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12333 Info Sharing Working Thread

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Last week, the government released the long-awaited procedures permitting the intelligence community to share raw 12333 collected information more widely. This will be a working thread on those procedures.

(1) The procedures bill themselves as procedures to govern the sharing of information under 2.3 of EO 12333, which basically permits the IC to share info so IC elements can see if they need the info.

(1) The procedures exclude NSA SIGINT activities, which I think has the effect of making sure those don’t operate with these limits.

(2) The procedures also exclude activities undertaken under NSCID-5 and NSCID-6, which I think has the effect of excluding joint NSA-CIA activities that already take place.

(2) Note the reference to PPD-28 (which reappears) refers to PPD-28 “and implementing procedures and any successor documents.” That suggests there may be a lot more about PPD-28 we’re not seeing, and that this Administration anticipates it will be changed.

(2-3) This section lays out what it claims to be limits on any info sharing agreements, which is basically a requirement that any entity getting NSA data must adopt procedures akin to those NSA adopts.

(3) Even if NSA tells another element of intelligence that would interest them, the element must make a formal request to get it. I suspect this is done so NSA can pretend it is not affirmatively giving away entire swaths of data.

(4) There’s an odd definition of “reasonableness,” which is the standard NSA always says it uses to comply with the Fourth Amendment. It includes these measures of impact on US persons:

e. (U) The likelihood that sensitive U.S. person information (USPI) will be found in the information and, if known, the amount of such information;

f. (U) The potential for substantial harm, embarrassment, inconvenience, or unfairness to U.S. persons if the USPI is improperly used or disclosed;

That is, the measure is not if information is improperly access, but if accessing it might cause the US person substantial embarrassment of inconvenience.

(4) After the long section on reasonableness, the procedures then say NSA doesn’t actually have to check the data set to make sure its measures of impact are valid.

(5) Those receiving NSA data are prohibited from tampering in politics.

Not engage in any intelligence activity authorized by these Procedures, including disseminations to the White House, for the purpose of affecting the political process in the United States.

(5) Sharing agreements are covered by memoranda of agreement that last 3 years. Given the discussion of whether or not this enables Trump, I think it worth noting that any data sharing can be expanded before Trump’s first term ends. Conversely, that implies that any president can impose new restrictions during a term.

(5) There’s a squabble resolution process that goes to Secretary of Defense, then DNI for military units, and DNI for non-military.

(5) The procedures provide 3 different options for data possession that can count as sharing (one that was laid out in the 5240.01 revision released last year): the data remains in NSA’s systems, it goes to the IC cloud, it goes to the receiving entity’s systems. The roll-out of the IC cloud in recent years was a technical precondition for this expanded sharing.

(6) Before the procedures talk about what the entities have to do with audits (that does come later), it has this to say about protecting audit records.

Auditing records. Protect auditing records against unauthorized access, modification, or deletion, and retain these records for a sufficient period of time to verify compliance with the requirements of these Procedures.

Did they need to include this because audit records have been altered in the past?

(6) I’ve written a lot about the times (especially at FBI) where elements choose not to mark the source for their data, which allows for a lot of negative outcomes (such as hiding evidence source from defendants). So this passage makes me really furious.

Marking o(files. Use reasonable measures to identify and mark or tag raw SIGINT files reasonably believed or known to contain USPI. Marking and tagging will occur regardless of the format or location of the information, or the method of storing it. When appropriate and reasonably possible, files and documents containing USPI will also be marked individually. In the case of certain electronic databases, if it is not reasonably possible to mark individual files containing USPI, a banner may be used before access informing users that they may encounter USPI.

There should be an initial requirement that all shared data retains its NSA SIGAD information, marking it both as NSA data and tracking how it was collected. But this only asks that recipients mark data if it includes USPI, and even there allows the requirement to slide.

(7) The section prohibiting the selection of domestic (that is, between entirely US persons) is worthwhile. Except they don’t tell you until later that metadata analysis (which for the purposes of this document is limited to contact chaining) is exempt from this. So this means law enforcement can use entirely NSA-collected raw data to do network analysis of entirely American communications.

