As part of my ongoing focus on Executive Order 12333, I’ve been reviewing how the Bush Administration changed the EO when, shortly after the passage of the FISA Amendments Act, on July 30, 2008, they rolled out a new version of the order, with little consultation with Congress. Here’s the original version Ronald Reagan issued in 1981, here’s the EO making the changes, here’s how the new and improved version from 2008 reads with the changes.
While the most significant changes in the EO were — and were billed to be — the elaboration of the increased role for the Director of National Intelligence (who was then revolving door Booz executive Mike McConnell), there are actually several changes that affected NSA.
Perhaps the most striking of those is that, even while the White House claimed “there were very, very few changes to Part 2 of the order” — the part that provides protections for US persons and imposes prohibitions on activities like assassinations — the EO actually replaced what had been a prohibition on the dissemination of SIGINT pertaining to US persons with permission to disseminate it with Attorney General approval.
The last paragraph of 2.3 — which describes what data on US persons may be collected — reads in the original,
In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.
The 2008 version requires AG and DNI approval for such dissemination, but it affirmatively permits it.
In addition, elements of the Intelligence Community may disseminate information to each appropriate element within the Intelligence Community for purposes of allowing the recipient element to determine whether the information is relevant to its responsibilities and can be retained by it, except that information derived from signals intelligence may only be disseminated or made available to Intelligence Community elements in accordance with procedures established by the Director in coordination with the Secretary of Defense and approved by the Attorney General.
Given that the DNI and AG certified the minimization procedures used with FAA, their approval for any dissemination under that program would be built in here; they have already approved it! The same is true of the SPCMA — the EO 12333 US person metadata analysis that had been approved by both Attorney General Mukasey and Defense Secretary Robert Gates earlier that year. Also included in FISA-specific dissemination, the FBI had either just been granted, or would be in the following months, permission — in minimization procedures approved by both the DNI and AG — to conduct back door searches on incidentally collected US person data.
In other words, at precisely the time when at least 3 different programs expanded the DNI and AG approved SIGINT collection and analysis of US person data, EO 12333 newly permitted the dissemination of that information.
And a more subtle change goes even further. Section 2.5 of the EO delegates authority to the AG to “approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes.” In both the original and the revised EO, that delegation must be done within the scope of FISA (or FISA as amended, in the revision). But in 1981, FISA surveillance had to be “conducted in accordance with that Act [FISA], as well as this Order,” meaning that the limits on US person collection and dissemination from the EO applied, on top of any limits imposed by FISA. The 2008 EO dropped the last clause, meaning that such surveillance only has to comply with FISA, and not with other limits in the EO.
That’s significant because there are at least three things built into known FISA minimization procedures — the retention of US person data to protect property as well as life and body, the indefinite retention of encrypted communications, and the broader retention of “technical data base information” — that does not appear to be permitted under the EO’s more general guidelines but, with this provision, would be permitted (and, absent Edward Snowden, would also be hidden from public view in minimization procedures no one would ever get to see).
Keith Alexander is testifying before the Senate Armed Services Committee, ostensibly about CyberCommand.
He has gotten a number of questions about the solutions they’ve offered the President to resolve the phone dragnet issue. He responded it would be possible to keep the data with the telecoms.
Then, in response to a Cyber question, Alexander said the problem is that the NSA can’t share classified information about malicious code with industry, because if it does so in a non-classified setting, attackers will learn how NSA obtained the information. (There’s a lot that’s problematic with that claim, but just ignore all that for now.)
So we need legislation that allows NSA to share classified information back and forth with industry.
He then returned to the phone dragnet. He suggested that the industry retention solution would require legislation allowing NSA to share terrorist identifiers with industry. (Note, this premise is absolutely absurd, as DEA apparently has no problem with sharing drug target identifiers with AT&T in the Hemisphere program in an explicitly unclassified program.)
Finally, he said this legislation — allowing the NSA to share classified identifiers with industry — would serve as the precedent for the Cyber legislation he has long sought but not obtained legislatively.
In other words, on his way out the door, Keith Alexander is now sacrificing his beloved phone dragnet to get cyber legislation in the guise of something else.
NPR’s Carrie Johnson reports that OLC head Virginia Seitz quietly left OLC before Christmas.
Virginia Seitz, who won Senate confirmation after an earlier candidate under president Obama foundered, resigned from federal service after two-and-a-half years on the job. The timing is unusual because her unit plays a critical role in drawing the legal boundaries of executive branch action —at a time when President Obama says he will do more to bypass a divided Congress and do more governing by way of executive order.
