FBI Still Inventing New Ways to Surveil People with No Oversight

Marisa Taylor has an important update on the OLC exigent letter opinion. Last year, DOJ’s now-retired Inspector General Glenn Fine released a report revealing how the FBI had used exigent letters to get call data information from telecoms with no oversight. Ryan Singel noted a reference to an OLC opinion that basically melted away the problems created by use of these exigent letters (see pages 264-266 of the report).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

Taylor FOIAed the opinion.

And while DOJ refused to release the opinion, they did apparently reveal enough in their letter explaining their refusal to make it clear that the FBI maintains that it does not need any kind of court review to get telephone records of calls made from the US to other countries.

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

[snip]

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

EFF’s Kevin Bankston provides some context.

“This is the answer to a mystery that has puzzled us for more than a year now,” said Kevin Bankston, a senior staff attorney and expert on electronic surveillance and national security laws for the nonprofit Electronic Frontier Foundation.

“Now, 30 years later, the FBI has looked at this provision again and decided that it is an enormous loophole that allows them to ask for, and the phone companies to hand over, records related to international or foreign communications,” he said. “Apparently, they’ve decided that this provision means that your international communications are a privacy-free zone and that they can get records of those communications without any legal process.”

Now, I’m trying to get some clarification as to precisely what language DOJ used (see update below). But the revelation is interesting for two reasons.

As I argued last year, the opinion probably serves to clean up a lot of the illegal stuff done under the Bush Administration. I think it likely that this includes Cheney’s illegal wiretap program. If I’m right, then this claim would be particularly interesting not least because of all the discussions about US to international calls during the debate around FISA Amendments Act.

Then of course there’s the even bigger worry. When Fine released his report, the FBI assured him that it wouldn’t actually use this opinion. “No, Dad, I have no intention of taking the Porsche out for a spin, so don’t worry about leaving the keys here.”

But the fact that DOJ seems to be doubling down on this claim sort of suggests they are relying on the opinion.

Also, I can’t help but note about the timing of this FOIA response: Conveniently for DOJ, they didn’t respond to McClatchy until after Russ Feingold and Glenn Fine, the two people most likely to throw a fit about this, were out of the way.

Update: Via email, Kevin Bankston told me this is the clause the government is using to find its loophole: 18 USC 2511(2)(f).

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. nextstopchicago says:

    Off Topic:

    (aggh. I didn’t see that I’d be the first response. I feel a bit more guilty being so far off-topic now. Sorry.)

    Today’s NY Times has an analysis of Egypt policy suggesting that Obama was furious over the Wisner incident and even more so over the fact that Clinton gave Wisner some cover. That he then insisted to both Gates and Biden that we take a harder line pushing democracy.
    http://www.nytimes.com/2011/02/13/world/middleeast/13diplomacy.html?hp

    While one could interpret this as hindsight and track-covering, there are two other things that suggest it’s true. One is the piece I linked to a couple days ago here, where Samantha Power was quoted as saying “we think we know where the President stands, but we’re having trouble getting everyone else there with us.”

    The other is the story that came out last night from an Israeli diplomat, Ben-Eliezer, who said he had talked to Mubarak:
    http://www.ynetnews.com/articles/0,7340,L-4027293,00.html

    And that Mubarak was furious over a call from Obama in which he got a lecture on democracy. He told Obama that this was insane, that democracy would fail in Egypt.

    I remain intrigued at the idea of an Obama presidency in which a president whose instincts are closer to ours feels restrained to more conservative policies by political climate, the people around him, the coalition he fears he has to rely on … This is what I was getting at when I spoke about the cognitive dissonance — Obama is someone I worked closely with twenty years ago, and I was tearing my hair out reading Wisner’s comments last weekend. I simply could not reconcile the idea that the man I’d worked with on voter registration drives could be antagonistic to pro-democracy activists. I could understand “orderly transition to democracy” if he really meant it, but not if it was code words. From how this has played out, I believe he meant it all along, but that even people like Clinton thought he was using code words for “new dictator.”

    My argument does sound a bit like the naive colonists thinking, if we could only get past Pitt and speak to the King, I’m sure he’d agree with us. They were wrong, and I may be. My way of looking at it definitely leaves me vulnerable to a good cop, bad cop strategy. But I do see a fair amount of evidence of it. I feel the narrative in Egypt supports this pretty well.

    Sorry to post such a long off-topic post, but this has long been the blog where I’ve gone when I wanted to argue with myself over this, and for me, the Egyptian crisis was the absolute final straw. I’ve been unable to work for three weeks I’ve been so glued to it, and it would have been shattering to me if they had failed and Obama had been party to putting down the revolt.

    • scribe says:

      “By their fruits ye shall know them”.