(7) There are actually 3 different kinds of searches included in these procedures, which should get people to reconsider how they refer to “upstream” searches: searches on the identity of a communicant, searches mentioning a communicant, and searches on content (which comes a few pages later).  Also note, it all relies on a new definition of “foreign” communications to mean what “international” used to, meaning they can access communications of a US person via that US person identifier if it happens internationally.

(7) The procedures let IC elements use US person identifiers for “selection” (a term designed to avoid “search”) if that person is already approved for content spying with a FISA order, but not for metadata spying. Note they list 703 among the authorities in question, though at least until recently, they never used 703.

(7) One of the key prongs (of three) under which an element can spy on an American w/AG approval is redacted. I’ll come back to this.

(8) Some of the reasons why the IC can spy on Americans are redacted. Given the items that appear on page 12, at least one of these is almost certainly a counterintelligence focus. The other may be counternarcotics or transnational crime.

(9) After having laid out how you can spy on Americans via their identifiers, the procedures now lay out how they might be swept up via their content. Remember that this may mean “content of headers,” and likely includes selectors for things like encryption keys. The selection term based collection permits the selection of US person communications (possibly, given the redaction, even between two US based US persons) if there will be significant FI or CI value.

(9) Minor point but the procedures explicitly use the phrase “defeat,” which is a concept often redacted.

(9) There are no explicit protections for Attorney Client communications here, just a “call NSD for guidelines” rule, which is alarming.

(9) I’ll come back to F, which is basically SPCMA on steroids, and probably a significant part of these sharing goals anyway. Effectively, this institutes SPCMA analysis, across IC elements, without some of the protections that have long been in place.

(10) Note, there seems to be flux in what metadata can be included as metadata (though there are reasonable definitions for metadata later). Also, ZERO of the oversight involves DOD.

(10) Retention is 5 years, so consistent with Section 309, which it cites.

(10) Note the reference to “data related to” communications to, from, or about US persons.

(10) The IC can only keep domestic communications in case of threat of death or bodily harm (but remember they include bodily harm to corporate persons in that).

(11) This is confusing. Right after saying it has to destroy domestic comms, it says that it can keep them if there is significant CI or FI value, and or anomalies showing a vulnerability to US comm service. This is sort of consistent with upstream 702, but not quite.

(11) The procedures treat government employee comes differently based on who they’re talking to, which is a tribute to how much this is about counterintelligence.

(11) The immediate notice of destruction incorporates a lesson they learned during 702, when such notices took time and US person stuff remained in the system in NSA even if destroyed at FBI.

(12) Note US person info can be disseminated for a non-exclusive list, though the list is quite extensive in any case.

(12) Info can be disseminated if someone is the target of hostile intelligence activities of a foreign power. This might make it easier for DHS to disseminate warnings.

(13) The auditing function described does not include an explicit exception for techs, whereas it would at NSA.

(14) Note the distinction between queries and retrievals. Added to selection, and we’ve got another set of not entirely sensical terms that are new.

(14) Note that throughout, the oversight mechanisms avoid any body that is statutorily independent, including both PCLOB and the IGs. So it should not be taken as credible.

(15) The first paragraph of VIII makes it clear they’re parallel constructing this. No notice to defendants basically makes this unconstitutional, but the ID doesn’t care.

(16) Throughout, there are designees allowed that will make it a cinch to put some of these sharing relationships in a box where no one will find them.

(16) The departures from procedures section doesn’t include any deadlines for how long until notifications have to go out. Again, another easily exploited loophole.

(17) They added language to Obama’s standard “does not create any rights” language to include “nor do they place any limitation on otherwise lawful investigative and litigative prerogatives of the United States.” Which sounds like even more parallel construction.

(17) As we’ll see, “contact chaining” is defined to mean two hops. But because it isn’t tied to anything, and because the definition of foreign power includes 3 degrees of separate for most things (engages in, aids or abets, or conspires), it really amounts to about 5 degrees of separation from any baddie.

