Wyden and Udall: As with Torture, Intelligence Committee Lies about Efficacy

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Mark Udall and Ron Wyden have persistently repeated one of the findings from the Senate Intelligence Committee torture report: the CIA gave inaccurate information about the program, and it wasn’t very effective.

So it’s unsurprising that they would go beyond their past questions whether the Section 215 dragnet of US person call records is effective to make it clear they had pushed for the Internet metadata program to be ended because it, too, is ineffective.

We are quite familiar with the bulk email records collection program that operated under the USA Patriot Act and has now been confirmed by senior intelligence officials. We were very concerned about this program’s impact on Americans’ civil liberties and privacy rights, and we spent a significant portion of 2011 pressing intelligence officials to provide evidence of its effectiveness. They were unable to do so, and the program was shut down that year.

[snip]

Intelligence officials have noted that the bulk email records program was discussed with both Congress and the Foreign Intelligence Surveillance Court. In our judgment it is also important to note that intelligence agencies made statements to both Congress and the Court that significantly exaggerated this program’s effectiveness. This experience demonstrates to us that intelligence agencies’ assessments of the usefulness of particular collection programs – even significant ones – are not always accurate. This experience has also led us to be skeptical of claims about the value of the bulk phone records collection program in particular.

We believe that the broader lesson here is that even though intelligence officials may be well-intentioned, assertions from intelligence agencies about the value and effectiveness of particular programs should not simply be accepted at face value by policymakers or oversight bodies any more than statements about the usefulness of other government programs should be taken at face value when they are made by other government officials. It is up to Congress, the courts and the public to ask the tough questions and press even experienced intelligence officials to back their assertions up with actual evidence, rather than simply deferring to these officials’ conclusions without challenging them.

We look forward to continuing the debate about the effectiveness of the ongoing Patriot Act phone records collection program in the days and weeks ahead.

This is actually what the Inspectors General have implied: that it’s not clear these programs are effective.

So why are we collecting dragnets of American communications for no good reason?

On the Meanings of “Dishonor” and “Hack”

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The former NSA IG (and current affiliate of the Chertoff Group profiteers, though he didn’t disclose that financial interest) Joel Brenner has taken to the pages of Lawfare to suggest anyone trying to force some truth out of top Intelligence Community officials is dishonorable.

On March 12 of this year, Senator Ron Wyden asked James Clapper, the director of national intelligence, whether the National Security Agency gathers “any type of data at all on millions or hundreds of millions of Americans.”

“No, sir,” replied the director, visibly annoyed. “Not wittingly.”

Wyden is a member of the Senate Select Committee on Intelligence and had long known about the court-approved metadata program that has since become public knowledge. He knew Clapper’s answer was incorrect. But Wyden, like Clapper, was also under an oath not to divulge the story. In posing this question, he knew Clapper would have to breach his oath of secrecy, lie, prevaricate, or decline to reply except in executive session—a tactic that would implicitly have divulged the secret. The committee chairman, Senator Diane Feinstein, may have known what Wyden had in mind. In opening the hearing she reminded senators it would be followed by a closed session and said,  “I’ll ask that members refrain from asking questions here that have classified answers.” Not dissuaded, Wyden sandbagged he [sic] director.

This was a vicious tactic, regardless of what you think of the later Snowden disclosures. Wyden learned nothing, the public learned nothing, and an honest and unusually forthright public servant has had his credibility trashed.

Brenner of course doesn’t mention that Clapper had had warning of this question, so should have provided a better non-answer. Later in his post, he understates how revealing telephone metadata can be (and of course doesn’t mention it can also include location). He even misstates how often the phone metadata collection has been queried (it was queried on 300 selectors, not “accessed only 300 times”).

But the really hackish part of his argument is in pretending this whole exchange started on March 12.

It didn’t. It started over a year ago and continued through last week when Keith Alexander had to withdraw a “fact sheet” purporting to lay out the “Section 702 protections” Americans enjoy (see below for links to these exchanges).

The exchange didn’t start out very well, with two Inspectors General working to ensure that Wyden and Mark Udall would not get their unclassified non-answer about how many Americans are surveilled under Section 702’s back door until after the Intelligence Committee marked up the bill.

