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DiFi Fake FISA Fix Explicitly Allows Contractors to Conduct Suspicionless Searches on US Person Data

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The Senate Intelligence Committee has released its report on DiFi’s Fake FISA Fix. The report makes it clearer than ever that this is not at all an improvement, but rather an attempt to use the Snowden leaks as an opportunity to make the spying programs explicitly worse, which I’ll explain at more length later.

Just as an example, however, take a look at what they do with back door searches. As I explained here, the bill describes new reporting for a tiny fraction of back door searches, those that search on a US identifier as content, presumably to trick people in thinking that does anything for the vast majority of back door searches on US identifiers as metadata (DiFi’s staffers all but admitted that, anonymously, here). Thus, it provides new reports for a tiny fraction of this practice, while endorsing the vast majority of such searches — and the far more intrusive ones — to go on with no reporting requirements. And since I laid that out, NSA General Counsel Raj De and DNI General Counsel Robert Litt made it clear that NSA does not currently require even Reasonable Articulable Suspicion to search any content collected incidentally.

Here’s what the report adds to that, explicitly.

The Committee believes that, to the greatest extent practicable, all queries conducted to the authorities established under this section should be performed by Federal employees. Nonetheless, the Committee acknowledges that it may be necessary in some cases to use contractors to perform such queries. By using the term “government personnel” the Committee does not intend to prohibit such contractor use.

The NSA just had a contractor walk off with unbelievable amounts of data.

And the Senate Intelligence Committee’s response to that is to explicitly give contractors the authority to conduct suspicionless searches through vast quantity of data to access and read the content of US person data, with no reporting requirements.

I guess when they named this the “intelligence” committee they were just making an elaborate joke.

(Note: Snoopdidoo had some more observations on the report in comments to this thread.)

Was Adel Daoud Targeted Off of a Back Door Search of Traditional FISA Collection?

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Daoud Adel is a 20-year old US citizen from suburban Chicago who was charged last year in an FBI sting in which he allegedly tried to set off a car bomb outside a night club. Last year, during the debate on FISA Amendments Act reauthorization, Dianne Feinstein named his case directly, suggesting he had been busted using the legislation before the Senate. His legal team first demanded the FAA material she suggested existed back in May. And in September, they requested discovery for materials relating to FAA.

The government, however, strongly suggests none of the communications used to charge him were collected under FAA. It even suggests he misunderstands the meaning of DiFi’s comment.

Any discovery based on the FAA is unwarranted here because the FAA is simply not at issue in this case. As the Government explained in a previous filing, it “does not intend to use any such evidence obtained or derived from FAA-authorized surveillance in the course of this prosecution.” (DE 49, at 2).

[snip]

The defendant’s claim that the Government should disclose “the nature of the FAA surveillance in this case even, for instance[,] Defendant’s communications themselves were not intercepted” is perplexing. (DE 52, at 15 n.11). If Daoud’s communications were not intercepted, or his facilities not targeted, he would not be aggrieved and have no basis to challenge the collection. The Government sees no legal relevance to his broad discovery request.

Moreover, the defendant has also made multiple claims, in this motion and others, based on his interpretation of a single public remark. While the Government appreciates the defendant’s position in litigating FISA-related matters, it offers that the defendant may misunderstand this public remark, which is not a revelation that has any legal implication.

[snip]

As the Government has explained, this case singularly involves “traditional” FISA surveillance. [my emphasis]

Soapbox Orator’s comments in response to one of my posts on back door searches led me to examine the government’s response closely and I now suspect Daoud may have been identified using a back door search on traditional FISA collection.

Much of this debate centers on comments DiFi made on December 27, 2012, which seemed to suggest the 8 cases she named involved FAA.  But those comments were in response to comments Ron Wyden had just made. In that speech Wyden described (among other problems with FAA) back door searches.

The fact is, once the government has this pile of communications, which contains an unknown but potentially very large number of Americans’ phone calls and e-mails, there are surprisingly few rules about what can be done with it.

For example, there is nothing in the law that prevents government officials from going to that pile of communications and deliberately searching for the phone calls or e-mails of a specific American, even if they do not have any actual evidence that the American is involved in some kind of wrongdoing, some kind of nefarious activity.

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The Intelligence Community’s Wide Open, Unprotected Back Door to All Your Content

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PCLOB has posted the transcript from the first part of its hearing on Monday. So I want to return to the issue I raised here: both Director of National Intelligence General Counsel Robert Litt and NSA General Counsel Raj De admit that there are almost no limits on Intelligence Community searches of incidentally collection US person data (we know that FBI, NSA, and CIA have this authority, and I suspect National Counterterrorism Center does as well).

