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What We Know about the Section 215 Phone Dragnet and Location Data

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Last month’s squabble between Marco Rubio and Ted Cruz about USA Freedom Act led a number of USAF boosters to belatedly understand what I’ve been writing for years: that USAF expanded the universe of people whose records would be collected under the program, and would therefore expose more completely innocent people, along with more potential suspects, to the full analytical tradecraft of the NSA, indefinitely.

In an attempt to explain why that might be so, Julian Sanchez wrote this post, focusing on the limits on location data collection that restricted cell phone collection. Sanchez ignores two other likely factors — the probable inclusion of Internet phone calls and the ability to do certain kinds of connection chaining — that mark key new functionalities in the program which would have posed difficulties prior to USAF. But he also misses a lot of the public facts about location collection and cell phones under the Section 215 dragnet.  This post will lay those out.

The short version is this: the FISC appears to have imposed some limits on prospective cell location collection under Section 215 even as the phone dragnet moved over to it, and it was not until August 2011 that NSA started collecting cell phone records — stripped of location — from AT&T under Section 215 collection rules. The NSA was clearly getting “domestic” records from cell phones prior to that point, though it’s possible they weren’t coming from Section 215 data. Indeed, the only known “successes” of the phone dragnet — Basaaly Moalin and Adis Medunjanin — identified cell phones. It’s not clear whether those came from EO 12333, secondary database information that didn’t include location, or something else.

Here’s the more detailed explanation, along with a timeline of key dates:

There is significant circumstantial evidence that by February 17, 2006 — two months before the FISA Court approved the use of Section 215 of the PATRIOT Act to aspire to collect all Americans’ phone records — the FISA Court required briefing on the use of “hybrid” requests to get real-time location data from targets using a FISA Pen Register together with a Section 215 order. The move appears to have been a reaction to a series of magistrates’ rulings against a parallel practice in criminal cases. The briefing order came in advance of the 2006 PATRIOT Act reauthorization going into effect, which newly limited Section 215 requests to things that could be obtained with a grand jury subpoena. Because some courts had required more than a subpoena to obtain location, it appears, FISC reviewed the practice in the FISC — and, given the BR/PR numbers reported in IG Reports, ended, sometime before the end of 2006 though not immediately.

The FISC taking notice of criminal rulings and restricting FISC-authorized collection accordingly would be consistent with information provided in response to a January 2014 Ron Wyden query about what standards the FBI uses for obtaining location data under FISA. To get historic data (at least according to the letter), FBI used a 215 order at that point. But because some district courts (this was written in 2014, before some states and circuits had weighed in on prospective location collection, not to mention the 11th circuit ruling on historical location data under US v. Davis) require a warrant, “the FBI elects to seek prospective CSLI pursuant to a full content FISA order, thus matching the higher standard imposed in some U.S. districts.” In other words, as soon as some criminal courts started requiring a warrant, FISC apparently adopted that standard. If FISC continued to adopt criminal precedents, then at least after the first US v. Davis ruling, it would have and might still require a warrant (that is, an individualized FISA order) even for historical cell location data (though Davis did not apply to Stingrays).

FISC doesn’t always adopt the criminal court standard; at least until 2009 and by all appearances still, for example, FISC permits the collection, then minimization, of Post Cut Through Dialed Digits collected using FISA Pen Registers, whereas in the criminal context FBI does not collect PCTDD. But the FISC does take notice of, and respond to — even imposing a higher national security standard than what exists at some district levels — criminal court decisions. So the developments affecting location collection in magistrate, district, and circuit courts would be one limit on the government’s ability to collect location under FISA.

That wouldn’t necessarily prevent NSA from collecting cell records using a Section 215 order, at least until the Davis decision. After all, does that count as historic (a daily collection of records each day) or prospective (the approval to collect data going forward in 90 day approvals)? Plus, given the PCTDD and some other later FISA decisions, it’s possible FISC would have permitted the government to collect but minimize location data. But the decisions in criminal courts likely gave FISC pause, especially considering the magnitude of the production.

Then there’s the chaos of the program up to 2009.

At least between January 2008 and March 2009, and to some degree for the entire period preceding the 2009 clean-up of the phone and Internet dragnets, the NSA was applying EO 12333 standards to FISC-authorized metadata collection. In January 2008, NSA co-mingled 215 and EO 12333 data in either a repository or interface, and when the shit started hitting the fan the next year, analysts were instructed to distinguish the two authorities by date (which would have been useless to do). Not long after this data was co-mingled in 2008, FISC first approved IMEI and IMSI as identifiers for use in Section 215 chaining. In other words, any restrictions on cell collection in this period may have been meaningless, because NSA wasn’t heeding FISC’s restrictions on PATRIOT authorized collection, nor could it distinguish between the data it got under EO 12333 and Section 215.

