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FBI repeatedly overstated encryption threat figures to Congress, public (washingtonpost.com)
287 points by molecule on May 22, 2018 | hide | past | favorite | 58 comments

How is this legal? Wray just lied to Congress. Sure, the FBI has an excuse that they simply overcounted, but when you make no effort to correct your previously erroneous count, and it clearly is in your advantage to keep citing the old figure, I don't think you can claim that you made a statement that was, to the best of your ability, true.

This is just a new reality. Even if that is indeed illegal, who would have put handcuffs on him? Law just doesn't apply to everyone, it is only to keep the plebs in control.

It's not new, though.

43 years ago, the NSA went in front of the Church Committee and claimed all of their warrantless phone surveillance against American citizens had been been closed more than a year earlier. This was a naked lie - the program was continuing unaltered even as the testimony was given.

The Church Committee went further than anything we have today - there was a major investigation aiming at criminal prosecution of NSA officials. The eventual conclusion was that their actions were obviously illegal, but that prosecution was impossible; the agency's charter appeared to exempt it from following surveillance laws, and broader charges would be deflected by "buck-passing" and subpoenaing high-level officials to disrupt government operations.

This is where we've been since the 1970s, if not earlier.


Perjury laws simply don't apply to those in power anymore. Wray. Sessions. Clapper. Until Congress decides to enforce the law pertaining to lying under oath, it's fairly clear that lying with impunity is permissible.

It is much more than that - just as an example I can give the so called "war on drugs". This is an entire industry built on corruption, lies and modern slavery and people are being daily brainwashed in the licensed media so that it can keep going.

The "War on Drugs", the "War on Terror", pretty much anything that our government goes to War with is done because of 2 reasons. 1) They're money making machines. 2) They're (re)election machines. If you're not "Tough on Terror", you're losing votes and you're losing donation money from those who stand to profit from the "war".

So long as they allow them to speak while not under oath, this will continue. Like Clapper. oh, I was thinking of something else when I answered incorrectly. Yeah, right.

This was determined, or at least potentially noticed, a month ago (presumably they spent nonzero amount of time trying to figure out if the error was real) by the FBI. Wray seems to have last cited this back in December.

I'm not seeing how the FBI has made no effort to correct the record here, this article is citing the FBI. Is there evidence that this is not an official disclosure?

By "correcting the record", I meant that should have changed his statement when asked again, which he clearly didn't. However, you're right: I seem to have gotten the timeline wrong here, meaning that Wray could claim that he was not aware of the error whereas I had assumed that the error had already been discovered.

James Clapper blatantly lied to Congress and hasn’t even been indicted for anything as a result. These guys do this shit all the time and just get away with it.

I always wondered what happened with that?

Nothing. IIRC, they had 5 years in which to charge him if they wanted to, and the 5-year mark just recently passed witb, obviously, no action taken.

He was asked a question he couldn't answer in open session. Not sure what you expect him to do, to be honest. Revealing a program like that would have violated far more serious laws.

This is not a defense of his actions, just the reality he was presented with.

What would I expect him to do? Either answer honestly, or not answer the question. Instead he lied, definitively, under oath. Are you really suggesting that his ONLY option was to lie to Congress?

"I cannot answer this question in an open session, for reasons of national security". Was that not an option?

Comey seemed to have no problem giving that answer. So it is definitely valid.

The problem with that answer is that it means yes in the context he was asked it.

If the answer was no, he could say no.

There are ways he can inform Congress after the fact. He did not. This whole “secret law” thing is illegitimate anyways.


You're right--the crime of perjury requires someone to lie while under oath, which is what Clapper did.

Martha Stewart went to prison for lying to the government even when not under oath - and so have countless other people. This is now standard operating procedure for law enforcement, as it's much easier to catch a person in a random (and possibly unintentional) lie than to prove a real crime.

No, it is much more nuanced than that. Giving false information is not the same as lying. With perjury, you have to willingly lie or give misinformation. On purpose.

