Information Sharing with Israel Raises Questions about Efficacy of NSA’s Minimization Procedures

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The Guardian’s latest Edward Snowden story yesterday reported that an information sharing Memorandum of Understanding written sometime after March 2009 laid out the sharing of unminimized US collections with Israel. The agreement appears to newly share such unminimized content based on unenforceable assurances from Israel that it will minimize US person data and destroy any communication involving a US government official.

Whatever else this story may do, it casts serious questions on the efficacy of the minimization procedures that lie at the core of FISA Court oversight over the government’s spying program.

NSA’s minimization procedures in place (per a date stamp) on July 29, 2009 only allow the government distribution of unminimized data to foreign governments for cyrptoanalysis or translation. And it requires the foreign government to return the data once it has provided assistance.

Dissemination to foreign governments will be solely for translation or analysis of such information or communications, and assisting foreign governments will make no use of any information or communication of or concerning any person except to provide technical and linguistic assistance to NSA.

[snip]

Upon the conclusion of such technical or linguistic assistance to NSA, computer disks, tape recordings, transcripts, or other items or information disseminated to foreign governments will either be returned to NSA or be destroyed with an accounting of such destruction made to NSA.

But the information sharing agreement with Israel not only envisions it keeping this data (with the requirement that it “strictly limit access … to properly cleared ISNU personnel and properly cleared members of Israeli intelligence services”) but also circulating it, so long as it complies with an unenforceable promise to minimize US person data.

Disseminate foreign intelligence information concerning U.S. persons derived from raw SIGINT provided by NSA — to include any release outside ISNU in the form of reports, transcripts, gists, memoranda, or any other form of written oral document or transmission — on in a manner that does not identify the U.S. person.

The only data that the US requires Israel destroy is that involving US government personnel.

Destroy upon recognition any communication contained in raw SIGINT provided by NSA that is either to or from an official of the U.S. Government. “U.S. Government officials” include officials of the Executive Branch (including the White House, Cabinet Departments, and independent agencies); the U.S. House of Representatives and Senate (members and staff); and the U.S. Federal Court system (including, but not limited to the Supreme Court).

So unless the government canceled this agreement just 4 months after it reached it, it means the NSA misrepresented to the FISA Court the legal and privacy implications of the collection the court approved based on those minimization procedures. The court approved broad collections based on the understanding minimization would be strictly enforced, but here we learn it has been outsourced to a foreign government in terms that don’t seem to abide by the minimization procedures themselves.

And consider the implications of this. Two years ago, the Israeli press reported that it would start monitoring Western groups for what it considers attempts to delegitimize Israel.

The new MI unit will monitor Western groups involved in boycotting Israel, divesting from it or imposing sanctions on it. The unit will also collect information about groups that attempt to bring war crime or other charges against high-ranking Israeli officials, and examine possible links between such organizations and terror groups.

And, as others have noted, the Israelis killed US citizen Furkan Dogan in an attack on a Gaza relief flotilla after this MOU went into place.  US intelligence would be hard pressed to dream up a justification for spying on US peace and pro-Palestinian groups (though the government used Eric Harroun’s opposition to Zionism as evidence to charge him with terrorism). But if we share SIGINT with Israel under this unenforceable MOU, it could mean Israel conducts such spying using data we’ve collected, effectively expanding the targets of US spying well beyond those envisioned by law.

We don’t know how Israel is using this data. And so long as the US shares unminimized data, it’s not clear it does either.

In its response to the Guardian., the NSA emphasized that it abides by “legal restrictions.”

NSA cannot, however, use these relationships to circumvent US legal restrictions. Whenever we share intelligence information, we comply with all applicable rules, including the rules to protect US person information.

But note carefully: it says it abides by rules to protect US person information, which this MOU pays lip service to doing. It doesn’t say it abides by procedures approved by the courts. There’s a difference, and I do look forward to NSA assuring the courts that it hasn’t, again, violated the rules the courts impose on it.

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.

24 replies
  1. GulfCoastPirate says:

    Does the NSA have the legal authority to sign such a memorandum? If not, did it have to go to a higher authority? Who, exactly, signed off on this?

  2. Chetnolian says:

    Well, just because we are paranoid doesn’t mean they are not out to get us.

    This is to me the most shocking of all the revelations. I’m not a US citizen, but clearly NSA has details of my emails etc.. I would hate to be thought of as an enemy of the USA, but if pushed am I an enemy of the country which on ethnic grounds pends up the Palestinians where their only fault has been to live? Of the country which used white phosphorous (a chemical weapon in my glossary)in Gaza? Of the country which drives bulldozers over peaceful protesters? Well, you know I just might be. And the US, the Land of the Free, the self-appointed protector of liberty around the world, spreads my communications at will to Israel.