And while DOJ’s official line is that Seitz left entirely for personal reasons, two sources told Johnson the ongoing discussions about whether to drone kill another American were another factor.
Two other sources suggested that aside from the tough work, another issue weighed heavily on her mind over the last several months: the question of whether and when the US can target its own citizens overseas with a weaponized drone or missile attack. American officials are considering such a strike against at least one citizen linked to al Qaeda, the sources said.
While a “law enforcement” source (but wait! the entire point of drone assassinations is they replace law enforcement with intelligence entirely!) suggests the decision has not yet been made.
A law enforcement source told NPR the controversy over the use of drones against Americans in foreign lands did not play a major role in Seitz’s decision to leave government, since the OLC is continuing to do legal analysis on the issue and there was no firm conclusion to which she may have objected or disagreed.
Which is sort of funny, because Kimberly Dozier’s report on the American in question says DOD, at least, has made its decision.
But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.
Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.
And remember, as I’ve pointed out, this potential drone execution target is differently situated from Anwar al-Awlaki, in that there appears to be no claim this one is targeting civilians in the US.
But let’s take a step back and consider some other interesting details of timing.
First, on November 29 of last year, Ron Wyden, Mark Udall, and Martin Heinrich released a letter they sent to Eric Holder asking for more clarity on when the President could kill an American.
[W]e have concluded that the limits and boundaries of the President’s power to authorize the deliberate killing of Americans need to be laid out with much greater specificity. It is extremely important for both Congress and the public to have a fully understanding of what the executive branch thinks the President’s authorities are, so that lawmakers and the American people can decide whether these authorities are subject to adequate limits and safeguards.
Retrospectively, it seems this letter may have pertained to this new execution target, particularly given the different circumstances regarding his alleged attacks against the US. I might even imagine this serving as a public demand that DOJ not simply rely on the existing Awlaki drone assassination memo, creating the need to do a new one.
Now consider how (currently acting OLC head) Caroline Krass’ confirmation hearing plays in. On December 17, Wyden asked her who had the authority to withdraw an OLC opinion (the opinion in question pertains to common commercial services in some way related to cybersecurity, but I find it interesting in retrospect).
Wyden: But I want to make sure nobody else ever relies on that particular opinion and I’m concerned that a different attorney could take a different view and argue that the opinion is still legally valid because it’s not been withdrawn. Now, we have tried to get Attorney General Holder to withdraw it, and I’m trying to figure out — he has not answered our letters — who at the Justice Department has the authority to withdraw the opinion. Do you currently have the authority to withdraw the opinion?
Krass: No I do not currently have that authority.
Wyden: Okay. Who does, at the Justice Department?
Krass: Well, for an OLC opinion to be withdrawn, on OLC’s own initiative or on the initiative of the Attorney General would be extremely unusual.
She said she did not “currently have that authority.” Was she about to get that authority in days or hours?
Then finally there are the implications for Krass’ confirmation. The leaks about this current drone execution target almost certainly came from Mike Rogers’ immediate vicinity. He’s torqued because Obama’s efforts to impose some limits on the drone war have allegedly made it more difficult to execute this American with no due process.
And while Rogers doesn’t get a vote over Krass’ confirmation to be CIA General Counsel, Dianne Feinstein and Saxby Chambliss do. And their efforts to keep CIA in the drone business may well have an impact on — and may have been motivated by — our ability to assassinate Americans.
I don’t recall Krass getting questions that directly addressed drone killing, though she did get some that hinted at the edges of such questions, such as this one:
Are there circumstances in which a use of force, or other action, by the U.S. government that would be unlawful if carried out overtly is lawful when carried out covertly? Please explain.
ANSWER: As a matter of domestic law, I cannot think of any circumstances in which a use of force or other action by the U.S. government that would be unlawful if carried out overtly would be lawful when carried out covertly, but I have not studied this question.
This seems to be a question she would have had to consider if she had any involvement in OLC’s consideration of a new drone execution memo.
All that said, she hasn’t yet gotten her vote (though any delay may arise from holds relating to the Senate Torture Report).
It just seems likely that — as we did in May 2005 when Steven Bradbury reapproved torture in anticipation of a promotion to head OLC — we’re faced yet again with a lawyer waiting for a promotion being asked to give legal sanction to legally suspect activity. My impression is that Krass has far more integrity than Bradbury (remember, she’s the one who originally imposed limits on the Libya campaign), so I’m only raising this because of the circumstances, not any reason to doubt her character.
