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The Intelligence Community’s Swiss Cheese Preemptive 702 Unmasking Reports: Now with Twice the Holes!

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Because a white man still liked by some members of Congress had FISA-collected conversations leaked to the press, Republicans who used to applaud surveillance started to show some more concerns about it this year. That has been making reauthorization of Section 702 unexpectedly challenging. Both the HJC and SJC bills reauthorizing the law include new reporting requirements, which include mandates to provide real numbers for how many Americans get unmasked in FISA reports. There’s no such requirement on the SSCI bill.

Instead, explicitly in response to concerns raised in SSCI’s June 7 hearing on 702 reauthorization (even though the concern was also raised earlier in HJC and SJC hearings), I Con the Record has released an ODNI report on disseminations under FISA, a report it bills as “document[ing] the rigorous and multi-layered framework that safeguards the privacy of U.S. person information in FISA disseminations.”

The report largely restates language that is available in the law or declassified targeting and minimization procedures, though there are a few tidbits worth noting. Nevertheless, the report falls far short of what the SJC and HJC bills lay out, which is a specific count and explanation of the unmasking that happens (though NSA, in carrying out a review of a month’s worth of serialized reports, examining out their treatment of masking, does model what HJC and SJC would request).

The report consists of the DNI report with separate agency reports. I’ll deal with the latter first, then return to the DNI report.

NSA

The NSA report starts by narrowing the scope of the dissemination it will cover significantly in two ways.

This report examines the procedures and practices used by the National Security Agency (NSA) to protect U.S. person information when producing and disseminating serialized intelligence reports derived from signals intelligence (SIGINT) acquired pursuant to Title I and Section 702 of the Foreign Intelligence Surveillance Act of 1978, as amended (FISA). 1

1This report is limited to an examination of the procedures and practices used to protect FISA-acquired U.S. person information disseminated in serialized intelligence reports. This report does not examine other means of dissemination. For purposes of this report, the term “dissemination” should be interpreted as a reference to serialized intelligence reporting, unless otherwise indicated.

First, it treats just Title I and Section 702. That leaves out at least two other known collection techniques of content (to say nothing of metadata) under FISA: Title III (FBI probably does almost all of this, though it might be accomplished via hacking) and Section 704/705b targeting Americans overseas (which has been a significant problem of late).

More importantly, by limiting the scope to serialized reports, NSA’s privacy officer completely ignores the two most problematic means of disseminating US person data: by collecting it off Tor and other location obscured nodes and then deeming it evidence of a crime that can be disseminated in raw form to FBI, and by handing raw data to the FBI (and, to a lesser extent, CIA and NCTC).

As the report turns to whether NSA’s procedures meet Fair Information Practice Principles, then, the exclusion of these four categories of data permit the report to make claims that would be unsustainable if those data practices were included in the scope of the report.

The principle of Data Minimization states that organizations should only collect PII that is directly relevant and necessary to accomplish the specified purpose. The steps taken from the outset of the SIGINT production process to determine what U.S. person information can and should be disseminated directly demonstrate how this principle is met, as do NSA’s procedures and documentation requirements for the proactive and post-publication release of U.S. identities in disseminated SIGINT.

The principle of Use Limitation provides that organizations should use PII solely for the purposes specified in the notice. In other words, the sharing of PII should be for a purpose compatible with the purpose for which it was collected. NSA’s SIGINT production process directly reflects this principle.

[snip]

The principle of Accountability and Auditing states that organization should be accountable for complying with these principles, providing training to all employees and contractors who use personally identifiable information, auditing the actual use of personally identifiable information to demonstrate compliance with these principles and all applicable privacy protections.

For example, the collection of US person data off a Tor node is not relevant to the specified purpose (nor are the criminal categories under which NSA will pass on data). That’s true, too, of Use Limitation: the government is collecting domestic child porn information in the name of foreign intelligence, and the government is doing back door searches of raw 702 data for any matter of purpose. Finally, we know that the government has had auditing problems, particularly with 704/705b. Is that why they didn’t include it in the review, because they knew it would fail the auditing requirement?

CIA

CIA’s report is not as problematic as NSA’s one, but it does have some interesting tidbits. For example, because it mostly disseminates US person information for what it calls tactical purposes and to a limited audience, it rarely masks US person identities.

More specifically, unlike general “strategic” information regarding broad foreign intelligence threats, CIA’s disseminations of information concerning U.S. persons were “tactical” insofar as they were very often in response to requests from another U.S. intelligence agency for counterterrorism information regarding a specific individual, or in relation to a specific national security threat actor or potential or actual victim of a national security threat.

Relatedly, because these disseminations were generally for narrow purposes and sent to a limited number of recipients, the replacement of a U.S. person identity with a generic term (e.g., “named U.S. person,” sometimes colloquially referred to as “masking”) was rare, due to the need to retain the U.S. person identity in order to understand the foreign intelligence information by this limited audience.

CIA, like NSA, has its own unique definition of “dissemination:” That which gets shared outside the agency.

