In February 2011, around the time the CIA took over the hunt for Anwar al-Awlaki, NSA started collaborating with Saudi Arabia’s Ministry of Interior’s (MOI) Technical Assistance Directorate (TAD), under the umbrella of CIA’s relationship with MOI (it had previously cooperated primarily with the Kingdom’s Ministry of Defense).
On August 15, 2011, hackers erased the data on two-thirds of the computers at Saudi Aramco; American sources claim Iran was the culprit.
On September 30, 2011, CIA killed Anwar al-Awlaki, using drones operated from a base on Saudi soil.
On November 5, 2012, King Abdullah named close John Brennan ally Mohammed bin Nayef (MbN) Minister of the Interior; MbN had for some time been our top counterterrorism partner in the Kingdom.
On December 11, 2012, James Clapper expanded NSA’s Third Party SIGINT relationship with the Kingdom of Saudi Arabia, for the first time formally including the Ministry of Interior’s Technical Affairs Directorate.
Between January 14 and 16, 2013 MbN traveled to Washington and met with just about every top National Security person (many of whom, including Brennan, were just assuming new jobs). On January 16, MbN and Hillary Clinton renewed and expanded the Technical Cooperation Agreement initiated in 2008. The TCA was modeled on the JECOR program used from the late 1970s until 2000 to recycle US dollars into development programs in Saudi Arabia; in this more recent incarnation, the Saudis recycle dollars into things like a 30,000 mercenary army and other military toys for internal stability and border control. Last year’s renewal — signed just over a month after Clapper made the Saudis full Third Person partners – added cybersecurity to the portfolio. The TCA — both the existing security resources and its expansion under close ally MbN — shored up the power base of one of our closest partners (and at a time when we were already panicking about Saudi succession).
In other words, in addition to expanding Saudi capabilities at a time when it has been cracking down on peaceful dissent, which is what the Intercept story on this document discusses, by giving the Saudi MOI Third Party status, we added to the power of a key ally within the royal family, and did so at a time when the TCA was already shoring up his power base.
We did so, the Information Paper makes clear, in part because MOI has access to internal Saudi telecommunications. While the Information paper talks about AQAP and Iran’s Republican Guard, they are also targeting Saudi targets.
And these new capabilities? They get coordinated through Chief of Station in Riyadh, the CIA. John Brennan’s agency.
It’s all very tidy, don’t you think?
Back in January, I focused on one of the most alarming disclosures of the 2009 phone dragnet problems, that 3,000 presumed US person identifiers were on an alert list checked against each day’s incoming phone dragnet data. That problem — indeed, many of the problems reported at the beginning of 2009 — arose because the NSA dumped their Section 215 phone dragnet data in with all the rest of their metadata, starting at least as early as January 4, 2008. It took at least the better part of 2009 for the government to start tagging data, so the NSA could keep data collected under different authorities straight, though once they did that, NSA trained analysts to use those tags to bypass the more stringent oversight of Section 215.
One thing that episode revealed is that US person data gets collected under EO 12333 (that’s how those 3,000 identifiers got on the alert list), and there’s redundancy between Section 215 and EO 12333. That makes sense, as the metadata tied to the US side of foreign calls would be collected on collection overseas, but it’s a detail that has eluded some of the journalists making claims about the scope of phone dragnet.
Since I wrote that early January post, I’ve been meaning to return to a remarkable exchange from the early 2009 documents between FISC Judge Reggie Walton and the government. In his order for more briefing, Walton raised questions about tasking under NSA’s SIGNIT (that is, EO 12333) authority.
The preliminary notice from DOJ states that the alert list includes telephone identifiers that have been tasked for collection in accordance with NSA’s SIGINT authority. What standard is applied for tasking telephone identifiers under NSA’s SIGINT authority? Does NSA, pursuant to its SIGINT authority, task telephone identifiers associated with United States persons? If so, does NSA limit such identifiers to those that were not selected solely upon the basis of First Amendment protected activities?
The question reveals how little Walton — who had already made the key judgments on the Protect America Act program 2 years earlier — knew about EO 12333 authority.
I’ve put NSA’s complete response below the rule (remember “Business Records” in this context is the Section 215 phone dragnet authority). But basically, the NSA responded,
The First Amendment claims in the last two bullets are pretty weak tea, as they don’t actually address First Amendment issues and contact chaining is, after all, chaining on associations.
