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How FBI Could Use Reverse Targeting to Use Section 702 against Keith Gartenlaub

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Some weeks ago, in a post named, “Evidence the US Government Used Section 702 against Keith Gartenlaub[‘s Parents-in-Law],” I laid out the evidence that Section 702 was used against Keith Gartelaub. As I showed,

  • A warrant in his case seemed to parallel construct Yahoo and Google content, often a sign the government is trying to introduce a second source for PRISM content
  • In spite of reference to Skype metadata, nothing in the court case ever seemed to reflect the content from those calls, in spite of the fact they’d be readily collectible
  • After approving the sharing of FISA information with the National Center for Missing and Exploited Children for traditional FISA data, the government approved such sharing for 702 data the day before they arrested Gartenlaub

But there was just one problem with that argument — one made clear in the title of the post. Ultimately, the government is only supposed to be allowed to target foreigners like Gartenlaub’s “well connected” Chinese parents-in-law, not Gartenlaub. Yet by all appearances, the investigation started with Gartenlaub, basically by deciding that allegations of Boeing theft must mean there was a Boeing theft at Gartenlaub’s location and then, very quickly, settling on Gartenlaub as the likely culprit.

Around January 28, 2013: Agent Wesley Harris reads article that leads him to start searching for Chinese spies at Boeing

February 7, 8, and 22, 2013: Harris interviews Gartenlaub

June 18, 2013: Agent Harris obtains search warrant for Gartenlaub and his wife, Tess Yi’s, Google and Yahoo accounts

So if Agent Harris did obtain 702 data between February, when he first showed interest in Gartenlaub, and June, when he appeared to be parallel constructing Google and Yahoo content, it would have been for the purpose of obtaining information on Gartenlaub, already a focus of the investigation.

That would pretty clearly be reverse targeting (unless, for some reason, the FBI already had a big stash of his in-laws’ communications in their 702 collection, in which it’d come up in a back door search).

In other words, while there’s a good deal of circumstantial evidence that the government used 702 to spy on his conversations with his in-laws, that shouldn’t be allowed under a common sense definition of what reverse targeting does.

Except, as Senator Wyden’s 702 reform and the SSCI bill report make clear, that kind of reverse targeting actually is permitted by current practice.

In his comments to the SSCI bill report, for example, Wyden explained,

The bill does not include a meaningful prohibition on reverse targeting, which would require a warrant when a significant purpose of targeting a foreigner is actually to collect the communications of the American communicant. The current standard permits the government to conduct unlimited warrantless searches on Americans, disseminate the results of those searches, and use that information against those Americans, so long as it has any justification at all for targeting the foreigner.

His own bill would insert language prohibiting the targeting someone outside the US if a significant purpose is to get the communications of someone inside the US. If it was, the bill would require the government to get a Title I (traditional) order. [Bolded language is new.]

(d) Targeting procedures
(1) Requirement to adopt–The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to—
(A) ensure — 

(aa) that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and
(bb) that an application is filed under title I, if otherwise required, when a significant purpose of an acquisition authorized under subsection (a) is to acquire the communications of a particular, known person reasonably believed to be located in the United States; 

And a SSCI Wyden amendment modified by Angus King would prohibit the targeting of someone overseas if a purpose of the targeting was to collect on someone in the US.

By a vote of four ayes to eleven noes, the Committee rejected an amendment by Senator Wyden, as modified by Senator King, which would have revised the standard on current reverse targeting prohibitions to replace ‘‘the’’ with ‘‘a,’’ such that the statute would state ‘‘If a purpose of such acquisition is to target a particular known person.’’ The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—no; Senator Wyden—aye; Senator Heinrich— aye; Senator King—aye; Senator Manchin—no; and Senator Harris—aye.

 

Clearly, the current prohibition on reverse targeting actually would nevertheless permit the government to obtain Gartenlaub’s in-laws communications to find out what they talk about in order to assess whether he might be plotting to steal IP from Boeing with them. And even though we still only have circumstantial evidence this is what happened, if it did, it would show the problem with reverse targeting: because Gartenlaub had Chinese in-laws, it (may have) made it far easier to obtain potentially damning information using 702 than it would be for any of his colleagues who didn’t have such ties with anyone of interest in China.

Effectively (again, if Gartenlaub was indeed reverse targeted), it would mean the government could obtain communications without any suspicion from which they could look for evidence of probable cause that he (or his wife) was an agent of a foreign power.

Ultimately, after both a criminal warrant and a FISA warrant claiming they had probable cause Gartenlaub was spying for China, after reading his emails for months, searching his home, and searching multiple devices, the government never found evidence to support that claim. But they did find old child porn (though no forensic evidence showing he had accessed that porn). It appears likely that they would never have found it if he hadn’t had the bad luck of marrying a well-connected Chinese-American.

Yup: The Government Is Secretly Hiding Its Crypto Battles in the Secret FISA Court

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When I analyzed the Wyden-Paul Section 702 reform bill, I noted language that suggested Wyden was concerned about the government using the secrecy of FISA Court proceedings to demand technical assistance from providers they otherwise couldn’t get. Wyden’s bill makes it clear he’s concerned that the government would (or is) making technical demands without even telling the FISC it is doing so. His bill would explicitly require review of any technical demands by the court.

