In a piece for Salon today, I note that both in US domestic warrants for Stored Communication and in the law the UK will push through, DRIP, the US and the Brits are asserting they should be able to demand data stored anywhere in the world. Here’s the US part:
The U.S. data grab started back in December, when the Department of Justice applied for a warrant covering an email account Microsoft held in Ireland as part of a drug-trafficking investigation. Microsoft complied with regards to the information it stored in the U.S. (which consisted of subscriber information and address books), but challenged the order for the content of the emails. After Magistrate Judge James Francis sided with the government – arguing, in part, that Mutual Legal Assistance Treaties, under which one country asks another for help on a legal investigation, were too burdensome — Microsoft appealed, arguing the government had conscripted it to conduct an extraterritorial search and seizure on its behalf.
As part of that, Microsoft Vice President Rajesh Jha described how, since Snowden’s disclosures, “Microsoft partners and enterprise customers around the world and across all sectors have raised concerns about the United States Government’s access to customer data stored by Microsoft.” Jha explained these concerns went beyond NSA’s practices. “The notion of United States government access to such data — particularly without notice to the customer — is extremely troubling to our partners and enterprise customers located outside of the United States.” Some of those customers even raised Magistrate Francis’ decision specifically.
The government’s response, however, argued U.S. legal process is all that is required. DOJ’s brief scoffed at Microsoft for raising the real business concerns that such big-footing would have on the U.S. industry. “The fact remains that there exists probable cause to believe that evidence of a violation of U.S. criminal law, affecting U.S. residents and implicating U.S. interests, is present in records under Microsoft’s control,” the government laid out. It then suggested U.S. protection for Microsoft’s intellectual property is the tradeoff Microsoft makes for complying with legal process. “Microsoft is a U.S.-based company, enjoying all the rights and privileges of doing business in this country, including in particular the protection of U.S. intellectual property laws.” It ends with the kind of scolding usually reserved for children. “Microsoft should not be heard to complain that doing so might harm its bottom line. ”
Click through to find out why the UK data grab is even worse.
Effectively, both English speaking behemoths are arguing that borders don’t matter, they can have any data in the world. And while we know NSA and GCHQ were doing that for spying purposes, here they’re arguing they can do it for crime prevention.
Breathtaking claims, really.
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.
In the post-HR 3361 passage press conference yesterday, Jerry Nadler suggested the only reason civil libertarians oppose the bill is because it does not go far enough.
That is, at least in my case, false.
While I have concerns about unintended consequences of outsourcing holding the call data to the telecoms (see my skepticism that it ends bulk collection here and my concerns about high volume numbers here), there are a number of ways that USA Freedumber is worse than the status quo.
The NSA in your smart phone: Freedumber codifies changes to the chaining process
As I have described, the language in USA Freedumber makes it explicit that the government and its telecom partners can chain on connections as well as actual phone call contacts. While the new automatic search process approved by the FISA Court in 2012 included such chaining, by passing this bill Congress endorses this approach. Moreover, the government has never been able to start running such automatic queries; it appears they have to outsource to the telecoms to be able to do so (probably in part to make legal and technical use of location data). Thus, moving the phone chaining to the telecoms expands on the kinds of chaining that will be done with calls.
We don’t know all that that entails. At a minimum (and, assuming the standard of proof is rigorous, uncontroversially) the move will allow the government to track burner phones, the new cell phones targets adopt after getting rid of an old one.
It also surely involves location mapping. I say that, in part, because if they weren’t going to use location data, they wouldn’t have had to move to the telecoms. In addition, AT&T’s Hemisphere program uses location data, and it would be unrealistic to assume this program wouldn’t include at least all of what Hemisphere already does.
But beyond those two functions, your guess is as good as mine. While the chaining must produce a Call Detail Record at the interim step (which limits how far away from actual phone calls the analysis can get), it is at least conceivable the chaining could include any of a number of kinds of data available to the telecoms from smart phones, including things like calendars, address books, and email.