But perhaps the signature exchange was this October 10, 2012 Wyden letter (with 3 other Senators) to Keith Alexander and Alexander’s November 5, 2012 response.

On July 27, 2012, Alexander put on a jeans-and-t-shirt costume and went to DefCon to suck up to hackers. After giving a schmaltzy speech including lines like, “we can protect the networks and have civil liberties and privacy,” DefCon founder Jeff Moss asked Alexander about recent Bill Binney allegations that the NSA was collecting communications of all Americans. Wired reported the exchange here.

It was this exchange — Keith Alexander’s choice to make unclassified statements to a bunch of hackers he was trying to suck up to — that underlies Wyden’s question. And Wyden explicitly invoked Alexander’s comments in his March 12 question to Clapper.

In Wyden’s letter, he quoted this, from Alexander.

We may, incidentally, in targeting a bad guy hit on somebody from a good guy, because there’s a discussion there. We have requirements from the FISA Court and the Attorney General to minimize that, which means nobody else can see it unless there’s a crime that’s been committed.

Wyden then noted,

We believe that this statement incorrectly characterized the minimization requirements that apply to the NSA’s FISA Amendments Act collection, and portrays privacy protections for Americans’ communications as being stronger than they actually are.

This is almost precisely the exchange that occurred last week, when Wyden and Udall had to correct Alexander’s public lies about Section 702 protections again. 8 months later and Alexander is reverting to the same lies about protections for US Persons.

In the letter, Wyden quoted from Alexander again,

You also stated, in response to the same question, that “…the story that we have millions or hundreds of millions of dossiers on people is absolutely false. We are not entirely clear what the term “dossier” means in this context, so we would appreciate it if you would clarify this remark.

And asked,

Are you certain that the number of American communications collected is not “millions or hundreds of millions”? If so, then clearly you must have some ability to estimate the scale of this number, at least some range in which you believe it falls. If this is the case, how large could this number possibly be? How small could it possibly be?

Does the NSA collect any type of data at all on “millions or hundreds of millions of Americans”?

This last question was precisely the question Wyden asked Clapper 5 months later on March 12 (Alexander’s response in November didn’t even acknowledge this question — he just blew it off entirely).

As Wyden emphasized, Alexander is the one who chose to make misleading assertions in unclassified form, opening up the door for demands for an unclassified response.

Since you made your remarks in an unclassified forum, we would appreciate an unclassified response to these questions, so that your remarks can be properly understood by Congress and the public, and not interpreted in a misleading way.

In other words, Brenner presents the context of Wyden’s question to Clapper completely wrong. He pretends this exchange was about one cleared person setting up another cleared person to answer a question. But Brenner ignores (Wyden’s clear invocation of it notwithstanding) that this exchange started when a cleared person, General Alexander, chose to lie to the public.

And now that we’ve seen the minimization standards, we know just how egregious a lie Alexander told to the hackers at DefCon. It’s bad enough that Alexander didn’t admit that anything that might possibly have a foreign intelligence purpose could be kept and, potentially, disseminated, a fact that would affect all Americans’ communications.

But Alexander was talking to high level hackers, probably the group of civilians who encrypt their online communications more than any other.

And Alexander knows that the NSA keeps encrypted communications indefinitely, and with his say-so, can keep them even if they’re known to be entirely domestic communications.

In other words, in speaking to the group of American civilians whose communications probably get the least protections from NSA (aside from the encryption they themselves give it), Alexander suggested their communications would only be captured if they were talking to bad guys. But the NSA defines “those who encrypt their communications” as bad guys by default.

He was trying to suck up to the hackers, even as he lied about the degree to which NSA defines most of them as bad guys.

Brenner gets all upset about his colleagues being “forced” to lie in public. But that’s not what’s going on here: James Clapper and, especially, Keith Alexander are choosing to lie to the public.

And if it is vicious for an intelligence overseer to call IC officials on willful lies to the public, then we’ve got a very basic problem with democracy. Read more →

Transpartisan Arguments the Government Won’t Want to Succeed

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Justin Amash, Paul Broun, Tulsi Gabbard, Morgan Griffith, Rush Holt, Walter Jones, Barbara Lee, Zoe Lofgren, Thomas Massie, Tom McClintock, Eleanor Holmes Norton, Beto O’Rourke, Steve Pearce, Matt Salmon, Mark Sanford, Ted Yoho.

