Keith Alexander’s Secret Lie: Retention and Distribution of Domestic Encrypted and Hacking Communications?

As I noted in my last two posts, Keith Alexander has admitted that the classified lie Mark Udall and Ron Wyden accused him of telling “could have more precisely described the requirements of collection under FISA Amendments Act.”

He then goes onto repeat the many claims about Section 702, which are different forms of saying that it may not collect information on someone knowingly in the US.

Which leads me to suspect that the lie Udall and Wyden described is that the program can retain and distribute domestic communications, which are defined as “communications in which the sender and all intended recipients are reasonably believed to be located in the United States at the time of acquisition.”

The minimization procedures actually describe four kinds of domestic communications that can be distributed with written NSA Director determination. Three of those — significant foreign intelligence information, evidence of a crime imminently being committed, and threat of serious harm to life or property — were generally known. But there is a fourth which I think is probably huge collection:

Section 5(3)

The communication is reasonably believed to contain technical data base information, as defined in Section 2(i), or information necessary to understand or assess a communications security vulnerability. Such communication may be provided to the FBI and/or disseminated to other elements of the United States Government. Such communications may be returned for a period sufficient to allow a thorough exploitation and to permit access to data that are, or are reasonably believed likely to become, relevant to a current or future foreign intelligence requirement. Sufficient duration may vary with the nature of the exploitation.

a. In the context of a cryptanalytic effort, maintenance of technical data bases requires retention of all communications that are enciphered or reasonably believed to contain secret meaning, and sufficient duration may consist of any time period during which encrypted material is subject to, or of us in, cryptanalysis.

b. In the case of communications that are not enciphered or otherwise thought to contain secret meaning, sufficient duration is five years unless the Signal Intelligence Director, NSA, determines in writing that retention for a longer period is required to respond to authorized foreign intelligence or counterintelligence requirements,

Technical data base information, according to the definitions, “means information retained for cryptanalytic, traffic analytic, or signal exploitation purposes.”

In other words, hacking.

Encrypted communications and evidence of hacking have secretly been included in a law purportedly about foreign intelligence collection. And they can keep that information as long as it takes, exempting it from normal minimization requirements.

To be clear, the government still has to get the communication believing (according to its 51% rule) that it has one foreign component. But if Keith Alexander says so, NSA can keep it, forever, even after it finds out it is a domestic communication.

Update: Here’s the July 2012 letter to Clapper. Here’s Clapper’s August 2012 response — the good bits of which are all classified.

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Emptywheel Twitterverse
bmaz Now saying two female victims. Shooter unclear. https://t.co/u2IMEnMlxk
10mreplyretweetfavorite
bmaz Whoa, local news says it was two females involved in the Glendale Independence High shooting
13mreplyretweetfavorite
emptywheel @elizabeth_joh As I noted when I made that same point, 702 minimization procedures effective already use it.
31mreplyretweetfavorite
emptywheel @lpackard Why not? It works for James Clapper.
34mreplyretweetfavorite
emptywheel By this logic LE can get into all encrypted emails (which is sort of how NSA works anyway). https://t.co/hDdXhizpoz
38mreplyretweetfavorite
emptywheel Congratulations, Bears fans: You've still got Cutler but you don't have Matt Forte anymore.
40mreplyretweetfavorite
emptywheel Or the emails on the private account that his official emails very obviously get forwarded to. https://t.co/wGY0gUDSFQ
42mreplyretweetfavorite
emptywheel Excellent choice (tho another important scholar who will now be silenced w/clearance) https://t.co/EcWYBpObVb
44mreplyretweetfavorite
emptywheel Rick Snyder's emails are like torture photos: We only get the ones that don't show the dead bodies. https://t.co/rQDFNxqXo3
46mreplyretweetfavorite
emptywheel @caulkthewagon I'm glad there's such a divide bt "but golly he's such a respected figure" & "holy shit we can finally call him war criminal"
47mreplyretweetfavorite
emptywheel Is there a special word for the nostalgia you feel when you have to change one of your favorite passwords?
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