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Matt Olsen Admits He Didn’t Bargain on a President Trump

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Something predictable, but infuriating, happened at least week’s Cato conference on surveillance.

A bunch of spook lawyers did a panel, at which they considered the state of surveillance under Trump. Former White House Director of Privacy and Civil Liberties Tim Edgar asked whether adhering to basic norms, which he suggested would otherwise be an adequate on surveillance, works in a Trump Administration.

In response, former NSA General Counsel Matt Olsen provided an innocuous description of the things he had done to expand the dragnet.

I fought hard … in the last 10 [years] when I worked in national security, for increasing information sharing, breaking down barriers for sharing information, foreign-domestic, within domestic agencies, and for the modernization of FISA, so we could have a better approach to surveillance.

Then, Olsen admitted that he (who for three years after he left NSA headed up the National Counterterrorism Center managing a ton of analysts paid to imagine the unimaginable) did not imagine someone like Trump might come along.

As I fought for these changes, I did not bargain on a President Trump. That was beyond my ability to imagine as a leader of the country in thinking about how these policies would actually be implemented by the Chief Executive.

It was beyond his ability [breathe, Marcy, breathe] to imagine someone who might abuse power to come along!!!

What makes Olsen’s comment even more infuriating that I called out Olsen’s problematic efforts to “modernize” FISA and sustain the phone dragnet even in spite of abuse in September, in arguing that Hillary could not, in fact, be supporting a balanced approach on intelligence if she planned on hiring him, as seemed likely.

Olsen was the DOJ lawyer who oversaw the Yahoo challenge to PRISM in 2007 and 2008. He did two things of note. First, he withheld information from the FISC until forced to turn it over, not even offering up details about how the government had completely restructured PRISM during the course of Yahoo’s challenge, and underplaying details of how US person metadata is used to select foreign targets. He’s also the guy who threatened Yahoo with $250,000 a day fines for appealing the FISC decision.

Olsen was a key player in filings on the NSA violations in early 2009, presiding over what I believe to be grossly misleading claims about the intent and knowledge NSA had about the phone and Internet dragnets. Basically, working closely with Keith Alexander, he hid the fact that NSA had basically willfully treated FISA-collected data under the more lenient protection regime of EO 12333.

These comments were used, in this post by former NSA Compliance chief John DeLong and former NSA lawyer Susan Hennessey (the latter of whom was on this panel) to unbelievably dishonestly suggest that surveillance skeptics, embodied by me and EFF’s Nate Cardozo (who has been litigating some of these issues for years), took our understanding of NSA excesses from one footnote in a FISA Court opinion, rather than from years of reading underlying documents.

Readers are likely aware of the incident, which has become a persistent reference point for NSA’s most ardent critics. One such critic recently pointed to a FISC memorandum referencing the episode as evidence that “NSA lawyers routinely lie, even to the secret rubber stamp FISA court”; another cited it in claiming DOJ’s attorneys made “misleading claims about the intent and knowledge NSA had about the phone and Internet dragnets” and that “NSA had basically willfully treated FISA-collected data under the more lenient protection regime of EO 12333.”

These allegations are false. And by insisting that government officials routinely mislead and lie, these critics are missing one of the most important stories in the history of modern intelligence oversight.

Never mind that I actually hadn’t cited the footnote. Never mind that then FISA Judge Reggie Walton was the first to espouse my “false” view, even before seven more months of evidence came out providing further support for it.

The underlying point is that these two NSA people were so angry that I called out Matt Olsen for documented actions he had taken that they used it as a foil to make some pretty problematic claims about the oversight over NSA spying. But before they did so, they assured us of the integrity of the people involved (that is, Olsen and others).

It’s tempting to respond to these accusations by defending the integrity of the individuals involved. After all, we know from firsthand experience that our former colleagues—both within the NSA and across the Department of Justice, the Office of the Director of National Intelligence, and the Department of Defense—serve the public with a high degree of integrity. But we think it is important to move beyond the focus on who is good and who is bad, and instead explore the history behind that footnote and the many lessons learned and incorporated into practice. After all, we are ultimately a “government of laws,” not of people.

 

 

We are a government of laws, not people, they said in October, before laying out oversight that (they don’t tell you, but I will once I finally get back to responding to this post) has already proven to be inadequate. I mean, I agree with their intent — that we need(ed) to build a bureaucracy that could withstand the craziest of Executives. But contrary to what they claim in their piece and the presumably best intent of DeLong, they didn’t do that.

They now seem to realize that.