    Nope, there is no way, no way atall, in which that can be justified. The people who chose to do this are just plain bad.

  3. scribe says:

    Equally concerning but something you haven’t touched on, EW, is that the MOU also provides for NSA to share with the Israelis the technology involved.

    Why would the Israelis need to abide by anything if, fer instance, independent of NSA personnel they could just get direct access to the feeds off the splitters by telling the computers to send them a copy? Or if they could directly task the computers to perform searches using identifiers they defined?

    Hmmm?

  4. The Polemicist says:

    Infuriating, but not surprising. Israel has been integral to NSA surveillance for a long time, and in fact provided some of the crucial hardware. Furthermore, a “mid-level employee, apparently with close connections to the country” — in other words an Israeli spy — stole the NSA’s “advanced analytical and data mining software.” and passed it to Israel. Unlike Private Manning or Edward Snowden, this actual spy was not prosecuted under the Espionage Act or any other law. His spying was just ignored, and treated by the NSA as no big deal. Indicating the complete immunity America grants Israel.

    For a detalied account of the NSA-Israel relationship, see:
    "Just One More Detail":American Surveillance And The Unanswered Question of Israel

  5. emptywheel says:

    In response to both @scribe and @GulfCoastPirate, I suspect one of the underlying issues is our partnership on cyber. Once you start partnering on that level–which of course entails sharing tech–then it’s hard to avoid sharing data.

  6. GulfCoastPirate says:

    @emptywheel: I asked this question(s) the other day in a different thread when the subject of Israel came up. How much do we know about the contractors who provide software services to the NSA? Who owns these companies? Have any of them been taken over by Israeli companies after they received NSA contracts?

    Why the big Intel facility in Tel Aviv? What cost advantage does Intel get from producing there as opposed to China, Malaysia, Thailand, etc. that makes it economically viable to put a facility in one of the most dangerous regions of the planet?

  7. RiderOfKarma says:

    Reminds me of the private Israeli firm that was monitoring anti-Fracking groups (and people who attended a Gasland premier) in Pennsylvania under contract with the state’s Homeland Security Dept. That info was then shared with the natural gas companies they were protesting against.

    In the PA case at least, there seemed to be absolutely no line between business and government interests in using surveillance against the rest of us:

    “Pennsylvania Department of Homeland Security, James Powers, mistakenly sent an email to an anti-drilling activist he believed was sympathetic to the industry, warning her not to post the bulletins online. The activist was Virginia Cody, a retired Air Force officer. In his email to Cody, Powers wrote: “We want to continue providing this support to the Marcellus Shale Formation natural gas stakeholders while not feeding those groups fomenting dissent against those same companies.”

    http://www.alternet.org/corporate-accountability-and-workplace/corporations-and-law-enforcement-are-spying-environmentalists

    “Still, Rendell said he was not firing his homeland security director, James Powers, but he ordered an end to the $125,000 contract with the Philadelphia-based organization, the Institute of Terrorism Research and Response, that supplied the information.”

    http://mondoweiss.net/2010/09/israeli-intel-firm-behind-pennsylvanias-terror-bulletins-on-peace-environment-lgbt-groups.html

    How much do the private firms factor into this case of surveillence sharing? Firms like ITRR would be at least some of the “intelligence services” mentioned, right?

    And I can’t help but wonder next: How much longer will national lines even count when these transnational corporate networks become so much of the actual infrastructure of power?

  8. Lefty665 says:

    @scribe: “they could just get direct access to the feeds off the splitters by telling the computers to send them a copy”

    As I expect you know, there’s been suspicion from the beginning that the Narus equipment used to inspect splitter feeds, designed by Israelis, was capable of ‘phoning home’ (see Bamford – Shadow Factory).

    Wonder if the MOU just formalizes what they were already getting?

  9. klynn says:

    I thought this sharing started before 2009? I thought there was evidence to an agreement that predates this one? Was it not THAT point which ended the AIPAC case?

  10. Lefty665 says:

    @Bill Michtom: That’s one of NSA’s ‘problems’. They went from around half a dozen languages, Russian, Chinese, our major allies, in the cold war to well over a hundred, plus obscure dialects, these days. That takes a lot of people with language skills, many of which are not easy to acquire.

  11. WilliamAHamilton says:

    NSA began installing stolen copies of INSLAW’s PROMIS tracking software on computers in the banking sector in 1981, providing SIGINT (Signal Intelligence) on the wire transfers of both foreigners and Americans.

