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

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

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

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

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

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

2007

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

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

2008

McConnell and Mukasey Tell Half Truths

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

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

2009

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

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

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

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

Bush’s Illegal Domestic Surveillance Program and Section 215

On PATRIOTs and JUSTICE: Feingold Aims for Justice

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

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

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

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

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

2010

Throwing our PATRIOT at Assange

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

2011

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

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

Using Domestic Surveillance to Get Rapists to Spy for America

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

2012

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

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

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

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

2013

20 Questions: Mike Rogers’ Vaunted Section 215 Briefings

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

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

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

Federated Queries and EO 12333 FISC Workaround

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

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

This post described how this worked with the metadata dragnets.

The Purpose(s) of the Dragnet, Revisited

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

2014

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

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

SPCMA: The Other NSA Dragnet Sucking In Americans

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

The August 20, 2008 Correlations Opinion

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

A Yahoo! Lesson for USA Freedom Act: Mission Creep

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

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

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

2015

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

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

The FISA Court’s Uncelebrated Good Points

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

How the Government Uses Location Data from Mobile Apps

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

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

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

FBI Asks for at Least Eight Correlations with a Single NSL

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

2016

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

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

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

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

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

The Yahoo Scan: On Facilities and FISA

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

2017

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

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

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

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

The Problems with Rosemary Collyer’s Shitty Upstream 702 Opinion

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

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

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

UNITEDRAKE and Hacking under FISA Orders

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

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

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

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

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

FISA and the Space-Time Continuum

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

The Senate Intelligence Committee 702 Bill Is a Domestic Spying Bill

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

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

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

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

10 Years of emptywheel: Key Non-Surveillance Posts 2016-2017

10 Years of emptywheel: Jim’s Dimestore

What Queries of Metadata Derived from Upstream Data Might Include

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In this post, I explained that at virtually the exact moment the NSA shut down the PRTT dragnet in 2011, FISC permitted it to start querying metadata derived from upstream collection. After that happened, it started distinguishing between data that was “handled” according to minimization procedures and data that was “processed” before being intelligible.

In this post, I want to talk about what we can learn about metadata derived from FAA 702 from the opinion that authorized it and this document which based on the date, I assume pertains at least to upstream 702 derived metadata (from which the two kinds of MCTs most likely to include domestic communications would be excluded).

First, assuming that this querying document does include upstream, then it means that entirely domestic communications might be included in the querying. The opinion allows,

NSA to copy metadata from Internet transactions that are not subject tosegregation pursuant to Section 3(b) without first complying with the other rules for handlingnon-segregated transactions – i.e., without ruling out that the metadata pertained to a discretewholly domestic communication or to a discrete non-target communication to or from a U.S.person or a person inside the United States.

This means that after the data comes in to NSA and the two types of metadata most likely to include domestic MCTs are segregated, it can be made available to metadata analysis. The NSA prevented queries of segregated data via technical means.

NSA’s technical implementation will ensure that USP metadata queries of FAA 702 collection will only run against communications metadata derived from FAA 702 [redacted] and telephony collection.

The document stated that “NSA’s Technical Directorate (TD) continues to work to implement this requirement.” It’s not clear whether that language dates to December 16, 2011, when it was first written, or to August 19, 2013, when it was most recently revised.

Yet even assuming that technical protection occurred, there would still be Americans in the pool. According to John Bates’ estimate from the same year, there might be 46,000 domestic communications in there that ended up in the batch because the domestic communication that made mention of targeted selector transited internationally, which led them to get caught in filters supposedly targeted at international traffic.

The opinion mandates that, if after doing the analysis, the analyst realizes she has a completely domestic communication, she has to destroy it (though that requirement would get softer the next year). But a footnote also reveals that the means of determining if a selector was American was not failsafe.

NSA will rely on an algorithm and/or a business rule to identify queries of communications metadata derived from the FAA 702 [redacted] and telephony collection that start with a United States person identifier. Neither method will identify those queries that start with a United States person identifier with 100 percent accuracy.

Moreover, in an apparent bid to have this querying process interact relatively seamlessly with Special Procedures Communications Metadata Analysis (SPCMA — a way to query EO 12333 metadata incorporating US person identifiers), the standards were lackadaisical. As with SPCMA, an analyst had to come up with a foreign intelligence justification, but that’s just a “memory aid” in case the analyst gets questioned about it “long after the fact” in a fact check. Analysts don’t have to seek approval before they use a particular selector to query and they’re not required to attach any supporting documentation for their justification (this was in 2013, so requirements may be stronger in the wake of the PCLOB report). And SPCMA training is considered adequate to query metadata derived from 702.

In other words (again, assuming this pertains to upstream querying), there are several risks: that US person data will get thrown in the mix, that it won’t get identified by an algorithm as such, and so that that query result will lead to further spying on a US person without getting destroyed.

Still, as made clear, the alternative is SPCMA, which offers even fewer protections than 702 querying.

One more thought: the NSA report on the aftermath of Bates’ upstream decision (and the implementation of the 2012 certificates) revealed the PRISM providers incurred cost with the transition between certificates. It’s actually quite possible that the upstream metadata queries would come to constitute a critical part of the targeting process, effectively identifying what Goole or Yahoo content might be of interest at the metadata stage, only then to submit that to the provider for the content. If that’s true, it would be somewhat easy to end up targeting a US person for content collection via such upstream searches (though that presumably would be captured in the post-targeting process).

The Shell Game the Government Played During Yahoo’s Protect America Act Challenge

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In his opinion finding Protect America Act constitutional, Judge Reggie Walton let his frustration with the way the government kept secretly changing the program at issue show.

For another, the government filed a classified appendix with the Court in December 2007, which contained the certifications and procedures underlying the directives, but the government then inexplicably modified and added to those certifications and procedures without appropriately informing the Court or supplementing the record in this matter until ordered to do so. These changes and missteps by the government have greatly delayed the resolution of its motion, and, among other things, required this Court to order additional briefing and consider additional statutory issues, such as whether the P AA authorizes the government to amend certifications after they are issued, and whether the government can rely on directives to Yahoo that were issued prior to the amendments.

The unsealed classified appendix released today (the earlier released documents are here) provides a lot more details on the shell game the government played during the Yahoo litigation, even with Walton. (It also shows how the government repeatedly asked the court to unseal documents so it could share them with Congressional Intelligence Committees or other providers it wanted to cooperate with PAA).

I mean, we expected the government to demand that Yahoo litigate blind, as it did in this February 26, 2008 brief arguing Yahoo shouldn’t be able to see any classified information as it tried to represent the interests of its American customers. (PDF 179)

In the approximately thirty years since the adoption of FISA, no court has held that disclosure of such documents is necessary to determine the legality of electronic surveillance and physical search. Similarly, there is of course a long history of ex parte and in camera proceedings before this Court. For almost three decades, this Court has determined, ex parte and in camera, the lawfulness of electronic surveillance and physical search under FISA. See 50 U.S.C. § 1805(a) (“the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance” upon making certain findings); 50 U.S.C. § 1824(a) (same with respect to physical search).

Under the Protect America Act, then, the government has an unqualified right to have the Court review a classified submission ex parte and in camera which, of course, includes the unqualified right to keep that submission from being disclosed to any party in an adversarial proceeding before this Court.

But we shouldn’t expect a FISC judge presiding over a key constitutional challenge to have to beg to learn what he was really reviewing, as Walton had to do here. (PDF 159-160)

The Court is issuing this ex parte order to the Government requiring it to provide clarification concerning the impact on this case of various government filings that have been made to the FISC under separate docket.