That’s all the more true given what we know had already been approved by DOJ. In the last months of 2007, they approved the contact chaining through US person identifiers of already-collected data (including FISA data). They did so by modifying DOD 5240.1 and its classified annex so as to treat what they defined (very broadly) as metadata as something other than interception.
The current DOD procedures and their Classified Annex may be read to restrict NSA’s ability to conduct the desired communications metadata analysis, at least with respect to metadata associated with United States persons. In particular, this analysis may fall within the procedures’ definition of, and thus restrictions on, the “interception” and “selection” of communications. Accordingly, the Supplemental Procedures that would govern NSA’s analysis of communications metadata expressly state that the DOD Procedures and the Classified Annex do not apply to the analysis of communications metadata. Specifically, the Supplemental Procedures would clarify that “contact chaining and other metadata analysis do not qualify as the ‘interception’ or ‘selection’ of communications, nor do they qualify as ‘us[ing] a selection term,’ including using a selection term ‘intended to intercept a communication on the basis of. .. [some] aspect of the content of the communication.” Once approved, the Supplemental Procedures will clarify that the communications metadata analysis the NSA wishes to conduct is not restricted by the DOD procedures and their Classified Annex.
Michael Mukasey approved that plan just as NSA was dumping all the Section 215 data in with EO 12333 data at the beginning of 2008 (though they did not really roll it out across the NSA until later in 2009).
Nowhere in the government’s self-approval of this alternate contact chaining do they mention First Amendment considerations (or even the domestic activities language included in their filing to Walton). And in the rollout, they explicitly permitted starting chains with identifiers of any nationality (therefore presumably including US person) and approved the use of such contact chaining for purposes other than counterterrorism. More importantly, they expanded the analytical function beyond simple contact chaining, including location chaining.
All with no apparent discussion of the concerns a FISC judge expressed when data from EO 12333 had spoiled Section 215 data.
We will, I expect, finally start discussing how NSA has been using EO 12333 authorities — and how they’ve represented their overlap with FISA authorized collection. This discussion is an important place to start. Continue reading
Among the many posts I’ve written about Executive Order 12333 — the order that authorizes all non-domestic spying — includes this post, where I noted that proposed changes to NSA’s phone dragnet won’t affect programs authorized by EO 12333.
Obama was speaking only about NSA’s treatment of Section 215 metadata, not the data — which includes a great amount of US person data — collected under Executive Order 12333.
Section 215 metadata has different and significantly higher protections than EO 12333 phone metadata because of specific minimization procedures imposed by the FISC (arguably, the program doesn’t even meet the minimization procedure requirements mandated by the law). We’ve seen the implications of that, for example, when the NSA responded to being caught watch-listing 3,000 US persons without extending First Amendment protection not by stopping that tracking, but simply cutting off the watch-list’s ability to draw on Section 215 data.
Basically, the way NSA treats data collected under FISC-overseen programs (including both Section 215 and FISA Amendments Act) is to throw the data in with data collected under EO 12333, but add query screens tied to the more strict FISC-regulations governing production under it.
NSA’s spokeswoman will say over and over that “everyday” or “ordinary” Americans don’t have to worry about their favorite software being sucked up by NSA. But to the extent that collection happens under EO 12333, they have relatively little protection.
That’s precisely the point made in an important op-ed by the State Department’s former Internet freedom chief, John Napier Tye, who had access to data from EO 12333 collection.
Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.
Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders.
Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.
I’ve decided the best way to digest the collection of documents released by Spiegel this week is to do a working thread. You can find links to the individual files here, or a very big PDF of all files here.
Note they describe using XKeyscore for “behavior detection techniques.” Even in physical space, it’s not clear current science supports the validity of such behavior detection. But this involves using someone’s online behavior to translate “behavior” into suspicion.
In the list of topics they share on, there’s Der Spiegel has redacted the place in “Europeans traveling to [redacted] to fight.” That’s presumably Syria (though could be Somalia). It’d be interesting to see the lead time on this international sharing and the time it shows up in news articles.
Note the reference to using XKeyscore for (German) domestic warranted content.
In October 2011, SSG partnered with SUSLAG and BND to conduct a demonstration of XKEYSCORE to the BfV using BfV domestic warranted collection. The BND XKEYSCORE system successfully processed DSL wiretap collection belonging to a German domestic CT target.
