Upstream US Person Collection: EO 12333 and/or FISA?

Screen shot 2013-10-04 at 2.42.00 AMKeith Alexander had a really bizarre response to a question from Mazie Hirono in Tuesday’s hearing.

SEN. HIRONO: I have one more question, Mr. Chairman. General Alexander, is PRISM the only intelligence program NSA runs under FISA Section 702?

GEN. ALEXANDER: Well, PRISM was (the statement ?), but, yes. Essentially, the only program was that — that, you know, is PRISM under 702, which under — operates under that authority for the court. But we also have programs under 703, 704 and 705.

Perhaps he was confused by her question (which came in the context of questions about the NYT’s report on the construction of dossiers, potentially on Americans). But he seems to have claimed that PRISM — the collection of Internet content from Internet providers under Section 702 — is the only way the NSA uses FISA Amendments Act to collect content.

Not only does the PRISM slide above belie that (and there’s also phone content that is not covered under PRISM).

But the government itself released the October 3, 2011 John Bates FISC opinion (and other related documents) which describes the government’s collection of Internet transactions directly from the phone company switches (see footnote 24 where Bates distinguishes between the two kinds of Section 702 Internet collection). In an attempt to spin this collection as a big mistake last week, Dianne Feinstein even confirmed that this “upstream” collection comes from the backbone operated by the phone companies.

In mid 2011, NSA notified the DOJ, the DNI, and the FISA court, and House and Senate Intelligence Committees, of a series of compliance incidents impacting a subset of NSA collection under Section 702 of FISA, known as upstream collection.

This comprises about 10 percent of all collection that takes place under 702, and occurs when NSA obtains Internet communications, such as e-mails, from certain U.S. companies that operate the Internet background;[sic] i.e., the companies that own and operate the domestic telecommunication lines over which Internet traffic flows.

So there’s PRISM, there’s phone content collection, and there’s the upstream Internet collection from the phone companies’ switches. All operated, per the 2011 Bates memo, under Section 702 (and therefore overseen by the FISA Court and Congress).

Which is why I’ve been pondering this chart and related explanation, from NSA’s internal review of compliance incidents for the first quarter of 2012.

Screen shot 2013-10-04 at 2.18.15 AM

The chart shows all the violation incidents NSA discovered under programs authorized under Executive Order 12333 — the EO that covers entirely foreign collection, over which FISC and Congress exercise much less oversight than FISA. And what NSA calls “Transit Program” violations appear in the EO 12333, not the FISA, chart. In the first quarter of 2012 (the first quarter after the government started to resolve the 702 upstream collection problems laid out in the Bates memo), Transit Program violations went up from 7 in a quarter to 27.

NSA describes Transit Program violations this way.

(TS//SI//REL TO USA, FVEY) International Transit Switch Collection*: International Transit switches, FAIRVIEW (US-990), STORMBREW (US-983), ORANGEBLOSSOM (US-3251), and SILVERZEPHYR (US-3273), are Special Source Operations (SSO) programs authorized to collect cable transit traffic passing through U.S. gateways with both ends of the communication being foreign. When collection occurs with one or both communicants inside the U.S., this constitutes inadvertent collection. From 4QCY11 to 1QCY12, there was an increase of transit program incidents submitted from 7 to 27, due to the change in our methodology for reporting and counting of these types of incidents,

That is, these “Transit Program” violations reflect the collection of US person data in upstream collection, the very same problem described in the Bates opinion.

As I’ve been puzzling through why Transit Program violations would appear under EO 12333 rather than FISA, I wondered whether NSA collects off switches under both authorities — some content that the telecoms provide after doing an initial screening (as described in this WSJ article and backhandedly confirmed by the DNI), and some programs that the NSA collects and sorts off undersea cables itself. Both FAIRVIEW and STORMBREW show up — seemingly as Section 702 collection — on the PRISM slide above, but ORANGEBLOSSOM and SILVERZEPHYR don’t (WSJ also lists OAKSTAR and LITHIUM).

