Raj De and the Back-Door Loophole

As I already noted, NSA General Counsel lied in today’s PCLOB hearing when he said the use of Section 215 to conduct a phone dragnet had the indicia of legitimacy because Congress twice reauthorized the PATRIOT after the executive had given it full information.

We know that the 2010 freshman class — with the exception of the 7 members who served on the Judiciary or Intelligence Committees — did not have opportunity to learn the most important details about the phone dragnet before reauthorizing PATRIOT in 2011. And it appears DOJ withheld from the Judiciary and Intelligence the original phone dragnet opinion — and they clearly withheld significant FISC materials on it — until August 2010, after PATRIOT had been reauthorized the first time. I trust Ben Wittes, who wants to prevent Jim Sensenbrenner from commenting on NSA’s secrecy because he’s dishonest about his own role, applies a similar standard to Raj De.

But I was even more interested in the way De answered Center for Democracy and Technology’s Jim Dempsey’s question about the back-door loophole in which NSA searches on incidentally collected US person data (starting at 2:09:00).  Dempsey asked whether NSA needed something like the Reasonably Articulable Suspicion before it searched incidental US person data. De treated the question as nonsensical, given that when you collect on a particular phone number in the criminal context you don’t need to ignore what you find.

In other words, the NSA has a lower standard for access this content than they do for accessing the metadata of our phone calls.

Curiously, though, De tried to tout the minimization of both 702 and EO 12333 collection to present this as reasonable.

By minimization, Dempsey asked, you mean you keep it.

De insisted that no, there’s minimization at each step of the process.

I get how he was trying to use this blatant dodge. I get that the NSA assumes they can take everything so long as they’re careful about how they sent it around.

But make no mistake. NSA searches on the data before it gets minimized.

Here’s how this year’s Semiannual Compliance Review, submitted by the Attorney General and Director of National Intelligence, describes this practice.

NSA’s querying of unminimized Section 702-acquired communications using United States person identifiers (page 7)

Here’s how John Bates referred to the practice, based on a submission the NSA had made itself (though before De was writing the documents), in his October 3, 2011 opinion.

The government has broadened Section 3(b)(5) to allow NSA to query the vast majority of its Section 702 collection using United States-Person identifiers, subject to approval pursuant to internal NSA procedures and oversight by the Department of Justice. Like all other NSA queries of the Section 702 collection, queries using United States-person identifiers would be limited to those reasonably likely to yield foreign intelligence information. (page 22-23)

Bates justifies this practice by pointing to another agency’s (almost certainly FBI) use of the practice, which he describes as,

an analogous provision allowing queries of unminimized FISA-acquired information using identifiers — including United States-person identifiers — when such queries are designed to yield foreign intelligence information.

The NSA has restrictions about circumstances in which they can share this data (which arguably will be expanded under Dianne Feinstein’s FakeFISAFix). But they allow the NSA to share this data if it is “foreign intelligence,” evidence of a crime, and evidence of a threat to life-which-to-NSA-means-property.

They can sweep up entire countries worth of Internet traffic. They can sweep up entire mailboxes overseas. And then go in, without a warrant, and “discover” evidence of crime.

Tweet about this on Twitter4Share on Reddit0Share on Facebook1Google+0Email to someone

8 Responses to Raj De and the Back-Door Loophole

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8

Emptywheel Twitterverse
bmaz @isamuel @copiesofcopies @OrinKerr Sure, but to be clear, Orin has an intelligent+reasoned position. May not be mine, but it is not invalid.
7mreplyretweetfavorite
emptywheel @ZaidJilani Have heard that from African friends: beatings learned from Britons. @Luvnbeer
17mreplyretweetfavorite
emptywheel @brettmaxkaufman It's their nice way of saying, "Damnit, we had hoped we could go v Klayman alone in the one favorable judgment" @aclu @eff
18mreplyretweetfavorite
emptywheel @mattapuzzo What about the covert forces on the ground? They're just killing everyone? @robertcaruso
25mreplyretweetfavorite
emptywheel @tbogg Not sure how much of this story would have come out if Goodell weren't lying his ass off so consistently. Scapegoated Rice.
47mreplyretweetfavorite
emptywheel @eljefekenney Or someone trying to protect him, yes. It's possible it's true, even.
52mreplyretweetfavorite
emptywheel @eljefekenney Dunno. Don't believe the parts abt Harbaugh, if that's your question. He CLEARLY knew more during his presser.
55mreplyretweetfavorite
emptywheel "Perhaps most visibly, Rice was the longtime spokesman for M&T Bank, one of the team's main sponsors " http://t.co/ZCOWvYAHl4
55mreplyretweetfavorite
emptywheel Glad @DVNJr's piece didn't drop till after Goodell's presser--more likely he'll go. But sort of wish it disproved the Mueller whitewash
58mreplyretweetfavorite
emptywheel @BrianF1959 Maybe. But trust me .Your depiction of what happened with public perception is utterly wrong.
1hreplyretweetfavorite
emptywheel @BrianF1959 To WHAT? To the public learning that Clapper lied? In what world?
1hreplyretweetfavorite
emptywheel @BrianF1959 About 5 people noted in real time it was a lie. Snowden exposed it as such to the public.
1hreplyretweetfavorite
November 2013
S M T W T F S
« Oct   Dec »
 12
3456789
10111213141516
17181920212223
24252627282930