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The Five Year Parade of Internet Dragnet Violations

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Monday’s document release provided mounting evidence that when the hospital confrontation “heroes” moved the Internet dragnet they had deemed to be illegal under the auspices of the FISA Court, neither they, nor Judge Colleen Kollar-Kotelly believed it was legally sound. But they traded those truly crummy legal claims to bring the program under court oversight. Since then, boosters of the scheme have claimed the oversight serves to eliminate violations quickly.

We already knew that’s not true.

Still, Monday’s release — particularly this John Bates opinion written around July 2010 — makes that even more clear. After Kollar-Kotelly sacrificed judicial wisdom for court oversight on July 14, 2004, the government continued breaking the court’s rules for five years, until Reggie Walton shut the program down, sometime in fall 2009.

First, let’s lay out the dates. I’ve done a rough timeline below, based on the known start-date (July 14, 2004) and the rough end point with John Bates’ opinion (around July 2010). The bulk of the other dates impose the timeline laid out in the Bates opinion on a few known dates taken from the phone dragnet production (plus, the geniuses at ODNI not only left the date of the June 22 Internet dragnet order in its URL (CLEANED101.%20Order%20and%20Supplemental%20Order%20%286-22-09%29-sealed.pdf), but it’s the same document as the June 22 phone dragnet order, which has different redactions but most dates intact — see the three bolded entries below).

As you’ll see, there were two known violations in the Internet dragnet before the before the discoveries of the problems started in earnest in 2009. That’s not that big a deal — there was at least one phone violation before 2009 too, except in the case of the Internet dragnet, NSA overcollected from the very start.

The examination of the Internet dragnet started in response to the first phone dragnet disclosures in January 2009 (with the change in Administration, it should be remembered). Reggie Walton told NSA to see if the Internet dragnet had the same compliance problems as the phone dragnet did.

From that point until June 2009, the discoveries seemed to work in parallel (the NSA was working on End-to-End reports for both programs at the same time, and they share some common databases). But with the discovery that both dragnet programs were sharing information freely with other agencies, it became clear the violations were much worse on the Internet dragnet side, with reports going out with US person information that did not even remotely comply with minimization requirements.

Then sometime after that — and after Walton issued what would be the last Internet dragnet order for a year (that was sometime after June 22, 2009) — NSA discovered they had been receiving “metadata” far outside the permitted scope, which surely included content. Note this may have happened around the same time as NSA reported that one phone provider had overproduced (including international data in addition to domestic, I think) on July 9, 2009, so I wonder if they were only then reviewing returned data on receipt.

In any case, it was around that time that NSA “discovered” the Internet metadata program had never ever been in compliance. From Bates:

Notwithstanding this and many similar prior representations [made on the summer 2009 reauthorization] there in fact had been systemic overcollection since [redacted]. On [redacted] the government provided written notice of yet another form of substantial non-compliance discovered by NSA OGC on [redacted] this time involving the acquisition of information beyond the [redacted] authorized categories.

[snip]

This overcollection, which had occurred continuously since the initial authorization in [redacted] included the acquisition of [long redaction]. [my emphasis]

Never.

If my math is correct, the application the NSA withdrew was submitted not long after September 20. There are briefings for the Intelligence Committees that likely alerted them to the scale of the Internet dragnet problems around that time. But as of October 5, some of the most assertive House Judiciary members seem to have had no idea about the problems with the Internet dragnet. If they found out about it with the notice to Congress on December 17, 2009, it explains why the PATRIOT Act reauthorization process stalled.

There’s one more very important thing in this timeline. You’ll see below that almost at exactly the same time as NSA “realized” it had never complied with program requirements, it started a pilot project that would be rolled out on January 3, 2011, analyzing metadata with no special protections for US persons or limit for use only on counterterrorism.

Specifically, these new procedures permit contact chaining, and other analysis, from and through any selector, irrespective of nationality or location, in order to follow or discover valid foreign intelligence targets. (Formerly analysts were required to determine whether or not selectors were associated with US communicants.)

[snip]

In the second place it enables large-scale graph analysis on very large sets of communications metadata vwithout having to check foreignness of every node or address in the graph. Analysts in S2 have used this to great benefit over the past year and a half under a pilot program. [emphasis original]

In other words, at the moment they were coming clean with the FISC that they had never ever complied with the PR/TT orders, they were beginning the pilot project that would move metadata collection overseas, under EO 12333. (This document goes back to this NYT story on social network analysis.)