(18) The definitions of metadata here are interesting (and different from the SPCMA one). First, on telephony metadata, they don’t comment about location. The Internet metadata description is more descriptive than any I’ve seen, including routers passed during delivery. But there’s so much that’s not addressed in the definition, because it pretends to be exclusively about email.

(19) The definition of contact chaining does not include, as USAF chaining does, connection chaining. This reinforces my belief that the latter primarily serves a complimentary function, that of IDing all associated identities known by a provider. The contact chaining definition only permits two hops, but there’s no limitation on target, which permits at least 5 and really an infinite number of hops.

(19) If just one recipient in a threat is not a USP, it does not count as domestic. Also, circumstances where someone doesn’t have a REOP, like Twitter, does not count as domestic either.

(19) There used to be two distinct definitions: International, which was one end US, and foreign, which is both-ends foreign. I’m not sure why they’ve changed it such that any end foreign counts as foreign, but that seems problematic.

(20) Public info includes that which is available on request, or by purchase, meaning this may includes a lot of brokered lists and the like (including advertising information).

(20) Definition of “selection” includes “cable address,” which seems like it could be very broadly interpreted.

(21) The definition of “selection term” is very useful (basically a boolean selection term), and should have been made public before.

(22) The USPI definition is notable both for its inclusions and exclusions. “Unique biometric records” is included, which seems like could be very broadly interpreted (and makes clear they’re throwing all the biometrics they have into this pot of analysis. There’s no specific mention of online identities (“names” and “unique titles” may incorporate that, but should be stated publicly). There’s also no mention of cookies or other session identifiers (which is especially notable given the silence about location data).

(22) The overhead reconnaissance language means they can use drone footage against us, so long as they don’t target it at us. Though some DirtBox uses would be problematic.

 

I Con the Record Rolls Out Its 3-Page Intel Collection Efficacy Process

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Screen Shot 2016-07-30 at 2.50.04 PMLast year, PCLOB suggested that the intelligence community formalize its process to assess the efficacy of intelligence collection. While it made the recommendation as part of its 702 report, the recommendation itself came against the background of Congress and the IC having decided that the phone dragnet wasn’t really worth the cost and privacy exposure.

I Con the Record just released a report on the processes the IC now uses to conduct such efficacy assessments; the report itself is actually dated February 8. Here’s what the report addressing this complex subject includes:

Page 1: Formal cover

Page 2: [PAGE INTENTIONALLY LEFT BLANK]

Page 3:

  • Introductory paragraph
  • Two paragraphs laying out PCLOB recommendation
  • Two paragraphs discussing “Assessing Efficacy and Value”
    • One paragraph describing that one must make both quantitative and qualitative judgements
    • One paragraph introducing the “comprehensive processes”

Page 4:

  • Four paragraphs on the National Intelligence Priorities Framework (see this document for a summary of what the NIPF looked like in 2013), citing both PPD-28’s mandate to consider privacy implications and ODNI’s updated ICD 204 which includes this paragraph (but no mention of the FBI and military/covert operations exceptions to this mandate):

PPD-28 specifically requires consideration of the value of Signals Intelligence activities and the risks of potential exposure of those activities to U.S. foreign policy, defense, commercial, economic, and financial interests, international agreements, privacy concerns, and the protection of intelligence sources and methods.

  • The first of two paragraphs on the IC’s “Refined Process on SIGINT Targeting” describing how requiring heads of policy departments to sign off on priorities ensures that senior policymakers provide “comprehensive” oversight of “potentially sensitive” SIGINT collection

Page 5:

  • The second paragraph on the IC’s “Refined Process on SIGINT Targeting” describing how, if the senior policymakers decide the risks of collection on a target outweighs its value, they will terminate the collection
  • Four paragraphs on “Assessing IC Reporting,” describing how ODNI performs a quantitative (counting reports, including those that get into important reports like the President’s Daily Briefing) and qualitative review of resources dedicated to priorities and production from those units

