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John Bates Gets Slapped Down for Speaking Out of Turn, Again

A few weeks back, I pointed to 9th Circuit Chief Judge Alex Kozinski’s criticism of John Bates’ presumption to speak for the judiciary in his August 5 letter complaining about some aspects of USA Freedom Act. Kozinski was pretty obviously pissed.

But compared to the op-ed from retired District Court Judge Nancy Gertner – who effectively scolds Bates, as the Administrative staff, speaking out of turn — Kozinski was reserved.

[W]hatever the merits of Bates’ concerns—and other judges have dissented from it—he most assuredly does not speak for the Third Branch.


Bates has been appointed by Chief Justice John Roberts to serve as director of the Administrative Office of the U.S. Courts, the body that administers the federal courts. It was created in 1939 to take the administration of the judiciary out of the Department of Justice. Its principal tasks were data collection and the creation of budgets and, while its duties have grown over the years, they remain administrative (dealing with such things as court reporters, interpreters, judicial pay, maintenance of judicial buildings, staffing etc.).

When members of Congress solicit the “judiciary’s” opinion they may write to the office’s director, but he has no authority to make policy for the federal judiciary. It is the Judicial Conference of the United States Courts, to which the AO director is only the “secretary,” that has that responsibility.

I’m very supportive of Gertner’s defense of judicial independence and her concern about the operation of the FISA Court.

But her critique goes off the rails when she points to DOJ’s purported support of USA Freedom Act as a better indication of the Executive’s views than Bates’ comments.

Moreover, a great deal of Bates’ letter focuses on the Senate proposals’ impact on the executive branch and the intelligence community. The Senate bill would burden the executive with more work and even delay the FISA court’s proceedings, he suggests. Worse yet, the executive may be reluctant to share information with an independent advocate—a troubling claim.

Bates’ concerns are belied by the support voiced by the Department of Justice and the president for the Senate proposal. Surely, the executive branch understands its own needs better than does Bates. Surely, the executive branch has confidence in the procedures that the FISA court would have in place for dealing with classified information, just as the courts that have dealt with other national security issues have had.

And surely, the executive would abide by what the law requires, notwithstanding Bates’ predictions about its “reluctance” to share information with a special advocate.

DOJ’s “support” of the bill was expressed when Eric Holder co-signed a letter (which Gertner tellingly doesn’t mention, much less link) from James Clapper which, when read with attention, clearly indicated the Executive would interpret the bill to be fairly permissive on most of the issues on which the Senate bill would otherwise improve on the House one. Holder’s “support” of the bill strongly indicates that DOJ, with ODNI, plans to use the classification and privilege “protections” in the bill to refuse to share information with the special advocate.

And that’s precisely the part of the letter where Holder and Clapper invoke Bates.

Continue reading

A Yahoo! Lesson for USA Freedom Act: Mission Creep

I’m still wading through the Yahoo documents released last week.

But there is a lesson in them that — given the debate over USA Freedom Act — deserves immediate attention: mission creep.

At least in this case, the actual implementation of the Protect America Act appears to have quickly and secretly outstripped the public understanding surrounding of the scope of the law.

In response to an order from Reggie Walton to provide precise details about what the government was asking for provide hints of this, the FBI and Yahoo submitted a series of declarations. In January 2008, an FBI engineer submitted a declaration detailing what the government demanded (though it is almost entirely redacted).

In response, Yahoo’s VP and Associate General Counsel submitted a declaration covering his (or her) involvement; he was the only one who attended all the meetings with the government. Interestingly the first meeting was in August, but before the law was passed. That’s interesting because it was slammed through in a rush on August 4, 2007, meaning, Yahoo must have first met with the government about a bill making dramatic demands on it just days before it passed.

The AGC ends his declaration by laying out what data had been discussed while he was involved, but then saying the discussions about a particular issue had not ended when he exited the discussions, so he could not agree with or disagree with some part of the FBI declaration.

In a declaration dated the next day, the Manager of Yahoo’s Legal Compliance team (the declaration describes that he or she had the lead on FISA response) submitted her declaration. It says she will be listing the kinds of data Yahoo provides to the government.

But before she can do that, she has to lay out that Yahoo offers email and IMs, information services (like Yahoo finance), cloud storage, as well as facilitating all that with communications between the various components. That suggests the government was — already — asking for more than just emails and IMs and, possibly, data storage contents (which would be unsurprising). This seems to be the stuff the AGC couldn’t speak to.

The final FISCR opinion listed 9 things the government had demanded, as compared to the one-line long description that Yahoo originally believed — and had been told — it would have to turn over.

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I followed the PAA debate closely (though not as closely as I’ve followed the USAF debate — I learned you have to watch these things like a hawk!). And I understood the chief goal of the bill was to access the email of the largest free providers, Yahoo, Microsoft, and Google, which all happened to be in the US. I wouldn’t have imagined that the government would also be obtaining the info services habits of targets, though now that idea also seems obvious.

