EFF

Spy vs. Spy, Theresa Shea vs. Theresa Shea

The government has submitted its response to ACLU’s appeal of its lawsuit challenging the Section 215 dragnet.

This passage, which reminded me of the old Mad Magazine Spy vs. Spy comic, made me pee my pants in laughter.

Various details of the program remain classified, precluding further explanation here of its scope, but the absence of those details cannot justify unsupported assumptions. For example, the record does not support the conclusion that the program collects “virtually all telephony metadata” about telephone calls made or received in the United States. SPA 32, quoted in Pl. Br. 12; see also, e.g., Pl. Br. 1-2, 23, 24, 25, 48, 58. Nor is that conclusion correct. See Supp. Decl. of Teresa H. Shea ¶ 7, First Unitarian Church of Los Angeles v. NSA, No. 4:13cv3287 (filed Feb. 21, 2014).3

3 The precise scope of the program is immaterial, however, because, as we explain, the government should prevail as a matter of law even if the scope of the program were as plaintiffs describe. [my emphasis]

Note that they’re citing a declaration from SIGINT Director Theresa Shea submitted in another case, the EFF challenge to the phone dragnet? They’re citing that Shea declaration rather than the one Shea submitted in this very case.

In her declaration submitted in this case in October, Shea said NSA collected all the call records from the providers subject to Section 215.

Pursuant to Section 215, the FBI obtains from the FISC directing certain telecommunications service providers to produce all business records created by them (known as call detail records) that contain information about communications between telephone numbers, generally relating to telephone calls made between the U.S. and a foreign country and calls made entirely within the U.S. (¶14) [my emphasis]

Not all providers. But for the providers in question, “all business records.”

Remember, ACLU is suing on their own behalf, and they are Verizon customers. We know Verizon is one of the providers in question, and Shea has told us that providers in question, of which Verizon is one, provide “all business records.”

Theresa Shea, in a declaration submitted in the suit in question: “All.”

Rather than citing the declaration submitted in this suit, the government instead cites a declaration Shea submitted all the way across the country in the EFF suit, one she submitted four months later, after both the ACLU and Judicial Watch suits had been decided at the District level.

Ostensibly written to describe the changes in scope the President rolled out in January, Shea submitted a new claim about the scope of the program in which she insisted that the program (ignoring, of course, that Section 215 is just a small part of the larger dragnet) does not collect “all.”

Although there has been speculation that the NSA, under this program, acquires metadata relating to all telephone calls to, from, or within the United States, that is not the case. The Government has acknowledged that the program is broad in scope and involves the collection and aggregation of a large volume of data from multiple telecommunications service providers, but as the FISC observed in a decision last year, it has never captured information on all (or virtually all) calls made and/or received in the U.S. See In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], Dkt. No. BR13-109 Amended Mem. Op. at 4 n.5 (F.I.S.C. Aug. 29, 2013) (publicly released, unclassified version) (“The production of all call detail records of all persons in the States has never occurred under under this program.“) And while the Government has also acknowledged that one provider was the recipient of a now-expired April 23, 2013, Secondary Order from the FISC (Exhibit B to my earlier declaration), the identities of the carriers participating in the program(either now, or at any time in the past) otherwise remain classified. [my emphasis]

I explained in detail how dishonest a citation Theresa Shea’s newfound embrace of “not-all” is.

Here, she’s selectively citing the declassified August 29, 2013 version of Claire Eagan’s July 19, 2013 opinion. The latter date is significant, given that the day the government submitted the application tied to that order, NSA General Counsel Raj De made it clearthere were 3 providers in the program (see after 18:00 in the third video). These are understood to be AT&T, Sprint, and Verizon.

Shea selectively focuses on language that describes some limits on the dragnet. She could also note that Eagan’s opinion quoted language suggesting the dragnet (at least in 2011) collected “substantially all” of the phone records from the providers in question, but she doesn’t, perhaps because it would present problems for her “virtually all” claim.

Moreover, Shea’s reference to “production of all call detail records” appears to have a different meaning than she suggests it has when read in context. Here’s what the actual language of the opinion says.