      What kind of fruit has the tree named Obama borne?

      If he really wanted to, say, e.g., close Gitmo, it would have happened long ago. Someone would have balked and that balky minion would have had his career taken out behind the barn and thence trucked to the glue factory.

      Respectfully, your comment seems tinged by a belief (a) he didn’t change his tune in pursuit of power (20 years ago, I considered myself and pretty much was a libertarian Republican, until I realized (i) it wasn’t putting money in my pocket and (ii) other, sleazier folks were screwing over people left and right under the libertarian flag), (b) he didn’t hide his true beliefs too well for you to discern, or (c) that your memory of 20 years ago could not be wrong, despite all the intervening events (I mean, did you then keep a diary including in it your impressions of him? If not, you have to suspect your memory.).

      • phred says:

        An apt quote.

        Nextstopchicago, it is hard to come to terms with a friend who has changed for the worse, but that sort of thing happens. O runs with a new and very powerful crowd these days. He acts in accord with his new chums, not his old ones.

        There simply is nothing consistent between Obama’s treatment of the Constitution, the rule of law, civil liberties, and other trappings of our democratic system and any hope you may have that deep down he was cheering on the pro-democracy Egyptians.

        As Jon Walker so pithily summed up in a post title the other day, “Irony Alert: Obama Pushes for End to Egypt’s Emergency Law, Extension of US Patriot Act”. Those two actions are fundamentally inconsistent.

        Obama simply isn’t the man he said he was during the campaign. Maybe he was that guy 20 years ago, but he certainly isn’t now.

    • bmaz says:

      Believe it or not, and granted it is unlikely anybody would pick me out of a lineup to be accused of praising Obama, but a week ago I started writing a post giving Obama and his Administration some credit for have a better grip and policy/plan on Egypt than almost everybody was claiming. But I had an incredibly hectic week on several fronts, and then there was the SuperBowl thing that, seeing as how I am cheesehead from time I was a kid, required much drinking and rejoicing etc. Bottom line is every time I went back to do it, the real time events on the ground were so fluid and fascinating I never fleshed it out and finished it. One of my points, however, was that I am not sure Clinton and State were necessarily off message, and maybe not Wisner either – at least not to the extent it appeared and most people though (although even if this is the case, he still was an absolute dumbshit as to his optics). In short, I think they were intentionally covering their bets in several directions so they were not boxed in and give Mubarak a hint of cover to withdraw gracefully (which I really do not have a problem with in some regards). I dunno, to be honest, the US was not going to be that big of an influence either way under the circumstances so it was all kind of window dressing other than telling the Egyptian military to keep cool.

      • phred says:

        In short, I think they were intentionally covering their bets in several directions so they were not boxed in…

        Agreed. I was among those who thought early on that the administration was “keeping all options open”. That seems consistent with past behavior where O won’t commit until he is certain of the outcome. Then he makes sure to sidle up to the winning side.

    • b2020 says:

      I think it’s “If only the Czar knew…”

      Anyway, I sympathize, but I have to measure Obama by his decisions and non-decisions on torture, detention, wiretapping, systemic fraud, control fraud, pointless war – what I see is of one piece with Daschle, Lieberman, and the Hamilton Project, and I simply do not buy the picture of “Mr. O goes to Washington”. The president chooses his advisors, not the other way round. What I see is a vain, ambitious, hollow man with no spine or principles, who prioritized the 2012 primaries before the 2008 primaries had even ended, at great cost to the party – 50 states strategy – and the nation. What I see is yet another technocrat for whom incumbency trumps his oath of office – delivered twice, for good measure – and the constitution. What Bygones Habeas Obama has given an entire generation of first time voters is the dispiriting spectacle of the janitorial executive, a cabal of corrupt caretakers colluding to manage the terminal decline of the rule of law.

      If your personal experience provides a different explanation for the observable actions of the man, I’d be very curious to hear about it.

  2. quanto says:

    allows the FBI to ask for and obtain these records on a voluntary basis

    Then according to this the service providers should just be able to say “no”.

    I guess they can ask for anything, but without a court order what is stopping anyone from refusing the request?

    If in the TOS of the provider if its listed “we will turn over any records when merely asked” then that would let the providers off the hook.

    • scribe says:

      Ask Joe Nacchio what happens to people who say “no” to schemes of dubious legality when it’s the government asking and wiretapping the aim.

      • quanto says:

        Well, I guess that’s kind of it in a nutshell, when you kowtow to a dictator you only make him more powerful.

  3. john in sacramento says:

    From the first link

    WASHINGTON — The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

    Which sounds like a broken record from 2007

    WASHINGTON — For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program.