[snip]

lt is HEREBY ORDERED that the government shall file a brief no later than February 20. 2008, addressing the following questions: 1. Whether the classified appendix that was provided to the Court in December 2007 constitutes the complete and up-to-date set of certifications and supporting documents (to include affidavits, procedures concerning the location of targets, and minimization procedures) that are applicable to the directives at issue in this proceeding. If the answer to this question is .. yes,'” the government” s brief may be filed ex parte. If the government chooses to serve Yahoo with a copy of the brief~ it shall serve a copy of this Order upon Yahoo as well.

2. If the answer to question number one is “no,” the Government shall state what additional documents it believes are currently in effect and applicable to the directives to Yahoo that are at issue in this proceeding. The government shall file copies of any such documents with the Court concurrent with filing its brief. The government shall serve copies of this Order, its brief, and any additional documents upon Yahoo, unless the government moves this Court for leave to file its submission ex parte, either in whole or in part. If the government files such a motion with the Court, it shall serve a copy of its motion upon Yahoo. The government shall also serve a copy of this Order upon Yahoo, unless the government establishes good cause for not doing so within the submission it seeks to file ex parte.

This is what elicited the government’s indignant brief about actually telling Yahoo what it was arguing about.

As a result of the government’s successful argument Yahoo had to argue blind, it did not learn — among other things — that CIA would get all the data Yahoo was turning over to the government, or that the government had basically totally restructured the program after the original expiration date of the program, additional issues on which Yahoo might have challenged the program.

Perhaps more interesting is that it wasn’t until Walton ruled on March 5 that he would not force the government to share any of these materials with Yahoo that the government finally provided the last relevant document to Judge Walton, the Special Procedures Governing Communications Metadata Analysis. (PDF 219)

On January 3, 2008, the Attorney General signed the “Department of Defense Supplemental Procedures Governing Communications Metadata Analysis,” which purported to supplement the DoD Procedures (“Supplement to DoD Procedures”), a copy of which is attached hereto as Exhibit A. The Supplement to DoD Procedures concerns the analysis of communications metadata that has already been lawfully acquired by DoD components, including the National Security Agency (NSA). Specifically, the Supplement to DoD Procedures clarifies that NSA may analyze communications metadata associated with U.S. persons and persons believed to be in the United States. The Supplement to DoD Procedures does not relate to the findings the Attorney General must make to authorize acquisition against a U.S. person overseas

This is particularly suspect given that one of the changes implemented after the original certification was to share data with CIA, something directly addressed in the memo justifying SPCMA to the Attorney General’s office (and a detail the government is still trying to officially hide).

Now, to be fair, in the original release, it was not clear that the government offered this much explanation for SPCMA, making it clear that the procedural change involved making American metadata visible. But the government very clearly suggested — falsely — that SPCMA had no Fourth Amendment implications because they didn’t make Americans overseas more likely to be targeted (which the government already knew was the key thrust of Yahoo’s challenge).

The opposite is true: by making US person metadata visible, it ensured the government would be more likely to focus on communications of those with whom Americans were communicating. These procedures — which were approved more than two months, one document dump, and one court order agreeing to keep everything secret from Yahoo earlier — were and remain the key to the Fourth Amendment exposure for Americans, as was argued just last year. And they weren’t given to even the judge in this case until he asked nicely a few times.

This was the basis for the dragnet that still exposes tens of thousands of Americans to warrantless surveillance. And it got briefed as an afterthought, well after the government could be sure it’d get no adversarial challenge.

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

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Last month’s squabble between Marco Rubio and Ted Cruz about USA Freedom Act led a number of USAF boosters to belatedly understand what I’ve been writing for years: that USAF expanded the universe of people whose records would be collected under the program, and would therefore expose more completely innocent people, along with more potential suspects, to the full analytical tradecraft of the NSA, indefinitely.

In an attempt to explain why that might be so, Julian Sanchez wrote this post, focusing on the limits on location data collection that restricted cell phone collection. Sanchez ignores two other likely factors — the probable inclusion of Internet phone calls and the ability to do certain kinds of connection chaining — that mark key new functionalities in the program which would have posed difficulties prior to USAF. But he also misses a lot of the public facts about location collection and cell phones under the Section 215 dragnet.  This post will lay those out.

The short version is this: the FISC appears to have imposed some limits on prospective cell location collection under Section 215 even as the phone dragnet moved over to it, and it was not until August 2011 that NSA started collecting cell phone records — stripped of location — from AT&T under Section 215 collection rules. The NSA was clearly getting “domestic” records from cell phones prior to that point, though it’s possible they weren’t coming from Section 215 data. Indeed, the only known “successes” of the phone dragnet — Basaaly Moalin and Adis Medunjanin — identified cell phones. It’s not clear whether those came from EO 12333, secondary database information that didn’t include location, or something else.

Here’s the more detailed explanation, along with a timeline of key dates:

There is significant circumstantial evidence that by February 17, 2006 — two months before the FISA Court approved the use of Section 215 of the PATRIOT Act to aspire to collect all Americans’ phone records — the FISA Court required briefing on the use of “hybrid” requests to get real-time location data from targets using a FISA Pen Register together with a Section 215 order. The move appears to have been a reaction to a series of magistrates’ rulings against a parallel practice in criminal cases. The briefing order came in advance of the 2006 PATRIOT Act reauthorization going into effect, which newly limited Section 215 requests to things that could be obtained with a grand jury subpoena. Because some courts had required more than a subpoena to obtain location, it appears, FISC reviewed the practice in the FISC — and, given the BR/PR numbers reported in IG Reports, ended, sometime before the end of 2006 though not immediately.

The FISC taking notice of criminal rulings and restricting FISC-authorized collection accordingly would be consistent with information provided in response to a January 2014 Ron Wyden query about what standards the FBI uses for obtaining location data under FISA. To get historic data (at least according to the letter), FBI used a 215 order at that point. But because some district courts (this was written in 2014, before some states and circuits had weighed in on prospective location collection, not to mention the 11th circuit ruling on historical location data under US v. Davis) require a warrant, “the FBI elects to seek prospective CSLI pursuant to a full content FISA order, thus matching the higher standard imposed in some U.S. districts.” In other words, as soon as some criminal courts started requiring a warrant, FISC apparently adopted that standard. If FISC continued to adopt criminal precedents, then at least after the first US v. Davis ruling, it would have and might still require a warrant (that is, an individualized FISA order) even for historical cell location data (though Davis did not apply to Stingrays).

FISC doesn’t always adopt the criminal court standard; at least until 2009 and by all appearances still, for example, FISC permits the collection, then minimization, of Post Cut Through Dialed Digits collected using FISA Pen Registers, whereas in the criminal context FBI does not collect PCTDD. But the FISC does take notice of, and respond to — even imposing a higher national security standard than what exists at some district levels — criminal court decisions. So the developments affecting location collection in magistrate, district, and circuit courts would be one limit on the government’s ability to collect location under FISA.

That wouldn’t necessarily prevent NSA from collecting cell records using a Section 215 order, at least until the Davis decision. After all, does that count as historic (a daily collection of records each day) or prospective (the approval to collect data going forward in 90 day approvals)? Plus, given the PCTDD and some other later FISA decisions, it’s possible FISC would have permitted the government to collect but minimize location data. But the decisions in criminal courts likely gave FISC pause, especially considering the magnitude of the production.

Then there’s the chaos of the program up to 2009.

