Working Thread: NSL IG Report

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I give up. I’m going to have to do a working thread on the IG Report on FBI’s use of NSLs. Here goes. References are to page numbers, not PDF numbers (PDF numbers are page+15).

ix: The report noted that NSL numbers dropped off what they had been 2007 to 2009. It speculates that may have been because of heightened scrutiny. I wonder it wasn’t because they were misusing the phone and Internet dragnet programs and getting the information that way. In 2009, after which the NSL numbers grew again, Reggie Walton shut that option down.

x: About half of NSLs during this period were used to investigate USPs.

x: “certain Internet providers refused to provide electronic communication transactional records in response to ECPA NSLs.”

xii: They’re hiding the current status of permitting the use of NSLs to get journo contacts. Which would seem to confirm they are doing so.

xiii: They’re also hiding the status of the OLC memo they used to say they could get phone records voluntarily (see this post for why). They don’t hide things very well.

2: It just makes me nuts we’re only now reviewing NSL use from 2009. Know what has happened in the interim, for example? A key player in this stuff, Valerie Caproni, has become a lifetime appointed judge.

11: Report  notes that FBI tends to always use “overproduction” whether or not it was unauthorized or simply too broad.

17: Footnote 35 seems to suggest they have exceptions to the mandatory reporting requirements. What could go wrong?

39: So as recently as 2009, the tracking system did not alert OGC of manual NSLs in some percentage of the cases.

57 The numbers reported to Congress are off from the numbers shown to IG by as much as 2,800.

58: Love footnote 73, which aims to explain why the NSL numbers reported to Congress are significantly lower than those reported to OIG.

After reviewing the draft of this report, the FBI told the OIG for the first time that the NSL data provided to Congress would almost never match the NSL data provided to the OIG because the NSL data provided to Congress includes NSLs issued from case files marked “sensitive,” whereas the NSL data provided to the OIG does not. According to the FBI, the unit that provided NSL data to the OIG does not have access to the case files marked “sensitive” and was therefore unable to provide complete NSL data to the OIG. The assertion that the FBI provided more NSL data to Congress than to the OIG does not explain the disparities we found in this review, however, because the disparities we found reflected that the FBI reported fewer NSL requests to Congress than the aggregate totals.

The FBI just gives up on 100% accuracy in its NSL numbers.

After reviewing the draft of this report, the FBI told the OIG that while 100 percent accuracy can be a helpful goal, attempting to obtain 100 percent accuracy in the NSL subsystem would create an undue burden without providing corresponding benefits. The FBI also stated that it has taken steps to minimize error to the greatest extent possible.

59: On the discrepancies, OIG points out the obvious:

[T]he total number of manually generated NSLs that the FBI inspectors identified is relatively small compared to the total number of 30,442 NSL requests issued by the FBI that year. What remains unknown, however is, whether the FBI inspectors identified all the manually identified generally NSLs issued by the FBI or whether a significant number remains unaccounted for and unreported.

61: The database tracking 2007 requests — a year where there were discrepancies for 215 orders too — “is retired and unavailable.”

62: The report doesn’t have subscriber only data, which I suspect is obtained in bulk.

63: There is a significant change in the make-up of what FBI is getting in 2009, from subscriber records and toll and financial records in 2008 to toll records, then subscriber and electronic communication records in 2009. I strongly suspect that says some of the 214 and 215 collection moved to NSLs.

71: Apparently it was the release of an earlier OLC memo that led at least 2 Internet companies to refuse NSLs.

The decision of these [redacted] Internet companies to discontinue producing electronic communication transactional records in response to NSLs followed public release of a legal opinion issued by the Department’s Office of Legal Counsel (OLC) regarding the application of ECPA Section 2709 to various types of information. The FBI General Counsel sought guidance from the OLC on, among other things, whether the four types of information listed in subsection (b) of Section 2709 — the subscriber’s name, address, length of service, and local and long distance toll billing records — are exhaustive or merely illustrative of the information that the FBI may request in an NSL. In a November 2008 opinion, the OLC concluded that the records identified in Section 2709(b) constitute the exclusive list of records that may be obtained through an ECPA NSL.

Although the OLC opinion did not focus on electronic communication transaction records specifically, according to the FBI, [redacted] took a legal position based on the opinion that if the records identified in Section 2709(b) constitute the exclusive list of records that may be obtained through an ECPA NSL, then the FBI does not have the authority to compel the production of electornic communication transactional records because that term does not appear in subsection (b).

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The FBI Has Significant Problems Counting Its National Security Letters

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NSL numbersToday’s Inspector General Report on FBI’s use of National Security Letters has set off a bunch of alarm bells in my head.

At issue are two unexplained problems.

First, the Inspector General identified a huge drop in NSL use for the years covering this report: FBI obtained 49,425 NSLs in 2006, the year before this report. It obtained 54,935 afterwards. The years in-between — the 3 years covered by this report — NSLs dropped off a relative cliff, with 20% fewer in 2007 and even fewer in 2009.

The IG wasn’t able to offer any explanation for this, besides the possibility that increased scrutiny on NSL use led people to use other methods to get this information.

