Is the Section 215 Dragnet Limited to Terrorism Investigations?
Unlike PRISM, most public discussions about the Section 215 dragnet program suggest that it is tied to terrorism. It’s a claim, for example, that Charlie Savage makes in this story, which he traces back to this statement from Director of National Security James Clapper.
And indeed, that statement does claim the program is limited to terrorism investigations.
The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism-related communications. Acquiring this information allows us to make connections related to terrorist activities over time. The FISA Court specifically approved this method of collection as lawful, subject to stringent restrictions.
The information acquired has been part of an overall strategy to protect the nation from terrorist threats to the United States, as it may assist counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities.
[snip]
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. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.
All information that is acquired under this order is subject to strict restrictions on handling and is overseen by the Department of Justice and the FISA Court. Only a very small fraction of the records are ever reviewed because the vast majority of the data is not responsive to any terrorism-related query. [my emphasis]
Even assuming James “Least Untruthful Too Cute by Half” Clapper can be trusted on this point, consider a few things about this statement.
- It was released after only the first Guardian release. Thus, it was almost certainly rushed. And while NSA has claimed they had identified Edward Snowden before he started publishing, it is possible they did not know precisely what he had taken (though it is equally possible they already knew).
- Clapper avoids mentioning precisely what program he is referring to in this statement, not even mentioning the Section 215 authority directly (though he does mention the PATRIOT Act. The Executive Branch has a well-established history — on this and related programs precisely — in addressing just a subset of a program so as to try to hide larger parts of it.
In addition, recall that when DOJ Inspector General Glenn Fine referred to these secret programs in a 2008 report on the use of Section 215, he spoke in the plural and included two classified appendices to describe them. In 2011, Acting Assistant Attorney General Todd Hinnen referred only to programs, plural. Thus, there almost certainly are at least two secret programs, and Michael Hayden has claimed Obama has expanded the use of this authority, which might mean there are more than two.
Furthermore, compare Clapper’s statement from June 6 — which mentioned only terrorists — with how he explained the dragnet program to Andrea Mitchell on June 9.
ANDREA MITCHELL: 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.
JAMES CLAPPER: I understand that. But first let me say that I and everyone in the intelligence community all– who are also citizens, who also care very deeply about our– our privacy and civil liberties, I certainly do. So let me say that at the outset. I think a lot of what people are– are reading and seeing in the media is a lot of hyper– hyperbole.
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.There are no limitations on the customers who can use this library. Many and millions of innocent people doing min– millions of innocent things use this library, but there are also nefarious people who use it. Terrorists, drug cartels, human traffickers, criminals also take advantage of the same technology. 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.
You think of the li– and by the way, all these books are arranged randomly. They’re not arranged by subject or topic matter. And they’re constantly changing. And so when we go into this library, first we have to have a library card, the people that actually do this work.
Which connotes their training and certification and recertification. 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.
ANDREA MITCHELL: Why do you need every telephone number? Why is it such a broad vacuum cleaner approach?
JAMES CLAPPER: 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.
In speaking of the way in which the government uses this dragnet collection as a kind of Dewey Decimal system to identify communications it wants to go back and view, he doesn’t limit it to terrorists. Indeed, he doesn’t even limit it to those foreign intelligence uses the PATRIOT Act authorizes, like counterintelligence (though Obama’s roll-out of Transnational Crime Organization initiative in 2011 — which effectively started treating certain transnational crime networks just like terrorists — may suggest only those crime organizations are being targeted).
Given two more days of disclosures after his initial Section 215 statement, Clapper acknowledged that PRISM has been used (at a minimum) to pursue weapons proliferators and hackers in addition to terrorists. Then, the next day, he at least seemed to suggest that Section 215 collection is used to pinpoint not just terrorists, but also drug cartels and other criminal networks.
And as I’ll show in a follow-up post, it seems to have targeted far more than that.
As I’m reading this post, German radio is just finishing a story on how the EU countries are trying to hammer out a multilateral agreement – at least among the EU countries – for what they’re calling “instantaneous data exchange”. The reason? To get at people who are moving their money across the national borders (in one way or another) to avoid taxation. The drawbacks to completing this agreement, which nearly came acropper last month, so far have been a couple countries, Austria primary among them, which view the agreement as one which eliminates bank secrecy.
This latest attempt is being made without consulting Switzerland, Liechtenstein and a couple other non-EU tax havens (Andorra and Monaco being faves, too), in the hope that once the EU gets onto the same sheet of music on exchanging information, refusals to engage in commerce or similar, subtler methods, can whip the non-EU tax havens into agreement.
Every country has its bogeymen. Here, they’re terrorists. In Europe, it’s tax dodgers. (The German word for them translates as “Tax sinners”.) And in every instance, the governments use their respective bogeymen to effect the same panopticon objective.
“Zeroes and ones”? “ZEROES AND ONES”! Oh, they only look for “zeroes and ones”! That certainly sounds very limited in scope, and I certainly feel much, much safer now. And I clearly can see that Lindsay Graham is right, I should go back to sleep.