It just seems like if you need lawyers to rubber stamp legally suspect activities, there ought to be more transparency about what promotions and resignations are going on.
if you haven’t already heard, Apple admitted to what has been discovered to be a serious security flaw on Friday.
Essentially, for some of the more careful kinds of security, the flaw would allow an attacker to conduct a Man-in-the-Middle attack when you were sending or receiving data via an Apple operating system. Apple’s announcement Friday pertained to just iOS. But security researchers quickly discovered that the bug affects recent releases of OSX as well. And even if you’re using Chrome or Firefox, the bug may affect underlying applications.
In the wake of the Snowden revelations, the discovery of the bug raises questions about how it got there. Langley thinks it was a mistake. Steve Bellovin does too, though does note that targeting Perfect Forward Security is precisely what a determined hacker, including a nation-state’s SIGINT agency, would need to compromise. Others are raising more questions.
But whether or not this is an intentional backdoor into the security protecting users of most of Apple’s most recent devices, I’m just as interested in Apple’s response … both to the public report, almost 6 months ago, that,
US and British intelligence agencies have successfully cracked much of the online encryption relied upon by hundreds of millions of people to protect the privacy of their personal data, online transactions and emails, according to top-secret documents revealed by former contractor Edward Snowden.
And to its discovery — reportedly perhaps as long as a few weeks ago — that it had this serious bug.
Now, if I were a leading device/consumer products company with an incentive to get consumers deeper into the cloud and living further and further online, particularly if I were a leading device/consumer products company sitting on mountains and mountains of cash, upon reading the report last September, I would throw bodies at my code to make sure I really was providing the security my customers needed to sustain trust. And given that this is a key part of the security on which that trust relies, I would think the mountains of cash device/consumer products company might have found this bug.
According to rumors, at least, this bug was not found by Apple with all its mountains and mountains of cash; it was found by a researcher.
Then there’s the radio silence Apple has maintained since issuing its alert about iOS on Friday. It told Reuters over the weekend that it would have a fix to the OSX bug “soon,” so it has, effectively acknowledged that it’s there. But it has not issued an official statement.
It just seems to me there is little that can explain issuing Friday’s security alert — alerting everyone, including potential hackers, that the problem is there, which quickly led to the independent identification of the OSX problem — without at the same time rolling out an OSX announcement and alert. Admitting to the iOS error effectively led to OSX users being exposed to people responding to the announcement. Millions of Apple customers are even further exposed, until such time as Apple rolls out a fix (though you might consider doing your banking on a browser other than Safari to give yourself a tiny bit of protection until that point).
The only thing I can think of that would explain Apple’s actions is if the security researcher who found this bug gave them limited warning, before her or she would have published it.
Otherwise, though, I’m as interested in the explanation for Apple’s two-step rollout of this bug fix as I am in how it got there in the first place.
As part of his Presidential Policy Directive on Signals Intelligence, Obama said this about bulk collection:
In particular, when the United States collects nonpublicly available signals intelligence in bulk, it shall use that data only for the purposes of detecting and countering: (1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests; (2) threats to the United States and its interests from terrorism; (3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction; (4) cybersecurity threats; (5) threats to U.S. or allied Armed Forces or other U.S or allied personnel; and (6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section. In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S . business sectors commercially; or achieving any purpose other than those identified in this section.
The Assistant to the President and National Security Advisor (APNSA), in consultation with the Director of National Intelligence (DNI), shall coordinate, on at least an annual basis, a review of the permissible uses of signals intelligence collected in bulk through the National Security Council Principals and Deputies Committee system identified in PPD-1 or any successor document. At the end of this review, I will be presented with recommended additions to or removals from the list of the permissible uses of signals intelligence collected in bulk.
The DNI shall maintain a list of the permissible uses of signals intelligence collected in bulk. This list shall be updated as necessary and made publicly available to the maximum extent feasible, consistent with the national security.
To fulfill that bolded “shall” language, James Clapper just released this on his IContheRecord Tumblr page:
Presidential Policy Directive/PPD-28 – Signals Intelligence Activities establishes a process for determining the permissible uses of nonpublicly available signals intelligence that the United States collects in bulk. It also directs the Director of National Intelligence to “maintain a list of permissible uses of signals intelligence collected in bulk” and make the list “publicly available to the maximum extent feasible, consistent with the national security.”