At least between January 2008 and March 2009, and to some degree for the entire period preceding the 2009 clean-up of the phone and Internet dragnets, the NSA was applying EO 12333 standards to FISC-authorized metadata collection. In January 2008, NSA co-mingled 215 and EO 12333 data in either a repository or interface, and when the shit started hitting the fan the next year, analysts were instructed to distinguish the two authorities by date (which would have been useless to do). Not long after this data was co-mingled in 2008, FISC first approved IMEI and IMSI as identifiers for use in Section 215 chaining. In other words, any restrictions on cell collection in this period may have been meaningless, because NSA wasn’t heeding FISC’s restrictions on PATRIOT authorized collection, nor could it distinguish between the data it got under EO 12333 and Section 215.

Few people seem to get this point, but at least during 2008, and probably during the entire period leading up to 2009, there was no appreciable analytical border between where the EO 12333 phone dragnet ended and the Section 215 one began.

There’s no unredacted evidence (aside from the IMEI/IMSI permission) the NSA was collecting cell phone records under Section 215 before the 2009 process, though in 2009, both Sprint and Verizon (even AT&T, though to a much less significant level) had to separate out their entirely foreign collection from their domestic, meaning they were turning over data subject to EO 12333 and Section 215 together for years. That’s also roughly the point when NSA moved toward XML coding of data on intake, clearly identifying where and under what authority it obtained the data. Thus, it’s only from that point forward where (at least according to what we know) the data collected under Section 215 would clearly have adhered to any restrictions imposed on location.

In 2010, the NSA first started experimenting with smaller collections of records including location data at a time when Verizon Wireless was named on primary orders. And we have two separate documents describing what NSA considered its first collection of cell data under Section 215 on August 29, 2011. But it did so only after AT&T had stripped the location data from the records.

It appears Verizon never did the same (indeed, Verizon objected to any request to do so in testimony leading up to USAF’s passage). The telecoms used different methods of delivering call records under the program. In fact, in August 2, 2012, NSA’s IG described the orders as requiring telecoms to produce “certain call detail records (CDRs) or telephony metadata,” which may differentiate records that (which may just be AT&T) got processed before turning over. Also in 2009, part of Verizon ended its contract with the FBI to provide special compliance with NSLs. Both things may have affected Verizon’s ability or willingness to custom what it was delivering to NSA, as compared to AT&T.

All of which suggests that at least Verizon could not or chose not to do what AT&T did: strip location data from its call records. Section 215, before USAF, could only require providers to turn over records they kept, it could not require, as USAF may, provision of records under the form required by the government. Additionally, under Section 215, providers did not get compensated after the first two dragnet orders.

All that said, the dragnet has identified cell phones! In fact, the only known “successes” under Section 215 — the discovery of Basaaly Moalin’s T-Mobile cell phone and the discovery of Adis Medunjanin’s unknown, but believed to be Verizon, cell phone — did, and they are cell phones from companies that didn’t turn over records. In addition, there’s another case, cited in a 2009 Robert Mueller declaration preceding the Medunjanin discovery, that found a US-based cell phone.

There are several possible explanations for that. The first is that these phones were identified based off calls from landlines and/or off backbone records (so the phone number would be identified, but not the cell information). But note that, in the Moalin case, there are no known land lines involved in the presumed chain from Ayro to Moalin.

Another possibility — a very real possibility with some of these — is that the underlying records weren’t collected under Section 215 at all, but were instead collected under EO 12333 (though Moalin’s phone was identified before Michael Mukasey signed off on procedures permitting the chaining through US person records). That’s all the more likely given that all the known hits were collected before the point in 2009 when the FISC started requiring providers to separate out foreign (EO 12333) collection from domestic and international (Section 215) collection. In other words, the Section 215 phone dragnet may have been working swimmingly up until 2009 because NSA was breaking the rules, but as soon as it started abiding by the rules — and adhering to FISC’s increasingly strict limits on cell location data — it all of a sudden became virtually useless given the likelihood that potential terrorism targets would use exclusively cell and/or Internet calls just as they came to bypass telephony lines. Though as that happened, the permissions on tracking US persons via records collected under EO 12333, including doing location analysis, grew far more permissive.

In any case, at least in recent years, it’s clear that by giving notice and adjusting policy to match districts, the FISC and FBI made it very difficult to collect prospective location records under FISA, and therefore absent some means of forcing telecoms to strip their records before turning them over, to collect cell data.

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The Reasons to Shut Down the (Domestic) Internet Dragnet: Purpose and Dissemination Limits, Correlations, and Functionality

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Charlie Savage has a story that confirms (he linked some of my earlier reporting) something I’ve long argued: NSA was willing to shut down the Internet dragnet in 2011 because it could do what it wanted using other authorities. In it, Savage points to an NSA IG Report on its purge of the PRTT data that he obtained via FOIA. The document includes four reasons the government shut the program down, just one of which was declassified (I’ll explain what is probably one of the still-classified reasons probably in a later post). It states that SPCMA and Section 702 can fulfill the requirements that the Internet dragnet was designed to meet. The government had made (and I had noted) a similar statement in a different FOIA for PRTT materials in 2014, though this passage makes it even more clear that SPCMA — DOD’s self-authorization to conduct analysis including US persons on data collected overseas — is what made the switch possible.

It’s actually clear there are several reasons why the current plan is better for the government than the previous dragnet, in ways that are instructive for the phone dragnet, both retrospectively for the USA F-ReDux debate and prospectively as hawks like Tom Cotton and Jeb Bush and Richard Burr try to resuscitate an expanded phone dragnet. Those are:

  • Purpose and dissemination limits
  • Correlations
  • Functionality

Purpose and dissemination limits

Both the domestic Internet and phone dragnet limited their use to counterterrorism. While I believe the Internet dragnet limits were not as stringent as the phone ones (at least in pre 2009 shutdown incarnation), they both required that the information only be disseminated for a counterterrorism purpose. The phone dragnet, at least, required someone sign off that’s why information from the dragnet was being disseminated.

Admittedly, when the FISC approved the use of the phone dragnet to target Iran, it was effectively authorizing its use for a counterproliferation purpose. But the government’s stated admissions — which are almost certainly not true — in the Shantia Hassanshahi case suggest the government would still pretend it was not using the phone dragnet for counterproliferation purposes. The government now claims it busted Iranian-American Hassanshahi for proliferating with Iran using a DEA database rather than the NSA one that technically would have permitted the search but not the dissemination, and yesterday Judge Rudolph Contreras ruled that was all kosher.

But as I noted in this SPCMA piece, the only requirement for accessing EO 12333 data to track Americans is a foreign intelligence purpose.

Additionally, in what would have been true from the start but was made clear in the roll-out, NSA could use this contact chaining for any foreign intelligence purpose. Unlike the PATRIOT-authorized dragnets, it wasn’t limited to al Qaeda and Iranian targets. NSA required only a valid foreign intelligence justification for using this data for analysis.

The primary new responsibility is the requirement:

  • to enter a foreign intelligence (FI) justification for making a query or starting a chain,[emphasis original]

Now, I don’t know whether or not NSA rolled out this program because of problems with the phone and Internet dragnets. But one source of the phone dragnet problems, at least, is that NSA integrated the PATRIOT-collected data with the EO 12333 collected data and applied the protections for the latter authorities to both (particularly with regards to dissemination). NSA basically just dumped the PATRIOT-authorized data in with EO 12333 data and treated it as such. Rolling out SPCMA would allow NSA to use US person data in a dragnet that met the less-restrictive minimization procedures.

That means the government can do chaining under SPCMA for terrorism, counterproliferation, Chinese spying, cyber, or counter-narcotic purposes, among others. I would bet quite a lot of money that when the government “shut down” the DEA dragnet in 2013, they made access rules to SPCMA chaining still more liberal, which is great for the DEA because SPCMA did far more than the DEA dragnet anyway.