Few people seem to get this point, but at least during 2008, and probably during the entire period leading up to 2009, there was no appreciable analytical border between where the EO 12333 phone dragnet ended and the Section 215 one began.

There’s no unredacted evidence (aside from the IMEI/IMSI permission) the NSA was collecting cell phone records under Section 215 before the 2009 process, though in 2009, both Sprint and Verizon (even AT&T, though to a much less significant level) had to separate out their entirely foreign collection from their domestic, meaning they were turning over data subject to EO 12333 and Section 215 together for years. That’s also roughly the point when NSA moved toward XML coding of data on intake, clearly identifying where and under what authority it obtained the data. Thus, it’s only from that point forward where (at least according to what we know) the data collected under Section 215 would clearly have adhered to any restrictions imposed on location.

In 2010, the NSA first started experimenting with smaller collections of records including location data at a time when Verizon Wireless was named on primary orders. And we have two separate documents describing what NSA considered its first collection of cell data under Section 215 on August 29, 2011. But it did so only after AT&T had stripped the location data from the records.

It appears Verizon never did the same (indeed, Verizon objected to any request to do so in testimony leading up to USAF’s passage). The telecoms used different methods of delivering call records under the program. In fact, in August 2, 2012, NSA’s IG described the orders as requiring telecoms to produce “certain call detail records (CDRs) or telephony metadata,” which may differentiate records that (which may just be AT&T) got processed before turning over. Also in 2009, part of Verizon ended its contract with the FBI to provide special compliance with NSLs. Both things may have affected Verizon’s ability or willingness to custom what it was delivering to NSA, as compared to AT&T.

All of which suggests that at least Verizon could not or chose not to do what AT&T did: strip location data from its call records. Section 215, before USAF, could only require providers to turn over records they kept, it could not require, as USAF may, provision of records under the form required by the government. Additionally, under Section 215, providers did not get compensated after the first two dragnet orders.

All that said, the dragnet has identified cell phones! In fact, the only known “successes” under Section 215 — the discovery of Basaaly Moalin’s T-Mobile cell phone and the discovery of Adis Medunjanin’s unknown, but believed to be Verizon, cell phone — did, and they are cell phones from companies that didn’t turn over records. In addition, there’s another case, cited in a 2009 Robert Mueller declaration preceding the Medunjanin discovery, that found a US-based cell phone.

There are several possible explanations for that. The first is that these phones were identified based off calls from landlines and/or off backbone records (so the phone number would be identified, but not the cell information). But note that, in the Moalin case, there are no known land lines involved in the presumed chain from Ayro to Moalin.

Another possibility — a very real possibility with some of these — is that the underlying records weren’t collected under Section 215 at all, but were instead collected under EO 12333 (though Moalin’s phone was identified before Michael Mukasey signed off on procedures permitting the chaining through US person records). That’s all the more likely given that all the known hits were collected before the point in 2009 when the FISC started requiring providers to separate out foreign (EO 12333) collection from domestic and international (Section 215) collection. In other words, the Section 215 phone dragnet may have been working swimmingly up until 2009 because NSA was breaking the rules, but as soon as it started abiding by the rules — and adhering to FISC’s increasingly strict limits on cell location data — it all of a sudden became virtually useless given the likelihood that potential terrorism targets would use exclusively cell and/or Internet calls just as they came to bypass telephony lines. Though as that happened, the permissions on tracking US persons via records collected under EO 12333, including doing location analysis, grew far more permissive.

In any case, at least in recent years, it’s clear that by giving notice and adjusting policy to match districts, the FISC and FBI made it very difficult to collect prospective location records under FISA, and therefore absent some means of forcing telecoms to strip their records before turning them over, to collect cell data.

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James Clapper Admits Phone Dragnet Data Retention Is about Discerning Patterns

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In the Q&A portion of a James Clapper chat at Council on Foreign Relations yesterday, he was asked about the phone dragnet and Section 215 (this starts after 48:00).

He made news for the way he warned Congress that if they take away Section 215 (he didn’t specify whether he was talking about just the phone dragnet or Section 215 and the roughly 175 other orders authorized under it) and something untoward happens as a result, they better be prepared to take some of the blame.

Q: In recent days the government reauthorized the telephone metadata collection program through June 1st, when there’s the Sunset date, obviously, of Section 215 of the PATRIOT Act. What do you want to see happen after that?