And that appears to have happened in less than a year.

It just appears that once the government got what they needed, they then started looking around for other ways they could use their new toy. And so kept grabbing more data.

This is among the concerns I have about the ambiguous language in USA Freedom Act’s “connection chaining” language — that once they get to the telecoms without a limit to stick to call chaining (they must return a CDR at each stage, but the bill doesn’t say how they get there), they’ll just grab what they can get.

Transpartisan Coalition Calls on Senate for More NSA Reform

Apparently, I’m not the only one who thinks USA Freedom Act does not do enough to reform the dragnet.

A transpartisan coalition of people and organizations — including whistleblowers Bill Binney, Thomas Drake, Dan Ellsberg, Mark Klein, Ed Loomis and Kirk Wiebe — just released a letter calling out the problems with the bill. The letter starts,

We, the undersigned civil liberties advocates, organizations, and whistleblowers, are alarmed that Senator Leahy’s recently introduced bill, the USA FREEDOM Act (S. 2685), legalizes currently illegal surveillance activities, grants immunity to corporations that collaborate to violate privacy rights, reauthorizes the PATRIOT Act for an additional 2.5 years, and fails to reform EO 12333 or Section 702, other authorities used to collect large amounts of information on Americans. For these reasons, we encourage both the House and the Senate to oppose this legislation in its current form.

I hope reform supporters in Congress take this call for more meaningful reform seriously!

The Curious Timing of FBI’s Back Door Searches

The very first thing I remarked on when I read the Yahoo FISCR opinion when it was first released in 2009 was this passage.

The petitioner’s concern with incidental collections is overblown. It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.9 See, e.g., United States v. Kahn, 415 U.S. 143, 157-58 (1974); United States v. Schwartz, 535 F.2d 160, 164 (2d Cir. 1976). The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26 in original release; 30 in current release)

The government claimed to FISCR that it did not maintain a database of incidentally collected information from non-targeted US persons.

Barring some kind of neat parse, I didn’t buy the claim, not even in 2009.

Since then, we’ve found out that — barring some kind of neat parse — I was absolutely right. In fact, they are doing back door searches on this data, especially at FBI.

What I’m particularly intrigued by, now, is the timing.

FISCR said that in an opinion dated August 22, 2008 — over a month after the July 10, 2008 passage of the FISA Amendments Act. I have not yet found evidence of when the government said that to FISCR. It doesn’t appear in the unredacted part of their Jun 5, 2008 Merits brief (which cites Kahn but not Schwartz; see 49-50), though it might appear behind the redaction on 41. Of note, the April 25, 2008 FISC opinion doesn’t even mention the issue in its incidental collection discussion (starting at 95), though it does discuss amended certifications filed in February 2008.

So I’m guessing the government made that representation at the hearing in June, 2008.

We know, from John Bates’ rationale for authorizing NSA and CIA back door searches, such back door searches were first added to FBI minimization procedures in 2008.

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

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

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

The FBI Minimization procedures submitted with the case all date to the 1990s, though a 2006 amendment changing how they logged the identities of US persons collected (note, in 2011, John Bates was bitching at FBI for having ignored an order to reissue all its minimization procedures with updates; I can see why he complained).

As described in the Government’s response of June 16, 2006, identities of U.S. persons that have not been logged are often maintained in FBI databases that contain unminimized information. The procedures now simply refer to “the identities” of U.S. persons, acknowledging that the FBI may not have previously logged such identities.

But there’s reason to believe the FBI minimization procedures — and this logging process — was changed in 2008, because a government document submitted in the Basaaly Moalin case — we know Moalin was wiretapped from December 2007 to April 2008, so during precisely the period of the Yahoo challenge, though he was not indicted until much later – referenced two sets of minimization procedures, seeming to reflect a change in minimization during the period of his surveillance (or perhaps during the period of surveillance of Aden Ayro, which is how Moalin is believed to have been identified).

That is, it all seems to have been happening in 2008.

The most charitable guess would be that explicit authorization for back door searches happened with the FAA, so before the FISCR ruling, but after the briefing.

Except in a letter to Russ Feingold during early debates  on the FAA, Mike Mukasey and Mike McConnell (the latter of whom was involved in this Yahoo fight) strongly shot down a Feingold amendment that would have required the government to segregate all communications not related to terrorism (and a few other things), and requiring a FISA warrant to access them.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.

Then it launches into a tirade that lacks any specifics:

It would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable.

As Feingold already pointed out, the government has segregated the information they collected under PAA–they’re already doing this. But to justify keeping US person information lumped in with foreign person information, they offer no affirmative reason to do so, but only say it’s too difficult and so they refuse to do it.

Even 5 years ago, the language about the “devastating impact” segregating non-terrorism data might have strongly suggested the entire point of this collection was to provide for back door searches.