In the wake of the Trump victory, a number of these people are now admitting that maybe their reassurances about the bureaucracy they contributed to — which were in reality based on faith in the good intentions and honesty and competence of their colleagues — were overstated. Maybe these tools are too dangerous for an unhinged man to wield.

And, it turns out, one of the people largely responsible for expanding the dragnet that its former defenders now worry might be dangerous for Donald Trump to control never even imagined that someone like Trump might come along.

The Privacy Problems (?) of Outsourcing the Dragnet

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Both Ed Felten …

I am reminded of the scene in Austin Powers where Dr. Evil, in exchange for not destroying the world, demands the staggering sum of “… one MILLION dollars.” In the year 2014, billions of records is not a particularly large database, and searching through billions of records is not an onerous requirement. The metadata for a billion calls would fit on one of those souvenir thumb drives they give away at conferences; or if you want more secure, backed up storage, Amazon will rent you what you need for $3 a month. Searching through a billion records looking for a particular phone number seems to take a few minutes on my everyday laptop, but that is only because I didn’t bother to build a simple index, which would have made the search much faster. This is not rocket science.

And Tim Edgar have started thinking about how to solve the dragnet problem.

One helpful technique, private information retrieval, allows a client to query a server without the server learning what the query is.  This would allow the NSA to query large databases without revealing their subjects of interest to the database holder, and without collecting the entire database.  Recent advances should allow such private searches across multiple, very large databases, a key requirement for the program.  The use of these cryptographic techniques would make the need for a separate consortium that holds the data unnecessary.  I discussed this in more detail in my testimonybefore the Senate Select Committee on Intelligence last fall.  Seny Kamara of Microsoft Researchpoints out these techniques were first outlined over fifteen years ago, while the state of the art is outlined in “Useable, Secure, Private Search” from IEEE Security and Privacy.

But I want to consider something both point to that President Obama said in his speech which both Felten and Edgar consider.

Relying solely on the records of multiple providers, for example, could require companies to alter their procedures in ways that raise new privacy concerns.

I’m admittedly obsessed by this, but one processing step the NSA currently uses on dragnet data seems to pose particularly significant privacy concerns: the data integrity role, in which high volume numbers — pizza joints, voice mail access numbers, and telemarketers, for example — are “defeated” before anyone starts querying the database.

This training module from 2011 (and therefore before some apparent additions to the data integrity role, as I’ll lay out in a future post) describes three general technical roles, the first of which would be partly eliminated if the telecoms kept the data.

  • Ensuring production meets the terms of the order and destroying that which exceeds it (5)
  • Ensuring the contact-chaining process works as promised to FISC (much of this description is redacted) (7)
  • Ensuring that all BR and PR/TT queries are tagged as such, as well as several other redacted tasks (this tagging feature was added after the 2009 problems) (9)

The first and third are described as “rarely coming into contact with human intelligible” metadata (the first function would likely see more intelligible data on intake of completed queries from the telecoms). But — assuming a parallel structure across these three descriptions — the redacted description on page 8 suggests that the middle function — what elsewhere is called the data integrity function — has “direct and continual access and interaction” with human intelligible metadata.

And indeed, the 2009 End-to-End Review and later primary orders describe the data integrity analysts querying the database with non-RAS approved identifiers to determine whether they’re high volume identifiers that should be taken out of the dragnet.

Those analysts are not just accessing data in raw form. They’re making analytic judgments about it, as this description from the E-2-E report explains.

As part of their Court-authorized function of ensuring BR FISA metadata is properly formatted for analysis, Data Integrity Analysts seek to identify numbers in the BR FISA metadata that are not associated with specific users, e.g., “high volume identifiers.” [Entire sentence redacted] NSA determined during the end-to-end review that the Data Integrity Analysts’ practice of populating non-user specific numbers in NSA databases had not been described to the Court.

(TS//SI//NT) For example, NSA maintains a database, [redacted] which is widely used by analysts and designed to hold identifiers, to include the types of non-user specific numbers referenced above, that, based on an analytic judgment, should not be tasked to the SIGINT system. Read more →

“Whoa Whoa Whoa, Stop!” Dianne Feinstein Misstates the 2011 Violations

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One of the most enlightening aspects of yesterday’s Senate Intelligence Hearing on FISA came when Dianne Feinstein tried to rebut witness Tim Edgar’s categorization of the 2011 violations described in John Bates October 8, 2011 opinion. In her rebuttal, she proved she either doesn’t know, doesn’t understand, or chooses to misrepresent the opinion, which found that NSA had violated the law and Fourth Amendment in its Section 702 program.

