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Marco Rubio Explains the Dragnet

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SIGINT and 215A penny dropped for me, earlier this week, when Marco Rubio revealed that authorities are asking “a large number of companies” for “phone records.” Then, yesterday, he made it clear that these companies don’t fall under FCC’s definition of “phone” companies, because they’re not subject to that regulator’s 18 month retention requirement.

His comments clear up a few things that have been uncertain since February 2014, when some credulous reporters started reporting that the Section 215 phone dragnet — though they didn’t know enough to call it that — got only 20 to 30% of “all US calls.”

The claim came not long after Judge Richard Leon had declared the 215 phone dragnet to be unconstitutional. It also came just as the President’s Review Group (scoped to include all of the government’s surveillance) and PCLOB (scoped to include only the 215 phone dragnet) were recommending the government come up with a better approach to the phone dragnet.

The report clearly did several things. First, it provided a way for the government to try to undermine the standing claim of other plaintiffs challenging the phone dragnet, by leaving the possibility their records were among the claimed 70% that was not collected. It gave a public excuse the Intelligence Community could use to explain why PRG and PCLOB showed the dragnet to be mostly useless. And it laid the ground work to use “reform” to fix the problems that had, at least since 2009, made the phone dragnet largely useless.

It did not, however, admit the truth about what the 215 phone dragnet really was: just a small part of the far vaster dragnet. The dragnet as a whole aspires to capture a complete record of communications and other metadata indicating relationships (with a focus on locales of concern) that would, in turn, offer the ability to visualize the networks of the world, and not just for terrorism. At first, when the Bush Administration moved the Internet (in 2004) and phone (in 2006) dragnets under FISC authority, NSA ignored FISC’s more stringent rules and instead treated all the data with much more lax EO 12333 rules(see this post for some historical background). When FISC forced the NSA to start following the rules in 2009, however, it meant NSA could no longer do as much with the data collected in the US. So from that point forward, it became even more of a gap-filler than it had been, offering a thinner network map of the US, one the NSA could not subject to as many kinds of analysis. As part of the reforms imposed in 2009, NSA had to start tracking where it got any piece of data and what authority’s rules it had to follow; in response, NSA trained analysts to try to use EO 12333 collected data for their queries, so as to apply the more permissive rules.

That, by itself, makes it clear that EO 12333 and Section 215 (and PRTT) data was significantly redundant. For every international phone call (or at least those to countries of terrorism interest, as the PATRIOT authorities were supposed to be restricted to terrorism and Iran), there might be two or more copies of any given phone call, one collected from a provider domestically, and one collected via a range of means overseas (in fact, the phone dragnet orders make it clear the same providers were also providing international collection not subject to 215).  If you don’t believe me on this point, Mike Lee spelled it out last week. Not only might NSA get additional data with the international call — such as location data — but it could subject that data to more interesting analysis, such as co-location. Thus, once the distinction between EO 12333 and PATRIOT data became formalized in 2009 (years after it should have been) the PATRIOT data served primarily to get a thinner network map of the data they could only collect domestically.

Because the government didn’t want to admit they had a dragnet, they never tried to legislate fixes for it such that it would be more comprehensive in terms of reach or more permissive in terms of analysis.

So that’s a big part of why four beat journalists got that leak in February 2014, at virtually the same time President Obama decided to replace the 215 phone dragnet with something else.

The problem was, the government never admitted the extent of what they wanted to do with the dragnet. It wasn’t just telephony-carried voice calls they wanted to map, it was all communications a person might make from their phone, which increasingly means a smart phone. It wasn’t just call-chaining they wanted to do, it was connection chaining, linking identities, potentially using far more intrusive technological analysis.

Some of that was clear with the initial IC effort at “reform.” Significantly, it didn’t ask for Call Detail Records, understood to include either phone or Internet or both, but instead “records created as a result of communications of an individual or facility.” That language would have permitted the government to get backbone providers to collect all addressing records, regardless if it counted as content. The bill also permitted the use of such tools for all purposes, not just counterterrorism. In effect, this bill would have completed the dragnet, permitting the IC to conduct EO 12333 collection and analysis on records collected in the US, for any “intelligence” purpose.

But there was enough support for real reform, demonstrated most vividly in the votes on Amash-Conyers in July 2013, that whatever got passed had to look like real reform, so that effort was killed.

So we got the USA F-ReDux model, swapping more targeted collection (of communications, but not other kinds of records, which can still be collected in bulk) for the ability to require providers to hand over the data in usable form. This meant the government could get what it wanted, but it might have to work really hard to do so, as the communications provider market is so fragmented.

The GOP recognized, at least in the weeks before the passage of the bill, that this would be the case. I believe that Richard Burr’s claimed “mistake” in claiming there was an Internet dragnet was instead an effort to create legislative intent supporting an Internet dragnet. After that failed, Burr introduced a last minute bill using John Bates’ Dialing, Routing, Addressing, and Signaling language, meaning it would enable the government to bulk collect packet communications off switches again, along with EO 12333 minimization rules. That failed (in part because of Mitch McConnell’s parliamentary screw ups).

But now the IC is left with a law that does what it said it wanted (plus some, as it definitely gets non-telephony “phone” “calls”), rather than one that does what it wanted, which was to re-establish the full dragnet it had in the US at various times in the past.