Information shared outside of CIA is considered a dissemination, and is required to occur in accordance with approved authorities, policies, and procedures.

Much later, dissemination is described as retaining information outside of an access-controlled system, which suggests fairly broad access to the databases that include such information.

Prior to dissemination of any information identifying, or even concerning, a U.S. person, the minimization procedures require that CIA make a determination that the information concerning the U.S. person may be retained outside of access-controlled systems accessible only to CIA personnel with specialized FISA training to review unevaluated information. I

Whereas NSA focused very little attention on its targeting process (which allows it to collect entirely domestic communications), CIA outsources much of its responsibility for limiting intake to FBI and NSA (note, unlike NSA, it includes Title III collection in its report, but also doesn’t treat 704/705b). For example, it focuses on the admittedly close FISA scrutiny FBI applications undergo for traditional FISA targeting, but then acknowledges that it can get “unevaluated” (that is, raw) information in some cases.

If requested by FBI in certain cases, unevaluated information acquired by FBI can be shared with CIA.

Likewise, the CIA notes that it can nominate targets to NSA, but falls back on NSA’s targeting process to claim this is not a bulk collection program (one of CIA’s greatest uses of this data is in metadata analysis).

CIA may nominate targets to NSA for Section 702 collection, but the ultimate decision to target a non-U.S. person reasonably believed to be located outside the United States rests with NSA.

[snip]

Section 702 is not a bulk collection program; NSA makes an individualized decision with respect to each non-U.S. person target.

Thus, the failure of the NSA report to talk about other collection methods (in CIA’s case, of incidental US person data in raw data) ports the same failure onto CIA’s report.

NCTC

NCTC’s report is perhaps the most amusing of all. It provides the history of how it was permitted to obtain raw Title I and Title III data in 2012 and 702 data in 2017 (like everyone else, it is silent on 704/705b data, though we know from this year’s 702 authorization they get that too), then says its use and dissemination of 702 data is too new to have been reviewed much.

Because NCTC just recently (in April 2017) obtained FISC authority to receive unminimized Section 702-acquired counterterrorism information, only a small number of oversight reviews have occurred. CLPT is directly involved in such reviews, including reviews of disseminations.

In other words, it is utterly silent about its dissemination of Title I and Title III data compliance. It is likewise silent on a dissemination that is probably unique to NCTC: the addition of US person names to watchlists based off raw database analysis. The dissemination of US person names in this way aren’t serialized reports, but they have a direct impact on the lives of Americans.

FBI

It’s hard to make sense of the FBI document because it lacks logical organization and includes a number of typos. More importantly, over and over it either materially misrepresents the truth (particularly in FBI’s access to entirely domestic communications collected under 702) or simply blows off requirements (most notably with its insistence that back door searches are important, without making any attempt to assess the privacy impact of them).

Bizarrely, the FBI treats just Title I and 702 in its report, even though it would be in charge of Title III collection in the US, and 705b collection would be tied to traditional FISA authorities.

Like CIA, FBI’s relies on NSA’s role in targeting, without admitting that NSA can collect on selectors that it knows to also be used by US persons, and can disseminate the US person data to FBI in case of a crime. Indeed, FBI specifically neglects to mention the 2014 exception whereby NSA doesn’t have to detask from a facility once it discovers US persons are using it as well as the foreign targets.

Targets under Section 702 collection who are subsequently found to be U.S. persons, or non-U.S. persons located in the U.S., must be detasked immediately

The end result if materially false, and false in a way that would involve dissemination of US person data (though not in a serialized report) from NSA to FBI.

The FBI report also pretends that a nomination would pertain primarily to an email address, rather than (for example) and IP address, in spite of later quoting from minimization procedures that reveal it is far broader than that: “electronic communication accounts/addresses/identifiers.”

After talking about its rules on dissemination, the FBI quickly turns to federated database “checks.”

Among other things, since 9/11, the FBI has dedicated considerable time, effort, and money to develop and operate a federated database environment for its agents and analysts to review information across multiple datasets to establish links between individuals and entities who may be associated with national security and/or criminal investigations. This allows FBI personnel to connect dots among various sources of information in support of the FBI’s investigations, including accessing data collected pursuant to FISA in a manner that is consistent with the statute and applicable FISA court orders. The FBI has done this by developing a carefully overseen system that enables its personnel to conduct database checks that look for meaningful connections in its data in a way that protects privacy and guards civil liberties. Maintaining the capability to conduct federated database checks is critical to the FBI’s success in achieving its mission.

But it doesn’t distinguish the legal difference between dissemination and checks. Far more importantly, it doesn’t talk about the privacy impact of these “checks,” a tacit admission that FBI doesn’t even feel the need to try to justify this from a privacy perspective.

Unlike NSA, FBI talks about the so-called prohibition on reverse targeting.