Well, that’s got to be a group of people the Powers That Be don’t want to see joining together?

Captain Tulsi Gabbard, Physics PhD Rush Holt, Appalachian Trail Hiker Mark Sanford, and Paleocon Walter Jones. With my libertarian Congressman, Justin Amash apparently leading the bunch.

All on a court motion together, calling for the court to release the FISC opinion explaining why the government’s Section 702 collection was unconstitutional because without it they can’t do their job. Which includes, in part, informing the American people.

As important, whatever information Members of Congress learn about secret FISC opinions and orders, they are unable publicly to discuss or debate them because any disclosure is still subject to secrecy requirements.

[snip]

In light of recent disclosures regarding the existence of a “classified intelligence program,” related to the “business records” section of FISA, the Director of National Intelligence has acknowledged that “it is important for the American people to understand” the limits of the program and the principles behind it.

[snip]

Notwithstanding the compelling public interest in an open debate about the scope and propriety of government surveillance programs authorized under FISA, even the amici — Members of the U.S. Congress — cannot meaningfully participate in that public debate so long as this Court’s relevant decisions and interpretations of law remain secret. They cannot engage in public discussion on the floor of the Senate and the House about the government’s surveillance programs. And they cannot engage in dialogue with their constituents on these pressing matters of public importance.

[snip]

Informed, public debate is central to Congress’s role as a coequal branch of the federal government. The Constitution acknowledges the unique importance of open debate to Congress’s role in the Speech or Debate Clause. Debate in Congress serves no only the institution’s internal goal of creating sound public policy. Courts have recognized a second crucial purpose of informed, public debate in Congress: to inform the American people about the issues affecting their government.

Now, I think they may overestimate the degree to which this opinion pertains to the Section 215 collection (indeed, if it pertains to Internet metadata collection, it pertains to Section 214 of PATRIOT instead). [Update, 9/13/13: I’m mistaken here–it was exclusively Section 215.]

And I think their Speech or Debate argument has confused people about whether these members of Congress have seen what’s in the opinion. Holt used to be on the House Intelligence Committee, but no longer is, so I assume none of the Members on this brief know what the opinion is. In any case, the House has much more restrictive rules about who can access intelligence secrets than the Senate.

But I am rather fond of the argument that Congress can’t do its job with all the secrecy the Executive is operating under.

James Clapper’s Double Super Secret Correction

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Screen shot 2013-07-01 at 9.21.55 AMIf the Director of National Intelligence corrects a lie but nobody hears it, does it make a sound?

Greg Miller returns focus to James Clapper and Keith Alexander and President Obama’s lies that underscore why, at least for some of his leaks, Edward Snowden must count as a whistleblower. He reveals two new details about why Clapper is not headed for prison.

First, Clapper claims his staffers acknowledged to Wyden (presumably not in writing) his error after the Senator demanded a correction.

Sen. Ron Wyden (D-Ore.), who had asked Clapper the question about information collection on Americans, said in a recent statement that the director had failed to clarify the remark promptly despite being asked to do so. Clapper disputed that in his note to the committee, saying his “staff acknowledged the error to Senator Wyden’s staff soon after the hearing.”

And then, more than two weeks after Snowden proved Clapper to be a liar (and 10 days after Wyden called for hearings for the Intelligence Committee to correct their disinformation), Clapper sent the Senate Intelligence Committee a letter apologizing for his “clearly erroneous” comment.

Acknowledging the “heated controversy” over his remark, Clapper sent a letter to the Senate Intelligence Committee on June 21 saying that he had misunderstood the question he had been asked.

“I have thought long and hard to re-create what went through my mind at the time,” Clapper said in the previously undisclosed letter. “My response was clearly erroneous — for which I apologize.” [my emphasis]

Miller also reveals that Clapper presented yet another explanation for why his lie wasn’t really a lie.

He made a new attempt to explain the exchange in his June 21 correspondence, which included a hand-written note to Wyden saying that an attached letter was addressed to the committee chairman but that he “wanted [Wyden] to see this first.”