So much for the notion that putting all this under court oversight would accomplish a damn thing. All it did was degrade the law and provide NSA cover until they developed the technology to do all this overseas.

Update, 11/22: More dates added to timeline.

Update, 11/26: More dates added to timeline. Read more →

The John Bates Internet Metadata Opinion Probably Dates to July 2010

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I’ve seen a lot of outright errors in the reporting on the John Bates opinion authorizing the government to restart the Internet metadata program released on Monday.

Bates’ opinion was likely written in July 2010.

We know it had to have been written before October 3, 2011, because Bates’ opinion of that date cites this one (page 17 footnote 15). It was almost certainly written before May 2, 2011, because that’s when the government “clarified” its upstream production included US person content, which was likely a response to this opinion.

According to Claire Eagan, it was written in 2010; this quotation from Eagan’s opinion cites page 73 of this opinion (though she leaves out one word — “analytic” — from this quotation).

As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ [analytic] tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”

It had to have been written after June 21, 2010 and probably dates to between June 21 and July 23, 2010, because page 92 footnote 78 cites Holder v. HLP (which was released on June 21), but uses a “WL” citation; by July 23 the “S. Ct.” citation was available. (h/t to Document Exploitation for this last observation).

So: it had to have been written between June 21, 2010 and October 3, 2011, but was almost certainly written sometime in the July 2010 timeframe.

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

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A couple of us were joking on Twitter the other day that the June-July 2010 John Bates opinion released the other day — in which he yelled mightily about illegal collection that had persisted for 5 years but then rubber stamped the government’s plan to vastly expand metadata collection — ought to lead to the term “Bates stamp” to take on new meaning, a rubber stamp by a FISC judge.

(I’m working on a separate post that shows the timing of all this, but for the moment, you’ll have to trust me that Bates’ opinion was written some time around July 2010.)

Bates did, however, sort of kind of rein in the government’s actions, spending the last 17 pages of his opinion explaining how 50 USC 1809(a) prohibited him from allowing the government to use metadata it had collected for years in violation of the court’s rules.

Basically, Bates argued that the government would be guilty of illegal wiretaps under FISA if it used the illegally collected information. I believe the illegal collection involved taking metadata that counted as content and/or didn’t count as addressing information.

The government, in a submission and a reply to him, argued that was not the case. It made several arguments: first, it claimed their collection wasn’t “intentional” and therefore distributing it would not count as an illegal wiretap.

Insofar as the government contends that Section 1809(a)(2) reaches only “intentional violations of the Court’s orders,” or “willful” as opposed to intentional conduct, see Memorandum of Law at 74 n. 37, the Court disagrees. The plain language of the statute requires proof that the person in question “intentionally” disclosed or used information “knowing or with reason to know” the information was obtained in the manner described.

It also argued that the Pen Register statute allowed the Court to override the wiretap prohibitions.

The government argues that the opening phrase of 50 U.S.C. § 1842(a) vests the Court with authority to enter an order rendering Section 1809(a)(2) inapplicable. See Memorandum of Law at 74 n. 37.

It argued that because the Court could limit what the government could do with the data, it could also expand it.

The government next contends that because the Court has, in its prior orders, regulated access to and use of previously accumulated metadata, it follows that the Court may not authorize NSA to access and use all previously collected information, including information that was acquired outside the scope of prior authorizations, so long as the information “is within the scope of the [PR/TT] statute and the Constitution.” Memorandum of Law at 73.

It then argued that the Court’s own rules allowed it to authorize access to the data.

The government further contends that Rule 10(c) of the Rules of this Court gives the Court discretion to authorize access to and use of the overcollected information. Memorandum of Law at 73.

Finally, Article II argued that Article III had inherent authority to ignore the law. (!)

Finally, insofar as the government suggests that the Court has an inherent authority to permit the use and disclosure of all unauthorized collection without regard to Section 1809, see Memorandum of Law at 73-74 & n.37, the Court again must disagree.

Read more →

Colleen Kollar-Kotelly Ate the Serpent’s Fruit of Judicial “Oversight” in Lieu of Law

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Sometime next week, I will have a post on what known documents the government chose not to release in yesterday’s dump — a significant chunk, for example, almost certainly show how the dragnet programs are tied inextricably to the content programs.

But for now, we’re getting increased clarity on the phone and Internet dragnet program.

One thing that seems clear is that there is no opinion authorizing the phone dragnet, as I suggested two months ago.

