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A Dragnet of emptywheel’s Most Important Posts on Surveillance, 2007 to 2017

December 5, 2017/in Cybersecurity, emptywheel, EO 12333, FISA /by emptywheel

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten this week.

To celebrate, the emptywheel team has been sharing some of our favorite work from the last decade. This is my massive dragnet of surveillance posts.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2007

Whitehouse Reveals Smoking Gun of White House Claiming Not to Be Bound by Any Law

Just days after opening the new digs, I noticed Sheldon Whitehouse entering important details into the Senate record — notably, that John Yoo had pixie dusted EO 12333 to permit George Bush to authorize the Stellar Wind dragnet. In the ten years since, both parties worked to gradually expand spying on Americans under EO 12333, only to have Obama permit the sharing of raw EO 12333 data in its last days in office, completing the years long project of restoring Stellar Wind’s functionalities. This post, from 2016, analyzes a version of the underlying memo permitting the President to change EO 12333 without providing public notice he had done so.

2008

McConnell and Mukasey Tell Half Truths

In the wake of the Protect America Act, I started to track surveillance legislation as it was written, rather than figure out after the fact how the intelligence community snookered us. In this post, I examined the veto threats Mike McConnell and Michael Mukasey issued in response to some Russ Feingold amendments to the FISA Amendments Act and showed that the government intended to use that authority to access Americans’ communication via both what we now call back door searches and reverse targeting. “That is, one of the main purposes is to collect communications in the United States.”

9 years later, we’re still litigating this (though, since then FISC has permitted the NSA to collect entirely domestic communications under the 2014 exception).

2009

FISA + EO 12333 + [redacted] procedures = No Fourth Amendment

The Government Sez: We Don’t Have a Database of All Your Communication

After the FISCR opinion on what we now know to be the Yahoo challenge to Protect American Act first got declassified, I identified several issues that we now have much more visibility on. First, PAA permitted spying on Americans overseas under EO 12333. And it didn’t achieve particularity through the PAA, but instead through what we know to be targeting procedures, including contact chaining. Since then we’ve learned the role of SPCMA in this.

In addition, to avoid problems with back door searches, the government claimed it didn’t have a database of all our communication — a claim that, narrowly parsed might be true, but as to the intent of the question was deeply misleading. That claim is one of the reasons we’ve never had a real legal review of back door searches.

Bush’s Illegal Domestic Surveillance Program and Section 215

On PATRIOTs and JUSTICE: Feingold Aims for Justice

During the 2009 PATRIOT Act reauthorization, I continued to track what the government hated most as a way of understanding what Congress was really authorizing. I understood that Stellar Wind got replaced not just by PAA and FAA, but also by the PATRIOT authorities.

All of which is a very vague way to say we probably ought to be thinking of four programs–Bush’s illegal domestic surveillance program and the PAA/FAA program that replaced it, NSLs, Section 215 orders, and trap and trace devices–as one whole. As the authorities of one program got shut down by exposure or court rulings or internal dissent, it would migrate to another program. That might explain, for example, why Senators who opposed fishing expeditions in 2005 would come to embrace broadened use of Section 215 orders in 2009.

I guessed, for example, that the government was bulk collecting data and mining it to identify targets for surveillance.

We probably know what this is: the bulk collection and data mining of information to select targets under FISA. Feingold introduced a bajillion amendments that would have made data mining impossible, and each time Mike McConnell and Michael Mukasey would invent reasons why Feingold’s amendments would have dire consequences if they passed. And the legal information Feingold refers to is probably the way in which the Administration used EO 12333 and redacted procedures to authorize the use of data mining to select FISA targets.

Sadly, I allowed myself to get distracted by my parallel attempts to understand how the government used Section 215 to obtain TATP precursors. As more and more people confirmed that, I stopped pursuing the PATRIOT Act ties to 702 as aggressively.

2010

Throwing our PATRIOT at Assange

This may be controversial, given everything that has transpired since, but it is often forgotten what measures the US used against Wikileaks in 2010. The funding boycott is one thing (which is what led Wikileaks to embrace Bitcoin, which means it is now in great financial shape). But there’s a lot of reason to believe that the government used PATRIOT authorities to target not just Wikileaks, but its supporters and readers; this was one hint of that in real time.

2011

The March–and April or May–2004 Changes to the Illegal Wiretap Program

When the first iteration of the May 2004 Jack Goldsmith OLC memo first got released, I identified that there were multiple changes made and unpacked what some of them were. The observation that Goldsmith newly limited Stellar Wind to terrorist conversations is one another reporter would claim credit for “scooping” years later (and get the change wrong in the process). We’re now seeing the scope of targeting morph again, to include a range of domestic crimes.

Using Domestic Surveillance to Get Rapists to Spy for America

Something that is still not widely known about 702 and our other dragnets is how they are used to identify potential informants. This post, in which I note Ted Olson’s 2002 defense of using (traditional) FISA to find rapists whom FBI can then coerce to cooperate in investigations was the beginning of my focus on the topic.

2012

FISA Amendments Act: “Targeting” and “Querying” and “Searching” Are Different Things

During the 2012 702 reauthorization fight, Ron Wyden and Mark Udall tried to stop back door searches. They didn’t succeed, but their efforts to do so revealed that the government was doing so. Even back in 2012, Dianne Feinstein was using the same strategy the NSA currently uses — repeating the word “target” over and over — to deny the impact on Americans.

Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

As part of the 2012 702 reauthorization, Sheldon Whitehouse said that requiring warrants to access the US person content collected incidentally would “kill the program.” I took that as confirmation of what Wyden was saying: the government was doing what we now call back door searches.

2013

20 Questions: Mike Rogers’ Vaunted Section 215 Briefings

After the Snowden leaks started, I spent a lot of time tracking bogus claims about oversight. After having pointed out that, contrary to Administration claims, Congress did not have the opportunity to be briefed on the phone dragnet before reauthorizing the PATRIOT Act in 2011, I then noted that in one of the only briefings available to non-HPSCI House members, FBI had lied by saying there had been no abuses of 215.

John Bates’ TWO Wiretapping Warnings: Why the Government Took Its Internet Dragnet Collection Overseas

Among the many posts I wrote on released FISA orders, this is among the most important (and least widely understood). It was a first glimpse into what now clearly appears to be 7 years of FISA violation by the PRTT Internet dragnet. It explains why they government moved much of that dragnet to SPCMA collection. And it laid out how John Bates used FISA clause 1809(a)(2) to force the government to destroy improperly collected data.

Federated Queries and EO 12333 FISC Workaround

In neither NSA nor FBI do the authorities work in isolation. That means you can conduct a query on federated databases and obtain redundant results in which the same data point might be obtained via two different authorities. For example, a call between Michigan and Yemen might be collected via bulk collection off a switch in or near Yemen (or any of the switches between there and the US), as well as in upstream collection from a switch entering the US (and all that’s assuming the American is not targeted). The NSA uses such redundancy to apply the optimal authority to a data point. With metadata, for example, it trained analysts to use SPCMA rather than PATRIOT authorities because they could disseminate it more easily and for more purposes. With content, NSA appears to default to PRISM where available, probably to bury the far more creative collection under EO 12333 for the same data, and also because that data comes in structured form.

Also not widely understood: the NSA can query across metadata types, returning both Internet and phone connection in the same query (which is probably all the more important now given how mobile phones collapse the distinction between telephony and Internet).

This post described how this worked with the metadata dragnets.

The Purpose(s) of the Dragnet, Revisited

The government likes to pretend it uses its dragnet only to find terrorists. But it does far more, as this analysis of some court filings lays out.

2014

The Corporate Store: Where NSA Goes to Shop Your Content and Your Lifestyle

There’s something poorly understood about the metadata dragnets NSA conducts. The contact-chaining isn’t the point. Rather, the contact-chaining serves as a kind of nomination process that puts individuals’ selectors, indefinitely, into the “corporate store,” where your identity can start attracting other related datapoints like a magnet. The contact-chaining is just a way of identifying which people are sufficiently interesting to submit them to that constant, ongoing data collection.

SPCMA: The Other NSA Dragnet Sucking In Americans

I’ve done a lot of work on SPCMA — the authorization that, starting in 2008, permitted the NSA to contact chain on and through Americans with EO 12333 data, which was one key building block to restoring access to EO 12333 analysis on Americans that had been partly ended by the hospital confrontation, and which is where much of the metadata analysis affecting Americans has long happened. This was my first comprehensive post on it.

The August 20, 2008 Correlations Opinion

A big part of both FBI and NSA’s surveillance involves correlating identities — basically, tracking all the known identities a person uses on telephony and the Internet (and financially, though we see fewer details of that), so as to be able to pull up all activities in one profile (what Bill Binney once called “dossiers”). It turns out the FISC opinion authorizing such correlations is among the documents the government still refuses to release under FOIA. Even as I was writing the post Snowden was explaining how it works with XKeyscore.

A Yahoo! Lesson for USA Freedom Act: Mission Creep

This is another post I refer back to constantly. It shows that, between the time Yahoo first discussed the kinds of information they’d have to hand over under PRISM in August 2007 and the time they got directives during their challenge, the kinds of information they were asked for expanded into all four of its business areas. This is concrete proof that it’s not just emails that Yahoo and other PRISM providers turn over — it’s also things like searches, location data, stored documents, photos, and cookies.

FISCR Used an Outdated Version of EO 12333 to Rule Protect America Act Legal

Confession: I have an entire chapter of the start of a book on the Yahoo challenge to PRISM. That’s because so much about it embodied the kind of dodgy practices the government has, at the most important times, used with the FISA Court. In this post, I showed that the documents that the government provided the FISCR hid the fact that the then-current versions of the documents had recently been modified. Using the active documents would have shown that Yahoo’s key argument — that the government could change the rules protecting Americans anytime, in secret — was correct.

2015

Is CISA the Upstream Cyber Certificate NSA Wanted But Didn’t Really Get?

Among the posts I wrote on CISA, I noted that because the main upstream 702 providers have a lot of federal business, they’ll “voluntarily” scan on any known cybersecurity signatures as part of protecting the federal government. Effectively, it gives the government the certificate it wanted, but without any of the FISA oversight or sharing restrictions. The government has repeatedly moved collection to new authorities when FISC proved too watchful of its practices.

The FISA Court’s Uncelebrated Good Points

Many civil libertarians are very critical of the FISC. Not me. In this post I point out that it has policed minimization procedures, conducted real First Amendment reviews, taken notice of magistrate decisions and, in some cases, adopted the highest common denominator, and limited dissemination.