Consistent with that directive, I am hereby releasing the current list of permissible uses of nonpublicly available signals intelligence that the United States collects in bulk.
Signals intelligence collected in “bulk” is defined as “the authorized collection of large quantities of signals intelligence data which, due to technical or operational considerations, is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).” As of Jan. 17, 2014, nonpublicly available signals intelligence collected by the United States in bulk may be used by the United States “only for the purposes of detecting and countering:
- Espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests;
- Threats to the United States and its interests from terrorism;
- Threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction;
- Cybersecurity threats;
- Threats to U.S. or allied Armed Forces or other U.S. or allied personnel; and
- Transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named above.”
Further, as prescribed in PPD-28, “in no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially;” or achieving any purpose other than those identified above.
Effectively, Clapper fulfilled an obligation mandated by the PPD by simply cutting and pasting the list of 6 permissible uses of bulk collection in the PPD.
Given that this list is expected to be assessed annually, does that mean the PPD itself should be considered valid for no more than a year?
There’s a subtle point that deserves more attention: GCHQ presented the underlying Powerpoint to NSA’s SIGDEV conference.
The documents, from a PowerPoint presentation prepared for a 2012 NSA conference called SIGDEV, show that the unit known as the Joint Threat Research Intelligence Group, or JTRIG, boasted of using the DDOS attack – which it dubbed Rolling Thunder — and other techniques to scare away 80 percent of the users of Anonymous internet chat rooms.
In the presentation on hacktivism that was prepared for the 2012 SIGDEV conference, one official working for JTRIG described the techniques the unit used to disrupt the communications of Anonymous and identify individual hacktivists, including some involved in Operation Payback. Called “Pushing the Boundaries and Action Against Hacktivism,” the presentation lists Anonymous, Lulzsec and the Syrian Cyber Army among “Hacktivist Groups,” says the hacktivists’ targets include corporations and governments, and says their techniques include DDOS and data theft.
SIGDEV is NSA’s term for the agency’s efforts to develop new signals intelligence techniques and sources. Thus, GCHQ presented the attack as the cutting edge of what NSA does.
But remember: NSA’s SIGDEV analysts have access to raw data outside of normal channels. This shows up repeatedly in the primary orders for the dragnet. And, as Bart Gellman noted (and I elaborated on here), Obama specifically exempted these folks from his Presidential Policy Directive limiting our spying (though his PPD did say foreigners could be spied on for cybersecurity reasons).
In other words, the people GCHQ boasted of their attack on Anonymous to are the people who have some of the least oversight within NSA.
Imagine a McCain Committee as the inheritor of the tradition of Frank Church and Otis Pike.
(Yes, I did that to make bmaz’ head explode.)
Only, McCain proposes to investigate not just whether NSA has engaged in things it was not authorized to do. But also to investigate Snowden’s leaks themselves and the potential role of contractors in making leaks more likely.
All that said, I might be excited about McCain’s proposal to review the dragnet, as described:
(3) The nature and scope of National Security Agency intelligence-collection programs, operations, and activities, including intelligence-collection programs affecting Americans, that were the subject matter of the unauthorized disclosure, including–
(A) the extent of domestic surveillance authorized by law;
(B) the legal authority that served as the basis for the National Security Agency intelligence-collection programs, operations, and activities that are the subject matter of those disclosures;
(C) the extent to which such programs, operations, and activities that were the subject matter of such unauthorized disclosures may have gone beyond what was authorized by law or permitted under the Constitution of the United States;
(D) the extent and sufficiency of oversight of such programs, operations, and activities by Congress and the Executive Branch; and
(E) the need for greater transparency and more effective congressional oversight of intelligence community activities.
There’s just one problem with McCain’s proposal.
Here’s the list of the people who would be on the Committee (he provides titles, I’m providing names):
There are a number of very big NSA defenders on this list — in addition to DiFi and Saxby, both Jello Jay and Coburn are Intel Committee members who have never questioned the dragnet (indeed, Coburn has called for getting rid of the controls on the phone dragnet!). Chuck Grassley, too, has generally been supportive of the dragnet in SJC hearings on the subject. Most of the rest are simply not the caliber of people who might critically assess the dragnet much less show real interest in Americans’ privacy. Only Carl Levin and Pat Leahy, alone among the 12 named members, have been explicitly skeptical of the dragnet at all.
McCain proposes a Select Committee to investigate the dragnet. And he proposes to fill it with people who are really happy with the dragnet as it currently exists.
