The US Marshal Service shows up prominently in two Pen Register stories from yesterday.
First, as part of a great story from WSJ’s Jen Valentino-Devries mapping out how many federal criminal electronic records requests never get unsealed…
In eight years as a federal magistrate judge in Texas, Brian Owsley approved scores of government requests for electronic surveillance in connection with criminal investigations—then sealed them at the government’s request. The secrecy nagged at him.
So before he left the bench last year, the judge decided to unseal more than 100 of his own orders, along with the government’s legal justification for the surveillance. The investigations, he says, involved ordinary crimes such as bank robbery and drug trafficking, not “state secrets.” Most had long since ended.
A senior judge halted the effort with a one-paragraph order that offered no explanation for the decision and that itself was sealed.
She released this summary of all the Federal Pen Register/Trap and Trace requests in 2012. As she pointed out on Twitter, the greatest number of requests don’t come from FBI. They come from the USMS, which submitted almost half of all requests that year, with 9,132.
Then, the ACLU revealed that, just before an appointment to view Sarasota, Florida’s requests under the Pen Register authority to use Stingray IMSI catchers to identify cell locations, the US Marshals declared control over the records, claiming they had deputized the local cop who had made the requests.
Over the past several months, the ACLU has filed dozens of public records requests with Florida law enforcement agencies seeking information about their use of controversial cell phone tracking devices known as “stingrays.” (The devices are also known as “cell site simulators” or “IMSI catchers.”) Stingrays track phones by mimicking service providers’ cell towers and sending out powerful signals that trick nearby phones — including phones of countless bystanders — into sending their locations and identifying information.
The Florida agencies’ responses to our requests have varied widely, with somestonewalling and others releasing records. The most recent request went to the Sarasota Police Department, and the fallout from that request has raised red flag after red flag.
RED FLAG #1: The Sarasota Police initially told us that they had responsive records, including applications filed by and orders issued to a local detective under the state“trap and trace” statute that he had relied on for authorization to conduct stingray surveillance. That raised the first red flag, since trap and trace orders are typically used to gather limited information about the phone numbers of incoming calls, not to track cell phones inside private spaces or conduct dragnet surveillance. And, such orders require a very low legal standard. As one federal magistrate judge has held, police should be permitted to use stingrays only after obtaining a probable cause warrant, if at all.
RED FLAG #2: The Sarasota Police set up an appointment for us to inspect the applications and orders, as required by Florida law. But a few hours before that appointment, an assistant city attorney sent an email cancelling the meeting on the basis that the U.S. Marshals Service was claiming the records as their own and instructing the local cops not to release them. Their explanation: the Marshals Service had deputized the local officer, and therefore the records were actually the property of the federal government.
RED FLAG #3: Realizing we weren’t going to get hold of the Sarasota Police Department’s copies of the applications and orders anytime soon, we asked the county court if we could obtain copies from its files. Incredibly, the court said it had no copies. The court doesn’t even have docket entries indicating that applications were filed or orders issued. Apparently, the local detective came to court with a single paper copy of the application and proposed order, and then walked out with the same papers once signed by a judge.
Court rules — and the First Amendment — require judges to retain copies of judicial records and to make them available to the public, but the court (and the detective) completely flouted those requirements here.
Valentino-Devries notes that a lot of the records being kept secret also involve cell location.
In 2011, magistrate judges in California complained that investigators were applying for pen registers without explicitly saying they wanted to use sophisticated cellphone-location trackers, called “stingrays,” which can be used to locate suspects. Stingrays gather phone-number information, along with other data transmitted by cellphones, by acting as fake cellphone towers. The 1986 surveillance law doesn’t contemplate such technology.
Mr. Owsley, the former Texas magistrate judge, says he had similar concerns about applications for “cell-tower dumps,” in which agents can obtain records of all phones within range of specified cell towers over time—including people who aren’t suspected of a crime.
While we don’t yet know how many of the 9,000 requests the Marshals made in 2012 were for location data, the coincidence is mighty interesting.
The Marshals do have cause to search for suspects’ location. They claim they arrest over 300 wanted fugitives a day. That’s where stingrays would be particularly useful, as they would help to identify the location of a known suspect.
So how often are the Marshals using stingrays to do their work? And to what degree do they do so hiding behind even more obscure local pen register laws to do so?