I would expect they won’t stop trying for the latter, though.

Indeed, I suspect that’s the real reason Marco Rubio has been permitted to keep complaining about the dragnet’s shortcomings.

Intelligence Committees Still Trying to Force Agencies to Follow Reagan’s Rules

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34 years ago Ronald Reagan issued the Executive Order that still governs most of our country’s intelligence activities, EO 12333.

As part of it, the EO required any agency using information concerning US persons to have a set of procedures laying out how it obtains, handles, and disseminates information (see the language of 2.3 below).

Only — as the Privacy and Civil Liberties Oversight Board started pointing out in August 2013 — some agencies have never complied. In February, PCLOB revealed the 4 agencies that are still flouting Reagan’s rules, along with what they have been using:

The Department of Homeland Security’s notoriously shoddy Office of Intelligence and Analysis: Pending issuance of final procedures, I&A is operating pursuant to Interim Intelligence Oversight Procedures, issued jointly by the Under Secretary for Intelligence and Analysis and the Associate General Counsel for Intelligence (April 3, 2008).

United States Coast Guard (USCG)- Intelligence and counterintelligence elements: Pending issuance of final procedures, operating pursuant to Commandant Instruction – COMDINST 3820.12, Coast Guard Intelligence Activities (August 28, 2003).

Department of Treasury Office of Intelligence and Analysis (OIA): Pending issuance of final procedures. While draft guidelines are being reviewed in the interagency approval process, the Office of Intelligence and Analysis conducts intelligence operations pursuant to EO 12333 and statutory responsibilities of the IC element, as advised by supporting legal counsel.

Drug Enforcement Administration, Office of National Security Intelligence (ONSI): Pending issuance of final procedures, operates pursuant to guidance of the Office of Chief Counsel, other guidance, and: Attorney General approved “Guidelines for Disclosure of Grand Jury and Electronic, Wire, and Oral Interception Information Identifying United States Persons” (September 23, 2002); Attorney General approved “Guidelines Regarding Disclosure to the Director of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in the Course of a Criminal Investigation” (September 23, 2002).

Last year’s House Intelligence Committee version of NSA reform (the one I called RuppRoge) would have included language requiring agencies to finish these procedures — mandated 34 years ago — within 6 months. And now, over a year later, Dianne Feinstein’s latest attempt at reform echoed that language.

Which strongly suggests these agencies are still deadbeats.

As I said in February, I’m most concerned about DEA (because DEA is out of control) and, especially, Treasury (because Treasury’s intelligence activities are a black box with little court review). Treasury is making judgements that can blacklist someone financially, but it has thus far refused to institute procedures to protect Americans’ privacy while it does so.

And no one seems to be rushing to require them to do so.

2.3 Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention and dissemination of the following types of information:
(a) Information that is publicly available or collected with the consent of the person concerned;
(b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the FBI or, when significant foreign intelligence is sought, by other authorized agencies of the Intelligence Community, provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons;
(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation;
(d) Information needed to protect the safety of any persons or organizations, including those who are targets, victims or hostages of international terrorist organizations;
(e) Information needed to protect foreign intelligence or counterintelligence sources or methods from unauthorized disclosure. Collection within the United States shall be undertaken by the FBI except that other agencies of the Intelligence Community may also collect such information concerning present or former employees, present or former intelligence agency contractors or their present or former employees, or applicants for any such employment or contracting;
(f) Information concerning persons who are reasonably believed to be potential sources or contacts for the purpose of determining their suitability or credibility;
(g) Information arising out of a lawful personnel, physical or communications security investigation;
(h) Information acquired by overhead reconnaissance not directed at specific United States persons;
(i) Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws; and
(j) Information necessary for administrative purposes.
In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.

Benghazi: A Poster Child for Covert Ops Blowback

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You’ve no doubt heard that, last Friday (a pre-holiday Friday, as some people are already on their way to Thanksgiving), the Benghazi scandal ended with a fizzle.

The House Intelligence Committee released its report on the Benghazi attack, which basically says all the scandal mongering has been wrong, that Susan Rice’s talking points came from the CIA, that no one held up any rescue attempts, and so on and so on. This post will attempt to lay out why that might have happened. The short version, however, is that the report reveals (but does not dwell on) a number of failures on the part of the CIA that should raise real concerns about Syria.

Note that not all Republicans were as polite as the ultimate report. Mike Rogers, Jeff Miller, Jack Conaway, and Peter King released an additional views report, making precisely the points you’d expect them to — though it takes them until the 4th summary bullet to claim that Administration officials “perpetuated an inaccurate story that matched the Administration’s misguided view that the United States was nearing victory over al-Qa’ida.” Democrats released their own report noting that “there was no AQ mastermind” and that “extremists who were already well-armed and well-trained took advantage of regional violence” to launch the attack. Among the Republicans who presumably supported the middle ground were firebrands like Michele Bachmann and Mike Pompeo, as well as rising Chair Devin Nunes (as you’ll see, Nunes was a lot more interested in what the hell CIA was doing in Benghazi than Rogers). The day after the initial release Rogers released a second statement defending — and pointing to the limits of and Additional Views on — his report.