    […]

    After the disclosure two years ago that the N.S.A. was eavesdropping on the international communications of terrorism suspects inside the United States without warrants, more than 40 lawsuits were filed against the government and phone carriers. As a result, skittish companies and their lawyers have been demanding stricter safeguards before they provide access to the government and, in some cases, are refusing outright to cooperate, officials said.

    “International calls”

    Except that, on page two, the sixth paragraph down

    While Qwest’s refusal was disclosed two months ago in court papers, the details of the NSA’s request were not. The agency, those knowledgeable about the incident said, wanted to install monitoring equipment on Qwest’s “Class 5” switching facilities, which transmit the most localized calls. Limited international traffic also passes through the switches.

    I remember a big discussion about those class 5 switches by the real techno-nerd commenters (no offense) here on how this was key to understanding that the Bush Administration argument was full of shit

    Why am I not surprised O’s admin is doubling down on the same BS?

  4. nextstopchicago says:

    BMAZ,

    You actually mentioned you were thinking of writing that post, and I came back looking for it a couple times.

    As to my experience of Obama, I just posted a ‘diary’. It’s little more than a blog-comment, but I posted there to avoid further thread-jacking
    http://my.firedoglake.com/nextstopchicago/2011/02/12/my-glimpse-of-the-young-obama/

    I could say more, but I’ve got to go, and posts and diaries are inherently flawed and partial. I’m sure many will find my naivete hard to swallow.

    • bmaz says:

      Meh, I have a bunch of disjointed thoughts and sentences, links etc. stashed in one place. At this point, I am not sure that it’s not so stale as to be mostly irrelevant. I described the basic focus of it above, but the foundation was that the concerns with the succession provisions of the Egyptian constitution were legitimate in that it did not stand for the proposition that Sulieman could just took over. In fact, their constitution pretty much indicated that the equivalent of the US Speaker of the House, Fathi Surur, assumed power, and he was worse than Sulieman. And the constitution also appeared to indicate elections in 60 days and that is simply far too short of a time period to sort things out and allow for meaningful parties and coalitions to form and gel enough to be credible and effective for the purpose intended. Etc. etc. At the time, it struck me the administration was, if you disregarded all the surface blather by Gibbs and the WH Press pool, fairly consistently operating off of the general paradigm outlined in the Bernstein article and the EIPR/WaPo piece by Hossam Bahgat and Soha Abdelaty..

      If that was the case, I did not think it all that bad of a plan, with one exception, But the exception is huge and that is the protesters – the people – wanted to be rid of Mubarak and Sulieman both figuratively and literally, and were never going to buy into them as useful tools to the ultimate goal. It just wasn’t going to roll that way with the masses of people there.

  5. Xboxershorts says:

    Could someone define foreign communications please?

    I work for a cable company and we contracted with NZTI (New Zealand Telecom) for our SIP (Session initiation protocol) services. SIP means any communications sessions set up and tear down. Does this mean the company I work for, does all their telecom sessions qualify as foreign communications? All SIP Sessions are directed towards IP Addresses owned and managed by a New Zealand company. I’m a bit troubled because a broad definition of foreign communications(our government could never be accused of doing such, could they?) seems to me like it could include these SIP transactions, which would provide source and destination identifiable information.

    • emptywheel says:

      Don’t know the answer to it. But that’s sort of what I’ve been fearing as I saw this coming: in the 90s they made sure most international telecom came through the US, letting us tap it digitally. Now, if they make it leave the country, then they can tap it there.

      FWIW, the HBGary guys, along with selling their wares with the Chamber, also were thinking of setting up a spying biz offshore, bc that would make spying on the US legal.

      • jdmckay0 says:

        (…) the HBGary guys, along with selling their wares with the Chamber, also were thinking of setting up a spying biz offshore, bc that would make spying on the US legal.

        (pounding forehead on wall)

        the “make spying on US legal” part… geez. Idea that a something of this nature becomes legal/unlegal (is that a word?) on the basis of geographical location, I dun’o…

        The absurdity of it all.

  6. rich2506 says:

    I guess I’m one of those naive, trusting good government types, but remind me again, especially after the Yoo-Bybee OLC torture opinions, WHY are any OLC opinions ever classified?!?!?! I’m sure there’s a legitimate reason some of them have to kept to a limited group insiders, but why can’t those insiders include Senators and Congresspeople from the opposition party as well as the incumbent party?

  7. PeasantParty says:

    Marcy, you are the Awesomist Evah!

    So the security agencies are still trying to get that Patriot Ax ruling renewed so they can tap without regard to any real terror plot.

    I have no problem with them investigating and doing wire taps on known or suspected terrorists. The problem is, as I see it, that they wish to just troll anyone at anytime, or all the time regardless of what they know.