Clapper: Well, what we have agreed to, Attorney General Eric Holder and I, last September, signed a letter saying that we supported the notion of moving the retention of the data to providers in a bill that was — actually came out of the Senate from Senator Leahy, so we signed up to that. I think that’s the only thing that’s realistic if we’re going to have this at all. In the end, the Congress giveth and the Congress taketh away. So if the Congress in its wisdom decides that the candle isn’t worth the flame, the juice isn’t worth the squeeze, whatever metaphor you want to use, that’s fine. And the Intelligence Community will do all we can within the law to do what we can to protect the country. But, I have to say that every time we lose another tool in our toolkit, you know? It raises the risk. And so if we have — if that tool is taken away from us, 215, and some untoward incident happens which could have been thwarted had we had it I just hope that everyone involved in that decision assumes responsibility. And it not be blamed if we have another failure exclusively on the intelligence community.

At one level, I’m absolutely sympathetic with Clapper’s worries about getting blamed if there’s another attack (or something else untoward). In some cases (particularly in the aftermath of the 2009 Nidal Hasan and Umar Farouk Abdulmutallab attacks), politicians have raised hell about the Intelligence Community missing a potential attack. But that really did not happen after the Boston Marathon; contemporaneous polls even said most people accepted that you couldn’t prevent every attack. Moreover, in that case, NSA — the entity running the phone dragnet — was excluded from more intensive Inspector General review, as NSA has repeatedly been in the past (including, to a significant extent, the 9/11 attack), even though it had collected data on one or both of the Tsarnaev brothers but not accessed it until after the attack. In other words, NSA tends not to be held responsible even when it is.

Clapper’s fear-mongering has gotten most of the attention from that Q&A, even more than Clapper’s admission elsewhere that “moderate” in Syria — he used scare quotes — means “anyone who’s not affiliated w/I-S-I-L.”

But on the phone dragnet, I found this a far more intriguing exchange.

Q: And just to be clear, with the private providers maintaining that data, do you feel you’ve lost an important tool?

Clapper: Not necessarily. It will depend though, for one, retention period. I think, given the attitude today of the providers, they will probably do all they can to minimize the retention period. Which of course, from our standpoint, lessens the utility of the data, because you do need some — and we can prove this statistically — you do need some historical data in order to, if you’re gonna discern a pattern. And again, 215 to me, is much like my fire insurance policy. You know, my house has never burned down but every year I buy fire insurance just in case.

In general, discussions about why the NSA needs 5 years of phone dragnet have used a sleeper argument: a suspect might have spoken to someone of interest 4 years ago, which would be an important connection to identify and pursue. But that’s not what Clapper says here. They need years and years of our phone records not to find calls we might have made 5 years ago, but to “discern patterns.”

Well, that changes things a bit, and may even suggest how they’re actually using the phone dragnet.

While we know they have, at times, imputed some kind of meaning to the lengths of calls — for a while they believed calls under 2 minutes were especially suspicious until they realized calls to the pizza joint also tend to be under 2 minutes — there’s another application where pattern analysis is even more important: matching burner phones. You need a certain volume of past calls to establish a pattern of a person’s calls so as to be able to identify another unrelated handset that makes the same pattern of calls as the same person.

Connection chaining, not contact chaining.

Clapper’s revelation that they need years of retention for pattern analysis, not for contact chaining, seems consistent with the language describing the chaining process under USA Freedom Act.

(I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and

(II) using call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records;

That is, they’d be getting all the calls the target had made, as well as all the calls an identifiable target’s associate or additional phone had made.

And remember, one of the NSA’s two greatest “successes” with the phone dragnet — when they found that Adis Medunjanin, whom they already knew to be associated with Najibullah Zazi, had a phone they hadn’t known about — involves burner matching. That match took place at an important moment, too, when the NSA had turned off its automatic correlation process (which uses a dedicated database to identify the other known identities of a person in a chain), and when its queries were as closely controlled as they ever have been in the wake of the massive violations in 2009. At a time when they were running a bare bones phone dragnet, they were still doing burner matching, and considered that a success.

Now, let me be clear: matching the burner phones of real suspects is a reasonable use for a phone dragnet, though the government ought to provide more clarity about whether they’re matching solely on call patterns or on patterns of handset use, including on the Internet. It’d also be nice if anyone caught in this fashion had some access to the accuracy claims the government has made and the basis used to make those accuracy claims (for one incarnation of the Hemisphere dragnet, DEA was claiming 94% accuracy, based of 10 years of data and, apparently, multiple providers). And this points to the importance of retaining FISC review of the targets, because people for whom there is not reasonable articulable suspicion of ties to terrorism ought to be able to use burner phones.

James Clapper’s office has gone to great lengths to try to hide any mention of pattern analysis in declassified discussions of the phone dragnet. Apparently, Clapper doesn’t think that detail needs to be classified anymore.

The NSA May Not “Target” Lawyers, But It Does “Spy” on Them

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Congratulations to Ben Wittes who, with this post, demonstrates how the NSA can “spy” on Americans without “targeting” them.