I’ve long wondered whether they can use XKS for US domestic content. This would seem to suggest they can. It sort of makes you wonder whether they’d give XKS to telecoms under USA Freedumber?
Note the other documents describe the partnership primarily in terms of CT, but this document makes it clear it also includes transnational crime and counternarcotics, Afghan support, and one redacted topic.
Note cyber is something that is later described as something NSA is pushing (in January 2013) to get BND to partner on. This document describes IAD as leading discussions at this point (January 2013); but described a follow-up meeting with NTOC and FAD that same month.
Note Germany’s role in translating Igbo, left unredacted. This, and a number of other redacted references, seems to suggest the Germans play a key role in our collection and analysis of intelligence from Nigeria. Note, that might support the notion that one of the redacted sharing purposes is energy-related.
Germany appears to play a key role in our GSM collection. Note they also play a key role in VoIP, which may be why they were so interested in accessing Skype. Germany has already changed its privacy law to help us, but NSA isn’t satisfied. I’m reminded of US Ambassador to Germany Philip Murphy’s bitching about Germans not understanding the need to share information in the Internet era.
In 2012, Boundless Informant was going to soon roll out a “if you like this you’ll like this” query suggestion mode.
In his report on an interview with the new Director of NSA, Admiral Mike Rogers, David Sanger gets some operational details wrong, starting with his claim that the new phone dragnet would require an “individual warrant.”
The new phone dragnet neither requires “warrants” (the standard for an order is reasonable suspicion, not probable cause), nor does it require its orders to be tied to “individuals,” but instead requires “specific selection terms” that may target facilities or devices, which in the past have been very very broadly interpreted.
All that said, I am interested in Rogers’ claims Sanger repeats about NSA’s changing relationship with telecoms.
He also acknowledged that the quiet working relationships between the security agency and the nation’s telecommunications and high technology firms had been sharply changed by the Snowden disclosures — and might never return to what they once were in an era when the relationships were enveloped in secrecy.
Sadly, here’s where Sanger’s unfamiliarity with the details makes the story less useful. Publicly, at least, AT&T and Verizon have had significantly different responses to the exposure of the dragnet (though that may only be because Verizon’s name has twice been made public in conjunction with NSA’s dragnet, whereas AT&T’s has not been), and it’d be nice if this passage probed some of those details.
Telecommunications businesses like AT&T and Verizon, and social media companies, now insist that “you are going to have to compel us,” Admiral Rogers said, to turn over data so that they can demonstrate to foreign customers that they do not voluntarily cooperate. And some are far more reluctant to help when asked to provide information about foreigners who are communicating on their networks abroad. It is a gray area in the law in which American courts have no jurisdiction; instead, the agency relied on the cooperation of American-based companies.
Last week, Verizon lost a longstanding contract to run many of the telecommunications services for the German government. Germany declared that the revelations of “ties revealed between foreign intelligence agencies and firms” showed that it needed to rely on domestic providers.
After all, under Hemisphere, AT&T wasn’t requiring legal process even for domestic call records. I think it possible they’ve demanded the government move Hemisphere under the new phone dragnet, though if they have, we haven’t heard about it (it would only work if they defined domestic drug dealer suspects as associated with foreign powers who have some tie to terrorism). Otherwise, though, AT&T has not made a peep to suggest they’ll alter their decades-long overenthusiastic cooperation with the government.
Whereas Verizon has been making more audible complaints about their plight, long before the Germans started ending their contracts. And Sprint — unmentioned by Sanger — even demanded to see legal support for turning over phone data, including, apparently, turning over foreign phone data under ECPA;s exception in 18 U.S.C. § 2511(2)(f)‘s permitting telecoms to voluntarily provide foreign intelligence data.
Given that background — and the fact ODNI released the opinions revealing Sprint’s effort, if not its name — I am curious whether the telecoms are really demanding process. If courts really had no jurisdiction then it is unclear how the government could obligate production
Though that may be what the Microsoft’s challenge to a government request for email held in Ireland is about, and that may explain why AT&T and Verizon, along with Cisco and Apple — for the most part, companies that have been more reticent about the government obtaining records in the US — joined that suit. (In related news, EU Vice President Viviane Reding says the US request for the data may be a violation of international law.)