(B) LIMITATIONS.—The Attorney General or the Director of National Intelligence may not request assistance from an electronic communication service provider under subparagraph (A) without demonstrating, to the satisfaction of the Court, that the assistance sought—

(i) is necessary;

(ii) is narrowly tailored to the surveillance at issue; and

(iii) would not pose an undue burden on the electronic communication service provider or its customers who are not an intended target of the surveillance.

(C) COMPLIANCE.—An electronic communication service provider is not obligated to comply with a directive to provide assistance under this paragraph unless

(i) such assistance is a manner or method that has been explicitly approved by the Court; and

(ii) the Court issues an order, which has been delivered to the provider, explicitly describing the assistance to be furnished by the provider that has been approved by the Court.

I suggested the most likely use of such a “technical assistance” demand would be requiring a company (cough, Apple) to back door its encryption.

The most obvious such application would involve asking Apple to back door its iPhone encryption.

As a reminder, national security requests to Apple doubled in the second half of last year.

The number of national security orders issued to Apple by US law enforcement doubled to about 6,000 in the second half of 2016, compared with the first half of the year, Apple disclosed in its biannual transparency report. Those requests included orders received under the Foreign Intelligence Surveillance Act, as well as national security letters, the latter of which are issued by the FBI and don’t require a judge’s sign-off.

We would expect such a jump if the government were making a slew of new requests of Apple related to breaking encryption on their phones.

In his statement on the bill, Wyden made it clear that that’s precisely what he is concerned about.

It leaves in place current statutory authority to compel companies to provide assistance, potentially opening the door to government mandated de-encryption without FISA Court oversight. [my emphasis]

And note: he is saying that the government will (that is, has already, most likely) done this without asking the FISC to review whether its technical demands are narrowly tailored and necessary.

Update: This post has been updated in response to comments to clarify that Wyden is not concerned about technical demands per se, but about technical demands with no FISC review.

Update: One more point to make clear: for “individual” orders, the court will review every facility, which will involve some review of what kinds of access the government will get (such as when, in 2015, the government ordered Yahoo to scan all its users for some kind of signature).

But under 702, the “assistance” language that the government could use to obligate back doors (or whatever else) is not tied to anything the court reviews. Annual certifications have to affirm that the collection requires domestic provider assistance (but does not require a description of what that assistance entails).

vi) the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communication service provider; and

But then once that certificate is signed, the government can work at the level of directives, demanding, compensating, and indemnifying the provider for that assistance all without any court review.

(h) Directives and judicial review of directives

(1) Authority: With respect to an acquisition authorized under subsection (a), the Attorney General and the Director of National Intelligence may direct, in writing, an electronic communication service provider to—

(A) immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition; and

(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain.

(2) Compensation

The Government shall compensate, at the prevailing rate, an electronic communication service provider for providing information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).

(3) Release from liability
No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).

That’s why the risk is that much greater for 702: because the court is never going to review the individual directives which is where the specific technical assistance gets laid out (unless a provider is permitted to challenge those directives).

Eleven (or Thirteen) Senators Are Cool with Using Section 702 to Spy on Americans

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The Senate Intelligence Committee report on its version of Section 702 “reform” is out. It makes it clear that my concerns raised here and here are merited.

In this post, I’ll examine what the report — particularly taken in conjunction with the Wyden-Paul reform — reveals about the use of Section 702 for domestic spying.

The first clue is Senator Wyden’s effort to prohibit collection of domestic communications — the issue about which he and Director of National Intelligence Dan Coats have been fighting about since June.

By a vote of four ayes to eleven noes, the Committee rejected an amendment by Senator Wyden that would have prohibited acquisition under Section 702 of communications known to be entirely domestic under authority to target certain persons outside of the United States. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—aye; Senator Wyden—aye; Senator Heinrich— aye; Senator King—no; Senator Manchin—no; and Senator Harris—aye.

It tells us that the government collects entirely domestic communications, a practice that Wyden tried to prohibit in his own bill, which added this language to Section 702.

(F) may not acquire communications known to be entirely domestic;

This would effectively close the 2014 exception, which permitted the NSA to continue to collect on a facility even after it had identified that Americans also used it. As I have explained is used to collect Tor (and probably VPN) traffic to obtain foreigners’ data. I suspect that detail is what Wyden had in mind when, in his comments in the report, he said the report itself “omit[s] key information about the scope of authorities granted the government” (though there are likely other things this report hides).

I have concerns about this report. By omitting key information about the scope of authorities granted the government, the Committee is itself contributing to the continuing corrosive problem of secret law

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report.

Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized.

That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

But I’m throwing Feinstein and Harris in with that group, because they voted against a Wyden amendment that would have limited how the government could use 702 collected data in investigations.

By a vote of two ayes to thirteen noes, the Committee rejected an amendment by Senator Wyden that would have imposed further restrictions on use of Section 702-derived information in investigations and legal proceedings. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—no; Senator Wyden— aye; Senator Heinrich—aye; Senator King—no; Senator Manchin— no; and Senator Harris—no.

