Wrong Agency, Wrong Minimization: Two More Ways the Original Phone Dragnet Application Violated the Law
In addition to everything else several of us have been pointing out in the original Internet metadata opinion and the phone metadata application, there are two more problems with the phone dragnet.
They’re using the wrong agency and the wrong minimization procedures.
Section 215 reads, in part:
[T]he Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things [my emphasis]
Here’s who signed the application that kicked off the phone dragnet program:
This is probably the lesser of these two problems. After all, the law permits the FBI Director to delegate this, and delegating the application to your boss is probably perfectly fine. Though it is a bit of a conflict if the boss in question was, in part, trying to legalize a program that had operated under his purview when he worked at the White House.
The problem becomes bigger still given that there’s no explanation of how it is that an NSA declaration serves as backup for an application to obtain data for the NSA, the use of which is limited to FBI. At least in what we get (which, remember, is what got produced to Congress, not what got submitted to the Court), there’s no discussion of that process.
The other problem is a bit more complicated. As I described last week, the 2006 Reauthorization of the PATRIOT Act included a new requirement that the Attorney General develop minimization procedures for Section 215.
(1) IN GENERAL- Not later than 180 days after the date of the enactment of the USA PATRIOT Improvement and Reauthorization Act of 2005, the Attorney General shall adopt specific minimization procedures governing the retention and dissemination by the Federal Bureau of Investigation of any tangible things, or information therein, received by the Federal Bureau of Investigation in response to an order under this title.
(2) DEFINED- In this section, the term `minimization procedures’ means–
(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 101(e)(1), shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
This post describes how DOJ basically blew off that requirement and — at least according to former DOJ Inspector General Glenn Fine — instead used existing procedures that didn’t meet the terms of the law.
Given that this application passed just 2 months after the Reauthorization, this dragnet application was probably one of the earliest Section 215 applications submitted after the Reauthorization so there might have been a discussion about this new requirement anyway. But in this case, the new requirement should have posed an additional problem. The data went not to FBI, but immediately to NSA, an enormous database of non-publicly available of information pertaining to US persons, handed off without a hint of minimization first.
Here’s how the application dealt with minimization procedures.
NSA will apply the existing (Attorney General approved) guidelines in United States Signals Intelligence Directive 18 (1993) … to minimize the information reported concerning U.S. persons.
USSID 18 is supposed to be less restrictive than FBI minimization procedures (though FBI data gets shared freely with other agencies).
There’s not only no discussion in this application of how USSID 18 meets the terms of the law, but there’s no discussion of what it means that NSA basically got unminimized data for which FBI is, by law, the proper recipient, which should be the most voluminous minimization violation ever.
And yet … the application doesn’t even acknowledge this problem at all.
I would note some additional information about that the excerpt that contains the “purely domestic” phrase I quoted this morning from the “Production to Congress of a May 23, 2006 Government Memorandum of Law in support of its Application to the FISC for authorization to conduct bulk telephony metadata collection under Section501 of FISA” – http://www.dni.gov/files/documents/1118/CLEANED016.%20REDACTED%20BR%2006-05%20Exhibits%20C%20%28Memo%20of%20Law%29%20and%20D-Sealed.pdf (the correct page numbers are 8-9) as shown below:
““In addition, when they are located inside the United States, [redaction] [redaction] [redaction] (my guess is likely al Qaeda operatives) make domestic U.S. telephone calls. For purposes of preventing terrorist attacks against the United States, the most analytically significant [redaction] telephone communications are those that either have one end in the United States or that are purely domestic, because those communications are particularly likely to identify individuals who are associated with [redaction] in the United States whose activities may include planning attacks on the homeland.”
That statement is from a May 22, 2006 declaration of then NSA Director Keith Alexander as the following sentence in the document indicates. No one should be surprised that Snowden came to understand that the US government, and particularly the NSA where he last worked, was so far beyond not only the Constitution, but what the American public believe and want their government to be.
@Snoopdido: An additional thought that I throw out for consideration concerning the 2nd type of metadata analysis that is referenced as redacted in the previously linked document. On page 16 in the second paragraph is this sentence:
“For example, contact chaining and [redacted 8-10 characters][redacted 8-9 characters]of the archived information will allow the NSA to identify telephone numbers that have been in contact with telephone numbers the NSA reasonably suspects to be linked to [redacted 8-10 characters, likely al Qaeda] and its affiliates.”
As we’ve seen, this document describes 2 methods that the NSA wanted to use on its bulk collection of all US telephone call records. The first one the document describes (see page 10) is retrospective “contact chaining”.
We are all too familiar now with the NSA’s “contact chaining” out to multiple hops.
The second method the NSA wanted to use however has been redacted in both its name and description (see pages 11-12).
However, if one looks at that sentence in the actual document I quoted from page 16 at the start of this comment, it might be that the hidden redacted second method that the NSA wanted to use was “pattern analysis”.