Reverse targeting is specifically prohibited under Section 702.31 “Reverse targeting” is defined as targeting a non-U.S. person who is reasonably believed to be located outside of the U.S. with the true purpose of acquiring communications of either (1) a U.S. person or (2) any individual reasonably believed to be located inside of the U.S. with whom the non-U.S. person is in contact.32

Yet we know from Ron Wyden that this prohibition actually permits FBI to nominate a foreigner even if a purpose of that targeting is to get to the Americans communications.

FBI talks about its new Title I minimization procedures, without mentioning that requirements on access controls and auditing arose in response to violations of such things.

The SMPs require, for example, FISA-acquired information to be kept under appropriately secure conditions that limit access to only those people who require access to perform their official duties or assist in a lawful and authorized governmental function.37 The SMP also impose an auditing requirement for the FBI to “maintain accurate records of all persons who have accessed FISA-acquired information in electronic and data storage systems and audit its access records regularly to ensure that FISA-acquired information is only accessed by authorized individuals.”38

And nowhere does FBI talk about the dissemination of US person data to ad hoc databases.

Remarkably, unlike NSA, FBI didn’t actually appear to review its dissemination practices (at least there’s no described methodology as such). Instead, it reviews its dissemination policy.

The instant privacy review found that the FBI’s SMP and Section 702 MP, which are subject to judicial review, protect the privacy rights of U.S. persons by limiting the acquisition, retention, and dissemination of their non-publicly available information without their consent. In addition, both sets of minimization procedures require that FISA-acquired information only be used for lawful purposes.42

Then it engages in a cursory few line review of whether it complies with FIPP. Whereas NSA assessed compliance with “Transparency, Use Limitation, Data Minimization, Security, Quality and Integrity, Accountability, and Auditing (but found Purpose specification not considered directly relevant), FBI at first assessed only Purpose specification. After noting that such a privacy review is not required in any case because FBI’s systems have been deemed a national security system, it then asserts that “DOJ and FBI conducted a review for internal purposes to ensure that all relevant privacy issues are addressed. These reviews ensure that U.S. person information is protected from potential misuse and/or improper dissemination.”

Later, it uses the affirmative permission to share data with other state and local law enforcement and foreign countries as a privacy limit, finding that it fulfills data minimization and transparency (and purpose, again).

Like the SMP for Title I of FISA, the Section 702 MP permits the FBI to disseminate Section 702-acquired U.S. person information that reasonably appears to be foreign intelligence information or is necessary to understand foreign intelligence information or assess its importance to federal, state, local, and tribal officials and agencies with responsibilities relating to national security that require access to intelligence information.50 The FBI is also permitted to disseminate U.S. person information that reasonably appears to be evidence of a crime to law enforcement authorities.51 In addition, the Section 702 MP provides guidelines that must be met before dissemination of U.S. person information to foreign governments is allowed.52 The dissemination of Section 702 information to a foreign government requires legal review by the NSCLB attorney assigned to the case.53 In light of the above judicially-reviewed minimization procedures for the dissemination of FISA acquired information, the FBI’s current implementation satisfies the data minimization and transparency FIPPs.

With respect to dissemination, FBI focuses on finished intelligence reports, not investigative files, where most data (including data affecting Mike Flynn) would be broadly accessed. Then, far later, it says this review found no violations, “in finished intelligence.”

Finally, the instant review found no indication of noncompliance with the required authorities governing dissemination of U.S. person information in finished intelligence.

At this point, the report appears to be a flashing siren of all the things it either clearly didn’t investigate or wouldn’t describe. Which worries me.

It then turns FBI’s failures to give notice that data derives from FISA as a privacy benefit, rather than a violation of the laws mandating disclosure.

While the redaction of U.S. person information may commonly be referred to as “masking,” the FBI does not generally use that term.

In addition, disseminations or disclosures of FISA-acquired information must be accompanied by a caveat. All caveats must contain, at a minimum, a warning that the information may not be used in a legal proceeding without the advanced authorization of the FBI or Attorney General.48 This helps ensure the information is properly protected.

And in the four paragraphs FBI dedicates to public transparency, it not only doesn’t admit that it has been exempted from most reporting on 702 use, but it doesn’t once mention mandated notice to defendants, which it has only complied with around 8 times.

There are many ways FBI could have handled this report to avoid making it look like a guilty omission that, while its finished intelligence reports aren’t a big US person data dissemination problem, virtually every other way it touches 702 data is. But it didn’t try any of those. Instead, it just engaged in omission after omission.

DNI

My unease over the giant holes in the FBI report carry over to a one detail in the DNI report. It’s only there that the government admits something that Semiannual 702 reports have admitted since FBI dispersed targeting to field offices. While the 702 reviews review pretty much everything NSA does and many things CIA does, the reviews don’t review all FBI disseminations, and they only include in their sample disseminations affirmatively identified as US person information.