What passes as the government’s application for the phone dragnet — it is described as “Production to Congress of a May 23, 2006 Government Memorandum of Law,” but for a number of reasons, I have my doubts we’ve gotten even precisely that, which I’ll lay out at a future time — is dated May 23, 2006, the day before Malcom Howard approved the application. That doesn’t leave time for Howard to have written a fulsome opinion on the practice (and indeed, the timing makes me wonder whether this was approved because of urgent legal deadlines facing the telecoms). [Update: And when John Bates cites the “precedent” in his June-July 2010 opinion (75) he doesn’t cite an opinion.]

And the application makes it clear it relies on Kollar-Kotelly’s opinion as its legal justification. The first instance of doing so, tellingly, makes it clear FISC approval is designed primarily to give legal sanction for the program, not to assess whether the program actually is legal.

The Application is completely consistent with this Court’s ground breaking and innovative decision [redacted] in [redacted]. In that case, the Court authorized the installation and use of pen registers and trap and trace devices to collect bulk e-mail metadata [redacted]. The Court found that all of “the information likely to be obtained” from such collection is “relevant to an ongoing investigation to protect against international terrorism.” 50 U.S.C. § 1842(c)(2); [redacted] 25-54. The Court explained that “the bulk collection of meta data–i.e., the collection of both a huge volume and high percentage of unrelated communications–is necessary to identify the much smaller number of [redacted] communications.” Id. at 49. Moreover, as was the case in [redacted], this Application promotes both the twin goals of FISA: facilitating the foreign-intelligence collection needed to protect American lives while at the same time providing judicial oversight to safeguard American freedoms.

Let’s pause and reflect on this point for a moment.

We can now say with some certainty that a great many dragnet applications stem from the Kollar-Kotelly opinion. That’s because we have almost certainly identified the two opinions named in Claire Eagan’s opinion from earlier this year.

This Court has previously examined the issue of relevance for bulk collections. See [6 lines redacted]

While those involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) (“[R]elevant to an ongoing investigation to protect against international terrorism …. “). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”

An earlier reference in Eagan quotes the Kollar-Kotelly opinion directly (and the page number lines up), and while I have not found the citation from this passage in the Bates opinion also released yesterday yet (I think it may appear in the redactions on page 76), that opinion discusses relevance at length and was clearly written between 2009 and 2011. [Update: the quote appears to be a rough transcription of Bates’ cherry picked quote from Kollar-Kotelly that appears on page 9. Update 2: The quote comes from page 73, which is Bates’ own transcription of his citation of K-K, but Eagan missed the word “analytic” before tools.]

[Update] Another thing suggests the Bates opinion dates to 2010. The language in the December 2009 notice to Congress suggests ongoing problems, and includes the Internet metadata problems, whereas the February 2011 notice includes far more redacted discussion (yet still treats an active Internet metadata program.

In addition, we know from the geolocation materials that the government didn’t get an opinion dedicated to that application before they started.

DOJ advised in February 2010 that obtaining the data for the described testing purposes was permissible based upon the current language of the Court’s BR FISA order requiring the production of’ all ca11 detail records.’ It is our understanding that DOJ also orally advised the FISC, via its staff, that we had obtained a limited set of test data sampling of cellular mobility data (cell site location information) pursuant to the Court-authorized program and that we were exploring the possibility of acquiring such mobility data under the BR FISA program in the near future based upon the authority currently granted by the Court.

There are 2004, 2006, 2008, 2010, and 2013 opinions that relate to Section 215 (and, I suspect, other activities as well; updated with typo fixed). But at the very least, Kollar-Kotelly’s opinion authorized gathering substantially all the phone and (by 2010) Internet metadata in the country, as well as (starting in 2010) some subset of geolocation data).

Kollar-Kotelly, then, is the primary analysis the government has always relied on to construct maps charting the relationships of every American.

Which is why I find it so troubling that the application here is unashamed that the point of the opinion is not to assess the legality of a practice, but instead to “provid[e] judicial oversight to safeguard American freedoms.” (Side note: these opinions argue these practices are “necessary” to protect American lives, but the phone dragnet has never once done so, as far as we know, and the government has since purportedly canceled the Internet dragnet program because it was unnecessary, though that is almost certainly a lie.)

Guaranteeing the government doesn’t violate the Constitution was supposed to safeguard American freedoms. But with the Kollar-Kotelly opinion and all that follows from it, impotent oversight has came to substitute for defending the Constitution.