Update: Just to give a sense of how terrible this make-up for a Select Committee is, compare it with the bipartisan list of 26 Senators who asked James Clapper for more information on other uses of Section 215 last June. Just one Senator from that list — Pat Leahy — would be on McCain’s committee.
Ben Wittes has a long post trying to explain the NSA’s job in such a way as to “tell a young student what intelligence collection under the rule of law looks like” without inducing “a sense of betrayal.”
I have no problem with Wittes’ attempt to develop such an explanation, nor any great gripe with his effort. I’m not going to accuse Wittes of being naked this time.
But I want to raise three details that show the problem behind the effort.
First, Wittes’ entire statement reads,
NSA does not, except in emergencies, intentionally target for collection the communications of specific Americans without seeking a court order first, and it does not intentionally target for collection the communications of individuals known to be in the United States. It does, however, routinely acquire and store the communications of US persons and some domestic communications as a necessary incident to its broad collection directed at targets overseas—and it then has rules restricting the retention and use of this material to the extent it does not have foreign intelligence value. What’s more, NSA routinely acquires in bulk the records, but not the contents, of domestic telephone communications, which it uses for narrow counterterrorism purposes.
With the caveat that most people’s definition of “target” is not as specific as NSA’s is, I don’t have a big issue with this statement.
Except that it is false to say the phone dragnet is only used “for narrow counterterrroism purposes.” As Dianne Feinstein stated and Keith Alexander confirmed back in June, the dragnet is used with al Qaeda related groups and with Iran.
It can only look at that data after a showing that there is a reasonable, articulable that a specific individual is involved in terrorism, actually related to al Qaeda or Iran.
Now, perhaps in reality the dragnet is used against Hizballah, which the US, at least, treats as a terrorist organization. But to the extent that the dragnet is used against specific individuals from Iran “involved in terrorism,” then the entire notion of “narrow counterterrorism purposes” goes out the window, because accusing Iran of engaging in terrorism, even in the context of Iraq (where I suspect such usage derives from) is problematic. That’s true not just because Iran has been the target of what might count as terrorist acts, including assassinations of civilians, but also because those whom we’ve listed as terrorists (including members of the Republican Guard and its bank) are engaged in what ought to be considered legitimate defense of a sovereign nation.
So even if you agree with the approach the US has adopted with Iran, including it among the terrorists you can use the phone dragnet against moves beyond “narrow” counterterrorism into counterterrorism as a tactical tool wielded against a state adversary. And that such definitions can happen in secret (Iran’s listings on Treasury’s terrorism list are not secret, but the choice to include it among the two general targets of the dragnet was secret until June) means there’s no reason to trust that the phone dragnet will remain narrowly targeted.
Then there’s the notion our targets are all overseas. They’re not. Hacking targets are in the US, and there’s good reason to believe the upstream collection is used against them (we do know there’s a cybersecurity certification for Section 702). NSA presumably manages to conduct this domestic spying in the guise of foreign intelligence by noting how difficult it is to attribute hacks (that’s also presumably how it justifies holding all encrypted communications indefinitely). In other words, what we’re seeing is a redefinition of “foreign” to incorporate more and more that is domestic, which in part amounts to using intelligence rather than law enforcement tools against criminal activity because some but not all of that criminal activity is propagated by states. (Note, in yesterday’s hearing Peter Swire suggested NSA’s info assurance function is where it serves as a domestic security agency.)
Then there’s this statement from Wittes:
We want a robust foreign intelligence capability. We don’t want our domestic relations between citizens and government conditioned by an intelligence agency—which necessarily uses secrecy, deceit and trade-craft that has no part in domestic governance.
This is why I harp constantly about the use of the dragnet to identify potential informants. Because it is precisely through that application of the dragnet where NSA’s activities lead directly to the the interjection of secrecy, deceit, and trade-craft in domestic governance. Sure, FBI (that hybrid intelligence/law enforcement agency) carries out that secrecy, deceit, and trade-craft, not NSA. But the power of the dragnet makes all that deceit potentially far worse (because it provides a way to exploit the secrets of innocent citizens to coerce them to become informants). That NSA is one step removed from this troubling approach does not mean it is not party to it.
Again, these are details, details which don’t necessarily invalidate Wittes’ larger point, but show that even within the larger framework, NSA has secretly violated those principles Wittes would like to believe.
According to LAT’s Ken Dilanian, it is the “official position” of the US government that some kinds of hacking are “permissible.”