Jim Comey has officially been in charge of the FBI for less than two weeks.
Today, in honor of Constitution Day, the ACLU just released a report showing how the FBI’s expanded mandate since 9/11 has led to Constitutional abuses.
Most of the details of the report have been reported here in depth. But the Big Data section includes some details I haven’t covered. It explains:
FBI collects Suspicious Activities Reports that duplicate — but lower the standard for — an existing database
Another major problem is that eGuardian effectively competes with another federal government SAR. The Intelligence Reform and Terrorism Prevention Act of 2004 established the Information Sharing Environment (ISE) to serve as the conduit for terrorism-related information sharing between state and local law enforcement and the federal government.114 A March 2013 Government Accountability Office report found that though the two programs share information between them, eGuardian uses a lower evidentiary threshold for inclusion of SARs, which creates risks and privacy problems.
FBI will soon have the equivalent of 20 pieces of intelligence on every American — and they share this broadly
An FBI budget request for fiscal year 2008 said the FBI had amassed databases containing 1.5 billion records, and two members of Congress described documents predicting the FBI would have 6 billion records by 2012, which they said would represent “20 separate ‘records’ for each man, woman and child in the United States.”119
According to a 2012 Systems of Records Notice covering all FBI data warehouses, the information in these systems can be shared broadly, even with foreign entities and private companies, and for a multitude of law enforcement and non-law enforcement purposes.133
There’s far more in the report, chronicling the slow creep of abusive FBI techniques since 9/11.
Sadly, given that this has all been treated as legal, I doubt that Comey will do anything about it, even with ACLU’s demonstration that the dragnet has led FBI to miss real crimes.
I’ve got two ginormous issues with the report that the Immigration Bill includes a measure that would require the creation of a “photo tool” database to verify status before employment.
The immigration reform measure the Senate began debating yesterday would create a national biometric database of virtually every adult in the U.S., in what privacy groups fear could be the first step to a ubiquitous national identification system.
Buried in the more than 800 pages of the bipartisan legislation (.pdf) is language mandating the creation of the innocuously-named “photo tool,” a massive federal database administered by the Department of Homeland Security and containing names, ages, Social Security numbers and photographs of everyone in the country with a driver’s license or other state-issued photo ID.
Employers would be obliged to look up every new hire in the database to verify that they match their photo.
First, this would accomplish precisely what Real ID would accomplish, but less.
I’ve long believed we were going to go to Real ID in any case. I’ve also long believed that we ought to change the politics of such a discussion by proposing that along with Real ID, we also get universal registration. The authoritarians would thus have a choice: give up their efforts to disenfranchise the poor via voter ID and track employment, or lose both.
I’m guessing it’d present quite a dilemma for the authoritarians.
But to learn a bipartisan bill is basically ceding on real ID without using it to foster democracy?
My other problem has to do with the certainty that this would be turned into a counterterrorism tool. Recall that last year, John Brennan decided protecting US person data was just too tough, so National Counterterrorism Center would have to have access to any federal database that NCTC deemed to have terrorism information.
I think it highly likely that NCTC would deem a database of all Americans to contain terrorist information.
Therefore, we should assume that whatever else this database is supposed to do, it would also mean that the faces of innocent Americans would start getting included in the data analysis of potential terrorists.
Mind you, the authorities claim (though I’m not convinced) that they weren’t able to ID the Tsarnaev brothers with all the images they had of them at the Boston Marathon. Maybe the technology sucks (again, not convinced).
But that doesn’t stop the inclusion of all Americans in the dataset of possible terrorist mugshots from being an invitation for witch hunts.
We have been discussing the FBI’s apparent inability to use the multiple images of the Tsarnaev brothers from the Boston Marathon to ID them using facial recognition software.
So I wanted to circle back to two things. First, point to the passage of BoGlo’s comprehensive account of the hunt for the brothers that pertains to this question.
Of note, it says photo analysts had isolated the video of Dzhokhar dropping his backpack by Wednesday morning.
When Alben, of the State Police, saw the results of the analysts’ work on Wednesday morning, he couldn’t believe it: they had captured an image of the young man in a white hat dropping a backpack outside the Forum restaurant and then walking away.