However, two supervisors and a division counsel told us that they believe agents use NSLs less often now than they did five years ago. These individuals told us that because of increased scrutiny on NSL use agents employ alternative investigative tools when possible.

In testimony last year, Jim Comey said FBI agents would just use grand jury subpoenas rather than NSLs if the NSLs became too onerous, so that may be where the activity disappeared to.

Hey, if 20% of FBI NSLs could be grand jury subpoenas without any problem, let’s make them do that!

It’s FBI’s other counting problems — and its non-answers — that have me even worried.

According to the IG, the FBI is not reporting as much as 7.3% [update, 10/16: I think the correct number is 6.8%] of its NSL use to Congress. For example, when the IG tried to pull NSLs by NSL type (that is, toll billing, financial records, electronic transaction records), it found a significant discrepancy between what had been reported to Congress and what FBI’s internal spreadsheets showed.

[T]he NSL data in the itemized spreadsheets does not exactly match the NSL data reported to Congress in 2008 and 2009. The total number of requests reported for each year [by transaction type] is more than the total number of NSL requests reported to Congress by 2,894 and 2,231 requests, respectively. (63)

So for 2009, where FBI requested just 30,442 NSLs, FBI did not report 7.3% of the NSLs it requested.

(I can’t double check my math here because FBI redacted some of these tables, but I guess that’s one of the hazards of overclassifying things.)

That’s troubling enough, as is FBI’s lackadaisical attitude towards correcting the disparity.

After reviewing the draft of this report, the FBI told the OIG that while 100 percent accuracy can be a helpful goal, attempting to obtain 100 percent accuracy in the NSL subsystem would create an undue burden without providing corresponding benefits. The FBI also stated that it has taken steps to minimize error to the greatest extent possible.

Ho hum, we’re just the FBI, why expect us to be able to police ourselves?

But it gets weirder.

First, the one theory the IG came up with to explain the discrepancy is that FBI is not counting all the manual NSLs that bypass their automatic counting system implemented in response to the first IG Reports on NSLs.

In fact, they’re not: FBI’s Inspection Division found they’re not counting some significant (not single digit) percentage number of their manual NSLs (they redact how much they’re not counting on page 39).

But the IG seems to suspect there may be even more manual requests that are not being counted at all.

[T]he total number of manually generated NSLs that the FBI inspectors identified is relatively small compared to the total number of 30,442 NSL requests issued by the FBI that year. What remains unknown, however is, whether the FBI inspectors identified all the manually identified generally NSLs issued by the FBI or whether a significant number remains unaccounted for and unreported.(58)

If you guessed that FBI redacted under what circumstances FBI permits agents to bypass this automatic counting system, you’d be right. That discussion is in footnote 35 on page 17, and again on pages 113-115.

But I worry, given one observation from the IG, that they’re bypassing the automatic system in cases of “sensitive” investigations. Some apparent moron tried to explain why the IG found higher numbers for NSLs than Congress because the NSLs related to sensitive investigations were being reported to Congress but not the IG.

After reviewing the draft of this report, the FBI told the OIG for the first time that the NSL data provided to Congress would almost never match the NSL data provided to the OIG because the NSL data provided to Congress includes NSLs issued from case files marked “sensitive,” whereas the NSL data provided to the OIG does not. According to the FBI, the unit that provided NSL data to the OIG does not have access to the case files marked “sensitive” and was therefore unable to provide complete NSL data to the OIG. The assertion that the FBI provided more NSL data to Congress than to the OIG does not explain the disparities we found in this review, however, because the disparities we found reflected that the FBI reported fewer NSL requests to Congress than the aggregate totals. (58)

Aside from the revelation that FBI doesn’t understand how numbers work — that if Congressional reporting reflected a larger universe of NSLs than what the IG got to see, Congressional numbers should be higher, now lower — this also seems to mean that the IG is not being permitted to review the NSLs relating to sensitive investigations.

Now, it’s not entirely clear what FBI means by “sensitive” in this circumstance. But generally, “sensitive” investigations at FBI are those that investigate reporters, faith leaders, and politicians.

So it seems possible the FBI is not permitting the IG to review precisely the practices he should review.

Which brings me to another matter that is almost entirely redacted.

As I’ve reported repeatedly, one thing the last IG report on Exigent Letters showed is that a number of journalists have had their phone records collected by FBI. In addition, the 2011 DIOG made it acceptable to use NSLs to do so. Here’s the section of the executive summary of this report that describes whether FBI has resolved this issue.

Journalist NSLs

From which I can only assume that FBI is continuing to use NSLs to collect journalist records (if FBI would like to declassify this language to prove me wrong, I welcome their transparency!).

So to sum up:

  • FBI can’t figure out why its NSL numbers dropped of a cliff for the years in question
  • FBI can’t figure out what happened to up to 7.3% of its NSLs
  • The IG thinks it is possible there are even more NSLs missing from those numbers
  • When asked, the FBI said maybe discrepancies come from files on sensitive investigations that the IG has no access to
  • The FBI does appear to be continuing its use of NSLs to hunt down journalists’ sources, which qualifies under the DIOG as a “sensitive” investigation, along with faith leaders and politicians

All that could be badly wrong — much of this information is redacted from both me, and in some cases, from Congress.