While we don’t have the language of this amendment, I assume it does what this language in Wyden’s bill does, which is to limit the use of Section 702 data for purposes laid out in the known certificates (foreign government including nation-state hacking, counterproliferation, and counterterrorism — though this language makes me wonder if there’s a Critical Infrastructure certificate or whether it only depends on the permission to do so in the FBI minimization procedures, and the force protection language reminds me of the concerns raised by a recent HRW FOIA permitting the use of 12333 language to do so).

(B) in a proceeding or investigation in which the information is directly related to and necessary to address a specific threat of—

(i) terrorism (as defined in clauses (i) through (iii) of section 2332(g)(5)(B) of title 18, United States Code);

(ii) espionage (as used in chapter 37 of title 18, United States Code);

(iii) proliferation or use of a weapon of mass destruction (as defined in section 2332a(c) of title 18, United States Code);

(iv) a cybersecurity threat from a foreign country;

(v) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (42 U.S.C. 5195c(e))); or

(vi) a threat to the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States.

Compare this list with the one included in the bill, which codifies the use of 702 data for issues that,

“Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

  • Death
  • Kidnapping
  • Serious bodily injury
  • Specified offense against a minor
  • Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
  • Cybersecurity, including violations of CFAA
  • Transnational crime, including transnational narcotics trafficking
  • Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)

[snip]

Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

The bill report’s description of this section makes it clear that — in spite of its use of the word “restriction,” — this is really about providing affirmative “permission.”

Section 6 provides restrictions on the Federal Bureau of Investigation’s (FBI’s) use of Section 702-derived information, so that the FBI can use the information as evidence only in court proceedings [my emphasis]

That is, Wyden would restrict the use of 702 data to purposes the FISC has affirmatively approved, rather than the list of 702 purposes expanded to include the most problematic uses of Tor: all hacking, dark markets, and child porn.

So while Feinstein and Harris voted against the use of 702 to collect known domestic communications, they’re still okay using domestic Tor commuincations they say they don’t want to let NSA collect to prosecute Americans (which is actually not surprising given their past actions on sex workers).

Again, they’re counting on the fact that the bill report is written such that their constituents won’t know that this is going on. Unless they read me.

Look, I get the need to collect on Tor traffic to go after its worst uses. But if you’re going to do that, stop pretending this is a foreign surveillance bill, and instead either call it a secret court bill (one that effectively evades warrant requirements for all Tor wiretapping in this country), or admit you’re doing that collection and put review of it back into criminal courts where it belongs.

Ron Wyden Is Worried the Government Will Use FISA Process to Force Companies to Make Technical Changes

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Ron Wyden and Rand Paul just introduced their bill to fix Section 702. It’s a good bill that not only improves Section 702 (by prohibiting back door searches, prohibiting the 2014 exception, and limiting use of 702 data), but also improves FISC and PCLOB.

The most alarming part of the bill, though, is Section 14. It prohibits the Attorney General and Director of National Intelligence from asking for technical assistance under Section 702 that is not narrowly targeted or explicitly laid out and approved by the court.

(B) LIMITATIONS.—The Attorney General or the Director of National Intelligence may not request assistance from an electronic communication service provider under subparagraph (A) without demonstrating, to the satisfaction of the Court, that the assistance sought—

(i) is necessary;

(ii) is narrowly tailored to the surveillance at issue; and

(iii) would not pose an undue burden on the electronic communication service provider or its customers who are not an intended target of the surveillance.

(C) COMPLIANCE.—An electronic communication service provider is not obligated to comply with a directive to provide assistance under this paragraph unless

(i) such assistance is a manner or method that has been explicitly approved by the Court; and

(ii) the Court issues an order, which has been delivered to the provider, explicitly describing the assistance to be furnished by the provider that has been approved by the Court.

This suggests that Wyden is concerned the government might use — or has used — FISA to make sweeping onerous technical demands of companies without explicitly explaining what those demands are to the Court.

The most obvious such application would involve asking Apple to back door its iPhone encryption.

As a reminder, national security requests to Apple doubled in the second half of last year.

The number of national security orders issued to Apple by US law enforcement doubled to about 6,000 in the second half of 2016, compared with the first half of the year, Apple disclosed in its biannual transparency report. Those requests included orders received under the Foreign Intelligence Surveillance Act, as well as national security letters, the latter of which are issued by the FBI and don’t require a judge’s sign-off.

We would expect such a jump if the government were making a slew of new requests of Apple related to breaking encryption on their phones.

After the Ad Hominem Approach to Surveillance Reauthorization Fails, Spooks Now Revert to Secrecy

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As I have noted, thus far the surveillance boosters’ favored approach to Section 702 reauthorization has been to engage in ad hominem attacks against people engaging in good faith in the legislative process (even while they, themselves, make what would most charitably be called significant errors). Even when people make a concerted effort to avoid such sloppy attacks — as FBI Director Christopher Wray did at a recent appearance — they still accuse others of believing in myths while ignoring their own myth-making.

But now Richard Burr and the spooks he caters to are adopting another approach: legislating in secret.