“There was a eureka moment . . . It was right there for you to see,” said the colonel. “It was quite clear to me we had a breakthrough in the case.”
They had faces. Now they needed names.
The account remains unclear about why the FBI was unable to match the images, relying on speculation about the quality of the images.
Even after authorities isolated the images of the two suspected bombers, they weren’t able to pinpoint the suspects’ identities — an essential puzzle piece that was still missing Wednesday.
The FBI has poured millions of dollars into facial recognition technology over the years so it can quickly cross-check an image against millions of other pictures in government databases.
In this case, both brothers were already in existing government databases, including the Massachusetts Registry of Motor Vehicles and federal immigration records. They were legal immigrants from the former Soviet republic of Kyrgyzstan, in theory allowing the FBI to find their names.
But it’s not clear which databases the FBI checked. And it may not have mattered. The pictures, taken from surveillance cameras above street level, were likely far too grainy when zoomed in on the brothers’ faces. And the older brother was wearing sunglasses, making their task even harder.
In addition, unlike in a traditional mug shot, the camera wasn’t looking at their faces head-on.
Investigators worked feverishly Wednesday trying to identify the men, searching other photos and video, trying to find high-definition images.
“We still needed more clarity,” said Alben, of the State Police. “As good as the videos were, we needed more clarity.”
And in the middle of this account, BoGlo suggests that briefing Deval Patrick about being able to ID the face of the suspect led directly to the mistaken press reports — based on solid sources, the outlets insisted at the time — that authorities were ready to arrest a suspect.
Colonel Alben, the State Police chief, briefed Patrick on Wednesday about the key piece of video showing Dzhokhar abandoning his backpack. Alben described the clip and showed the governor photographs culled from the footage, information that Patrick called “chilling.”
“We have a break,” Patrick remembers him saying. “We think we have a face.”
If further proof was needed that the city was on edge, the anxiety soon spilled over into view. By 1 p.m., news reports began surfacing that a suspect had been not only identified but arrested, and was headed to the federal courthouse.
I’m still not satisfied with this explanation (and do hope Congress does some hearings on why facial recognition software failed to fulfill its promise, if in fact it did). But it does seem to suggest the FBI had solid images of the brothers for 18 hours before they released them to the public (a decision made by the FBI, the BoGlo reports) and set off the manhunt that shut down the city.
Also, remember our questions about Ray Kelly’s boast of having pictures of the Dzhokhar in Times Square, as the law enforcement community tried to use a half-baked plan to escape to New York and set off pressure cooker bombs in Times Square?
Since Carl Levin announced he would retire, I’ve been hoping to see Justin Amash take on Mike Rogers in a Republican primary. This National Journal article captures the dynamics of that possibility well (though may overestimate how much money Amash could raise).
But before I get into why I’d be so fascinated about such a race, check out how former Republican Attorney General Mike Cox describes Mike Rogers.
If Rogers were to run, he would have to give up his chairmanship of the House Intelligence Committee, for which there are no term limits. Former GOP Michigan Attorney General Mike Cox downplayed that motivation, saying Rogers’ ambition for higher office trumps his desire to make a meaningful influence in foreign policy. “If [Rogers] lost, he could make a lot of money in D.C. as a lobbyist,” Cox said last week. “He’s so full of [expletive] to begin with. He tells all these stories about being an FBI agent, and he was in the FBI for two years. Like he was J. Edgar Hoover.”
“He’s so full of shit to begin with.”
This is the great hope of MI’s GOP to take over Levin’s seat.
Now, Gary Peters, who’ll run on the Democratic side, is one of MI’s rising Democratic stars. And as the article notes, he hails from Oakland County, which is critical not just because of the fundraising base there, but because it’s the second largest county and pretty evenly split; Peters has a proven ability to win that critical swing county’s votes.
Nevertheless, in spite of the fact that if Amash ran (whether or not he won), I’d probably end up represented by a GOP neanderthal rather than Amash (because Democrats are unlikely to win the district in an off year, and because there are tons of up-and-coming neanderthal GOPers in the Grand Rapids area), I’d still really like to see a Rogers-Amash race.