This discussion starts when PCLOB Chair David Medine asks whether the IC would consider getting a warrant before searching on incidentally collected data.

MR. MEDINE: And so turning to the protections for U.S. persons, as I understand it under the 702 program when you may target a non-U.S. person overseas you may capture communications where a U.S. person in the United States is on the other end of the communication. Would you be open to a warrant requirement for searching that data when your focus is on the U.S. person on the theory that they would be entitled to Fourth Amendment rights for the search of information about that U.S. person?

MR. DE: Do you want me to take this?

MR. LITT: Thanks, Raj. Raj is always easy, he raises his hands for all the easy ones.

MR. DE: I can speak for NSA but this obviously has implications beyond just NSA as well.

MR. LITT: I think that’s really an unusual and extraordinary step to take with respect to information that has been lawfully required.

I mean I started out as a prosecutor. There were all sorts of circumstances in which information is lawfully acquired that relates to persons who are not the subject of investigations. You can be overheard on a Title III wiretap, you can overheard on a Title I FISA wiretap. Somebody’s computer can be seized and there may be information about you on it.

The general rule and premise has been that information that’s lawfully acquired can be used by the government in the proper exercise of authorities.

Now we do have rules that limit our ability to collect, retain and disseminate information about U.S. persons. Those rules, as know, are fairly detailed. But generally speaking, we can’t do that except for foreign intelligence purposes, or when there’s evidence of a crime, or so on and so forth. But what we can’t do under Section 702 is go out and affirmatively use the collection authority for the purpose of getting information about U.S. persons. Once we have that information I don’t think it makes sense to say, you know, a year later if something comes up we need to go back and get a warrant to search that information. [my emphasis]

Litt compares finding incidental information on a laptop, presumably seized using a warrant, with searching for incidental information on a digital collection that includes very few limits on specificity. Remember, NSA can and has claimed a targeted “facility” may mean all the Internet traffic from a particular country or at least a region of a country. This is petabytes of data obtained with a directive, not gigabytes obtained with a specific warrant.

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DOJ Did Not Fulfill Legally Required Disclosure on Section 215 to Congress Until After PATRIOT Reauthorization

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In the Guardian’s superb summary of the importance of the NSA leaks, Zoe Lofgren challenges the claims that Congress has received all the documents NSA claims it has gotten.

I do serve on the Judiciary Committee and various statements have been made that the Judiciary Committee members were told about all of this and those statements are untrue, not the facts, we have not been provided the documents that the Agency said that we were.

In a Privacy and Civil Liberties Oversight Board today, NSA General Counsel Raj De and ODNI General Counsel Robert Litt both repeated such claims (these are from my notes on twitter; I’ll check my transcription later). De said that Section 215 “had all indicia of official legitimacy” which in part came because it was “twice reauthorized by Congress with full information from exec.” And Litt said they are “by statute required to provide copies [of FISC documents] to both houses. They got materials relating to this [Section 215] program.”

Obviously, we know De is wrong, and he must know it, because a sufficiently large block of Congressmen never had the opportunity to read the Executive’s official notice to make the difference in the 2011 reauthorization. His statement is a clear lie.

But I’m just as interested in Litt’s claim (which would rely on notice to the Judiciary and Intelligence Committees).

This most recent I Con dump provides some evidence that illuminates Lofgen’s implicit dispute of Litt’s claims. Remember this paragraph, which is one of the most specific claims about what notice the Administration gave to Congress about using Section 215 to authorize the phone dragnet.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this [Section 215] program to the Senate and House Intelligence and Judiciary committees. By December 2008, all four committees had received the initial application and primary order authorizing the telephony metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees.

As I noted in this post, the specific language (in bold) regarding the first, May 2006, authorization of the phone dragnet at least suggested, in this context, there wasn’t an opinion at all, as did a lot more evidence. But recent reporting strongly suggests there was (see this post where I argue this is likely the phone dragnet opinion).

Government lawyers have told the ACLU that they are withholding at least two significant FISC opinions — one from 2008 and one from 2010 — relating to the Patriot Act’s Section 215, or “business records” provision.

This would seem to indicate that Congress was not provided the original 2006 opinion (as distinct from the application and primary order) “by December 2008.”