So one thing that happened with the Internet dragnet is that it had initial limits on purpose and who could access it. Along the way, NSA cheated those open, by arguing that people in different function areas (like drug trafficking and hacking) might need to help out on counterterrorism. By the end, though, NSA surely realized it loved this dragnet approach and wanted to apply it to all NSA’s functional areas. A key part of the FISC’s decision that such dragnets were appropriate is the special need posed by counterterrorism; while I think they might well buy off on drug trafficking and counterproliferation and hacking and Chinese spying as other special needs, they had not done so before.

The other thing that happened is that, starting in 2008, the government started putting FBI in a more central role in this process, meaning FBI’s promiscuous sharing rules would apply to anything FBI touched first. That came with two benefits. First, the FBI can do back door searches on 702 data (NSA’s ability to do so is much more limited), and it does so even at the assessment level. This basically puts data collected under the guise of foreign intelligence at the fingertips of FBI Agents even when they’re just searching for informants or doing other pre-investigative things.

In addition, the minimization procedures permit the FBI (and CIA) to copy entire metadata databases.

FBI can “transfer some or all such metadata to other FBI electronic and data storage systems,” which seems to broaden access to it still further.

Users authorized to access FBI electronic and data storage systems that contain “metadata” may query such systems to find, extract, and analyze “metadata” pertaining to communications. The FBI may also use such metadata to analyze communications and may upload or transfer some or all such metadata to other FBI electronic and data storage systems for authorized foreign intelligence or law enforcement purposes.

In this same passage, the definition of metadata is curious.

For purposes of these procedures, “metadata” is dialing, routing, addressing, or signaling information associated with a communication, but does not include information concerning the substance, purport, or meaning of the communication.

I assume this uses the very broad definition John Bates rubber stamped in 2010, which included some kinds of content. Furthermore, the SMPs elsewhere tell us they’re pulling photographs (and, presumably, videos and the like). All those will also have metadata which, so long as it is not the meaning of a communication, presumably could be tracked as well (and I’m very curious whether FBI treats location data as metadata as well).

Whereas under the old Internet dragnet the data had to stay at NSA, this basically lets FBI copy entire swaths of metadata and integrate it into their existing databases. And, as noted, the definition of metadata may well be broader than even the broadened categories approved by John Bates in 2010 when he restarted the dragnet.

So one big improvement between the old domestic Internet dragnet and SPCMA (and 702 to a lesser degree, and I of course, improvement from a dragnet-loving perspective) is that the government can use it for any foreign intelligence purpose.

At several times during the USA F-ReDux debate, surveillance hawks tried to use the “reform” to expand the acceptable uses of the dragnet. I believe controls on the new system will be looser (especially with regards to emergency searches), but it is, ostensibly at least, limited to counterterrorism.

One way USA F-ReDux will be far more liberal, however, is in dissemination. It’s quite clear that the data returned from queries will go (at least) to FBI, as well as NSA, which means FBI will serve as a means to disseminate it promiscuously from there.

Correlations

Another thing replacing the Internet dragnet with 702 access does it provide another way to correlate multiple identities, which is critically important when you’re trying to map networks and track all the communication happening within one. Under 702, the government can obtain not just Internet “call records” and the content of that Internet communication from providers, but also the kinds of thing they would obtain with a subpoena (and probably far more). As I’ve shown, here are the kinds of things you’d almost certainly get from Google (because that’s what you get with a few subpoenas) under 702 that you’d have to correlate using algorithms under the old Internet dragnet.

  • a primary gmail account
  • two secondary gmail accounts
  • a second name tied to one of those gmail accounts
  • a backup email (Yahoo) address
  • a backup phone (unknown provider) account
  • Google phone number
  • Google SMS number
  • a primary login IP
  • 4 other IP logins they were tracking
  • 3 credit card accounts
  • Respectively 40, 5, and 11 Google services tied to the primary and two secondary Google accounts, much of which would be treated as separate, correlated identifiers

Every single one of these data points provides a potentially new identity that the government can track on, whereas the old dragnet might only provide an email and IP address associated with one communication. The NSA has a great deal of ability to correlate those individual identifiers, but — as I suspect the Paris attack probably shows — that process can be thwarted somewhat by very good operational security (and by using providers, like Telegram, that won’t be as accessible to NSA collection).

This is an area where the new phone dragnet will be significantly better than the existing phone dragnet, which returns IMSI, IMEI, phone number, and a few other identifiers. But under the new system, providers will be asked to identify “connected” identities, which has some limits, but will nonetheless pull some of the same kind of data that would come back in a subpoena.

Functionality

While replacing the domestic Internet dragnet with SPCMA provides additional data with which to do correlations, much of that might fall under the category of additional functionality. There are two obvious things that distinguish the old Internet dragnet from what NSA can do under SPCMA, though really the possibilities are endless.

The first of those is content scraping. As the Intercept recently described in a piece on the breathtaking extent of metadata collection, the NSA (and GCHQ) will scrape content for metadata, in addition to collecting metadata directly in transit. This will get you to different kinds of connection data. And particularly in the wake of John Bates’ October 3, 2011 opinion on upstream collection, doing so as part of a domestic dragnet would be prohibitive.

In addition, it’s clear that at least some of the experimental implementations on geolocation incorporated SPCMA data.

I’m particularly interested that one of NSA’s pilot co-traveler programs, CHALKFUN, works with SPCMA.

Chalkfun’s Co-Travel analytic computes the date, time, and network location of a mobile phone over a given time period, and then looks for other mobile phones that were seen in the same network locations around a one hour time window. When a selector was seen at the same location (e.g., VLR) during the time window, the algorithm will reduce processing time by choosing a few events to match over the time period. Chalkfun is SPCMA enabled1.

1 (S//SI//REL) SPCMA enables the analytic to chain “from,” “through,” or “to” communications metadata fields without regard to the nationality or location of the communicants, and users may view those same communications metadata fields in an unmasked form. [my emphasis]

Now, aside from what this says about the dragnet database generally (because this makes it clear there is location data in the EO 12333 data available under SPCMA, though that was already clear), it makes it clear there is a way to geolocate US persons — because the entire point of SPCMA is to be able to analyze data including US persons, without even any limits on their location (meaning they could be in the US).

That means, in addition to tracking who emails and talks with whom, SPCMA has permitted (and probably still does) permit NSA to track who is traveling with whom using location data.

Finally, one thing we know SPCMA allows is tracking on cookies. I’m of mixed opinion on whether the domestic Internet ever permitted this, but tracking cookies is not only nice for understanding someone’s browsing history, it’s probably critical for tracking who is hanging out in Internet forums, which is obviously key (or at least used to be) to tracking aspiring terrorists.

Most of these things shouldn’t be available via the new phone dragnet — indeed, the House explicitly prohibited not just the return of location data, but the use of it by providers to do analysis to find new identifiers (though that is something AT&T does now under Hemisphere). But I would suspect NSA either already plans or will decide to use things like Supercookies in the years ahead, and that’s clearly something Verizon, at least, does keep in the course of doing business.

All of which is to say it’s not just that the domestic Internet dragnet wasn’t all that useful in its current form (which is also true of the phone dragnet in its current form now), it’s also that the alternatives provided far more than the domestic Internet did.

Jim Comey recently said he expects to get more information under the new dragnet — and the apparent addition of another provider already suggests that the government will get more kinds of data (including all cell calls) from more kinds of providers (including VOIP). But there are also probably some functionalities that will work far better under the new system. When the hawks say they want a return of the dragnet, they actually want both things: mandates on providers to obtain richer data, but also the inclusion of all Americans.