But doesn’t it raise some awfully big questions?

FBI Hides More and More of its National Security Letter Use

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Recently I have started blogging occasionally over at Expose Facts — an entity serving whistleblowers and transparency. There’s even a SecureDrop, if you want to drop me secret documents to read!

Things will remain the same over here; I just hope to broaden my readership and support an important cause. I post links here to the more interesting posts over there.

Today, I’ve got a second post on the DOJ IG Report on FBI’s use of National Security Letters. It examines the extent to which FBI and the President’s Intelligence Oversight Board, which reviews legal violations of intelligence agencies, have classified information about FBI’s use of NSLs, even information that had been public in prior DOJ IG reports.

That is, both in the unclassified and the classified reports, FBI and President’ Obama’s oversight board demanded Horowitz hide information that had been released in some form in the 3 earlier reports DOJ’s IG did on NSLs.

FBI or PIAB are hiding:

  • What kind of information FBI collects using NSLs
  • What kind of violations FBI reports (or doesn’t report) to its overseers
  • PIAB’s judgements about FBI’s compliance with NSL statute

This information is, of course, central to Congress and the public’s understanding of whether FBI continues to abuse the NSL statute, as it did for the first 5 years after 9/11 (this report only covers NSL use until 2009; FBI’s more current use remains unexamined).

FBI’s suppression of this information is all the more troublesome given that the USA Freedom Act currently being debated in the Senate addresses some of the FBI’s use of NSLs.

Go read the rest!

Company B (Verizon? Sprint?) Stopped Playing Nice with FBI in 2009

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I’m reading this DOJ IG report on NSLs — about which I’ll have far more later.

But given everything we’ve learned about NSA’s dragnet, I’m rather interested in footnote 156:

Company A, Company B, and Company C are the three telephone carriers described in our Exigent Letters Report that provided telephone records to the TCAU in response to exigent letters and other informal requests between 2003 and 2006. As described in our Exigent Letters Report, the FBI entered into contracts with these carriers in 2003 and 2004, which required that the communication service providers place their employees in the TACU’s office space and give these employees access to their companies’ databases so they could immediately service FBI requests for telephone records. Exigent Letters Report, 20. As described in the next chapter, TCAU no longer shares office space with the telephone providers. Companies A and C continue to serve FBI requests for telephone records and provide the records electronically to the TCAU. Company B did not renew its contract with the FBI in 2009 and is no longer providing telephone records directly to the TCAU. Company B continues to provide telephone records in response to NSL requests issued directly by the field without TCAU’s assistance.

I’m guessing Company B is Verizon, because it always comes second! Though it could also be Sprint.

Recall that Reggie Walton shut down Verizon production for part of 2009 (I’ll have posts reinforcing this claim sometime in the near future). Verizon may have started being a jerk about providing foreign calls records at that point which — at least technically were provided voluntarily. So that’s why it might be Verizon.

At the same time. Sprint is a good candidate because, at the end of the year, it demanded legal process from the phone dragnet. Also, it has challenged DOJ’s reimbursements, which has gotten it sued.

Given ongoing discussions about whether NSA gets all the phone records it’d like under Section 215 — and the explanation they’re missing cell records — I’m particularly interested in this development.

Wyden, Udall, and Heinrich Call Obama’s Bluff

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The three surveillance critics from the Senate Intelligence Committee — Ron Wyden, Mark Udall, and Martin Heinrich — wrote a letter to Obama on the developments in the NSA reform. Generally, they repeat exhortations that Wyden and Udall have already made in hearings to end the dragnet right now, as Obama has already claimed he wants to do.

I’m not entirely sure what to make of it, but I find some of the details in it to be of particular interest.

The Senators point out, for example, that several bills accomplish the goals Obama has publicly stated he’d support. Those bills include the original USA Freedom Act, and separate proposals advanced by both Udall and Wyden.

But they also include the original PATRIOT Reauthorization from 2005, which Dianne Feinstein once supported, as did a young Senator named Barack Obama (though the Senators don’t mention either of those details). Wyden has long pointed obliquely to when the Executive first started using PATRIOT to conduct dragnets, and the record shows the Executive withheld information about how it was using the PRTT authority from even the Intelligence Committees during the 2005 reauthorization. So the Senators may be nodding towards Executive refusal to respect the will of Congress with this mention.

The Senators then both question claims from Administration officials that “in the absence of new legislation, there is no plan to suspend the bulk collection of Americans’ phone records,” and express their doubts “that the version of the USA Freedom Act that recently passed the House of Representatives would actually ban the bulk collection of Americans’ records.”

While they repeatedly reiterate their support for legislative reform, they also lay out a plan by which the President can immediately end the dragnet. Here’s the part I find particularly interesting.

First, they say it is “highly likely” FISC would let them get 2-degrees of phone records, unless FISC has already prohibited that.

Unless the FISC has already rejected such a request from the government, it does not seem necessary for the executive branch to wait for Congress before taking action.

Isn’t this already included in current orders? Shouldn’t the Senators know if FISC has rejected such a request (especially Wyden, who has been on the committee through all this period)? Is Wyden saying it’s possible there’s something else limiting the dragnet? Is he pointing to a ruling he knows about?