But that letter was dated February 5, 2008, before the FISCR challenge had even begun. While not definitive, this seems to strongly suggest, at least, that the government planned — even if it hadn’t amended the FBI minimization procedures yet — to retain a database of incidentally data to search on, before the government told FISCR they did not.

Update: I forgot a very important detail. In a hearing this year, Ron Wyden revealed that NSA’s authority to do back door searches had been closed some time during the Bush Administration, before it was reopened by John “Bates stamp” Bates.

Let me start by talking about the fact that the House bill does not ban warrantless searches for Americans’ emails. And here, particularly, I want to get into this with you, Mr. Ledgett if I might. We’re talking of course about the backdoor search loophole, section 702 of the FISA statute. This allows NSA in effect to look through this giant pile of communications that are collected under 702 and deliberately conduct warrantless searches for the communications of individual Americans.  This loophole was closed during the Bush Administration, but it was reopened in 2011, and a few months ago the Director of National Intelligence acknowledged in a letter to me that the searches are ongoing today. [my emphasis]

When I noted that Wyden had said this, I guessed that the government had shut down back door searches in the transition from PAA to FAA, but that seems less likely, having begun to review these Yahoo documents, then that it got shut down in response to the hospital confrontation.

But it shows that more extensive back door searches had been in place before the government implied to the FISCR that they weren’t doing back door searches that they clearly were at least contemplating at that point. I’d really like to understand how the government believes they didn’t lie to the FISCR in that comment (though it wouldn’t be the last time they lied to courts about their databases of Americans).

If Patrick Leahy Wants to End Bulk Collection, He Needs to Amend His USA Freedom Act

The other day, the government obtained another Primary Order to collect all our phone records.

In response, Senator Patrick Leahy released this statement:

Congress must ensure that this is the last time the government requests and the court approves the bulk collection of Americans’ records.  We can make this a reality in the Senate if we act swiftly to pass the bipartisan USA FREEDOM Act.  Stakeholders from across the political and ideological spectrum have urged us for months to do just that.  We cannot wait any longer, and we cannot defer action on this important issue until the next Congress.  This announcement underscores, once again, that it is time for Congress to enact meaningful reforms to protect individual privacy.

I heartily agree with Leahy that the government has to stop obtaining authorization to collect Americans’ records in bulk.

But I think Leahy is misleading when he says we can “make this a reality” by passing USA FREEDOM Act — at least as currently written. While USA Freedom Act prohibits the government from collecting Americans’ phone records in bulk, it doesn’t prevent the government from collection Americans’ records from non-communications companies in what normal people would call bulk.

The language in the bill prohibiting the use of a company name as a selector only applies to electronic communication service providers.

(II) a term identifying an electronic communication service provider (as that term is defined in section 701) or a provider of remote computing service (as that term is defined in section 2711 of title 18, United States Code), when not used as part of a specific identifier as described in clause (i), unless the provider is itself a subject of an authorized investigation for which the specific selection term is used as the basis of production.

The limit of this language to communications companies makes it clear that the bill envisions the use of a corporate person (persons are permitted for traditional Section 215 orders) names — so long as they aren’t communications providers — as a selector. You can’t get all records from Verizon, as the government does, but you can get all one-side foreign records from Western Union, as the government also currently does.

In this case, the secret surveillance court has authorized the Federal Bureau of Investigation to work with the CIA to collect large amounts of data on international transactions, including those of Americans, as part of the agency’s terrorism investigations.

The data collected by the CIA doesn’t include any transactions that are solely domestic, and the majority of records collected are solely foreign, but they include those to and from the U.S., as well. In some cases, it does include data beyond basic financial records, such as U.S. Social Security numbers, which can be used to tie the financial activity to a specific person. That has raised concerns among some lawmakers who learned about the program this summer, according to officials briefed on the matter.

Former U.S. government officials familiar with the program said it has been useful in discovering terrorist relationships and financial patterns. If a CIA analyst searches the data and discovers possible suspicious terrorist activity in the U.S., the analyst provides that information to the FBI, a former official said.


The data is obtained from companies in bulk, then placed in a dedicated database. Then, court-ordered rules are applied to “minimize,” or mask, the information about people in the U.S. unless that information is deemed to be of foreign-intelligence interest, a former U.S. official said.

Moreover, even if this is the only financial program that exists right now, the only limit on such programs would be the imagination of the Intelligence Community and the indulgence of the FISA Court. James Clapper and John Bates both objected to interpreting the transparency provisions of USAF to include similar applications to new targets. Particularly as the fearmongering surrounding ISIS increases, they’ll be ratcheting up the domestic spying again.

In any case, there is abundant reason to believe the government also collects the records of certain bomb precursors — fertilizer, acetone and hydrogen peroxide in large quantities, and pressure cookers — to cross-reference with suspect targets. And while the government collects flight information directly, there may well be bulk travel record collection as well.