    President Obama yesterday again renewed the State of Emergency that President George W. Bush first declared on 9/11/2001, which, among other things, facilitates secret preparations under the Continuity of Government (COG) Program.

    There allegedly is or at least was a highly classified domestic spying database system, called Main Core, administered by the Federal Emergency Management Agency (FEMA) under the COG Program for hand-off to the U.S. Army and the Defense Intelligence Agency (DIA) in the event of a national catastrophe and martial law.

    This COG domestic spying database allegedly contains financial intelligence information on Americans.

    In light of the new evidence that NSA has not been rigorous about minimizing SIGINT intercepts on Americans, could the NSA have been storing its “Follow the Money” intercepts of Americans’ bank transactions in COG database that select users have been able to search remotely under some classified legal justification?

  12. Bill Michtom says:

    As to the headline, Information Sharing with Israel Raises Questions about Efficacy of NSA’s Minimization Procedures, I didn’t know there were ANY question left about the minimization procedures. We certainly know there aren’t any except when the NSA and the regime want to lie to the public about us having any privacy.

  13. Lefty665 says:

    @Bill Michtom: I agree that the sharing sucks. Just as it does with the Brits, Canadians, Aussies & NZs.

    Was just responding to your “translators” comment. NSA’s translator problem really did get acute with the end of the cold war.

    Sorry if I misunderstood you.

  14. emptywheel says:

    @GulfCoastPirate: Remember that Narus, which Boeing now owns, was originally an Israeli company.

    Tim Shorrock’s book Spies for Hire, has a fair amount on close ties to Israelis among these contractors.

  15. b4real says:

    “The only data that the US requires Israel destroy is that involving US government personnel.”

    Wait, what?

    Does anyone actually believe that either the NSA or the Israelis would actually delete this info? It has been my belief all along that NSA has been spying on “important” people. I know they wouldn’t be interested in my 47mins of monthly cell phone usage, but government personnel…I would wager large that Obama would have gotten his aumf for Syria passed.

    Remember Kucinich’s reversal on the ACA after taking a ride on Air Force 1? I wondered what kind of deal was made, but then he was re-districted out of office. No tin-foil hat large enough these days.

  16. What Constitution says:

    So if the NSA provides unminimized data to Israel, and NSA contractors set up facilities in Israel to “work”, and Israel feeds its non-minimized dataset to a contractor in Israel that does work for NSA, and that contractor mines the non-minimized dataset, does that mean that NSA could be obtaining non-minimized scrutiny of US citizens but without considering itself bound by US strictures? Pardon me for the paranoia, but just because you’re paranoid…. “Outsourcing?” Nah, that could never happen.

  17. geoschmidt says:

    I don’t know nothing, but seems like to me, that Isreal is a kind of outpost or some kind of proxy state that is really functioning as a part of American power, and although America is full of Jews and run by Jews, Isreal is really just sort of a put on type of deal, a “country” with all the benefits that acrue to that designation, but really just a post with Jews.

    They sure done a good job of making the Jews special… I mean with the Holocaust an all that, and Hitler’s “Mein Kamphf”book, where he went nuts writing about the Jews, like they were some kind of alien species!

    Hey most of the Jews, aren’t even of the Semitic race, and the ones who make the waves now are from the Eastern parts of Europe, not even Semites, but as Aschenazi’s are adoptive to Judaism, as distinct from the Sephardim, who really are kissin’ cousins to the Palistinians, (similar DNA… ).

  18. GKJames says:

    I suspect that this information-sharing agreement is not all that unusual. Details and scope may vary, but what’s clear is that the national security apparatus of each like-minded country (Australia, France, Germany, Italy, UK, US, maybe even Japan) has a much closer affinity with its counterparts across the globe than with the publics on whose behalf each claims to work. Each has co-opted its political elite (hence the near silence from these other countries when the NSA stuff came out) and figured out how to get itself immunized — de facto or de jure — against criminal liability. It keeps none of these countries, of course, from preaching to others about the beauties of democracy.

  19. Mindrayge says:

    If you look at the actual memorandum document there is a redacted Israeli Government signature and an unsigned place for the signature of the Director, National Security Agency.

    This is the kind of document that very few individuals in the entire NSA, let alone the rest of the government, would have known about or even seen.

    Something like this would probably be even harder to come by than any of the FISA Court documents. Like I have commented earlier it seems increasingly likely that Snowden has the contents of an e-mail server used by the very top of the food chain within NSA or he got a hold of Alexander’s personal stash of files.

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