Have Clapper, Feinstein, and Rogers Confused the Distinct Issues of Section 215 and PRISM? Or Are They Indistinct?

Last year, when Pat Leahy tried to switch the FISA Amendments Act reauthorization to a 3 year extension instead of 5, which would have meant PATRIOT and FAA would be reconsidered together in 2015, the White House crafted a talking point claiming that would risk confusing the two provisions.

Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.

In the last week, the Guardian had one scoop pertaining to FAA (the PRISM program) and another to PATRIOT (the use of Section 215 to conduct dragnet collection of Americans’ phone records).

Since then, almost everyone discussing the issues seems to have confused the two.

Including, at a minimum, Mike Rogers, as demonstrated by the video above. When Dianne Feinstein started explaining the Section 215 Verizon order, Mike Rogers interrupted to say that the program could not be targeted at Americans. But of course the Section 215 order was explicitly limited to calls within the US, so he had to have been thinking of PRISM.

Then there what, on first glance, appears to be confusion on the part of journalists. I noted how Reuters’ Rogers-related sources were clearly confused (or in possession of a time machine) when they made such claims, and NYT appeared to conflate the issues as well. Similarly, Andrea Mitchell took this exchange — which is clearly about Section 215 — and elsewhere reported that the law allowing NSA to wiretap Americans (which could be FISA or FAA) stopped the attack.


At the same time, when Americans woke up and learned because of these leaks that every single telephone call in this United States, as well as elsewhere, but every call made by these telephone companies that they collect is archived, the numbers, just the numbers, and the duration of these calls. People were astounded by that. They had no idea. They felt invaded.


I understand that.


A metaphor I think might be helpful for people to understand this is to think of a huge library with literally millions of volumes of books in it, an electronic library. Seventy percent of those books are on bookcases in the United States, meaning that the bulk of the of the world’s infrastructure, communications infrastructure is in the United States.


So the task for us in the interest of preserving security and preserving civil liberties and privacy is to be as precise as we possibly can be when we go in that library and look for the books that we need to open up and actually read.


So when we pull out a book, based on its essentially is– electronic Dewey Decimal System, which is zeroes and ones, we have to be very precise about which book we’re picking out. And if it’s one that belongs to the– was put in there by an American citizen or a U.S. person.

We ha– we are under strict court supervision and have to get stricter– and have to get permission to actually– actually look at that. So the notion that we’re trolling through everyone’s emails and voyeuristically reading them, or listening to everyone’s phone calls is on its face absurd. We couldn’t do it even if we wanted to. And I assure you, we don’t want to.


Why do you need every telephone number? Why is it such a broad vacuum cleaner approach?


Well, you have to start someplace. If– and over the years that this program has operated, we have refined it and tried to– to make it ever more precise and more disciplined as to which– which things we take out of the library. But you have to be in the– in the– in the chamber in order to be able to pick and choose those things that we need in the interest of protecting the country and gleaning information on terrorists who are plotting to kill Americans, to destroy our economy, and destroy our way of life.


Can you give me any example where it actually prevented a terror plot?


Well, two cases that– come to mind, which are a little dated, but I think in the interest of this discourse, should be shared with the American people. They both occurred in 2009. One was the aborted plot to bomb the subway in New York City in the fall of 2009.

And this all started with a communication from Pakistan to a U.S. person in Colorado. And that led to the identification of a cell in New York City who was bent on– make– a major explosion, bombing of the New York City subway. And a cell was rolled up, and in their apartment, we found backpacks with bombs.

A second example, also occurring in 2009, involved– the– one of the– those involved, perpetrators of the Mumbai bombing in India, David Headley. And we aborted a plot against a Danish news publisher based on– the same kind of information. So those are two specific cases of uncovering plots through this mechanism that– prevented terrorist attacks.

What would seem to support the conclusion that everyone was just very confused is that, in his talking points on the two programs, Clapper claims three examples as successes for the use of PRISM, none of which is Zazi or Headley.

Now, the AP reports Clapper’s office (which is fast losing credibility) has circulated talking points making the claim that PRISM helped nab Zazi.

The Obama administration declassified a handful of details Tuesday that credited its PRISM Internet spying program with intercepting a key email that unraveled a 2009 terrorist plot in New York.

The details, declassified by the director of national intelligence, were circulated on Capitol Hill as part of government efforts to tamp down criticism of two recently revealed National Security Agency surveillance programs.

But, as I suggested last year, the White House clearly wasn’t concerned about us confusing our pretty little heads by conflating FAA and Section 215. Rather, it seemed then to want to hide the relationship between the dragnet collection of Americans calls and the direct access to Internet providers’ data.

But Clapper and DiFi seem to hint at the relationship between them.

In her first comments about Section 215 (even before PRISM had broken) DiFi said this.