His piece consists of several steps. First, Wittes goes to great effort to show that Laura Poitras and James Risen have not shown that the American law firm representing the Indonesian government, Mayer Brown, was “targeted” (though he seems to think that means they weren’t spied on).

For starters, it is important to emphasize that the Times story does not involve NSA spying. It doesn’t involve any remotely-plausible suggestion of illegality. It doesn’t involve any targeting of Americans. And it doesn’t involve any targeting of lawyers either.

The facts the story reports are these:

  • The surveillance in question was conducted by the Australian Signals Directorate (ASD), not NSA.
  • The surveillance targeted Indonesian government officials engaged in trade talks with the United States.
  • The surveillance apparently took place overseas. (There is no suggestion in the story that the surveillance took place inside the United States.)

In other words, a foreign intelligence service was conducting surveillance against another foreign government, which was in communication with a U.S. law firm. [my emphasis]

This is a flimsy use of NSA’s own euphemism, “targeting,” given that NYT never uses the word in the context of the law firm (they do use it to discuss the law and make it clear ASD discovered they were spying on an American who was working for the USG). The verbs they use include “entangled,” “caught up,” “monitored,” “ensnared,” and “compromised.” All verbs that describe what happens when someone talks to a targeted entity.

From there, Wittes takes a hypothetical quote offered by the NSA spokesperson, explaining that NSA sometimes does ask Five Eyes partners to take special precautions, to suggest the NSA did ask Australia’s ASD to protect the US lawyers involved.

An N.S.A. spokeswoman said the agency’s Office of the General Counsel was consulted when issues of potential attorney-client privilege arose and could recommend steps to protect such information.

“Such steps could include requesting that collection or reporting by a foreign partner be limited, that intelligence reports be written so as to limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use,” said Vanee M. Vines, the spokeswoman.

But doesn’t quote the bit that makes it clear NSA would not — and was not — commenting on this case.

The N.S.A. declined to answer questions about the reported surveillance, including whether information involving the American law firm was shared with United States trade officials or negotiators.

Then Wittes shows the ambiguity about what happened when the ASD told the US an American law firm had gotten caught in its surveillance, quoting from the text.

Here’s the direct quote from the document in question.

(TS//SI//REL) SUSLOC Facilitates Sensitive DSD Reporting on Trade Talks: According to SIGINT information obtained by DSD, the Indonesian Government has employed a US law firm to represent its interests in trade talks with the US. On DSD’s behalf, SUSLOC sought NSA OGC guidance regarding continued reporting on the Indonesian government communications, taking into account that information covered by attorney-client privilege may be included. OGC provided clear guidance and DSD has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.

Now, I agree this passage is not crystal clear (though it is less ambiguous than the text itself). What is clear is DSD (the name of which has subsequently been changed to ASD) continued spying on the Indonesian government — and sharing that spying with US “customers” — after SUSLOC consulted (on its behalf) with NSA’s lawyers.

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NSA’s Latest Claim: It Only Gets 30% of “Substantially All” the Hay in the Haystack

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SIGINT and 215In December 2007, the FBI began intercepting MOALIN’s cell phone.

— FBI search warrant affidavit seeking (among other things) additional cell phones, October 29, 2010

Yesterday, Siobhan Gorman reported that NSA’s “phone-data program” collects 20% or less of the phone data in the US. She explains that the program doesn’t collect cell phone data, and so has covered a decreasing percentage of US calls over the last several years.

The National Security Agency’s phone-data program, which has been at the center of controversy over the NSA’s surveillance operations, collects information from about 20% or less of all U.S. calls—much less than previously described by lawmakers.

The program had been described as collecting records on virtually every phone call placed in the U.S., but in fact, it doesn’t cover records for most cellphones, the fastest-growing sector in telephony and an area where the agency has struggled to keep pace, according to several people familiar with the program.

Ellen Nakashima’s report places the percentage between 20 and 30%, echoing Gorman’s claim about limits on cell data.

The actual percentage of records gathered is somewhere between 20 and 30 percent and reflects Americans’ increasing turn away from the use of land lines to cellphones. Officials also have faced technical challenges in preparing the NSA database to handle large amounts of new records without taking in data such as cell tower locations that are not authorized for collection.

[snip]

The bulk collection began largely as a land-line program, focusing on carriers such as AT&T and Verizon Business Network Services. At least two large wireless companies are not covered — Verizon Wireless and T-Mobile U.S., which was first reported by the Wall Street Journal.

Industry officials have speculated that partial foreign ownership has made the NSA reluctant to issue orders to those carriers. But U.S. officials said that was not a reason.