Specifically, the government requested Orders from this Court to obtain certain business records of specified telephone service providers. Those telephone company business records consist of a very large volume of each company’s call detail records or telephony metadata, but expressly exclude the contents of any communication; the name, address, or financial information of any subscriber or customer; or any cell site location information (CSLI). Primary Ord. at 3 n.l.5

5 In the event that the government seeks the production of CSLI as part of the bulk production of call detail records in the future, the government would be required to provide notice and briefing to this Court pursuant to FISC Rule 11. The production of all call detail records of all persons in the United States has never occurred under this program. For example, the government [redacted][my emphasis]

In context, the reference discusses not just whether the records of all the calls from all US telecom providers (AT&T, Sprint, and Verizon, which participated in this program on the date Eagan wrote the opinion, but also T-Mobile and Cricket, plus VOIP providers like Microsoft, owner of Skype, which did not) are turned over, but also whether each provider that does participate (AT&T, Sprint, and Verizon) turns over all the records on each call. The passage makes clear they don’t do the latter; AT&T, Sprint, and Verizon don’t turn over financial data, name, or cell location, for example! And since we know that at the time Eagan wrote this opinion, there were just those 3 providers participating, clearly the records of providers that didn’t use the backbone of those 3 providers or, in the case of Skype, would be inaccessible, would be missed. So not all call detail records from the providers that do provide records, nor records covering all the people in the US. But still a “very large volume” from AT&T, Sprint, and Verizon, the providers that happen to be covered by the suit.

That is, in context, the “all call detail records of all persons in the United States has never occurred” claim meant that even for the providers obligated under the order in question — AT&T, Sprint, and Verizon — there were parts of the call records (like the financial information) they didn’t turn over, though they turned over records for all calls. That’s consistent with Eagan’s quotation of the “virtually all” records with respect to the providers in question.

But by citing it disingenuously, Shea utterly changes the meaning Eagan accorded it.

Theresa Shea, disingenuously citing a declaration submitted in another suit: “Not all.”

It’s like the hilarity of Mad Magazine’s old Spy vs. Spy comics. Only in this case, it pits top spy Theresa Shea against top spy Theresa Shea.

Turns Out the NSA “May” Destroy Evidence of Crimes before 5 Years Elapse

The metadata collected under this order may be kept online (that is, accessible for queries by cleared analysts) for five years, at which point it shall be destroyed. — Phone dragnet order, December 12, 2008

The Government “takes its preservation obligations with the utmost seriousness,” said a filing signed by Assistant Attorneys General John Carlin and Stuart Delery submitted Thursday in response to Presiding FISA Court Judge Reggie Walton’s accusation they had made material misstatements to him regarding the question of destroying phone dragnet data.

Recognizing that data collected pursuant to the Section 215 program could be potentially relevant to, and subject to preservation obligations in, a number of cases challenging the legality of the program, including First Unitarian Church of Los Angeles  v. NSA,

… Signals Intelligence Division Director Theresa Shea wrote in her March 17 declaration (starting at page 81) explaining what the government has actually done to protect data under those suits.

At which point Shea proceeded to admit that the government hadn’t been preserving the data they recognized was potentially relevant to the suits at hand.

… since the inception of the FISC-authorized bulk telephony metadata program in 2006, the FISC’s orders authorizing the bulk collection of telephony metadata under FISA Section 501 (known also as the Section 215 program) require that metadata obtained by the NSA under this authority be destroyed no later than five years after their collection. In 2011, the NSA began compliance with this requirement (when the first metadata collected under the FISC authority was ready to be aged off) and continued to comply with it until this Court’s March 10 order and the subsequent March 12, 2014 order of the FISC.

Thursday’s filing added to that clarity, not only saying so in a footnote, but then submitting another filing to make sure the footnote was crystal clear.

Footnote 6 on page 5 was intended to convey that “[c]onsistent with the Government’s understanding of these orders in Jewel and Shubert, prior to the filing of the Government’s Motion for Second Amendment to Primary Order, the Government complied with this Court’s requirements that metadata obtained by the NSA under Section 215 authority be destroyed no later than five years after their collection.”

The significance seems clear. The Government admits it could potentially have a preservation obligation from the filing of the first Section 215 suit, Klayman v. Obama, on June 6, 2013. But nevertheless, it destroyed data for 9 months during which it recognized it could potentially have a preservation obligation.  That means data through at least March 9, 2009 and perhaps as late as September 10, 2009 may already be destroyed, assuming reports of biannual purging is correct. Which would perhaps not coincidentally cover almost all of the phone dragnet violations discovered over the course of 2009. It would also cover all, or almost all, of the period (probably)  NSA did not have adequate means of identifying the source of its data (meaning that Section 215 data may have gotten treated with the lesser protections of EO 12333 data).