If so, though, you’d expect NSA to be finding violations under both authorities, because we know the government collects US person data under the 702 authorized upstream collection (they call this unintentional but Bates deemed it intentional).

This is all the more confusing given the way former Assistant Attorney General David Kris discusses “vacuum cleaner” collection taking place under EO 12333. His paper is on metadata collection, not content, but the vacuum cleaner (that is, dragnet) collection collects content as well (and the distinction may get distorted in discussions of Internet packets).

I don’t, yet, know the answer to this question, but the question itself raises several others:

  • Given that there’s not a 702-authorized Transit Program violation category, does that mean NSA wasn’t and may still not be tracking it? That doesn’t make sense, because there are greater mandates to track these things under 702.
  • If there wasn’t a 702-authorized Transit Program violation category before the revelations to John Bates, is it possible NSA instead treated upstream collection as authorized by 12333 so as not to have to report these violations?
  • Are these known violations being reported now? Are they getting reported to Congress and the Court? Or has the NSA simply decided they’re not violations since Bates has okayed them, sort of, as intentional collection?
  • If some of the upstream collection yielding US person content operates under 12333, does it have to be treated under any minimization rules?
  • What do the 7 and 27 violation numbers reflect in relation to the figures of 10,000 SCT and 46,000 MCT estimates involving US persons provided to Bates?
  • Did these violations ever get reported to Congress and the FISC?

In short, either all this upstream collection falls under 702, in which case there’s a big question why NSA tracks it as 12333 collection. Or the NSA’s ability to operate upstream collection under both authorities raises real questions about the protections it accords US person data collected under the 12333 collection.

Update: Two more things on this.

First, remember back in 2001, John Yoo pixie dusted EO 12333, basically holding the President could change the content of it without changing the language of it publicly. That was done, according to Sheldon Whitehouse, to permit the government to “wiretap Americans traveling abroad.” But I suspect it was done to permit the government to “wiretap Americans’ communications traveling abroad” — that is, American Internet traffic that transits foreign switches.

That said, I suspect the 2010 OLC memo on using 2511(2)(f) for collection was meant to clean up some of that (and also Yoo’s reliance on claiming the Fourth Amendment didn’t apply in DOD searches of entire apartment buildings if they were searching for terrorists).

Also, remember that the language of the 2008 Yahoo opinion makes it clear that the Protect America Act — Section 702’s predecessor — relied on 12333 for particularity. While we should soon learn more (FISC is releasing much more of this opinion and underlying documents), it seems that PAA was treated as a nested program within 12333.

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.

10 replies
  1. orionATL says:

    one of the great benefits to the public (and i’d sat congresscattle, too, if i thought most gave a rat’s ass) is a very detailed picture of american government officials’ techniques of lying to the public.

    i’d say these techniques don’t just apply to the nsa in the here and now.

    i’d say these techniques have been used for decades wherever officials want to hide some program or activity from the the press, congress, and the citizenry.

    furthermore, i’d guess the techniques, especially, lying with word games, have been used for domestic political matters as well as national security matters, as much for court decisions, budget decisions, personnel decisions, program creation or deletion decisions, as for national security matters.

    so the slow, grudging release of documents and the persistent congressional testimony in hearings are, with the assistance of analysts like ew, sketching out and filling in a landscape of official deception, a roadmap of the public lying by elected and appointed officials that is the sine qua non of modern american governing –

    “the shutdown isn’t about obamacare”, claims a teaparty congressman several days after the shit has hit the fan, “it’s about caring about military veterans and retirees.”

  2. thatvisionthing says:

    My mind’s on Joseph Nacchio, Qwest CEO. (I just left a comment about him on your Carmen Ortiz post that disappeared, or never made it past moderation, though I can’t think why.)

    Nacchio was approached in February 2001 by the NSA to allow their warrantless wiretapping, and he said no, that’s illegal. They retaliated. Does that fit in your context here?