Just as interesting, the Senators argue the Pen Register Authority — not Section 215 — could serve to carry out the prospective collection the bill claims to want to do.

FISC would likely approve the defined and limited prospective searches for records envisioned under your proposal pursuant to current USA PATRIOT Act Section 214 pen register authorities, given how broadly it has previous interpreted these authorities.

[snip]

Finally, although we have seen no evidence that the government has needed the bulk phone records collection program to attain any time-sensitive objectives, we agree that new legislation should provide clear emergency authorities to allow the government to obtain court approval of individual queries after the fact under specific circumstances. The law currently allows prospective emergency acquisitions of call records under Section 403 of the Foreign Intelligence Surveillance Act (FISA), and the acquisition of past records without judicial review under national security letter authorities.

Of course, the PRTT authority (cited twice here) should always have been the appropriate authority for this collection; we’ve just never learned why the government didn’t use that.

Basically, the Senators are laying out how the Executive could do precisely what it says it wants to do with existing authorities (indeed, with the PRTT authority that are actually targeted to the kind of record in question).

The Executive has all the authorities it needs, the Senators lay out, so why doesn’t it end the dragnet — achieve the reform it claims it wants — immediately?

We believe the way to restore Americans’ constitutional rights and their trust in our intelligence community is to immediately end the practice of vacuuming up the phone records of huge numbers of innocent Americans every day and permit the government to obtain only the phone records of people actually connected to terrorism or other nefarious activity. We support your March 27, 2014, proposal to achieve these goals, but we also view ending bulk collection as an imperative that cannot wait.

Damn! That’s a very good question! Obama moved immediately to implement his first reform proposal — advance FISC approval and limits to two hops — back in February. So why isn’t he moving immediately to implement the plan he says he wants now, as the Senators lay out he could well do under existing authorities?

It may be the Senators are just pressuring Obama to implement changes now, and nothing here is meant to point to some underlying issue.

But I wildarseguess that they’re trying to point out the differences between what they could do — under the PRTT orders they should have been using from the start — and what they want to do.

There’s one difference we can point to right away, after all: immunity. If all the government wanted to do was to obtain call detail records, then they wouldn’t need to give the telecoms immunity. That’s something they do every day. But there’s something they will do that has led the telecoms to demand immunity. That’s the stuff that goes beyond traditional PRTT activity.

Then there’s the stuff we don’t know about: the “connections” based chaining. As I’ve said, I don’t know what that entails. But it is an obvious explanation for why the telecoms need immunity — and for why a simple PRTT order won’t suffice.

One way or another, the Senators are calling Obama’s bluff. Obama says he wants nothing more than to obtain specific phone records going forward. If that’s true, he could make the change today. Yet the Executive is clear they can’t do that.

Update: One more detail. As Wyden’s release on this makes clear, today’s the day the March 28, 2014 phone dragnet order expires, so presumably the government got another one today. We’ve never seen that March 28 order, by the way.

Where Does the Bulk Collection Under NSLs Happen?

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Back in January, I noted that both the President’s Review Group and those behind the Leahy-Sensenbrenner USA Freedom Act seemed very concerned that the government is using NSLs to conduct bulk collection (which is the term I used, based off the fact that both made parallel changes to Section 215 and NSL collection). Both required (recommended, in the case of PRG) that the government fix that by requiring that NSL’s including language asserting that the particular information sought has a tie to the investigation in question, and some limits on the amount of information collected.

Here’s how the PRG phrased it.

Recommendation 2 We recommend that statutes that authorize the issuance of National Security Letters should be amended to permit the issuance of National Security Letters only upon a judicial finding that:

(1) the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect “against international terrorism or clandestine intelligence activities” and

(2) like a subpoena, the order is reasonable in focus, scope, and breadth.

The thing is, because NSLs haven’t shown up in any troves of leaked documents, we don’t know why USA Freedom original backers and PRG are so concerned NSLs today collect data beyond reasonable breadth (though IG reports done years ago raised big concerns, many of them about whether FBI was meeting the legal standards required).

We don’t know what kind of bulk collection they’re engaging in.

Because FBI — not NSA — primarily uses NSLs, we don’t know what the problem is.

I raise this now because — in addition to having planned on writing this post since January — of questions about whether the HjC HJC and HPSCI “reform” bills will really end what you and I (as distinct from the Intelligence Community) would consider bulk collection.

And NSL reporting — unlike that for Section 215 — provides some hints on where the bulk collection might be.

Here’s what the most recent FISA report to Congress says about (most) NSLs issued last year.

Requests Made for Certain Information Concerning Different United States Persons Pursuant to National Security Letter Authorities During Calendar Year 2013 (USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177 (2006))

Pursuant to Section 118 of the USA PATRIOT Improvement and Reauthorization Act, Pub. L. 109-177 (2006), the Department of Justice provides Congress with annual reports regarding requests made by the Federal Bureau of Investigation (FBI) pursuant to the National Security Letter (NSL) authorities provided in 12 U.S.C. § 3414, 15 U.S.C. § 1681u, 15 U.S.C. § 1681v, 18 U.S.C § 2709, and 50 U.S.C. § 436.