If that were the case, that sentence would now look like this:
“For example, contact chaining and pattern analysis of the archived information will allow the NSA to identify telephone numbers that have been in contact with telephone numbers the NSA reasonably suspects to be linked to [redacted 8-10 characters, likely al Qaeda] and its affiliates.”
Just a guess, so feel free to debunk.
@Snoopdido: Notwithstanding emptywheel’s mindboggling observations/analysis/conclusions, your contributions are appreciated. Keep it up.
ps…While all these revelations serve to inform us to the enormous shift in our governance powers, it behooves me to help keep people abreast of the face of the domestic battlefront to which this blog is only part of. While rule of law debate and spearhead intellectual dissections of daily revelations to which we are being subjugated are important, another reality is raising it’s ugly tyrannical head in real time in response to the “War on Terror”. For those who don’t understand the real nature of why the Founders gave you the 2nd Amendment, I suggest you read this and let it sink in. This is no longer about words and law. The debate is moot once you have a gun to your head.
@bloodypitchfork: Thanks! I’ll do just that.
I’ll describe what I think “pattern analysis” is in perhaps an overly simplistic way, but I claim no particular expertise in the subject, so the real experts shouldn’t hesitate to correct my thinking.
The NSA is given a phone number that is being used by a suspected adversary in Miranshah, Pakistan. The NSA performs retrospective “contact chaining” on that phone number and finds that it once had been in contact with a phone number in Joliet, Illinois. Just once however, and then nothing again over the course of years worth of bulk collection telephone records.
Some NSA analyst decides to do some “pattern analysis” on the premise that if the parties involved in the one and only Miranshah/Joliet contact are using “burn phones”, perhaps a pattern analysis of the NSA bulk collection telephone records database would show other phone numbers of a Miranshah/Joliet contact.
The output from the NSA analyst’s pattern analysis comes up with additional Miranshah/Joliet contacts, but with entirely different phone numbers.
The NSA analyst might then infer some level of probability that a pattern has been detected and then furnish that new set of numbers to the FBI for a domestic investigation and to the CIA for a foreign investigation.
As I understand them, minimization procedures require authorities to discard all nonrelevant information captured during an investigation. Once the FISA Court decided that all phone records were relevant to ongoing and future investigations, didn’t that decision not only authorize the metadata program but also effectively eliminate the minimization requirements?
okay, so reading this earlier EW post, link below, the name James Comey came to mind- was he one of the “among others”? 4 This briefing was attended by (among others)
Given that Comey is now FBI director, he seems to be totally under the radar.
Apropos of our earlier exchange EW I am willing to bet that they not only sexed up the threat of Al Quaeda for judge CKK but fed her a notion of imminence. For a period of time everyone in Washington seemed to be convinced that another 9/11 would happen tomorrow or if not then the next day. Looking at how haphazard and rushed this whole process was, some of it deliberate I’m sure, I suspect the judge was one of those people and signed off on a bill of crap based upon lies about imminence, aggression, and yes, limits.
“For those who don’t understand the real nature of why the Founders gave you the 2nd Amendment, I suggest you read this and let it sink in.”
As I understand it the Founders did not give you the Second Amendment. Or any of the Bill of Rights. Which is why a majority of the Supreme Court and most of the Judiciary are members of the Federalist Society and fans of the Constitution before the Bill of Rights made it a little harder for authoritarians.
Part of the deal that secured ratification of the Constitution by the states was that the first Congress would take up a set of amendments protective of individual rights (thus, the Bill of Rights). That’s how the Federalists overcame Anti-Federalist objections in the states. James Madison managed the amendment process in the House. It was most certainly the Founders who created the Bill of Rights.
@Anonsters: It was also a personal promise from John Adams to Thomas Jefferson who as the author of the Virginia State Statute on Religious Freedom (a fact he wanted engraved on his tombstone) felt that the document was an insufficient guarantor of basic rights even with the test clause.
@bevin: The Federalist society takes a different tack to things. They don’t question the bill of rights per-se but they are fans of Scalia’s “originalist” take on it. In his view the document must mean what it meant to “reasonable people” in 1787. New powers like regulation of pollution (which draws on the commerce clause) or pen-register limits (a reading of the 4th) are not included now because they were not then.
Scalia does, however, make some interesting conclusions from this. He opposed warrantless use of tracking devices for example on the grounds that attaching something like that to a person in 1787 would have been an invasive search by the standards of the day.
As for the second amendment that one is a bit open. Keep in mind that in 1787 there was no national army.
quote:”As I understand it the Founders did not give you the Second Amendment. Or any of the Bill of Rights. “unquote
I stand corrected. ummm..let me put it this way then. When you were born you came into the universe with the right to protect yourself regardless of who put it into words. Is that better?