The bill enables this kind of bulk collection in its “transparency” provisions as well. Those provisions only conduct individualized counts for communications related orders under traditional Section 215, not for non-communications related orders.

(D) the total number of orders issued pursuant to applications made under section 501(b)(2)(B) and a good faith estimate of—
(i) the number of targets of such orders;
(ii) the number of individuals whose communications were collected pursuant to such orders; and
(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;

This is obviously all by design (otherwise these two passages wouldn’t have this symmetry). And perhaps all it does is serve to hide this one (probably two, maybe three) programs. But again, there’s no guarantee that won’t change in the future, and the transparency provisions don’t do enough to ensure  this would be properly briefed.

Of course the fix for this would be easy: extend the same prohibition against using a corporate person as a selector to all corporate persons, and extend the individualized reporting under traditional Section 215 to all Section 215 orders.

If Senator Leahy wants to prevent bulk collection, he needs to treat tangible things — the name of the provision at hand!!! — of all sorts, communications and non-communications — as the bill currently treats just communications-related orders.

Hate to Tell SSCI I Told Them So, John Brennan Lying and Spying Edition

The morning of John Brennan’s confirmation hearing, I posted what I deemed the 5 most important questions to ask him. Three were: Will you stop lying, how much of Dick Cheney’s illegal wiretap program did you run, and will you permit CIA to spy on Americans.

1) Do you plan to continue lying to Americans?

You have made a number of demonstrable lies to the American people, particularly regarding the drone program and the Osama bin Laden raid. Most egregiously in 2011, you claimed “there hasn’t been a single collateral death” in almost a year from drone strikes; when challenged, you revised that by saying, “the U.S. government has not found credible evidence of collateral deaths,” even in spite of a particularly egregious case of civilian deaths just months earlier. On what basis did you make these assertions? What definition of civilian were you using in each assertion? (More background)

In addition, in a speech purportedly offering transparency on the drone program, you falsely suggested we know the identities of all people targeted by drones. Why did you choose to misrepresent the kind of intelligence we use in some strikes?


4) What role did you have in Bush’s illegal wiretap program?The joint Inspector General report on the illegal wiretap program reported that entities you directed — the Terrorist Threat Integration Center in 2003 and 2004, and the National Counterterrorism Center in 2004 and 2005 — conducted the threat assessments for the program.

What role did you have, as the head of these entities, in the illegal wiretapping of Americans? To what extent did you know the program violated FISA? What role did you have in counseling Obama to give telecoms and other contractors immunity under the program? What influence did you have in DOJ decisions regarding suits about the illegal program, in particular the al-Haramain case that was thrown out even after the charity had proved it had been illegally wiretapped? Did you play any role in decisions to investigate and prosecute whistleblowers about this and other programs, notably Thomas Drake? (More background)

5) Did you help CIA bypass prohibitions on spying domestically with the NYPD intelligence (and other) programs?

In your additional prehearing questions, you admit to knowing about CIA’s role in setting up an intelligence program that profiled Muslims in New York City. What was your role in setting up the program? As someone with key oversight over personnel matters at the time, did you arrange Larry Sanchez’ temporary duty at the NYPD or CIA training for NYPD detectives?

Have you been involved in any similar effort to use CIA resources to conduct domestic spying on communities of faith? You said the CIA provides (among other things) expertise to local groups spying on Americans. How is this not a violation of the prohibition on CIA spying on Americans?  (More background)

As it turns out, all three questions are directly pertinent for the latest dust-up between SSCI and the CIA Director.

Tensions between the CIA and its congressional overseers erupted anew this week when CIA Director John Brennan refused to tell lawmakers who authorized intrusions into computers used by the Senate Intelligence Committee to compile a damning report on the spy agency’s interrogation program.

The confrontation, which took place during a closed-door meeting on Tuesday, came as the sides continue to spar over the report’s public release, providing further proof of the unprecedented deterioration in relations between the CIA and Capitol Hill.

After the meeting, several senators were so incensed at Brennan that they confirmed the row and all but accused the nation’s top spy of defying Congress.

“I’m concerned there’s disrespect towards the Congress,” Sen. Carl Levin, D-Mich., who also serves as chairman of the Senate Armed Services Committee, told McClatchy. “I think it’s arrogant, I think it’s unacceptable.”

And you know what, Senator Levin? Brennan doesn’t actually care what you think. This Committee confirmed him last year, at a point where it was already clear he would lie and spy if he thought it would help the CIA. That was the moment to win respect from Brennan.

But at this point — especially because it seems Brennan has confidence his boss won’t fire him — he knows he can get away with this.

“Linking” Procedures in the Yahoo Opinion

As I mentioned earlier, Yahoo is finally releasing the documents pertaining to its challenge of Protect America Act directives in 2008. The LAT has loaded the Yahoo documents in an easy to access page.

This post will look primarily at the FISCR opinion.