John Bates Intervened in the Phone Dragnet Problems

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

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

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

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

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

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

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

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

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

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

False Prophet of Adequate Congressional Oversight Finds Congressional Ignorance Unnewsworthy

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I was going to leave this post, in which Ben Wittes complains that WaPo published details of NSA’s collection of millions of contact lists, which he didn’t find at all newsworthy, well enough alone.

Here the public interest in disclosure seems, at least to me, remarkably weak, after all. At the policy level, the entire story amounts to nothing more than the proposition that NSA is under 12333 collecting large volumes of live-stream data, storing it, and protecting U.S. person material within that data only through minimization requirements. We knew all of that already.

So what does this story reveal that we didn’t already know? A specific collection method that people can now frustrate and a particular interest in collecting contact lists. In other words, here the Post does not seem to be balancing the costs of the disclosure against its benefit to the public interest. The costs, rather, are the benefit to the public interest. Put another way, I can’t quite shake the feeling that my old newspaper is now blowing secrets merely for the sake of doing so.

But his response to this post from Conor Freidersdorf convinced me to do a post. He’s written about 40 tweets in response, asserting things like, “there is no good argument that this sort of activity is illegal under current law.” In all that tweeting, he did not, however, respond to what I thought was a pretty decent argument this sort of activity might be illegal under current law.

Two years ago, then FISA Court Judge John Bates considered the legality of content collected off US switches. He found the practice, as had been conducted for over 3 years, violated both Section 702 of FISA Amendments Act and the Fourth Amendment because it intentionally collected US person data (NSA’s apologists usually obscure this last point, but Bates’ opinion was quite clear that this was intentional collection). To make the collection “reasonable” under a special needs exception, he required NSA to follow more stringent minimization procedures than already required under Section 702, effectively labeling some of the data and prohibiting the NSA from using US person data except in limited circumstances.

That collection differs from the contact list collection revealed by the WaPo in several ways:

The contact lists are collected overseas

WaPo’s sources are quite clear: this collection would be illegal in the US. They get around that restriction by collecting the data overseas.

The NSA has not been authorized by Congress or the special intelligence court that oversees foreign surveillance to collect contact lists in bulk, and senior intelligence officials said it would be illegal to do so from facilities in the United States. The agency avoids the restrictions in the Foreign Intelligence Surveillance Act by intercepting contact lists from access points “all over the world,” one official said, speaking on the condition of anonymity to discuss the classified program. “None of those are on U.S. territory.”

It’s not clear whether the contact list counts as metadata or content

The collection reviewed by Bates was clearly content: Internet messages collected because a selector appeared in the body of the message. With the contact lists, I could see the government claiming it was just metadata, and therefore (incorrectly, in my opinion but not in current law) subject to a much lower standard of protection. Except (as noted) WaPo’s sources admit this would be illegal if collected in the US, probably because NSA is collecting content as well.

Each day, the presentation said, the NSA collects contacts from an estimated 500,000 buddy lists on live-chat services as well as from the inbox displays of Web-based e-mail accounts.

[snip]

Contact lists stored online provide the NSA with far richer sources of data than call records alone. Address books commonly include not only names and e-mail addresses, but also telephone numbers, street addresses, and business and family information. Inbox listings of e-mail accounts stored in the “cloud” sometimes contain content, such as the first few lines of a message.

This data is subjected to a much lower standard of minimization than that imposed by Bates

In his flurry of tweets, Ben keeps repeating that the US person contact lists collected under this program are protected by minimization, so it’s all good. But minimization for Executive Order 12333 collection is not as rigorous as minimization under Section 702, and certainly doesn’t include the special handling that Bates required to make the Section 702 upstream collection compliant with the Fourth Amendment. So even for those who believe minimization on bulk collection gets you to compliance with the Fourth Amendment, it’s unclear whether the minimization provided for this collection does, and given Bates’ ruling, there’s reason to believe it does not.

Neither Congress nor the FISA Court oversee this collection closely

This is the part of the WaPo story that a guy like Ben who wails NAKED! every time someone questions whether there’s adequate oversight ought to have noted. A single source claimed this program includes checks and balances. But as WaPo lays out, these aren’t checks and balances like those protecting other US person collections.

A senior U.S. intelligence official said the privacy of Americans is protected, despite mass collection, because “we have checks and balances built into our tools.”

NSA analysts, he said, may not search within the contacts database or distribute information from it unless they can “make the case that something in there is a valid foreign intelligence target in and of itself.”

In this program, the NSA is obliged to make that case only to itself or others in the executive branch. With few exceptions, intelligence operations overseas fall solely within the president’s legal purview. The Foreign Intelligence Surveillance Act, enacted in 1978, imposes restrictions only on electronic surveillance that targets Americans or takes place on U.S. territory.