The official U.S. position — that governments hacking governments for military and other official secrets is permissible, but governments hacking businesses for trade secrets is not — is a tougher sell these days.
He makes the claim in an article that originally claimed Edward Snowden’s leaks have set back cybersecurity efforts, but then had to issue a correction acknowledging CISPA probably wasn’t going to happen anyway.
An article in the Feb. 2 Section A on the effects of Edward Snowden’s leaks of National Security Agency secrets said the White House backed the Cyber Intelligence Sharing and Protection Act, a cybersecurity measure. The White House threatened to veto the proposed bill in April. —
I take from this correction that Dilanian was fairly uncritically repeating the claims of NSA boosters — as other reporters have credulously repeated claims about the way Snowden’s leaks will affect cybersecurity initiatives.
Which is why I find his description of this “official position” so interesting.
I’m not aware of the US endorsing any official (public) policy on the kinds of hacks NSA (and CyberCommand) are permitted. Congress has tried to put some limits on it — or at least get briefing on it. And Keith Alexander successfully fought for a lot more autonomy over the hacks he could do.
The Executive does, however, have an official policy on SIGINT: President Obama’s recent Presidential Policy Directive. But a SIGINT official position and a hacking policy are not necessarily the same thing. While hacking is one way we collect SIGINT (though I don’t think NSA has admitted to that), we also conduct hacking for offensive purposes.
Even assuming they were the same thing, Dilanian’s characterization would be a misstatement of the policy in any case.
The actual policy permits the collection of SIGINT for broadly defined foreign intelligence purposes.
Thus, ” foreign intelligence ” means ” information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists,
Of course, corporations are, under US law, both “organizations” and “persons,” so this definition permits spying on foreign corporations (other intelligence documents lay this out explicitly).
And the PPD does permit the collection of foreign private commercial information to protect US and allies’ national security.
The collection of foreign private commercial information or trade secrets is authorized only to protect the national security of the United States or its partners an d allies. It is not an authorized foreign intelligence or counterintelligence purpose to collect such information to afford a competitive advantage 4 to U.S. companies and U.S. business sectors commercially.
This is, frankly, where our hypocrisy on hacking (and SIGINT) begins to fall apart, given that China would maintain that stealing our military (and energy and tech) secrets are a matter of national security, and the fact that our government maintains more nominal separation from the companies that develop such things than China does should not shield those companies from spying.
And then, finally, the limits on data collection don’t apply when the NSA is working to develop SIGINT capabilities.
it shall not apply to signals intelligence activities undertaken to test or develop signals intelligence capabilities.
Given that some of our alleged hacking seems to support efforts to develop new hacking capabilities, this exception could prove infinitely recursive, especially given the rules on information collection in the name of cyberdefense and attacks. And of course, when we exploited Siemens’ SCADA industrial control systems to attack Iran, we used a corporate competitor’s trade secrets in the name of national security.
That is, even ignoring how America’s self-interested standard simply defines our national security in terms that legitimize our own hacking, when you get into the interaction of our intelligence to hack which serves to collect intelligence, the rules on SIGINT basically fall apart.
But hey. If the US says hacking of official government secrets is “permissible,” then maybe DOJ will withdraw the charges against Edward Snowden?
Here are some excerpts from the Global Threats report pertaining to the cyber threat.
We assess that computer network exploitation and disruption activities such as denial-of-service attacks will continue.
… many countries are creating cyber defense institutions within their national security establishments. We estimate that several of these will likely be responsible for offensive cyber operations as well.
Critical infrastructure, particularly the Industrial Control Systems (ICS) and Supervisory Control and Data Acquisition (SCADA) systems used in water management, oil and gas pipelines, electrical power distribution, and mass transit, provides an enticing target to malicious actors. Although newer architectures provide flexibility, functionality, and resilience, large segments of legacy architecture remain vulnerable to attack, which might cause significant economic or human impact.
It’s as if the intelligence community called up NSA and CyberCommand, asked what they had been working on, and then “assessed” that those targets presented threats going forward.
And while I expect that China commits what would be judged the largest number of hacks (in part because much of the information we steal right from the communication backbone they would have to hack to get), the inclusion of SCADA in the list of vulnerabilities is particularly rich, considering we are believed to have pioneered that kind of attack with StuxNet.
Again, I’m not denying these other entities hack (the unclassified version of the report left off Israel and France, as unclassified versions tend to do). Just that we continue to exhibit no awareness that some part of this threat amounts to our genie blowing back in our face.