That’s because it’d serve as a nationally watched race between the GOP’s rising libertarian wing and one of the GOP’s most authoritarian leaders. Mike Rogers has championed CISPA and whatever other new surveillance efforts anyone wanted. Justin Amash led those few Republicans who opposed it. Amash even came out in favor of reading Dzhokhar Tsarnaev a Miranda warning this weekend.
In other words, in a battle between Rogers and Amash, civil liberties and the Constitution would be central.
Mike Cox was making fun of Rogers’ self-promotion when he drew the analogy with J. Edgar (and there’s an implicit respect for Hoover in his comment). But it’s high time someone started making the analogy between the fear-mongering and surveillance Rogers and others embrace and Hoover’s.
As the blame game starts on the Boston Marathon bombing, someone (maybe a blabby Senator?) made it public that the CIA asked to have Tamerlan Tsarnaev added to the Terrorist Identities Datamart Environment (TIDE) database last year.
The CIA asked the main U.S. counterterrorism agency to add the name of one of the suspected Boston Marathon bombers to a watch list more than a year before the attack, according to U.S. officials.
The agency took the step after Russian authorities contacted officials there in the fall of 2011 and raised concerns that Tamerlan Tsarnaev — who was killed last week in a confrontation with police — was seen as an increasingly radical Islamist and could be planning to travel overseas. The CIA requested that his name be put on a database maintained by the National Counterterrorism Center.
That database, the Terrorist Identities Datamart Environment, or TIDE, is a data storehouse that feeds a series of government watch lists, including the FBI’s main Terrorist Screening Database and the Transportation Security Administration’s “no-fly” list.
Officials said Tsarnaev’s name was added to the database but it’s unclear which agency added it.
While reporting information on an individual who is listed in the TIDE database sounds significant, the Subcommittee found that DHS officials tended to be skeptical about the value of such reporting, because of concerns about the quality of data contained in TIDE.156
156 Although NCTC describes its TIDE database as holding information on the identities of known and suspected terrorists, DHS officials – who interacted with TIDE data on a daily basis, as they reviewed reporting not only from state and local law enforcement encounters but from encounters by DHS components – said they found otherwise. “Not everything in TIDE is KST,” DHS privacy official Ken Hunt told the Subcommittee, using a shorthand term for “known or suspected terrorist.”
“Would you buy a Ford?” one DHS Senior Reports Officer asked the Subcommittee staff during an interview, when he was asked how serious it was for someone to be a match to a TIDE record. “Ford Motor Company has a TIDE record.”
Ole Broughton headed Intelligence Oversight at I&A from September 2007 to January 2012. In an interview with the Subcommittee, Mr. Broughton expressed the concern DHS intelligence officials felt working with TIDE data. In one instance, Mr. Broughton recalled he “saw an individual’s two-year-old son [identified] in an [Homeland Intelligence Report]. He had a TIDE record.” Mr. Broughton believed part of the problem was that intelligence officials had routinely put information on “associates” of known or suspected terrorists into TIDE, without determining that that person would qualify as a known or suspected terrorist. “We had a lot of discussion regarding ‘associates’ in TIDE,” Mr. Broughton said.
This is not to say that Tamerlan shouldn’t be in TIDE.
Rather, it says there’s so much other crap in TIDE, that it isn’t perceived as very useful — at least not by the people at DHS the Permanent Subcommittee on Investigations interviewed.
This is the problem with overcollection of data: it adds a bunch more hay to the haystack for the time you want to start looking for a needle.
On the Sunday shows yesterday, House Intelligence Chair Mike Rogers suggested that the government missed Tamerlan Tsarnaev’s trip to Russia in 2012 because he used an alias. This morning, Lindsey Graham explained that the problem was slightly different. Tamerlan’s travel documents misspelled his name.
“He went over to Russia, but apparently, when he got on the Aeroflot plane, they misspelled his name,” Graham, a South Carolina Republican said on Fox television this morning. “So it never went into the system that he actually went to Russia.”
Graham, a member of the Armed Services Committee, said in answer to a follow-up question that he did not know whether Tsarnaev, the 26-year-old terrorist suspect who died early Friday following a shootout with law enforcement, had misspelled his name on purpose.
The FBI “said Aeroflot gave us the information” that Tsarnaev had traveled there, Graham said, though he did not specify when that occurred.
