The Tech Back Door in Obama’s New Spying Policy

I haven’t had time to do a full post on the Presidential Policy Directive Obama rolled out with his speech the other day (besides pointing out how Obama sets it up to be disappeared when inconvenient). But Bart Gelllman noted something I had also noticed (in addition to noting that Obama embraced Big Data in his speech — his whole story is wroth reading).

In another significant footnote, Obama said the limits he ordered “shall not apply to signals intelligence activities undertaken to test or develop signals intelligence capabilities.” Signals intelligence development, or “sigdev” in NSA parlance, is the discovery of untapped communication flows and the invention of new surveillance methods to exploit them.

For example, NSA Director Keith Alexander revealed last summer that his agency had collected location data from mobile phones in the United States.

Here’s the language in question.

Consistent with this historical practice, this d irective articulates principles to guide why, whether, when, and how the United States conducts signals intelligence activities for authorized foreign intelligence and counterintelligence purposes. 3
3 Unless otherwise specified, this directive shall apply to signals intelligence activities conducted in order to collect communications or information about communications, except that it shall not apply to signals intelligence activities undertaken to test or develop signals intelligence capabilities.

This is something we’re seeing throughout the NSA programs (and we’re not seeing any real auditing or checks on this activity) as I have been noting with respect to the data integrity analysts who have access to the phone dragnet. The NSA uses real data to develop its new toys. And while there are some limits on the finished intelligence products that can be produced from such development, there doesn’t seem to be any protection for the data that gets used.

You’d think, in the wake of a rather powerful demonstration of the power of techs, there’d be some awareness of how dangerous creating such exceptions for the techs. But you’d be wrong.

One more note: Obama explicitly imposes these limits only on communications data, not on things like bank data or pressure cooker purchase data. A reporter actually asked the White House, rather persistently, about all this Section 215 (or NSL) collection, and they basically admitted they’re not going to provide the same protections (judicial review of queries) because no one is talking about it.

Which tells you what they’re really concerned about.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

29 replies
  1. klynn says:

    Really interesting points.

    The bank data and purchase data…no protections because no one is talking about it? Seriously Mr. O? So the decade of work the EFF has done to address the bank data issue means nothing.

    (Note: Last sentence first graph – worth.)

    Wouldn’t it be interesting to find out if all the work the NSA has been doing on those fronts has played a part in creating data vulnerability and has a role in the ease of hacking purchase and bank data which ends up hurting banks, vendors and customers due to identity theft.

  2. edge says:

    So, as long as their tools are labeled ‘beta'(i’m thinking of how long gmail was beta), they’ve got no restrictions. Lovely.

  3. jerryy says:

    @klynn: You might be interested in that the recent attacks on Neiman Marcus and Target, et al have led them to announce that any victims will be offered free credit monitoring by a third party.

    So in essence, a possibly large segment of the US will have their entire purchasing and credit using habits not scattered around various places, but put right into a couple of databases held by a third party. Sound familiar?

    Synchronicity is so fun when it works…

  4. ess emm says:

    All persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and all persons have legitimate privacy interests in the handling of their personal information. PPD-28, Sec 4

    When NSA breaks into Google and Yahoo’s overseas networks and steals my communications, just how in the hell are they treating me with dignity and respect?

  5. klynn says:

    @jerryy:

    Yep, I have been following the news on the data breeches closely due to our past experience as ID theft victims. We contacted the EFF at the time of our ID theft which happened 2 1/2 years after 9-11. I contacted them because of my finding out through research that ID theft tripled after 9-11 and FISA. They were well aware and have been addressing the increase in individual information threat due to too much and poorly regulated/poorly protected data gathering.

  6. ess emm says:

    A little off topic, re: Meet The Press. Mike Rogers is just as evidence-free as 20committee when he made the accusation that Snowden is an FSB operative. And Feinstein has no evidence to justify her smirk about it, either.

