Section 215: The White House’s Bullshit Talking Points

Here’s what the White House has offered as talking points to defend collecting (DiFi has confirmed) all the call data from all Americans since 2006. Interspersed is my commentary.

The article discusses what purports to be an order issued by the Foreign Intelligence Surveillance Court under a provision of the Foreign Intelligence Surveillance Act that authorizes the production of business records. Orders of the FISA Court are classified.

As they’ve done with drone strikes and, especially, WikiLeaks cables before, the Administration refuses to confirm that this is, in fact, what several members of Congress have made it clear it is: an authentic FISA Order that (as Dianne Feinstein revealed) is just the quarterly renewal of a program that goes back to the PATRIOT Act renewal in March 2006.

In other words, with its “talking points,” the Administration is recommitting to keeping this program legally secret, even though it’s not secret.

Everything that say after they set up that information asymmetry should be regarded with the knowledge that the White House refuses to permit you to check its claims.

The talking points go on.

On its face, the order reprinted in the article does not allow the Government to listen in on anyone’s telephone calls. The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to metadata, such as a telephone number or the length of a call.

Here, the White House does two things. With its “exclusively metadata” comment, it tries to minimize how much metadata really provides. Here’s how Shane Harris, in a superb explainer, describes what metadata can really provide.

What can you learn with metadata but no content?

A lot. In fact, telephone metadata can be more useful than the words spoken on the phone call. Starting with just one target’s phone number, analysts construct a social network. They can see who the target talks to most often. They can discern if he’s trying to obscure who he knows in the way he makes a call; the target calls one number, say, hangs up, and then within second someone calls the target from a different number. With metadata, you can also determine someone’s location, both through physical landlines or, more often, by collecting cell phone tower data to locate and track him. Metadata is also useful for trying to track suspects that use multiple phones or disposable phones. For more on how instructive metadata can be, read this.

Note the White House fails to mention the forms of some metadata, such as geolocation, that are particularly invasive.

But the other thing this White House bullshit talking point does is precisely the same thing the Bush White House did when, in 2005 after James Risen and Eric Lichtblau exposed the illegal wiretap program, it dubbed a subpart of the program the Terrorist Surveillance Program and talked about how innocuous it was taken in solitary. The White House is segregating one part of the government’s interdependent surveillance system and preening about how harmless that isolated part is in isolation.

What the White House doesn’t mention is how the government uses this data, among other ways, to identify possible terrorists who they can conduct more investigation of, including accessing their content using this data mining to establish probable cause.

What the White House is trying to hide, in other words, is that this collection is part of a massive collection program that uses algorithms and other data analysis to invent people to investigate as terrorists.

And then the bullshit White House talking points contradict themselves.

Information of the sort described in the Guardian article has been a critical tool in protecting the nation from terrorist threats to the United States, as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.

Wait, what? Just one talking point ago, the White House told us that, “The information acquired does not include the content of any communications or the name of any subscriber.” But here we are, a mere talking point later, and the White House is claiming that it is used to discover whether known terrorists are in contact with other persons? Uh, so it does involve the known identities of both existing suspects and those gleaned from this massive collection of data, huh?

But don’t worry. Because a court has rubber stamped this.

As we have publicly stated before, all three branches of government are involved in reviewing and authorizing intelligence collection under the Foreign Intelligence Surveillance Act. Congress passed that act and is regularly and fully briefed on how it is used, and the Foreign Intelligence Surveillance Court authorizes such collection.

How does the separation of powers work again? Congress passes the law, the Executive enforces the law, and Courts review the law?

Only, in its bold claim that all three branches of government support this, the Court’s role is to “authorize such collection.” There’s a reason for that word, authorize. The only thing the courts are permitted to review are whether the government has provided,

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—
(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

That is, the government just has to make a “reasonable” argument that this stuff is “relevant” to an investigation geared toward protecting against international terror or foreign clandestine activities. And if they can point to any number of foreign types (a foreign power, a suspected agent of a foreign power, or someone in contact with a suspected agent of a foreign power), the judge is instructed to presume it is related even if that seems like a stretch.

This is not a robust review of the claims the government is making. On the contrary, it is designed not to be a robust review of those claims.