The fact that the telecoms and subsidiary contractors get immunity and compensation makes it more likely that this new chaining will be expansive, because natural sources of friction on telecom cooperation will have been removed.
Freedumber provides three ways for NSA to use the phone dragnet for purposes besides counterterrorism
As far as we know, the current dragnet may only be used for actual terrorist targets and Iran. But USA Freedumber would permit the government to use the phone dragnet to collect other data by:
Freedumber permits searches on selection terms associated with foreign powers
On its face, USA Freedumber preserves this counterterrorism focus, requiring any records obtained to be “relevant to” an international terrorist investigation. Unfortunately, we now know that FISC has already blown up the meaning of “relevant to,” making all data effectively relevant.
The judicial approval of the specific selection term, however — the court review that should be an improvement over the status quo — is not that tie to terrorism, but evidence that the selection term is a foreign power or agent thereof.
Thus, the government could cite narcoterrorism, and use the chaining program to investigate Mexican drug cartels. The government could raise concerns that al Qaeda wants to hack our networks, and use chaining to investigate hackers with foreign ties. The government could allege Venezuela supports terrorism and investigate Venezuelan government sympathizers.
There are a whole range of scenarios in which the government could use this chaining program for purposes other than counterterrorism.
Freedumber permits the retention of any data that serves a foreign intelligence purpose
And once it gets that data, the government can keep it, so long as it claims (to itself, with uncertain oversight from the FISC) that the data has a foreign intelligence purpose.
At one level, this is a distinction without a difference from the language that USA Freedumb had used, which required the NSA to destroy the data after five years unless it was relevant to a terrorism investigation (which all data turned over to NSA would be, by definition). But the change in language serves as legislative approval that the use of the data received via this program can be used for other purposes.
That will likely have an impact on minimization procedures. Currently, the NSA needs a foreign intelligence purpose to access the corporate store, but can only disseminate data from it for counterterrorism purposes. I would imagine the changed language of the bill will lead the government to successfully argue that the minimization procedures permit the dissemination of US person data so long as it meets only this flimsy foreign intelligence purpose. In other words, US person data collected in chaining would be circulating around the government more freely.
Freedumber’s emergency queries do not require any tie to terrorism
As I noted, the revisions USA Freedumber made to USA Freedumb explicitly removed a requirement that emergency queries be tied to a terrorism investigation.
(A) reasonably determines that an emergency situation requires the production of tangible things to
obtain information for an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to protect against international terrorismbefore an order authorizing such production can with due diligence be obtained;
That’s particularly troublesome, because even if the FISC rules the emergency claim (certified by the Attorney General) was not legally valid after the fact, not only does the government not have to get rid of that data, but the Attorney General (the one who originally authorized its collection) is the one in charge of making sure it doesn’t get used in a trial or similar proceeding.
In short, these three changes together permit the government to use the phone dragnet for a lot more uses than they currently can.
Freedumber invites the expansion of upstream collection
When John Bates declared aspects of upstream collection to be unconstitutional in 2011, he used the threat of referrals under 50 USC 1809(a) to require the government to provide additional protection both to entirely domestic communications that contained a specific selector, and to get rid of domestic communications that did not contain that specific selector at all. The government objected (and considered appealing), claiming that because it hadn’t really intended to collect this data, it should be able to keep it and use it. But ultimately, that threat (especially threats tied to the government’s use of this data for ongoing FISA orders) led the government to capitulate.
The changes in Freedumber basically allow the government to adopt its old “intentional” claim, reversing Bates’ restrictions. Continue reading
As I noted in my last post, DOJ’s Inspector General recently created a page showing their ongoing investigations. It shows some things not described in Inspector General Michael Horowitz’ last report to Congress.
Of particular interest is this investigation.