As you’ll recall, this opinion was previously released in 2009 (and in fact, the previous list has names of some of the DOJ people who are redacted with this release unredacted).

The four main new disclosures I noted are:

  • A discussion of differences between the definition of foreign power in EO 12333 and FISA
  • Concerns Yahoo raised about how inaccurate the first directives it had received (the Court appears to misunderstood the seriousness of the inaccuracies)
  • Discussion of a parting shot — this supplemental brief makes it clear the largely redacted discussion pertains to US person data collected overseas; I’ll probably return to this, but it appears Yahoo’s concerns were born out and led to the addition of Sections 703-5 in FISA Amendments Act.
  • Reference to “linking” procedures which were part of what FISCR used to deem the collection constitutional

That last item — the “linking” procedures — is what was redacted in this post I did when the memo was first released. As I noted then, the procedures were what the FISCR used to meet particularity requirements.

The following passage starts on page 23:

The linking procedures — procedures that show that the [redacted] designated for surveillance are linked to persons reasonably believed to be overseas and otherwise appropriate targets — involve the application of “foreign intelligence factors” These factors are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. As attested by affidavits  of the Director of the National Security Agency (NSA), the government identifies [redacted] surveillance for national security purposes on information indicating that, for instance, [big redaction] Although the FAA itself does not mandate a showing of particularity, see 50 U.S.C. § 1805(b). This pre-surveillance procedure strikes us as analogous to and in conformity with the particularly showing contemplated by Sealed Case.

I’ll need to look more closely to find this brief — if it was released. But I suspect that this shows more closely how the metadata dragnets and the content collection are linked. They collect the metadata to mine for “proof” of meaningful connection, then use that to unlock the content. That’s not surprising — it’s what I had been speculating since days after Risen first broke this — but it’s important to flesh out. Because, of course, all this not-a-search metadata really is, because it leads directly to the content.

As I noted in my post in 2009, Russ Feingold released a statement with the release of the opinion, basically arguing that Yahoo could have won this if they had had access to the procedures related to the program (Mark Zwillinger made the same point when he testified to PCLOB).

The decision placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access.  The courtupheld the constitutionality of the PAA, as applied, without the benefit of an effective adversarial process.  The court concluded that “[t]he record supports the government.  Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case.”  However, the company did not have access to all relevant information, including problems related to the implementation of the PAA.  Senator Feingold, who has repeatedly raised concerns about the implementation of the PAA and its successor, the FISA Amendments Act (“FAA”), in classified communications with the Director of National Intelligence and the Attorney General, has stated that the court’s analysis would have been fundamentally altered had the company had access to this information and been able to bring it before the court.

There’s no reason to believe the “linking” procedures are what Feingold was referring to. After all, there still are details of the minimization and targeting procedures that raise big constitutional issues. Plus, we know foreign collection has always been a big concern of Feingold’s. But I am wondering whether part of the problem was that their contact chaining was not very good, and therefore they were collecting people who really weren’t linked to the targets in question.

Which might explain why Yahoo was experiencing so many dud directives in the first months of its operation.

Remember Joseph Nacchio?

Yahoo just announced that it will shortly be releasing the docket from its 2008 effort to challenge a Protect America Act order.

In a report on the release, WaPo notes that the government threatened Yahoo with a $250,000 day fine for not complying with the Protect America Act order (appreciate the irony of that law’s name!).

The U.S. government threatened to fine Yahoo $250,000 a day in 2008 if it failed to comply with a broad demand to hand over user data that the company believed was unconstitutional, according to court documents unsealed Thursday that illuminate how federal officials forced American tech companies to participate in the NSA’s controversial PRISM program.

Umph. That kind of fine would add up quickly.

Which got me thinking about Joseph Nacchio, the Qwest CEO who claims the real source of his insider trading scandal arose from government retaliation when he refused to do something — in January 2001, before NineElevenChangedEverything — that he considered illegal.

According to Nacchio, his troubles can be traced back to a meeting at the NSA’s Fort Meade, Md., headquarters on Feb. 27, 2001. The agency asked that Qwest participate in a surveillance program, but Nacchio considered the proposed action to be illegal.

Nacchio was unable to explain the exact nature of the request, which remains classified. However, contrary to news reports, he said discussions with the NSA at the February 2001 meeting didn’t involve turning over telephone records.

“I found that request to be peculiar. I didn’t think it was legal. I asked for legal justification. We never got it, and therefore we never did it,” said Nacchio, who completed his prison sentence in September. “That was the moment things turned down for me.”

The former AT&T (T) executive resigned from his post at Qwest in 2002 after the Securities and Exchange Commission launched an insider-trading investigation. In 2007, he was charged with 42 counts of insider trading.

Nacchio was ultimately convicted on 19 counts for selling stock between April and May 2001, leading to the forfeiture of $44.6 million and a $19 million fine. He was sentenced to six years in jail, but his time was reduced to 70 months.