Clapper said he thought Wyden was referring to NSA surveillance of e-mail traffic involving overseas targets, not the separate program in which the agency is authorized to collect records of Americans’ phone calls that include the numbers and duration of calls but not individuals’ names or the contents of their calls.

Referring to his appearances before Congress over several decades, Clapper concluded by saying that “mistakes will happen, and when I make one, I correct it.”

Note, this particular lie retreats to Administration claims that they no longer collect Internet metadata, at least no via Section 702 collection, at least as far as they’lll tell us.

Of course, that’s only been true (if it is in fact true) since 2011, for what that’s worth.

One thing Miller is missing in this otherwise laudable article is one more detail from Wyden: that he gave Clapper notice he was going to ask the question.

Clapper got the question for the test before taking it, and he still — he says — misunderstood it.

But of course that’s not what happened. The way Clapper has made false statements in public and then “acknowledged errors” in secret is all part of the game by which Clapper mostly sort of tells the truth to Congress, but continues to lie to the American people.

In other news, it has now been almost a week since, caught in another lie, the NSA took down their “Section 702 Protections” document, without replacing them with an accurate description of what  protections, if any, Americans have under Section 702.

Perhaps NSA has finally decided to start telling the truth?

The 2009 Draft NSA IG Report Makes No Mention of One Illegal Practice

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The 2009 Draft NSA IG Report released by the Guardian last week — and related reporting from Barton Gellman — seem to clarify and confirm what I’ve long maintained (12/19/05; 7/29/07; 7/30/07): that one part of the illegal wiretap program that Jack Goldsmith and Jim Comey found “illegal” in 2004 was data-mining of Americans.

Eight days later on 19 March 2004, the President rescinded the authority to collect bulk Internet metadata and gave NSA one week to stop collection and block access to previously collected bulk Internet metadata. NSA did so on 26 March 2004. To close the resulting collection gap, DoJ and NSA immediately began efforts to recreate this authority in what became the PR/TT order.

Mind you, this bulk collection resumed after Colleen Kollar-Kotelly signed an order permitting NSA to collect the same data under a Pen Register/Trap & Trace order on July 14, 2004.

The FISC signed the first PR/TT order on 14 July 2004. ALthough NSA lost access to the bulk metadata from 26 March 2004 until the order was signed, the order essentially gave NSA the same authority to collect bulk Internet metadata that it had under the PSP, except that it specified the datalinks from which NSA could collect, and it limited the number of people that could access the data.

Indeed, we know the program was expanded again in 2007, to get 2 degrees of separation deep into US person Internet data. The Obama Administration claims it ended this in 2011, though there are also indications it simply got moved under a new shell.

Mystery solved, Scoob!

Not so fast.

It appears the bulk Internet metadata collection and mining is just one of two practices that Goldsmith and Comey forced Bush to at least temporarily halt in 2004. But the second one is not mentioned at all in the NSA IG Report.

I first noted that Bush made two modifications to the program in this post, where I noted that 6 pages (11-17) of Jack Goldsmith’s May 6, 2004 OLC opinion on the program described plural modifications made in March and one other month in 2004 (I correctly surmised that they had actually shifted parts of the program under parts of the PATRIOT Act, and that they had narrowed the scope somewhat, though over-optimistically didn’t realize that still included warrantless collection of known domestic content).

But there’s actually a far better authority than Goldsmith’s heavily redacted opinion that confirms Bush made two modifications to the program in this period.

Dick Cheney.

When his office disclosed to Patrick Leahy in 2007 what documents it had regarding authorizations for the illegal wiretap program, it listed two modifications to the program: the one on March 19 described in detail in the NSA IG Report, plus one on April 2.

[Cheney Counsel Shannen] Coffin’s letter indicates that Bush signed memos amending the program on March 19 and April 2 of that year.

But there’s no hint of a second modification in the NSA IG Report.

That could mean several things. It could mean the April 2 modification didn’t involve the NSA at all (and so might appear in a one of the other Agency IG Reports at the time — say, DNI — or might have been completed by an Agency, like some other part of DOD, that didn’t complete an IG Report). It could mean that part of the program was eliminated entirely on April 2, 2004. Or it could mean that in an effort to downplay illegality of the program, the IG simply didn’t want to talk about the worst prior practice eliminated in the wake of the hospital confrontation.

