DOJ’s IG Hints at Concerns about Back Door Search Issues

In addition to focusing on whether the classification of past IG Reports will limit what he can release about the Section 215 dragnet and Section 702 content collection, DOJ Inspector General Michael Horowitz laid out one more significant civil liberties concern related to national security investigations.

Additional concerns about civil rights and liberties are likely to arise in the future. For example, significant public attention has been paid to programs authorizing the acquisition of national security information, but relatively less has been paid to the storing, handling, and use of that information. Yet after information has been lawfully collected for one investigation, crucial questions arise about whether and how that information may be stored, shared, and used in support of subsequent investigations. Similar questions arise about the impact on civil rights and liberties of conducting electronic searches of national security information and about whether and how information obtained in a national security context can be used for criminal law enforcement. As the Department continues to acquire, store, and use national security information, these issues will arise more and more frequently, and the Department must ensure that civil rights and liberties are not transgressed.

I don’t guarantee this is a reference to back door searches.

But we know that FBI has been permitted to conduct searches on content collected under traditional FISA or FISA Amendments Act since at least 2008. We know that the Intelligence Community does not believe it needs even Reasonable Articulable Suspicion — of a national security concern or of a crime — to search this data. And in the past, DOJ has argued it can use FISA-collected information to find things like evidence of rape to use to coerce people to turn informant.

So I’m going to wildarseguess that at least part of what Horowitz alludes to here pertains to whether DOJ can search this incidentally collected information in support of criminal investigations. That would of course violate the spirit of every wiretap law in the country, but given the government’s past interpretations of what the elimination of the wall between NSA and FBI means and their claims they don’t need RAS to search these databases, it is a real possibility that’s what they doing (though they may be claiming that the crimes in question are “related” to the national security claims — things like money laundering and drug sales and so forth).

I’m also interested in Horowitz’ allusion to “national security information.” Does this go beyond content? Is he worried about the use of bulk-collected data in criminal investigations?

OK, now he’s got me worried.

But note what he doesn’t say: that he’s investigating this.

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.

4 replies
  1. Snoopdido says:

    Whether it is a reference to back-door searches or not, the fact that the DOJ’s IG raises a concern publicly about “how information obtained in a national security context can be used for criminal law enforcement” sounds like someone raising a big red flag.

    Good catch Emptywheel!

  2. bloodypitchfork says:

    quote:”OK, now he’s got me worried.”unquote

    Why? Like the NSA apologist’s say..if you’ve done nothing wrong…. :)

  3. Dissent Now says:

    The tell is in your final sentence, and so it shall remain.

    The answer is that, of course, they are doing exactly that which you cite as a possibility, for why wouldn’t they? What, truly, would constrain them? The rule of law?, fear of prosecution? Hahahaha.

    Just as anyone who has been paying attention to the past ten years could not possibly be genuinely surprised at a single Snowden based revelation, one should not be surprised when and if this is finally revealed to be the case. After all, initially intended or not, it is the result of the surveillance state: to assemble comprehensive, searchable databases on everyone and then to be able to access those databases at whichever point it behooves the state to so do.

    At this point in time, and I mean no disrespect at all, it’s my belief that respected writers like yourself choose the word “possibility” over “probability,” only so that they are “taken seriously,” for I can’t imagine informed people – given everything that has gone on, from torture to rendition, to locking people up forever without trial, to Wall St, to the present Snowden stories, all without any substantive prosecutions or changes (note your final sentence) – can possibly believe otherwise.

    That much said, given that the FBI has to continue to create their own terrorists, I will concede that maybe I am wrong.

  4. What Constitution? says:

    @Dissent Now: you must be a real downer at the movies huh — no ability to suspend you disbelief long enough to think Superman is really flying, eh? Yet America seems to muddle on by believing the things you describe are glitches rather than features — and you have said it very well here. Thanks for that.

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