The SSCI is reportedly moving to mark up their own version of Section 702 reauthorization this week — a bill crafted by Senators Burr, Warner, Feinstein, and Cornyn. The make-up of the team is key: because Cornyn and Feinstein are also on Senate Judiciary, they can sink any alternate bill that moves through that committee (something Feinstein has been doing since at least 2009).

As Wyden says in a letter objecting to the secret mark-up,

Section 702 has been the subject of extensive public testimony, while relevant FISA Court orders, minimization procedures and other documents have been declassified and released to the public. In this context, the public is right to expect that Congress debate the reauthorization of this authority in the open. Indeed, a transparent legislative process is a fundamental hallmark of our democracy.

A bunch of NGOs have also called on Burr to make this mark-up public.

There are several likely reasons why Burr and the spooks want to craft their legislation in secret.

Perhaps most importantly, by holding a closed session, you delay by about a month and a half what happened in the session, what the cleared Senators debated, and the tactical means the Chair (in this case Burr) used to shut down reform suggestions. That’s what happened in 2012, when Feinstein delayed the release of the bill report for about that long, hiding details about Ron Wyden’s attempt to get a count of US persons affected by 702 (see these three posts — one, two, three — for details, though Wyden did manage to call Feinstein out for lying about FISC always finding the collection to be constitutional).

Indeed, I’d bet a lot of money that one reason Burr wants to have a secret mark-up is to the very same thing Feinstein did four years ago: hide the government’s lies about their alleged inability to do a count of how many Americans get sucked up as part of 702, and how.

But the other reason Burr and the spooks likely want to have a mark-up in secret is precisely because of the transparency won since 2013, they don’t have winning arguments anymore. While courts, because of the secrecy reviewing cases without any adversarial process and often not getting a full picture of how 702 works, have found 702 itself constitutional (though the Ninth Circuit largely dodged the question of back door searches), as more and more people understand how it works (and as white men watching the Mike Flynn case come to understand how fragile life can get for those picked up incidentally), the program seems problematic.

And even those who believe 702 in its current form serves an irreplaceable role in our surveillance system can see the need for no-nonsense reforms, such as requiring an amicus help review yearly reauthorization.

In other words, by hiding this mark-up, Burr is conceding that he can’t win this legislative battle democratically. He, and the spooks, have to cheat. And they’re willing to do so, to codify parts of this program that likely wouldn’t pass court review if done in a real adversarial process.

We are at a critical tipping point with surveillance in this country, as the government chips away at the technologies that allow individuals to retain some kind of privacy. And to ensure we slide over that tipping point and down the dangerous slope on the other side, a bunch of spooks and their servants are cowering from democracy.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

The Reclassification of Details on the 2011 Upstream Fight

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As I noted in this post, Charlie Savage recently liberated more details on the resolution of the 2011 upstream 702 problems.

With respect to some details, however, the newly liberated documents represent a reclassification of details that were made public when the October 3, 2011 John Bates opinion was released in 2013. The government has provided entirely classified documents that are probably the early exchanges on the problem, including language that was unclassified in Bates’ 2011 opinion. In addition, the government has redacted dates that were also made public in Bates’ opinion.

I laid out both the timeline and the language cited from those early exchanges in this post. As I noted in this post, that timeline makes it clear that at the same time John Bates was asking NSA to assess the impact of upstream collection on US persons by sampling real NSA collection, Ron Wyden and Mark Udall were asking for the same thing.

I’ve laid out the combined timeline below. What it — and the newly released documents — show is just how brazen James Clapper’s refusal to provide real numbers to Wyden and Udall was. Not only did their request exactly coincide with the government’s request for more time so they could get more data — the count of US persons — to Bates (though Clapper’s record quick response delivered his refusal before Bates got his first real numbers). But the 48-hour turnaround on analysis of SCTs in September shows how quickly NSA can get rough estimates of US person data when they need to.

There are more alarming things the reclassification of these details suggests, which I’ll address in a follow-up. But for now, know that in 2011, the Intelligence Community refused to treat Congress with the same respect due a co-equal branch of government as it was treating Bates (and that’s the deep background to James Clapper’s 2013 “not wittingly” response).

April 2011, unknown date: Wyden and Udall ask for estimate of US person collection verbally

 

April 19, 2011: Notice of two upstream overcollection violations [see PDF 144]

April 20, 2011: One recertification submission

April 22, 2011: Two more recertification submissions

May 2, 2011: Clarification letter first admits MCT problem

May 5, 2011: Government asks for extension until July 22, 2011

May 9, 2011: Court grants extension, issues briefing order

June 1, 2011: Government submits response to briefing order

June 17, 2011: Court presents follow-up questions

June 28, 2011: Government response to follow-up questions

July 8, 2011: Court (John Bates) meets with senior DOJ people, tells them he has serious concerns

July 14, 2011: Government files another extension; court grants extension to September 20, 2011

July 14, 2011: Wyden and Udall send letter to James Clapper asking (among other things):

  • In a December 2007 Statement of Administration Policy on the FISA Amendments Act, the Office of Management and Budget said that it would “likely be impossible” to count the number of people located in the United States whose communications were reviewed by the government pursuant to the FISA Amendments Act. Is this still the case? If so, is it possible to estimate this number with any accuracy?
  • Have any apparently law-abiding Americans had their communications collected by the government pursuant to the FISA Amendments Act?