Now consider what this report is and is not.

The report boasts about the 1000s of hours of work and 1000s of pages of intelligence review, as well as 20 committee events, interviews with “senior intelligence officials” and 8 security personnel (whom elsewhere the report calls “the eight surviving U.S. personnel”) who were among the eyewitnesses in Benghazi. But the bulk of the report is sourced to 10 interviews (the 8 security guys, plus the Benghazi and Tripoli CIA Chiefs), and a November 15, 2012 presentation by James Clapper, Mike Morell, Matt Olsen, and Patrick Kennedy. (Here are  the slides from that briefing: part one, part two.) As I’ll show, this means some of the claims in this report are not sourced to the people who directly witnessed the events. And the reports sources almost nothing to David Petraeus, who was CIA Director at the time.

The FBI analyzed the intelligence better than CIA did

One of the best explanations for why this is such a tempered report may be that FBI performed better analysis of the cause of the attack than CIA did. This is somewhat clear from the summary (though buried as the 4th bullet):

There was no protest. The CIA only changed its initial assessment about a protest on September 24, 2012, when closed caption television footage became available on September 18, 2012 (two days after Ambassador Susan Rice spoke), and after the FBI began publishing its interviews with U.S. officials on the ground on September 22, 2012.

That is, one reason Susan Rice’s talking points said what they did is because CIA’s analytical reports still backed the claim there had been a protest outside State’s Temporary Mission Facility.

Moreover, in sustaining its judgment there had been a protest as long as it did, CIA was actually ignoring both a report from Tripoli dated September 14, and the assessment of the Chief of Station in Tripoli, who wrote the following to Mike Morell on September 15.

We lack any ground-truth information that protest actually occurred, specifically in the vicinity of the consulate and leading up to the attack. We therefore judge events unfolded in a much different manner than in Tunis, Cairo, Khartoum, and Sanaa, which appear to the the result of escalating mob violence.

In a statement for the record issued in April 2014, Mike Morell explained that Chiefs of Station “do not/not make analytic calls for the Agency.” But it’s not clear whether Morell explained why CIA appears to have ignored their own officer.

While the report doesn’t dwell on this fact, the implication is that the FBI was more successful at interviewing people on the ground — including CIA officers!! — to rebut a common assumption arising from public reporting. That’s a condemnation of CIA’s analytical process, not to mention a suggestion FBI is better at collecting information from humans than CIA is. But HPSCI doesn’t seem all that worried about these CIA failures in its core missions.

Or maybe CIA failed for some other reason. Read more →

Republicans Refuse to Expand Climate Change Analysis in Intelligence Authorization

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I will have a few posts on the Intelligence Authorization that passed the House Intelligence Committee last week.  (h/t Steven Aftergood)

But before I talked about what made it into the bill, I’d like to highlight what isn’t in it: language requiring the Intelligence Community to consider climate change. The minority views reveal,

One of the bill’s weaknesses is that it does not do enough to enhance analysis of the national security implications of climate change, which the Intelligence Community refers to as environmental indications and warning. Whether by driving competition for scare [sic] resources, by opening the Arctic, or by increasing sea level and storm surge near our naval installations, climate change will have profound, destabilizing effects which need to be understood, anticipated, and accounted for. There may be disagreement about the causes of climate change, but the national security consequences are so significant that they cannot be ignored.

The intelligence community has been delving into this area in recent years (and appear to have renamed climate change “environmental indications and warning”). But thus far, the IC has stopped short of treating climate change as the threat to the US it clearly represents.

It appears Democrats on HPSCI tried to change that. And Republicans refused.

Someday the climate deniers will be held responsible for leaving our country vulnerable. And the Democrats will have left a record of those who should be held responsible.

“Specific Selection Term:” Still Not Convinced

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While I was squawking about how Jim Sensenbrenner issued a manager’s amendment (aka USA Freedumb) purporting to end bulk collection by tying everything to a “specific selection term” without defining what “specific selection term” meant, the House Judiciary Committee released an updated version of the bill defining the term.

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

All the relevant invocations of the term now refer back to this definition.

The language not only doesn’t convince me this bill works, I think it validates my concern about the bill.

That’s because the word “entity” is already too loosely defined. Is this like the definition of the entity that struck us on 9/11 that Presidents have expanded anachronistically? Al Qaeda = AQAP = al-Nusra?

And in just about every case imaginable — an entity’s phone numbers, its bank accounts, its email addresses (though perhaps not domain name and IP) — there is a necessary translation process between the entity and the selector(s) that would be used for a search.

That this translation happens shows up in some of the invocations of “specific selection term” where they say the “specific selection term” will be used as a “basis” for selecting what to actually search on, as with the Pen Register section.

(3) a specific selection term to be used as the basis for selecting the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied; and’

Al Qaeda is not the name of the telephone line (or facility, which itself has been an invention used to conduct bulk collection in the name of a specific selector).

This “basis for” language shows up even with the NSL language.

COUNTERINTELLIGENCE ACCESS TO TELEPHONE TOLL AND TRANSACTIONAL RECORDS.—Section 2709(b)  of title 18, United States Code, is amended in the matter preceding paragraph (1) by striking ‘‘may’’ and inserting ‘‘may, using a specific selection term as the basis for a request’’.