Well, if the Microsoft challenge and telecom participation in the request for data overseas is actually an effort to convince the Europeans these corporations are demanding legal process, Admiral Rogers just blew their cover.
Admiral Rogers said the majority of corporations that had long given the agency its technological edge and global reach were still working with it, though they had no interest in advertising the fact.
Dear Ireland and the rest of Europe: Microsoft — which has long been rather cooperative with NSA, up to and including finding a way to obtain Skype data — may be fighting this data request just for show. Love, Microsoft’s BFF, Mike Rogers.
As a number of people have noted, Germany canceled its contract with Verizon for network services provided to the government.
The German government on Thursday said it would end a contract with Verizon Communications Inc. because of concerns about network security, one of the most concrete signs yet that disclosures about U.S. spying were hurting American technology companies overseas.
Germany will phase out Verizon’s existing business providing communications services to government agencies by 2015, the Interior Ministry said. The winner in the decision:Deutsche Telekom, Verizon rival and German phone giant, which will take on those services.
The U.S. telecom giant has been trying to head off a Snowden backlash from overseas customers since at least last fall, when its U.S. staff created NSA talking points for its offshore sales team, two people familiar with the matter said. The talking points included assertions the U.S. government didn’t have direct access to Verizon’s offshore data centers, that Verizon obeys local laws in whatever country it operates and that NSA data requests go through American judicial review, the people said.
For it’s part, Verizon offered non-denial denials to questions about whether the US demanded foreign data from Verizon.
Detlef Eppig, head of Verizon’s German unit Verizon Germany said on Thursday: “Verizon Germany is a German company and we comply with German law.”
Verizon did not receive any demands from Washington in 2013 for data stored in other countries, the company said.
“The U.S. government cannot compel us to produce our customers’ data stored in data centres outside the U.S., and if it attempts to do so, we would challenge that attempt in a court,” it added.
The firm declined to comment on whether there had been requests in previous years.
Remember, starting in 2009, the phone dragnets specifically state that Verizon should not turn over foreign data under the phone dragnet (presumably in part, other details suggest, because obtaining the data under Section 215 would impose closer controls on the data).
This is interesting on its face.
But I’m most interested in how this is going to affect Verizon’s stance towards US dragnets going forward. Already, it has been probably the most reluctant of the telecoms since Snowden’s leaks started. I even suspect that may have been one reason to split with Vodaphone.
There’s reason to believe USA Freedumber primarily serves to obtain all of Verizon’s cell data, which is the most important cell provider. And in a recent hearing, Verizon pushed back hard against being asked to retain their data, even while Senators seemed inclined to require it.
The phone dragnet debate is, to a significant extent, a negotiation between Verizon and the government.
And it just got put into the same position as all the PRISM providers –the cloud providers – where it is losing international business because of US demands. Which means, for the first time (even since 2008, where Internet companies tried to deny the telecoms which had been stealing from them immunity), a telecom has increasing reason to push back against the inevitable momentum toward crappy legislation.
It’s clear today’s decision in Riley v. California will be important in the criminal justice context. What’s less clear is its impact for national security dragnets.
To answer the question, though, we should remember that question really amounts to several. Does it affect the existing phone dragnet, which aspires to collect the phone records of every person in the US? Does it affect the government’s process of collecting massive amounts of data from which to cull an individual’s data to make up a “fingerprint” that can be used for targeting and other purposes? Will it affect the program the government plans to implement under USA Freedumber, in which the telecoms perform connection-based chaining for the NSA, and then return Call Detail Records as results? Does it affect Section 702? I think the answer may be different for each of these, though I think John Roberts’ language is dangerous for all of this.
In any case, Roberts wants it to be unclear. This footnote, especially, claims this opinion does not implicate cases — governed by the Third Party doctrine — where the collection of data is not considered a search.
1Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.
Orin Kerr reads this as addressing the mosaic theory directly – which holds that a Fourth Amendment review must consider the entirety of the government collection — (and he is the expert, after all). Though I’m not impressed with his claim that the analogue language Roberts uses directly addresses the mosaic theory; Kerr seems to be arguing that because Roberts finds another argument unwieldy, he must be addressing the theory that Kerr himself finds unwieldy. Moreover, in addition to this section, which Kerr says supports the Mosaic theory,
An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a stand-ard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 565 U. S. ___, ___ (2012) (SOTOMAYOR, J., concurring) (slip op., at 3) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”).