As it pertains to reviewing dissemination of Section 702 information, ODNI and DOJ’s National Security Division (NSD) review many of the agencies’ disseminations as part of the oversight reviews to assess compliance with each agency’s respective minimization procedures and with statutory requirements.25 NSD and ODNI examine the disseminations to assess whether any information contained therein that appears to be of or concerning U.S. persons meets the applicable dissemination standard found in the agency’s minimization procedures; whether other aspects of the dissemination requirements (to include limitations on the dissemination of attorney-client communications and the requirement of a FISA warning statement as required by 50 U.S.C. § 1806(b)) have been met; and whether the information disseminated is indicative of reverse targeting of U.S. persons or persons located in the United States.

25For example, as it pertains to NSA, NSD currently reviews all of the serialized reports (with ODNI reviewing a sample) that NSA has disseminated and identified as containing Section 702-acquired U.S. person information. For CIA and NCTC, NSD currently reviews all dissemination (with ODNI reviewing a sample) of information acquired under Section 702 that the agency identified as potentially containing U.S. person information. For FBI, both NSD and ODNI currently review a sample of disseminations of information acquired under Section 702 that FBI identifies as potentially containing U.S. person information.

This is one of a number of reasons why FBI only identified one criminal 702 query last year — only after that one query was selected as part of the review, and only after some haranguing, was it identified as an entirely criminal query.

The DNI report makes one more incorrect claim — that all incidents of non-compliance have been remediated.

Disseminating FISA information in a manner that violates the minimization procedures would, therefore, be a violation of the statute, as would use or disclosure of the information for unlawful purposes. As noted above, identified incidents of non-compliance with the minimization procedures, to include improper disseminations, are reported to the FISC and to the congressional intelligence committees and those incidents are remediated.

That was true before this year, I guess. But Rosemary Collyer, in a deviation from past practice of requiring the government to destroy data collected without authorization, did not require NSA to destroy the poison fruit of unauthorized 704b and other back door queries (though perhaps DNI believes their claim is true given the way everyone has avoided talking about the more troubled collection techniques).

The DNI report ends with a boast about what it calls “transparency.”

These reviews also illustrate the importance of transparency. Historically, many of the documents establishing this framework were classified and not available to the public. In recent years, much progress has been made in releasing information from these documents, and providing context and explanations to make them more readily understandable. We trust that these reviews are a further step in enhancing public understanding of these key authorities. It is important to continue with transparency efforts like these on issues of public concern, such as the protection of U.S. person information in FISA disseminations.

It is true that these reports rely on a great deal of declassified information. But that does not amount to “transparency,” unless you’re defining that to mean something that hides the truth with a bunch of off-topic mumbo jumbo.

This report appears to be an attempt to stave off real reporting requirements for unmasked information — an attempt to placate the Republicans who are rightly troubled that the contents of FISA intercepts in which Mike Flynn was incidentally collected.

But no person concerned about the impact on US persons of FISA should find these reports reassuring. On the contrary, the way in which, agency after agency, the most important questions were dodged should raise real alarms, particularly with respect to FBI.

The Ironies of the EO 12333 Sharing Expansion for Obama and Trump

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In one of his first acts as leader of the Democratic party in 2008, Barack Obama flipped his position on telecom immunity under FISA Amendments Act, which cleared the way for its passage. That was a key step in the legalization of the Stellar Wind dragnet illegally launched by George Bush in 2001, the normalization of turnkey surveillance of the rest of the world, surveillance that has also exposed countless Americans to warrantless surveillance.

Bookends of the Constitutional law president’s tenure: codifying and expanding Stellar Wind

So it is ironic that, with one of his final acts as President, Obama completed the process of normalizing and expanding Stellar Wind with the expansion of EO 12333 information sharing.

As I laid out some weeks ago, on January 3, Loretta Lynch signed procedures that permit the NSA to share its data with any of America’s other 16 intelligence agencies. This gives CIA direct access to NSA data, including on Americans. It gives all agencies who jump through some hoops that ability to access US person metadata available overseas for the kind of analysis allegedly shut down under USA Freedom Act, with far fewer limits in place than existed under the old Section 215 dragnet exposed by Edward Snowden.

And it did so just as an obvious authoritarian took over the White House.

I’ve was at a privacy conference in Europe this week (which is my partial explanation for being AWOL all week), and no one there, American or European, could understand why the Obama Administration would give Trump such powerful tools.

About the only one who has tried to explain it is former NSA lawyer Susan Hennessey in this Atlantic interview.

12333 is not constrained by statute; it’s constrained by executive order. In theory, a president could change an executive order—that’s within his constitutional power. It’s not as easy as just a pen stroke, but it’s theoretically possible.

[snip]

When they were in rewrites, they were sort of vulnerable. There was the possibility that an incoming administration would say, “Hey! While you’re in the process of rewriting, let’s go ahead and adjust some of the domestic protections.” And I think a reasonable observer might assume that while the protections the Obama administration was interested in putting into place increased privacy protections—or at the very least did not reduce them—that the incoming administration has indicated that they are less inclined to be less protective of privacy and civil liberties. So I think it is a good sign that these procedures have been finalized, in part because it’s so hard to change procedures once they’re finalized.