How the Government Uses Location Data from Mobile Apps

Following up on a Ron Wyden breadcrumb, I figured out that the government — under both FISA and criminal law — obtain location data from mobile apps. While the government still has to adhere to the collection standard in any given jurisdiction, obtaining the data gives the government enhanced location data tied to social media, which can implicate associates of targets as well as the target himself.

The NSA (Said It) Ate Its Illegal Domestic Content Homework before Having to Turn It in to John Bates

I’m close to being able to show that even after John Bates reauthorized the Internet metadata dragnet in 2010, it remained out of compliance (meaning NSA was always violating FISA in obtaining Internet metadata from 2002 to 2011, with a brief lapse). That case was significantly bolstered when it became clear NSA hastily replaced the Internet dragnet with obtaining metadata from upstream collection after the October 2011 upstream opinion. NSA hid the evidence of problems on intake from its IG.

FBI Asks for at Least Eight Correlations with a Single NSL

As part of my ongoing effort to catalog the collection and impact of correlations, I showed that the NSL Nick Merrill started fighting in 2004 asked for eight different kinds of correlations before even asking for location data. Ultimately, it’s these correlations as much as any specific call records that the government appears to be obtaining with NSLs.

2016

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

During the lead-up to the USA Freedom Debate, the government leaked stories about receiving a fraction of US phone records, reportedly because of location concerns. The leaks were ridiculously misleading, in part because they ignored that the US got redundant collection of many of exactly the same calls they were looking for from EO 12333 collection. Yet in spite of these leaks, the few figured out that the need to be able to force Verizon and other cell carriers to strip location data was a far bigger reason to pass USAF than anything Snowden had done. This post laid out what was known about location data and the phone dragnet.

While It Is Reauthorizing FISA Amendments Act, Congress Should Reform Section 704

When Congress passed FISA Amendments Act, it made a show of providing protections to Americans overseas. One authority, Section 703, was for spying on people overseas with help of US providers, and another was for spying on Americans overseas without that help. By May 2016, I had spent some time laying out that only the second, which has less FISC oversight, was used. And I was seeing problems with its use in reporting. So I suggested maybe Congress should look into that?

It turns out that at precisely that moment, NSA was wildly scrambling to get a hold on its 704 collection, having had an IG report earlier in the year showing they couldn’t audit it, find it all, or keep it within legal boundaries. This would be the source of the delay in the 702 reauthorization in 2016, which led to the prohibition on about searches.

The Yahoo Scan: On Facilities and FISA

The discussion last year of a scan the government asked Yahoo to do of all of its users was muddled because so few people, even within the privacy community, understand how broadly the NSA has interpreted the term “selector” or “facility” that it can target for collection. The confusion remains to this day, as some in the privacy community claim HPSCI’s use of facility based language in its 702 reauthorization bill reflects new practice. This post attempts to explain what we knew about the terms in 2016 (though the various 702 reauthorization bills have offered some new clarity about the distinctions between the language the government uses).

2017

Ron Wyden’s History of Bogus Excuses for Not Counting 702 US Person Collection

Ron Wyden has been asking for a count of how many Americans get swept up under 702 for years. The IC has been inventing bogus explanations for why they can’t do that for years. This post chronicles that process and explains why the debate is so important.

The Kelihos Pen Register: Codifying an Expansive Definition of DRAS?

When DOJ used its new Rule 41 hacking warrant against the Kelihos botnet this year, most of the attention focused on that first-known usage. But I was at least as interested in the accompanying Pen Register order, which I believe may serve to codify an expansion of the dialing, routing, addressing, and signaling information the government can obtain with a PRTT. A similar codification of an expansion exists in the HJC and Lee-Leahy bills reauthorizing 702.

The Problems with Rosemary Collyer’s Shitty Upstream 702 Opinion

The title speaks for itself. I don’t even consider Rosemary Collyer’s 2017 approval of 702 certificates her worst FISA opinion ever. But it is part of the reason why I consider her the worst FISC judge.

It Is False that Downstream 702 Collection Consists Only of To and From Communications

I pointed out a number of things not raised in a panel on 702, not least that the authorization of EO 12333 sharing this year probably replaces some of the “about” collection function. Most of all, though, I reminded that in spite of what often gets claimed, PRISM is far more than just communications to and from a target.

UNITEDRAKE and Hacking under FISA Orders

A document leaked by Shadow Brokers reveals a bit about how NSA uses hacking on FISA targets. Perhaps most alarmingly, the same tools that conduct such hacks can be used to impersonate a user. While that might be very useful for collection purposes, it also invites very serious abuse that might create a really nasty poisonous tree.

A Better Example of Article III FISA Oversight: Reaz Qadir Khan

In response to Glenn Gerstell’s claims that Article III courts have exercised oversight by approving FISA practices (though the reality on back door searches is not so cut and dry), I point to the case of Reaz Qadir Khan where, as Michael Mosman (who happens to serve on FISC) moved towards providing a CIPA review for surveillance techniques, Khan got a plea deal.

The NSA’s 5-Page Entirely Redacted Definition of Metadata

In 2010, John Bates redefined metadata. That five page entirely redacted definition became codified in 2011. Yet even as Congress moves to reauthorize 702, we don’t know what’s included in that definition (note: location would be included).