Obviously, the size of Yahoo’s fine — for a congressionally authorized, even if unconstitutional program — lends far more credibility to the claim that the government retaliated by setting Nacchio up for an insider trading prosecution. (See also this post which tracks some interesting discrepancies in the stories, which is one of a number of reasons I believe the NSA IG report on the illegal dragnet is itself incorrect.)

It also makes me wonder about two other companies — an Internet company, and what is probably something like Cisco — that refused to cooperate with the illegal dragnet.

There really isn’t a lot of rule of law surrounding the government’s spying.

Every Senator Who Supports USA Freedom May Be Affirmatively Ratifying a Financial Dragnet

Now that I’ve finally got around to reading the so-called transparency provisions in Patrick Leahy’s USA Freedom Act, I understand that one purpose of the bill, from James Clapper’s perspective, is to get Congress to ratify some kind of financial dragnet conducted under Section 215.

As I’ve laid out in detail before, there’s absolutely no reason to believe USA Freedom Act does anything to affect non-communications collection programs.

That’s because the definition of “specific selection term” permits (corporate) persons to be used as a selector, so long as they aren’t communications companies. So Visa, Western Union, and Bank of America could all be used as the selector; Amazon could be for anything not cloud or communications-related. Even if the government obtained all the records from these companies — as reports say it does with Western Union, at least — that would not be considered “bulk” because the government defines “bulk” as collection without a selector. Here, the selector would be the company.

And as I just figured out yesterday, the bill requires absolutely no individualized reporting on traditional Section 215 orders that don’t obtain communications. Here’s what the bill requires DNI to report on traditional 215 collection.

(D) the total number of orders issued pursuant to applications made under section 501(b)(2)(B) and a good faith estimate of—
(i) the number of targets of such orders;
(ii) the number of individuals whose communications were collected pursuant to such orders; and
(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;

The bill defines “individuals whose communications were collected” this way:

(3) INDIVIDUAL WHOSE COMMUNICATIONS WERE COLLECTED.—The term ‘individual whose communications were collected’ means any individual—
(A) who was a party to an electronic communication or a wire communication the contents or noncontents of which was collected; or
(B)(i) who was a subscriber or customer of an electronic communication service or remote computing service; and
(ii) whose records, as described in subparagraph (A), (B), (D), (E), or (F) of section 2703(c)(2) of title 18, United States Code, were collected.

Thus, the 215 reporting only requires the DNI to provide individualized reporting on communications related orders. It requires no individualized reporting at all on actual tangible things (in the tangible things provision!). A dragnet order collecting every American’s Visa bill would be reported as 1 order targeting the 4 or so terrorist groups specifically named in the primary order. It would not show that the order produced the records of 310 million Americans.

I’m guessing this is not a mistake, which is why I’m so certain there’s a financial dragnet the government is trying to hide.

Under the bill, of course, Visa and Western Union could decide they wanted to issue a privacy report. But I’m guessing if it would show 310 million to 310,000,500 of its customers’ privacy was being compromised, they would be unlikely to do that.

So the bill would permit the collection of all of Visa’s records (assuming the government could or has convinced the FISC to rubber stamp that, of course), and it would hide the extent of that collection because DNI is not required to report individualized collection numbers.

But it’s not just the language in the bill that amounts to ratification of such a dragnet.

As the government has argued over and over and over, every time Congress passes Section 215′s “relevant to” language unchanged, it serves as a ratification of the FISA Court’s crazy interpretation of it to mean “all.” That argument was pretty dodgy for reauthorizations that happened before Edward Snowden came along (though its dodginess did not prevent Clare Eagan, Mary McLaughlin, and William Pauley from buying it). But it is not dodgy now: Senators need to know that after they pass this bill, the government will argue to courts that it ratifies the legal interpretations publicly known about the program.

While the bill changes a great deal of language in Section 215, it still includes the “relevant to” language that now means “all.” So every Senator who votes for USAF will make it clear to judges that it is the intent of Congress for “relevant to” to mean “all.”

And it’s not just that! In voting for USAF, Senators would be ratifying all the other legal interpretations about dragnets that have been publicly released since Snowden’s leaks started.

That includes the horrible John Bates opinion from February 19, 2013 that authorized the government to use Section 215 to investigate Americans for their First Amendment protected activities so long as the larger investigation is targeted at people whose activities aren’t protected under the First Amendment. So Senators would be making it clear to judges their intent is to allow the government to conduct investigations into Americans for their speech or politics or religion in some cases (which cases those are is not entirely clear).

That also includes the John Bates opinion from November 23, 2010 that concluded that, “the Right to Financial Privacy Act, … does not preclude the issuance of an order requiring the production of financial records to the Federal Bureau of Investigation (FBI) pursuant to the FISA business records provision.” Given that Senators know (or should — and certainly have the ability to — know) about this before they support USAF, judges would be correct in concluding that it was the intent of Congress to permit the government to collect financial records under Section 215.