The OIG is examining the DEA’s use of administrative subpoenas to obtain broad collections of data or information. The review will address the legal authority for the acquisition or use of these data collections; the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data; the creation, dissemination, and usefulness of any products generated from the data; and the use of “parallel construction” or other techniques to protect the confidentiality of these programs.
The description doesn’t say it, but this is Hemisphere, the program under which DEA submits administrative subpoenas to AT&T for phone records from any carrier that uses AT&T’s backbone. DEA gets information matching burner phones as well as the call records. In addition, it gets some geolocation — and continued to increase what it was getting even after US v Jones raised concerns about such tracking.
The presentation on Hemisphere makes it very clear the government uses “parallel construction” to hide Hemisphere.
Protecting the Program: When a complete set of CDRs are subpoenaed from the carrier, then all memorialized references to relevant and pertinent calls can be attributed to the carrier’s records, thus “walling off” the information obtained from Hemisphere. In other words, Hemisphere can easily be protected if it is used as a pointed system to uncover relevant numbers.
Exigent Circumstances — Protecting the Program: In special cases, we realize that it might not be possible to obtain subpoenaed phone records that will “wall off” Hemisphere. In these special circumstances, the Hemisphere analyst should be contacted immediately. The analyst will work with the investigator and request a separate subpoena to AT&T.
Official Reporting — Protecting the Program: All requestors are instructed to never refer to Hemisphere in any official document. If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena.
And this is not the only area where DEA Is using parallel construction to hide where it gets its investigative leads. Reuters reported in August that DEA also uses parallel construction to hide the leads it gets from purportedly national security-related wiretapping.
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”
A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.
Presuming that Horowitz is investigating whether DEA’s extensive use of parallel construction complies with the Constitution (and not, as is possible, whether the sources of this information are being adequately buried), this is welcome news indeed.
But it’s also one of several reasons why I’m particularly alarmed, in retrospect, that Horowitz is complaining about his ability to get grand jury information without having to get either Attorney General Holder or Deputy Attorney General James Cole to personally approve it.
After all, the only way you can learn what truly happens in prosecutions that have used parallel construction to hide their sources is to work backward from the actual prosecution. Continue reading
Here’s an interesting “reform” in the RuppRoge’s Fake Dragnet Fix. It pays the telecoms.
COMPENSATION AND ASSISTANCE.–The Government shall compensate, at the prevailing rate, an electronic communications service provider for providing records in accordance with directives issued pursuant to [their bill].
Section 215 does not include such a payment provision. And while the first two phone dragnet orders included provision for such payments, that was probably illegal.
Don’t get me wrong. I’m sure the government has found some way to pay the telecoms, either through added payments for AT&T’s Hemisphere program or gifts in kind. (Though given the timing of DOJ’s suit against Sprint for over-billing, I do wonder whether the government is retaliating for something.) Telecoms don’t spy for free, so I’m sure they’ve been getting paid, illegally, for the last 8 years of dragnet spying they’ve been doing.
But the lack of such provision in Section 215 should have limited the scope of the dragnet. It should have required that requests be so narrow no telecom was going to send big bills to the government every month. And it presumably made the telecoms (well, except for AT&T, which never met a spying request it didn’t love) less willing to interpret orders from the government expansively.
The inclusion of such a compensation clause in the RuppRoge “reform” makes it even more likely this dragnet will expand with the now well-oiled willingness of the telecoms to go above and beyond the letter of the request.
Which is presumably just how the NSA wants it to be.
There was a fascinating panel of Telecom execs and bloggers discussing human rights at RightsCon yesterday. Among others, Verizon Executive Vice President and General Counsel Randal Milch spoke.
As I noted in passing, Verizon published an update to their Transparency Report the other day. Particularly as compared to AT&T’s bogus report, the Verizon report was laudable for its explanation of what it couldn’t show, such as when it acknowledged that its report did not include the hundreds of millions of customers whose records got turned over under Section 215.
We note that while we now are able to provide more information about national security orders that directly relate to our customers, reporting on other matters, such as any orders we may have received related to the bulk collection of non-content information, remains prohibited.