Which brings us to Congress, that other branch the White House touts. It is utterly and embarrassingly true that they have repeatedly bought off on this, even if James Sensenbrenner, among others, is suckering journalists claiming that he didn’t. Indeed, oversight committees shot down efforts to limit Section 215 orders to people who actually had a tie to a suspected terrorist or foreign spy in 2006, 2009, and 2011. Such language was shot down each time. So, too, were efforts in 2011 and 2012 to reveal what was really going on in Section 215 collection; oversight committees shot that down too.

So here, in a rarity for national security overreach, the White House is absolutely right. Congress repeatedly bought off on this program, including its unbelievably broad standard for “relevance.”

Except … except … when Ron Wyden tried to get the government to tell him how many Americans’ records had been reviewed (by using this front-end collection to identify the back-end collection) the Inspectors General in question professed to be helpless to do that (later hints suggested they had done that study, but refused to share it with the Intelligence Committees).

So while it is true that Congress, with a few exceptions, have been completely complicit in this, it is also true that the Executive Branch has withheld the information Congress needs to understand what is happening with US person data.

I wonder why?

Never you worry, though, because it’s all constitutional.

There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act. That regime has been briefed to and approved by the Court.

Activities authorized under the Act are subject to strict controls and procedures under oversight of the Department of Justice, the Office of the Director of National Intelligence and the FISA Court, to ensure that they comply with the Constitution and laws of the United States and appropriately protect privacy and civil liberties.

Don’t worry, the White House concludes. The legal review designed not to be robust is robust.

And to be fair, the FISA Court has, on at least one occasion, told the Administration they were violating the Fourth Amendment. Though apparently DOJ and ODNI thought this Fourth Amendment violative collection was kosher, as they had to be slapped down by the court, so I’m not sure what purpose their purported oversight serves.

But as I pointed out this morning, there’s a flaw to this argument that is grounded in the Administration’s refusal to admit this is a real FISA Court order.

Standing.

The government, over and over and over and over, assures us this is all very Constitutional. Even while the government, over and over and over and over, goes to great lengths to ensure citizens don’t learn how they’re being surveilled, which would (in addition to pissing them off) give them the ability to sue.

Until the Americans who have been surveilled are permitted to challenge this in a court — precisely what the government has gone to great lengths to prevent — White House claims to constitutionality ring hollow.

The government doesn’t have the confidence to let us test these claims in court. That ought to tell you what they really think about its constitutionality.

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.

21 replies
  1. orionATL says:

    This order was dated 4/25 10 days after the marathon bombing.

    But it appears to cover businesses which may mean it is related to possible iranian cyber war, my initial understanding.

    Whatever proves to be the case, i would guess based on what i’ve read in the last day or two that it has been used after each terrorist act.

  2. Garrett says:

    Do we know when, precisely, this use of the FISA court started?

    Dianne Feinstein:

    As far as I know, this is the exact three month renewal of what has been the case for the past seven years. This renewal is carried out by the FISA Court under the business records section of the Patriot Act.

    The FISAfied version of the Program was proposed in an Arlen Specter hearing in March 2006, with some former FISA judges in support.

    And Alberto Gonzales took a short timeout from not-remembering, to officially announce it in January 2007.

    Meanwhile, all through 2006, George W. Bush was authorizing something, on a 45-day cycle.

    So when did the FISA version of the program really start?

    [It’s certainly possible that the nature of what Bush was authorizing changed somewhere in mid or late 2006. To: I hereby authorize that we can use the FISA court, in a very secret and unknown way.]

  3. JamesJoyce says:

    “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Seems pretty straightforward and simple…

    “Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear.”

    Thomas Jefferson

    “The government, over and over and over and over, assures us this is all very Constitutional. Even while the government, over and over and over and over, goes to great lengths to ensure citizens don’t learn how they’re being surveilled, which would (in addition to pissing them off) give them the ability to sue.”

    Reason would dictate based on “evidence” that the purpose and the intent of the First Amendment is being eviscerated. “Trust your government?” If you do, your not reasonable. In fact your “stupid,” if you do. Now that’s “reason,” for you, given the “fact,” as they come out…

    Citizens being denied the constitutional right to petition the government with grievances, because the government is violating your rights? Rights written to keep government from doing to you what the Government is doing, but, alas! FISA

    “Standing.”

    Yes the standing issue again! You can’t sue because, we can write a law, without you knowing about the law being written, to hide the law from you, and you cant ask about it! All, to protect you!