  7. bloodypitchfork says:

    Speaking of back door Tech, the NSA isn’t the only one. NRO has it’s own mission in synch with NSA. And although we all know the monumental ARROGANCE of the Alexander/Clapper crew, the NRO has now sunk to the absolute bottom of the hubris cesspool. Behold UNMITIGATED GALL of biblical proportions. Check out their latest SEAL on one of their satellites…
    http://www.businessinsider.com/nrol-39-logo-nothing-beyond-our-reach-2013-12

    Living proof, if ever there were a USG agency who displays their sociopathy without one shred of self doubt, it’s the NRO. And THEN..there is this:

    quote:”Karen Furgerson, an NRO spokesperson, told Forbes’ Kashmir Hill. “‘Nothing is beyond our reach’ defines this mission and the value it brings to our nation and the warfighters it supports, who serve valiantly all over the globe, protecting our nation.”unquote

    Nothing is beyond our reach.(insert vaporized Yemeni Wedding party pic.)

    Valiantly.(Insert on duty Drone pilot pic)

    All over the globe. (insert double facepalm.)

    Bartender…I propose a toast. Here’s to all those valiant warriors sitting in a General Atomics workstation, ready to battle little ole ladies 10k miles away in Pakistan . Armed with Signint from our wunnerfull NCO satilites(with cool logo’s mind you), and only 4 Hellfire missiles, our valiant warriors-ina-box risk life and limb in a life and death struggle to save our nation from these dastardly farmers, women and children all over the globe who only want the terror from above to stop. Sheesh. You’d think these people would appreciate us. I mean..us taxpayers pay hard earned money to vaporize them..right??.YEAH!!!!! Next they’ll be plotting to terrorize the entire US from their farmhouses!! RIGHT?? YEAH!!!….NUKE EM I SAY!

    FIRE AWAY DUDES!!!(entire bar in a nationalistic fists in the air, flag waving orgy!) BUGSPLAT!BUGSPAT!BUGSPLAT!BUGSPLAT!BUGSPLAT!BUGSPAT!BUGSPLAT!BUGSPLAT!BUGSPLAT!BUGSPAT!BUGSPLAT!BUGSPLAT!BUGSPLAT! BUGSPAT! BUGSPLAT! BUGSPLAT!(fades to grumbling nationalistic Muslim vigilante talk.)

    goddamn. I need a drink. After Obama’s speech..and now this. fuck.

    USG hubris redefined.

  8. bloodypitchfork says:

    Notwithstanding ew’s post nor making light of it, this whole debacle has been going on since 1947. When Congress enacted the Central Intelligence Act of 1947, it opened the NSA Pandora’s box..NEVER to be put back in..EVER. I pointed out just in the last few days, Jim Garrison’s succinct analysis that our government IS run by the insidious CIA and it’s Sigint arm, NSA. Living proof is the Church Committee, the Iran-Contra, Edward Snowdens revelations, and now..Obama’s absurd acquiescence to them, the FBI notwithstanding. What we are really witnessing here is a showdown of biblical proportions. In essence, the People vs Tyranny. PERIOD. You know it’s coming, and so does the Government. However, there is something here that everyone SHOULD become aware of. The NSL debacle.

    This is the 800lb gorilla that the entire MSM establishment is keeping out of the limelight. In fact, I’ve been researching the whole background of NSL’s in the last week, and while I won’t waste your comment section on the history of the whole story, here is what I’ve discovered as of today.

    Since 9/11, due to the immense authority granted to the Government to issue NSLs, historically, there have been few challenges by recipients of NSLs, as the nature of the “gag order” portion or the statue, required a recipient to challenge in such way as to remain anonymous in order to challenge. However, sometime in 2011, an unknown recipient(most likely an IP), decided to fight back, and ultimately ended up in the 2nd Circuit court of one Judge Susan Illston in Northern California. In response, the DOJ filed it’s own suit against the Plaintiff, declaring the mere challenge of the Statute, was ITSELF “illegal”. Can you imagine THAT?????? Well, I’ll return to that later. However, in the meantime, on March 14th, 2013, Judge Illston ruled the entire NSL authorizing Statute, UNCONSTITUTIONAL!!

    https://www.eff.org/press/releases/national-security-letters-are-unconstitutional-federal-judge-rules
    Now, while her ruling is astronomically important, unfortunately she also STAYED the ruling 90 days pending appeal by the government.