It’s Not Just the FISA Court, It’s the Game of Surveillance Whack-a-Mole

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In response to this post from Chelsea Manning, the other day I did the first in what seems to have become a series of posts arguing that we should eliminate the FISA Court, but that the question is not simple. In that post, I laid out the tools the FISC has used, with varying degrees of success, in reining in Executive branch spying, especially in times of abuse.

In this post, I want to lay out how reining in surveillance isn’t just about whether the secret approval of warrants and orders would be better done by the FISC or a district court. It’s about whack-a-mole.

That’s because, right now, there are four ways the government gives itself legal cover for expansive surveillance:

  • FISC, increasingly including programs
  • EO 12333, including SPCMA
  • Magistrate warrants and orders without proper briefing
  • Administrative orders and/or voluntary cooperation

FISA Court

The government uses the FISA court to get individualized orders for surveillance in this country and, to a less clear extent, surveillance of Americans overseas. That’s the old-fashioned stuff that could be done by a district court. But it’s also one point where egregious source information — be it a foreign partner using dubious spying techniques, or, as John Brennan admitted in his confirmation hearing, torture — gets hidden. No defendant has ever been able to challenge the basis for the FISA warrant used against them, which is clearly not what Congress said it intended in passing FISA. But given that’s the case, it means a lot of prosecutions that might not pass constitutional muster, because of that egregious source information, get a virgin rebirth in the FISC.

In addition, starting 2004, the government started using the FISA Court to coerce corporations to continue domestic collection programs they had previously done voluntarily. As I noted, while I think the FISC’s oversight of these programs has been mixed, the FISC has forced the government to hew closer (though not at) the law.

EO 12333, including SPCMA

The executive branch considers FISA just a subset of EO 12333, the Reagan Executive Order governing the intelligence community — a carve out of collection requiring more stringent rules. At times, the Intelligence Community have operated as if EO 12333 is the only set of rules they need to follow — and they’ve even secretly rewritten it at least once to change the rules. The government will always assert the right to conduct spying under EO 12333 if it has a technical means to bypass that carve out. That’s what the Bush Administration claimed Stellar Wind operated under. And at precisely the time the FISC was imposing limits on the Internet dragnet, the Executive Brach was authorizing analysis of Americans’ Internet metadata collected overseas under SPCMA.

EO 12333 derived data does get used against defendants in the US, though it appears to be laundered through the FISC and/or parallel constructed, so defendants never get the opportunity to challenge this collection.

Magistrate warrants and orders

Even when the government goes to a Title III court — usually a magistrate judge — to get an order or warrant for surveillance, that surveillance often escapes real scrutiny. We’ve seen this happen with Stingrays and other location collection, as well as FBI hacking; in those cases, the government often didn’t fully brief magistrates about what they’re approving, so the judges didn’t consider the constitutional implications of it. There are exceptions, however (James Orenstein, the judge letting Apple challenge the use of an All Writs Act to force it to unlock a phone, is a notable one), and that has provided periodic checks on collection that should require more scrutiny, as well as public notice of those methods. That’s how, a decade after magistrates first started to question the collection of location data using orders, we’re finally getting circuit courts to review the issue. Significantly, these more exotic spying techniques are often repurposed foreign intelligence methods, meaning you’ll have magistrates and other TIII judges weighing in on surveillance techniques being used in parallel programs under FISA. At least in the case of Internet data, that may even result in a higher standard of scrutiny and minimization being applied to the FISA collection than the criminal investigation collection.

Administrative orders and/or voluntary cooperation

Up until 2006, telecoms willing turned over metadata on Americans’ calls to the government under Stellar Wind. Under Hemisphere, AT&T provides the government call record information — including results of location-based analysis, on all the calls that used its networks, not just AT&T customers — sometimes without an order. For months after Congress was starting to find a way to rein in the NSA phone dragnet with USA Freedom Act, the DEA continued to operate its own dragnet of international calls that operated entirely on administrative orders. Under CISA, the government will obtain and disseminate information on cybersecurity threats that it wouldn’t be able to do under upstream 702 collection; no judge will review that collection. Until 2009, the government was using NSLs to get all the information an ISP had on a user or website, including traffic information. AT&T still provides enhanced information, including the call records of friends and family co-subscribers and (less often than in the past) communities of interest.

These six examples make it clear that, even with Americans, even entirely within the US, the government conducts a lot of spying via administrative orders and/or voluntary cooperation. It’s not clear this surveillance had any but internal agency oversight, and what is known about these programs (the onsite collaboration that was probably one precursor to Hemisphere, the early NSL usage) makes it clear there have been significant abuses. Moreover, a number of these programs represent individual (the times when FBI used an NSL to get something the FISC had repeatedly refused to authorize under a Section 215 order) or programmatic collection (I suspect, CISA) that couldn’t be approved under the auspices of the FISC.

All of which is to say the question of what to do to bring better oversight over expansive surveillance is not limited to the short-comings of the FISC.  It also must contend with the way the government tends to move collection programs when one method proves less than optimal. Where technologically possible, it has moved spying offshore and conducted it under EO 12333. Where it could pay or otherwise bribe and legally shield providers, it moved to voluntary collection. Where it needed to use traditional courts, it often just obfuscated about what it was doing. The primary limits here are not legal, except insofar as legal niceties and the very remote possibility of transparency raise corporate partner concerns.

We need to fix or eliminate the FISC. But we need to do so while staying ahead of the game of whack-a-mole.

USA F-ReDux Is Non-Exclusive, but the Second Circuit Might Be

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I’m still trying to figure out WTF Mitch McConnell is doing with his Senate machinations over USA F-ReDux. Currently, he has both his short-term reauthorization and USA F-ReDux prepped for a vote, which probably means he’ll bring USA F-ReDux up for cloture or a vote, show that it doesn’t have enough support, and then use that to scaremonger the short-term reauthorization through as a way to wring more concessions out of the House.

Still, given what a dead-ender he is on a bill, USA F-ReDux, that gives the Intelligence Community so many goodies, I can’t help but wonder if there’s another explanation for his intransigence. I can think of one other possibility.

The House Judiciary Committee made it clear USA F-ReDux would be the exclusive means to obtain prospective Call Detail Records under Section 215:

This new mechanism is the only circumstance in which Congress contemplates the prospective, ongoing use of Section 501 of FISA in this manner.

But it made it equally clear it is not the exclusive means to obtain Call Detail Records. That’s because the report envisions conducting federated queries including “metadata [the government] already lawfully possess.”

The government may require the production of up to two ‘‘hops’’—i.e., the call detail records associated with the initial seed telephone number and call detail records (CDRs) associated with the CDRs identified in an initial ‘‘hop.’’ Subparagraph (F)(iii) provides that the government can obtain the first set of CDRs using the specific selection term approved by the FISC. In addition, the government can use the FISC-approved specific selection term to identify CDRs from metadata it already lawfully possesses. Together, the CDRs produced by the phone companies and those identified independently by the government constitute the first ‘‘hop.’’

I suggested here that that other “lawfully possessed metadata” probably consisted of data collected under EO 12333 (and permissible for chaining on US persons under SPCMA) and PRISM metadata.

But maybe that’s not all it includes. Maybe, the government has devise a way by which AT&T (or some other backbone provider) will still provide phone records in bulk on a daily basis? Maybe — as Richard Burr claimed before he later unclaimed — the government secretly maintains an IP dragnet under some other authority?

If that was the plan (though keep in mind, USA F-ReDux passed the House after the Second Circuit decision), then the Second Circuit may have ruined that effort. The ruling should limit all collection under a “relevant to” standard, not just that conducted under Section 215. And, as Faiza Patel argued, the decision should also affect collection where the government has dodged Fourth Amendment issues by focusing on “searches” rather than “seizures.”