Now, Lindsey doesn’t appear to know whether misspelling was the government’s or Aeroflot’s fault or Tamerlan’s deceit. Assuming Lindsey’s right about the larger point, whatever the source, a misspelling suggests a very different issue than an outright alibi (which would raise questions about the documents Tamerlan used, rather than the tracking of those documents).
Update: At the very end of the Senate Judiciary Committee Immigration hearing, Chuck Schumer said the error arose from Aeroflot typing in Tamerlan’s name incorrectly, so it appears it was not an attempt to deceive by Tamerlan.
Two years before Tsarnaev departed for Russia in January 2012, the government spent a good deal of time reviewing what prevented the government from responding to the several warnings about Umar Farouk Abdulmutallab, the UndieBomber, to prevent him from traveling to the country. One of the problems (though by no means the most serious one), was that the cable conveying warnings from Abdulmutallab’s father spelled his name wrong.
As was widely reported within hours of the failed bombing attempt, Abdulmutallab’s father—a former Nigerian government minister and prominent banker—went to the US embassy in Abuja in November to warn that his son was involved with radical Islamists in Yemen and had broken off contact with his family. The family said they had given US officials extensive information about their son in the expectation that they would “find and return him home.”
In his prepared statement to the House Committee on Homeland Security on January 27, State Department Under-Secretary for Management Patrick Kennedy said: “In the case of Umar Farouk Abdulmutallab, on the day following his father’s November 19 visit to the Embassy, we sent a cable to the Washington intelligence and law enforcement community through proper channels (the Visas Viper system) that ‘Information at post suggests [Farouk] may be involved in Yemeni-based extremists.’”
Kennedy confirmed that all US intelligence agencies received warnings that Abdulmutallab was training with terrorists in Yemen. He noted that the initial diplomatic cable from Abuja misspelled Abdulmutallab’s name.
As I said, that was not the most important problem leading to missed warnings. But it was one identified in the lessons learned period.
Yet it appears likely that one of the potential (if Tamarlan’s trip ends up showing any contact with extremists, which it hasn’t yet) lessons learned here will be one we purportedly learned 3 years ago: that our software needs to be better at using wildcards to identify close but not exact spellings.
We’re already seeing hints that facial recognition may not have served as the miracle solution it often gets sold as. It now appears we might not even have the databases running our watchlist system working as well as it needs to.
Update: Swapped out the Politico version of this report for the BoGlo one, which was more informative and changed the language to reflect the additional information.
I have always been a huge fan of what Thomas Perez has done in DOJ’s Civil Rights Division. But this sentence, from Adam Serwer’s query on what happened to DOJ’s review of the CIA-on-the-Hudson, ought to give pause.
Since taking office, the special litigation section of the civil rights division has investigated more local police departments for unconstitutional policing than ever before, but never on behalf of American Muslims profiled by law enforcement.
But the rest of Serwer’s piece barely touches a big missed opportunity — and, potentially, an explanation for why DOJ has slow-walked its investigation of the profiling of Muslims in NYC. Serwer notes that Brennan complimented the program, in contrast to Eric Holder’s stated concerns about it.
Although Holder referred to the reports of the NYPD’s actions as “disturbing,” that’s not the view of everyone in the Obama administration. CIA Director John Brennan, formerly a top White House counterterrorism adviser, praised the NYPD’s surveillance program in April 2012. “I have full confidence that the NYPD is doing things consistent with the law, and it’s something that again has been responsible for keeping this city safe over the past decade,” Brennan said.
Brennan is not just the former White House counterterrorism [and homeland security] czar, but he’s also the guy who, when CIA-on-the-Hudson was being set up in the days after 9/11, was in charge of logistics and personnel at the CIA. Which means there’s a pretty decent chance he had a role in dual-hatting the CIA guy who operated domestically to help NYPD spy on Americans.
But Brennan’s role in finding a way to use CIA tactics domestically barely came up in his confirmation hearings. As I noted, he was asked whether he knew about the program (and acknowledged knowing about it), but he was not asked — at least not in any of the public materials — whether he had a role in setting it up.
Sort of a key question for the guy now in charge of the entire CIA, whether he thinks the CIA should find loopholes to get around prohibitions on CIA working domestically, don’t you think?