If the bill just required account identifiers or eliminated that “as a basis for” language, it might work. But as it is, that “as a basis for” involves analysis that also involves the possibility of using far different — and far broader — terms for the actual queries. (And it’s not clear — at least not to me — where and whether judges would get to approve this translation process.)

But you don’t have to take my word for it. You can look at a program that relied on “specific selection terms” “as a basis for” unbelievably vast collection.

The phone dragnet program.

In every single phone dragnet order, there’s a section that says records may only be searched if they’ve been associated with particular entities. Here’s the first one:

Screen shot 2014-05-06 at 10.15.18 PM

Read more →

USA Freedumb Act and RuppRoge Both Adopt Intelligence Community Definition of “Bulk Collection”

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

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

This is far better than nothing. Though I have concerns about “entity” and I suspect there will be some pushback here, since not even phone numbers “uniquely describe a person,” much less IPs. (Update: see my post on my concerns about the definition.)

As I noted in this post, USA Freedumb Act (what I’ve renamed the compromised USA Freedom Act) purports to limit bulk collection by tying all collection to specific selection terms. It does this for Section 215.

No order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term that meets the requirements of subsection (b)(2).

It does it for Pen Register/Trap and Trace.

(3) a specific selection term to be used as the basis for selecting the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied;

And it does for all four NSL types, as here with call records under ECPA.

COUNTERINTELLIGENCE ACCESS TO TELEPHONE TOLL AND TRANSACTIONAL RECORDS.—Section 2709(b) of title 18, United States Code, is amended in the matter preceding paragraph (1) by striking ‘‘may’’ and inserting ‘‘may, using a specific selection term as the basis for a request’’.

In fact, that’s the same mechanism RuppRoge (the House Intelligence Committee’s bill) uses to prevent bulk collection — though it limits bulk collection for fewer categories of things.

It does so for electronic communications records.

Notwithstanding any other provision of law, the Federal Government may not acquire under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) records of any electronic communications without the use of specific identifiers or selection terms.

And it does so for sensitive business records.

Notwithstanding any other provision of law, the Federal Government may not acquire under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, education records, or medical records containing information that would identify a person without the use of specific identifiers or selection terms.

And this limitation, both bills proclaim, will prevent bulk collection.

Neither bill defines what they mean by selection term or specific identifier.

Before I consider whether these bills will, in fact, prevent what you and I might consider bulk collection, note what has happened: both of these bills — the crappy Intelligence Committee wish list bill and the allegedly less crappy “reform” bill — have adopted the definition of “bulk collection” used by the notoriously Orwellian Intelligence Community.

This is perhaps best explained in Obama’s President’s Policy Directive on surveillance.

References to signals intelligence collected in “bulk” mean the authorized collection of large quantities of signals intelligence data which, due to technical or operational considerations, is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).

Now, we’re at a huge disadvantage to be able to assess whether this definition of bulk collection bears any resemblance to what ordinary humans might understand bulk collection to mean, because the government is being very disingenuous about what they claim it to mean.

The government often publicly claims selectors are things “like telephone numbers or email addresses,” as they did repeatedly at the last PCLOB hearing.

I can assure you, however, that when they refer to “selectors like email or telephone,” they’re downplaying their use of things like other IDs (phone handset and SIM card IDs, credit card numbers, Internet IDs or even passwords, IP address, and site cookies). And nothing in the definition says selection terms have to have anything to do with actual people (as the evidence they use malware code as a selector would indicate). Plus, I could envision many things — such as “Area Code 202” or “Western Union transfers over $100”  — that would seem to qualify as selection terms.

But we can measure whether limits to selectors or search terms prohibits bulk collection via another means — by looking at the program about which we’ve gotten most details on selector searches: upstream 702 collection.

While we can’t assess how many “innocent” Americans get sucked up in this purportedly non-bulk collection (and I doubt NSA can either!), we do have an idea how many American communications get sucked up who shouldn’t according to the one-end foreign rule on the collection.

Up to 56,000 American communications a year, according to FISC Judge John Bates’ estimate (because the NSA refused to provide him the real numbers).

56,000 American communications that should not, under the law, have been targeted, sucked up using “identifiers” and “selection terms.”

And the government doesn’t consider that bulk collection at all.

That, my friends, is the standard two different Committees in Congress have adapted as well, doing the intelligence community’s bidding, claiming they’ve solved the bulk collection problem.

USA Freedumb Act: The Timing

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A number of people have expressed appreciation for this analysis: if you find this useful, please consider donating to support my work. 

I’m going to do a series of more finished posts on the “compromised” version of Jim Sensenbrenner’s USA Freedom Act, which I hereby dub the USA Freedumb Act (thanks to Fake John Schindler for the suggestion), because so many of the reforms have been gutted. Here’s the initially proposed bill. Here’s my working thread on USA Freedumb.

You will hear a great many respectable people making positive comments about this bill, comments they normally would not make. That’s because of the carefully crafted timing.