[A]s Jennifer Daskal explained last Friday, “collection matters.” The Second Circuit rejected the government’s contention that there was no cognizable injury until plaintiffs’ phone records were actually analyzed and reviewed. It ruled that collection is properly analyzed as “seizure,” which if unlawful constitutes a separate injury from the “search” that takes place when records are analyzed either by a human being or a computer.

As the Supreme Court has recognized, in Fourth Amendment cases the analysis of standing is intertwined with the merits question of whether there has been an invasion of a protected privacy interest. Thus, the Second Circuit’s position on collection could have serious implications for other government programs beyond the standing question.

I’ve already suggested the decision might create problems for the virgin birth DOJ secretly gave to EO 12333 data used in SPCMA.

But who knows what else it applies to?

After all, USA F-ReDux was written so as to allow other dragnets (which is what EO 12333 is, after all). But the Second Circuit may pose problems for such dragnets that USA F-ReDux did not.

Going back to Richard Burr’s odd colloquy — which his office’s excuses simply cannot rationally explain — I think it (very remotely) possible the government is dragnetting IP addresses (perhaps for cybersecurity rather than counterterrorism purposes), but worries it has lost authority to do so with the Second Circuit decision. If so, it might be using this fight over counterterrorism data collection to lay congressional support for broader dragnet collection, to be able to sustain whatever other dragnets it has in place.

Did the Second Circuit Decision ALSO Blow Up SPCMA?

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In a post on last week’s Second Circuit opinion finding NSA’s Section 215 phone dragnet unlawful, Faiza Patel observed that the government may have problems with the court’s ruling that a seizure of metadata can constitute an injury. She points to DOD directive 5240.1-R as a rule that may be impacted.

Second, as Jennifer Daskal explained last Friday, “collection matters.” The Second Circuit rejected the government’s contention that there was no cognizable injury until plaintiffs’ phone records were actually analyzed and reviewed. It ruled that collection is properly analyzed as “seizure,” which if unlawful constitutes a separate injury from the “search” that takes place when records are analyzed either by a human being or a computer.

As the Supreme Court has recognized, in Fourth Amendment cases the analysis of standing is intertwined with the merits question of whether there has been an invasion of a protected privacy interest. Thus, the Second Circuit’s position on collection could have serious implications for other government programs beyond the standing question.

[snip]

Another set of programs for which “collection matters” are those conducted under Executive Order 12,333. Department of Defense directive 5240.1-R, which sets out procedures for intelligence activities that affect U.S. persons, states:

Information shall be considered as “collected” only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties … Data acquired by electronic means is “collected” only when it has been processed into intelligible form. (Emphasis added.)

Although the directive does not explain what constitutes an “intelligible form” of electronic data, another regulation (USSID 18) states that information becomes “intelligible” and is therefore “collected” when a NSA analyst “intentional[ly] task[s] or select[s]” a communication of interest for “inclusion in a report or retention as a file record.” This is a critical distinction because protections for US persons under Executive Order 12,333, Presidential Policy Directive 28, and subsidiary regulations are triggered when information is “collected” per the government’s definition.

All the caveats about not being a lawyer, I think there’s a subset of practices under 5240.1-R that may be particularly acutely affected: SPCMA, the authority that the NSA uses to contact (and, presumably, connection) chain on US person metadata collected overseas.

As I pointed out here, OIPR (during a period when it was headed by current FBI General Counsel James Baker) originally informally advised that NSA had to stop chaining when it hit a US person. But then, a rather suspiciously short period after Baker left in 2007, Steven Bradbury and Ken Wainstein came up with a theory whereby such data did not count as an acquisition — because it had already been collected — and therefore could be chained through.

The fourth definition of electronic surveillance involves “the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication …. ” 50 U.S.C. § 1802(f)(2). “Wire communication” is, in turn, defined as “any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier …. ” !d. § 1801 (1). The data that the NSA wishes to analyze already resides in its databases. The proposed analysis thus does not involve the acquisition of a communication “while it is being carried” by a connection furnished or operated by a common carrier. (S//SI)

[snip]

The current DOD procedures and their Classified Annex may be read to restrict NSA’s ability to conduct the desired communications metadata analysis, at least with respect to metadata associated with United States persons. In particular, this analysis may fall within the procedures’ definitions of, and thus restrictions on, the “interception” and “selection” of communications.

Accordingly, the Supplemental Procedures that would govern NSA’s analysis of communications metadata expressly state that the DOD Procedures and the Classified Annex do not apply to the analysis of communications metadata. Specifically, the Supplemental Procedures would clarify that “contact chaining and other metadata analysis do not qualify as the ‘interception’ or ‘selection’ of communications, nor do they qualify as ‘us[ing] a selection term,’ including using a selection term ‘intended to intercept a communication on the basis of. .. [some] aspect of the content of the communication.” Once approved, the Supplemental Procedures will clarify that the communications metadata analysis the NSA wishes to conduct is not restricted by the DOD procedures and their Classified Annex. (S//SI)

As I’ve previously explained, it works out to a kind of virgin birth, all to avoid the actual seizure moment that would implicate EO 12333.

That virgin birth theory led to this paragraph in supplemental procedures that amend 5240.1-R to treat metadata analysis (it doesn’t say it here, but it means, of US persons) as something other than an interception.

S//SI) For purposes of Procedure 5 of DoD Regulation 5240.1-R and the Classified Annex thereto contact chaining and other metadata analysis don’t qualify as the “interception” or “selection” of communications, nor do they qualify as “us[ing] a selection term,” including using a selection term “intended to intercept a communication on the basis of … [some] aspect of the content of the communication.”

I’m not sure, but Gerard Lynch’s opinion may pose real problems for this virgin birth theory. And oh, by the way, a lot of this data leads to data ending up in FBI’s hands which would be overseen by … James Baker, who may have had a problem with this argument in the past, even without the Second Circuit decision.

All of which is one way of saying that, in addition to creating some pressure on Congress to pass USA F-ReDux, this bill may have (though I await actual lawyers to consider this question) created far, far larger problems for SPCMA, which is understood to have been one of the places where the old domestic Internet dragnet went to (which might explain why Richard Burr was talking about Internet dragnets on the floor of the Senate the other day).

If so, the government has a far bigger headache than just the one created for the domestic phone metadata program.

PCLOB’s New Work: Examining “Activities” Taking Place in the Loopholes of EO 12333

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On Wednesday, the Privacy and Civil Liberties Oversight Board met to approve its next project. They are just about completing a general overview of the Intelligence Community’s use of EO 12333 (as part of which they’ve been nagging agencies, notably DEA and Treasury, to comply with requirements imposed by Ronald Reagan). Next, they will move onto a deep dive of two programs conducted under EO 12333, one each for NSA and CIA. PCLOB has now posted materials from Wednesday’s meeting, though this overview is also useful.

Keeping in mind that PCLOB already has a pretty good sense of what the agencies are doing, consider this description of its deep dive into activities of NSA and CIA.

During the next stage of its inquiry, the Board will select two counterterrorism-related activities governed by E.O. 12333, and will then conduct focused, in-depth examinations of those activities. The Board plans to concentrate on activities of the CIA and NSA, and to select activities that involve one or more of the following: (1) bulk collection involving a significant chance of acquiring U.S. person information; (2) use of incidentally collected U.S. person information; (3) targeting of U.S. persons; and (4) collection that occurs within the United States or from U.S. companies. Both reviews will involve assessing how the need for the activity in question is balanced with the need to protect privacy and civil liberties. The reviews will result in written reports and, if appropriate, recommendations for the enhancement of civil liberties and privacy.