“They’re doing business in the United States; they’re required to comply with U.S. law,” said one senior U.S. official. “A court order is a court order.”

Rather, the official said, the drop in collection stems from several factors.

Apart from the decline in land-line use, the agency has struggled to prepare its database to handle vast amounts of cellphone data, current and former officials say. For instance, cellphone records may contain geolocation data, which the NSA is not permitted to receive.

These reports offer a more credible explanation than Geoffrey Stone’s multiple claims to this effect about why the program misses data. So they may be true.

But I think they instead point to the legal range of authorities NSA uses to collect phone records, not to what records they actually have in their possession.

These reports are commenting (though without specifying, or even seeming to be aware they need to specify) on what the government claims it collects under Section 215. These reports are not commenting on what NSA collects under all authorities.

In this post I will show why I believe these reports to be credible only in a very narrow sense. In a follow-up post I will point to the legal issues that underlie the Administration’s conflicting claims about what it collects.

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The Government Plays Connect-the-Dots Differently than They Say

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In my continuing obsession to understand precisely how the government really uses the dragnet, consider this post, in which NSA Review Group member Geoffrey Stone conducts (IMO) inadequate analysis to conclude the phone dragnet is probably unconstitutional.

In it, he provides this description of how the government uses the phone dragnet:

In 2012, the NSA queried a total of 288 phone numbers. Based on these queries, the NSA found 16 instances in which a suspect phone number was directly or indirectly in touch with another phone number that the NSA independently suspected of being associated with terrorist activity. In such cases, the NSA turns the information over to the FBI for further investigation.

In terms of the “connect the dots” metaphor, the purpose of the program is not so much to discover new “dots” but to determine if there are connections between two or more already suspect “dots.” For example, if a phone number belonging to a terrorist suspect in Pakistan is found to have called a phone number in the United States that the government independently suspects belongs to a person involved in possible terrorist activity, alarm bells (figuratively) go off very loudly, alerting the government to the need for immediate attention. [my emphasis]

I don’t think this can be an accurate description of how the dragnet works.

It is close to what happened with Adis Medunjanin. As the FBI was honing in on Najibullah Zazi, the NSA did a query and found a new cell phone for Medunjanin, though they already knew Medunjanin was a likely accomplice of Zazi’s through via travel records. The government says they were particularly interested in this phone because it was in contact with other extremists. Thus, they found a brand new phone number, but one that ended up being associated with both a suspect (Medunjanin) and other suspects (the other people that phone was in contact with).

But that cell phone for Medunajnin was a brand new number to the NSA, at least according to their reports.

The claim may still be true if they used burner matching to identify Medunjanin as a match to the other phone record they had on him. But it seems this process would have to involve additional information about Medunjanin at some point — at the very least, the match of those travel documents to that phone number, if not his identity.

In other words, this only seems to make sense if they had Medunjanin’s “identity” in some form or another, belying their claims not to have identities while they’re contact chaining.

The description is potentially more problematic with Basaaly Moalin. In his case, the stated explanation for what happened is they found his number on a second-degree search, sent it to the FBI, and the FBI learned he was the guy who had previously been investigated in 2003.

The problem might be alleviated in two ways: first, if the hawala through which Moalin was sending money to Ayro, was also tied to a suspect number. That’s a distinct possibility: but the question is, how does that identity as a suspect number get communicated to NSA? If NSA already had it, doesn’t it mean they’ve got more suspect numbers sitting somewhere than have been RAS approved?

The other possibility is that Moalin himself was still identified as a suspect number from the investigation back in 2003 — that an investigation that turned up no evidence might still, during the era of the illegal program, have gotten someone nominated as a suspect number under Cheney’s program, and they never purged the system entirely (which would seem to be supported by the 2009 problems, which showed they hadn’t turned off the illegal program features).

Either of these possibilities, of course, would raise new concerns about the NSA program.

But the description would also raise real issues, both about the honesty of witnesses and the potential efficacy of the system. If the NSA only triggers on people who’ve got ties to a second suspect number (which is entirely different than what they’ve been saying) then it could not possibly alert the government to a fully compartmented lone actor (someone like, say, Faisal Shahzad). That is, it would only find people who were engaged in the kind of elaborate planning seen before the government dismantled al Qaeda, but would not find the kind of individual extremists we’ve seen almost exclusively (with the exception of Zazi) for years.

This would answer the question of whether the NSA is finding the right numbers, in that it would be less likely to find someone innocent. It also might explain why the program didn’t find Shahzad. But it would also mean it does (as presented) far less than the NSA has been saying it does.

I don’t actually believe that, but that is what it would suggest.

John Bates Intervened in the Phone Dragnet Problems

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Yesterday, I Con the Record released more records in response to the ACLU FOIA for records on the Section 215 program (though once again, they didn’t mention the FOIA).