I think the paragraph below it also supports the Mosaic theory — particularly its reference to a “revealing montage of the user’s life.”
Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.
I’d argue that the opinion as a whole endorses the notion that you need to assess the totality of the surveillance in question. But then the footnote adopts the awkward phrase, “collection or inspection of aggregated digital information,” to suggest there may be some arrangement under which the conduct of such analysis might not constitute a search requiring a higher standard. (And all that still leaves the likely possibility that the government would scream “special need” and get an exception to get the data anyway; as they surely will do to justify ongoing border searches of computers.)
Of crucial importance, then, Roberts seems to be saying that it might be okay to conduct mosaic analysis, depending on where you get the data and/or whether you actually obtain or instead simply inspect the data.
That’s crucial, of course, because the government is, as we speak, replacing a phone dragnet in which it collects all the data from everyone and analyzes it (or rather, claims to only access only a minuscule portion of it, claiming to do so only through phone-based contacts) with one where it will go to “inspect” the data at telecoms.
So Roberts seems to have left himself an out (or included language designed to placate even Democrats like Stephen Breyer, to say nothing of Clarence Thomas, to achieve unanimity) that happens to line up nicely with where the phone dragnet, at least, is heading.
All that said, Robert’s caveat may not be broad enough to cover the new-and-improved phone dragnet as the government plans to implement it. After all, the “connection” based analysis the government intends to do may only survive via some kind of argument that letting telecoms serve as surrogate spooks makes this kosher under the Fourth Amendment. Because we have every reason to expect that the NSA intends to — at least — tie multiple online and telecom identities together to chain on all of them, and use cell location to track who you meet. And they may well (likely, if not now, then eventually) intend to use things like calendars and address books that Roberts argues makes cell phones not cell phones, but minicomputers that serve as “cameras,video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Every single one of those minicomputer functions is a potential “connection” based chain.
So while the new-and-improved phone dragnet may fall under Roberts’ “inspect” language, it involves far more yoking of the many functions of cell phones that Roberts finds to be problematic.
Then there’s this passage, that Roberts used to deny the government the ability to “just” get call logs.
We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log,as they did in Wurie’s case. The Government relies on Smith v. Maryland, 442 U. S. 735 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745–746. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case. [my emphasis]
The first part of this passage makes a similar kind of distinction as you see in that footnote (and may support my suspicion that Roberts is trying to carve out space for the new-and-improved phone dragnet). Using a pen register at a telecom is not a search, because it doesn’t involve seizing the phone itself.
But the second part of this passage — which distinguishes between pen registers and call logs — seems to be the most direct assault on the Third Party doctrine in this opinion, because it suggests that data that has been enhanced by a user — phone numbers that are not just phone numbers – may not fall squarely under Smith v. Maryland.
And that’s important because the government intends to get far more data than phone numbers while at the telecoms under the new-and-improved phone dragnet. It surely at least aspires to get logs just like the one Roberts says the cops couldn’t get from Wurie.
Think, too, of how this should limit all the US person data the government collects overseas that the government then aggregates to make fingerprints, claiming incidentally collected data does not require any legal process. That data is seized not from telecoms but rather stolen off cables — does that count as public collection or seizure?
Perhaps the language that presents the most sweeping danger to the dragnet, however, is the line that both Kerr and I like best from the opinion.
Alternatively, the Government proposes that law enforcement agencies “develop protocols to address” concerns raised by cloud computing. Reply Brief in No. 13–212, pp. 14–15. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.
Admittedly, Roberts is addressing a specific issue, the government’s proposal of how to protect personal data stored on a cloud that might be accessed from a phone (as if the government gives a shit about such things!).
But the underlying principle is critical. For every single dragnet program the government conducts at NSA, it dismisses obvious Fourth Amendment concerns by pointing to minimization procedures.
The FISC allowed the government to conduct the phone dragnet because it had purportedly strict minimization procedures (which the government ignored); it allowed the government to conduct an Internet dragnet for the same reason; John Bates permitted the government to address domestic content collection he deemed a violation of the Fourth Amendment with new minimization procedures; and the 2008 FISCR opinion approving the Protect America Act (which FISCR and the government say covers FAA as well) relied on targeting and minimization procedures to judge it compliant with the Fourth Amendment. FISC is also increasingly using minimization procedures to deem other Section 215 collections compliant with the law, though we know almost nothing about what they’re collecting (though it’s almost certain they involve Mosaic collection).