Some of this is unsurprising. If PCLOB were to conduct a review of SPCMA, it would be assessing NSA’s analysis of incidentally collected US person data collected in great volume as a result of collecting in bulk. Indeed, conducting such a review would get to a lot of the issues raised by John Napier Tye in PCLOB testimony.

But I’m more interested in bullets 3 and 4.

Bullet 3 suggests that CIA and/or NSA are targeting US persons under EO 12333.

There are certainly ways that’s permissible. For example, EO 12333 permits agencies to conduct physical surveillance of their employees.

(1) Physical surveillance of present or former employees, present or former intelligence element contractors or their present or former employees, or applicants for any such employment or contracting; and

(2) Physical surveillance of a military person employed by a non-intelligence element of a military service;

And it permits physical surveillance overseas if significant information can’t reasonably acquired by other means.

Physical surveillance of a United States person abroad to collect foreign intelligence, except to obtain significant information that cannot reasonably be acquired by other means.

You’d think this would bump up against the FISA Amendments Act very quickly, but remember that this EO was updated in the days after FAA was completed, so everything in it likely accounts for FAA.

On that note, this useful post from Jonathan Mayer (click through for the handy graphic) describes how NSA’s classified EO 12333 permits the Attorney General to authorize the surveillance of US persons or entities for limited periods of time.

A third area of Executive Order 12333, on American soil, is the “Classified Annex Authority” or “CAA.” Its source is a classified addition to Executive Order 12333, set out in an NSA policy document.13 The most recent revision, from 2009, reads:

Communications of or concerning a United States person14 may be intercepted intentionally or selected deliberately . . .

with specific prior approval by the Attorney General based on a finding by the Attorney General that there is probable cause to believe the United States person is an agent of a foreign power and that the purpose of the interception or selection is to collect significant foreign intelligence. Such approvals shall be limited to a period of time not to exceed ninety days for individuals and one year for entities.

That provision appears to allow the Attorney General to unilaterally trump FISA. I’m notentirely confident that’s what it means, but it sure looks like it.15

I’m skeptical that the executive branch can just brush aside FISA, especially on American soil. In Justice Jackson’s famous phrasing, when the executive branch acts in clear violation of a legislative enactment, its “power is at its lowest ebb.” Nevertheless, the executive branch does appear to claim that Article II can override FISA, and it does appear to have invoked this Classified Annex Authority on occasion.16

Finally, remember that CIA has conducted investigations targeting Senate Intelligence Committee staffers, which suggests it interprets its ability to conduct counterintelligence investigations unbelievably broadly.

Then there’s bullet 4, which suggests CIA and/or NSA are collecting “within the United States or from U.S. companies.”

With regards collection “within the US,” Mayer’s post is helpful here too, pointing to loopholes for wireless and satellite communication.

The law that results is quite counterintuitive. If a communication is carried by radio waves, and it’s one-end foreign, it falls under Executive Order 12333. If that same communication were carried by a wire, though, it would fall under FISA. (Specifically, the Section 702 upstream program.)

As for how this Executive Order 12333 authority might be used beyond satellite surveillance, I could only speculate. Perhaps intercepting cellphone calls to or from foreign embassies?12 Or along the national borders? At any rate, the FISA-free domestic wireless authority appears to be even broader than the Transit Authority.

As far as collection outside the US, this may simply be a reference to providers voluntarily providing data under 18 U.S.C. § 2511(2)(f), as we know at least some of the telecoms do.

But we also know NSA and its partner GCHQ have stolen unencrypted US company data overseas. And while the theft off Google’s fiber has, hopefully, been stopped, there’s still quite a lot of ways NSA can steal this data.

In any case, the terms of PCLOB’s investigation sure seem to suggest that CIA and/or NSA are exploiting the holes in EO 12333 in significant enough ways to raise concerns for PCLOB.

A Guide to the 5+ Known Intelligence Community Telecommunications Metadata Dragnets

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I’ve been laying this explanation out since USA Today provided new details on DEA’s International Dragnet, but it’s clear it needs to be done in more systematic fashion, because really smart people continue to mistakenly treat the Section 215 database as the analogue to the DEA dragnet described by USAT, which it’s not. There are at least five known telecommunications dragnets (some of which appear to integrate other kinds of metadata, especially Internet metadata). Here’s a quick guide to what is known about each (click to enlarge, let me know of corrections/additions, I will do running updates to make this more useful):

150410 Dragnets

NSA, International

When people think about the NSA dragnet they mistakenly think exclusively of Section 215. That is probably the result of a deliberate strategy from the government, but it leads to gross misunderstanding on many levels. As Richard Clarke said in Congressional testimony last year, Section “215 produces a small percentage of the overall data that’s collected.”

Like DEA, NSA has a dragnet of international phone calls, including calls into the United States. This is presumably limited only by technical capability, meaning the only thing excluded from this dragnet are calls NSA either doesn’t want or that it can’t get overseas (and note, some domestic cell phone data may be available offshore because of roaming requirements). David Kris has said that what collection of this comes from domestic providers comes under 18 U.S.C. § 2511(2)(f). And this dragnet is not just calls: it is also a whole slew of Internet data (because of the structure of the Internet, this will include a great deal of US person data). And it surely includes a lot of other data points, almost certainly including location data. Analysts can probably access Five Eyes and other intelligence partner data, though this likely includes additional restrictions.

There are, within this dragnet, two sets of procedures for accessing it. There is straight EO 12333, which appears to defeat US person data (so if you’re contact chaining and a known US person is included in the chain, you won’t see it). This collection requires only a foreign intelligence purpose (which counternarcotics is explicitly included in). Standard NSA minimization procedures apply, which — given that this is not supposed to include US person data — are very permissive.

Starting in 2008 (and probably before 2004, at least as part of Stellar Wind), specially-trained analysts are also permitted to include US persons in the contact chaining they do on EO 12333 data, under an authority call “SPCMA” for “special procedures.” They can’t target Americans, but they can analyze and share US person data (and NSA has coached analysts how to target a foreign entity to get to the underlying US data). This would be treated under NSA’s minimization procedures, meaning US person data may get masked unless there’s a need for it. Very importantly, this chaining is not and never was limited to counterterrorism purposes — it only requires a foreign intelligence purpose. Particularly because so much metadata on Americans is available overseas, this means NSA can do a great deal of analysis on Americans without any suspicion of criminal ties.

Both of these authorities appear to link right into other automatic functions, including things like matching identities (such that it would track “emptywheel” across all the places I use that as my uniquename) and linking directly up to content, if it has been collected.

NSA, Domestic

Screen Shot 2014-02-16 at 10.42.09 PM Then there is the Section 215 dragnet, which prior to 2006 was conducted with telecoms voluntarily producing data but got moved to Section 215 thereafter; there is a still-active Jack Goldsmith OLC opinion that says the government does not need any additional statutory authorization for the dragnet (though telecoms aside from AT&T would likely be reluctant to do so now without liability protection and compensation).

Until 2009, the distinctions between NSA’s EO 12333 data and Section 215 were not maintained. Indeed, in early 2008 “for purposes of analytical efficiency,” the Section 215 data got dumped in with the EO 12333 data and it appears the government didn’t even track data source (which FISC made them start doing by tagging each discrete piece of data in 2009), and so couldn’t apply the Section 215 rules as required.  Thus, until 2009, the Section 215 data was subjected to the automatic analysis the EO 12333 still is. That was shut down in 2009, though the government kept trying to find a way to resume such automatic analysis. It never succeeded and finally gave up last year, literally on the day the Administration announced its decision to move the data to the telecoms.