[snip]

I think the bottom line is that it’s comforting to a large national-security community that these are procedures that are signed off by Director of National Intelligence James Clapper and Attorney General Loretta Lynch, and not by the DNI and attorney general that will ultimately be confirmed under the Trump Administration.

Hennessey’s assurances ring hollow. That’s true, first of all, because it is actually easier to change an EO — and EO 12333 specifically — than “a pen stroke.” We know that because John Yoo did just that, in authorizing Stellar Wind, when he eliminated restrictions on SIGINT sharing without amending EO 12333 at all. “An executive order cannot limit a President,” Yoo wrote in the 2001 memo authorizing Stellar Wind. “There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.” And so it was that the NSA shared Stellar Wind data with CIA, in violation of the plain language of EO 12333 Section 2.3, until that sharing was constrained in 2004.

Yes, in 2008, the Bush Administration finally changed the language of 2.3 to reflect the SIGINT sharing it had started to resume in 2007-2008. Yes, this year the Obama Administration finally made public these guidelines that govern that sharing. But recent history shows that no one should take comfort that EOs can bind a president. They cannot. The Executive has never formally retracted that part of the 2001 opinion, which in any case relies on a 1986 OLC opinion on Iran-Contra arguing largely the same thing.

No statutorily independent oversight over vastly expanded information sharing

Which brings us to whether the EO sharing procedures, as released, might bind Trump anymore than EO 12333 bound Bush in 2001.

In general, the sharing procedures are not even as stringent as other surveillance documents from the Obama Administration. The utter lack of any reasonable oversight is best embodied, in my opinion, by the oversight built into the procedures. A key cog in that oversight is the Department of National Intelligence’s Privacy and Civil Liberties Officer — long inhabited by a guy, Alex Joel, who had no problem with Stellar Wind. That role will lead reviews of the implementation of this data sharing. In addition to DNI’s PCLO, NSA’s PCLO will have a review role, along with the General Counsels of the agencies in question, and in some limited areas (such as Attorney Client communications), so will DOJ’s National Security Division head.

What the oversight of these new sharing procedures does not include is any statutorily independent position, someone independently confirmed by the Senate who can decide what to investigate on her own. Notably, there is not a single reference to Inspectors General in these procedures, even where other surveillance programs rely heavily on IGs for oversight.

There is abundant reason to believe that the PATRIOT Act phone and Internet dragnets violated the restrictions imposed by the FISA Court for years in part because NSA’s IG’s suggestions were ignored, and it wasn’t until, in 2009, the FISC mandated NSA’s IG review the Internet dragnet that NSA’s GC “discovered” that every single record ingested under the program violated FISC’s rules after having not discovered that fact in 25 previous spot checks. In the past, then, internal oversight of surveillance has primarily come when IGs had the independence to actually review the programs.

Of course, there won’t be any FISC review here, so it’s not even clear whether explicit IG oversight of the sharing would be enough, but it would be far more than what the procedures require.

I’d add that the Privacy and Civil Liberties Oversight Board, which provided key insight into the Section 215 and 702 programs, also has no role — except that PCLOB is for all intents and purposes defunct at this point, and there’s no reason to believe it’ll become operational under Trump.

Obama vastly expanded information sharing with these procedures without implementing the most obvious and necessary oversight over that sharing, statutorily independent oversight.

Limits on using the dragnet to affect political processes

There is just one limit in the new procedures that I think will have any effect whatsoever — but I think Trump may have already moved to undercut it.

The procedures explicitly prohibit what everyone should be terrified about under Trump — that he’ll use this dragnet to persecute his political enemies. Here’s that that prohibition looks like.

Any IC element that obtains access to raw SIGINT under these Procedures will:

[snip]

Political process in the United States. Not engage in any intelligence activity authorized by these Procedures, including disseminations to the White House, for the purpose of affecting the political process in the United States. The IC element will comply with the guidance applicable to NSA regarding the application of this prohibition. Questions about whether a particular activity falls within this prohibition will be resolved in consultation with the element’s legal counsel and the General Counsel of the Office of the Director of National Intelligence (ODNI) (and the DoD’s Office of the General Counsel in the case of a DoD IC element).

If you need to say the IC should not share data with the White House for purposes of affecting the political process, maybe your info sharing procedures are too dangerous?

Anyway, among the long list of things the IC is not supposed to do, this is the only one that I think is so clear that it would likely elicit leaks if it were violated (though obviously that sharing would have to be discovered by someone inclined to leak).

All that said, note who is in charge of determining whether something constitutes affecting political processes? The IC agency’s and ODNI’s General Counsel (the latter position is vacant right now). Given that the Director of National Intelligence is one of the positions that just got excluded from de facto participation in Trump’s National Security Council (in any case, Republican Senator Dan Coats has been picked for that position, which isn’t exactly someone you can trust to protect Democratic or even democratic interests), it would be fairly easy to hide even more significant persecution of political opponents.

FBI and CIA’s expanded access to Russian counterintelligence information

There is, however, one aspect of these sharing guidelines that may have work to limit Trump’s power.