Goldsmith’s opinion does seem to indicate, however, that the modification pertained to an issue similar to the bulk metadata collection. He introduces that section, describing both modifications, by saying “it is necessary to understand some background concerning how the NSA accomplishes the collection activity authorized under” the program.

That may still pertain to the kind of data mining they were doing with the Internet metadata. After all, the fix of moving Internet metadata collection under the PR/TT order only eliminated the legal problem that the telecoms were basically permitting the government to steal Microsoft and Yahoo Internet content from their equipment. There still may have been a legal problem with the kind of data mining they were doing (perhaps arising out of Congress’ efforts in that year’s NDAA to prohibit funding for Total Information Awareness).

Whatever it is, one thing is clear. Even with the release of the unredacted Draft NSA IG Report, we still aren’t seeing all the details on what made the program so legally problematic.

Maybe it’s something the Senate Judiciary Committee might ask Jim Comey during his FBI Director confirmation hearing?

On the Refusal to Exercise Oversight over Vast Surveillance Programs, Episode 117

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The Joint IG Report on the illegal wiretap program left out all discussion of what happened to the Internet and (to a lesser extent) phone metadata collection that got moved into Pen Register/Trap&Trace and Section 215 collection, respectively, as described by the NSA Draft IG Report (see page 39 ff).

The transition of certain PSP-authorized activities to FISC orders is described in detail in Section 5 of the classified report and Chapter Five of the DOJ OIG Report. Further details regarding this transition are classified and therefore cannot be addressed in this unclassified report.

But the report did make it clear that Glenn Fine, then DOJ’s Inspector General, had recommended DOJ and other Intelligence Committee agencies track whether these programs were useful in their new form.

As noted above, certain activities that were originally authorized as part of the PSP have subsequently been authorized under orders issued by the FISC. The DOJ OIG believes that DOJ and other IC agencies should continue to assess the value of information derived from such activities to the government’s counterterrorism efforts.

[snip]

Finally, the collection activities pursued under the PSP, and under FISA following the PSP’s transition to that authority, involved unprecedented collection activities. We believe the retention and use by IC organizations of information collected under the PSP and FISA should be carefully monitored.

The Joint IG Report came out in July 2009. The debate over extending the PATRIOT Act started in earnest in September 2009.

Yet not only wasn’t that review baked into the extension, but when Patrick Leahy tried to include additional oversight that would include, among other things,

  • Mandate further audits of some of these provisions, such as the use of pen registers
  • Give the Court oversight over the minimization procedures for the use of Section 215 and pen register and trap and trace devices
  • Require that Section 215 and pen registers only be granted if authorities can show that the requested information has ties to terrorism

Dianne Feinstein got Leahy to take much of that out in a substitute bill, and then Jeff Sessions, seemingly working on behalf of the Administration, gutted things further in the Senate markup. It was fairly clear then that the IC — if not the Administration personally — wanted to make sure this oversight did not get added to the PATRIOT Act.

And it didn’t.

The next year, Glenn Fine — who, of course, was the guy who recommended increased oversight in the first place — said he’d do the reviews anyway.

We intend to initiate another review examining the FBI’s use of NSLs and Section 215 orders for business records. Among other issues, our review will assess the FBI’s progress in responding to the OIG’s recommendations in the prior reports. In addition, we intend to examine the number of NSLs issued by the FBI from 2007 through 2009, and we will closely examine the automated system to generate and track NSLs that the FBI implemented to address the deficiencies identified in the OIG reports.

In addition, our review will cover the FBI’s use of Section 215 orders for business records. It will examine the number of Section 215 applications filed from 2007 through 2009, how the FBI is using the tool today, and describe any reported improper or illegal uses of the authority. Our review will also examine the progress the FBI has made in addressing recommendations contained our prior reports that the FBI draft and implement minimization procedures specifically for information collected under Section 215 authority.

We also intend to conduct a programmatic review of the FBI’s use of its pen register and trap and trace authority under the FISA. That part of the review will examine issues such as how the FBI uses the authority to collect information, what the FBI does with the information it collects, and whether there have been any improper or illegal uses of the authority either reported by the FBI or identified by the OIG. [my emphasis]

Writing in 2010, when both metadata collection programs were still ongoing under these authorities, this basically laid out a plan to review all the secret metadata collection hidden inside these authorities.