The Section 215 phone dragnet can only be used for counterterrorism purposes and any data that gets disseminated outside of those cleared for BRFISA (as the authority is called inside NSA) must be certified as to that CT purpose. US person identifiers targeted in the dragnet must first be reviewed to ensure they’re not targeted exclusively for First Amendment reasons. Since last year, FISC has pre-approved all identifiers used for chaining except under emergencies. Though note: Most US persons approved for FISA content warrants are automatically approved for Section 215 chaining (I believe this is done to facilitate the analysis of the content being collected).

Two very important and almost universally overlooked points. First, analysts access (or accessed, at least until 2011) BRFISA data from the very same computer interface as they do EO 12333 data (see above, which would have dated prior to the end of 2011). Before a chaining session, they just enter what data repositories they want access to and are approved for, and their analysis will pull from all those repositories. Chaining off data from more than one repository is called a “federated” query. And the contact chaining they got — at least as recently as 2011, anyway — also included data from both EO 12333 collection and Section 215 collection, both mixed in together. Importantly, data with one-end in foreign will be redundant, collected under both EO 12333 and 215. Indeed, a training program from 2011 trained analysts to re-run BRFISA queries that could be replicated under EO 12333 so they could be shared more permissively. That said, a footnote (see footnote 13) in phone dragnet orders that has mostly remained redacted appears to impose the BRFISA handling rules on any data comingled with it, so this may limit (or have imposed new more recent limits) on contact chaining between authorities.

As I noted, NSA shut down the automatic features on BRFISA data in 2009. But once data comes back in a query, it can be subjected to NSA’s “full range of analytical tradecraft,” as every phone dragnet order explains. Thus, while the majority of Americans who don’t come up in a query don’t get subjected to more intrusive analysis, if you’re 3 hops (now 2) from someone of interest, you can be — everything, indefinitely. I would expect that to include trolling all of NSA’s collected data to see if any of your other identifiable data comes up in interesting ways. That’s a ton of innocent people who get sucked into NSA’s maw and will continue to even after/if the phone dragnet moves to the providers.

DEA, International

As I said, the analogue to the program described by the USA Today, dubbed USTO, is not the Section 215 database, but instead the EO 12333 database (indeed, USAT describes that DEA included entirely foreign metadata in their database as well). The data in this program provided by domestic providers came under 21 USC 876 — basically the drug war equivalent of the Section 215 “tangible things” provision. An DEA declaration in the Shantia Hassanshahi case claims it only provides base metadata, but it doesn’t specify whether that includes or excludes location.  As USAT describes (and would have to be the case for Hassanshahi to be busted for sanctions violations using it, not to mention FBI’s success at stalling of DOJ IG’s investigation into it), this database came to be used for other than counternarcotics purposes (note, this should have implications for EO 12333, which I’ll get back to). And, as USAT also described, like the NSA dragnet, the USTO also linked right into automatic analysis (and, I’m willing to bet good money, tracked multiple types of metadata). As USAT describes, DEA did far more queries of this database than of the Section 215 dragnet, but that’s not analogous; the proper comparison would be with NSA’s 12333 dragnet, and I would bet the numbers are at least comparable (if you can even count these automated chaining processes anymore). DEA says this database got shut down in 2013 and claims the data was purged. DEA also likely would like to sell you the Brooklyn Bridge real cheap.

DEA, Domestic

There’s also a domestic drug-specific dragnet, Hemisphere, that was first exposed by a NYT article. This is not actually a DEA database at all. Rather, it is a program under the drug czar that makes enhanced telecom data available for drug purposes, while the records appear to stay with the telecom.

This seems to have been evolving since 2007 (which may mark when telecoms stopped turning over domestic call records for a range of purposes).  At one point, it pulled off multiple providers’ networks, but more recently it has pulled only off AT&T’s networks (which I suspect is increasingly what has happened with the Section 215 phone dragnet).

But the very important feature of Hemisphere — particularly as compared to its analogue, the Section 215 dragnet — is that the telecoms perform the same kind of analysis they would do for their own purposes. This includes using location data and matching burner phones (though this is surely one of the automated functions included in NSA’s EO 12333 dragnet and DEA’s USTO). Thus, by keeping the data at the telecoms, the government appears to be able to do more sophisticated kinds of analysis on domestic data, even if it does so by accessing fewer records.

That is surely the instructive motivation behind Obama’s decision to “let” NSA move data back to the telecoms. It’d like to achieve what it can under Hemisphere, but with data from all telecom providers rather than just AT&T.

CIA

At least as the NSA documents concerning ICREACH tell it, CIA and DEA jointly developed a sharing platform called PROTON that surely overlaps with USTO in significant ways. But PROTON appeared to reside with CIA (and FBI and NSA were late additions to the PROTON sharing). PROTON included CIA specific metadata (that is, not telecommunications metadata but rather metadata tracking their own HUMINT).  But in 2006 (these things all started to change around that time), NSA made a bid to become the premiere partner here with ICREACH, supporting more types of metadata and sharing it with international partners.

So we don’t know what CIA’s own dragnet looks like, just that it has one, one not bound to just telecommunications.

In addition, CIA has a foreign intelligence equivalent of Hemisphere, where it pays AT&T to “voluntarily” hand over data that is at least one-end foreign (and masks the US side unless the record gets referred to FBI).

Finally, CIA can “upload or transfer some or all” of the metadata that it pulls off of raw PRISM data received under 702 into its other databases. While this has to be targeted off a foreign target, that surely includes a lot of US person data, and metadata including Internet based calls, photos, as well as emails. CIA does a lot of metadata queries for other entities (other IC agencies? foreign partners? who knows!), and they don’t count it, so they are clearly doing a lot of it.

FBI

As far as we know, FBI does not have a true “bulk” dragnet, sucking up all the phone or Internet records for the US or foreign switches. But it surely has fairly massive metadata repositories itself.

Until 2006, it did, however, have something almost identical to what we understand Hemisphere to be, all the major telecoms, sitting onsite, ready to do sophisticated analysis of numbers offered up on a post-it note, with legal process to follow (maybe) if anything nifty got turned over. Under this program, AT&T offered some bells and whistles, included “communities of interest” that included at least one hop. That all started to get moved offsite in 2006, when DOJ’s IG pointed out that it didn’t comply with the law, but all the telecoms originally contracted (AT&T and the companies that now comprise Verizon, at least), remained on contract to provide those services albeit offsite for a few years. In 2009, one of the telecoms (which is likely part or all of Verizon) pulled out, meaning it no longer has a contract to provide records in response to NSLs and other process in the form the FBI pays it to.

FBI also would have a database of the records it has collected using NSLs and subpoenas (I’ll go look up the name shortly), going back decades. Plus, FBI, like CIA, can “upload or transfer some or all” of the metadata that it pulls off of raw PRISM data received under 702. So FBI has its own bulky database, but all of the data in it should have come in in relatively intentional if not targeted fashion. What FBI does have should date back much longer than NSA’s Section 215 database (30 years for national security data) and, under the new Section 309 restrictions on EO 12333 data, even NSA’s larger dragnet. On top of that, AT&T still provides 7 bells and whistles that are secret and that go beyond a plain language definition of what they should turn over in response to an NSL under ECPA (which probably parallel what we see going on in Hemisphere). In its Section 215 report, PCLOB was quite clear that FBI almost always got the information that could have come out of the Section 215 dragnet via NSLs and its other authorities, so it seems to be doing quite well obtaining what it needs without collecting all the data everywhere, though there are abundant reasons to worry that the control functions in FBI’s bulky databases are craptastic compared to what NSA must follow.