    From the EFF website:
    quote”On March 14th, 2013, Judge Susan Illston of the Northern District of California granted EFF’s petition, declaring that 18 U.S.C. § 2709 and parts of 18 U.S.C. § 3511 were unconstitutional. Judge Illston held that the statute’s gag provision failed to incorporate necessary First Amendment procedural requirements designed to prevent the imposition of illegal prior restraints. Judge Illston also ruled that the statute was unseverable and that the entire statute, also including the underlying power to obtain customer records, was unenforceable. The judge’s order was stayed for 90 days to give the government the opportunity to appeal.”unquote

    And this is where things start to get weird. In learning of this “appeal” yesterday, I started searching for any information to the status of that appeal today. Now, given the ruling was way back in March 2013, you would think there would something on the net later than that date. Ha!!

    The latest date of any info at all, was March 16, 2013, which was an article posted on Johnathon Turley’s blog, on March 16, 2013. That was #1 on my google search on 9th Circuit Docket Appeals National Security Letters DOJ.

    http://www.google.com/webhp?nord=1#nord=1&q=9th+circuit+docket+national+security+letter+appeal+DOJ

    http://jonathanturley.org/2013/03/16/national-security-letters-ruled-unconstitutional/

    After reading Mr. Turley’s entire post, and every comment therein, and finding no update or anything, I just registered and posted a request for any information regarding the appeal. I’m waiting as I type for any reply.

    However, prior to doing that search, I found one more note of interest regarding the DOJ filing it’s own suit against the Plaintiff in the first suit, as I noted above. Turns out, in another court, the Judge ruled AGAINST the government, and STAYED any ruling until such time the APPEAL to the first case was resolved.

    https://www.eff.org/document/order-granting-motion-stay-0

    And that is where things stand at the moment..whereever THAT is???? Like I said..ZILCH, ZERO, NADA…NOTHING that I can find, even a Docket number, or EVEN IF, the DOJ has indeed, filed an appeal. Which given what little Obama said in his speech regarding NSLs:

    quote:”Fourth, in investigating threats, the FBI also relies on National Security Letters, which can require companies to provide specific and limited information to the government without disclosing the orders to the subject of the investigation. These are cases in which it is important that the subject of the investigation, such as a possible terrorist or spy, isn’t tipped off. But we can – and should – be more transparent in how government uses this authority. I have therefore directed the Attorney General to amend how we use National Security Letters so this secrecy will not be indefinite, and will terminate within a fixed time unless the government demonstrates a real need for further secrecy. We will also enable communications providers to make public more information than ever before about the orders they have received to provide data to the government.” unquote

    So, he’s “directing” the AG to “amend” how they “use” NSL’s. Marvelous. No Congressional Statute overhaul, no mention of them being already deemed UNCONSTITUTIONAL, no mention of appeal.

    This tells me something. I don’t know what’s going on here, but SOMETHING is. I’ve posted on 4 different forums and not one single reply to my request for information. W T F?

  9. klynn says:

    Not to go OT but in following the Twitter feed…Do gov reps really want to go with the media pitch “Snowden had help,damn Russians,” as Gov spoke persons? Afterall, THAT is admitting to one of the biggest intel failures ever and proves that their internal checks are epic failures.

    Which means many, many heads should roll and many people should be fired and a huge internal sweep needs to happen to find all the moles, Russian moles, inside the gate. And why did they wait so long to finally reveal this? Such threat links were never delayed this long to the media in the past.

    So the next question we need to ask is, “How much do the Russians have control of now?” US gov reps making the accusations have had enough time to investigate this and answer the question. And, the media needs to be asking these questions if this is the “next” accusation related to Snowden.

  10. Frank33 says:

    This is interesting. Jeff Kaye, on the Twitter Machine has discovered who created our National Security Universal Dragnet Espionage Complex. It was an investment banker! Some super rich guy named Ferdinand Eberstadt.

    Investment banker Ferdinand Eberhardt was key in organizing the post WWII military-intelligence-NSC structure in US

    Specifically, he was the Chairman of a secret committee that wrote the Eberstadt report. It was decided that centralized decision making should be decided by spies and investment bankers. Presidents and Congress and the American people were no longer allowed to make centralized decisions. So the Secret Government was created.
    http://www.aarclibrary.org/publib/church/reports/book4/html/ChurchB4_0007b.htm

    Eberstadt’s recommendations were the most comprehensive in advancing an integrated plan for defense reorganization and centralized decision making.