It also acknowledged something obvious but that which should be explicit: when the government obtains content from Verizon, it sometimes gets metadata as well.
Some FISA orders that seek content also seek non-content; we counted those as FISA orders for content and to avoid double counting have not also counted them as FISA orders for non-content.
All this is useful information that lends the report itself credibility.
So when I first approached Milch, I thanked him for the quality of his report.
Which is why I was so surprised when he said the government should be in the business of transparency reports, not the providers. I challenged that, noting that an easy comparison of AT&T and Verizon’s reports strongly suggests that Verizon demands more legal process for requests than AT&T. He dismissed that, suggesting any differences arise from the different kind of client base the providers have.
Granted, Milch was talking about your average consumer, not … me.
But it seemed bizarre. Or perhaps it was a testament that Milch and Verizon generally don’t want to have to compete in this front.
Milch answered one other question of mine: I asked whether the Verizon/Vodaphone split affected Verizon’s obligations to the UK (that is, to GCHQ). He claims it didn’t affect it at all, that it was more an investment stake and that none of Verizon’s cell call records were in the UK. (No, I didn’t point out that the records are right where GCHQ wants them, in places accessible under Tempora).
So at least according to Milch’s claims, my theory laid out here is wrong.
As the business press is crowing, Vodaphone and Verizon are officially divorced.
After pulling off the $130 billion sale, Vodafone will drop from the world’s second-biggest phone company to the fourth, measured by market value, behind China Mobile Ltd., AT&T Inc. and Verizon Communications Inc. (VZ), data compiled by Bloomberg showed. Vodafone’s weighting in share indexes such as the FTSE 100 in London will be cut approximately in half.
Shareholders will get a return of about 102 pence ($1.70) per share. That’s about $23.9 billion in cash and about $58.6 billion in Verizon Communications shares.
Vodafone’s shares rose 2.8 percent to 236.10 pence at 2:45 p.m. in London. Verizon slipped 0.3 percent to $47.97 in New York.
“This is a great day for Verizon,” Verizon CEO Lowell McAdam said in a statement. “The new Verizon now has full ownership of the U.S. wireless industry leader in network performance, profitability and cash flow.”
The deal will help Vodafone pay off debt and help fund 7 billion pounds of additional network investments by March 2016, adding high-speed broadband and wireless coverage across its largest markets.
And rejoicing was heard on both sides of the Atlantic!
Curiously, though, I seem to be the only one asking what seems to be an obvious question: how will this high level British-US breakup affect the Five Eyes dragnet?
Particularly given reports that Verizon is (was?) one of 7 Tempora providers, I wonder whether splitting with Vodaphone has permitted Verizon to withdraw from compliance with GCHQ data requests.
Back in 2006, USA Today’s report that the NSA had a database of all of AT&T, Verizon, and BellSouth’s phone records caused one of the telecoms to refuse to turn over data without being legally obligated (and for a number of reasons, it is unlikely AT&T was the provider that demanded an order).
The publication of the Verizon Secondary Order on June 5, 2013 exposed Verizon far more than that 2006 story. And it exposed Verizon uniquely, in a way AT&T and Sprint hadn’t been exposed. ODNI exacerbated that exposure further when it released another document with Verizon’s name unredacted.
If I were Verizon, I would be doing nothing more than the government(s) legally requred me to do. And as of today, Verizon may have one less government with the ability to make such requirements.
Update: On March 4, Verizon’s General Counsel said the Vodaphone/Verizon split will have no effect on Verizon’s obligations to the US.
I want to make two more points about AT&T’s “Transparency” Report which, as I mentioned earlier, shows how deceitful “transparency” reports can be.
First, compare the number of subpoenas AT&T shows, total, compared to the rough numbers provided for requests to AT&T under Hemisphere for the prior year.
