial to allow folks at the top some legal leeway, so they don't make executive decisions based on whether or not they might be sued or otherwise punished for those decisions, but at the same time they really didn't want another king, or similarly authoritarian ruler to step into office and then get away with murder—perhaps literally. So the constitution doesn't give the President of the United States the same immunity as other members of government, but a slew of cases in the 19th and 20th centuries found, in general, that if the president or members of the president's cabinet take actions that are "more or less" within the scope of their duties, they should be granted absolute immunity, protecting them from lawsuits and legal punishments. A court case against President Nixon in the 1970s made that previously somewhat vague and general legal trend more formal, at first triggering a bunch of lawsuits against him and his people, but then a 1982 Supreme Court decisions said, in essence, that former or current presidents are immune from lawsuits related to anything that falls within the "outer perimeter" of their duties, due to the president's "unique status under the Constitution." This legal precedent was tested in the mid-1990s when then-President Bill Clinton was sued for sexual harassment during his governor of Arkansas days, and a lower court, then the Supreme Court, both affirmed that presidential immunity doesn't protect the president from things they did before taking that highest government office. As a result of all that, today we have a legal context in which the President is kind of granted some immunity for some things they do while in office, but the delineation between protected and not-protected is fuzzy, and there's a whole lot of theory on this matter, but less in the way of actual court precedent that establishes confident footing for anyone stepping into this corner of the legal world. All of which is newly relevant in 2024 because former President Trump is currently being prosecuted for all sorts of things in several different jurisdictions. And part of his legal strategy is based on a sort of Hail Mary play that's made its way to the Supreme Court, and which is premised on the concept of Presidential Immunity. But before we get to that case, let's talk real quick about the other cases that are currently in progress, all of which that bigger Supreme Court case may influence, depending on how it turns out. Beginning this week, as of the day this episode goes live, the week of April 15, 2024, Trump is scheduled to be in court four days a week for the next six to eight weeks, facing 34 criminal charges related to falsifying business records in order to get payoff money to Stormy Daniels, allegedly to cover up an affair they had, which he didn't want becoming public while he was running for his first term in office. Tentatively beginning in late-May of 2024, Trump will face 40 criminal charges in Florida for allegedly mishandling sensitive documents, and his alleged conspiracy to keep those documents even after the government demanded them back. A federal case in which Trump faces four criminal charges related to his alleged effort to overturn the 2020 presidential election results was originally meant to begin the first half of this year, but it's looking increasingly likely it won't occur until after the November presidential election, as the judge overseeing the case has postponed it until after the Supreme Court makes their decision about presidential immunity, though there's a chance it could start as early as August, despite that delay. And Trump faces 10 criminal charges for the same general collection of alleged efforts to overturn the 2020 election in Georgia, alongside 18 alleged co-conspirators; that trial has a proposed start date of August 5, but that would be tricky, as it would mean the trial could run through Election Day, which would be awkward and would likely complicate things further. Trump has also dealt with a flurry of recent civil, so non-criminal, no jail time possible, just fines, lawsuits, including one related to sexual assault and his defamation of the person he sexually assaulted, which led to a big payout recently, and another in New York related to his misrepresentation of the value of his real estate holdings in the state, which led to an even bigger fine, but which is currently being appealed. There's another federal civil case that's ongoing, Thompson v. Trump, which is related to the attack on the US Capitol by Trump's fans on January 6, 2021, and that's especially relevant here because, already, the judge in that case, ruled that Trump's presidential immunity does not shield him from this lawsuit, and an appeals judge ruled the same. There's now a Supreme Court case, which I mentioned earlier, that consolidates three separate civil lawsuits into one, Trump v. United States, and this case asks, in essence, whether Trump should be protected from these lawsuits by presidential immunity; that same immunity that was upheld in many cases in recent memory, though in different contexts. The reason this Supreme Court case is so fundamental here is that it could impact many or all of those other cases, plus others that might arise related to Trump's actions in the future, as it would give him a