USA Freedumber Appears to Strengthen RuppRoge’s Affirmative Endorsement of an Internet Dragnet

Working on a detailed comparison of the difference between the USA Freedumb and USA Freedumber bills, one of the most alarming changes is the gutting of Pen Register minimization procedures. They took language not only adding minimization procedures to Pen Register orders,

(b) APPLICATION.—Section 402(c) (50 U.S.C. 1842(c)), as amended by section 201 of this Act, is further amended by adding at the end the following new paragraph:

(4) a statement of proposed minimization procedures.

(c) ORDER.—Section 402(d) (50 U.S.C. 1842(d)) is amended—

(1) in paragraph (1), by inserting ‘‘and that the proposed minimization procedures meet the definition of minimization procedures under this title’’

But permitting the court to review whether the government met those minimization procedures.

(h) At or before the end of the period of time for which the installation and use of a pen register or trap and trace device is approved under an order or an extension under this section, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was retained or disseminated.’

They even specified the government had to follow those minimization procedures!

USA Freedumber changed that by letting the Attorney General review what are are now called “privacy procedures.”

(h) The Attorney General shall ensure that appropriate policies and procedures are in place to safeguard non-publicly available information concerning United States persons that is collected through the use of a pen register or trap and trace device installed under this section. Such policies and procedures shall, to the maximum extent practicable and consistent with the need to protect  national security, include protections for the collection, retention, and use of information concerning United States persons.

They limit the extent of these “privacy procedures” “to the extent practicable … with the need to protect national security.” That is, they don’t have to follow these “privacy procedures” if it’ll harm national security, and the change seems to show legislative intent to deprive the FISC of any review.

That’s alarming for a number of reasons:

  • From the very beginning of the Internet dragnet, the government claimed FISC had almost no authority over the approval process (much less compliance) on Pen Registers
  • This language comes right out of — but makes worse — the section of Mike Rogers’ RuppRoge bill that affirmatively approves the (re)creation of an Internet dragnet
  • There’s a curious entry in the NSA classification guide showing FBI conducting a PRTT program after the time NSA’s program got shut down

NSA versus FISC

According to a footnote in the 2010 John Bates opinion on the Internet dragnet, when the government first applied to Colleen Kollar-Kotelly for a FISC order to authorize the dragnet, they claimed she had no authority to do anything but rubber stamp the application.

2010 Bates Opinion footnote

We know that, having made that argument, the government got caught in violating the rules Kollar-Kotelly placed on the collection, but then continued to violate the rules for at least 5 more years, until 2009, when it got shut down for a while.

It would seem that the original language in USA Freedom Act would have clarified this issue, and made clear the FISC could exercise real oversight over any PRTT collection.

Adopting RuppRoge’s Internet Dragnet language

This language adopts the nomenclature from the HPSCI’s RuppRoge bill. (See page 18.)

But these “privacy procedures” seem qualitatively worse than the RuppRoge bill in several ways. RuppRoge provides loosey goosey judicial review of the privacy procedures. And it did not include the “extent practicable” language.

Given the background — given the fact that the government has already told the FISC it shouldn’t have real oversight over PRTT — this language seems to lay clear legislative intent that FISC should have no role whatsoever, especially not with minimization procedures (which, after all, is what they fought with the FISC over for at least  years).

The secrecy behind the FBI’s PRTT orders on behalf of NSA

PRTT1

Finally, there’s a series of entries on the classification guide for FISA programs leaked by Edward Snowden.

These entries show that FBI obtained counterterrorism information using PRTTs for NSA — which was considered Secret.

But that the FBI PR/TT program — which seems different than these individual orders — was considered TS/SI/NOFORN.

PRTT2

If you compare these entries with the rest of the classification guide, you see that this information — the fact that NSA gets PRTT information from FBI (in addition to information from Pen Registers, which seems to be treated differently at the Secret level)  — is treated with the same degree of secrecy as the actual targeting information or raw collected data on all other programs.

This is considered one of the most sensitive secrets in the whole FISA package.

PRTT3

Even minimized PRTT data is considered TS/SCI.

PRTT4

Now, it is true that this establishes an exact parallel with the BR FISA program (which the classification guide makes clear NSA obtained directly). So it may be attributable to the fact that the existence of the programs themselves was considered a highly sensitive secret.