In 2013, the FBI made 14,219 requests (excluding requests for subscriber information only) for information concerning United States persons. These sought information pertaining to 5,334 different United States persons.2

2 In the course of compiling its National Security Letter statistics, the FBI may over-report the number of United States persons about whom it obtained information using National Security Letters. For example, NSLs that are issued concerning the same U.S. person and that include different spellings of the U.S. person’s name would be counted as separate U.S. persons, and NSLs issued under two different types of NSL authorities concerning the same U.S. person would be counted as two U.S. persons.

The report would seem to say that the 14,219 requests were based off requests about 5,334 US persons. That’s not really bulk collection, at least on its face! So where is the bulk collection PRG and USAF seem worried about?

It’s possible this report hides some bulk collection in a different Agency. The law requiring this report only requires DOJ to report on the number of requests DOJ made in the previous year.

 In April of each year, the Attorney General shall submit to Congress an aggregate report setting forth with respect to the preceding year the total number of requests made by the Department of Justice for information concerning different United States persons under–

(A) section 2709 of title 18, United States Code (to access certain communication service provider records), excluding the number of requests for subscriber information;

[the law goes on to list the other NSL provisions]

While DOJ’s report should cover both FBI and DEA, I suppose it’s possible that some other entities — not just NSA but also Treasury, NCTC, and CIA — are submitting NSLs themselves, particularly in the case of financial records (though I think Treasury doesn’t have to use NSLs to do this).

The other obvious place the language of the report hides bulk collection is in subscriber records. The law exempts subscriber information requests from the reporting pertaining to US persons. The FBI could be applying for what amount to phone books of all the subscribers of all the phone companies and Internet service providers in the United States and it wouldn’t show up in this report, even though those requests might pertain to hundreds of millions of US persons.

I assume to some extent it is doing this, because there must be a reason subscriber records were excluded from this law. And this would count as bulk collection even according to the Intelligence Community definition of the term.

Via the PRG, we can get a sense of how many such subscriber requests there are. It says FBI issued 21,000 NSLs in FY 2012.

FBI issued 21,000 NSLs in Fiscal Year 2012, primarily for subscriber information.

While the reporting period is different, DOJ reported that FBI obtained 15,229 NSLs in 2012. Which means the balance — so around 5,500 NSLs — would be for subscriber data. Even if only a significant fraction of those are for all of companies’ subscribers, that’s still a fairly comprehensive list of subscriber information across a broad range of providers.

Those 5,500 requests could each be 50 US persons or 120 million US persons; we don’t know. That would be pretty significant bulk collection. But not the same kind of privacy risk PRG seems to have in mind (and if that were the only problem, why change all 4 NSL statutes, as USA Freedom Act did and to the extent it makes a difference still does)?

Still, we know that even the other NSLs — the ones for which we have real data about how many US persons the NSLs “pertained to” — affected far more US persons. That’s because the Exigent Letters IG Report made it clear that two providers (one of these is AT&T, which did it routinely; see page 75ff) provided community of interest information — multiple hops of call records — in response to NSLs. In discovering that, DOJ’s IG complained that FBI was routinely getting information — the derivative call records — that it had not done a relevancy determination for, but it didn’t object across the board.

That concern about ensuring that records obtained via a national security request are “relevant” according to the plain meaning of the term sure seems quaint right now, doesn’t it?

But the potential that FBI is using NSLs to obtain derivative records off of the original selector would sure explain why PRG and Pat Leahy and others are concerned about NSLs (and what we would call — but IC wouldn’t — “bulk collection”).

I assume they can only do this with complicit providers (and I suspect this explains the rise of Section 215 orders with attached minimization requirements in recent years).

But if it happens in significant number at all, it would explain why Leahy and PRG consider it an equivalent problem to Section 215. Because it would mean FBI was using NSLs — not just with telecom and Internet records, but possibly with other things (though I don’t see how you could do this on credit reports) — to get data on associations several levels removed from the target of the NSL.

Here’s the immediate takeaway, though.

Aside from the phone book application (which is significant and I think would be curtailed given the HJC bill, unless FBI were to make requests of AT&T using “AT&T” as the selection term) and financial records (which I’m still thinking through), NSLs appear to include a great deal of “bulk” collection (that is, collection of innocent persons’ data based on association). But they appear to do so from specific identifiers.

And that will not be curtailed by the HJC bill, not at all. It is clear these requests for NSLs are already currently based off selectors — it shows in this reporting.

So at least for two uses of NSLs — credit reports and call details (but not subscriber records) — the House bill simply codifies the status quo.

Update: Here’s the financial records language on NSLs:

Financial institutions, and officers, employees, and agents thereof, shall comply with a request for a customer’s or entity’s financial records made pursuant to this subsection by the Federal Bureau of Investigation when the Director of the Federal Bureau of Investigation (or the Director’s designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director) certifies in writing to the financial institution that such records are sought for foreign counter intelligence  [2] purposes to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

It’s clearly intended to work for things that would be a selection term — “customer” or “entity” (which in this context would seem to be different from a customer!) — but I’m not sure it requires that the collection be based off the customer selection term.