Everything, everything, ev-er-y-thing the NSA does these days complies with the Fourth Amendment only under the theory that minimization procedures — “government agency protocols” — provide adequate protection under the Fourth Amendment.
It will take a lot of work, in cases in which the government will likely deny anyone has standing, with SCOTUS’ help, to make this argument. But John Roberts said today that the government agency protocols that have become the sole guardians of the Fourth Amendment are not actually what our Founders were thinking of.
Ultimately, though, this passage may be Roberts’ strongest condemnation — whether he means it or not — of the current dragnet.
Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself.
Roberts elsewhere says that cell searches are more intrusive than home searches. And by stealing and aggregating that data that originates on our cell phones, the government is indeed rummaging in unrestrained searches for evidence of criminal activity or dissidence. Roberts likely doesn’t imagine this language applies to the NSA (in part because NSA has downplayed what it is doing). But if anyone ever gets an opportunity to demonstrate all that NSA does to the Court, it will have to invent some hoops to deem it anything but digital rummaging.
I strongly suspect Roberts believes the government “inspects” rather than “rummages,” and so believes his opinion won’t affect the government’s ability to rummage, at least at the telecoms. But a great deal of the language in this opinion raises big problems with the dragnets.
Later that day, EFF Legal Director Cindy Cohn emailed her contact at DOJ, Marcia (Marcy) Berman, saying,
Jewel plaintiffs are okay with [a deadline extension] if the government can assure us that no additional information will be destroyed in the meantime.
As you can see, we went ahead and filed [the motion on spoliation].
The following Monday, after Cohn asked Berman, “Does that mean no additional information will be destroyed in the meantime?” Berman answered,
What it means is that we have already explained in our opening brief that we are in compliance with our preservation obligations and do not feel that we should have to make any further assurances or undertakings to accommodate plaintiffs’ need for additional time.
Later that day, Cohn reminded Berman that the Temporary Restraining Order covering destruction of information “including but not limited to … telephone metadata” remained in place. Cohn continued,
You appear to be saying that routine destruction of post-FISC material is continuing to occur regardless of the TRO; please confirm whether this is correct.
Berman responded, obliquely, yes.
The Court is presently considering whether the Government must preserve material obtained under Section 702 of FISA in the context of the Jewel/Shubert litigation. In the meantime, pending resolution of the preservation issues in this case, we have been examining with our clients how to address the preservation of data acquired under the Section 702 program in light of FISC imposed data retention limits (even though we disagree that the program is at issue in Jewel and Shubert).
Hoffman wrote a bunch more about “technical” “classified” blah blah blah, which I’ll return to, because I think it’s probably significant.
I can’t think of a more relevant NSA practice to a suit that relies significantly on Mark Klein’s whistle-blowing about the room where AT&T diverted and copied large amounts of telecom traffic than upstream 702 collection, in which AT&T and other telecom providers divert and copy large amounts of telecom traffic. While I’m not certain this evidence pertains to upstream — and not PRISM — EFF suggests that is included.
In communications with the government this week, plaintiffs learned to their surprise that the government is continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the Foreign Intelligence Surveillance Act. This would include evidence relating to its use of “splitters” to conduct bulk interceptions of the content of Internet communications from the Internet “backbone” network of AT&T, as described in multiple FISC opinions and in the evidence of Mark Klein and J. Scott Marcus, ECF Nos. 84, 85, 89, 174 at Ex. 1
If it is, then it seems all the more damning, given that upstream collection is the practice that most obviously violates the ban on wiretapping Americans in the US.
EFF filed a motion accusing the government of illegally destroying evidence. And the government’s response was to destroy more evidence.
Update: The government has asked for an emergency stay of the Court’s June 5 order (which is actually a March 10 order, but the government doesn’t admit that) because NSA says so.
Undersigned counsel have been advised by the National Security Agency that compliance with the June 5, 2014 Order would cause severe operational consequences for the National Security Agency (NSA’s) national security mission, including the possible suspension of the Section 702 program and potential loss of access to lawfully collected signals intelligence information on foreign intelligence targets that is vital to NSA’s foreign intelligence mission
There’s something funky here — perhaps that some of this actually belongs to GCHQ? I dunno — which is leading the government to be so obstinate. Let’s hope we learn what it is.