    Following my trail back, there was Cenk Uygur’s recent report on The Young Turks, which referenced Andrea Peterson’s report at WaPo, which referenced Scott Horton’s 2007 post at Harper’s. Thick head I, I was trying to think why would the NSA to want to start doing boundless illegal warrantless wiretapping in February 2001, long before “because terror”? Horton got it: It’s when George W. Bush took office. But still, why?

    http://www.correntewire.com/the_young_turks_ceo_who_resisted_nsa_spying_out_of_prison_vindicated_by_snowden

    http://www.washingtonpost.com/blogs/the-switch/wp/2013/09/30/a-ceo-who-resisted-nsa-spying-is-out-of-prison-and-he-feels-vindicated-by-snowden-leaks/

    http://harpers.org/blog/2007/10/qwest-another-political-prosecution/

    The DOJ and the court just suck in these stories, btw (no discernible diff). The DOJ trumped up charges against Nacchio and the judge let them hide the evidence from the jury (“it’s classified”). So Nacchio spent four years in prison. Now he feels vindicated by Edward Snowden’s sunshine. Horton in 2007 was going back through what was known then and said “felony, felony, felony,” and not against Nacchio.

  3. bmaz says:

    @thatvisionthing: Yeah, my mind is on all the employees and shareholders of Qwest that were ripped off and plundered, and for the cooked books that were trying to be covered as a result of Nacchio’s tenure at the head of Qwest. You might want to ponder whether Nacchio and/or Qwest wasn’t plenty willing to work with the government at one point, but was just trying to beat the government out of more money and larger contracts so the problems with the looting and on the company’s books could be covered. However you want to call it, my opinion is that Nacchio is a self serving sack and can rot. He is no hero, and the story that has been crafted is mostly bullshit except for the retribution that Cheney et. al took on him for not falling in line.

  4. thatvisionthing says:

    @bmaz: For this I hit refresh.

    Ok, let’s you and Scott Horton fight. “Felony, felony, felony,” discuss.

    I especially would like to hear your opinion on holding trials with crucial evidence withheld from the jury. I think I remember from Mary’s 3-part series on Unconstitutional Surveillance that the deal, at least at one point, was if the DOJ couldn’t share the classified (and/or illegally gathered?) evidence, they had to drop the case. Presumption of innocence, benefit of the doubt, fairness. Maybe pre John Mitchell. What am I thinking of, and how did that disappear, or why didn’t that matter here? YTL.

    http://emptywheel.firedoglake.com/2010/10/21/unconstitutional-surveillance-united-states-v-united-states-district-court-who-the-winner-is-may-be-a-secret-%E2%80%93-part-3/

  5. bmaz says:

    @thatvisionthing: Actually, there is even a formal process for that in criminal cases (there is not such a process for civil trials) under the Classified Information Procedures Act – CIPA. That was not the problem, the problem was the trial judge ruled all that inadmissible on relevance grounds. And, once the charges made it past Nacchio’s pre-trial motions, I don’t think that was a wrong ruling in the least. He was being tried for the fraud. And he was guilty of it all the way.

    Also, I freed up your other comment. Not sure why it got caught in the filter, maybe links? Sorry about that, but it is posted now.

  6. orionATL says:

    @bmaz:

    bmaz writes :

    “..except for the retribution that Cheney et. al took on him for not falling in…”.

    how very sly and lawyerly, bmaz.

    isn’t that precisely the point of contention?

    snowden is a designated criminal.

    nacchio is a designated criminal.

    jamie demon is an undesignated criminal.

    james clapper is an undesignated criminal.

    jose rodriguez is an undedignated criminal.

    the question, bmaz, is not who crimed, but who got indicted,

    and what were the motives of the indicting agency.

    the prosecutor, as you are certainly aware, has disgression.

    the comparison group is the ceo’s of corporations that co-operated.

    take bill gates, whom judge jackson certainly must have believed perjured himself.