Page 6 (a half page):

  • Two paragraphs on other processes
    • One paragraph noting that individual elements conduct their own assessment
    • One paragraph describing the Intelligence Community Inspector General’s own assessments, noting especially that USA Freedom Act required he complete an assessment of the information acquired under FISA’s Business Records provision
  • One paragraph describing a “Path Forward” that might include using prediction markets to identify the most valuable intelligence, but noting such an approach is in a “nascent stage”

Overall, there are just three pages of meat, none of which is terrifically impressive.The reference to the USAF report on assessing the value of intelligence coming from a program underscores that such reporting requirements don’t exist for all other programs. And nowhere in the discussion is any consideration whether the same information might be acquired via less intrusive means (as has happened with the phone dragnet), something that would seem central to balancing trade-offs.

In short, it’s not so much a real process for assessing the value of intelligence against the risks of it, rather than a declaration that policymakers (you know? The people who want to expand their budgets?) will decide.

 

“Information Is No Longer Being Collected in Bulk [Pursuant to 21 U.S.C. § 876]”

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Given the details in yesterday’s USAT story on DEA’s dragnet, I wanted to re-examine the DEA declaration revealing details of the phone dragnet in the Shantia Hassanshahi case which I wrote about here. As I noted then, there’s a footnote modifying the claim that the database in question “was suspended in September 2013” that is entirely redacted. And the declaration only states that “information is no longer being collected in bulk pursuant to 21 U.S.C. §876,” not that it is no longer being collected.

According to the USAT, DEA moved this collection to more targeted subpoenas that may number in the thousands.

The DEA asked the Justice Department to restart the surveillance program in December 2013. It withdrew that request when agents came up with a new solution. Every day, the agency assembles a list of the telephone numbers its agents suspect may be tied to drug trafficking. Each day, it sends electronic subpoenas — sometimes listing more than a thousand numbers — to telephone companies seeking logs of international telephone calls linked to those numbers, two official familiar with the program said.

The data collection that results is more targeted but slower and more expensive. Agents said it takes a day or more to pull together communication profiles that used to take minutes.

We should expect this move occurred either in the second half of 2013 (after the dragnet first got shut down) or the first half of 2014 (after DEA backed off its request to restart the draget). And we should expect these numbers to show in the telecoms transparency reports.

But they don’t — or don’t appear to.

Both AT&T and Verizon reported their 2013 numbers for the entire year. They both broke out their 2014 numbers semiannually. (Verizon; AT&T 2013; AT&T 2014; h/t Matt Cagle, who first got me looking at these numbers)

Here are the numbers for all subpoenas (see correction below):

Screen Shot 2015-04-08 at 1.50.32 PM

Both companies show a decrease in overall criminal subpoenas from 2013 to 2014. And while Verizon shows a continued decline, AT&T’s subpoena numbers went back up in the second half of 2014, but still lower than half of 2013’s numbers.

In any case, both companies report at least 15% fewer subpoenas in 2014, at a time when — according to what USAT got told — they should have been getting thousands of extra subpoenas a day.

It is possible what we’re seeing is just the decreased utility of phone records. As the USAT notes, criminals are increasingly using messaging platforms that use the Internet rather than telecoms.

But it’s possible the DEA’s dragnet went somewhere else entirely.

Though USAT doesn’t mention it (comparing instead with the Section 215 dragnet, which is not a comparable program because it, like Hemisphere as far as we know, focuses solely on domestic records), the NSA has an even bigger phone and Internet dragnet that collects on drug targets. Indeed, President Obama included “transnational criminal threats” among the uses permitted for data collected in bulk under PPD-28, which he issued January 17, 2014. So literally weeks after DEA supposedly moved to subpoena-based collection in December 2013, the President reiterated support for using NSA (or, indeed, any part of the Intelligence Community) bulk collections to pursue transnational crime, of which drug cartels are the most threatening.

