Did OLC Rule Americans Have Voluntarily Allowed NSA to Collect Their Communications Domestically?

Some weeks ago, I waded into a discussion between Charlie Savage and Ben Wittes to suggest that a still-secret OLC opinion Ron Wyden mentioned back in January might serve as the basis for collecting US person communications at the phone switches.

In his letter to John Brennan in January asking for a slew of things, Ron Wyden mentioned two opinions that may be the still-secret legal analysis mentioned by Savage.

Third, over two years ago, Senator Feingold and I wrote to the Attorney General regarding two classified opinions from the Justice Department’s Office of Legal Counsel, including an opinion that interprets common commercial service agreements. We asked the Attorney General to declassify both of these opinions, and to revoke the opinion pertaining to commercial service agreements. Last summer, I repeated the request, and noted that the opinion regarding commercial service agreements has direct relevance to ongoing congressional debates regarding cybersecurity legislation. The Justice Department still has not responded to these letters.

The opinions would have to pre-date January 14, 2011, because Feingold and Wyden requested the opinions before that date.

The reason I think the service agreements one may be relevant is because the opinions Ben cites focus on whether government users have given consent for EINSTEIN surveillance; in his article on it Bradbury focuses on whether the government could accomplish something similar with critical infrastructure networks.

I suspect this opinion — whatever question it addresses — makes the case that Americans have given NSA voluntary permission to collect US person communications from certain (I’m not sure which ones) switches.

Whatever it says, though, Ron Wyden just asked for the opinion again.

Over the last few years I have written multiple letters to Attorney General Holder regarding a particular opinion from the Justice Department’s Office of Legal Counsel that interprets common commercial service agreements. I have said that I believe that this opinion is inconsistent with the public’s understanding of the law, and that it needs to be both withdrawn and declassified. Despite multiple follow-ups from my staff I still have not received a response to any of these letters. Can you tell me when I can expect a response?

The biggest reason public understanding of the law would matter, after all, is if OLC were interpreting it to reflect voluntary consent for collection of data that the public didn’t realize they had given. And we know NSA wants to — if it is not already — scan communications for malicious code in the name of cybersecurity on critical infrastructure networks the same way it is doing on government networks.

Remember, this is one of 4 questions Wyden would have asked had DiFi allowed an elected Senator to ask questions rather than an NSA apologist to appear. Wyden had apparently alerted Keith Alexander to what those questions were.

Heck, this is even a question aplogist Ben Wittes has expressed an interest in. For once it is his questions, in addition to members of Congress, that are not getting answered.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

12 replies
  1. Snoopdido says:

    Aplogist? I think your spellchecker needs a reboot.

    In reading Wyden’s QFR from today’s hearing, I think he makes a mistake in continually limiting his questions to “Did the NSA do this or that?”

    Based on the Snowden material, it seems quite clear that OGA – other government agencies including the CIA, the FBI, and perhaps others are very active participants in rifling through the data that the NSA collects.

    When Wyden limits his questions just to NSA or NSA analysts, he shouldn’t be surprised when gets the least untruthful answer back.

  2. P J Evans says:

    If that’s what they think, then they can expect pitchforks and torches at their gates. My understanding is that they weren’t supposed to be collecting that information in the first place, and if they’d bothered to ask, my answer would be ‘hell, no’.

  3. C says:

    @Snoopdido: I suggest reading Justin Amash’s story about the hidden briefing as quoted here in The Atlantic:

    http://www.theatlantic.com/politics/archive/2013/09/the-hidden-top-secret-briefing-most-of-congress-missed/279857/

    In it he describes a friend framing and re-framing an “Are you dong X?” question until finally getting the right words that causes them to admit that yes “they” are doing X. Or in the words of the story “Yeah you caught us.” It seems that steady refinements of this type are the only thing that works.

    Also so far it seems that what the NSA does is the relevant thing because they are the ones collecting the data. Everyone else is just abusing what the NSA gives them so collecting the data is what matters. In my opinion he is right to go to the source.

  4. thatvisionthing says:

    Commercial service agreements? Wait, does this have anything to do with the issue I raised earlier ( http://www.emptywheel.net/2013/09/25/1186-into-ig-report-covering-dragnet-leahy-calls-for-another/#comment-632527 ) about Yahoo’s new policy where e-mail account holders must click a button that says they agree to have their e-mail scanned, and if they don’t agree and don’t click, Yahoo won’t let them access their e-mail anymore? It doesn’t even seem legal. Or “voluntary.”

    Here’s more Franken from last year’s ABA speech, pre-Snowden, pre-Yahoo:

    But here’s where privacy becomes an antitrust issue.

    If you don’t want your search results shared with other Google sites – if you don’t want some kind of super-profile being created for you based on everything you search, every site you surf, and every video you watch on YouTube – you will have to find a search engine that’s comparable to Google. Not easy.

    If you want a free email service that doesn’t use your words to target ads to you, you’ll have to figure out how to port years and years of Gmail messages somewhere else, which is about as easy as developing your own free email service.

    When a company is able to establish a dominant market position, consumers lose meaningful choices. You might not like that Facebook shares your political opinions with Politico, but are you really going to delete all the photos, all the posts, all the connections – the presence you’ve spent years establishing on the world’s dominant social network?

    The more dominant these companies become over the sectors in which they operate, the less incentive they have to respect your privacy.

    Al?

  5. emptywheel says:

    @thatvisionthing: That MAY be just CYA for what the government is already doing. I’m not sure, but I imagine any cyber scanning is going on in other places–either at the backbone more generally, or in places like energy companies and financial companies and the like–places that are targets for cyberattacks but aren’t sufficiently protected.

  6. emptywheel says:

    Actually , now that I wrote that out my best guess is they’re scanning right where the toobz enter these locations.

  7. greengiant says:

    Maybe Ben can comment on why “opinions Ben cites focus on whether government users have given consent”. Or maybe Ben can’t comment on that for some reason.

  8. thatvisionthing says:

    @emptywheel: Actually, looking at the screenshot again, it says “scan and analyze.” Ick! And the article says it started June 3 if you’ve got a timeline in mind: http://techcrunch.com/2013/06/02/yahoo-shuts-down-mail-classic/

    Meanwhile, I’m looking at my junk snail mail:

    WARNING: $2,000 FINE, 5 YEARS OF IMPRISONMENT, OR BOTH FOR ANY PERSON INTERFERING OR OBSTRUCTING WITH DELIVERY OF THIS LETTER U.S. MAIL, 18 SEC. 1702 U.S. CODE

    (Al?)

    Can we have a public option for e-mail please? USPS could host it.

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