As you recall, Mike Rogers originally got the House Parliamentarian to rule that the bill could go through the House Intelligence Committee. And his bill, which I affectionately call “RuppRoge” after Rogers and Dutch Ruppersberger and Scooby Doo’s “Rut Roh” phase, is genuinely shitty. Not only does it put the NSA onsite at providers and extend call records collection beyond terrorism applications, but it also extends such collection beyond call records generally. It is likely an attempt to get the US back into the Internet dragnet business. Shitty bill.

That said, in key ways RuppRoge is very similar to USA Freedumb. Both “limit” bulk collection by limiting collection to selectors (Freedumb does so across the board, including for NSLs, whereas RuppRoge does so for sensitive Business Records, call records, and Internet metadata). Both propose a similarly (IMO) flimsy FISC advocate. Both propose laughably weak FISC transparency measures. Both will include compensation and immunity for providers they don’t currently have.

Aside from three areas where RuppRoge is better — it forces agencies to update their EO 12333 proposals, doesn’t extend the PATRIOT Act, and provides a (not very useful) way to challenge certificates, all the way up to SCOTUS — and three where it is far worse — it develops more Insider Threat measures, it applies for uses beyond terrorism and beyond call records, and doesn’t include new (but now circumscribed) IG reporting  — they’re not all that different. [Correction: USA Freedumb ALSO applies beyond terrorism.]

They’re differently shitty, but both are pretty shitty.

The reason why otherwise respectable people are welcoming the shitty Freedumb bill, however, is that it gives House Judiciary Committee — with a number of real reformers on it — first pass on this bill. It’s a jurisdictional issue. It puts the jurisdiction for surveillance bills back where it belongs, at the Judiciary Committee.

Oh, by the way, one of the more extensive (in terms of text) real changes in Freedumb is it finally includes the House Judiciary Committee, along with the House and Senate Intelligence Committees and Senate Judiciary Committee, among the committees that get certain kinds of reporting. Jurisdiction. (No, I can’t explain to you why it wasn’t included in the first place in 2008, and no, I can’t explain why that detail is not better known.) It gives everyone on HJC a tiny reason to support the bill, because they’ll finally get the reporting they should have gotten in 2008.

The House Intelligence Committee will consider RuppRoge the day after HJC considers Freedumb, Thursday. Which has elicited hasty (overly hasty, IMO) statements of support for Freedumb, as a way to head off the shitty RuppRoge.

Effectively, the National Security State has managed to put two differently shitty bills before Congress and forced reformers to choose. Freedumb is the better (as in less horrible) bill, and it might get better in Committee. But it’s not a runaway call. And the haste has prevented anyone from really figuring out what a central change to both programs means, which limits collection to selectors, which could be defined in very broad terms (and about which — you’ll have to take my word for now — the NSA has lied in public comments).

One more timing issue that I suspect explains the sudden activity surrounding “reform.” The Privacy and Civil Liberties Oversight Board is due to release a report on Section 702 in the next month or so (its comment period for the report closed on April 11). Given the comments of David Medine, James Dempsey, and Patricia Wald at hearings, I strongly suspect PCLOB will recommend reforms — at least — to back door searches, and possibly to upstream collection. Both are items which were gutted as USA Freedom became Freedumb. (In addition, two aspects that would have expanded PCLOB’s authorities — giving it a role in picking the FISC advocate and giving it subpoena power — have been removed.) So in the same way that President Obama rushed to reaffirm NSA’s unified structure, in which the Information Assurance Division and Cybercommand functions are unified with the more general NSA spying function, before his handpicked Review Group recommended they be split, this seems to be a rush to pre-empt any recommendations PCLOB makes.

Ultimately, these two shitty bills are destined to be merged in conference anyway, and reformers seem to have given up 75% of the field before we get started.

Which means just about the only “reform” we’ll get are actually tactical fixes to help the Security State deal with legal and technical issues they’ve been struggling with.

The USA Freedumb Act has become — with DiFi’s Fake FISA Fix and RuppRoge before it — the third fake reform since Edward Snowden’s leaks first got published. Wearing down the reformers seems to be working.

More Clarity and Lack Thereof in the Obama Dragnet Reform

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A Senior Administration Official has clarified two remaining questions I had about the President’s plan to reform the dragnet.

First and very importantly, the conference call left unclear (and most subsequent reporting often didn’t directly address) whether Obama’s plan would apply just to counterterrorism purposes (as the current phone dragnet does) or more broadly (as the House Intelligence Committee RuppRoge proposal does). But SAO is clear: Obama’s plan focuses on specific terrorist groups.

The existing program only allows for queries of numbers associated with specified terrorist groups. Our operational focus is to make sure we preserve that counterterrorism authority in any new legislation. We will continue consulting with Congress on these issues.

This, then, is another way in which the President’s plan is significantly better than the RuppRoge plan — that it sets out to only cover CT, whereas RuppRoge sets out to cover foreign intelligence purposes broadly. Though that “consult with Congress” bit seems to allow the possibility that the White House will move towards broader use for the query system.

I also wondered — particularly given Verizon’s quick statement arguing it should not have to perform analysis for the government — who would do the data integrity analysis required to narrow the query results to those genuinely in contact with a selector, rather than ordering from the same pizza joint. Here, SAO was less clear, in part, punting the issue to Congress and “stakeholders” like Verizon.