FISA and the Space-Time Continuum

This post talks about how NSA uses its various authorities to get around geographical and time restrictions on its spying.

The Senate Intelligence Committee 702 Bill Is a Domestic Spying Bill

This is one of the most important posts on FISA I’ve ever written. It explains how in 2014, to close an intelligence gap, the NSA got an exception to the rule it has to detask from a facility as soon as it identifies Americans using the facility. The government uses it to collect on Tor and, probably VPN, data. Because the government can keep entirely domestic communications that the DIRNSA has deemed evidence of a crime, the exception means that 702 has become a domestic spying authority for use with a broad range of crimes, not to mention anything the Attorney General deems a threat to national security.

“Hype:” How FBI Decided Searching 702 Content Was the Least Intrusive Means

In a response to a rare good faith defense of FBI’s back door searches, I pointed out that the FBI is obliged to consider the least intrusive means of investigation. Yet, even while it admits that accessing content like that obtained via 702 is extremely intrusive, it nevertheless uses the technique routinely at the assessment level.

The Government Uses FISCR Fast Track to Put Down Judges’ Rebellion, Expand Content Collection

August 22, 2016/6 Comments/in FISA /by emptywheel

Since it was first proposed, I’ve been warning (not once but twice!) about the FISCR Fast Track, a part of the USA Freedom Act that would permit the government to immediately ask the FISA Court of Review to review a FISC decision. The idea was sold as a way to get a more senior court to review dodgy FISC decisions. But as I noted, it was also an easy way for the government to use the secretive FISC system to get a circuit level decision that might preempt traditional court decisions they didn’t like (I feared they might use FISCR to invalidate the Second Circuit decision finding the phone dragnet to be unlawful, for example).

Sure enough, that’s how it got used in its first incarnation — not just to confirm that the FISC can operate by different rules than criminal courts, but also to put down a judges rebellion.

As I noted back in 2014, the FISC has long permitted the government to collect Post Cut Through Dialed Digits using FISA pen registers, though it requires the government to minimize anything counted as content after collection. PCTDD are the numbers you dial after connecting a phone call — perhaps to get a particular extension, enter a password, or transfer money. The FBI is not supposed to do this at the criminal level, but can do so under FISA provided it doesn’t use the “content” (like the banking numbers) afterwards. FISC reviewed that issue in 2006 and 2009 (after magistrates in the criminal context deemed PCTDD to be content that was impermissible).

At least year’s semiannual FISC judges’ conference, some judges raised concerns about the FISC practice, deciding they needed to get further briefing on the practice. So when approving a standing Pen Register, the FISC told the government it needed further briefing on the issue.

The government didn’t deal with it for three months until just as they were submitting their next application. At that point, there was not enough time to brief the issue at the FISC level, which gave then presiding judge Thomas Hogan the opportunity to approve the PRTT renewal and kick the PCTDD issue to the FISCR, with an amicus.

This minimized the adversarial input, but put the question where it could carry the weight of a circuit court.

Importantly, when Hogan kicked the issue upstairs, he did not specify that this legal issue applies only to phone PRTTs.

At the FISCR, Mark Zwillinger got appointed as an amicus. He saw the same problem as I did. While the treatment of phone PCTDD is bad but, if properly minimized, not horrible, it becomes horrible once you extend it to the Internet.

The FISCR didn’t much care. They found the collection of content using a PRTT, then promising not to use it except to protect national security (and a few other exceptions to the rule that the government has to ask FISC permission to use this stuff) was cool.

Along the way, the FISCR laid out several other precedents that will have really dangerous implications. One is that content to a provider may not be content.

This is probably the issue that made the bulk PRTT dragnet illegal in the first place (and created problems when the government resumed it in 2010). Now, the problem of collecting content in packets is eliminated!

Along with this, the FISCR extended the definition of “incidental” to apply to a higher standard of evidence.

Screen Shot 2016-08-22 at 6.07.50 PM

Thus, it becomes permissible to collect using a standard that doesn’t require probable cause something that does, so long as it is “minimized,” which doesn’t always mean it isn’t used.

Finally, FISCR certified the redefinition of “minimization” that FISC has long adopted (and which is crucial in some other programs). Collecting content, but then not using it (except for exceptions that are far too broad), is all good.

In other words, FISCR not only approved the narrow application of using calling card data but not bank data and passwords (except to protect national security). But they also approved a bunch of other things that the government is going to turn around and use to resume certain programs that were long ago found problematic.

I don’t even hate to say this anymore. I told privacy people this (including someone involved in this issue personally). I was told I was being unduly worried. This is, frankly, even worse than I expected (and of course it has been released publicly so the FBI can start chipping away at criminal protections too).

Yet another time my concerns have been not only borne out, but proven to be insufficiently cynical.

FISCR Used an Outdated Version of EO 12333 to Rule Protect America Act Legal

October 20, 2014/4 Comments/in EO 12333 /by emptywheel

If the documents relating to Yahoo’s challenge of Protect America Act released last month are accurate reflections of the documents actually submitted to the FISC and FISCR, then the government submitted a misleading document on June 5, 2008 that was central to FISCR’s ultimate ruling.

As I laid out here in 2009, FISCR relied on the the requirement in EO 12333 that the Attorney General determine there is probable cause a wiretapping technique used in the US is directed against a foreign power to judge the Protect America Act met probable cause requirements.