There is no technical reason to need to collect this data in the US. Indeed, given the value of location data, the government is better off collecting it overseas to avoid coverage under US v. Jones. Moreover, as absolutely crummy as DOJ is about disclosing these kinds of subpoenas, it has disclosed them, whereas it continues to refuse to disclose any collection under EO 12333.

Perhaps it is the case that DEA really replaced its dragnet with targeted collection. Or perhaps it simply moved it under a new shell, EO 12333 collection, where it will remain better hidden.

Update: I realized I had used criminal subpoenas for AT&T, but not for Verizon (which doesn’t break out criminal and civil). Moreover, it’s not clear whether the telecoms would consider these criminal or civil subpoenas.

I also realized one other possible explanation why these don’t show up in the numbers. USAT reports that DEA uses subpoenas including thousands of numbers, whereas they used to use a subpoena to get all the records. That is, the telecoms may count each of these subpoenas as just one subpoena, regardless of whether it obtains 200 million or 1,000 numbers. Which would have truly horrifying implications for “Transparency.”

Update: There would be limitations to relying on the NSA’s database (though DEA could create its own for countries of particular interest). First, DEA could not search for US person identifiers without Attorney General approval (though under SPMCA, it could conduct chaining it knew to include US persons). Also, as of August 2014, at least, NSA wasn’t sharing raw EO 12333 data with other agencies, per this Charlie Savage story.

The N.S.A. is also permitted to search the 12333 storehouse using keywords likely to bring up Americans’ messages. Such searches must have “foreign intelligence” purposes, so analysts cannot hunt for ordinary criminal activity.

For now, the N.S.A. does not share raw 12333 intercepts with other agencies, like the F.B.I. or the C.I.A., to search for their own purposes. But the administration is drafting new internal guidelines that could permit such sharing, officials said.

That said, it’s clear that NSA shares metadata under ICREACH with other agencies, explicitly including DEA.

Working Thread: New and Improved Dragnettery

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I Con the Record has released a series of changes to the dragnet to fulfill President Obama’s directive to improve privacy. This will be a working thread.

Seeking Independent Advice

This section lays out all the independent advice the IC has sought in the last 18 months, from the advice largely ignored (President’s Review Group) to narrowly scoped (the National Academies of Science report that assessed whether the IC could get the same features of the current phone dragnet, without assessing whether it was effective) to the largely inane (Congressional hearings).

It doesn’t really address whether it’s using this advice effectively. There seems to be an underlying efficacy question still missing.

Privacy and Civil Liberties Protections

This appears to be the meat of the report.

It starts by linking to the interim report that basically exempted the most privacy intrusive parts of NSA’s dragnet — bulk collection and research — from its privacy protections.

It then links all the agencies’ efforts to implement

These will take closer review. Note that DEA’s report only covers its Office of National Security Intelligence, which seems to suggest there’s a lot more — a whole lot more — intelligence that falls outside this area. And it’s really perfunctory. Compare the storage section with that of DHS, which at least has standards it has to meet for the security of the data it keeps (even if we know DHS is so technologically backwards they can’t really meet this).

FBI

I can already see some problems with FBI’s entry (which conveniently cannot be cut and paste). For example, it assumes any minimized data it receives adheres to certain standards. “Unless it possesses specific information to the contrary, the FBI will presume that any evaluated or minimized section 702 information it receives from other IC elements meets these standards.” The recently liberated 702 report showed that this left a bit of gap in compliance.

Then there’s the exception that eats the rule, in which prohibits FBI from keeping any unevaluated non-US person data for longer than 5 years “unless retention of comparable information concerning U.S. persons would be permitted under section 2.3 of Executive Order 12333.” FBI’s interpretation of exceptions here are very broad.

FBI’s queries language is not tied to law enforcement investigations. That likely means that it retains the ability to do queries for assessments, which require no evidence of wrong-doing.

When FBI talks about oversight, it describes “periodic auditing.” Given that the 702 IG report showed that FBI had basically blown off statutory requirements for auditing and reports for 2 of 3 years reviewed, I’d like to see something more concrete than this…

Incidentally, note that FBI just signed this on February 2. It appears they were the last (or among the last) agencies to finish these (probably after deadline, too, as this was supposed to be rolled out on the 1 year anniversary of Obama’s speech).