    Eberstadt was a very influential character whose family continues the legacy of rule by the rich.
    http://en.wikipedia.org/wiki/Ferdinand_Eberstadt

  11. bloodypitchfork says:

    @klynn: This shit never ceases to fucking amaze me….Rogers has been claiming this crap since Dec. 2nd 2013..to which.. Greenwald proves Rueters and the NY Times..also prove once again, Rogers is a fucking moron….

    quote:
    Fox News, December 2, 2013:

    The evidence surrounding the case of former NSA contractor Edward Snowden suggests he did not act alone when he downloaded some 200,000 documents, according to the Republican head of the House Intelligence Committee.

    “We know he did some things capability-wise that was beyond his capabilities. Which means he used someone else’s help to try and steal things from the United States, the people of the United States. Classified information, information we use to keep America safe,” Rep. Mike Rogers, R-Mich., told Fox News.

    Reuters, today (11 days later) – reporting on “a rare interview at NSA’s heavily guarded Fort Meade headquarters” from “Richard Ledgett, who leads a task force responding to the leaks”:

    The NSA’s internal review has determined about 98 percent of the scope of the material that Snowden had accessed, and officials have found no evidence that he had help either within the NSA or from adversary spy agencies.

    New York Times, today:

    According to senior government officials, F.B.I. agents from the bureau’s Washington field office, who are leading the investigation, believe that Mr. Snowden methodically downloaded the files over several months while working as a government contractor at the Hawaii facility. They also believe that he worked alone, the officials said.” unquote

    http://utdocuments.blogspot.com.br/2013/12/trustworthiness-of-congressman-mike.html

    Now that the entire planet has living proof Rogers is the biggest buffoon in the universe…any questions?

  12. bloodypitchfork says:

    @Frank33: Holy mother of missing links.

    Thank you so much frank33. Only 3 pages in and I’ve succumbed to another night without sleep. :)

  13. klynn says:

    @orionATL:

    We got compromised through a theft of medical records from a data back-up center for our health insurance. Probably someone on the inside because they knew where to look for the info and got it on the market quick while the cops were clueless about what the break-in was about.

    No travel.

    No shopping.

  14. Frank33 says:

    @bloodypitchfork:

    It is Jeff Kaye who gets the credit, for what I think is an amazing revelation. But I spent 2 hours trying to figure out who these ghoulish people are. Eberstadt’s and Tedeshi’s and who knows who else in this bizarre cabal, have been trying to create wars and depressions for decades. This seems to be a whole secretive network of ultra right wing neocons. Or maybe it is a dynasty, similar to Duck Dyasty except controlled by secretive billionaires.

  15. bloodypitchfork says:

    @Frank33: Oh my gawd.

    From your link to wikipedia on Eberstadt…

    quote:” In 1923 he joined the prominent investment-banking firm of Dillon, Read & Co.” unquote

    Shades of Catherine Austin Fitts…that’s all I needed to know.

    No wonder.

  16. bloodypitchfork says:

    @Frank33:quote:” I spent 2 hours trying to figure out who these ghoulish people are. Eberstadt’s and Tedeshi’s and who knows who else in this bizarre cabal, have been trying to create wars and depressions for decades. This seems to be a whole secretive network of ultra right wing neocons. Or maybe it is a dynasty, similar to Duck Dyasty except controlled by secretive billionaires.”unquote

    frank, all you have to do is read Fitts book… Dillon Reed: The Aristocracy of Stocks..it will tell you EVERYTHING you want to know..and then some. In fact..I guarantee it.

    http://www.dunwalke.com/

    oh, and THANK YOU JEFF!!

  17. Saul Tannenbaum says:

    @jerryy: You’re mistaken about how credit monitoring works.

    The credit monitoring agencies *already* have your purchasing data centralized in a single database. That’s what they do. Getting credit monitoring just gets you routine reports on what’s in there and alerts if something “suspicious” is going.

  18. bloodypitchfork says:

    dangit, I dropped in to post something and got sidetracked with franks links…sheeezus..so many links..so little time. :)

    Anyway, a few posts back, in regards to Obama’s speech, I posited my view that “Obama is full of shit”. Well, I should have known. So does Arthur Silber…

    quote:” I will probably have some narrower comments about Obama’s speech, but the speech in its entirety is premised on a complete fabrication, on a conception of “intelligence” that corresponds to the facts and the truth at not even a single point. In that sense, Obama’s speech is nothing but a lie. The President makes a series of claims that have nothing to do with the truth, and there is no wise child — and there are almost no adults — who will declare: “You’re a liar, and you’re naked, too.”