July 26, 2011: Clapper responds to Wyden and Udall, refusing to give numbers or describe compliance incidents

August 16, 2011: Government files supplement, presenting results of “manual review of statistically representative sample” for 6 months

August 22, 2011: Meeting between Court and government

August 30, 2011: Government makes another submission

September 7, 2011: Court has hearing

September 9, 2011: Government files additional submission, submitting results of analysis of SCTs completed in just 48 hours

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

The Domestic Communications NSA Won’t Reveal Are Almost Certainly Obscured Location Communications

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The other day, I laid out the continuing fight between Director of National Intelligence Dan Coats and Senator Ron Wyden over the former’s unwillingness to explain why he can’t answer the question, “Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?” in unclassified form. As I noted, Coats is parsing the difference between “intentionally acquir[ing] any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States,” which Section 702 prohibits, and “collect[ing] communications [the government] knows are entirely domestic,” which this exchange and Wyden’s long history of calling out such things clearly indicates the government does.

As I noted, the earlier iteration of this debate took place in early June. Since then, we’ve gotten two sets of documents that all but prove that the entirely domestic communication the NSA refuses to tell us about involves communications that obscure their location, probably via Tor or VPNs.

Most Entirely Domestic Communications Collected Via Upstream Surveillance in 2011 Obscured Their Location

The first set of documents are those on the 2011 discussion about upstream collection liberated just recently by Charlie Savage. They show that in the September 7, 2011 hearing, John Bates told the government that he believed the collection of discrete communications the government had not examined in their sampling might also contain “about” communications that were entirely domestic. (PDF 113)

We also have this other category, in your random sampling, again, that is 9/10ths of the random sampling that was set aside as being discrete communications — 45,000 out of the 50,0000 — as to which our questioning has indicataed we have a concern that some of the about communications may actually have wholly domestic communications.

And I don’t think that you’ve really assessed that, either theoretically or by any actual examination of those particular transactions or communications. And I’m not indicating to you what I expect you to do, but I do have this concern that there are a fair number of wholly domestic communications in that category, and there’s nothing–you really haven’t had an opportunity to address that, but there’s nothing that has been said to date that would dissuade me from that conclusion. So I’m looking there for some convincing, if you will, assessment of why there are not wholly domestic communications with that body which is 9/10s of the random sample.

In a filing submitted two days later, the government tried to explain away the possibility this would include (many) domestic communications. (The discussion responding to this question starts at PDF 120.) First, the NSA used technical means to determine that 41,272 of the 45,359 communications in the sample were not entirely domestic. That left 4,087 communications, which the NSA was able to analyze in just 48 hours. Of those, the NSA found just 25 that were not to or from a tasked selector (meaning they were “abouts” or correlated identities, described as “potentially alternate accounts/addresses/identifiers for current NSA targets” in footnote 7, which may be the first public confirmation that NSA collects on correlated identifiers). NSA then did the same kind of analysis it does on the communications that it does as part of its pre-tasking determination that a target is located outside the US. This focused entirely on location data.

Notably, none of the reviewed transactions featured an account/address/identifier that resolved to the United States. Further, each of the 25 communications contained location information for at least one account/address/identifier such that NSA’s analysts were able assess [sic] that at least one communicant for each of these 25 communications was located outside of the United States. (PDF 121)

Note that the government here (finally) drops the charade that these are simply emails, discussing three kinds of collection: accounts (which could be both email and messenger accounts), addresses (which having excluded accounts would significantly include IP addresses), and identifiers. And they say that having identified an overseas location for the communication, NSA treats it as an overseas communication.

The next paragraph is even more remarkable. Rather than doing more analysis on those just 25 communications it effectively argues that because latency is bad, it’s safe to assume that any service that is available entirely within the US will be delivered to an American entirely within the US, and so those 25 communications must not be American.

Given the United States’ status as the “world’s premier electronic communications hub,” and further based on NSA’s knowledge of Internet routing patterns, the Government has already asserted that “the vast majority of communications between persons located in the United States are not routed through servers outside the United Staes.” See the Government’s June 1, 2011 Submission at 11. As a practical matter, it is a common business practice for Internet and web service providers alike to attempt to deliver their customers the best user experience possible by reducing latency and increasing capacity. Latency is determined in part by the geographical distance between the user and the server, thus, providers frequently host their services on servers close to their users, and users are frequently directed to the servers closest to them. While such practices are not absolute in any respect and are wholly contingent on potentially dynamic practices of particular service providers and users,9 if all parties to a communication are located in the United States and the required services are available in the United States, in most instances those communications will be routed by service providers through infrastructure wholly within the United States.

Amid a bunch of redactions (including footnote 9, which is around 16 lines long and entirely redacted), the government then claims that its IP filters would ensure that it wouldn’t pick up any of the entirely domestic exceptions to what I’ll call its “avoidance of latency” assumption and so these 25 communications are no biggie, from a Fourth Amendment perspective.