Good thing it’s people like James Clapper we are being asked to trust. No wonder Snowden is worried.
“..ANDREA MITCHELL: Why do you need every telephone number? Why is it such a broad vacuum cleaner approach?
JAMES CLAPPER: 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.
– See more at: http://www.emptywheel.net/#sthash.mOmyZegK.dpuf…”
Translation:
Because we have no fuckin’ idea where to start.
Because we have given up on the belief that human intelligence – insight and intuition – is the best tool on earth for choosing one from many.
We have gone over to the cyborg side. The cia/fbi/dhs are now merely our paid thugs to employed to assassinate, detain, interrogate, and incarcerate – in short, to engage in ex post post u.s. sponsored terrorism.
Since the NSA is a component of the military, that would be a question for the military to answer wouldn’t it?
Novel idea:
Remove the nsa from the dod as soon as possible.
Leave the dod operations portion within dod.
Place each of its programs under continuous, persistent joint executive/congressional review.
From a Charlie Savage article in the New York Times yesterday (http://www.nytimes.com/2013/06/12/us/aclu-files-suit-over-phone-surveillance-program.html?_r=0):
“But supporters privately say the database’s existence is about more than convenience and speed. They say it can also help in searching for networks of terrorists who are taking steps to shield their communications from detection by using different phones to call one another. If calls from a different number are being made from the same location as calls by the number that was already known to be suspicious, having the entire database may be helpful in a way that subpoenas for specific numbers cannot match.”
Speed and convenience. When the US government considers bypassing the 4th Amendment, the only thing that matters to it is speed and convenience.
That paragraph also leads one to believe that capturing geo-location data is part of the effort as well.
@orionATL:
Make sure judges are involved in the review, and I’d like to see random civilians on the committee, just to make sure that the committee gets the view of the real world.
Why, no I don’t trust the executive and legislative branches to do real oversight. Not after the last 12 years.
@Snoopdido:
Because of course the terrorists are the only ones calling from one particular location to another, and no one ever moves around with their wireless devices.
Jeebus Ghu FSM, do they think everyone else is really that stupid?
@P J Evans:
I love the idea of randomly chosen civilians. I’ve toyed with it as a fine substitute for the pervasive jury selection manipulation process we have been experiencing the last few decades, which seems tobe getting more sophisticated and manipulative by the decade.
@Snoopdido:
“… If calls from a different number are being made from the same location as calls by the number that was already known to be suspicious, having the entire database may be helpful in a way that subpoenas for specific numbers cannot match…”
So if i’m the bad guy, but my wife and children or my housemates all have cell phones, then all their calls will be monitored.
Oh well, ya got to give some to get some.
I wonder again outloud, might there be a subset of (important of course) american citizens whose phones are off limits to monitoring?
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 might explain why Clapper didn’t simply ask the Intel Committee to enter a closed session when Wyden rolled out the Q that Clapper was fully prepared for.
He knew he couldn’t be truthful with the committee, even in closed session, because they were exceeding the 215 authority.
@What Constitution?: I’m sorry, on further reflection I more fully understand the limitations and focus inherent in searching digitized phone records by looking for zeroes and ones. After all, it’s “international” terrorism we’re after, so obviously an “international” terrorist would commence “international” phone calls with “011”, right? See? “Zero” “one” “one”. That is, indeed, one carefully circumscribed search construct after all, huh?
By the way, as incredibly impressive as the various sleuths’ efforts are to interpret, understand and/or debunk various “official” comments/proferred justifications by comparing to earlier comments, all this really points out is how important it is to actually get real answers at this point. Indeed, to question what these people are saying today by comparison to what they may have said at some earlier point is interesting, but to the degree it depends upon giving credence to a prior statement it seems more than a tad problematic. Basically, it seems to me that the safest assumption is these people only lie when their lips move, and it’s just as likely that they had no friggin’ clue whether their previous comments were accurate when they uttered them, they just knew they were unaccountable and their accuracy could not be checked.
If Obama “welcomes” this debate, let’s get it started. And, of course, everybody (especially Marcy) is to be thanked for itemizing the litany of inconsistencies that we need to sort out in an effort to actually understand the scope of this malevolency (or even the possibility that it’s all just hunky dory and we Little People “can’t handle the truth”).
EW, you watching Mikulski? And the shift from terrorism to hacking is underway…
@phred: LOL, and now Alexander is reminding the senators that they are all in this together with him. Worried much, there Keith ol’ boy?
@phred: “…and working with industry…”
This is magnificent…
@phred: Alexander finally gets around to the word du jour, “lawfully”, and then tells us how swell NSA employees all are. Brings a tear to one’s eye ; )
@phred:
and it has the knowledgeable ROFL?
@P J Evans: It’s a real pity I couldn’t stay for the whole thing. I’m sure my commentary would have gotten incendiary by the end ; )
@Snoopdido: Speed and convenience.