Being honest about not being able to answer a question in an open forum isn't perjury. That is someone trying to follow conflicting laws and erring on the side of caution. If his information was bad and he wasn't aware at the time, it isn't perjury. Misremember but try to answer? Not perjury.

He didn’t say he couldn’t answer, he lied about illegal surveillance programs.

“programming errors”

Making speech illegal is very dangerous ground, so while I agree that this looks suspicious I'm in the end happy that "don't lie to Congress" is being handled with soft gloves. There is also an abuse potential in accusing people of lying, that this lax enforcement reduces.

/cynical/ if you could get easily prosecuted from telling Congress "incorrect" information, it might be predominantly used against lone whistleblowers who had ended up on the loosing side of a very effective information squashing campaign. That's just one example of how such a law could be abused if it was over-enforced. /end cynical/

Lying to the federal government or while you're on trial is not protected under free speech, as far as I'm aware.

There are many places where lying is against the rules - and proving that an incorrect statement is a lie is equally impossible in all of them. As a result it's protected speech in practice. (The courts could make it easier to convict, they have chosen this standard of evidence for a reason.)

But I wonder about double standards. If Joe Bloggs tells something false to a federal agency his best defense is probably that the agency doesn't notice / doesn't care. Ordinary folks probably wouldn't stand a chance if it came to court.

How is lying different to any other crime of intent in this regard?

It's possible that other crimes of intent are also unenforceable. If the law says, "between two identical actions and circumstances, you are in violation for the one with bad intent," then lawyers will probably be able to prevent any conviction (outside of someone getting on the news and announcing their hatred for humanity!). If the law says, "because we want to discourage this intent, this specific action is illegal under these circumstances," then it will work the same way as any other criminal law (it will be possible to assemble evidence and get prosecutions even against skilled defenses.)

People do get convicted of murder and perjury, though.

> Lying to the federal government or while you're on trial is not protected under free speech

Lying in trials is not protected, but very rarely prosecuted. The penalty usually is that you lose credibility with the judge and jury, and piss them off.

IANAL. Last I checked, successful prosecution of perjury results in a wobbler felony sentence in most parts of the US. Were you trying to say lying under oath is usually very difficult to prove?

Perjury traps are typically used by the intel agencies to force people to cooperate with larger cases, the threat of bankrupting their families with a multi-million dollar lawsuit is usually enough to get them to plead guilty to lying in exchange for cooperation and immunity.

Not a lawyer either.

> Were you trying to say lying under oath is usually very difficult to prove?

No, I'm saying it is rarely prosecuted at all, based on what I've been told by attorneys.

It's more correct to say that it is selectively prosecuted. Mike Flynn had his career ruined by a perjury trap that saw him lie about things much less important than a federal agency spying on US citizens.

Lying about foreign contacts is a big deal. It is very much an important thing and you are required to list them when applying for a security clearance. He didn't just mistakenly forget about them.

Holding perjury to account isn’t a free speech issue goddamn it.

I can't believe this even has to be said... I wonder if he takes the same positon on the Clapper perjury, for example? Astoundingly shameful.

James Clapper is strong evidence of the point: "don't lie" laws are predominantly used against the (non-powerful) innocent because the difficulty of proving anything means the executors of the law have too much impunity. If Clapper had gotten convicted, it would have been reasonable to suggest that the law worked. As it stands it doesn't work, but it still introduces the risk of abuse. The head of the NSA and Joe Nobody should be under the same laws. It's not practical to prove that someone is lying as opposed to making a mistake if they are careful in their wording (and have good legal counsel), so there is only one thing left to do.

If congressional perjury laws were repealed, the only effect would be making the level of scrutiny that is necessary now obvious (in addition to protecting people from false accusations.) In a world where disingenuous speech can accomplish everything lying can, laws against lying are winking security theatre.

How does anyone in this whole goddamn rotten system even pretend to serve justice anymore. Laws are literally being used selectively to persecute the weak, and look the other way for the powerful.