So maybe that’s it. Maybe this just reflects paranoia about the way NSA was secretly relying on the PATRIOT Act to conduct massive dragnet programs.

Except there’s the date.

This classification guide was updated on February 7, 2012 — over a month after NSA shut down the PRTT program. Also, over a month after — according to Theresa Shea — the NSA destroyed all the data it had obtained under PRTT. (Note, her language seems to make clear that this was the NSA’s program, not the FBI’s.)

That is, over a month after the NSA ended its PRTT program and destroyed the data from it (at least according to sworn declarations before a court), the NSA’s classification guide referred to an FBI PRTT program that it considered one of its most sensitive secrets. And seemed to consider active.

If FBI had a PRTT program active in 2012 that was separate from the NSA PRTT program (I’m not sure that’s the case; it could be they just didn’t update this part of the classification guide), then is it still active? Has the Internet dragnet just moved to FBI?

If so, it’s no wonder why the Intelligence Community would want to guarantee that FISC had no review of it.

Update: Note, too, that the bill removes reporting requirements related to PRTT.

 

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.

8 replies
  1. orionATL says:

    this bill seems like an executive branch take-over of the legislative and judicial branches:

    – the white house’s office of the director of national intelligence writes the bill for the congress after giving congress puppies time to play at bill writing

    – the bill is written to effectively exclude not just the fisa court but the federal judiciary thru “clear intent of congress” tenor and clauses (that’s our presidentially promised “transparency”)

    – the executive/whitehouse will have full control of the machinery of electronic spying to deploy against whomever.

    has there ever been a more constitutionally malicious, inherently repressive of freedoms bill than this one?

    well, there were the german and japanese internments, though they were targeted at specific citizens.

    and lincoln’s suspension of habeas corpus.

    and the dred scott case.

    and the reagan executive order authorizing misconduct by american officials.

    but another one so bureaucratically insidious and open-endedly supportive of government repression?

    • chronicle says:

      quote”this bill seems like an executive branch take-over of the legislative and judicial branches:…”quote

      Well sooprise sooprise sooprise! orionATL finally makes the connection! Let’s call a horse a horse. If this isn’t a coup d’etat I don’t know what the fuck is. And without one single drop of blood. Mike Rogers must be drinking champagne and laughing his ass off, while calling DHS to roll out the jackbooted Stasi. Meanwhile, the ruling class tears up whatever they were blackmailing Rogers with.

      Meanwhile, the rest of Congress wipes their brow that tomorrows headlines won’t have their name connected to some scandal. At least the ones that vote HELL YEAH!

  2. anonymous says:

    USA civil liberties direct action: minimize voluntary/involuntary data/money flow from individuals/communities to corp/gov sectors, maximize encryption, free software, open hardware, free internet, arm for self defense. Then: negotiate demands. We are dealing with hard power and soft activism isn’t gonna make it anymore. There is no revolutionary political movement, but each individual can withdraw consent and take all necessary self defense measures.

    • chronicle says:

      quote” Then: negotiate demands. “unquote

      quote” We don’t negotiate with terrorists”quote

      quote”arm for self defense”quote

      quote”BUG SPLAT!” unquote

      Son, the ONLY way the “citizens” of the Dumbest Country on the Planet will ever be in a position to “demand” anything of the USG is 4th generation warfare by 3-4 MILLION armed patriots. Meanwhile, the most cowardly citizenry in the history of this nation yawns while changing the channel to Keeping up with Kardashian’s ass. Their only hope is not piss off the Stasi. Unfortunately, their grandchildren will spit on their graves.

      • P J Evans says:

        Only if you believe in the same bull as Cliven Bundy and his buddies.
        We know who owns the drones, the Warthogs, and the tanks, and it isn’t individuals, no matter how patriotic they actually are (as opposed to the idjits like Bundy’s buddies, who are seditious as well as stupid).

        • chronicle says:

          As opposed to you, I believe in the Constitutional rights, especially the 2nd Amendment. What I don’t believe in is your bullshit.

  3. anonymous says:

    All Americans should be encouraged to acquire weapons and weapons training. Radical civil discourse in the public sphere must be backed up with actual power – from the barrel of a gun. We are facing the most powerful army in the world, militarized police, dragnet surveillance and much more. If we want real change, we must – at a minimum – arm ourselves for self defense. We need encrypted comms and weapons.

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