NSA

There are some interesting exceptions in the NSA report, including the ginormous one for bulk collection. I’m particularly interested in a few of these:

Screen Shot 2015-02-03 at 10.49.14 AM

 

The economic advantage language appears to get weaker and weaker in here. It now states that identifying trade violations does not constitute a competitive advantage. It also permits the collection of private trade secrets for national security purposes — which is what China would say it is doing when it steals our secrets.

I think the retention language has gotten slightly broader, now. The encrypted communication exception has been rewritten to include anything not processed into intelligible form.

It also states, “personal information about the routine activities of a non-U.S. person would not be disseminated without some indication that the personal information is related to an authorized foreign intelligence requirement.” Consider how this language would work for what we know to have been spying on the online sex habits of people the US wants to discredit. First, they only need “some indication” that the dissemination is tied to a FI requirement. There’s also that word, “related to,” which as we know now means “all.” In other words, this exception would still permit really intrusive spying, if we thought the target was a nice FI target.

Others

Love this from DOE: “The origins of specific information contained in evaluated or finished intelligence products—or the specific means by which such information was collected—may not in all cases be evident to DOE-IN or DOE as a recipient of such intelligence products.” State has a very similar caveat.

Non-NSA DOD components just adopted NSA’s document.

Judicial Redress

Read more →

I Con the Record’s International Privacy Guidelines Swallowed Up by Exceptions

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Screen Shot 2014-10-17 at 11.23.58 AMSometimes I Con the Record outdoes itself.

On Tuesday, the Guardian noted a scathing report UN Counterterrorism special rapporteur Ben Emmerson issued last month attacking British and US collection of bulk communications.

“Merely to assert – without particularization – that mass surveillance technology can contribute to the suppression and prosecution of acts of terrorism does not provide an adequate human rights law justification for its use. The fact that something is technically feasible, and that it may sometimes yield useful intelligence, does not by itself mean that it is either reasonable or lawful.”

[snip]

“It is incompatible with existing concepts of privacy for states to collect all communications or metadata all the time indiscriminately. The very essence of the right to the privacy of communication is that infringements must be exceptional, and justified on a case-by-case basis.”

Today, I Con the Record released a “Status Report” on an initiative President Obama ordered in his PPD-28 back in January to extend privacy protections to foreigners.

As we work to meet the January 2015 deadline, PPD-28 called on the Director of National Intelligence to prepare an interim report on the status of our efforts and to evaluate, in coordination with the Department of Justice and the rest of the Intelligence Community, additional retention and dissemination safeguards.

The DNI’s interim report is now being made available to the public in line with our pledge to share as much information about sensitive intelligence activities as is possible, consistent with our national security.

One thing this interim report requires is that “elements shall publicly release their PPD-28 implementation policies and procedures to the maximum extent possible.” Which requirement, you might assume, this release fulfills.

Which is why it’s so curious I Con the Record chose not to release an unclassified report mandated and mandating transparency — dated July 2014 — until October 2014.

Lest I be called a cynic, let me acknowledge that there are key parts of this that may represent improvements (or may not). The report asserts:

  • Foreigners will be treated with procedures akin to — though not identical to — those imposed by Section 2.3 of EO 12333
  • Just because someone is a foreigner doesn’t mean their information is foreign intelligence; the IC should “permanently retain or disseminate such personal information only if the personal information relates to an authorized intelligence requirement, is reasonably believed to be evidence of a crime, or meets one of the other standards for retention or dissemination identified in section 2.3” of EO 12333
  • The IC should consider adopting (though is not required to) retention periods used with US person data for foreign personal information (which is 5 years); the IC may get extensions, but only in 5-year chunks of time
  • When disseminating “unevaluated personal information,” the IC should make that clear so the recipient can protect it as such

Those are good things! Yeah us!

There are, however, a series of exceptions to these rules.