[snip]

Sen. Dianne Feinstein, the California Democrat who chairs the Senate Intelligence Committee, said in August that the committee has less information about, and conducts less oversight of, intelligence gathering that relies solely on presidential authority. Read more →

About that May 2007 FISC Opinion

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Update, March 11: Docket 07-449 is not an Internet dragnet one (those all have a PR/TT preface). This is one of the bulk collection programs approved in early 2007.

The other day, I pointed to a passage from the October 3, 2011 John Bates opinion,

The Court has effectively concluded that certain communications containing a reference to a targeted selector are reasonably likely to contain foreign intelligence information, including communications between non-target accounts that contain the name of the targeted facility in the body of the message. See Docket No. 07-449, May 31, 2007 Primary Order at 12 (finding probable cause to believe that certain “about” communications were “themselves being sent and/or received by one of the targeted foreign powers”). Insofar as the discrete, wholly domestic “about” communications at issue here are communications between non-target accounts that contain the name of the targeted facility, the same conclusion applies to them.

And suggested the May 31, 2007 order in question was probably the Primary Order for the Internet Dragnet program.

Given the description, it likely was a primary order for the purportedly defunct Internet dragnet program; if so, it would represent the application of an opinion about metadata to collection including content.

Timewise, that might make sense. Colleen Kollar-Kotelly signed the first Pen Register/Trap & Trace order for Internet metadata on July 14, 2004. Accounting for some margin of error in reapplications and the 5 days earlier 90-day authorizations would be each year, a May 31 order 3 years after that first order is not far off what you’d expect.

But the description of the opinion — which pertains to messages identified because they contain information “about” a target — seems to refer to content, not metadata (though packets would blur this issue).

The Court has effectively concluded that certain communications containing a reference to a targeted selector are reasonably likely to contain foreign intelligence information, including communications between non-target accounts that contain the name of the targeted facility in the body of the message. See Docket No. 07-449, May 31, 2007 Primary Order at 12 (finding probable cause to believe that certain “about” communications were “themselves being sent and/or received by one of the targeted foreign powers”).

Moreover, this order would have been issued during the period when two FISC orders allowed the collection of content. And those orders — as the 2009 Draft NSA IG Report explains — formalized the claim that a targeted “facility” could consist of a switch carrying general traffic rather than a specific phone number or IP address.

Ultimately, DoJ decided to pursue a FISC order for content collection wherein the traditional FISA definition of a “facility” as a specific telephone number or email address was changed to encompass the gateway or cable head that foreign targets use for communications. Read more →

The NSA Hides Its Domestic Collection by Refusing to Count It

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In his speech at Cato last week Ron Wyden made it clear that when he asked Keith Alexander and James Clapper in advance of the reauthorization of the FISA Amendments Act for the number of Americans’ communications that had been collected under Section 702, he meant to elicit the estimates John Bates made in his October 3, 2011 opinion.

I spent much of 2012 asking the NSA and the DNI [Director of National Intelligence] whether anyone had done an estimate of how many American communications had been collected under section 702. The ODNI and the NSA insisted that such an estimate was impossible, but what they failed to tell the public was that the Fisa court had already done one.

Bates had the NSA conduct a manual review of a statistical subsection of 50,440 transactions collected via upstream collection between January and June 2011. (Note, it appears Bates may have had to raise dire warnings with “top DOJ officials” on July 8, 2011 before he got such a review.) He then annualized the results and estimated that the NSA was collecting up to 56,000 communications of Americans each year, made up of 46,000 communications consisting entirely of an American’s communication (Single Communication Transactions), and 10,000 in which their communication got included in a Multiple Communication Transaction swept up in the search.

Given what we’ve learned about the 2011 confrontation, Wyden’s serial requests for this information take on added importance for two reasons.

Administration never disclosed its domestic collection to the most Members of Congress

First, because the Administration very pointedly did not inform the bulk of Congress that NSA had been — and had been allowed to continue — collecting purely domestic communications from telecom switches. Neither the February 9, 2012 statement to the Senate Intelligence Committee nor the May 4, 2012 notice to Congress provided any indication that this violation involved collecting domestic communications (the December 8, 2011 statement to the House Intelligence Committee did, and both Committees, presumably as well as the Judiciary Committees, received the opinion itself, which makes that clear). It’s also not clear whether any of these notices included any mention of the SCTs, those single communication transactions involving just a US person communication.