sort of legal whammy on just about anything he could argue was done within the perview of his role as President. Thus, he could argue he wasn't trying to overturn the 2020 election that he lost, he was looking into what he considered to be legitimate election irregularities as part of his duty as President. And if some other things happened as a result of that effort, like his supporters breaking into the Capitol building, he should be protected from that under the auspices of this immunity. Those two DC court judges that earlier ruled Trump wasn't protected by presidential immunity said that it's in the public interest to hold presidents accountable for their actions, because not doing so would leave anyone who holds that office "unbounded authority to commit crimes." They determined that it was worth the possibility that a president might make some executive decisions from a perspective of worrying about later lawsuits if it would prevent the creation of a political office from which someone could legally get away with any crime they chose to commit, including but not limited to, theoretically at least, assassinating their political rivals. The big question now is how the Supreme Court will decide on this matter; some people are predicting that the heavily slanted toward conservative justices court will be more likely to find in Trump's favor, though they've defied those expectations several times in recent years, in some cases seeming to take advantage of their current 5 or 6, depending on how you measure, versus 3, conservative to liberal composition in order to get a bunch of Republican priorities accomplished, like overturning Roe v. Wade, which protected the right to an abortion at the federal level, but in other cases they've made what seem to be more objective rulings, defying assumptions made based on those ideological leanings—so there's no way to know one way or the other on this, right now. We'll likely find out, though, sometime in May or June, as the court will begin considering these claims on April 25 of this year, and it's expected they'll have their ruling sometime in those subsequent two months. Until then, though, some of these other cases are a bit up in the air, as the granting of enhanced immunity could make Trump's current and potential future cases a slam-dunk for his defense team, while a ruling in favor of the contemporary, fuzzy standard, or one that weakens that standard, at least for his specific context, would deny him that potentiality. That said, Trump's defense team seems to have also been making use of the abundant delay tactics that are available within the US justice system, and there's a chance that if he delays long enough and then wins another term as president in November, that would allow him, when he steps back into office early next year, to either pardon himself or order someone in his government to get rid of the charges against him. Which is part of why the prosecutors working opposite him have been politely but firmly asking the judges in charge of these cases to pick up the pace, because there's a looming possibility that even if the courts decide against Trump in some key cases, he could still get off Scott free, because of that other apparent loophole in the system that would allow a sitting President to get away with just about anything, though in this case because of a different, in practice immunity-granting mechanism. Show Notes https://www.washingtonpost.com/news/opinions/wp/2014/01/30/7th-circuit-pokes-a-hole-in-prosecutorial-immunity/ https://en.wikipedia.org/wiki/Trial_of_Donald_Trump https://en.wikipedia.org/wiki/Indictments_against_Donald_Trump https://www.nytimes.com/interactive/2023/us/trump-investigations-charges-indictments.html https://www.nytimes.com/article/trump-investigations-civil-criminal.html https://www.pbs.org/newshour/politics/trumps-2024-trials-where-they-stand-and-what-to-expect https://www.washingtonpost.com/politics/interactive/2023/trump-investigations-indictments/ https://www.bbc.com/news/world-us-canada-68577638 https://www.bbc.com/news/world-us-canada-61084161 https://www.theatlantic.com/ideas/archive/2024/03/donald-trump-legal-cases-charges/675531/ https://archive.ph/JFsIB https://en.wikipedia.org/wiki/Indictments_against_Donald_Trump https://apnews.com/article/trump-jury-selection-hush-money-trial-manhattan-56d540406cd174ab143fe12469e9adef https://apnews.com/article/donald-trump-michael-cohen-stormy-daniels-e40532d3bce7768e296fdaf9591ef05b https://www.wsj.com/us-news/law/trump-criminal-hush-money-trial-begins-2a1bdd15 https://www.reuters.com/world/us/fallout-trumps-bid-overturn-election-loss-heads-supreme-court-2024-04-14/ https://www.reuters.com/legal/special-counsel-urges-us-supreme-court-reject-trump-immunity-bid-2024-04-09/ https://en.wikipedia.org/wiki/Trump_v._United_States_(2024) https://en.wikipedia.org/wiki/Presidential_immunity_in_the_United_States https://en.wikipedia.org/wiki/Absolute_immunity https://en.wikipedia.org/wiki/Parliamentary_immunity https://en.wikipedia.org/wiki/Diplomatic_immunity https://www.britannica.com/topic/diplomatic-immunity https://en.wikipedia.org/wiki/Vienna_Convention_on_Diplomatic_Relations 

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Non-Competes

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