The procedures incorporated through section 2.5 of Executive Order 12333, made applicable to the surveillances through the certifications and directives, serve to allay the probable cause concern.

The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.

44 Fed. Reg. at 59,951 (emphasis supplied). Thus, in order for the government to act upon the certifications, the AG first had to make a determination that probable cause existed to believe that the targeted person is a foreign power or an agent of a foreign power. Moreover, this determination was not made in a vacuum. The AG’s decision was informed by the contents of an application made pursuant to Department of Defense (DOD) regulations. See DOD, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons, DOD 5240.1-R, Proc. 5, Pt. 2.C. (Dec. 1982).

Yahoo didn’t buy this argument. It had a number of problems with it, notably that nothing prevented the government from changing Executive Orders.

While Executive Order 12333 (if not repealed), provides some additional protections, it is still not enough.

[snip]

Thus, to the extent that it is even appropriate to examine the protections in the Executive Order that are not statutorily required, the scales of the reasonableness determination sway but do not tip towards reasonableness.

Yahoo made that argument on May 29, 2008.

Sadly, Yahoo appears not to have noticed the best argument that Courts shouldn’t rely on EO 12333 because the President could always change it: Sheldon Whitehouse’s revelation on December 7, 2007 (right in the middle of this litigation) that OLC had ruled the President could change it in secret and not note the change publicly. Whitehouse strongly suggested that the Executive in fact had changed EO 12333 without notice to accommodate its illegal wiretap program.

But the government appears to have intentionally withheld further evidence about how easily it could change EO 12333 — and in fact had, right in the middle of the litigation.

This is the copy of the Classified Annex to EO 12333 that (at least according to the ODNI release) the government submitted to FISCR in a classified appendix on June 5, 2008 (that is, after Yahoo had already argued that an EO, and the protections it affords, might change). It is a copy of the original Classified Appendix signed by Ed Meese in 1988.

As I have shown, Michael Hayden modified NSA/CSS Policy 1-23 on March 11, 2004, which includes and incorporates EO 12333, the day after the hospital confrontation. The content of the Classified Annex released in 2013 appears to be identical, in its unredacted bits, to the original as released in 1988 (see below for a list of the different things redacted in each version). So the actual content of what the government presented may (or may not be) a faithful representation of the Classified Appendix as it currently existed.

But the version of NSA/CSS Policy 1-23 released last year (starting at page 110) provides this modification history:

This Policy 1-23 supersedes Directive 10-30, dated 20 September 1990, and Change One thereto, dated June 1998. The Associate Director for Policy endorsed an administrative update, effective 27 December 2007 to make minor adjustments to this policy. This 29 May 2009 administrative update includes changes due to the FISA Amendments Act of 2008 and in core training requirements.

That is, Michael Hayden’s March 11, 2004 modification of the Policy changed to the Directive as existed before 2 changes made under Clinton.

Just as importantly, the modification history reflects “an administrative update” making “minor adjustments to this policy” effective December 27, 2007 — a month and a half after this challenge started.

By presenting the original Classified Appendix — to which Hayden had apparently reverted in 2004 — rather than the up-to-date Policy, the government was presenting what they were currently using. But they hid the fact that they had made changes to it right in the middle of this litigation. A fact that would have made it clear that Courts can’t rely on Executive Orders to protect the rights of Americans, especially when they include Classified Annexes hidden within Procedures.

In its language relying on EO 12333, FISCR specifically pointed to DOD 5240.1-R. The Classified Annex to EO 12333 is required under compliance with part of that that complies with the August 27, 2007 PAA compliance.

That is, this Classified Annex is a part of the Russian dolls of interlocking directives and orders that implement EO 12333.

And they were changing, even as this litigation was moving forward.

Only, the government appears to have hidden that information from the FISCR.

Update: Clarified that NSA/CSS Policy 1-23 is what got changed.

Update: Hahaha. The copy of DOD 5240.1 R which the government submitted on December 11, 2007, still bears the cover sheet labeling it as an Annex to NSA/CSS Directive 10-30. Which of course had been superseded in 2004.

Note how they cut off the date to hide that it was 1990?

The Curious Timing of FBI’s Back Door Searches

September 13, 2014/in FISA /by emptywheel

The very first thing I remarked on when I read the Yahoo FISCR opinion when it was first released in 2009 was this passage.

The petitioner’s concern with incidental collections is overblown. It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.9 See, e.g., United States v. Kahn, 415 U.S. 143, 157-58 (1974); United States v. Schwartz, 535 F.2d 160, 164 (2d Cir. 1976). The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26 in original release; 30 in current release)

The government claimed to FISCR that it did not maintain a database of incidentally collected information from non-targeted US persons.

Barring some kind of neat parse, I didn’t buy the claim, not even in 2009.

Since then, we’ve found out that — barring some kind of neat parse — I was absolutely right. In fact, they are doing back door searches on this data, especially at FBI.

What I’m particularly intrigued by, now, is the timing.

FISCR said that in an opinion dated August 22, 2008 — over a month after the July 10, 2008 passage of the FISA Amendments Act. I have not yet found evidence of when the government said that to FISCR. It doesn’t appear in the unredacted part of their Jun 5, 2008 Merits brief (which cites Kahn but not Schwartz; see 49-50), though it might appear behind the redaction on 41. Of note, the April 25, 2008 FISC opinion doesn’t even mention the issue in its incidental collection discussion (starting at 95), though it does discuss amended certifications filed in February 2008.