Section 215, Under USA Freedumb

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This post attempts to do more than lay out how Section 215 will look if USA Freedumb were to pass in its current form. For sections that don’t change, I just mark what they cover. Bolded text is new. My comments are in red. Please let me know if I’ve missed anything.

Update: An updated version of the Managers Amendment does define the term specific selection term:

(2) SPECIFIC SELECTION TERM.—The term  ‘specific selection term’ means a term used to uniquely describe a person, entity, or account.

This is far better than nothing. Though I have concerns about “entity” and I suspect there will be some pushback here, since not even phone numbers “uniquely describe a person,” much less IPs.

(a) APPLICATION

(b) Recipient and contents of application
Each application under this section—

(1) shall be made to—
(A) a judge of the court established by section 1803 (a) of this title; or

(B) a United States Magistrate Judge under chapter 43 of title 28, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and

(2) shall include—

(A) a specific selection term to be used as the basis for the production of the tangible things sought;

Unless I’m mistaken, the term “selection term” is never defined in this bill, nowhere, in spite of the fact that this section and several others rely on it. I can assure you the intelligence community already goes far beyond the email address and phone number they claim to use. And think how broad this could be, without specific limitations. Is there anything preventing “selection term” to be “Area Code 202”? And once you’re talking financial records, what prevents “specific selection term” to be “pressure cooker purchased with a credit card” or “Western Union transfer over $100”?

(B) in the case of an application other than an application described in subparagraph (C), a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation;

(C) in the case of an application for the production of call detail records created on or after the date of the application, a statement of facts showing that—

Note that this language limits prospective collection to call detail records, not Internet data. That is one key improvement over RuppRoge — though see my comments below about how this might be gamed.

(i) there are reasonable grounds to believe that the call detail records sought to be produced based on the specific selection term required under subparagraph (A) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to protect against international terrorism; and

(ii) there are facts giving rise to a reasonable, articulable suspicion that such specific selection term is associated with a foreign power or an agent of a foreign power; and

This is where the bill purportedly limits ongoing production to terrorist investigations. But remember how this “relevant to” term has blown up to include anything that could possibly have a tie to terrorism? Which makes this clause meaningless, leaving the only limitation on what call detail records you want to get to be the original selector having a tie to a foreign power. So it would be a cinch to use this language for other uses. One question I have about this is whether the judge approves just the argument that the records are necessary and the term is associated with a foreign power, or does the judge approve the term itself?

(D) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

(c) Ex parte judicial order of approval
(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b), and that the minimization procedures submitted in accordance with subsection (b)(2)(D) meet the definition of minimization procedures under subsection (g), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) be followed.

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The Verizon Publicity Stunt, Mosaic Theory, and Collective Fourth Amendment Rights

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On Friday, I Con the Record revealed that a telecom — Ellen Nakashima confirms it was Verizon — asked the FISA Court to make sure its January 3 order authorizing the phone dragnet had considered Judge Richard Leon’s December 16 decision that it was unconstitutional. On March 20, Judge Rosemary Collyer issued an opinion upholding the program.

Rosemary Collyer’s plea for help

Ultimately, in an opinion that is less shitty than FISC’s previous attempts to make this argument, Collyer examines the US v. Jones decision at length and holds that Smith v. Maryland remains controlling, mostly because no majority has overturned it and SCOTUS has provided no real guidance as to how one might do so. (Her analysis raises some of the nuances I laid out here.)

The section of her opinion rejecting the “mosaic theory” that argues the cumulative effect of otherwise legal surveillance may constitute a search almost reads like a cry for help, for guidance in the face of the obvious fact that the dragnet is excessive and the precedent that says it remains legal.

A threshold question is which standard should govern; as discussed above, the court of appeals’ decision in Maynard and two concurrences in Jones suggest three different standards. See Kerr, “The Mosaic Theory of the Fourth Amendment,” 111 Mich. L. Rev. at 329. Another question is how to group Government actions in assessing whether the aggregate conduct constitutes a search.See id. For example, “[w]hich surveillance methods prompt a mosaic approach? Should courts group across surveillance methods? If so, how? Id. Still another question is how to analyze the reasonableness of mosaic searches, which “do not fit an obvious doctrinal box for determining reasonableness.” Id. Courts adopting a mosaic theory would also have to determine whether, and to what extent, the exclusionary rule applies: Does it “extend over all the mosaic or only the surveillance that crossed the line to trigger a search?”

[snip]

Any such overhaul of Fourth Amendment law is for the Supreme Court, rather than this Court, to initiate. While the concurring opinions in Jones may signal that some or even most of the Justices are ready to revisit certain settled Fourth Amendment principles, the decision in Jones itself breaks no new ground concerning the third-party disclosure doctrine generally or Smith specifically. The concurring opinions notwithstanding, Jones simply cannot be read as inviting the lower courts to rewrite Fourth Amendment law in this area.

As I read these passages, I imagined that Collyer was trying to do more than 1) point to how many problems overruling the dragnet would cause and 2) uphold the dignity of the rubber stamp FISC and its 36+ previous decisions the phone dragnet is legal.