    Question? Where is the fucking chair that “Reason” is suppose to seated in first, never mind the tribunal….

    The free exercise of critical reasoning skills expressed via word of speech is criminalized and “the press,” can now be subject to systematic retaliation as criminals to the state, for reporting potential criminal activity of the state? Reasoned approach, I guess… If your a fascist?

    Given the Jefferson’s quote above and applying that standard, to the guy who probably had a little to do with First Amendment’s purpose and intent, Jefferson; this is not a reasoned approach….. There is no reason being employed here. This is the opposite of good government an in fact it is the “abdication of reason” and her death we are witnessing.

    The system is rigged and it is slowing but surely being “tuned” to be utilized against the governed.

  4. Clark Hilldale says:

    @Garrett: Do we know when, precisely, this use of the FISA court started?

    It seems likely that the flap over the exposure of the program in USA Today on May 10, 2006 was the trigger for the Bush administration deciding to get blanket FISC orders.

    This is inferred because the article specifically states that FISA was being sidestepped.

    This was the same call records driftnet that Qwest Communications refused to go along with, and which resulted in payback for Qwest’s CEO of a six-year federal prison sentence for insider trading. IIRC, he is still behind bars.

    It looks like there is little doubt that the call database is being used in conjunction with the separate wholesale interception of the actual content of all the communications by NSA to identify who is who, rather than the data-mining explanation so popular right now.

  5. orionATL says:

    The renewal was a renewal request only for the records of american businesses, right?

    Are there other categories of renewal requests?

    From another tact,

    I don’t see how this mass telephone data collection can be of any use in prevention unless there has been some prior specific “terrorist” act, or some prior knowledge of specific individuals or specific groups of individuals.

    You don’t undertake this screening and mapping while dealing solely from a universe of all possible terrorist acts or individuals.

    But when one does have prior specific information with which to work, is this subsequent enormous screening effort the only, the best, or even a good way to continue an investigation that might prevent a terrorist act?

    It seems that the use of this screening tool is limited to preventing the second, etc., of a series of connected acts or stopping a persistent threat like a series of bank robberies.

    Finally, is this data stored and retained for long periods?

    If so it presents an excellent means of defusing or disrupting political protests and threatening political opponents or dispensing with them altogether (as with former alabama governor don seigelman).

  6. lefty665 says:

    @orionATL: Believe “business records” is another name for meta data. Both cover all the information about each call, short of content. They get that in another program.

    Once NSA gets their hands on it, it’s like diamonds, it’s forever.

    Think predictive analysis. Do you get pizza the same place as a person of interest? Do you call from or to places interesting people call? How about all your other electronic debris? Emails, tweets, IMs, credit card transactions, bills, traffic cameras… That’s what Beef Hollow Rd seems to be all about.

  7. john francis lee says:

    Thailand is run by the Royal Thai Army through a civilian front, presently the Puea Thai Party, and they use the ruse of their lese majeste law, enacted by their decree after their murderous rampage of 6 October 1976, to persecute anyone they feel needs persecuting, on the grounds said person has defamed the king.

    Lese majeste is ‘so bad’, such a danger to ‘national security’, that the actual crime being prosecuted cannot be specified or discussed. It would be like committing the crime all over again. It ‘follows’ that the lese majeste trials are held in secret. Those charged with lese majeste are imprisoned on charge, no bail, and the conviction rate is over 99%. The only thing one ever reads in the press is the length of the prison term meted out to the victim. Usually in excess of a decade. Thais regard all this as unfortunate … but unavoidable.

    The Royal United States Armed forces is now ruling the USA, via its NSA and its civilian front, presently Barack the Nobel Peace Prize Laureate slash nihilist corporate lawyer Obama, and has taken the same tack with its illegitimate excesses …

    In other words, with its “talking points,” the Administration is recommitting to keeping this program legally secret, even though it’s not secret.

    … who says the puppeteer cannot pick up a few useful steps from its puppet.

    There is a mole in the NSA, a bona fide lamplighter/whistleblower, a shining star and a hero to us all. Reckless of her or his own safety she or he has committed an act of lese majeste to the ruling US junta. Let us use the evidence provided to overturn the coup that took place on 9/11 and return our nation to a state of law and order under the sovereignty of we the people of the United States.

