Who Are the Potential Targets of the OTHER Section 215 Program(s)

There are several small, but significant, discrepancies between what Dianne Feinstein and Keith Alexander said in yesterday’s Senate Appropriation Committee hearing on cyber and what others have said. As one example, last week James Clapper said this was the standard for accessing the dragnet of Americans’ call data:

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. [my emphasis]

DiFi yesterday said this was the standard:

It can only look at that data after a showing that there is a reasonable, articulable suspicion that a specific individual is involved in terrorism, actually related to al Qaeda or Iran. [my emphasis]

These are slightly different things (and Congress has fought hard over the word “articulable” in very similar contexts to this in the past — plus, whichever word is used may trace back to Jack Goldsmith’s 2004 OLC opinion on the illegal wiretap program). It’s possible — likely even — that Clapper was just dumbing down his statement the other day. But it is a difference.

I’m particularly interested in the point I raised yesterday. DiFi, in discussing the NSA’s use of the Section 215 data, says it can only be used to find people in the US with ties to terrorists or Iran.

But when Clapper discussed all the potential targets the Intelligence Community might want to trace using Section 215 data, he mentioned a broader group.

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. [my emphasis]

But remember. Clapper oversees all 16 members of the intelligence community, including FBI and the National Counterterrorism Center. DiFi’s statement (and Alexander’s confirmation) applied only to NSA. Elsewhere in the hearing, Alexander said NSA only used what he called “BR” (for business records) to collect phone records. And we know that — at least as recently as 2011 — there was at least one other secret collection program using Section 215. So one of those other entities — almost certainly FBI — must run that program.

Moreover, there’s no reason to believe that Edward Snowden, who had unbelievable access to NSA’s networks and, some time ago, CIA’s records, would have access to programs that didn’t involve those agencies.

And Keith Alexander probably knows that.

Also, terrorists, certainly, and Iran, sort of, are legitimate targets for DOD (I’m actually wondering if the government has acrobatically justified going after Iranian contacts by relying on the still extant Iraq AUMF). For NSA to pursue drug cartels and criminals might present a posse comitatus problem (one that I believe was part of the problem behind the 2004 hospital confrontation).

So I’m wondering how many of the answers we’re getting are designed to minimize the scope of what we know by referring only to the NSA programs?


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.

18 replies
  1. Pozole says:

    As far as NSA helping domestic law enforcement agencies, I’ll note that the DEA El Paso Intelligence Center has had a resident NSA rep since at least the 1990s.

  2. William Ockham says:

    When they talk about “querying the data” they want you to think that they mean “querying the metadata”, but that’s not true. They can use the “metadata” for anything they want and there are zero controls. Any time they use the term “data” they are talking about listening to phone calls and reading the text of an email.

    They are carefully eliding the fact that they are recording and storing a lot of U.S. phone calls and emails (not just metadata), but claiming that it doesn’t count until a human actually listens to it.

    There are no “targets”, per se, of the Section 215 business records program. It says that pretty clearly in the judicial order that Snowden leaks. They just take everything. The target is the world’s telecommunication internetwork. Voice and data.

  3. DWBartoo says:

    EW, I hope that millions of other human beings, the world over, might join you in your very reasonable, and quite appropriate, wonderment.


  4. Kathleen says:

    Feinstein sure jumped in quickly seemingly to help Alexander limit his answer about whether the NSA could dig deeper into phone records after having “actionable” or “articulable” information about an individual who may be a target. There seemed to be a great deal of pausing by Alexander when it came to whether there are different ways to apply these deeper investigative standards to email, texting, google searches etc.

    Interesting segment on Cspan’s Washington Journal this morning (Thursday) with National Journal’s Brian Fung on the application of the Espionage Act possibly in the case of Snowden. He seemed to contradict himself several times when it came to when the public became aware of this surveillance program. Hope you will listen Marcy. Did get a question in (Kathleen/Athens) about how and when the Espionage Act is selectively applied. Why Cheney, Fleisher, Rove etc were not prosecuted under the espionag act for their parts in outing Plame and how the public still does not know how their outing of Plame undermined U.s. National Security. Also asked if Fung could explain why the Aipac/Rosen/ Weissman espionage trial was dismissed by the Obama administration. Selective application of the espionage act

  5. P J Evans says:

    OT: The Supreme Court has ruled – unanimously – that natural human DNA can’t be patented. (Synthetic is patentable, though.)