So I’m guessing the government made that representation at the hearing in June, 2008.

We know, from John Bates’ rationale for authorizing NSA and CIA back door searches, such back door searches were first added to FBI minimization procedures in 2008.

When Bates approved back door searches in his October 3, 2011 opinion, he pointed to FBI’s earlier (and broader) authorities to justify approving it for NSA and CIA. While the mention of FBI is redacted here, at that point it was the only other agency whose minimization procedures had to be approved by FISC, and FBI is the agency that applies for traditional FISA warrants.

[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 definitions 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 aggregate, is less likely to result in the acquisition of nonpublic information regarding non-consenting United States persons.

So since 2008, FBI has had the ability to do back door searches on all the FISA-authorized data they get, including taps targeting US persons.

The FBI Minimization procedures submitted with the case all date to the 1990s, though a 2006 amendment changing how they logged the identities of US persons collected (note, in 2011, John Bates was bitching at FBI for having ignored an order to reissue all its minimization procedures with updates; I can see why he complained).

As described in the Government’s response of June 16, 2006, identities of U.S. persons that have not been logged are often maintained in FBI databases that contain unminimized information. The procedures now simply refer to “the identities” of U.S. persons, acknowledging that the FBI may not have previously logged such identities.

But there’s reason to believe the FBI minimization procedures — and this logging process — was changed in 2008, because a government document submitted in the Basaaly Moalin case — we know Moalin was wiretapped from December 2007 to April 2008, so during precisely the period of the Yahoo challenge, though he was not indicted until much later — referenced two sets of minimization procedures, seeming to reflect a change in minimization during the period of his surveillance (or perhaps during the period of surveillance of Aden Ayro, which is how Moalin is believed to have been identified).

That is, it all seems to have been happening in 2008.

The most charitable guess would be that explicit authorization for back door searches happened with the FAA, so before the FISCR ruling, but after the briefing.

Except in a letter to Russ Feingold during early debates on the FAA, Mike Mukasey and Mike McConnell (the latter of whom was involved in this Yahoo fight) strongly shot down a Feingold amendment that would have required the government to segregate all communications not related to terrorism (and a few other things), and requiring a FISA warrant to access them.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.

Then it launches into a tirade that lacks any specifics:

It would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable.

As Feingold already pointed out, the government has segregated the information they collected under PAA–they’re already doing this. But to justify keeping US person information lumped in with foreign person information, they offer no affirmative reason to do so, but only say it’s too difficult and so they refuse to do it.

Even 5 years ago, the language about the “devastating impact” segregating non-terrorism data might have strongly suggested the entire point of this collection was to provide for back door searches.

But that letter was dated February 5, 2008, before the FISCR challenge had even begun. While not definitive, this seems to strongly suggest, at least, that the government planned — even if it hadn’t amended the FBI minimization procedures yet — to retain a database of incidentally data to search on, before the government told FISCR they did not.

Update: I forgot a very important detail. In a hearing this year, Ron Wyden revealed that NSA’s authority to do back door searches had been closed some time during the Bush Administration, before it was reopened by John “Bates stamp” Bates.

Let me start by talking about the fact that the House bill does not ban warrantless searches for Americans’ emails. And here, particularly, I want to get into this with you, Mr. Ledgett if I might. We’re talking of course about the backdoor search loophole, section 702 of the FISA statute. This allows NSA in effect to look through this giant pile of communications that are collected under 702 and deliberately conduct warrantless searches for the communications of individual Americans. This loophole was closed during the Bush Administration, but it was reopened in 2011, and a few months ago the Director of National Intelligence acknowledged in a letter to me that the searches are ongoing today. [my emphasis]

When I noted that Wyden had said this, I guessed that the government had shut down back door searches in the transition from PAA to FAA, but that seems less likely, having begun to review these Yahoo documents, then that it got shut down in response to the hospital confrontation.

But it shows that more extensive back door searches had been in place before the government implied to the FISCR that they weren’t doing back door searches that they clearly were at least contemplating at that point. I’d really like to understand how the government believes they didn’t lie to the FISCR in that comment (though it wouldn’t be the last time they lied to courts about their databases of Americans).

“Linking” Procedures in the Yahoo Opinion

September 11, 2014/1 Comment/in FISA /by emptywheel

As I mentioned earlier, Yahoo is finally releasing the documents pertaining to its challenge of Protect America Act directives in 2008. The LAT has loaded the Yahoo documents in an easy to access page.

This post will look primarily at the FISCR opinion.

As you’ll recall, this opinion was previously released in 2009 (and in fact, the previous list has names of some of the DOJ people who are redacted with this release unredacted).

The four main new disclosures I noted are:

A discussion of differences between the definition of foreign power in EO 12333 and FISA
Concerns Yahoo raised about how inaccurate the first directives it had received (the Court appears to misunderstood the seriousness of the inaccuracies)
Discussion of a parting shot — this supplemental brief makes it clear the largely redacted discussion pertains to US person data collected overseas; I’ll probably return to this, but it appears Yahoo’s concerns were born out and led to the addition of Sections 703-5 in FISA Amendments Act.
Reference to “linking” procedures which were part of what FISCR used to deem the collection constitutional

That last item — the “linking” procedures — is what was redacted in this post I did when the memo was first released. As I noted then, the procedures were what the FISCR used to meet particularity requirements.