The information goes into a database, the metadata, but cannot be accessed without what’s called, and I quote, “reasonable, articulable suspicion” that the records are relevant and related to terrorist activity.

And in his talking points on 215, Clapper said this.

By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.

This standard — reasonable suspicion that the records are relevant to or associated with a terrorist investigation (I’ll come back to the terrorism issue in another post) — is not the 215 standard, because it requires reasonable suspicion. But it’s not as high as a FISA warrant would be, which requires it to be more closely related than “relevant” to a terrorist investigation.

So what standard is this, and where did it come from?

Via email, Cato’s Julian Sanchez hypothesizes that the FISA Court may have required the government apply the standard for Terry stops and ECPA to their ability to access US person data from the database.

It looks like they essentially imported the Terry stop-and-frisk standard, maybe by way of the ECPA “specific and articulable facts” standard in 18 USC 2703, as a post-collection constraint on QUERIES of the database, rather than its collection. That would comport with the DOD understanding that “acquisition” of a communication only occurs when it’s actually processed into human-readable form and received by an analyst: They’ve concluded that the “relevance” test can be embedded in back end restrictions at the “query” phase where “acquisition” happens rather than the initial copying of the data. And they’ve used the ECPA/Terry standard as the test of relevance.

In other words, DiFi and Clapper’s comments, in particular, and the underlying confusion that suggests there’s a tie between PRISM and the Section 215 database generally, seem to suggest that the PRISM collection provides the evidence the government uses to get access to the predominantly US person metadata to start seeing which Americans have 6 degrees of separation from the terrorists.

They’re saying over and over again that they just can’t go into the database willy nilly. Except they can access the PRISM data willynilly (including seeing the US person data) and use that to access a data of predominantly American records.

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.

23 replies
  1. Snoopdido says:

    Emptywheel wrote:

    “In other words, DiFi and Clapper’s comments, in particular, and the underlying confusion that suggests there’s a tie between PRISM and the Section 215 database generally, seem to suggest that the PRISM collection provides the evidence the government uses to get access to the predominantly US person metadata to start seeing which Americans have 6 degrees of separation from the terrorists.”

    Neither Prism (of what we know about it from only 4 slides out of 41) nor the Section 215 database (limited to our knowledge that it does contain at least all Verizon domestic phone call records for the last 7 years) describes the NSA activity that was revealed by Mark Klein of AT&T where real-time triggers input by the NSA in Narus systems were watchdogging real-time massive digital traffic flow thru fiber optic pipes.

    From what I’ve read of both Prism and the acquisition of phone call records obtained under Section 215 orders to be placed in big data database, they both appear to be used for historical surveillance or forensic surveillance activities, rather than for real-time triggered surveillance.

    The point I’m making is that there is still seems to be some unnamed NSA surveillance activity or activities that Mark Klein discovered that does real-time triggered surveillance.

    The NSA watchdogging of a Yahoo email address in Pakistan obtained by the Brits could have been accomplished by a historical surveillance or forensic surveillance activity, (we’ve got this email addy, so let’s go back into our database of acquired emails to look for anybody who has emailed it), or it could have been used for a real-time triggered surveillance acquisition (somebody just emailed the Yahoo email address in Pakistan we’re watching).

    I still don’t know what I don’t know.

  2. klynn says:

    Oh my. EW, so how would all of this 6 degrees of separation sift out the difference between a neighbor with children the same age as a suspected target, only being neighborly verses another person being an alliance of the target. This all sounds like guilty by association even if you know nothing.

  3. Snoopdido says:

    @Snoopdido: I forgot to add that the latest AP report you referenced seems to imply a real-time triggered surveillance when it states “The NSA intercepted that email”, though with Clapper’s unusual definition of the words collection versus interception, I can’t say with any clarity whether it was forensic or real-time triggered surveillance.

  4. Teddy Partridge says:

    Distinct or indistinct, the White House was certainly correct: confusion rules.

    Listening to DiFi say that “DOJ says this program is legal!” makes me realize she is a true authoritarian.

  5. Frank33 says:

    A second example, also occurring in 2009, involved– the– one of the– those involved, perpetrators of the Mumbai bombing in India, David Headley.

    Hey Clapper. That is my scoop. I scooped the embedded press because Mumbai became forbidden history when the Pakistani Kasab was captured and talked.

    Why does a gadfly in fly-over country such as me, have to tell the story? Because this is part of Clapper’s false history.

    Most of the plot had been discovered within a week after 26/11 by Indian Authorities. Mumbai was an ISI plot blamed on Al Qaeda. Headley helped at the command center, working for CIA, ISI L-e-T, Al Qaeda and First World Immigration Service. He was not arrested for a year. And Clapper continues to blame it on Al Qaeda.