Under the President’s proposal, the government would seek court orders compelling the companies to provide technical assistance to ensure the information can be queried, to run the queries, and to give the records back to the government in a usable format and on a timely basis. As additional questions arise with respect to the proposal, we look forward to working through them with Congress and relevant stakeholders to craft legislation that embodies the key attributes of this new approach. [my emphasis]

As a reminder, here’s Verizon General Counsel Randal Milch’s full statement:

This week Congressmen Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD) released the “End Bulk Collection Act of 2014”, which would end bulk collection of data related to electronic communications. The White House also announced that it is proposing an approach to end bulk collection. We applaud these proposals to end Section 215 bulk collection, but feel that it is critical to get the details of this important effort right. So at this early point in the process, we propose this basic principle that should guide the effort: the reformed collection process should not require companies to store data for longer than, or in formats that differ from, what they already do for business purposes. If Verizon receives a valid request for business records, we will respond in a timely way, but companies should not be required to create, analyze or retain records for reasons other than business purposes. [my emphasis]

Verizon — probably the most important provider for this to work (because AT&T already gives the government what it wants and because it’s got the most upside growth) — doesn’t want to be forced to change the format in which they keep their data, and it doesn’t want to do analysis. But this response seems to say it wants to receive sound query results from Verizon, which would require that analysis first.

RuppRoge, as you’ll recall, offers NSA assistance (presumably including Booz NSA contractors working onsite at Verizon) to providers to do this work. As written, the White House proposal does not.

While this is an obscure issue (I may be the only one writing on it!), it has a direct impact on how many completely Americans get sucked into the NSA and subjected to the full range of its analytical tools. And it seems to be a key point of disagreement between the White House and perhaps the most important telecom provider.

The Reason Obama Capitulated on the (Phone) Dragnet

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This will be a bit of a contrary take on what I believe to be the reasons for President Obama’s capitulation on the dragnet, announcing support today for a plan to outsource the first query in the dragnetting process to the telecoms.

It goes back to the claims — rolled out in February — that the NSA has only been getting 20 to 30% of the call data in the US. Those reports were always silent or sketchy on several items:

  • The claims were always silent that they applied only to Section 215, and did not account for the vast amount of data, including US person cell data, collected under EO 12333.
  • The claims were sketchy about the timing of the claim, especially in light of known collection of cell data in 2010 and 2011, showing that at that point NSA had no legal restrictions on accepting such data.
  • The claims were silent about why, in both sworn court declarations and statements to Congress, Administration officials said the collection (sometimes modified by Section 215, often, especially in court declarations, not) was comprehensive.

Here’s what I think lies behind those claims.

We know that as recently as September 1, 2011, the NSA believed it had the legal authority to collect cell location data under Section 215, because they were doing just that. Congress apparently did not respond well to learning, belatedly, that the government was collecting location data in a secret interpretation of a secret interpretation. Nevertheless, it appears the government still believed it had that authority — though was reevaluating it — on January 31, 2012, when Ron Wyden asked James Clapper about it — invoking the “secret law” we know to be Section 215 — during his yearly grilling of Clapper in the Global Threat hearing.

Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.

Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment. [my emphasis]

Unsurprisingly, as far as I know, Clapper never gave Wyden an unclassified answer.

Nevertheless, since then the government has come to believe it cannot accept cell data under Section 215. Perhaps in 2012 as part of the review Clapper said was ongoing, the government decided the Jones decision made their collection of the cell location of every cell phone in the US illegal or at least problematic. Maybe, in one of the 7 Primary orders DOJ is still withholding from 2011 to 2013, the FISC decided Jones made it illegal to accept data that included cell location. It may be that a February 24, 2013 FISC opinion — not a primary order but one that significantly reinterpreted Section 215 — did so. Certainly, by July 19, 2013, when Claire Eagan prohibited it explicitly in a primary order, it became illegal for the government to accept cell location data.

That much is clear, though: until at least 2011, DOJ believed accepting cell location under Section 215 was legal. At least by July 19, 2013, FISC made it clear that would not be legal.

That, I believe, is where the problems accepting cell phone data as part of Section 215 come from (though this doesn’t affect EO 12333 data at all, and NSA surely still gets much of what it wants via EO 12333). Theresa Shea has explicitly said in sworn declarations that the NSA only gets existing business records. As William Ockham and Mindrayge have helped me understand, unless a telecom makes it own daily record of all the calls carried on its network — which we know AT&T does in the Hemisphere program, funded by the White House Drug Czar — then the business ecords the phone company will have are its SS7 routing records. And that’s going to include cell phone records. And those include location data for cell phones.

Now, it may be that the telecoms chose not to scan out this information for the government. It may be that after the program got exposed they chose to do the bare minimum, and the cell restrictions allowed them to limit what they turned over (something similar may have happened with VOIP calls carried across their networks). It may be that Verizon and even AT&T chose to only provide that kind of data via EO 12333 program that, because they are voluntary, get paid at a much higher rate. In any case, I have very little doubt that NSA got the phone records from Verizon, just not via Section 215.

But I’m increasingly sure the conflict between Section 215’s limit to existing business record and the limits imposed on Section 215 via whatever means was the source of the “problem” that led NSA to only get 30% of phone records [via the Section 215 program, which is different than saying they only got 30% of all records from US calls].