The following passage starts on page 23:

The linking procedures — procedures that show that the [redacted] designated for surveillance are linked to persons reasonably believed to be overseas and otherwise appropriate targets — involve the application of “foreign intelligence factors” These factors are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. As attested by affidavits of the Director of the National Security Agency (NSA), the government identifies [redacted] surveillance for national security purposes on information indicating that, for instance, [big redaction] Although the FAA itself does not mandate a showing of particularity, see 50 U.S.C. § 1805(b). This pre-surveillance procedure strikes us as analogous to and in conformity with the particularly showing contemplated by Sealed Case.

I’ll need to look more closely to find this brief — if it was released. But I suspect that this shows more closely how the metadata dragnets and the content collection are linked. They collect the metadata to mine for “proof” of meaningful connection, then use that to unlock the content. That’s not surprising — it’s what I had been speculating since days after Risen first broke this — but it’s important to flesh out. Because, of course, all this not-a-search metadata really is, because it leads directly to the content.

As I noted in my post in 2009, Russ Feingold released a statement with the release of the opinion, basically arguing that Yahoo could have won this if they had had access to the procedures related to the program (Mark Zwillinger made the same point when he testified to PCLOB).

The decision placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access. The courtupheld the constitutionality of the PAA, as applied, without the benefit of an effective adversarial process. The court concluded that “[t]he record supports the government. Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case.” However, the company did not have access to all relevant information, including problems related to the implementation of the PAA. Senator Feingold, who has repeatedly raised concerns about the implementation of the PAA and its successor, the FISA Amendments Act (“FAA”), in classified communications with the Director of National Intelligence and the Attorney General, has stated that the court’s analysis would have been fundamentally altered had the company had access to this information and been able to bring it before the court.

There’s no reason to believe the “linking” procedures are what Feingold was referring to. After all, there still are details of the minimization and targeting procedures that raise big constitutional issues. Plus, we know foreign collection has always been a big concern of Feingold’s. But I am wondering whether part of the problem was that their contact chaining was not very good, and therefore they were collecting people who really weren’t linked to the targets in question.

Which might explain why Yahoo was experiencing so many dud directives in the first months of its operation.

Why Doesn’t FISCR Have a Public Docket?

June 9, 2014/7 Comments/in FISA /by emptywheel

In the government’s arguments justifying the constitutionality of Section 702 the government has made fairly breathtaking claims that there is a foreign intelligence to the Constitution’s warrant requirement.

Which has gotten me wondering about the status of the FISA Court of Review ruling that Yahoo had to comply with Protect America Act orders. Back in July, we were promised a newly declassified review of that order, which makes a fairy sustained argument that PAA was legal under a special needs exception to the Fourth Amendment. But we haven’t gotten that order.

Which made me realize something: Although, months ago, the FISA Court established a public docket and even recently gave it a snazzy face lift, the FISA Court of Review does not yet have a docket.

So that Yahoo order declassification could be bubbling along and we’d never know about it, even in spite of the government’s claimed commitment to declassify the order.

If FISC can have a docket, why can’t FISCR?

Using Domestic Surveillance to Get Rapists to Spy for America

June 7, 2011/in FISA, Informants, PATRIOT, Terrorism /by emptywheel

The reauthorization of the PATRIOT Act focused a lot of attention on the fact that the Administration is interpreting the phrase “relevant to an authorized [intelligence] investigation” in Section 215 of the PATRIOT Act very broadly. As Ron Wyden and Mark Udall made clear, the government claims that phrase gives it the authority to collect business records on completely innocent people who have no claimed tie to terrorism.

There’s something that’s been haunting me since the PATRIOT reauthorization about how the government has defined intelligence investigations in the past. It has to do with Ted Olson’s claim–during the In Re Sealed Case appeal in 2002–that the government ought to be able to use FISA to investigate potential crimes so as to use the threat of prosecuting those crimes to recruit spies (and, I’d suggest, informants). When Olson made that claim, even Laurence Silberman (!) was skeptical. Silberman tried to think of a crime that could have no imaginable application in an intelligence investigation, and ultimately came up with rape. But Olson argued the threat of a rape prosecution might help the Feds convince a rapist to “help us.”

OLSON: And it seems to me, if anything, it illustrates the position that we’re taking about here. That, Judge Silberman, makes it clear that to the extent a FISA-approved surveillance uncovers information that’s totally unrelated — let’s say, that a person who is under surveillance has also engaged in some illegal conduct, cheating —

JUDGE LEAVY: Income tax.

SOLICITOR GENERAL OLSON: Income tax. What we keep going back to is practically all of this information might in some ways relate to the planning of a terrorist act or facilitation of it.

JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that.

JUDGE SILBERMAN: It’s a stretch.

SOLICITOR GENERAL OLSON: It is a stretch but it’s not impossible either. [my emphasis]

Olson went on to claim that only personal revenge in the guise of an intelligence investigation should be foreclosed as an improper use of FISA.

JUDGE SILBERMAN: In your brief you suggested only that the face of the application indicated something was wrong. I don’t quite understand what would be wrong though. The face of the application, suppose the face of the application indicated a desire to use foreign surveillance to determine strictly a domestic crime, that would be — but then you wouldn’t have an agent, you wouldn’t have an agency. You must have some substantive requirement here if significant purpose is given its literal meaning, you must have some logic to the interpretation of that section which falls outside of the interpretation of an agent of a foreign power.