There is reason to believe she knows what we don’t, at least not officially: that even within the scope of the phone dragnet, the dragnet is part of more comprehensive mosaic surveillance, because it correlates across platforms and identities. And all that’s before you consider how, once dumped into the corporate store and exposed to NSA’s “full range of analytic tradecraft,” innocent Americans might be fingerprinted to include our lifestyles.

That is, not only doesn’t Collyer see a way (because of legal boundary concerns about the dragnet generally, and possibly because of institutional concerns about FISC) to rule the dragnet illegal, but I suspect she sees the reverberations that such a ruling would have on the NSA’s larger project, which very much is about building mosaics of intelligence.

No wonder the government is keeping that August 20, 2008 opinion secret, if it indeed discusses the correlations function in the dragnet, because it may well affect whether the dragnet gets assessed as part of the mosaic NSA uses it as.

Verizon’s flaccid but public legal complaint

Now, you might think such language in Collyer’s opinion would invite Verizon to appeal this decision. But given this lukewarm effort, it seems unlikely to do so. Consider the following details:

Leon issued his decision December 16. Verizon did not ask the FISC for guidance (which makes sense because they are only permitted to challenge orders).

Verizon got a new Secondary Order after the January 3 reauthorization. It did not immediately challenge the order.

It only got around to doing so on January 22 (interestingly, a few days after ODNI exposed Verizon’s role in the phone dragnet a second time), and didn’t do several things — like asking for a hearing or challenging the legality of the dragnet under 50 USC 1861 as applied — that might reflect real concern about anything but the public appearance of legality. (Note, that timing is of particular interest, given that the very next day, on January 23, PCLOB would issue its report finding the dragnet did not adhere to Section 215 generally.)

Indeed, this challenge might not have generated a separate opinion if the government weren’t so boneheaded about secrecy.

Verizon’s petition is less a challenge of the program than an inquiry whether the FISC has considered Leon’s opinion.

It may well be the case that this Court, in issuing the January 3,2014 production order, has already considered and rejected the analysis contained in the Memorandum Order. [redacted] has not been provided with the Court’s underlying legal analysis, however, nor [redacted] been allowed access to such analysis previously, and the order [redacted] does not refer to any consideration given to Judge Leon’s Memorandum Opinion. In light of Judge Leon’s Opinion, it is appropriate [redacted] inquire directly of the Court into the legal basis for the January 3, 2014 production order,

As it turns out, Judge Thomas Hogan (who will take over the thankless presiding judge position from Reggie Walton next month) did consider Leon’s opinion in his January 3 order, as he noted in a footnote.

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And that’s about all the government said in its response to the petition (see paragraph 3): that Hogan considered it so the FISC should just affirm it.

Verizon didn’t know that Hogan had considered the opinion, of course, because it never gets Primary Orders (as it makes clear in its petition) and so is not permitted to know the legal logic behind the dragnet unless it asks nicely, which is all this amounted to at first.

Note that the government issued its response (as set by Collyer’s scheduling order) on February 12, the same day it released Hogan’s order and its own successful motion to amend it. So ultimately this headache arose, in part, because of the secrecy with which it treats even its most important corporate spying partners, which only learn about these legal arguments on the same schedule as the rest of us peons.

Yet in spite of the government’s effort to dismiss the issue by referencing Hogan’s footnote, Collyer said because Verizon submitted a petition, “the undersigned Judge must consider the issue anew.” Whether or not she was really required to or could have just pointed to the footnote that had been made public, I don’t know. But that is how we got this new opinion.

Finally, note that Collyer made the decision to unseal this opinion on her own. Just as interesting, while neither side objected to doing so, Verizon specifically suggested the opinion could be released with no redactions, meaning its name would appear unredacted.

The government contends that certain information in these Court records (most notably, Petitioner’s identity as the recipient of the challenged production order) is classified and should remain redacted in versions of the documents that are released to the public. See Gov’t Mem. at 1. Petitioner, on the other hand, “request[s] no redactions should the Court decide to unseal and publish the specified documents.” Pet. Mem. at 5. Petitioner states that its petition “is based entirely on an assessment of [its] own equities” and not on “the potential national security effects of publication,” which it “is in no position to evaluate.” Id.

I’ll return to this. But understand that Verizon wanted this opinion — as well as its own request for it — public.

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In 2009, DOJ Claimed Its Lawyers Could Not Read Docket Numbers in 2007

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Some time ago, I noted that DOJ appears not to have provided the classified report on Section 215 for the Judiciary and Intelligence Committees mandated by the 2006 PATRIOT Act Reauthorization to Congress in 2009 to 2011. Instead of being sent to the Chairs of the Committees, the reports for those years were simply “filed.”

DOJ continued to provide Congress the unclassified FISA report, which included much of the same information about the numbers of Section 215 orders approved and modified.

But those reports would not have included two critical details: the fact that the sharply increasing number of modifications pertained to the FISC’s imposition of minimization procedures, suggesting collection in some bulk.

And the number of sensitive Section 215 orders issued under the following categories.

(A) Library circulation records, library patron lists, book sales records, or book customer lists.

(B) Firearms sales records.

(C) Tax return records.

(D) Educational records.

(E) Medical records containing information that would identify a person.

So for the years 2008 to 2010, even two of four designated oversight committees did not learn these details (the Intelligence Committees are required to get details on every request, but who knows if that requirement was met?).