First, the guidelines in this report restate PPD-28’s unbelievably broad approval of the use of bulk data, in full. The report does include this language:

[T]he procedures must also reflect the limitations on the use of SIGINT collected in bulk. Moreover, Intelligence Community element procedures should include safeguards to satisfy the requirements of this section. In developing procedures to comply with this requirement, the Intelligence Community must be mindful that to make full use of intelligence information, an Intelligence Community element may need to use SIGINT collected in bulk together with other lawfully collected information. In such situations, Intelligence Community elements should take care to comply with the limitations applicable to the use of bulk SIGINT collection.

Unless I’m missing something, the only “limits” in this section are those limiting the use of bulk collection to almost all of NSA’s targets, including counterterrorism, cybersecurity, and crime, among other things. Thus, the passage not only reaffirms what amounts to a broad permission to use bulk, but then attaches those weaker handling rules to anything used in conjunction with bulk.

Then there are the other exceptions. The privacy rules in this document don’t apply to:

  • Evaluated intelligence (exempting foreigners’ data from the most important treatment US person data gets, minimization in finished intelligence reports; see footnote 3)
  • Personal information collected via other means than SIGINT (excluding most of what the CIA and FBI do, for example; see page 1)
  • Information collected via SIGINT not collecting communications or information about communications (seemingly excluding things like financial dragnets and pictures and potentially even geolocation, among a great many other things; see footnote 2)

And, if these procedures aren’t loosey goosey enough for you, the report includes this language:

It is important that elements have the ability to deviate from their procedures when national security requires doing so, but only with approval at a senior level within the Intelligence Community element and notice to the DNI and the Attorney General.

OK then.

Congratulations world! We’re going to treat you like Americans. Except in the majority of situations when we’ve decided not to grant you that treatment. Rest easy, though, knowing you’re data is sitting in a database for only 5 years, if we feel like following that rule.

In Cut and Paste Tumblr Post, James Clapper Describes Who We Can Spy on without Discriminants

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As part of his Presidential Policy Directive on Signals Intelligence, Obama said this about bulk collection:

In particular, when the United States collects nonpublicly available signals intelligence in bulk, it shall use that data only for the purposes of detecting and countering: (1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests; (2) threats to the United States and its interests from terrorism; (3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction; (4) cybersecurity threats; (5) threats to U.S. or allied Armed Forces or other U.S or allied personnel; and (6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section. In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S . business sectors commercially; or achieving any purpose other than those identified in this section.

The Assistant to the President and National Security Advisor (APNSA), in consultation with the Director of National Intelligence (DNI), shall coordinate, on at least an annual basis, a review of the permissible uses of signals intelligence collected in bulk through the National Security Council Principals and Deputies Committee system identified in PPD-1 or any successor document. At the end of this review, I will be presented with recommended additions to or removals from the list of the permissible uses of signals intelligence collected in bulk.

The DNI shall maintain a list of the permissible uses of signals intelligence collected in bulk. This list shall be updated as necessary and made publicly available to the maximum extent feasible, consistent with the national security.

To fulfill that bolded “shall” language, James Clapper just released this on his IContheRecord Tumblr page:

Presidential Policy Directive/PPD-28 – Signals Intelligence Activities establishes a process for determining the permissible uses of nonpublicly available signals intelligence that the United States collects in bulk. It also directs the Director of National Intelligence to “maintain a list of permissible uses of signals intelligence collected in bulk” and make the list “publicly available to the maximum extent feasible, consistent with the national security.”

Consistent with that directive, I am hereby releasing the current list of permissible uses of nonpublicly available signals intelligence that the United States collects in bulk.

Signals intelligence collected in “bulk” is defined as “the authorized collection of large quantities of signals intelligence data which, due to technical or operational considerations, is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).” As of Jan. 17, 2014, nonpublicly available signals intelligence collected by the United States in bulk may be used by the United States “only for the purposes of detecting and countering:

  1. Espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests;
  2. Threats to the United States and its interests from terrorism;
  3. Threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction;
  4. Cybersecurity threats;
  5. Threats to U.S. or allied Armed Forces or other U.S. or allied personnel; and
  6. Transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named above.”