SOLICITOR GENERAL OLSON: And I suppose if the application itself revealed that there was a purpose to take personal advantage of someone who might be the subject of an investigation, to blackmail that person, or if that person had a domestic relationship and that person was seeing another person’s spouse or something like that, if that would be the test on the face of things. In other words, I’m suggesting that the standard is relatively high for the very reason that it’s difficult for the judiciary to evaluate and secondguess what a high level executive branch person attempting to fight terrorism is attempting to do.

This is not just Ted Olson speaking extemporaneously. The government’s appeal actually makes its plan to use FISA-collected information to recruit spies (and informants), in the name of an intelligence investigation, explicit:

Although “foreign intelligence information” must be relevant or necessary to “protect” against the specified threats, the statutory definition does not limit how the government may use the information to achieve that protection. In other words, the definition does not discriminate between protection through diplomatic, economic, military, or law enforcement efforts, other than to require that those efforts be “lawful.” 50 U.S.C. 1806(a), 1825(a). Thus, for example, where information is relevant or necessary to recruit a foreign spy or terrorist as a double agent, that information is “foreign intelligence information” if the recruitment effort will “protect against” espionage or terrorism.

[snip]

Whether the government intends to prosecute a foreign spy or recruit him as a double agent (or use the threat of the former to accomplish the latter), the investigation will often be long range, involve the interrelation of various sources and types of information, and present unusual difficulties because of the special training and support available to foreign enemies of this country. [my emphasis]

Ultimately, the FISA Court of Review rejected this broad claim (though without discounting the possibility of using FISA to get dirt to use to recruit spies and informants explicitly).

The government claims that even prosecutions of non-foreign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the government’s objective is to stop espionage or terrorism by putting an agent of a foreign power in prison. That interpretation transgresses the original FISA. It will be recalled that Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its “true purpose” was to gain non-foreign intelligence information–such as evidence of ordinary crimes or scandals. See supra at p.14. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority. 50 U.S.C. 1801(h)(3).) It can be argued, however, that by providing that an application is to be granted if the government has only a “significant purpose” of gaining foreign intelligence information, the Patriot Act allows the government to have a primary objective of prosecuting an agent for a non-foreign intelligence crime. Yet we think that would be an anomalous reading of the amendment. For we see not the slightest indication that Congress meant to give that power to the Executive Branch. Accordingly, the manifestation of such a purpose, it seems to us, would continue to disqualify an application. That is not to deny that ordinary crimes might be inextricably intertwined with foreign intelligence crimes. For example, if a group of international terrorists were to engage in bank robberies in order to finance the manufacture of a bomb, evidence of the bank robbery should be treated just as evidence of the terrorist act itself. But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes. [my emphasis]

Understand what this exchange meant in 2002: the government claimed that it could use FISA to collect information on people that they could then use to persuade those people to become spies or informants. That all happened in the context of broadened grand jury information sharing under PATRIOT Act. Indeed, the FISA application in question was submitted at almost exactly the same time as OLC wrote a still-secret opinion interpreting an “implied exception” to limits on grand jury information sharing for intelligence purposes.

[OLC] has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002);

It seems possible the government was hoping to take grand jury allegations, use FISA to investigate them, and in turn use what they found to recruit spies and informants. The one limit–and it is a significant one–is that the government would first have to make a plausible argument that the potential target in question was an agent of a foreign power.

Of course, at precisely that same time–and apparently unbeknownst to Ted Olson (I have emailed Olson on this point but he did not respond)–the government was using new data mining and network analysis approaches to establish claimed ties between Americans and al Qaeda. And the bureaucracy Royce Lamberth and James Baker had implemented to prevent such claimed ties to form the basis for FISA applications–an OIPR chaperone for all FISA applications–was rejected by the FISCR in this case. So while FISA required the government show a tie between a target and a foreign power, there was little to prevent the government from using its nifty new data mining to establish that claim. And remember, NSA twice explicitly chose not to use available means to protect Americans’ privacy as it developed these data mining programs; it made sure it’d find stuff on Americans.

(Interesting trivia? Olson used the phrase “lawful” to describe the limits on what FISA allows the President to do at least 6 times in that hearing.)

Moreover, while the FISCR ruling held (sort of–but probably not strongly enough that John Yoo couldn’t find a way around it) that the government couldn’t use FISA to gather dirt to turn people into spies and informants, it never actually argued the government couldn’t use other surveillance tools, including the PATRIOT Act, to dig up dirt to use to recruit spies and informants, at least not in this FISCR ruling. The limit on using FISA for such a purpose came from court precedents like Keith, not any apparent squeamishness about using government surveillance to dig up dirt to recruit spies.

The Senate Intelligence Committee presumably had what was supposed to be a meeting on the government’s very broad interpretation of data it considers “relevant to an authorized [intelligence] investigation” today. We know that one of the concerns is that the government claims it can use Section 215 to collect information on people with no ties to terrorism. Ted Olson’s claim we could use FISA to recruit informants make me wonder how they’re using the information they collect on people with no ties to terrorism. After all, the ability to collect bank records on someone–or geolocation–might provide an interesting evidence with which to embarrass them into becoming an informant.