Three of the documents provide more data points for a notable progression I laid out in this post, in which Reggie Walton appears to have shut down some collection from one telecom on July 9, 2009, reapproved it (including retroactively) on September 3, 2009, just in time for the Intelligence Community to claim Section 215 collection was central to the Najibullah Zazi investigation.

First, a July 2, 2009 notice to Walton provided the End-to-End review “for the Court’s information.” It had been completed on June 25 and provided to the Intelligence and Judiciary Committees on June 30. It was also included in the formal DOJ filing to Walton on August 19, which left the impression that DOJ had held it for two months before sharing it with the court. But this notice makes it clear Walton received a copy with only a slight delay (and the day before they delivered the first weekly report he had demanded). It also makes it clear he had gotten it, and probably read it, before whatever action he took on July 9. What may be the problematic collection (see page 15-16) apparently got reported to FISC before May 29 (no mention of a formal notice is included, though it seems to be addressed in the May 29 order). But there are other violations (such as the sharing described on page 17 that may involve Homeland Security) that appear to have been newly disclosed with this report.

In a second document — a September 10 notice to just the Senate Intelligence Committee (?!) that Judge Walton had reauthorized the bulk collection program on September 3 — reveals that on August 4, FISC Chief Judge John Bates had written Eric Holder a letter raising concerns. The notice portrays a September 1 demonstration for Walton, Bates, and Judge Thomas Hogan (who I believe was the only other FISC judge from the DC Circuit at the time) apparently at NSA as a response to Bates’ concerns. But the description of the demonstration also notes that,

The information was presented in the context of a current operation that concerns a potential threat to the U.S. homeland.

Remember, this was before (by 2 days) the Zazi investigation started. So this must reference something else, though it certainly didn’t sound all that urgent.

In any case, while it is unclear who got Bates involved (after all, it could have been the Administration, complaining that some of its production had been cut off), it is noteworthy he was involved, which provides a little more background to the frustration he expressed in his October 3, 2011 opinion accusing the government of signifiant misrepresentations on 3 occasions.

Finally, on October 21, in what must have been part of the PATRIOT Act reauthorization push, National Counterterrorism Center’s Michael Leiter and the NSA’s Assistant Deputy Director for Counterterrorism addressed the House Intelligence Committee. Along with their case for the program and a heavily glossed description of the problems with it (which they indicate had already been noticed in some form to the Committee), they described how tips from the dragnet “have contributed directly to the following specific cases,” plural. It includes an entirely unredacted description of the dragnet’s role in the Zazi investigation (without, for example, disclosing FBI already knew of Adis Medunjanin through travel documents to Pakistan where he and Zazi trained with terrorists). And it includes a shorter description of what must be at least one other case, which is entirely redacted. It’s possible, after all, that that second “success” (which is so credible we can’t know about it) is the ongoing threat referred to in the September 10 notice, which NSA used to scare FISC into reauthorizing the dragnet.

One more detail about the notice to HPSCI. It fails to mention that, less than 3 weeks after he reauthorized the dragnet, Walton learned — from DOJ, not NSA — of further information sharing violations. In other words, the HPSCI witnesses falsely portrayed the problems as fixed, when there were pending violations still being discussed between NSA and FISC.

There’s nothing enormous in these revelations, but they do add to the understanding of how grave FISC took these violations to be, and how partial was Congressional briefing on them.  Read more →

On the 12th Day of Christmas, the NSA Gave to Me … 12 “Terrorism Supporters”

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Dianne Feinstein is writing op-eds again. Of course, I’m not actually recommending you read her defense of the phone dragnet program — though I do recommend this rebuttal of her claims from ACLU’s Mike German.

In other words, the problem was not that the government lacked the right tools to do its job (it had ample authority to trace Mihdhar’s calls). The problem was that the government apparently failed to use them.

But I do want to look at how DiFi dances around the debunked claims about all the plots the dragnet have stopped.

Since its inception, this program has played a role in stopping roughly a dozen terror plots and identifying terrorism supporters in the U.S.

Her claim is grammatically false, of course. Of the 2 known of these 12 cases where Section 215 was useful, with just one — when it was used to identify an unknown phone of one already identified accomplice of Najibullah Zazi — was a plot actually stopped. In the other, all Section 215 did was identify a supporter of terrorism, Basaaly Moalin. And even there, the FBI itself believed Moalin sent money to al-Shabaab not so much to support terrorism, but to support expelling (US backed) Ethiopian invaders of Somalia.

So while she could say that on 12 occasions Section 215 has helped stop a plot or identified terrorism supporters, what she has said is — surprise surprise! — a lie.