  6. orionATL says:

    I made this comment on mildec (“military deception”) in another post, but it fits here as well:

    ” orionATL on June 11, 2013 at 5:42 pm said:

    More “mildec” – military deception – from our leaders:

    Lying about the zazi plot:


    ” The Obama administration says the Prism Internet surveillance program was needed to foil Najibullah Zazi’s plot to bomb the NYC subway. But the chairs of both congressional intelligence committees say a different program, one that collects phone metadata, foiled the Zazi plot.

    Who’s right? It appears the answer may be neither.

    Zazi was caught in 2009 when he sent an email to an address in Pakistan known to be connected with al-Qaeda. Today the White House declassified talking points showing that Prism sucked the email up.

    What the government leaves out of the explanation, reported by the AP, is that the email interception wouldn’t have required a broad, warrantless program like Prism:

    That’s because, even before the surveillance laws of 2007 and 2008, the FBI had the authority to — and did, regularly — monitor email accounts linked to terrorists. The only difference was, before the laws changed, the government needed a warrant.

    It is unclear why House intelligence chair Mike Rogers and Senate intelligence chair Dianne Feinstein said that phone sweeps nabbed Zazi. The AP notes a general air of confusion about the Zazi case among government officials, who have been “misstating key details about the plot”:

    Director of National Intelligence James Clapper said investigators “found backpacks with bombs.” Really, the bombs hadn’t been completed and the backpacks the FBI found were unrelated to the plot.

    Feinstein said the FBI had Zazi under surveillance for six months. Court testimony showed Zazi was watched only for about two weeks before he was arrested…”

    First views and impressions are lasting for millions.

    So what how to practice mildec to control those initial bits of info?

    embed falsity in truth, that’s what.


    Remember the fbi agent who shot the chechyan he was interrogating because he had a knife?

    Only he didn’t have a knife – or a sword, or a metal pole.

    – See more at: http://www.emptywheel.net/2013/06/11/clapper-couldnt-even-do-better-than-least-untruthful-with-a-days-notice/#comment-563038

  7. TomVet says:

    Point of order, please, Madam Senator? If the Congress does the legislating, i.e. writing the law, and the Judiciary interpets its constitutionality, and the Executive enforces it; how then does the DOJ, which is an Executive branch department, get to determine its constitutionality or legality?

    This is something I have been pondering for a long time now. Ever since all the Presidents have been getting all these warped interpretations on everything from torture to wire-tapping and everything in between from their own lawyers rather than the Judiciary.

    I, too, still don’t know what I don’t know!

  8. orionATL says:


    Mildec aside, the zazi case is of great interest to me because it is the ONLY domestic u.s. terrorism case that even the programs (note plural, not possessive) strongest supporters can connect with either program.

    If zazi is falsely associated with domestic “metadata” nsa spying or with “prism” electronic communications spying, then these highly intrusive and, probably, highly expensive programs

    Can be said to be pointless, at best, or, at worst, understood by americans and other nations as programs with a more malevolent intent, one involving domination – of domestic politics or of u.s. competitors.

    I’m betting that “metadata” really has been fruitless and pointless, but the obama admin and the program’s congressional supporters can not afford to acknowledge the program’s failure and their failure as its architects and protectors.

    Hence the desperate p.r. need to present “zazi” as case in point.

  9. Rayne says:

    IMO, Section 215 and PRISM can’t be separated; PRISM exists because of Section 215’s application.

    And Clapper is dissembling, a master of weasel wording.

    …the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. …

    “indiscriminately sifting” — they aren’t discriminating, and they aren’t sifting. They are collecting ALL and looking for specific keys, which isn’t sifting to his mind as it’s highly selective.

    …The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. …

    Define “reasonable.” I used to know what this meant from my classes in Law 101 and 201 as well as Ethics, but these last two administrations have entirely different opinions about this word’s meaning.

    “specific facts” — which are extremely opaque to the public’s eye, so the facts could be anything they choose.

    “foreign terrorist organization” — tell that to the three false positives Marcy’s pointed out in an earlier post. How did those people meet the criteria?

    “So when we pull out a book, based on its essentially is– electronic Dewey Decimal System, which is zeroes and ones, we have to be very precise about which book we’re picking out. And if it’s one that belongs to the– was put in there by an American citizen or a U.S. person. …”

    Really? The Dewey Decimal System? We all of us educated in the US public school system know that the DDS is useless without the book — the content indexed to the number. The index tells us where the book is located, that has some value, but it’s what is in the book that is the purpose of the DDS, to help one find the book and its contents. I think the use of this example is a Freudian slip, revealing the truth.

    Quite a bit of the truth appears in the slides we’ve seen, even if we haven’t and won’t see them all. I’m working on a post about this, stay tuned.