And a key feature of both the President’s sketchy program…

  • the companies would be compelled by court order to provide technical assistance to ensure that the records can be queried and that results are transmitted to the government in a usable format and in a timely manner.

And the RuppRoge Fake Fix…

(h)(1)(A) immediately provide the Government with records, whether existing or created in the future, in the format specified by the Government

[snip]

(h)(2) The Government may provide any information, facilities, or assistance necessary to aid an electronic communications service provider in complying with a directive issued pursuant to paragraph (1).

Is that the government gets to dictate what format they get records in here, which they couldn’t do under Section 215. That means, among other things, they can dictate that the telecoms strip out any location data before it gets to NSA, meaning NSA would remain compliant with whatever secret orders have made the collection of cell location in bulk illegal.

Remember, too, that both of these programs will have an alert feature. In spite of getting an alert system to replace the one deemed illegal in 2009 approved on November 8 2012, the government has not yet gotten that alert function working for what are described as technical reasons.

The Court understands that to date NSA has not implemented, and for the duration of this authorization will not as a technical matter be in a position to implement, the automated query process authorized by prior orders of this Court for analytical purposes. Accordingly, this amendment to the Primary Order authorizes the use of this automated query process for development and testing purposes only. No query results from such testing shall be made available for analytic purposes. Use of this automated query process for analytical purposes requires further order of this Court.

It’s possible that, simply doing the alert on exclusively legally authorized data (as opposed to data mixing EO 12333 and FISC data) solves the technical problems that had stymied NSA from rolling out the alert system they have been trying to replace for 5 years. It’s possible that because NSA was getting its comprehensive coverage of US calls via different authorities, it could not comply with the FISC’s legal limits on the alert system. But we know there will be an alert function if either of these bills are passed.

The point is, here, too, outsourcing the initial query process solves a legal-technical problem the government has been struggling with for years.

The Obama plan is an improvement over the status quo (though I do have grave concerns about its applicability in non-terrorist contexts, and my concerns about what the government does with the data of tens to hundreds of thousands of innocent Americans remain).

But don’t be fooled. Obama’s doing this as much because it’s the easiest way to solve legal and technical problems that have long existed because the government chose to apply a law that was entirely inapt to the function they wanted to use it for.

Shockers! A more privacy protective solution also happens to provide the best technical and legal solution to the problem at hand.

Update: Forgot to add that, assuming I’m right, this will be a pressure point that Members of Congress will know about but we won’t get to talk about. That is, a significant subset of Congress will know that unless they do something drastic, like threatening legal penalties or specifically defunding any dragnetting, the Executive will continue to do this one way or another, whether it’s under a hybrid of Section 215 and EO 12333 collection, or under this new program. That is, it will be a selling point to people like Adam Schiff (who advocated taking the call records out of government hands but who has also backed these proposals) that this could bring all US intelligence collection under the oversight of the FISC (it won’t, really, especially without a very strong exclusivity provision that prohibits using other means, which the Administration will refuse because it would make a lot of what it does overseas illegal). This is the same tension that won the support of moderates during the FISA Amendments Act, a hope to resolve real separation of powers concerns with an imperfect law. So long as the Leahy-Sensenbrenner supporters remain firm on their demands for more reforms, we may be able to make this a less imperfect law. But understand that some members of Congress will view passing this law as a way to impose oversight over a practice (the EO 12333 collection of US phone records) that has none.

Update: Verizon has released this telling statement.

This week Congressmen Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD) released the “End Bulk Collection Act of 2014”, which would end bulk collection of data related to electronic communications. The White House also announced that it is proposing an approach to end bulk collection. We applaud these proposals to end Section 215 bulk collection, but feel that it is critical to get the details of this important effort right. So at this early point in the process, we propose this basic principle that should guide the effort: the reformed collection process should not require companies to store data for longer than, or in formats that differ from, what they already do for business purposes. If Verizon receives a valid request for business records, we will respond in a timely way, but companies should not be required to create, analyze or retain records for reasons other than business purposes. [my emphasis]

It’s telling, first of all, because Verizon still doesn’t want to have to fuss with anything but their business records. That says it has been unwilling to do so, in the past, which, in my schema, totally explains why the government couldn’t get Verizon cell records using Section 215. (I have wondered whether this was a newfound complaint, since they got exposed whereas AT&T did not; and even in spite of Randal Milch’s denial, I still do wonder whether the Verizon-Vodaphone split hasn’t freed them of some data compliance obligations.)

Just as importantly, Verizon doesn’t want to analyze any of this data. As I have pointed out, someone is going to have to do high volume number analysis, because otherwise the number of US person records turned over will be inappropriately large but small enough it will be a significant privacy violation to do it at that point (for some things, it requires access to the raw data).

I’m unclear whether the RuppRuge Fake Fix plan of offering assistance (that is, having NSA onsite) fixes this, because NSA could do this analysis at Verizon.

The RuppRoge Fake Dragnet Fix, As Introduced: Does It Include Keith Alexander’s Quid Pro Quo?

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This post is going to be a general review on the contents of the actual records collection part of the RuppRoge Fake Dragnet Fix, which starts on page 15, though I confess I’m particularly interested in what other uses — besides the phone dragnet — it will be put to.