  7. thatvisionthing says:

    @bmaz: Thanks for releasing my comment. Thanks for replying to my question. As for this:

    That was not the problem, the problem was the trial judge ruled all that inadmissible on relevance grounds.

    How could it not be relevant? It’s his defense! Story, timeline, evidence. And isn’t that a judgment for the jury to make, not the judge? I’m sick of the unjust trials, and that’s one huge problem point, the judge keeping evidence and argument away from the jury. So much for defense, so much for juries.

    And, once the charges made it past Nacchio’s pre-trial motions, I don’t think that was a wrong ruling in the least. He was being tried for the fraud. And he was guilty of it all the way.

    Prove it. Or maybe just give us your counternarrative that we can weigh against Horton’s and Uygur’s. If Nacchio was guilty as you say, presuming you have proof, evidence, argument, releasing his evidence would not have exonerated him, and it would have helped… the world. Democracy. The Constitution. He was approached by the NSA for illegal warrantless wiretapping in February 2001, and that was hidden not just from the jury but from everyone, for years. We’ve had to assume “because terror” for everything, but that date changes everything. I’m at a loss to understand what exactly you’re standing up for against that.

    Also, when did you form your opinion? It sounds like Horton leaned your way until evidence was unsealed in 2007. He said so:

    http://harpers.org/blog/2007/10/qwest-another-political-prosecution/

    Last year, a Colorado lawyer told me that I should look at the insider trading litigation surrounding Qwest CEO Joseph P. Nacchio—there was strong evidence in that case of tawdry politics on the prosecution side. Of course, I knew that Nacchio was the only major telecom executive who refused to play ball with the administration on warrantless surveillance. But I did take a look at the case, and I didn’t see the evidence that was suggested.

    But as of this morning, I have to admit that I misjudged the situation. It seems that the evidence was lacking because the trial judge suppressed it, not because it didn’t exist. There was a major account in yesterday’s Washington Post, and this morning in the New York Times. These accounts all stack up. Here’s Scott Shane’s summary for the Times:

  8. bmaz says:

    @thatvisionthing: Nacchio claimed it was his defense, but, frankly, I don’t really have a problem with the ruling at all. I don’t see it as relevant to the insider trading charges at all. Frankly, Nacchio should have been charged with a lot more crimes for what he did at Qwest. He is not a good man, and his story is a pile of shit.

  9. thatvisionthing says:

    @bmaz: You got nothing? And considering all the other crimes that went and continue to go unprosecuted, and the retaliatory nature of noncrimes prosecuted to the hilt — the whole world of insitutionalized crime that is America and the corrupt DOJ now, you still focus on your own certainty that Nacchio was guilty of somethings and so you say and so everything else pales, including whether he should have been able to make his case to the jury? Tunnel vision is an interesting talent and necessary for microscopes and telescopes; I guess what I’m objecting to at this point is that your pronouncement should blot out every other perspective and experience and question, really, everything.

    Here in the bleachers, I’m calling it for Horton.

  10. thatvisionthing says:

    In summary, then:

    Scott Horton:

    We are seeing the Government engaging in a sweeping pattern of criminal dealings, and ultimately, one of the biggest crimes of all, abusing the criminal justice process to strike out at an individual who refused to play their crooked game.

    Cenk Uygur:

    If you go along with the government, you keep getting those fat contracts and you make millions of dollars. You don’t go along with the government, well, they come to get you and they don’t even allow you to present your defense when you’re at trial.

    What happened to American justice? Remember we used to say it’s the best justice system in the world? Does this look like the best to you?

    bmaz:

    [F]rankly, I don’t really have a problem with the ruling at all. I don’t see it as relevant to the insider trading charges at all. Frankly, Nacchio should have been charged with a lot more crimes for what he did at Qwest. He is not a good man, and his story is a pile of shit.

    We might discuss. (No, we won’t.)

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