    But I’ll say it: You, Barack Obama, are a goddamned, bloody liar. And put some fucking clothes on.”unquote

    http://powerofnarrative.blogspot.com/2014/01/secret-information-giving-up-your-life.html
    Thank you Arthur.

  19. jerryy says:

    @Saul Tannenbaum: While I mostly agree with what you are saying, it is not entirely true.

    Each credit bureau has data on ‘you’ but it is not working off of a centralized single database that all three share. Each work off of what is reported to them about your (mainly credit using — but not only) activities. If a company does not report what you pay, when, etc. to all three, then only the ones that get the data have it.’Your’ payment to say Visa, probably hits all three, but a debit card purchase may not hit any of the bureaus unless your bank choose to pass it along.

    The service that Experian via Target is offering has the ability to give them more info than they used to have:

    http://en.wikipedia.org/wiki/TransUnion
    http://en.wikipedia.org/wiki/Experian
    http://en.wikipedia.org/wiki/Equifax

    http://defendyourdollars.org/posts/2868-transaction-monitoring-and-credit-monitoring-in-light-of-the-target-breach

    Disclaimer: I am n no way associated with any of these folks.

  20. P J Evans says:

    @klynn:
    I think all the damage Snowden did is to their self-image as Valiant Warriors Protecting the Free Wurrllld!
    Which was a load of crap anyway, and they know it.

  21. P J Evans says:

    @jerryy:
    And there is nothing that says you have to accept that credit-monitoring service. (I didn’t. I have one credit card. I can monitor that myself.)

  22. klynn says:

    @P J Evans:

    No doubt.
    My point, it is stupid to gin up the “he had help” angle. It does not make Snowden look bad. It makes our intel look stupid.

    But I want to hear more from Jeff Kaye on his discovery. THAT is something!

  23. jerryy says:

    @P J Evans: Yup, no is an oft overlooked option.

    p.s. Congrats Marcy, the 9th Circuit says you are a journalist! Yeah, I know Michigan is in another circuit, but still.

  24. klynn says:

    @bloodypitchfork:

    Thanks for posting. And yes, this conflict of facts has been interesting to watch develop; especially, if you consider the sources for the, “…he had help,” angle. So, one must ask, “Why?”

    There must be another major piece of info to come out and this is setting the stage to counter the documents about to come out.

  25. pdaly says:

    Today on abcNews’ Powerhouse Roundtable Tavis Smiley spanked President Obama for Obama’s ‘marginal retrenchment rather than major reform’ in light of Snowden’s release of materials showing NSA’s wholesale warrantless spying on Americans. Smiley disagreed with Mary Matalin’s comment ‘Obama is Dick Cheney,’ but Smiley invoked Martin Luther King, Jr to criticize Pres. Obama:

    Tavis Smiley: “But here’s what I do believe, that tomorrow, it’s worth reminding the audience, that we will celebrate the life and legacy of the person I regard as the greatest American this country’s ever produced. That is my assessment. Martin Luther King Jr.

    He is the quintessential example of what it means to be forced to live under a surveillance state. “

    George Stephanopoulos: “The President talked about that in his speech.”

    Tavis Smiley: “Exactly. And so when I knew the president was going to give this speech on Friday I started to wonder what that bust of Doctor King in the Oval Office might be whispering to the President as he was fine-tuning his speech Thursday night. When I saw the Friday speech, like Peggy [Noonan], I was somewhat underwhelmed.

    I understand, David [Remnick, editor of the New Yorker—also on today’s panel], what he’s up against, but I sometimes wonder that this president –sometimes “think” rather–that he is too cautious when he ought to be a bit more of a contrarian– particularly when a federal judge has said that part of this bulk collection is unconstitutional and secondly when you can’t convince me how the dots connect to make us safer.

    I think that in the long run Edward Snowden might be on a postage stamp somewhere down the road. Edward Snowden is going to be acknowledged one day. He’s going to be appreciated.

    How history is going to regard what Mr. Obama has done in this moment is an open question.”

    http://abcnews.go.com/ThisWeek/video/week-powerhouse-roundtable-21590064

  26. orionATL says:

    @P J Evans:

    precisely!

    like manning’s disclosures, nothing more than embarrassment for disclosure of military and civilian fuccups, brutality, deceit, and poor vision.

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