James Clapper Continues to Cover Up FBI’s Back Door Searches on US Targets

Screen shot 2014-04-02 at 12.37.27 PMIn their stories catching up to my past reporting on the Semiannual Compliance Report‘s discussion of backdoor searches, the Guardian and NYT focus on NSA and (in the case of the NYT) CIA. Neither mentions that the FBI also does such back door searches, and has had the authority to do so longer than the foreign intelligence agencies.

That may be because Ron Wyden always focuses on the NSA, and as a result James Clapper mentioned the NSA in his letter to Wyden.

The public record makes clear that FBI has this authority. A footnote to one of the paragraphs describing oversight over NSA and CIA’s back door searches explains that “FBI’s minimization procedures had already provided that agency the ability,” followed by redacted descriptions.

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When Bates approved back door searches in his October 3, 2011 opinion, he pointed to FBI’s earlier (and broader) authorities to justify approving it for NSA and CIA. While the mention of FBI is redacted here, at that point it was the only other agency whose minimization procedures had to be approved by FISC, and FBI is the agency that applies for traditional FISA warrants.

[redacted] contain 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. See [redacted]. In granting [redacted] applications for electronic surveillance or physical search since 2008, including applications targeting United States persons and persons in the United States, the Court has found that the [redacted] meet the definitions of minimization procedures at 50 U.S.C. §§ 1801(h) and 1821(4). It follows that the substantially-similar querying provision found at Section 3(b)(5) of the amended NSA minimization procedures should not be problematic in a collection that is focused on non-United States persons located outside the United States and that, in aggregate, is less likely to result in the acquisition of nonpublic information regarding non-consenting United States persons.

So since 2008, FBI has had the ability to do back door searches on all the FISA-authorized data they get, including taps targeting US persons.

When I saw ODNI’s tweets (above) admitting to back door searches, I realized that ODNI treated classification of FBI’s back door searches differently than it did CIA and NSA’s. In addition to the redactions in the footnote above, it also redacted its description of the review of FBI’s back door searches.

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Indeed, Clapper’s letter only admits to back door searches of data collected on foreign targets, not American ones.

As reflected in the August 2013 Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702, which we declassified and released on August 21, 2013, there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence by targeting non U.S. persons reasonably believed to be located outside the U.S. pursuant to Section 702 of FISA.

Yet Bates makes it clear (even though the reference to FBI is redacted) that FBI can even back door search data collected in the United States on US persons.

Given how little we know about back door searches, it’s hard to know which is worse. As Bates notes, there will likely be more Americans’ records accessible via a back door search off an American target. But at least in that case, FISC has found there is probable cause to believe the target is a foreign agent or terrorist. Under Section 702, the Agencies can collect data on people without that same level of proof, and do so in much greater volume. Certainly, Ron Wyden and Mark Udall seem primarily concerned about the Section 702 targeting (which includes the FBI, as the Compliance report makes clear).

Still, Clapper’s greater secrecy about FBI’s back door searches makes me worried they are in some way even worse.

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.

6 replies
  1. Concerned reader says:

    Hi, just wondering if you’ve looked at the un-provenanced writeup on proton / clearwater that appeared on Cryptome last August ( http://cryptome.org/2013/08/proton-clearwater-lexis-nexis.htm ) which seems to touch on your topic here?

    Hope you don’t mind me asking. Of course without a source it could be anything, but seems interesting, and I’ve seen no discussion of it anywhere.

    Thanks, btw, for your continuing coverage – always look forward to your next post!

  2. Snoopdido says:

    If the other National Security journalists were on top of their game, they’d make sure to not only read here before publishing, but also ask Marcy, simply one of the very best in National Security journalism, for any of her comments/thoughts prior to publishing.
    Why? Why wouldn’t the other National Security journalists want to have their work improved? Why wouldn’t the other National Security journalists want to have the best facts at their disposal?
    Seems like a no-brainer to me, but what do I know?

    • emptywheel says:

      And I would say, “if you want my involvement in that story you can pay me for it.”  They very often appear entirely clueless this is my job and that asking me for detailed information about a topic is effectively asking me to do their job for free. I’ve had to explicitly remind 2 journalists of this directly.

      • Snoopdido says:

        I suspect they whined that the impoverished state of journalism left them pretty much penniless but couldn’t you just this once help a fellow journalist, and I hope and expect you responded “Will that be Visa or MasterCard?”.

  3. spongebrain says:

    Re: getting paid. Absent a charitable purpose, giving time away breeds contempt…and further demands for time.

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