Further, as prescribed in PPD-28, “in no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially;” or achieving any purpose other than those identified above.

Effectively, Clapper fulfilled an obligation mandated by the PPD by simply cutting and pasting the list of 6 permissible uses of bulk collection in the PPD.

Given that this list is expected to be assessed annually, does that mean the PPD itself should be considered valid for no more than a year?

The Tech Back Door in Obama’s New Spying Policy

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I haven’t had time to do a full post on the Presidential Policy Directive Obama rolled out with his speech the other day (besides pointing out how Obama sets it up to be disappeared when inconvenient). But Bart Gelllman noted something I had also noticed (in addition to noting that Obama embraced Big Data in his speech — his whole story is wroth reading).

In another significant footnote, Obama said the limits he ordered “shall not apply to signals intelligence activities undertaken to test or develop signals intelligence capabilities.” Signals intelligence development, or “sigdev” in NSA parlance, is the discovery of untapped communication flows and the invention of new surveillance methods to exploit them.

For example, NSA Director Keith Alexander revealed last summer that his agency had collected location data from mobile phones in the United States.

Here’s the language in question.

Consistent with this historical practice, this d irective articulates principles to guide why, whether, when, and how the United States conducts signals intelligence activities for authorized foreign intelligence and counterintelligence purposes. 3
3 Unless otherwise specified, this directive shall apply to signals intelligence activities conducted in order to collect communications or information about communications, except that it shall not apply to signals intelligence activities undertaken to test or develop signals intelligence capabilities.

This is something we’re seeing throughout the NSA programs (and we’re not seeing any real auditing or checks on this activity) as I have been noting with respect to the data integrity analysts who have access to the phone dragnet. The NSA uses real data to develop its new toys. And while there are some limits on the finished intelligence products that can be produced from such development, there doesn’t seem to be any protection for the data that gets used.

You’d think, in the wake of a rather powerful demonstration of the power of techs, there’d be some awareness of how dangerous creating such exceptions for the techs. But you’d be wrong.

One more note: Obama explicitly imposes these limits only on communications data, not on things like bank data or pressure cooker purchase data. A reporter actually asked the White House, rather persistently, about all this Section 215 (or NSL) collection, and they basically admitted they’re not going to provide the same protections (judicial review of queries) because no one is talking about it.

Which tells you what they’re really concerned about.

Obama’s Presidential Policy Directive: Pixie Dust 2.0

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Back when John Yoo was finding ways to authorize President Bush’s illegal wiretap program — especially spying on Americans who were not agents of a foreign power — he changed the meaning of certain limits in EO 12333 without rewriting EO 12333. The President didn’t have to change EO 12333 to reflect actual practice, Yoo determined (relying on an Iran-Contra precedent), because ignoring EO 12333 amounted to modifying it.

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

I call this pixie-dusting, where the Executive makes his own orders and directives disappear in secret.

Poof!

The use of pixie-dust — so recently used to justify spying on people while pretending not to spy on them — ought to give you pause when you read this passage from President Obama’s Presidential Policy Directive limiting US spying overseas (or, frankly, everything he said today, which all consists of the Executive exercising its prerogative to change and oversee Executive actions, but in no way includes any teeth to sustain such changes).

Nothing in this directive shall be construed to prevent me from exercising my constitutional authority, including as Commander in Chief, Chief Executive, and in the conduct of foreign affairs, as well as my statutory authority. Consistent with this principle, a recipient of this directive may at any time recommend to me, through the APNSA, a change to the policies and procedures contained in this directive.

Effectively Obama is laying out his prerogative to pixie dust this PPD.

And while the President admittedly would always have such prerogative, he didn’t include such a paragraph in his cyberwar PPD (which, of course, wasn’t meant to be public).

This PPD was designed to be ignored.

And I suspect our friends and adversaries know that.