In that post, I also noted a problem with 2007’s numbers, as well, a problem DOJ readily admitted in the unclassified report issued in 2009 (supposedly covering 2008).

In its 2008 report, the Department reported to Congress that during Calendar year 2007, the Govermnent made-six applications to the FISC for access to certain business records (including the production of tangible things) for foreign intelligence purposes. Further review of the Government’s records subsequently revealed that the Government had made seventeen applications to the FISC for access to certain business records. The FISC did not deny, in whole or in part, any such application filed by the Government during calendar year 2007.

“Further review revealed.”

Bullshit.

I’m just now realizing how utterly unbelievable this is.

You see, the way the docket works, each new request has its own docket number, so to count the requests you need only count the dockets.

The last docket in the phone dragnet is BR 07-16, issued October 18, 2007 (meaning there was just one more business record docket that year). There is no conceivable way DOJ could not very simply have come up with the correct number for both reports to Congress by looking at the final docket number, which should have been 17. Which means Congress may never have gotten the proper classified detail on those additional 11 requests.

DOJ hid — purposely, necessarily, based on the way the dockets work — the details on sensitive requests to Congress in 2007. Then they appear to have hid the sensitive requests for the following three years. Given that John Bates is copied on the first request thereafter, it appears he may have made them finally fulfill the letter of the law.

They clearly were hiding something about their other Section 215 requests, for four full years.

Surprise! DOJ IG’s 1,403 Day Old Section 215 Investigation Had a Baby!

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As longtime readers know, I have long tracked a DOJ Inspector General investigation into FBI’s use of Section 215 and other PATRIOT Act authorities.

  • June 2010: Then DOJ IG Glenn Fine lays out investigation
  • June 2013: Transition to Michael Horowitz stalls PATRIOT investigation
  • August 2013: The investigation has been ongoing
  • September 2013: Pat Leahy calls for an IC IG investigation into 215 and 702; IC IG Charles McCullough declines
  • December 2013: Horowitz states current investigation limited by AG/DNI declassification of earlier reports

A good healthy obsession!

Since it’s been a while — the investigation is now 1,403 days old — yesterday I decided to nag the IG office.

They were mum on when we might finally see the report. Instead of offering details, they directed me to their new (apparently brand spanking new) “in the interest of transparency” page on their ongoing work.

It shows the long-promised report, still focusing on Section 215 use through 2009, as well as NSLs and pen register.

Use of National Security Letters, Section 215 Orders, and Pen Register and Trap-and-Trace Authorities under FISA from 2007 through 2009

The OIG is again examining the FBI’s use of NSLs and Section 215 orders for business records. This review is assessing the FBI’s progress in responding to the OIG’s recommendations in its first and second reports on the FBI’s use of NSLs and its report on the FBI’s improper use of exigent letters and other informal means to obtain telephone records. A focus of this review is the NSL subsystem, an automated workflow system for NSLs that all FBI field offices and headquarters divisions have been required to use since January 1, 2008, and the effectiveness of the subsystem in reducing or eliminating noncompliance with applicable authorities. The current review is also examining the number of NSLs issued and Section 215 applications filed by the FBI between 2007 and 2009, and any improper or illegal uses of these authorities. In addition, the review is examining the FBI’s use of its pen register and trap-and-trace authority under FISA.

But it also shows a report not mentioned in Michael Horowitz’ last report.

A report on the dragnet.

Bulk Telephony Review

The OIG is reviewing the FBI’s use of information derived from the National Security Agency’s (NSA) collection of telephony metadata obtained from certain telecommunications service providers under Section 215 of the Patriot Act. The review will examine the FBI’s procedures for receiving, processing, and disseminating leads the NSA develops from the metadata, and any changes that have been made to these procedures over time. The review will also examine how FBI field offices respond to leads, and the scope and type of information field offices collect as a result of any investigative activity that is initiated. In addition, the review will examine the role the leads have had in FBI counterterrorism efforts.

In truth, this investigation may not be all that distinct from the known PATRIOT authorities investigation. The minimization procedures for both — and therefore the way the information gets used, an issue central to both investigations — appear to be the same. And to the extent that the number of 215 orders with minimization procedures has been growing since 2010 indicates the FBI is collecting other information in bulk, the programs may well interrelate.

At first, I thought that this investigation, with the very significant exception of the way the dragnet serves to identify informants, might not reveal anything that problematic. Upon review, I’m not so sure. I’ll explain why in a follow-up report.

The one big difference between the two investigations, however (and I’ll discuss this at more length in the follow-up), is that dragnet investigation, unlike the PATRIOT Authority one, appears not to be time delimited. Whereas the older investigation only looks at practices through 2009, the dragnet investigation appears to be examining on-going practices. It seems to be investigating all the 215-related issues identified by Pat Leahy that the IC IG should investigate that come under DOJ’s jurisdiction.

So bad news good news! DOJ is still, 1,403 days later, investigating how the FBI used PATRIOT Act authorities 5 years ago, meaning more recent developments are not getting much attention.

But there is a potentially related investigation looking at what the FBI ingests from the phone dragnet (at least the small part relating to Section 215) right now.