In the procedures, the conditions on page 7 and 8 under which an American can be spied on under EO 12333 are partially redacted. But the language on page 11 (and in some other parallel regulations) make it clear one purpose under which such surveillance would be acceptable, as in this passage.

Communications solely between U.S. persons inadvertently retrieved during the selection of foreign communications will be destroyed upon recognition, except:

When the communication contains significant foreign intelligence or counterintelligence, the head of the recipient IC element may waive the destruction requirement and subsequently notify the DIRNSA and NSA’s OGC;

Under these procedures generally, communications between an American and a foreigner can be read. But communications between Americans must be destroyed except if there is significant foreign intelligence or counterintelligence focus. This EO 12333 sharing will be used not just to spy on foreigners, but also to identify counterintelligence threats (which would presumably include leaks but especially would focus on Americans serving as spies for foreign governments) within the US.

Understand: On January 3, 2017, amid heated discussions of the Russian hack of the DNC and public reporting that at least four of Trump’s close associates may have had inappropriate conversations with Russia, conversations that may be inaccessible under FISA’s probable cause standard, Loretta Lynch signed an order permitting the bulk sharing of data to (in part) find counterintelligence threats in the US.

This makes at least five years of information collected on Russian targets available, with few limits, to both the CIA and FBI. So long as the CIA or FBI were to tell DIRNSA or NSA’s OGC they were doing so, they could even keep conversations between Americans identified “incidentally” in this data.

I still don’t think giving the CIA and FBI (and 14 other agencies) access to NSA’s bulk SIGINT data with so little oversight is prudent.

But one of the only beneficial aspects of such sharing might be if, before Trump inevitably uses bulk SIGINT data to persecute his political enemies, CIA and FBI use such bulk data to chase down any Russian spies that may have had a role in defeating Hillary Clinton.

The Intelligence Community Continues to Pretend Ignorance of Its Deliberate 702 Spying

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As I noted in an update to this post, over the last several months, the Brennan Center has led an effort among privacy organizations to get the Intelligence Community to provide the transparency over its Section 702 surveillance that it dodged under the USA Freedom Act. On October 29, 2015, it send James Clapper a letter asking for:

  • A public estimate of the number of communications or transactions involving American citizens and residents subject to Section 702 surveillance on a yearly basis.
  • The number of times each year that the FBI uses a U.S. person identifier to query databases that include Section 702 data, and the number of times the queries return such data.
  • Policies governing agencies’ notification of individuals that they intend to use information “derived from” Section 702 surveillance in judicial or administrative proceedings.

On December 23, Privacy Officer Alex Joel responded on behalf of Clapper, largely dodging the requests but offering to have a meeting at which he could further dodge the request. Then yesterday, Brennan replied, calling out some of those dodges and posing new questions in advance of any meeting.

While the reply asks some worthwhile new questions, I wanted to look at some underlying background to the response Joel and ODNI gave.

The number of communications or transactions involving American citizens and residents subject to Section 702 surveillance on a yearly basis

In response to Brennan’s request for the number of US persons sucked up in 702, Joel points back to the PCLOB 702 report (which was far more cautious than the earlier 215 report) and its report on the status of recommendations from January 2015 and basically says, “we’re still working on that.” Brennan deemed the response non-responsive and noted that the IC is still working on 4 of PCLOB’s 5 recommendations 18 months after they issued it.

I would add one important caveat to that: PCLOB’s fifth recommendation was that the government provide,

the number of instances in which the NSA disseminates non-public information about U.S. persons, specifically distinguishing disseminations that includes names, titles, or other identifiers potentially associated with individuals.

We’ve just learned — through curiously timed ODNI declassification — that the numbers FBI gives to Congress on 702 dissemination are dodgy, or at least were dodgy in 2012, in part because they had been interpreting what constituted US person information very narrowly. For whatever reason, PCLOB didn’t include FBI in this recommendation, but they should be included, especially given the issues of notice to defendants dealt with below.

More importantly, there’s something to remember, as the IC dawdles in its response to this recommendation. In 2010, John Bates issued a ruling stating that knowingly collecting US person content constituted an illegal wiretap under 50 USC 1809(a). Importantly, he said that if the government didn’t know it was conducting electronic surveillance, that was okay, but it shouldn’t go out of its way to remain ignorant that it was doing so.

When it is not known, and there is no reason to know, that a piece of information was acquired through electronic surveillance that was not authorized by the Court’s prior orders, the information is not subject to the criminal prohibition in Section 1809(a)(2). Of course, government officials may not avoid the strictures of Section 1809(a)(2) by cultivating a state of deliberate ignorance when reasonable inquiry would likely establish that information was indeed obtained through unauthorized electronic surveillance.

The following year, Bates held that when it collected entirely domestic communications via upstream Section 702 collection, that collection was intentional (and therefore electronic surveillance), not incidental, though Clapper’s lawyer Bob Litt likes to obfuscate on this point. The important takeaway, though, is that the IC can illegally collect US person data so long as it avoids getting affirmative knowledge it is doing so, but it can’t be too obvious in its efforts to remain deliberately ignorant.