With that mind, consider this document released by the I Con, an August 16, 2010 memo from Office of Legislative Affairs Assistant Attorney General Ronald Weich to the Chairs of the Judiciary and Intelligence Committees.

Pursuant to section 1871 of United States Code Title 50, we are providing the Committees with copies of the remaining decisions, orders, or opinions issued by the Foreign Intelligence Surveillance Court, and pleadings, applications, or memoranda of law associated therewith, that contain significant constructions or interpretations of any provision of FISA during the five-year period ending July 10, 2008. See 50 U.S.C. § 1871(c)(2). We have provided similar materials for the same time period. 

Now remember, while ODNI made a big show of releasing these documents, they released them as part of the ACLU’s FOIA for documents on Section 215 and all the documents released pertain to Section 215. I Con describes the memo as referring to “several documents to the Congressional Intelligence and Judiciary Committees relating to NSA collection of bulk telephony metadata under Section 501 of the FISA, as amended by Section 215 of the USA PATRIOT Act,” confirming they pertain to Section 215.

The Patriot Act was reauthorized in February 2010.

At a minimum, this suggests the White Paper provided in August may have been highly misleading. When it said “Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees,” it did not mean that by December 2008, the four oversight committees had all the significant opinions in hand. Even assuming the Weich brief was correct, which Lofgren’s comment suggests it might not be, they didn’t get around to handing over opinions pertaining to Section 215 going back to July 10, 2003 until August 2010. That period — July 10, 2003 to July 10, 2008 — would cover both the July 2004 Colleen Kollar-Kotelly opinion authorizing using the Pen Register/Trap and Trace to collect Internet metadata, and the May 2006 opinion authorizing the phone dragnet. While we don’t know that the Kollar-Kotelly opinion was withheld until 2010, the language of the White Paper (which suggests the opinion itself was not provided) strongly suggests the May 2006 one was.

The law requiring such disclosure, 50 U.S.C. § 1871(c)(2), was part of the FISA Amendments Act, so had been in place for a full year by the time the PATRIOT Act reauthorization got started, yet DOJ didn’t get around to complying with it until 2 years after the law passed. And the law specifically requires disclosure of both the PR/T&T and the Section 215 authorities.

The possibility that DOJ did not turn over the original phone dragnet opinion is utterly damning given David Kris’ suggestion that the initial approval of the phone dragnet — the 2006 opinion — may have been erroneous.

More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch.

[snip]

The briefings and other historical evidence raise the question whether Congress’s repeated reauthorization of the tangible things provision effectively incorporates the FISC’s interpretation of the law, at least as to the authorized scope of collection, such that even if it had been erroneous when first issued, it is now—by definition—correct.

David Kris at least entertains the possibility that the original May 2006 opinion was “erroneous,” but points to Congress’ reauthorization of the PATRIOT Act to claim it had incorporated FISC’s interpretation of the law.

But now we know that DOJ did not provide all of FISC’s significant opinions pertaining to Section 215 to the key oversight committees until August 16, 2010, over two years after they were obligated to do so — and the plain language of the White Paper strongly suggests that DOJ did not provide the key May 2006 opinion to the oversight committees.

This doesn’t yet prove that DOJ withheld the May 2006 opinion that Kris suggests might be “erroneous” until after Congress reauthorized the PATRIOT Act. But it strongly suggests that is the case.

Update: PATRIOT Act Reauthorization line moved per Anonster’s suggestion.

Update: Added the language I Con used to describe the documents handed over in August 2010.

Robert Litt: Isn’t Weakening Encryption Our Job?

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Office of the Director of National Intelligence General Counsel Robert Litt gave a speech to the American Bar Association’s National Security Law conference yesterday. It’s full of lots of patent bullshit, as you might expect, including misrepresenting what Keith Alexander said to Congress the other day.

But it does do something the I Con has not done thus far: try to rationalize NSA’s weakening of encryption standards.

For example, there have been stories claiming that NSA is able to crack encryption or break into private networks, and charges that this compromises everyone’s privacy.

I’m not going to comment on whether or not these stories were accurate.

But isn’t cracking encryption, or breaking into private networks, exactly what we want an intelligence agency to be able to do?

How else are we going to collect the communications of people who want to harm us and our allies, and who use those tools to try to hide their communications, or to provide policy makers the intelligence they need to protect the nation?

But just because we try to develop the capability to intercept and decrypt communications of adversaries and terrorists does not mean that we can or do use those capabilities against ordinary U.S. citizens, or French citizens, or Belgians, etc.