So Senators supporting this bill must realize that supporting the bill means they are supporting the following:

  • The interpretation of “relevant to” to permit the government to collect all of a given kind of record in the name of a standing FBI terrorism investigation.
  • The use of non-communication company corporate person names, like Visa or Western Union, as the selector “limiting” collection.
  • The use of Section 215 to collect financial records.
  • Not requiring the government to report how many Americans get sucked up in any financial (or any non-communications) dragnet.

That is, Senators supporting this bill are not only supporting a possible financial dragnet, but they are helping the government hide the existence of it.

I can’t tell you what the dragnet entails. Perhaps it’s “only” the Western Union tracking reported by both the NYT and WSJ. Perhaps James Cole’s two discussions of being able to collect credit card records under this provision means they are. Though when Leahy asked him if they could collect credit card records to track fertilizer purchases, Cole suggested they might not need everyone’s credit cards to do that.

Leahy: But if our phone records are relevant, why wouldn’t our credit card records? Wouldn’t you like to know if somebody’s buying, um, what is the fertilizer used in bombs?

Cole: I may not need to collect everybody’s credit card records in order to do that.


If somebody’s buying things that could be used to make bombs of course we would like to know that but we may not need to do it in this fashion.

We don’t know what the financial dragnet is. But we know that it is permitted — and deliberately hidden — under this bill.

Below the rule I’ve put the names of the 18 Senators who have thus far co-sponsored this bill. If one happens to be your Senator, it might be a good time to urge them to reconsider that support.

Patrick Leahy (202) 224-4242

Mike Lee (202) 224-5444

Dick Durbin (202) 224-2152

Dean Heller (202) 224-6244

Al Franken (202) 224-5641

Ted Cruz (202) 224-5922

Richard Blumenthal (202) 224-2823

Tom Udall (202) 224-6621

Chris Coons (202) 224-5042

Martin Heinrich (202) 224-5521

Ed Markey (202) 224-2742

Mazie Hirono (202) 224-6361

Amy Klobuchar (202) 224-3244

Sheldon Whitehouse (202) 224-2921

Chuck Schumer (202) 224-6542

Bernie Sanders (202) 224-5141

Cory Booker (202) 224-3224

Bob Menendez (202) 224-4744

Sherrod Brown (202) 224-2315



USA Freedom Act’s So-Called “Transparency” Provisions Enable Illegal Domestic Surveillance

I regret that I am only now taking a close look at the “transparency” provisions in Patrick Leahy’s version of USA Freedom Act. They are actually designed not to provide “transparency,” but to give a very misleading picture of how much spying is going on. They are also designed to permit the government to continue not knowing how much content it collects domestically under upstream and pen register orders, which is handy, because John Bates told them if they didn’t know it was domestic then collecting domestic isn’t illegal.

In this post, I’ve laid out the section of the bill that mandates reporting from ODNI, with my comments interspersed along with what the “transparency” report Clapper did this year showed.


(1) IN GENERAL.—Except as provided in subsection (e), the Director of National Intelligence shall annually make publicly available on an Internet Web site a report that identifies, for the preceding 12-month period—

This language basically requires the DNI to post a report on I Con the Record every year. But subsection (e) provides a number of outs.

Individual US Person FISA Orders

(A) the total number of orders issued pursuant to titles I and III and sections 703 and 704 and a good faith estimate of the number of targets of such orders;

This language requires DNI to describe, in bulk, how many individual US persons are targeted in a given year (there were 1,767 orders and 1,144 estimated targets last year). But it only requires DNI to give a “good faith estimate” of these numbers (and that’s what they’re listed as in ODNI’s report from last year)! If there’s one thing DNI should be able to give a rock-solid number for, it’s individual USP targets. But … apparently that’s not the case.

Screen Shot 2014-09-10 at 10.29.15 AM

Section 702 Orders

(B) the total number of orders issued pursuant to section 702 and a good faith estimate of—

(i) the number of targets of such orders;

(ii) the number of individuals whose communications were collected pursuant to such orders;

(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;

This language requires DNI to provide an estimate of the number of targets of Section 702 which includes both upstream and PRISM production. Last year, this was one order (ODNI doesn’t tell us, but there were at least 3 certificates –Counterterrorism, Counterproliferation, and Foreign Government) affecting 89,138 targets.

Screen Shot 2014-09-10 at 10.23.26 AM

The new reporting requires the government to come up with some estimate of how many communications are collected, as well as how many are located inside the US.

Except DNI is permitted to issue a certification saying that there are operational reasons why he can’t provide that last bit — how many are in the US. Thus, 4 years after refusing to tell John Bates how many Americans’ communications NSA was sucking up in upstream collection, Clapper is now getting the right to continue to refuse to provide that ratified by Congress. And remember — Bates also said that if the government didn’t know it was collecting that content domestically, then it wasn’t really in violation of 50 USC 1809(a). So by ensuring that it doesn’t have to count this, Clapper is ensuring that he can continue to conduct illegal domestic surveillance.