But I am rather amused at how close DiFi gets to arguing a dragnet of every Americans’ phone based relationships is worthwhile because it has found 12 guys who support, but do not engage in, terrorism.

The Scandal of Lying about “Thwarted” “Plots” Started 4 Years Ago

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As predicted, one big takeaway from yesterday’s NSA hearing (the other being the obviously partial disclosure about location tracking) is Keith Alexander’s admission that rather than 54 “plots” “thwarted” in the US thanks to the dragnet, only one or maybe two were. Here are some examples.

But they’re missing this real scandal about the government’s lies about the central importance of Section 215.

That scandal started 4 years ago, when an example the FBI now admits had limited import played a critical role in the reauthorization of Section 215 without limits on the dragnet authority.

First, note that even while Leahy got Alexander to back off his “54 plots” claim, the General still tried to insist Section 215 had been critical in two plots, not just one.

SEN. LEAHY: Let’s go into that discussion, because both of you have raised concerns that the media reports about the government surveillance programs have been incomplete, inaccurate, misleading or some combination of that. But I’m worried that we’re still getting inaccurate and incomplete statements from the administration.

For example, we have heard over and over again the assertion that 54 terrorist plots were thwarted by the use of Section 215 and/or Section 702 authorities. That’s plainly wrong, but we still get it in letters to members of Congress; we get it in statements. These weren’t all plots, and they weren’t all thwarted. The American people are getting left with an inaccurate impression of the effectiveness of NSA programs.

Would you agree that the 54 cases that keep getting cited by the administration were not all plots, and out of the 54, only 13 had some nexus to the U.S. Would you agree with that, yes or no?

DIR. ALEXANDER: Yes.

SEN. LEAHY: OK. In our last hearing, Deputy Director Inglis’ testimony stated that there’s only really one example of a case where, but for the use of Section 215, bulk phone records collection, terrorist activity was stopped. Is Mr. Inglis right?

DIR. ALEXANDER: He’s right. I believe he said two, Chairman; I may have that wrong, but I think he said two, and I would like to point out that it could only have applied in 13 cases because of the 54 terrorist plots or events, only 13 occurred in the U.S. Business Record FISA was only used in (12 of them ?).

SEN. LEAHY: I understand that, but what I worry about is that some of these statements that all is — all is well, and we have these overstatements of what’s going on — we’re talking about massive, massive, massive collection. We’re told we have to do that to protect us, and then statistics are rolled out that are not accurate. It doesn’t help with the credibility here in the Congress; doesn’t help with the credibility with us, Chairman, and it doesn’t help with the credibility with the — with the country. [my emphasis]

Here’s the transcript at I Con the Record from the previous hearing, where Inglis in fact testified that Section 215 was only critical in the Basaaly Moalin case (which was not a plot against the US but rather funding to defeat a US backed invasion of Somalia).

MR. INGLIS: There is an example amongst those 13 that comes close to a but-for example and that’s the case of Basaaly Moalin.

 

That is, in fact, Inglis said it had been critical in just one “plot.”

After he did, FBI Deputy Director Sean Joyce piped in to note the phone dragnet also “played a role” by identifying a new phone number of a suspect we already knew about in the Najibullah Zazi case.

MR. JOYCE: I just want to relate to the homeland plots. So in Najibullah Zazi and the plot to bomb the New York subway system, Business Record 215 played a role; it identified specifically a number we did not previously know of a —

SEN. LEAHY: It was a — it was a critical role?

MR. JOYCE: What I’m saying — what it plays a —

SEN. LEAHY: (And was there ?) some undercover work that was — took place in there?

MR. JOYCE: Yes, there was some undercover work.

SEN. LEAHY: Yeah —

MR. JOYCE: What I’m saying is each tool plays a different role, Mr. Chairman. I’m not saying that it is the most important tool —

SEN. LEAHY: Wasn’t the FBI — wasn’t the FBI already aware of the individual in contact with Zazi?

MR. JOYCE: Yes, we were, but we were not aware of that specific telephone number, which NSA provided us. [my emphasis]

So, when pressed, Joyce admitted that Section 215 wasn’t critical to finding Adis Medunjanin, one of Zazi’s conspirators. (And if you read Matt Apuzzo and Adam Goldman’s Enemies Within, you see just how minor a role it played.)

That’s important, because the Administration’s use of Section 215 in the Zazi case was crucially important to the defeat of two efforts to rein in the dragnet in 2009.

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Oh, So THAT’S Why the Government Is So Insistent Section 215 Had a Role in the Zazi Case?

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There’s a remarkable passage in the Primary Order for the Section 215 dragnet that Judge Reggie Walton signed on September 3, 2009.