  10. Larue says:

    EW’s quest for truth aside, all y’all are missing one salient point that should be scaring the shit outta ya.

    These methods and results being collected are not to detect and prevent terrorists (‘specially MUSLIM one’s), that’s the smoke and mirrors meme.

    The INTENT is to build up lists of all DOMESTIC folks who dissent in any way, shape or form . . . in the event that info can be USED to impose even more authoritarian measures upon we the people.

    THAT’S the junk in the corp fascist trunk that should frighten us all.

  11. JamesJoyce says:

    Why is my comment awaiting moderation? There is no need for moderation. The new word for censorship E.W.?

  12. Tenor says:

    Having read several long pieces re Headley some whtle ago, per memory: one of his Pakistani wives informed the US embassy before the Mumbai attack that he was dangerous & planning terrorist attacks. Nonetheless, the US left him in play until the UK detained him en route to Denmark & insisted the US take him off the table.

  13. Frank33 says:

    Try TWO wives, who reported Headley as a terrorist. But that did not give the Intelligence authorities enough actionable intelligence. Of course Headley had been a DEA/CIA “informer” since at least 2001. He made regular trips to India then on to Pakistan.

    Spymaster Philip Mudd was the one who got me on this story. Mudd warned about westernized Al qaeda such as Headley. So Mudd claimed spies needed more power because of scary terrorists such as Headley. The CIA’s “informers” commit crimes then the spies use that to increase the fascism. Mudd is another serial liar along with Clapper.

    But how could Headley have been ignored by National Security Authorities? He worked for an “immigration service”. First World Immigration brought in Pakistani laborers because there are not enough Pakistani workers in the USA. First World Immigration continued after Headley and Rana were arrested.

  14. Jeff Kaye says:

    @Frank33: Speaking of Headley… so where is he in prison? We know where the Unabomber is, the 9/11 “mastermind” KSM, young Omar Khadr, the underpants bomber, etc. — but where is David Headley? Is he even in prison?

    As for PRISM, Section 215, etc., the real issue is not how effective they are (as the government wants to put it), but whether or not this current generation in America wants to be known as the Worst Generation, that is, the generation that finally lost any vestige of civil liberties as enshrined in the Constitution.

    In many dictatorships, room is made for much “freedom of speech,” as long as it is not felt as threatening to the government. It’s even seen as a way to blow off steam. But when someone begins to be a political threat, the government slams them down with police and judicial oppression. The US government wants to be able to do that, and the first cases (we know of) are of journalists. But if a significant political opposition to corporate and banker rule in America ever gets off the ground, or the labor movement revives itself, we know what tools they will use. The “Iron Heel”, with computerized aim.

    I once had a conversation with a former political refugee from Franco’s Spain. He told me you could buy Lenin and Kropotkin in bookstores in Madrid in the 1960s. But if you organized against the Franco regime, you were taken to prison.

  15. Frank33 says:

    @Jeff Kaye:

    where is David Headley? Is he even in prison?

    Funny, you should ask that. We may have to crowd source to get that information. Would the Intelligence Community use Headley for another False Flag Op? Sure, why not.

    It also seemed that there were few photos of Headley. Headley was part of State sponsored, Pakistan terrorism. That has been concealed. Headley was protected for a year before his arrest. Supposedly the British were going to arrest him. This plot is so complex, so evil, that it is difficult to explain in 140 characters. US spies may have let Headley commit ISI terror. And Clapper made a major mistake in claiming PRISM stopped Headley.

    Patrick Fitzgerald was quite lenient to Headley, and concealed that Mumbai was an ISI Op. Headley and Rana were only sentenced in January. Headley got 35 years in prison for killing six Americans. That is less punishment than the NSA Stasi intends for Bradley Manning.


  16. toschek says:

    What I don’t see anyone on the news or opinion shows or in the newspapers talking about is the retention of the data, for long periods of time. That is a goddamned treasure trove and I’d be really surprised if it didn’t tempt “authorities” to use it for other law enforcement purposes.

    How big a stretch is it really for the DEA, ICE, ATF, FBI to start utilizing these tools to go after drug offenders, smugglers, child pornographers, weapons trafficers, etc. Once something like this is created, it can’t be uncreated, and pressure will be applied to use the data for purposes outside of the original scope. Frankly that is what scares me, even though I don’t engage in any of thhe crimes listed.

  17. Tenor says:

    Suggestively, US refused all India’s pleas for an opportunity to question Headley until after his plea bargain which includes US’ solemn promise not to allow his extradition to India. Then permitted limited questioning under US supervision. Just a few days ago, India formally requested US to “‘temporarily’ hand over” Headley “for one year and to extradite his accomplice” Rana (whom Headley testified against). “India Wants Custody of Headley,” THE HINDU, June 3, 2013

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