Don’t worry though. The bill includes language that says, even though this provision permits the government to continue conducting illegal domestic collection, “Nothing in this section affects the lawfulness or unlawfulness of any government surveillance activities described herein. ”

Back Door Searches

(iv) the number of search terms that included information concerning a United States person that were used to query any database of the contents of electronic communications or wire communications obtained through the use of an order issued pursuant to section 702; and

(v) the number of search queries initiated by an officer, employee, or agent of the United States whose search terms included information concerning a United States person in any database of noncontents information relating to electronic communications or wire communications that were obtained through the use of an order issued pursuant to section 702;

This language counts back door searches.

But later in the bill, the FBI — which we know does the bulk of these back door searches — is exempted from all of this reporting. As I noted in this post, effectively the Senate is saying it’s no big deal of FBI doesn’t track how many warrantless searches of US person content it does, even of people against whom the FBI has no evidence of wrongdoing.

In addition, note that odd limit to (v). DNI only has to report metadata searches “initiated by an officer, employee, or agent” of the United States. That would seem to exempt any back door metadata searches by foreign governments (it might also exempt contractors, but they should be included as “agents” of the US). Which, given that CIA doesn’t currently count its metadata searches, and given that CIA conducts a bunch of metadata searches on behalf of other entities, leads me to suspect that CIA may be doing metadata searches “initiated” by foreign governments. But that’s a guess. One way or another, though, this clause was written to not count some of these metadata searches. [Update: On reflection, that language may be designed to avoid counting automated processes as searches -- if they're initiated by a robot rather than an employee they're not counted!]

Pen Register Orders

C) the total number of orders issued pursuant to title IV and a good faith estimate of—

(i) the number of targets of such orders;

(ii) the number of individuals whose communications were collected pursuant to such orders; and

(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;

This language counts how many Pen Register orders the government obtains, how many individuals get sucked up, and how many are in the US, both of which are additions on what ODNI reported this year.

Screen Shot 2014-09-10 at 10.50.08 AM

But that last bit — counting people in the US — is again a permissible exemption under the bill. Which is, as you’ll recall, the other way NSA has been known to engage in illegal domestic content collection. The only known bulk pen register is currently run by FBI, but in any case, the exemption has the same effect, of permitting the government from ever having to admit that it is breaking the law.

Traditional Section 215 Collection

(D) the total number of orders issued pursuant to applications made under section 501(b)(2)(B) and a good faith estimate of—

(i) the number of targets of such orders;

(ii) the number of individuals whose communications were collected pursuant to such orders; and

(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;

This requires DNI to report on traditional Section 215 orders, but the entire requirement is a joke on two counts.

Screen Shot 2014-09-10 at 11.09.02 AM

First, note that, for a reporting requirement for a law permitting the government to collect “tangible things,” it only requires individualized reporting for “communications.” “Individuals whose communications were collected” are specifically defined as only involving phone calls and electronic communications.

So this “transparency” bill will not count how many individuals have their financial records, beauty supply purchases, gun purchases, pressure cooker purchases, medical records, money transfers, or other things sucked up, much of which we know to be done under this bill. And this is particularly important, because the law still permits bulk collection of these things. Thus, this “transparency” report creates the illusion that far less collection is done under Section 215 than actually is, it creates the illusion that bulk collection is not going on when it is.

But it gets worse!

Continue reading

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Emptywheel Twitterverse
emptywheel @B_D_Silver Huh. Like to think you were a good use of my taxpayer dollars. Beats funding Aramark's corruption.
emptywheel @joshgerstein That's an EXCELLENT idea. So good, in fact, it qualifies you to lead the entire UT system.
emptywheel @joshgerstein Why not Jordan? We'll pretend they're nice to prisoners some more. @cullystimson
emptywheel Slacker @jricole only lists the top 5 contradictions of Obama's ISIL strategy. Not 10?
emptywheel @chinahand A better name than "moderates" as many aren't.
emptywheel @elk_l Contemptible in US history too--engaged in biogenocide. The mascot should be changed.
emptywheel @normative On a very very related topic, Khan (OR CT case) challenging FISA emails bc metadata on them sucks.
emptywheel RT @normative: Reading Jack Goldsmith’s STELLARWIND Memo (Part 2): Bulk e-mail metadata collection is a wiretap.
emptywheel Say, if inclusive governments are part of our magic strategy to defeat ISIL, why aren't we demanding them from, say, the Kingdom?
emptywheel <8 weeks to election. 2 months of selective fearmongering abt beheading. A tool chest full of hammers we know won't work. You do ... what?
emptywheel @JPughMI Emeritus?!?! Congrats to @B_D_Silver I guess.
emptywheel @attackerman Are they wearing a skirt w/no undies? If not they have no business playing it.
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