Serwer names several House Democrats — Rush Holt, Mike Honda, Judy Chu — who have been asking about this investigation. Obviously, they didn’t get a vote on Brennan’s nomination. But it seems the nomination period would have been a very good time to ask questions about how and why, at a time when Brennan played a key role in logistics and personnel at the agency, the government decided to set up this workaround. Asking at that time might have clarified why it is that the Administration seems uninterested in investigating this program.
As it is, we’re now left with a guy who publicly applauded such work-arounds — and CIA involvement through cooperation in fusion centers — in charge of the entire CIA.
103 minutes into todays Global Threat Hearing in the Senate Intelligence Committee, National Counterterrorism Center Director Matt Olsen got asked his first question, about what his agency is seeing as rising threats. As part of the discussion that ensued, he noted that homegrown Islamic terrorists continued to be a threat though, he admitted, such attacks would be “unsophisticated.”
He then admitted that those who get inspired by Al Qaeda propaganda are “wayward knuckleheads.”
The comment sure seems to confirm a key premise of Trevor Aaronson’s book, The Terror Factory. Our domestic war on terror — complete with FBI-concocted plots — really consists of getting wayward knuckleheads to respond to FBI incitment. “FBI’s trawling in Muslim communities has resulted largely in sting operations that target easily susceptible men on the margins of society.”
Meanwhile, Robert Mueller had a curious comment in his discussion about the ongoing al Qaeda threat. He said that airplane plots remain a threat. The individuals responsible for previous airline attempts still out there, he said.
Um, I thought we had killed at least one individual responsible for previous airline attempts in September 2011. You mean Anwar al-Awlaki wasn’t the mastermind of the UndieBomb threat?
Of course not: Ibrahim al-Asiri was the operational mastermind of it (or maybe Abu Tarak!). Which is why we had another purported attempt last year, more than six months after Awlaki died.
In any case, Mueller’s comment seems to be an at least implicit admission that the Administration oversold Awlaki’s single centrality to the first UndieBomb plot.
This story — about how Occupy Wall Street protestor Michael Premo beat an assaulting an officer charge when his lawyers found video evidence to disprove the NYPD’s claims — might make you believe in justice.
Except for this. Premo’s lawyers first went to the cops for video, knowing they had tons of officers deployed with cameras during the protests. They found the cop who had relevant video. And … he apparently lied in court about whether he had that video.
Prosecutors told them that police TARU units, who filmed virtually every moment of Occupy street protests, didn’t have any footage of the entire incident. But [Premo's lawyer Meghan] Maurus knew from video evidence she had received while representing another defendant arrested that day that there was at least one TARU officer with relevant footage. Reviewing video shot by a citizen-journalist livestreamer during Premo’s arrest, she learned that a Democracy Nowcameraman was right in the middle of the fray, and when she tracked him down, he showed her a video that so perfectly suited her needs it brought a tear to her eye.
For one thing, the video prominently shows a TARU cop named Bosco, holding up his camera, which is on, and pointing at the action around the kettle. When Premo’s lawyers subpoenaed Bosco, they were told he was on a secret mission at “an undisclosed location,” and couldn’t respond to the subpoena. Judge Robert Mandelbaum didn’t accept that, and Bosco ultimately had to testify [Correction: Bosco didn't take the stand; he had to appear at the District Attorney's office for a meeting with Maurus and prosecutors. Judge Mandelbaum accepted that Bosco would likely say on the stand what he said in the meeting, and didn't require him to testify.] Bosco claimed, straining credibility, that though the camera is clearly on and he can be seen in the video pointing it as though to frame a shot, he didn’t actually shoot any video that evening.
Bosco almost certainly lied. The NYPD clearly lied, repeatedly.
And yet there’s no hint they’ll be charged with obstructing justice.
While you’re reflecting on that, remember what the cops were doing (funded, in part, by JP Morgan Chase $4.6 million donation to the NYPD Foundation). They were making sure that a bunch of hippies could not continue to engage in a highly visible challenge to bank power, and certainly not in the banks’ turf around Wall Street.
Sure, OWS did not present as significant a financial threat as preventing banks from foreclosing on homes they did not hold the proper paperwork on — the threat that robosigners lied under oath to combat. But they did present an ideological threat to the banks.
And here we are, again finding people — cops! — lying in court to protect the banks. And here we are, once again, finding those liars go unpunished.