First, note that this bill applies to “electronic communication service providers,” not telecoms. In addition, it uses neither the language of Toll Records from National Security Letters nor Dialing, Addressing, Routing, or Signalling from Pen Registers. Instead, it uses “records created as a result of communications of an individual or facility.” Also remember that FISC has, in the past, interpreted “facility” to mean “entire telecom switch.” This language might permit a lot of things, but I suspect that one of them is another attempt to end run content collection restrictions on Internet metadata — the same problem behind the hospital confrontation and the Internet dragnet shutdown in 2009. I look forward to legal analysis on whether this successfully provides an out.

The facility language is also troubling in association with the foreign power language of the bill (which already is a vast expansion beyond the terrorism-only targeting of the phone dragnet). Because you could have a telecom switch in contact with a suspected agent of a foreign power and still get a great deal of data, much of it on innocent people. The limitation (at b1B) to querying with “specific identifiers or selection terms’ then becomes far less meaningful.

Then add two details from section h, covering the directives the government gives the providers. The government requires the data in the format they want. Section 215 required existing business records, which may have provided providers a way to be obstinate about how they delivered the data (and this may have led to the government’s problems with the cell phone data). But it also says this (in the paragraph providing for compensation I wrote about here):

The Government may provide any information, facilities, or assistance necessary to aid an electronic communications service provider in complying with a directive

Remember, one month ago, Keith Alexander said he’d be willing to trade a phone dragnet fix for what amounts to the ability to partner with industry on cybersecurity. The limits on this bill to electronic communication service providers means it’s not precisely what Alexander wanted (I understand him to want that kind of broad partnership across industries). Still, the endorsement of the government basically going to camp out at a provider makes me wonder if there isn’t some of that. Note, that also may answer my question about when and where NSA would conduct the pizza joint analysis, which would mean there’d still be NSA techs (or contractors) rifling through raw data, but they’d be doing it at the telecoms’ location.

The First Amendment restriction appears more limited than it is in the Section 215 context, though I suspect RuppRoge simply reflects the reality of what NSA is doing now. Both say you can’t investigate an American solely for First Amendment views, but RuppRoge says you can’t get the information for an investigation of an American. Given that RuppRoge eliminates any requirement that this collection be tied to an investigation, it would make it very easy to query a US person selector based on First Amendment issues in the guise of collecting information for another reason. But again, I suspect that’s what the NSA is doing in practice in any case.

Note, too, that RuppRoge borrows the “significant purpose” language from FISA, meaning the government can have a domestic law enforcement goal to getting these records.

RuppRoge then lays out an elaborate certification/directive system that is (as I guessed) modeled on the FISA Amendments Act, but written to be even more Byzantine in the bill. It works the same, though: the Attorney General and the Director of National Intelligence submit broad certifications to the FISC, which reviews whether they comply with the general requirements in the bill. It can also get emergency orders (though for some reason here, as elsewhere, RuppRoge have decided to invent new words from the standard ones), though the language is less about emergency and more about timely acquisition of data. Ultimately, there is judicial review, after the fact, except that like FAA, the review is programmatic, not identifier specific. Significantly, the records the government has to keep only need to comply with selection procedures (which are the new name for targeting procedures) “at the time the directive was issued,” which would seem to eliminate any need to detask over a year if you discover the target isn’t actually in contact with an agent of a foreign power. Also, in the clause permitting the FISC to order data be destroyed if the directives were improper, the description talks about halting production of “records,” but destruction of “information.” That might be more protective (including the destruction of reports based on data) or it might not (requiring only the finished reports be destroyed). Interestingly, this section includes no language affirmatively permitting alert systems, though RuppRoge have made it clear that’s what they intend with the year long certifications. In addition, those year long certifications might be used in conjunction with a year long PRISM order to first search a provider for metadata, then immediately task on content (which would be useful in a cybersecurity context).

The bill also changed the language of minimization procedures, which they call “civil liberties and privacy protection procedures.” Interestingly, the procedures differ from the standard in Section 215, including both a generalized privacy protection and one limiting receipt and dissmenation of “records associated with a specific person.” These might actually be more protective than those in Section 215, or they might not, given that the identifying information (at b1D) excludes things like phone number or email which clearly identify a specific person, but get no protection (this identifying information hearkens back, at least in part, to debates about whether the dragnet minimization procedures complied with requirement for them in law on this point). In other words, it may provide people more protection, but given the NSA’s claim that they can’t get identify from a phone number, they likely don’t consider that data to be protected at all.

I can’t help believing much of this bill was written with cases like Lavabit and the presumed Credo NSL challenges in mind, as it uses language disdainful of legal challenges.

If the judge determines that such petition consists of claims, defenses, or other legal contentions that are not warranted by existing law or consists of a frivolous argument for extending, modifying, or reversing existing law or for establishing new law, the judge shall immediately deny such petition and affirm the directive or any part of the directive that is the subject of the such petition and order the recipient to comply with the directive or any part of it.

This seems to completely rule out any constitutional challenge to this law from providers.  Though the bill even allows for emergency acquisition while FISC is reviewing a certification, suggesting RuppRoge don’t want the FISC to make any through either. So if this bill were to pass, you can be sure it will remain in place indefinitely.