Did Wray know the information he was presenting was false? That's the standard for perjury.

Edit: if you're making a more general point, point cheerfully granted. :)

If you aren’t a D.C. insider you will be persecuted for this. But if you are, and especially if you can claim to have something to do with “national security” it seems like you can basically get away with doing whatever the hell you’d like.

I would expect that someone in his position would know all the strategies for qualifying their statements, 'based on our current understanding to the best of my knowledge' etc.

EDIT: AAaand... they changed the photo! What I say below is still slightly true of the current photo, but you should've seen the original one. Here's a copy somebody cached of it:



Check out the contrasting body language in the photo. Wray looking smug, practically sauntering (reminds me of this: http://knowyourmeme.com/memes/strutting-leo), not a care in the world. On the left is someone from the Capitol Police, much lower-ranked, who actually worries about and protects things for a living and probably doesn't get as much sleep as he should.

The first guy could stand to be a little more like the second, since at least in theory he's the "top law enforcement officer in the land" and a supposed protector of law and order. In reality he's presumably an expert at playing politics, doing favors, and stretching the truth to get an advantage, such as... hey, this article. Not to mention that spying on people, I suspect, has a lot less to do with guy-on-the-left/protecting-people concerns than it does with guy-on-the-right/political-jockeying concerns.

The top enforcement officer in the US is the attorney general, to whom the FBI director reports.

I wouldn't read too much into the body language. Newspapers choose whatever relatively recent pictures they have, coupled with some relevant features (leading to those great pouty-face photos whenever there's bad news for the person involved).

Ah you mean "scandal face." Yeah those are a hoot.

And yeah I'm not necessarily trying too hard to link the photo to this news in space and time; just taking it on its own, and extrapolating. I rarely pay this much attention to the art.

That seems like waaay to much to extrapolate from a single photo who's exact circumstances we don't know about. Maybe he just spotted his ex and wanted to look superior. Maybe he's just raising his arm in order to scratch his ear, which was itching real bad.

I'm always bothered by the sense of entitlement. A warrant just says they're allowed to infringe someone's 4A rights in order to look for and seize evidence. It's not a promise that they'll find and be able to use whatever it is they're looking for.

And I don't think the FBI has ever stated that they dropped or lost a case due to crypto.

I'm having a hard time speculating about what phones are "encrypted cellphones" by this count. Are they counting iOS devices with a strong passcode or is there some other functionality they're specifically "having trouble" with? I find it hard to believe they're talking about Phantom and specific-application "cryptophones."

They’re talking about ordinary phones. Before full-disk encryption became common, it was usually trivial for law enforcement to access data on phones, laptops and other devices physically seized under a warrant. That’s often impossible now that data is encrypted at rest by default.


If that is the case, why are there only 2000? The conditions must be more complex than that. Unless 2000 is nearly every phone they touched in that time period?

If by "impossible" you mean they have to buy a GreyKey.[0]

[0]: https://www.schneier.com/blog/archives/2018/03/greykey_iphon...

News Flash!

Executives of US federal government entity lie to executives of another US federal government entity!

Videotape at ten! Tune in!

A government agency that cant even count properly wants to control a back door key to swaths of private communications. Let that sink in.

"FBI: Federal Bureau of Investigation, aka the Downtown Gang. Very good at breaking up used car rings. Kind of confused on anything more complicated. Fun to jerk with. Not fun when they jerk back."

From Stratfor's leaked Glossary of Useful, Baffling and Strange Intelligence Terms [1]

[1] https://wikileaks.org/IMG/pdf/The_Stratfor_Glossary_of_Usefu...

"ATF: Alcohol Tobacco and Fire Arms. Rednecks with a license to kill. Never, ever, ever ask for their help on anything."

Wow. I always had a feeling they were useless, and this makes it really clear.

Thanks for this. It's great.

You're welcome! I have read it a dozen of time, I never pass an occasion to post it :-)

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