Of course, the entirety of this unredacted discussion presumes that all consumers will be working with providers whose goal is to avoid latency. None of the unredacted discussion admits that some consumers choose to accept some latency in order to obscure their location by routing it through one (VPN) or multiple (Tor) servers distant from their location, including servers located overseas.

For what it’s worth, I think the estimate Bates did on his own to come up with a number of these SCTs was high, in 2011. He guessed there would be 46,000 entirely domestic communications collected each year; by my admittedly rusty math, it appears it would be closer to 12,000 (25 / 50,000 comms in the sample = .05% of the total; .05% of the 11,925,000 upstream transactions in that 6 month period = 5,962, times 2 = roughly 12,000 a year). Still, it was a bigger part of the entirely domestic upstream collection than those collected as MCTs, and all those entirely domestic communications have been improperly back door searched in the interim.

Collyer claims to have ended “about” collection but admits upstream will still collect entirely domestic communications

Now, if that analysis done in 2011 were applicable to today’s collection, there shouldn’t be a way for the NSA to collect entirely domestic communications today. That’s because all of those 25 potentially domestic comms were described as “about” collection. Rosemary Collyer has, according to her IMO apparently imperfect understanding of upstream collection, shut down “about” collection. So that should have eliminated the possibility for entirely domestic collection via upstream, right?

Nope.

As she admits in her opinion, it will still be possible for the NSA to “acquire an MCT” (that is, bundled collection) “that contains a domestic communication.”

So there must be something that has changed since 2011 that would lead NSA to collect entirely domestic communications even if that communication didn’t include an “about” selector.

In 2014 Collyer enforced a practice that would expose Americans to 702 collection

Which brings me back to the practice approved in 2014 in which, according to providers newly targeted under the practice, “the communications of U.S. person will be collected as part of such surveillance.”

As I laid out in this post, in 2014 Thomas Hogan approved a change in the targeting procedures. Previously, all users of a targeted facility had to be foreign for it to qualify as a foreign target. But for some “limited” exception, Hogan for the first time permitted the NSA to collect on a facility even if Americans used that facility as well, along with the foreign targets.

The first revision to the NSA Targeting Procedures concerns who will be regarded as a “target” of acquisition or a “user” of a tasked facility for purposes of those procedures. As a general rule, and without exception under the NSA targeting procedures now in effect, any user of a tasked facility is regarded as a person targeted for acquisition. This approach has sometimes resulted in NSA’ s becoming obligated to detask a selector when it learns that [redacted]

The relevant revision would permit continued acquisition for such a facility.

It appears that Hogan agreed it would be adequate to weed out American communications after collection in post-task analysis.

Some months after this change, some providers got some directives (apparently spanning all three known certificates), and challenged them, though of course Collyer didn’t permit them to read the Hogan opinion approving the change.

Here’s some of what Collyer’s opinion enforcing the directives revealed about the practice.

Collyer’s opinion includes more of the provider’s arguments than the Reply did. It describes the Directives as involving “surveillance conducted on the servers of a U.S.-based provider” in which “the communications of U.S. person will be collected as part of such surveillance.” (29) It says [in Collyer’s words] that the provider “believes that the government will unreasonably intrude on the privacy interests of United States persons and persons in the United States [redacted] because the government will regularly acquire, store, and use their private communications and related information without a foreign intelligence or law enforcement justification.” (32-3) It notes that the provider argued there would be “a heightened risk of error” in tasking its customers. (12) The provider argued something about the targeting and minimization procedures “render[ed] the directives invalid as applied to its service.” (16) The provider also raised concerns that because the NSA “minimization procedures [] do not require the government to immediately delete such information[, they] do not adequately protect United States person.” (26)

[snip]

Collyer, too, says a few interesting things about the proposed surveillance. For example, she refers to a selector as an “electronic communications account” as distinct from an email — a rare public admission from the FISC that 702 targets things beyond just emails. And she treats these Directives as an “expansion of 702 acquisitions” to some new provider or technology.

Now, there’s no reason to believe this provider was involved in upstream collection. Clearly, they’re being asked to provide data from their own servers, not from the telecom backbone (in fact, I wonder whether this new practice is why NSA has renamed “PRISM” “downstream” collection).

But we know two things. First: the discrete domestic communications that got sucked up in upstream collection in 2011 appear to have obscured their location. And, there is now a means of collecting bundles of communications via upstream collection (assuming Collyer’s use of MCT here is correct, which it might not be) such that even communications involving no “about” collection would be swept up.

Again, the evidence is still circumstantial, but there is increasing evidence that in 2014 the NSA got approval to collect on servers that obscure location, and that that is the remaining kind of collection (which might exist under both upstream and downstream collection) that will knowingly be swept up under Section 702. That’s the collection, it seems likely, that Coats doesn’t want to admit.

The problems with permitting collection on location-obscured Americans

If I’m right about this, then there are three really big problems with this practice.

First, in 2011, location-obscuring servers would not themselves be targeted. Communications using such servers would only be collected (if the NSA’s response to Bates is to be believed) if they included an “about’ selector.