In 2012, 3 cities — Atlanta, Houston, and Los Angeles — submitted a total of 2,770 requests to Hemisphere. In 2012 to 2013 (see the following slide), 7 HIDTAs plus two parts of the Southwest Border HIDTA submitted 838 requests to Hemisphere. While I suspect other HIDTAs also have access to Hemisphere, those numbers are still just a tiny fraction of the total subpoenas AT&T got the following year — using the larger number, just slightly more than 1% of the 223,659 criminal subpoenas AT&T received in 2013.
Even assuming the number is 3 times that across all DEA requests, that seems like a miniscule number, probably even a miniscule number of the requests submitted in drug investigations.
We are to believe, then, that AT&T keeps up this database just to feed as what might be less than 4% of its total requests?
Which is one reason I suspect Hemisphere is also serving other purposes.
And that, of course actually assumes (I’m in a generous mood) that AT&T receives a subpoena for all its Hemisphere requests, in spite of references in the Hemisphere presentation to emails and despite the past history of AT&T (or another telecom) providing phone records in response to requests on Post-It notes.
Which makes me really wonder, given another little detail in AT&T’s “Transparency” Report, whether AT&T responds to as data requests, rather than formal demands.
Here are the categories for the data requests it gets:
Remarkably, AT&T has just 22 International Demands, counting both law enforcement and URL blocking. Verizon, by contrast, got 2,396 law enforcement demands and 1,663 block requests, though some of that may reflect Vodapone exposure and it also implies there were other requests that it funneled through MLAT processing.
Alternative methods of collection would include non-bulk FISA orders, or what prior NSA Directors in the past have referred to as “vacuum cleaner” surveillance outside the ambit of FISA, under Executive Order 12333 and its subordinate procedures, such as DOD 5240-1.R, and perhaps voluntary production if not otherwise prohibited by law. See NSA End-to-End Review at 15; August 2013 FISC Order at 10 n.10 (“The Court understands that NSA receives certain call detail records pursuant to other authority, in addition to the call detail records produced in response to this Court’s Orders.”); cf. 18 U.S.C. § 2511(2)(f) otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978”).(“Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978”).
If AT&T is voluntarily providing data in response to requests, without insisting on getting a demand, it might explain some of the numbers (not to mention its far greater skew towards subpoenas rather than warrants, as compared to Verizon — though this “demand” “request” language necessarily appears at Verizon, too).
Don’t get me wrong: if AT&T wants to just give out customer information in response to data requests without asking for a demand, I’ll just assume it’s being polite to those in authority. But if it is, those requests should be in its transparency report too.
Had Verizon released a transparency report yesterday, it would have added at least the following two details:
Non-Content FISA orders:
4 orders affecting 107,700,000 customers
Content FISA orders:
? orders affecting ? selectors (probably measuring the number of search terms — maybe something like “250″ — Verizon searches for off its upstream collection affecting millions of people)
It would have painted a very different picture.
Here’s how it communicated to its customers that it provides all their call records and sucks up Internet data off its switches using search terms.
You see, it’s supposed to reveal all of its FISA Court orders, not just the orders it gets under the Foreign Intelligence Surveillance Act, which is a different thing. While the number of non-content orders might still be quite small: just 4 orders, presumably, plus some exotic ones thrown in. The number of customer accounts affected would be “all.”
Moreover, in the content section, AT&T is supposed to describe “customer selectors.” This is different than accounts, because, in AT&T’s case, it also includes the number of search terms is sucks right off the circuits (which affects millions of accounts).
Congratulations, AT&T, you have demonstrated definitively these transparency guidelines are not about transparency at all.