Granted, Litt misrepresents the extent of the revelations. It’s not just that the NSA has been trying to crack Tor. It’s also that they have deliberately weakened more general encryption standards so as to make it easier for them to access communications or launch hacks in the future.

Nevertheless, he blithely dismisses any concerns about this activity by insisting that is the Intelligence Community’s job. “But isn’t cracking encryption exactly what we want an intelligence agency to be able to do?”

This is why the defensive mandate needs to be broken off from NSA and put somewhere where people like Litt can’t touch it. Because Litt isn’t even aware that weakening encryption is, by its nature, an attack on “US citizens, or French citizens, or Belgians, etc.” (And all that’s before you get into the NSA keeping encrypted conversations of entirely innocent US and French and Belgian citizens indefinitely.)

A General Counsel making legal decisions for the entire intelligence community who misunderstands this basic fact is a menace to all of us.

How Many People Are Included in Contact Chaining with 27,090 Numbers?

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I’ve decided that if I could have a nickel for every time I’ve said “I told the apologists so” as I’ve read these documents, I’d be Warren Buffet. But I don’t get a nickel for predicting the NSA is as bad as it is. So I could use your help to keep doing what I do. 

One of the most stunning revelations from ODNI’s conference call with Officials Who Can’t Be Quoted Because They Might Be Lying is that only 11% of the numbers the NSA was comparing daily business record collections against should have been included.

Those numbers are presented in the government’s first response to Reggie Walton’s order for more information.

In short, the system was designed to compare both SIGINT and BR metadata against the identifiers on the alert list but only to permit alerts generated from RAS-approved identifiers to be used to conduct contact chaining [redacted] of the BR metadata. As a result, the majority of telephone identifiers compared against the incoming BR metadata in the rebuilt alert list were not RAS-approved. See id. at 4, 7-8. For example, as of January 15, 2009, the date of NSD’s first notice to the Court regarding this issue, only 1,935 of the 17,835 identifiers on the alert list were RAS-approved. (10-11)

This means that every day, the NSA was comparing names they thought maybe might could be terrorist numbers, as well as numbers they actually had reason to believe actually were, with all the phone records in the US to see if Americans were talking to these people. [Update: And to clarify, the 89% on the list who were “compared” to the daily business record take weren’t contact chained — NSA just checked to see if they should look further.]

As I said, per the Officials Who Can’t Be Quoted Because They Might Be Lying who gave today’s conference call, that’s as bad as it gets.

But it appears to get worse.

You see, as NSA was confessing all this to DOJ’s National Security Division, they were also cleaning up their lists (the January 15 numbers come from a week after NSD first got involved). And it appears that before they started their confessional process (in the days before Obama took over from George Bush), they had far more people on their list. And they were contact-chaining those numbers.

At the meeting on January 9, 2009, NSA and NSA also identified that the reports filed with the Court have incorrectly stated the number of identifiers on the alert list. Each report included the number of telephone identifiers purported on the alert list. See, e.g., NSA 120-Day Report to the FISC (Dec. 11, 2008), docket number BR 08-08 (Ex. B to the Government’s application in docket number BR 08-13), at 11 (“As of November 2, 2008, the last day of the reporting period herein, NSA had included a total of 27,090 telephone identifiers on the alert list . . . .”). In fact, NSA reports that these numbers did not reflect the total number of identifiers on the alert list; they actually represented the total number of identifiers included on the “station table” (NSA’s historical record of RAS determinations) as currently RAS-approved) (i.e., approved for contact chaining [redacted]

This appears to mean the NSA could (they don’t say whether they did) conduct chaining two or three degrees deep on all these potential maybe might could be terrorists.

If those 27,090 talked to 10 people in the US, and those 270,090 people in the US regularly talked to 40 people in the US, and those people talked to 40, then it would potentially incorporate 433 millio–oh wait! That’s more people than live in the US!

That is, there’s a potential that, by contact chaining that many people, this actually represented a comprehensive dragnet of all the networked relationships in the US until the days before Obama became President.

And they lied to Reggie Walton about it as they got their first real legal review of the program.

But honest, all this was really just unintentional.

Update: Later in the filing, the government admits they were doing more than 3 hops until early 2009.

Second, NSA is implementing software changes to its system that will limit to three the number of “hops” permitted from a RAS-approved seed identifier.

This means those 27,090 identifiers that were in use on November 1, 2008 (at which point it became clear Obama would win the election) could have been contact chained far deeper into American contacts. This makes it very likely that that “contact chaining” actually did include everyone in the US.