Edgar was arguing (see page 5-6) that if the FISA Court opinions were publicly released, we’d know about ridiculous semantic definitions — like “relevant” — as those definitions were invoked, not years after the fact, which would lead to greater trust in the FISC.

As his second example, he cited NSA’s collection of US person communications on upstream collection. (After 2:20)

EDGAR: [T]he NSA’s interpretation of the requirement in Section 702, for content surveillance targeting foreign persons, that those procedures must target foreign persons is also surprising. The FISA court’s recently released opinions show that communications that target foreign persons include not only communications that are to or from that person, but also those that are merely about that person in a particular narrow sense, that the selection — the selector for that person appears in the communication.

Even communications which are not to or from, or about, the foreign target at all have been acquired as the result of the manner in which some NSA collection was conducted.

DiFi interrupted him (whoa whoa whoa stop!) — and (having read his statement in advance) started reading a written rebuttal to provide her version of the 2011 violations.

FEINSTEIN: Whoa, whoa, whoa, stop. Exactly what program are you talking about?

EDGAR: In the recently released FISA court opinion about upstream collection in the compliance incidents in 2011, it was documented how information from multiple communications — what they called “multiple communications transactions” — was obtained not by mistake, but because of the way the system was designed. That included any selector that was a foreign target in the entire multi- communications transaction.

And so that created a lot of controversy in the FISA court, and required the FISA court to work with the Justice Department and the intelligence community to narrow the minimization guidelines.

FEINSTEIN: OK. Because this is — this is important, may I interrupt this just — respond? [reading from prepared statement] In mid 2011, NSA notified the DOJ, the DNI, and the FISA court, and House and Senate Intelligence Committees, of a series of compliance incidents impacting a subset of NSA collection under Section 702 of FISA, known as upstream collection.

This comprises about 10 percent of all collection that takes place under 702, and occurs when NSA obtains Internet communications, such as e-mails, from certain U.S. companies that operate the Internet background;[sic] i.e., the companies that own and operate the domestic telecommunication lines over which Internet traffic flows.

In essence, the issue that arose in 2011 was that NSA, while trying to acquire e-mails to, from, or about an overseas target, realized it, and was inadvertent — that it was inadvertently acquiring other e-mails, including some e-mails sent between persons inside the United States that happened to be bundled with the e-mail messages NSA was trying to collect.

This bundling is done by Internet companies in order to make it easier to send information quickly over the telecom lines that make up the Internet. Unfortunately, NSA’s technical systems could not easily separate the individual messages within these bundles. And the result was that NSA collected some e-mail messages it did not intend to acquire.

OK. We held a lengthy hearing on the court’s ruling on October 20, 2011, at which General Alexander and Lisa Monaco — then the assistant attorney general for national security — described the court’s ruling and what they were doing to address it.

Here’s my point: It was a mistake. Action was taken immediately to correct it. It came to us. We took action. [bold mine, underline emphasis DiFi applied in delivery]

DiFi’s prepared statement misstates the facts as presented in Bates’ opinion in several ways:

  • The issue had existed since before July 2008
  • The collection was — according to the court ruling — not inadvertent
  • NSA only corrected the problem under threat of criminal referral, after months of delay

First, the issue did not arise in 2011.

As Bates made clear, “NSA has been collecting MCT’s since before the Court’s approval of the first Section 702 certification in 2008.” Read more →

Senate Intelligence Committee Open Hearings: A Platform for Liars

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Pentagon Papers era NYT Counsel James Goodale has a piece in the Guardian attracting a lot of attention. In it, he says the first step to reform NSA is to fire the liars.

The NSA has lied to the Congress, the courts, and perhaps even to the president himself, but no one seems to care.

The Director of National Intelligence James R Clapper admitted he lied to Congress about the NSA metadata collection program. He said the NSA had no such program – and then added that that was the least “untruthful” remark he could make. General Keith Alexander, director of the National Security Agency, lied in 2012 that the NSA does not hold data on US citizens, and repeated similar misstatements, under oath, to Congress about the program:

We’re not authorized to do it [data collection on US citizens], nor do we do it.

NSA lawyers lied to secret Fisa court Judges John D Bates and Reggie B Walton. In recently released opinions, Bates said he had been lied to on three separate occasions and Walton said he had been lied to several times also.

But Clapper and Alexander have not been held in contempt of Congress. Nor have the Justice Department attorneys, who lied to Judges Walton and Bates, been disciplined.

And while he links to many of the best examples of James Clapper and Keith Alexander lying, he misses this.