But it appears there is now some collection that specifically targets those location-obscuring servers, and knowingly collects US person communications along with whatever else the government is after. If that’s right, then it will affect far more than just 12,000 people a year.

That’s especially true given that a lot more people are using location-obscuring servers now than on October 3, 2011, when Bates issued his opinion. Tor usage in the US has gone from around 150,000 mean users a day to around 430,000 users.

And that’s just Tor. While fewer VPN users will consistently use overseas servers, sometimes it will happen for efficacy reasons and sometimes it will happen to access content that is unavailable in the US (like decent Olympics coverage).

In neither of Collyer’s opinions did she ask for the kind of numerical counts of people affected that Bates asked for in 2011. If 430,000 Americans a day are being exposed to this collection under the 2014 change, it represents a far bigger problem than the one Bates called a Fourth Amendment violation in 2011.

Finally, and perhaps most importantly, Collyer newly permitted back door searches on upstream collection, even though she knew that (for some reason) it would still collect US person communications. So not only could the NSA collect and hold location obscured US person communications, but those communications might be accessed (if they’re not encrypted) via back door searches that (with Attorney General approval) don’t require a FISA order (though Americans back door searched by NSA are often covered by FISA orders).

In other words, if I’m right about this, the NSA can use 702 to collect on Americans. And the NSA will be permitted to keep what they find (on a communication by communication basis) if they fall under four exceptions to the destruction requirement.

The government is, once again, fighting Congressional efforts to provide a count of how many Americans are getting sucked up in 702 (even though the documents liberated by Savage reveal that such a count wouldn’t take as long as the government keeps claiming). If any of this speculation is correct, it would explain the reluctance. Because once the NSA admits how much US person data it is collecting, it becomes illegal under John Bates’ 2010 PRTT order.

Coats v. Wyden, the Orwellian Reclassification Edition

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Back on June 7, Ron Wyden asked a question similar to the one he asked James Clapper in 2013: “Can the government use FISA 702 to collect communications it knows are entirely domestic?” As Clapper did 4 years before ,Coats denied that it could. “Not to my knowledge. It would be against the law.”

The claim was particularly problematic, given that less than two months earlier, Coats had signed a Section 702 certificate that admitted that the NSA would acquire entirely domestic communications via upstream collection.

When I asked ODNI about Coats’ comment, they responded by citing FISA.

Section 702(b)(4) plainly states we “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.” The DNI interpreted Senator Wyden’s question to ask about this provision and answered accordingly.

On June 15, Wyden — as he had in 2013 — insisted that Coats answer the question he asked, not the one that made for easy public assurances.

That was not my question. Please provide a public response to my question, as asked at the June 7, 2017 hearing.

After Wyden asked a few more times — again, as happened in 2013 — Coats provided a classified response on July 24. On September 1, however, Coats wrote Wyden stating that,

After consulting with the relevant intelligence agencies, I concluded that releasing the information you are asking to be made public would cause serious damage to national security. To that end, I provided you a comprehensive classified response to your question on July 24.

[snip]

While I recognize your goal of an unclassified response, given the need to include classified information to fully address your question, the classified response provided on July 24 stands as our response on this matter.”

Wyden is … unsatisfied … with this response.

It is hard to view Director Coats’ behavior as anything other than an effort to keep Americans in the dark about government surveillance. I asked him a simple, yes-or-no question: Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

What happened was almost Orwellian. I asked a question in an open hearing. No one objected to the question at the time. Director Coats answered the question. His answer was not classified. Then, after the fact, his press office told reporters, in effect, Director Coats was answering a different question.

I have asked Director Coats repeatedly to answer the question I actually asked. But now he claims answering the question would be classified, and do serious damage to national security.

The refusal of the DNI to answer this simple yes-no question should set off alarms. How can Congress reauthorize this surveillance when the administration is playing games with basic questions about this program?

This is on top of the administration’s recent refusal even to estimate how many Americans’ communications are swept up under this program.

The Trump administration appears to have calculated that hiding from Americans basic information relevant to their privacy is the easiest way to renew this expansive surveillance authority. The executive branch is rejecting a fundamental principle of oversight by refusing to answer a direct question, and saying that Americans don’t deserve to know when and how the government watches them.

Significantly, in the midst of this back-and-forth about targeting, Wyden and Coats were engaged in a parallel back-and-forth about counting how many US persons are impacted by Section 702. In a letter sent to Coats on August 3, Wyden suggested that it might be easier for NSA to count how many people located in the US are affected by Section 702.

First, whatever challenges there may be arriving at an estimate of U.S. persons whose communications have been collected under Section 702, those challenges may not apply equally to persons located in the United States. I believe that the impact of Section 702 on persons inside the United States would constitute a “relevant metric,” and that your conclusion that an estimate can and should be revisited on that basis.

So effectively, Coats is willing to say publicly that the NSA can’t knowingly target entirely domestic communications, but it does knowingly collect entirely domestic communications. But he’s unwilling to explain how or why it continues to do so in the wake of ending “about” collection.

And in the middle of Coats’ non-admission, Wyden challenged him to come up with a count of how many people in America are affected by Section 702, which would presumably include those incidentally collected because they were communicated with a target, but also these entirely domestic communications that Coats admits exist but won’t explain.