    I am also in shock that they waited so long to release the documents thru FOIA, so long after somebody that would have a real interest in doing something about it was gone. I’m not saying that none of our current congressional members won’t or wouldn’t, I just haven’t seen one of them stand up for the liberties and privacy of Citizens. I won’t hold my breath either.

  8. marksb says:

    OK it has been a few years since I got to actually play with telecom contracts and bid requirements, but the key phrase is legal interception and that means whatever the government tells you it means, and you have to tap and turn over the communication stream. We built switches and routers that allowed this interception, and we were meeting requirements for complete access to be a feature of future equipment.
    It was originally meant to be tapping clear criminals and spies under warrant, but of course that definition has evolved to be anything the controlling authority can claim is appropriate. Basically the guy walks up, flashes his badge, and directs access to the pipe and stream of data.
    In answer to Xboxer, seems to me that our authorities are saying that any communication stream from our shores to offshore qualifies to be captured.
    I was working on the TCP/IP side of telecom, and the full packet information–source and destination–was set up for capture. The foreign communication is a packet, including SIP, and there ya are. I mean that is what the guys want, right? Content is essential, but source and destination is key to identifying the sender and receiver.

    • lareineblanche says:

      Would there be a future in implementing something akin to Tor (https://www.torproject.org/index.html.en) for ALL communications, including telephonic? That is, obscuring the provenance of any packets or information by routing it through a maze of users? Would this not be possible, as more and more communication is happening over the internet? In this way it would be more difficult to determine whether or not a communication is “foreign” or “domestic”.

      Indeed, it seems to me, after wading through the jungle of legalese (translated into English), it seems that the FBI is simply trying to vest itself with the most power possible by deliberately giving the words a broad interpretation. Who could possibly come up with a definitive interpretation of the phrase “foreign intelligence activities”? It could mean anything you want it to.

  9. bobschacht says:

    May I interrupt this awesome conversation with a pedantic point about a typo in the top post? In the paragraph that begins “As I argued last year,” in the third line, you use “than” (a comparative) when I think you mean “then.”

    Now back to your regularly scheduled programming, please.

    Bob in AZ

    • marksb says:

      Cool beans but 99.9% of communications goes through pipes owned by huge corporations, telecoms and fiber carriers, and therefore are completely exposed to “legal intercept”. Packets are packets, and they go hither and yon without predetermined routing unless they use all private nets–and few do that.
      And yes, that’s the end game, ‘foreign intelligence activities’ mean anything they want it to mean.

    • dark knight says:

      “Do spelling and grammar mistakes annoy you?” The answer will reveal a great deal:

      If your date answers ‘no’—i.e. is okay with bad grammar and spelling—the odds of him or her being at least moderately religious is slightly better than 2:1.

  10. jdmckay0 says:

    In continuing w/my (recently) daily OT financial absurdity comment, from today’s Bloomberg:

    Rich Take From Poor as U.S. Subsidy Law Funds Luxury Hotels

    The landmark Blackstone Hotel in downtown Chicago, which has hosted 12 U.S. presidents, opened in 2008 after a two-year, $116 million renovation. Inside the Beaux Arts structure, built in 1910, buffed marble staircases greet guests spending up to $699 a night for rooms with views of Lake Michigan.

    What’s surprising isn’t the opulent makeover: It’s how the project was financed. The work was subsidized by a federal development program intended to help poor communities.

    The biggest beneficiary of taxpayer help for the Blackstone revamp was Prudential Financial Inc., the second-largest U.S. life insurer. The company got $15.6 million in tax credits from the U.S. Department of the Treasury for helping to fund the project, according to Chicago city records, Bloomberg Markets magazine reports in its March issue.

    JPMorgan Chase & Co., the second-largest U.S. bank by assets, also took in money by serving as a lender and the monitor of Blackstone construction financing, city records show.

    Seems like banksters *always* win, no matter WTF they do.

    I’d remind that Timmy hired Blackstone to “manage” UST’s aquired toxic assets, “gifted” from these same bankers/investors, to help make their books look all pretty for the recovery.

    I’d also point out, whole lot of pre-meltdown Blackstone guys started their own shops, post meltdown, to take advantage of just this kind of thing.

    More & more, when hearing these financial wizard heavyweights us terms like “leverage”… eg. “leverage your assets to benefit from (xxx)”, it boils down to something like this: eg. taxpayer gifted profits. I also notice, more & more, that these guys seem to have midas touch in that they buy/aquire junk, run it through opaque fed corp. assistance regulatory agency, and out pops profit… every single time.

    No wonder we need to take the knife to Soc Security, Medicare, Pell grants etc… funding these guys is pricey.