In just its third open hearing this year, the Senate Intelligence Committee has arranged the following witnesses for tomorrow’s hearing on NSA’s spying.

Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) and Vice Chairman Saxby Chambliss (R-Ga.) today announced the committee will hold an open hearing to consider legislative changes to the Foreign Intelligence Surveillance Act, to include the NSA call records program, on Thursday, September 26, at 2 p.m.

WHAT:  Public hearing on FISA, NSA call records

WHO:

Panel I

  • Director of National Intelligence James Clapper
  • National Security AgencyDirector General Keith Alexander
  • Deputy Attorney General James Cole

Panel II

  • Ben Wittes, Brookings Institution
  • Tim Edgar, Watson Institute for International Studies, Brown University

So DiFi’s idea of an “open hearing” is to invite two established liars. And for her non-governmental witnesses, one keeps declaring Congress NAKED! in the face of evidence the government lies to them, and the other tells fanciful stories about how much data NSA shares.

It’s like DiFi goes out of her way to find liars and their apologists to testify publicly.

That’s nothing new, though. Those other two open hearings? The Global Threat Assessment hearing where Clapper assured Ron Wyden the NSA didn’t collect data on millions of Americans. And the confirmation hearing for John Brennan, who once claimed the US had killed no civilians in an entire year of drone strikes (and, if his odd mouth gestures were the tell they appeared to be, he lied about leaks to journalists including on UndieBomb 2.0 in the hearing as well.)

It’s DiFi’s committee. And if she wants every single open hearing to serve as a platform for accomplished liars, I guess that’s her prerogative.

But observers should be clear that’s the purpose of the hearings.

US Justice: A Rotting Tree of Poisonous Fruit?

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Saturday, the NYT reported that other agencies within government struggle to get NSA to share its intelligence with them.

Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the security agency’s vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say.

Of the 1,410 words in the article, 313 words are explicitly attributed to Tim Edgar, who used to work for ACLU but starting in 2006 worked first in the Office of Director of National Intelligence and then in the White House. Another 27 are attributed to “a former senior White House intelligence official,” the same description used to introduce Edgar in the article.

The article ends with Edgar expressing relief that NSA succeeded in withholding material (earlier he made a distinction between sharing raw data and intelligence reports) from agencies executing key foreign policy initiatives in the age of cyberwar and Transnational Criminal Organizations, and in so doing avoid a “nightmare scenario.”

As furious as the public criticism of the security agency’s programs has been in the two months since Mr. Snowden’s disclosures, “it could have been much, much worse, if we had let these other agencies loose and we had real abuses,” Mr. Edgar said. “That was the nightmare scenario we were worried about, and that hasn’t happened.”

Today, San Francisco Chronicle reminds that NSA does hand over evidence of serious criminal activities if it finds it while conducting foreign intelligence surveillance, and prosecutors often hide the source of that original intelligence.

Current and former federal officials say the NSA limits non-terrorism referrals to serious criminal activity inadvertently detected during domestic and foreign surveillance. The NSA referrals apparently have included cases of suspected human trafficking, sexual abuse and overseas bribery by U.S.-based corporations or foreign corporate rivals that violate the Foreign Corrupt Practices Act.

[snip]

“If the intelligence agency uncovers evidence of any crime ranging from sexual abuse to FCPA, they tend to turn that information over to the Department of Justice,” Litt told an audience at the Brookings Institution recently. “But the Department of Justice cannot task the intelligence community to do that.”

[snip]

“The problem you have is that in many, if not most cases, the NSA doesn’t tell DOJ prosecutors where or how they got the information, and won’t respond to any discovery requests,” said Haddon, the defense attorney. “It’s a rare day when you get to find out what the genesis of the ultimate investigation is.”

The former Justice Department official agreed: “A defense lawyer can try to follow the bouncing ball to see where the tip came from — but a prosecutor is not going to acknowledge that it came from intelligence.”

And (as bmaz already noted) Reuters reminds that the DEA has long had its own electronic surveillance capability, and it often hides the source of intelligence as well.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

As bmaz also noted, none of this was very secret or new. The FISA sharing is clearly permitted by the minimization procedures. Litigation on it 11 years ago suggested it may be even more abusive than laid out under the law. And bmaz has personally been bitching about the DEA stuff as long as I’ve known him.

These articles suggesting there may be more sharing than the NYT made out on Saturday, then, are primarily reminders that when the fruits of this intelligence get shared, the source of the intelligence often remains hidden from those it is used against.

Which brings me to this WSJ op-ed Edgar published last week. Read more →