Read more →

The 2011 Disclosures

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This post simply breaks out the dates in the October 3, 2011 John Bates opinion, adding the claims the government made at the time. It provides a somewhat better idea of the circumstances surrounding the manual review of upstream collection NSA did.

Read more →

“Folksy and Firm” Flummoxes Fancy NYT Journalists

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Less than 10 days ago, Keith Alexander admitted to Patrick Leahy that the single solitary case in which the phone dragnet proved critical was that of Basaaly Moalin. But that was not an attack. Rather, it was an effort to send money to al-Shabaab (and others) because they were protecting Somalia against a US backed Ethiopian invasion.

And yet two crack “journalists” used this as the lead of their “interview” with Alexander with not a hint of pushback.

The director of the National Security Agency, Gen. Keith B. Alexander, said in an interview that to prevent terrorist attacks he saw no effective alternative to the N.S.A.’s bulk collection of telephone and other electronic metadata from Americans.

The phone dragnet has never — never! — been more than one tool in preventing any attack, and yet Alexander gets to imply, unchallenged, it is critical going forward.

Instead of actual reporting, we get platitudes like this.

General Alexander was by turns folksy and firm in the interview. But he was unapologetic about the agency’s strict culture of secrecy and unabashed in describing its importance to defending the nation.

That culture is embodied by two installations that greet visitors to Fort Meade. One is a wall to honor N.S.A. personnel killed on overseas missions. The other is a tribute to the Enigma program, the code-breaking success that helped speed the end of World War II and led to the creation of the N.S.A. The intelligence community kept Enigma secret for three decades.

The only thing remotely resembling a challenge came when these “reporters” note Alexander’s claim to have willingly shut down the Internet metadata program (which the NSA has largely kept secret, in spite of having been disclosed) ignores NSA claims it (like the phone dragnet now, purportedly) was critical.

But he said the agency had not told its story well. As an example, he said, the agency itself killed a program in 2011 that collected the metadata of about 1 percent of all of the e-mails sent in the United States. “We terminated it,” he said. “It was not operationally relevant to what we needed.”

However, until it was killed, the N.S.A. had repeatedly defended that program as vital in reports to Congress.

The rest consists of more of the same kind of rebuttal by redefinition. The claim that NSA shares data with Israel is wrong, this “journalism” says, because “the probability of American content in the shared data was extremely small” (which of course says nothing about the way it would violate minimization procedures in any case). The claim that NSA launched 200 offensive cyberattacks in 2011 is wrong because many of those were actually other “electronic missions.” Besides, Alexander claims,

“I see no reason to use offensive tools unless you’re defending the country or in a state of war, or you want to achieve some really important thing for the good of the nation and others,” he said. [my link, for shits and giggles]

We are not now nor were we in 2006 when StuxNet started “in a state of war” with Iran, so how credible are any of these claims?

Mostly though, this appears to be an attempt, four months after highlighting the importance of PRISM against cyberattacks but then going utterly silent about that function, to reassert the importance of NSA’s hacking to prevent hacking.

Even there, though, Alexander presented dubious claims that got no challenge.

General Alexander said that confronting what he called the two biggest threats facing the United States — terrorism and cyberattacks — would require the application of expanded computer monitoring. In both cases, he said, he was open to much of that work being done by private industry, which he said could be more efficient than government.

In fact, he said, a direct government role in filtering Internet traffic into the United States, in an effort to stop destructive attacks on Wall Street, American banks and the theft of intellectual property, would be inefficient and ineffective.

“I think it leads people to the wrong conclusion, that we’re reading their e-mails and trying to listen to their phone calls,” he said.

The NSA already is filtering Internet traffic into the United States (and also searching on and reading incidentally collected Internet traffic without a warrant) under Section 702 certificates supporting counterterrorism, counterproliferation and … cyberattacks.

But nosiree, Alexander can’t envision doing what he’s already doing — and had been doing in a way that violated statute and the Fourth Amendment for three years already by 2011 — in the name of protecting the banksters who’ve gutted our economy. Only all of that — including the retention of US person data in the name of protecting property (presumably including intellectual property) is baked right into the NSA’s minimization procedures.

And that bit about violating Section 702 and the Fourth Amendment for over three years with a practice that was also baked into NSA’s minimization procedures? Here’s the claim the NYT’s crack journalists allow Alexander to end this charade with.

“We followed the law, we follow our policies, we self-report, we identify problems, we fix them,” he said. “And I think we do a great job, and we do, I think, more to protect people’s civil liberties and privacy than they’ll ever know.”