Eight days ago, the country’s four major newspapers reported a claim that the NSA collected 33% or less of US phone records (under the Section 215 program, they should have specified, but did not) because it couldn’t collect most cell phone metadata:
Since that time, I have pointed to a number of pieces of evidence that suggest these claims are only narrowly true:
Now you don’t have to take my word for it. Here’s what Keith Alexander had to say about the claim Friday:
Responding to a question about recent reports that the NSA collects data on only 20% to 30% of calls involving U.S. numbers, Alexander acknowledged that the agency doesn’t have full coverage of those calls. He wouldn’t say what fraction of the calls NSA gets information on, but specifically denied that the agency is completely missing data on calls made with cell phones.
“That part is not true,” he said. “We don’t get it all. We don’t get 100% of the data. It’s not where we want it to be, but it has been sufficient to go after the key targets that we’re going after.” [my emphasis]
Admittedly, Alexander is not always entirely honest, so it’s possible he’s just trying to dissuade terrorists from using cellphones while the NSA isn’t tracking them. But he points to the same evidence I did — that NSA has gotten key targets who use cell phones.
There’s something else Alexander said that might better explain the slew of claims that it can’t collect cell phone data.
The NSA director, who is expected to retire within weeks, indicated that some of the gaps in coverage are due to the fact that the NSA “paused any changes to the program” during the recent controversy and discussions about restructuring the effort.
The NSA has paused changes to the program.
This echoes WaPo and WSJ reports that crises (they cited both the 2009 and current crisis) delayed some work on integrating cell data, but suggests that NSA was already making changes when the Snowden leaks started.
There is evidence the pause — or at least part of it — extends back to before the Snowden leak. As I reported last week, even though the NSA has had authority to conduct a new auto-alert on the phone dragnet since November 2012, they’ve never been able to use it because of technical reasons.
The Court understands that to date NSA has not implemented, and for the duration of this authorization will not as a technical matter be in a position to implement, the automated query process authorized by prior orders of this Court for analytical purposes.
This description actually came from DOJ, not the FISC, and I suspect the issue is rather that NSA has not solved some technical issues that would allow it to perform the auto-alert within the legal limits laid out by the FISC (we don’t know what those limits are because the Administration is withholding the Primary Order Supplement that would describe it, and redacting the description of the search itself in all subsequent orders).
That said, there are plenty of reasons to believe there are new reasons why NSA is having problems collecting cell phone data because it includes cell location, which is far different than claiming (abundant evidence to the contrary) they haven’t been collecting cell data all this time. In addition to whatever reason NSA decided to stop its cell location pilot in 2011 and the evolving understanding of how the US v. Jones decision might affect NSA’s phone dragnet program, 3 more things have happened since the beginning of the Snowden leaks:
Remember, too, there’s a February 2013 FISC Section 215 opinion the Administration is also still withholding, which also might explain some of the “technical-meaning-legal” problems they’re having.
Underlying this all (and assuredly underlying the problems with collecting VOIP calls, which are far easier to understand and has been mentioned in some of this reporting, including the LAT story) is a restriction arising from using an ill-suited law like Section 215 to collect a phone dragnet: telecoms can only be obligated to turn over records they actually “already generate,” as described by NSA’s SID Director Theresa Shea.
[P]ursuant to the FISC’s orders, telecommunications service providers turn over to the NSA business records that the companies already generate and maintain for their own pre-existing business purposes (such as billing and fraud prevention).
To the extent telecoms use SS7 data, which includes cell location, to fulfill their Section 215 obligation (after all, what telecoms need billing records on a daily basis?), it probably does introduce problems.
Which, I suspect, will mean that Alexander and the rest of the dragnet defenders will recommend that a third party collate and store all this data, the worst of all solutions. They need to have a comprehensive source (like Hemisphere apparently plays for the DEA), one that will shield the government from necessarily having collected cell location data that is increasingly legally suspect to obtain. And they’ll celebrate it as a great sop to the civil libertarians, too, when in fact, they’ve probably reached the point where it is clear Section 215 can’t legally authorize what it is they want it to do.
The issue, more and more evidence suggests, is that they can’t collect the dragnet data without a law designed to construct the dragnet. Which is another way of saying the dragnet, as intended to function, is illegal.