I’d say 18 months begins to look like willful ignorance.

The number of times each year that the FBI uses a U.S. person identifier to query databases that include Section 702 data, and the number of times the queries return such data

Brennan asked for solid numbers on back door searches, and Joel pointed to PCLOB’s recommendations that pertain to updated minimization procedures, a totally different topic.

And even there Joel was disingenuous in a way that the Brennan letter did not note.

Joel asserts that “with the recent reauthorization of the 702 Certification … this recommendation 2 [has] been implemented.” The recommendation included both additional clarity in FBI’s minimization procedures as well as further limits on what non-national security crimes FBI can use 702 data for.

Back in February 2015, Bob Litt revealed the latter information, what FBI could use 702 data for:

crimes involving death, kidnapping, substantial bodily harm, conduct that is a specified offense against a minor as defined in a particular statute, incapacitation or destruction of critical infrastructure, cyber security, transnational crimes, or human trafficking.

But after Litt made that disclosure, and either after or during the process of negotiating new 702 certificates, the ODNI released updated minimization procedures. But they where the MPs for 2014, not 2015! (See this post for a discussion of new disclosures in those documents.) Joel’s answer makes clear that FBI’s minimization procedures were updated significantly in the 2015 application beyond what they had been in 2014 (because that’s the only way they could have not fulfilled that recommendation last January but have since done so).

In other words, Joel answers Brennan’s question by boasting about fulfilling PCLOB’s recommendations, but not Brennan’s answer. But even there, if ODNI had just released the current FBI MPs, rather than year-old ones, part of Brennan’s questions would be answered — that is, what the current practice is.

I think the recent new disclosures about the limits on FBI’s very limited disclosure reporting (at least until 2012) provide some additional explanation for why FBI doesn’t count its back door searches. We know:

  • At least until 2012, it appears FBI did not consider reports based off the content of a message (“about”) not including the US person mentioned, certain kinds of identifiers (probably including phone numbers and Internet identifiers), or metadata to be sharing non-public US person information.
  • At least until the most recent certification, FBI was permitted to use metadata to analyze communications and transfer “all such metadata to other FBI electronic and data storage systems for authorized and foreign intelligence purposes” (page 11) without marking it as disseminated Section 702 data (footnote 2). This likely increases the chance that FBI does not treat metadata derived from Section 702 — and analysis integrating it and other data — to be 702 derived (especially given its apparent belief that such metadata does not equate to person identifying information).
  • FBI’s databases surely include redundant information for people whose communications are collected — either as target or incidentally — under both Section 702 and traditional FISA (and possibly even under Title III warrants). If, as Charlie Savage reported last year, FBI is now acquiring raw EO 12333 data, it may be in the same databases as well. This is undoubtedly even more true with respect to metadata. Given known practice on the NSA side, FBI likely uses the multiple designations to avoid disclosure rules.

In other words, there is a great deal of room to launder where data comes from, particularly if it has been used for metadata link analysis as an interim step. To try to count the specifically Section 702 queries, even just of content, though all the more so of metadata, would require revealing these overlaps, which FBI surely doesn’t want to do.

Policies governing agencies’ notification of individuals that they intend to use information “derived from” Section 702 surveillance in judicial or administrative proceedings

All that’s also background to Brennan’s request for information about notice to defendants. Joel pretty much repeated DOJ’s unhelpful line, though he did direct Brennan to this OLC memo on notice to those who lose clearance. Not only does that memo reserve the right to deem something otherwise subject to FISA’s notice requirements privileged, it also cites from a 1978 House report excluding those mentioned in, but not a party to, electronic surveillance from notice.

[A]s explained in a FISA House Report, “[t]he term specifically does not include persons, not parties to a communication, who may be mentioned or talked about by others.”

That, of course, coincides with one of the categories of people that it appears FBI was not counting in FISA dissemination reports until at least 2012 (and, of course, metadata does not count as electronic surveillance).

All of which is to say this appears to hint at the scope of how FBI has collected and identified people using 702 derived data that nevertheless don’t get 702 notice.

None of that excuses ODNI for refusing to respond to these obvious questions. But it does seem to indicate that the heart of FBI’s silence about its own 702 practices has a lot to do with its ability to arbitrage the multiple authorities it uses to spy.

Section 309: A Band-Aid for a Gaping Wound in Democracy

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Someone surveilling our conversation "connection chained" Bob Litt and I while chatting at CATO.

Metadata: Someone surveilling our conversation “connection chained” Bob Litt and me chatting about spying on Americans in the Hayek Auditorium at CATO on 12/12/14.

On Friday, officials from James Clapper’s office confirmed in a number of different ways that the government obtains “vast troves” of Americans’ communication overseas. And rather than enforce Dianne Feinstein and Mark Udall’s suggestion that the intelligence community treat it under FISA — as the spirit of FISA Amendment Acts, which extended protection to Americans abroad, would support — Congress instead passed Section 309, a measure to impose limited protections on vast unregulated spying on Americans.