Update: And EFF objected to DOJ’s request for a stay, pointing out what I did: that what they’re really asking for is blessing for ignoring the March 10 order.
The ACLU and EFF FOIAs for Section 215 documents are drawing to a head. Later this week, EFF will have a court hearing in their suit. And last Friday, the government renewed its bid for summary judgment in the ACLU case.
Both suits pivot on whether the government’s past withholdings on Section 215 were in good faith. Both NGOs are arguing they weren’t, and therefore the government’s current claims — that none of the remaining information may be released — cannot be treated in good faith. (Indeed, the government likely released the previously sealed NSA declaration to substantiate its claim that it had to treat all documents tying NSA to the phone dragnet with a Glomar because of the way NSA and DOJ respectively redact classification mark … or something like that.)
But the government insists it is operating in good faith.
Instead, the ACLU speculates, despite the government’s declarations to the contrary, that there must be some non-exempt information contained in these documents that could be segregated and released. In an attempt to avoid well-established law requiring courts to defer to the government’s declarations, especially in the area of national security, the ACLU accuses the government of bad faith and baldly asserts that the government’s past assertions regarding segregability—made before the government’s discretionary declassification of substantial amounts of information regarding its activities pursuant to Section 215— “strip the government’s present justifications of the deference due to them in ordinary FOIA cases.” ACLU Br. at 25. The ACLU’s allegations are utterly unfounded. For the reasons set forth below, the government’s justifications for withholding the remaining documents are “logical and plausible,”
EFF and ACLU have focused closely on a August 20, 2008 FISC order describing a method to conduct queries; I have argued it probably describes how NSA makes correlations to track correlations.
The government is refusing to identify 3 orders it has already identified
But — unless I am badly mistaken, or unless the government mistakenly believes it has turned over some of these orders, which is possible! — I think there are three other documents being withheld (ones the government hasn’t even formally disclosed to EFF, even while pretending they’ve disclosed everything to EFF) that raise questions about the government’s good faith even more readily: the three remaining phone dragnet Primary Orders from 2009. All three have been publicly identified, yet the government is pretending they haven’t been. They are:
BR 09-09, issued on July 8, 2009. Not only was this Primary Order identified in paragraph 3 of the next Primary Order, but it was discussed extensively in the government’s filing accompanying the end-to-end report. In addition, the non-approval of one providers’ metadata (I increasingly suspect Sprint is the provider) for that period is reflected in paragraph 1(a) of that next Primary Order.
BR 09-15, issued on October 30, 2009. The docket number and date are both identified on the first page of this supplemental order.
BR 09-19, issued on December 16, 2009. It is mentioned in paragraph 3 of the next Primary Order. The docket number and the date are also referred to in the documents pertaining to Sprint’s challenge recently released. (See paragraph 1 and paragraph 5 for the date.)
Thus, the existence of all three Primary Orders has been declassified, even while the government maintains it can’t identify them in the context of the FOIAs where they’ve already been declassified.
The government has segregated a great deal of the content of BR 09-09
The government’s withholding of BR 09-09 is particularly ridiculous, given how extensively the end-to-end motion details it. From that document, we learn:
Significant parts of at least 13 pages of the Primary Order (the next Primary Order is 19 pages long) have already been deemed segregable and released. Yet the government now appears to be arguing, while claiming it is operating in good faith, that none of these items would be segregable if released with the order itself!
Wildarse speculation about why the government is withholding these orders
Which raises the question of why. Why did the government withhold these 3 orders, alone among all the known regular Primary Orders from the period of EFF and ACLU’s FOIAs? (See this page for a summary of the known orders and the changes implemented in each.)
The reason may not be the same for all three orders. BR 09-09 deals with two sensitive issues — the purging of credit card information and tech personnel access — that seem to have been resolved with that order (at least until the credit card problems returned in March 2011).
But there are two things that all three orders might have in common.