Fine wrote that in June; in November of that year, he announced his resignation, saying he wanted to pursue new professional challenges.

Read more →

Yahoo, the Law-Abiding Free Email Provider

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[NSA presentation, PRISM collection dates, via Washington Post]The FISA Court has officially agreed to declassify that Yahoo was the company that challenged a Protect Amendment Act order in 2007.

Once this PRISM slide was published, it was always pretty likely that Yahoo — or maybe Google — was the company in question. Yahoo started complying around the time the FISC decision was reached; Google joined in after the FISCR decision was unsealed.

Which leaves … Microsoft, which started cooperating before the law and then the FISA Court forced it to (though collection may not have begun until after PAA passed and, as Rayne has pointed out, Microsoft’s code was being exploited by the government for entirely different purposes in precisely that timeframe).

Now might be a good time to review what happened with the 7 companies the government asked to participate in an illegal wiretap program based solely on the President’s say-so. Per the 2009 NSA Draft IG Report, the companies are:

  • Telecoms A, B, and C (probably AT&T, Verizon, and — definitely– MCI, respectively, since they were the 3 telecoms working onsite at FBI’s direct access office under another program). These companies were approached by people from NSA’s Special Source Operations unit as soon as the program was approved, and they agreed to participate “voluntarily.” In 2003, MCI got cold feet and demanded a letter from John Ashcroft stating that the request was lawful, in which he “directed” them to comply with NSA’s requests.
  • Telecom E (Qwest). It was approached by SSO personnel in 2002, purportedly for collections related to the Olympics. After some discussion, Qwest’s General Counsel decided to not support the operation.
  • Internet Provider D (probably Microsoft). This company was approached by “NSA legal and operational personnel” (not SSO) in September 2002. In response, this company provided “minimal” support, spanning roughly from October 9, 2002 through just after September 11, 2003. No person at this company was ever cleared to store letters from the NSA.
  • Internet Provider F (probably Yahoo). This company was approached in October 2002 by NSA legal and operational personnel. In response to NSA’s request, Internet Provider F asked for a letter from Attorney General Ashcroft certifying the legality of the program. While in December 2002, NSA’s Commercial Technologies Group through Internet Provider F was participating, NSA’s GC says they did not because of corporate liability concerns.
  • Private Sector Company G. This company was approached in April 2003 by NSA legal and operational personnel. This company’s GC said he or she wanted to consult outside counsel. NSA chose to drop the request. I have no idea what company this would be (CISCO?); any thoughts?

Here’s what these companies provided:

Screen shot 2013-06-29 at 3.33.46 PM

This table tells us a great deal about the program–and also the legal problems behind it.

Internet provider D — the one of two that cooperated — only did so for 7 months in 2003, and only provided Internet content (probably primarily Hotmail emails), not metadata.

Which left the government to get the other Internet data off of AT&T and Verizon’s switches (we know C is MCI because February 2005 is when Verizon bought it, which explains why it started handing over Internet content and metadata then). As the IG Report explains,

A, B, and C provided access to the content of Al Qaeda and Al Qaeda-affiliate email from communication links they owned and operated.

[snip]

The last category of private sector assistance was access to Internet Protocol (IP) metadata associated with communications of al Qaeda (and affiliates) from data links owned or operated by COMPANIES A, B, and C.

In other words, Microsoft and Yahoo, the biggest free email providers, were not crazy about providing content (though one, probably Microsoft, did for a period). And they were completely unwilling to provide IP metadata.

So the government just went to AT&T and Verizon’s switches and took it there.

Read more →

OMIGOD James Clapper Has Our Gun Purchase Records

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It’s a testament to Ron Wyden’s good faith that this letter — asking James Clapper for more information about the government’s secret use of the Section 215 provision of the PATRIOT Act — didn’t try to inflame the NRA.