I’ll try to explain in a follow-up what I think this is about.

Senate Intelligence Committee Tried to Say WikiLeaks Constituted — Not Just Resembled — A Spy

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The bill report for the Intelligence Authorization is out. Among other things, it provides more details on the Senate Intelligence Committee’s efforts to get WikiLeaks treated as a non-state hostile intelligence service. It reveals that the original language of the bill

By voice vote, the Committee adopted a second-degree amendment by Senator King to an amendment by Senator Wyden that would have stricken Section 623 of the bill. Section 623 originally provided a Sense of Congress that WikiLeaks and its senior leadership constitute a non-state hostile intelligence service.

By a vote of 13 ayes to 2 noes, the Committee adopted the amendment by Senator Wyden that would have stricken Section 623 of the bill, as modified by the second-degree amendment by Senator King, to provide a Sense of Congress that WikiLeaks and its senior leadership resemble a non-state hostile intelligence service. The votes in person or by proxy were as follows: [my emphasis]

Chairman Burr–aye;

Senator Risch–aye;

Senator Rubio–aye;

Senator Collins–aye;

Senator Blunt–aye;

Senator Lankford–aye;

Senator Cotton–aye;

Senator Cornyn–aye;

Vice Chairman Warner–aye;

Senator Feinstein–aye;

Senator Wyden–no;

Senator Heinrich–aye;

Senator King–aye;

Senator Manchin–aye;

Senator Harris–no.

As you can see, Kamala Harris is the only one, besides Ron Wyden, who voted against this troubling amendment.

Here’s her statement from the report:

In particular, I have reservations about Section 623, which establishes a Sense of Congress that WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service. The Committee’s bill offers no definition of “non-state hostile intelligence service” to clarify what this term is and is not. Section 623 also directs the United States to treat WikiLeaks as such a service, without offering further clarity.

To be clear, I am no supporter of WikiLeaks, and believe that the organization and its leadership have done considerable harm to this country. This issue needs to be addressed. However, the ambiguity in the bill is dangerous because it fails to draw a bright line between WikiLeaks and legitimate journalistic organizations that play a vital role in our democracy.

I supported efforts to remove this language in Committee and look forward to working with my colleagues as the bill proceeds to address my concerns.

Senate Intelligence Bill Aims to Label WikiLeaks — and Maybe the Journalists Who Look Like Them — Spooks

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I’m reading the draft Senate Intelligence Authorization for 2018; in a follow-up, I will lay out why it is a remarkably useful bill, particularly in the way it addresses vulnerabilities identified in the wake of the Russian efforts to tamper with our election.

But there is a major point of concern, one which led Senator Ron Wyden to vote against the bill in committee. Attached to a must-pass bill, it holds that it is the sense of Congress that WikiLeaks resembles a non-state hostile intelligence service.

SEC. 623. SENSE OF CONGRESS ON WIKILEAKS.

It is the sense of Congress that WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service often abetted by state actors and should be treated as such a service by the United States.

In explaining his opposition to the provision, Wyden laid out all the unintended consequences that might come from labeling WikiLeaks a hostile intelligence service. “My concern is that the use of the novel phrase ‘non-state hostile intelligence service’ may have legal, constitutional, and policy implications, particularly should it be applied to journalists inquiring about secrets,” stated Senator Wyden. “The language in the bill suggesting that the U.S. government has some unstated course of action against ‘non-state hostile intelligence services’ is equally troubling. The damage done by WikiLeaks to the United States is clear. But with any new challenge to our country, Congress ought not react in a manner that could have negative consequences, unforeseen or not, for our constitutional principles. The introduction of vague, undefined new categories of enemies constitutes such an ill-considered reaction.”

Wyden has a point. If WikiLeaks is treated as an intelligence service, for example, then anyone having extensive conversations with them can be targeted for surveillance. Any assistance someone gives — like donations — can be deemed a potential criminal violation. And a lot of people who access and support Wikileaks because of the content it publishes may be deemed suspect.

Wyden did find other things in the bill to praise, including three things he sponsored, two of them explicitly tied to the Russian threat:

  1. A report on the threat to the United States from Russian money laundering. The amendment calls on intelligence agencies to work with elements of the Treasury Department’s Office of Terrorism and Financial Intelligence, such as the Financial Crimes Enforcement Network (FinCEN), to assess the scope and threat of Russian money laundering to the United States.
  2. Requires Congressional notification before the establishment of any U.S.-Russia cybersecurity unit, including a report on what intelligence will be shared with the Russians, any counterintelligence concerns, and how those concerns would be mitigated.
  3. A report from the Intelligence Community on whether cyber security vulnerabilities in the U.S. cell network, including known vulnerabilities to SS7, are resulting in foreign government surveillance of Americans. The report follows on a study by the Department of Homeland Security that found major, widespread weaknesses in U.S. mobile networks.

But he nevertheless voted against the bill to register his concerns about the new label for WikiLeaks.

The WikiLeaks language would sure make it harder for Trump to exchange information with Julian Assange in exchange for a pardon. But tacking this onto such an otherwise useful bill seems like a bad idea.