This all happened at CATO’s conference on surveillance, an awesome conference set up by Julian Sanchez.

My panel (moderated very superbly by Charlie Savage) revisited at length the debate between former State Department whistleblower John Napier Tye and Director of National Intelligence Civil Liberties Officer Alex Joel (into which I stuck my nose). As he did in his Politico post responding to Tye’s alarms about the risk of EO 123333 collection against Americans to democracy, Joel pointed to the topical limits on bulk collection Obama imposed in his Presidential Policy Directive 28, which read,

The United States must consequently collect signals intelligence in bulk in certain circumstances in order to identify these threats. Routine communications and communications of national security interest increasingly transit the same networks, however, and the collection of signals intelligence in bulk may consequently result in the collection of information about persons whose activities are not of foreign intelligence or counterintelligence value. The United States will therefore impose new limits on its use of signals intelligence collected in bulk. These limits are intended to protect the privacy and civil liberties of all persons, whatever their nationality and regardless of where they might reside.

In particular, when the United States collects nonpublicly available signals intelligence in bulk, it shall use that data only for the purposes of detecting and countering: (1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests; (2) threats to the United States and its interests from terrorism; (3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction; (4) cybersecurity threats; (5) threats to U.S. or allied Armed Forces or other U.S or allied personnel; and (6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section.

I noted — as I did in my Salon piece on the topic — that bulk collection for even just one topic means the collection of everything, as counterterrorism serves as the excuse to get all phone records in the US in the phone dragnet. Joel did not dispute that, explaining that PPD-28 only limits the use of data that has been bulk collected to these six purposes. PPD-28 does nothing to limit bulk collection itself. Though the fact that these limitations have forced a change in how the NSA operates is testament that they were using data collected in bulk for even more reasons before January.

The NSA is, then, aspiring to collect it all, around the world.

Which was a point confirmed in an exchange between Joel and Tye. Joel claimed we weren’t collecting nearly all of the Internet traffic out there, saying it was just a small fraction. Tye said that was disingenuous, because 80% of Internet traffic is actually things like Netflix. Tye stated that the NSA does collect a significant percentage of the remainder (he implied most, but I’d want to see the video before I characterize how strongly he said that).

Again, collect it all.

Our panel didn’t get around to talking about Section 309 of the Intelligence Authorization, which I examined here. The Section imposes a 5 year retention limit on US person data except for a number of familiar purposes — foreign intelligence, evidence of a crime, encryption, all foreign participants, tech assurance or compliance, or an Agency head says he needs to retain it longer (which requires notice to Congress). Justin Amash had argued, in an unsuccessful attempt to defeat the provision, that the measure provides affirmative basis for sharing US person content collected under EO 12333.

In a later panel at the CATO conference, DNI General Counsel Bob Litt said that the measure doesn’t change anything about what the IC is already doing.  Read more →

Any Bets FBI Was Already Searching US Person Data?

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In the department of news that got reported here two months ago, the WaPo is reporting on FISC’s approval to let the government search through incidentally collected information. Its news hook is that the 2011 move reversed an earlier 2008 ban that the government had asked for.

The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

It may well be that the NSA was prohibited from searching on incidentally collected information, but not all parts of the government were. In his October 3, 2011 FISC opinion, John Bates pointed to some other minimization procedures allowing such searches to justify his approval for NSA to do so.

This relaxation of the querying rules does not alter the Court’s prior conclusion that NSA minimization procedures meet the statutory definition of minimization procedures. [2 lines redacted] contain an analogous provision allowing queries of unminimized FISA-acquired information using identifiers — including United States-person identifiers — when such queries are designed to yield foreign intelligence information. See [redacted] In granting [redacted] applications for electronic surveillance or physical search since 2008, including applications targeting United States persons and persons in the United States, the Court has found that the [redacted] meet the definition of minimization procedures at 50 U.S.C. §§ 1801 (h) and 1821(4). It follows that the substantially similar querying provision found at Section 3(b)(5) of the amended NSA minimization procedures should not be problematic in a collection that is focused on non-United States persons located outside the United States and that, in the aggregate, is less likely to result in the acquisition of nonpublic information regarding non-consenting United States persons.

We already had reason to believe other agencies do this, because when the Senate Intelligence Committee discussed it, they described the intelligence community generally wanting such searches.

Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession. [my emphasis]

Bates’ mention of targeting US persons strongly suggests FBI was the agency in question (though the CIA may as well). (If this practice weren’t already permitted, I would bet it got approved in the aftermath of the Nidal Hasan attack, which might explain why so many more Americans who had communicated with Anwar al-Awlaki or Samir Khan were caught in stings after that point.)

So did Ronald Litt and Alex Joel tell Ellen Nakashima this to hide a much more intrusive practice at FBI (which they also oversee)?