It’s not until the third paragraph in until Wyden (and the 25 other Senators who signed on) say,

It can be used to collect information on credit card purchases, pharmacy records, library records, firearm sales records, financial information, and a range of other sensitive subjects. And the bulk collection authority could potentially be used to supersede bans on maintaining gun owner databases, or laws protecting the privacy of medical records, financial records, and records of book and movie purchases. [my emphasis]

And while Wyden is right that the letter is bipartisan, I really wonder how it is that only four Republicans — Mike Lee, Dean Heller, Mark Kirk, and Lisa Murkowski — signed a letter raising these issues. Seriously. Not even Rand Paul?

I’ll come back to the loaded questions Wyden asks (I’m frankly still working on some loaded questions he asked 6 months ago — it has turned into a nearly fulltime beat).

But in the meantime, why isn’t the NRA screaming yet?

Metadata Oversight: “A Banner”!!!!!

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The Guardian has their next big NSA scoop, and it is meatier than the earlier ones. The headline is that President Obama continued a 2-degrees of separation analysis of Internet metadata under Section 702 for two years after he came into office. The practice morphed into something else in 2011, making it highly likely the October 3, 2011 FISC opinion finding FAA 702 activities violated the Fourth Amendment pertained to this practice.

Along with their story, the released two documents, one of which has two appendices. Altogether they’ve released:

I’ll have far, far more to say going forward.

But I wanted to point to language that reinforces my fears about how they’re controlling the still extant database of US person telephone metadata.

The documents describe the great oversight of the Internet metadata twice. First in the November 20, 2007 letter itself:

When logging into the electronic data system users will view a banner that re-emphasizes key points regarding use of the data, chaining tools, and proper dissemination of results. NSA will also create an audit trail of every query made in each database containing U.S. communications metadata, and a network of auditors will spot-check activities in the database to ensure compliance with all procedures. In addition, the NSA Oversight and Compliance Office will conduct periodic super audits to verify that activities remain properly controlled. Finally, NSA will report any misuse of the information to the NSA’s Inspector General and Office of GEneral Counsel for inclusion in existing or future reporting mechanisms related to NSA’s signals intelligence activities.

And in the September 28, 2006 Amendment:

5. Before accessing the data, users will view a banner, displayed upon login and positively acknowledged by the user, that re-emphasizes the key points regarding use of the data and chaining tools, and proper dissemination of any results obtained.

6. NSA creates audit trails of every query made in each database containing U.S. communications metadata, and has a network of auditors who will be responsible for spot-checking activities in the database to ensure that activities remain compliant with the procedures described for the data’s use. The Oversight and Compliance Office conducts periodic super audits to verify that activities remain properly controlled.

7. NSA will report any misuse of the information to NSA’s Inspector General and Office of General Counsel for inclusion in existing or future reporting mechanisms relating to NSA’s signals intelligence activities.

These descriptions are consistent with what we’ve been told still exists with the telephone metadata, so it is likely (though not certain) the process remains the same.

There are two big problems, as I see it. First, note that the Oversight and Compliance Office appears to be within NSA’s operational division, not part of the Inspector General’s Office. This means it reports up through the normal chain of command. And, presumably, its actions are not required to be shared with Congress. The IG, by contrast, has some statutory independence. And its activities get briefed to Congress.

In other words, this initial check on the metadata usage appears to be subject to managerial control.

But my other worry is even bigger. See where the descriptions talk about the fancy banner? The description says nothing about how that log-in process relates to the audit trail created for these searches. Indeed, in both of these documents, “the NSA” “creates” the audit trails. They don’t appear to be generated automatically, as they easily could be and should be.

That is, it appears (and this is something that has always been left vague in these descriptions) that these are manual audit trails, not automatic ones. (Though I hope they go back and compare them with keystrokes.)

When FBI had this kind of access to similar data, they simply didn’t record a lot of what they were doing, which means we have almost no way of knowing whether there’s improper usage.

This may have changed. These “audit trails” may have been automatically generated at this time (though that’s not what the process describes). Though the NSA IG’s inability to come up with a number of how many US person records are access suggests there’s nothing automated about it.

And if that’s true, still true, then the telephone metadata still in place is an invitation for abuse.

The FBI and CIA Unminimized Collections and the Holes in Article III Review of FISA Amendments Act

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In my piece confirming that the NSA can search on US person data collected incidentally in Section 702 collection, I pointed to these two paragraphs from the minimization procedures.