Remember that phrase because when NSA Director General Alexander tries tomorrow to answer the question Oregon Senator Jeff Merkley (D) raised in today’s hearing, the US government’s response will be all about “speed and convenience”.
Senator Merkley described the Section 215 statute as requiring “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.”
Senator Merkley asked how the acquisition of his own Verizon phone records could possibly meet the standards described in Section 215?
Here’s how I suspect the US government will try to answer this question in NSA’s classified briefing tomorrow.
The US government will likely try to make the case that in order to find a needle in a haystack, you need to first have a haystack. That these private sector telephone companies maintain call records for any period of time is entirely voluntary on their part, and they are under no legal requirement to do so.
Additionally, they certainly don’t have any financial reason to maintain call records permanently in an searchable online state as that is a significant cost without any particular benefit to them.
The US government however would argue that they themselves do need a database to maintain call records permanently in an searchable online state because not having such a thing would mean there is no haystack in which to find a needle.
The US government therefore saw that if the private sector telephone companies couldn’t and wouldn’t provide the haystack, then the US government would have to fund and maintain one themselves. That is the “convenience” part of the US government’s argument.
For the “speed” part of the US government’s argument, they would likely state that even if private sector telephone companies did have some sort of searchable call record database, it would likely only have recent call records in it where older call records (90+ day old?) were archived offline.
If the US government then were to try to search for a particular call that occurred in May or even earlier where the private sector telephone companies online call records only went back to June, the US government would either have to request that more archived call records be brought online for another search, or even abandon the search as no records found.
To the US government, that type of search failure, or multiple search queries required, and/or lengthy delay in answering search queries would be unacceptable. That’s the “speed” part of the US government’s argument.
Underpinning the US government’s “speed and convenience” arguments is the central fact they would argue that if they didn’t maintain a searchable database of all US phone records, no one would.
Oh, this is good… from the Guardian’s live blog…
Quote: “Mikulski says “we will now move to a closed briefing.”
{snip}
The 9/11 attacks called the balance of privacy and security into question,” she says.
“It is a time now for a new, fresh, national debate,” she says.” End quote.
So, ummm, how exactly do we go about a “new, fresh, national debate”, when the details are hidden behind a veil of secrecy and a closed hearing? We already know that the intelligence agencies have been misleading Congress, so why would we expect that to change???
My dear Sen. Mikulski, I think Rosie Gray had your number. For a democratic society to debate the conduct at hand, we need to know what it is. Hiding the information from the public is completely unacceptable, indefensible, and inexcusable at this point.
Oh, and you should give careful thought to firing Alexander and Clapper, and that is likely just a start…
I’ve started pushing back on ‘it’s all about catching terrorists’ by adding that it also pressures hackers and dissidents, and the intention is clearly to get them to become either informants or inmates.
There are way too many people who fold into little balls at the mention of terrorism.
Thanks EW…. Question what was wrong with my comments earlier today. Aye?
The guardian continues to challenge the military deception ploy of having feinstein and rogers assert right after the nsa wiretapping leak from snowden, that it was the u.s. wiretap dragnet and/or the prism program that stopped n. Zazi’s n.y.c. terrorism caper and helped identify david hedley, e.g.,
“…Further scepticism has been expressed by David Davis, a former British foreign office minister who described the citing of the Zazi case as an example of the merits of data-mining as “misleading” and “an illusion”. Davis pointed out that Operation Pathway was prematurely aborted in April 2009 after Bob Quick, then the UK’s most senior counter-terrorism police officer, was pictured walking into Downing Street with top secret documents containing details of the operation in full view of cameras…”
http://www.guardian.co.uk/world/2013/jun/12/nsa-surveillance-data-terror-attack?guni=Network%20front:network-front%20main-5%20most%20read:microapp%20zeitgeist:Most%20Viewed%20Section%20Front:Position4
@JamesJoyce: ?????
@phred:
Alexander’s remarks are not being received well by the public. ‘We stopped n plots but we can’t tell you anything about them’ is getting the ‘yeah, right!‘ response.
Who would have thought that Mr. Obama would preside over the domestication of “anti-terrorist” practices originally intended for spies and GI Joe’s working overseas? Over the increased federalization of local law enforcement resources (even beyond the bar set by BushCheney)? And over the engorgement of domestic surveillance (Congress made Total Information Awareness illegal in 2003, didn’t it?) in order to anticipate not just terrorist acts, but general crimes, and presumably the crime engaged in by citizens when they politically oppose those in power?
Sadly, the list is long. He’s done it, he’s still doing it.
@earlofhuntingdon:
he certainly talks populist really well, but it’s now clear that he doesn’t do populist at all. Whatever he’s told by corp-rat executives and generals, he seems to believe whole-heartedly.
The NSA is a military operation. The data can be used for military purposes, which the military has openly described as deploying the military within the U.S. to put down various activities.