In addition, the Custodian of Records of [redacted] shall produce to NSA upon service of the appropriate Secondary Order an electronic copy of the same tangible things created by [redacted] for the period from 5:11 p.m. on July 9, 2009 to the date of this Order, to the extent those records still exist.

In an order authorizing the prospective collection of phone records until October 30, 2009, Walton also authorizes the retroactive collection of phone records generated between July 9 and September 3, 2009, if the telecom(s) haven’t destroyed them yet.

This seems to suggest that in an Order on July 9 (which we don’t get, but which the government references in its August 19 submission) Walton halted the program.

Boom. 5:11, July 9. No more phone records, from at least one telecom.

We don’t know why he did so either. In his June 22 Order, he referenced a May 29 Order (another one we didn’t get), responding to NSA’s very delayed disclosures that unminimized results had been shared with NSA analysts unauthorized to receive them and that CIA, FBI, and NCTC had access to the dragnet databases.  He had assigned the government a new report, due on June 18. But in that, too, the government revealed new abuses (including one — described on page 4 — that may pertain to the Internet dragnet rather than the phone dragnet; recall that the NSA offered to “review” that program at the same time they did the phone dragnet). Walton issued new homework to the NSA, requiring the government to provide a weekly report of the dissemination that occurred, with the first due July 3 and therefore the second due July 10, the day after Walton appears to have stopped the collection.

In the government’s August submission, this line seems to indicate querying has been halted.

Based on these findings and actions, the Government anticipates that it will request in the Application seeking renewal of docket number BR 09-09 authority that NSA, including certain NSA analysts who obtain appropriate approval, be permitted to resume non-automated querying of the call detail records using selectors approved by NSA.

But it doesn’t seem to reflect that collection stopped. (Note, Walton’s June Order had a docket number of 09-06, whereas the August submission bears the docket number 09-09).

So while we can’t be sure, it appears the discoveries submitted to Walton in June 2009, as well as new ones in early July, may have led him to halt production of new phone records.

And that collection was turned back on on September 3, 2009. 3 days before the NSA intercepted Najibullah Zazi’s frantic emails to Pakistan trying to get help making TATP he planned to use in a September 11 attack on NYC’s subways.

According to Matt Apuzzo and Adam Goldman’s superb Enemies Within, after discovering Zazi’s emails, FBI had used travel records to find Zazi’s suspected accomplices, Zarein Ahmedzay and Adis Medunjanin.

But when the government tried to justify the dragnet earlier this year, they pointed to the fact that Medunjanin came up in the Section 215 collection as proof of the dragnet’s value, as in this July 17 House Judiciary Committee hearing where FBI National Security Division Executive Assistant Director Stephanie Douglas testified.

Additionally, NSA ran a phone number identifiable with Mr. Zazi against the information captured under 215. NSA queried the phone number and identified other Zazi associates. One of those numbers came back to Adis Medunjanin, an Islamic extremist located in Queens, New York.

The FBI was already aware of Mr. Medunjanin, but information derived from 215 assisted in defining his — Zazi’s network and provided corroborating information relative to Medunjanin’s connection to Zazi. Just a few weeks after the initial tip by NSA, both Zazi and Medunjanin were arrested with — along with another co-conspirator. They were charged with terrorist acts and a plot to blow up the New York City subway system.

As I noted 4 years ago, Dianne Feinstein immediately started using the Zazi investigation to successfully argue that Section 215 must retain its broad relevance standard, defeating an effort by Pat Leahy to require some tie to terrorism.

Now, it may be that the FBI also used Section 215 to collect records of 3 apparently innocent people buying beauty supplies. The government has neither explained what happened to these apparently innocent people or on what basis (it may have been the Section 215 dragnet) they claimed they were associates of Zazi.

But the public case that backs up DiFi’s claims that Section 215 dragnet was central to the Zazi investigation is now limited to the fact that the FBI used the dragnet to find a Zazi associate they already knew about.

Yet imagine! What if Reggie Walton’s stern action in response to the government’s blatantly violating dissemination rules on the dragnet prevented the FBI from finding Zazi’s associates (which wasn’t a problem, and would have been less of a problem if the NYPD hadn’t tipped of Zazi, but never mind)? What if Walton’s effort to rein in the government had prevented the FBI from thwarting an attack?

That, it seems to me, is the implicit threat. The government claims — in spite of all the evidence to the contrary — that Section 215 played a key role in thwarting one of the only real terrorist attacks since 9/11. And, I’d bet they warn in private, they might have been prevented from doing so because a pesky FISA judge halted the program because they hadn’t followed the most basic rules for it.

That, I’m guessing, is why they claim the Section 215 dragnet was central to the Zazi investigation. Not because it was. But because it raises the specter of a judge’s effort to make the government follow the law interfering with FBI’s work.