  6. orionATL says:

    It bothers me a lot that suddenly this spying matter involves iran – somehow or another, someway, deservedly of course.

    For one, this is likely a calculated misdirection of the sort right-wing republican pols routinely use. But the speakers are not right-wing pols. They are a dem senator and a dem admin security executive.

    For another, this could easily spin out of control and end up with an actual war with iran. That would be disastrous for u.s. policy in the middle east for years, and likely in a short time disastrous for our two desperate, hence ruthless, allies s. Arabia and israel.

    For a third, we have oil and currency vulnerabilities that chaos in the middle east might exaccerbate.

    So our national leadership, and i am assuming that the white house is deeply involved in manufacturing these talking points – evasions, lies, misdirections, “misunderstandings”, the presidency AND the congress, are conspiring to misinform and mislead us about an unnecessary and likely ineffective domestic spying program, in ways some of which could fuel demand for another war in the middle east.

    With leaders like these, who needs enemies?

  7. Peterr says:

    So I’m wondering how many of the answers we’re getting are designed to minimize the scope of what we know by referring only to the NSA programs?

    I don’t wonder at all.

    The answer is “all of them.”

    We’re talking about the guy who brags of giving the “least untruthful” responses to difficult questions, after all.

    In DC, ’tis the season of bright shiny objects and general obfuscation.

  8. GulfCoastPirate says:

    @William Ockham:

    In terms of data don’t they have to record/store everything? If I send an email to you, this response (or anyone’s respone) or a query to Google it leaves my computer as a series of TCP/IP packets with identifiable data on each packet. Those packets travel to their destination (all do not take the same path) and are reassembled on the receiving end. They can’t simply capture the identifiable data out of the packets. They have to capture everything or am I missing something?

    As for voice – does anyone know how it is packetized for travel? Is it possible for the feds to capture only ‘metadata’ on voice without having to capture everything?

    In either case I’m not sure why anyone thinks they can get the country to believe anything other than everything is being captured and stored since they are admitting they may want to go back and look at the contents. Do DiFi and the rest of the politicians who support these programs think everyone in the country is stupid?

  9. P J Evans says:

    Do DiFi and the rest of the politicians who support these programs think everyone in the country is stupid?

    Yes, or easily distracted by shiny objects. (They are, therefore everyone else must be the same way.)

  10. posaune says:

    Slightly OT, but I’m just curious:

    If NSA has all these records showing calls, time and location and length of call, presumably for finding and prosecuting terrorists, would a defense attorney be able to access those records for exculpatory evidence? What am I missing here?

  11. William Ockham says:


    They have to be capturing everything. How much they store and for how long is flexible. I’m convinced they have a weighting algorithm.

    As for voice, some of it is TCP/IP (or UDP). You know how that works. The rest is carried over Async Transfer Mode networks (ATM). Wikipedia has a pretty good write up. Again, they have to capture everything because the addressing in the ATM network is done by virtual circuits. The “metadata” that the NSA is interested in is inside the data packets. They are snagging this stuff in real-time. Technically, they have to capture the content. At least, that’s how folks I know who work with this stuff have explained it to me. I’m more of a data geek than a voice geek.

  12. What Constitution says:

    @posaune: Yeah. And, uh, what becomes of the “attorney-client privilege” in the future, in all cases, if there’s a copy of every “document” in the hands of a third party? Time for a “stolen by the Government” privilege?

  13. greengiant says:

    Regarding the possibility of “posse comitatus” problems, wiki reports that the 1878 law as amended refers to the US Army and Airforce with the Navy and Marines included by a DOD regulation. Don’t think the NSA falls under this law in any form. Congress theoretically covered intelligence in the 1978 FISA law.
    But as Clapper and all have been saying? FISA “contents” and “pen register” may not refer to 2000 or 2013 communication systems.
    I imagine the government and its contractors have been finding ways to ignore the 1978 FISA legislation since before it was enacted. From the top down, a secret executive order would have been the most direct method. A contractor cut out would leave out all those federal employees who actually swear to the NSA USSID (directive) 18.
    Using “contractors” to perform illegalities and war crimes was going on long before 9/11.

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