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
emptywheel Anyone thing Preet's just making noise about Cuomo to provide cover? He has protected the OTHER corrupt Dems.
1mreplyretweetfavorite
emptywheel RT @NSA_PR: Reminder: If it's connected to the U.S. via the internet, it's considered U.S. soil. Unless we want to spy on it, then it's for…
4mreplyretweetfavorite
emptywheel @JPughMI My threats about chasing Land out for Rogers go double for chasing Snyder out for Rogers, you know.
5mreplyretweetfavorite
JimWhiteGNV RT @SportsNation: BREAKING: After trading every pitcher they have, Bullpen Cop will be forced to start for @RedSox tonight http://t.co/syIz
10mreplyretweetfavorite
emptywheel Remember how when @codepink flew a drone outside DiFi's house she realized domestic drones are privacy issue. Why doesn't that work here?
21mreplyretweetfavorite
emptywheel @KenDilanianAP Isn't that kind of meta though? @APDiploWriter posing questions abt the questions State thought he might ask? @marieharf
25mreplyretweetfavorite
JimWhiteGNV The only way I would ever forgive the #Rays for trading @DAVIDprice14 would be if he went to #Mariners for Mike Zunino.
25mreplyretweetfavorite
emptywheel RT @KenDilanianAP: @APDiploWriter tried valiantly to get @marieharf to answer q about UNCLASSIFIED State Department talking points on the C…
26mreplyretweetfavorite
emptywheel RT @igorbobic: CSPAN notes Congress isn’t allowing them to show the floor of the House right now. Just showing Capitol dome.
29mreplyretweetfavorite
emptywheel RT @marisaataylor: DHS IG releases assessment of #BorderChildren detention http://t.co/NKmT8nlQJQ DHS "largely in compliance" but prob w t…
31mreplyretweetfavorite
emptywheel Remember when the IC said they can't target Americans in the US?
44mreplyretweetfavorite
emptywheel RT @proflafferty: Judge Preska rules in favor of DOJ: USA has jurisdiction over all servers on Earth that connect to USA http://t.co/kQeUop
45mreplyretweetfavorite
November 2013
S M T W T F S
« Oct   Dec »
 12
3456789
10111213141516
17181920212223
24252627282930