First, BR 09-09 deals closely with dissemination problems — the ability of CIA and FBI to access NSA results directly, and the unfettered sharing of information within NSA. BR 09-15 lays out new dissemination rules, with the supplement in November showing NSA to still be in violation. So it’s likely all 3 orders deal with dissemination violations (and therefore with poison fruit of inappropriate dissemination that may still be in the legal system), and that the government is hiding one of the more significant aspects of the dragnet violations by withholding those orders.
I also think it’s possible the later two (potentially all three, but more likely the later two) orders combine the phone and Internet dragnets. That’s largely because of timing: A June 22, 2009 order — the first one to deal with the dissemination problems formally addressed in BR 09-09 — dealt with both dragnets. There is evidence the Internet dragnet data got shut down (or severely restricted) on October 30, 2009, the date of BR 09-15. And according to the 2010 John Bates Internet dragnet opinion, NSA applied to restart the dragnet in late 2009 (so around the time of BR 09-19). So I think it possible the later orders, especially, deal with both programs, thereby revealing details about the legal problems with PRTT the government would like to keep suppressed. (Note, if BR 09-15 and BR 09-19 are being withheld because they shut down Internet production, it would mean all three orders shut down some production, as BR 09-09 shut down one provider’s telephone production.)
Another possibility has to do with the co-mingling of EO 12333 and Section 215 data. These three orders all deal with the fact that providers (at least Verizon, but potentially the other two as well) had included foreign-to-foreign phone records along with the production of their domestic ones.That’s the reason production from one provider got shut down in BR 09-09. And immediately after the other withheld records, the Primary Orders always included a footnote on what to do with EO 12333 data turned over pursuant to BR FISA orders (see footnote 7 and footnote 10 for examples). Also, starting in March 2009, the Orders all contain language specifically addressing Verizon. So we know the FISC was struggling to come up with a solution for the fact that NSA had co-mingled data obtainable under EO 12333 and data the telecoms received PATRIOT Act orders from. (I suspect this is why Sprint insisted on legal cover, ultimately demanding the legal authorization of the program with the December order.) So it may be that all these orders reveal too much about the EO 12333 dragnet — and potential additional violations — to be released.
Whatever the reason, there is already so much data in the public domain, especially on BR 09-09, it’s hard to believe withholding it is entirely good faith.
On Friday, ACLU got a mystery declaration in their FOIA lawsuit for Section 215 records: a declaration from NSA Deputy Associate Director for Policy and Records Diane Janosek. It was filed back on February 8, 2013, along with a bunch of FBI declarations, though it was not reflected in the docket. In it, Janosek basically explains why certain documents pertaining to the phone dragnet were effectively being Glomared because they revealed the NSA’s involvement in the phone dragnet. It was just handed over, presumably because the claim it classified anymore is so nonsensical.
Still, there are details, particularly pertaining to the Internet dragnet program, that I find to be of particular interest.
The declaration invokes the Internet dragnet in a footnote, noting that several of the documents being withheld pertain to that too.
It notes that “several” of the documents also address the Internet metadata. We’ve seen a number of these: PATRIOT-Reauthorization notices to Congress, some training programs, a few FISC documents from 2009, as well as the opinions from Colleen Kollar-Kotelly and John Bates authorizing bulk collection under Section 402.
The footnote notes that “NSA’s PR/TT FISA program” was discontinued. Immediately thereafter, there’s a full redacted sentence, followed by a partially redacted sentence making it clear that some similar source of collection remains active.
Several pages later, there’s a similar reference explaining why NSA can’t disclose the PRTT program even though it has been discontinued.
Similarly, while NSA no longer collects NSA metadata pursuant to section 402 of the FISA, the Agency does [over a line redacted].
In other words, the NSA argued they couldn’t reveal the defunct Internet dragnet because it still collects Internet metadata, just via other means.
Which is why I’m interested in another redaction, in a paragraph full of the things they’re trying to hide: the types of metadata they get, that “records of our adversaries’ communications are vulnerable to NSA collection operations,” and that they were collecting under USA PATRIOT [redacted].
I think it’s possible that redaction hides the new authority under which they’re conducting Internet dragnet. FISA Amendments Act (or FAA) wouldn’t seem to fit. EO 12333 might.
Mind you, all that’s separate (maybe) from the question of whether FBI has its own PRTT program it feeds to the NSA, as NSA’s own classification guide indicated it did.
One thing is fairly clear: the Internet dragnet isn’t dead. It moved somewhere or somewheres. We just don’t know where yet.