  8. orionATL says:

    @lefty665:

    Jeez, so they have the capacity to keep it in useable form for a very long time? And to go back through it, i suppose, for any purpose that arises at any point in future time.

    By any chance would that include adsl data as well as voice?

    Yeah, “businesses” means telecom businesses i finally figured out, but notice how (i think) the prez didn’t mention telecoms, just “businesses” -why he could be talking about ice cream parlors and tatoo joints.

  9. orionATL says:

    @lefty665

    Guess i’ll just have to call the whitehouse and both houses of congress as camoflage between each of my seditious calls.

  10. wanderindiana says:

    Never did I believe that an elected Democrat would oversee the expansion of Total Information Awareness like Barack Obama has done.

    Electing Obama was a bigger mistake than “electing” George W. Bush. But W. certainly paved the way for B.O. I don’t say that lightly. God help us all.

  11. lefty665 says:

    @orionATL: Yes, yes, and yes.

    We can buy a 4tb 3.5″ hard drive for about $150 retail these days. What do you suppose those (or their big brothers) go for in volume 1,000, 10,000, 100,000? Beef Hollow Road will be twice the size of the Capitol building. How many drives do you think will fit in there? How many petaFLOPS of processing power? Everything else combined is small data by comparison. For the last 60+ years NSA has had the largest concentration of computing power in the world. Is there any reason to think that has changed?

    Hey, you’re the router. But sure, that’s what mirroring the switches was about, starting (apparently) with room 614a. They get all the traffic, voice, data, wireless in transit. In addition, as we see with PRISM this evening, they’re also getting the data stream right off the servers. If the cloud knows so does NSA.

    Personally I take the assertion that they’re only capturing selected portions of the stream with a grain of salt. The idea with data collection is that someday some of it will be useful, and it’s impossible to know now which bits and bytes that will be. Better to save ’em all than to regret later. I hear Washington’s order to the troops to assemble to cross the Delaware is now digitally searchable:)

    @11 Fine, just don’t call me, or anyone I know, or anyone they know, or from any place I’ve ever been, am now, or ever will be:)

  12. orionATL says:

    @lefty665:

    This is a really bad scene.

    I can’t comprehend how american politicians in congress and the white house have gotten so egregiously off track.

    in systems terms, we are experiencing a political system system in dangerous oscillation with no reason to expect a return to stability any time soon.

  13. orionATL says:

    @lefty665:

    With respect to “business records” the guardian has this:

    “..this is the first time significant and top-secret documents have revealed the continuation of the practice under President Obama.

    The order names Verizon Business Services, a division of Verizon Communications. In its first-quarter earnings report, published in April, Verizon Communications listed about 10 million commercial lines out of a total of 121 million customers. The court order, which lasts for three months from 25 April, does not specify what type of lines are being tracked. It is not clear whether any additional orders exist to cover Verizon’s wireless and residential customers, or those of other phone carriers…”

    Clearly there is indeed some discrimination going on here.

    But exactly what this game is about is beyond me at the moment –

    It might be iran.

    But it might be associated with chinese “cyberwarfare” and the president’s upcoming visit. I’d bet on this latter. If so, it may well be a carefully designed leak by obi wan’s musketeers.

  14. lefty665 says:

    @orionATL: Please step back and look at the forest. DiFi and others have confirmed that this is a routine extension of collections that have been going on since 2006 (puts them on the wrong side of the Espionage Act according to DOJ, but I’m not holding my breath). This ain’t a unique order, it’s one of a batch that are apparently routinely renewed every 90 days.

    I’d be more inclined to think it’s a pissed off press, and some folks of good conscience in gov’t.

  15. Mauimom says:

    Do you remember in the “bad old days,” back in the days of the Iron Curtain, Evil Empire, etc., how Russia was always depicted as a monolithic police state, spying on all its citizens and visitors — eavesdropping on hotel rooms, KGB, etc.

    Remember how this was always characterized as “bad” and “over-controlling” and “fearful”?

    Well, how do they like us now?

  16. Kathleen says:

    On Hardball Micheal Steele brings up that this is not a new program
    http://www.nbcnews.com/id/3036697/#52125073
    “Report NSA collecting Verizon customer records”

    As I mentioned over at Hardball Emptywheel has been covering this issue for many years. Wish Chris Matthews etc would have you on Marcy. Have you ever been back on after the “bj” comment on MSNBC?

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