6(c)

(1) NSA may provide to the Central Intelligence Agency (CIA) unminimized communications acquired pursuant to section 702 of the Act. CIA will identify to NSA targets for which NSA may provide unminimized communications to CIA. CIA will process any such unminimized communications received from NSA in accordance with CIA minimization procedures adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.

(2) NSA may provide to the FBI unminimized communications acquired pursuant to section 702 of the Act. FBI will identify to NSA targets for which NSA may provide unminimized communications to the FBI. FBI will process any such unminimized communications received from NSA in accordance with FBI minimization procedures  adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.

It’s not clear what this entails.

But Dianne Feinstein once defended the FISA Amendments Act authorization to search on US person information by pointing to Nidal Hasan. Remember, his emails were picked up on a generalized collection of Anwar al-Awlaki’s communications, which should have been a traditional FISA warrant, but may have been conducted via the same software tools as FAA collection. In which case, the kind of access described in the Webster report would provide one idea of what this looks like from the FBI side. That process has almost certainly been streamlined, given that the god-awlful software the FBI used prevented it from pulling the entire stream of Hasan’s emails to Awlaki.

First, the FBI’s database of intercepts sucked. When the first Hasan intercepts came in, it allowed only keyword searches; tests the Webster team ran showed it would have taken some finesse even to return all the contacts between Hasan and Awlaki consistently. More importantly, it was not until February 2009 that the database provided some way to link related emails, so the Awlaki team in San Diego relied on spreadsheets, notes, or just their memory to link intercepts. (91) But even then, the database only linked formal emails; a number of Hasan’s “emails” to Awlaki were actually web contacts, (100) which would not trigger the database’s automatic linking function. In any case, it appears the Awlaki team never pulled all the emails between Hasan and Awlaki and read them together, which would have made Hasan seem much more worrisome (though when the San Diego agent set the alert for the second email, he searched and found the first one).

Even before this was streamlined, the collection seemed to lack real minimization. Though to be fair, the Agents spending a third of their days reading Awlaki’s emails were drowning and really had an incentive to get reports out as quickly as possible. But they seemed to be in the business of sending out reports with IDs, not the reverse.

In addition, we know that subsequent to that time, the FBI started using this collection (and, I’m quite certain, Samir Khan’s), as a tripwire — what they call “Strategic Collections.”

The Hasan attack (and presumably subsequent investigations, as well as the Umar Farouk Abdulmutallab attack) appears to have brought about a change in the way wiretaps like Awlaki’s are treated. Now, such wiretaps–deemed Strategic Collections–will have additional follow-up and management oversight.

The Hasan matter shows that certain [redacted] [intelligence collections] [redacted] serve a dual role, providing intelligence on the target while also serving as a means of identifying otherwise unknown persons with potentially radical or violent intent or susceptibilities. The identification and designation of Strategic Collections [redacted] will allow the FBI to focus additional resources–and, when appropriate, those of [redacted] [other government agencies]–on collections most likely to serve as “trip wires.” This will, in turn, increase the scrutiny of information that is most likely to implicate persons in the process of violent radicalization–or, indeed, who have radicalized with violent intent. This will also provide Strategic Collections [redacted] with a significant element of program management, managed review, and quality control that was lacking in the pre-Fort Hood [review of information acquired in the Aulaqi investigation] [redacted].

If implemented prior to November 5, 2009, this process would have [redacted] [enhanced] the FBI’s ability to [redacted] identify potential subjects for “trip wire” and other “standalone” counterterrorism assessments or investigations. (99)

Many many many of the aspirational terrorists the FBI rolled up in 2010 and afterwards were people who had communicated or followed Awlaki or Khan. And to the extent we’ve prosecuted a bunch of wayward youth who can’t pull together a plot without the FBI’s assistance, that ought to be a concern on many levels.

Because it would mean this unminimized production is part of the Terror Manufacturing Industry. (Mind you, the FBI was doing this with their own surveillance based off Hal Turner in the 00s, so it’s not an approach limited to Muslim radicals.)

To the extent that FAA collection might be sent to FBI as a way to identify non-criminal leads to criminalize, it’s a problem, particularly if the FISA Court doesn’t see what minimization the FBI uses.

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