And the amount of data may be greater, given that NSA now describes in its 5 year age-off requirement no affirmative  obligation to keep data five years.

This all means the government apparently has already destroyed data that might be implicated in the scenario Judge Jeffrey White (hypothetically) raised in a hearing on March 19, in which he imagined practices of graver Constitutional concern than the program as it currently operates five years ago.

THE COURT: Well, what if the NSA was doing something, say, five years ago that was broader in scope, and more problematical from the constitutional perspective, and those documents are now aged out? And — because now under the FISC or the orders of the FISC Court, the activities of the NSA have — I mean, again, this is all hypothetical — have narrowed. And wouldn’t the Government — wouldn’t the plaintiffs then be deprived of that evidence, if it existed, of a broader, maybe more constitutionally problematic evidence, if you will?

MR. GILLIGAN: There — we submit a twofold answer to that, Your Honor.

We submit that there are documents that — and this goes to Your Honor’s Question 5B, perhaps. There are documents that could shed light on the Plaintiffs’ standing, whether we’ve actually collected information about their communications, even in the absence of those data.

As far as — as Your Honor’s hypothetical goes, it’s a question that I am very hesitant to discuss on the public record; but I can say if this is something that the Court wishes to explore, we could we could make a further classified ex parte submission to Your Honor on that point.

According to the NSA’s own admissions, until just over 5 years ago, the NSA was watchlisting as many as 3,000 Americans without doing the requisite First Amendment review required by law. And that evidence — and potentially the derivative queries that arose from it — is apparently now gone.

Which puts a new spin on the narratives offered in the press about DOJ’s delay in deciding what to do with this evidence. WSJ described the semiannual age-off and suggested the issue with destroying evidence might pertain to standing.

As the NSA program currently works, the database holds about five years of data, according to officials and some declassified court opinions. About twice a year, any call record more than five years old is purged from the system, officials said.

A particular concern, according to one official, is that the older records may give certain parties legal standing to pursue their cases, and that deleting the data could erase evidence that the phone records of those individuals or groups were swept up in the data dragnet.

FP’s sources suggested DOJ was running up against that semiannual deadline.

A U.S. official familiar with the legal process said the question about what to do with the phone records needn’t have been handled at practically the last minute. “The government was coming up on a five-year deadline to delete the data. Lawsuits were pending. The Justice Department could have approached the FISC months ago to resolve this,” the official said, referring to the Foreign Intelligence Surveillance Court.

There should be no February to March deadline. Assuming the semiannual age-off were timed to March 1, there should have already been a September 1 deadline, at which point NSA presumably would have destroyed everything moving forward to March 1, 2009.

Which may mean NSA and DOJ put it off to permit some interim age-off, all the out of control violations from 2009.

We shall see. EFF and DOJ will still litigate this going forward. But as I look more closely at the timing of all this, DOJ’s very belated effort to attempt to preserve data in February seems to have served, instead, to put off dealing with preservation orders until the most potentially damning data got destroyed.

All of this is separate from the dispute over whether DOJ violated the preservation order in Jewel, and that case may be coming up on the 5 year destruction of the last violative Internet metadata, which might be aged off by April 30 (based on the assumption the Internet dragnet got shut down on October 30, 2009).

But even for he more narrow question of the phone dragnet, for which the government admits it may have data retention obligations, the government seems to have already violated those obligations and, in the process, destroyed some of the most damning data about the program. 

Why Did 3 Top DOJ Officials Feed Their Dog DOJ’s Homework?

DOJ has submitted what it claims is an explanation for why it materially misstated facts to Reggie Walton in discussions about destroying phone dragnet data. (See this post and this post for background.)

As you recall, Walton had read EFF’s emails closely enough to realize that EFF had asked Civil Division lawyers why they had claimed there was no protection order when they believed they had one.

A review of the E-mail Correspondence indicates that as early as February 26, 2014, the day after the government filed its February 25 Motion, the plaintiffs in Jewel and First Unitarian indeed sought to clarify why the preservation orders in Jewel and Shubert were not referenced in that motion. E-mail Correspondence at 6-7. The Court’s review of the E-mail Correspondence suggests that the DOJ attorneys may have perceived the preservation orders in Jewel and Shubert to be immaterial to the February 25 Motion because the metadata at issue in those cases was collected under what DOJ referred to as the “President’s Surveillance Program” (i.e., collection pursuant to executive authority), as opposed to having been collected under Section 215 pursuant to FISC orders — a proposition with which plaintiffs’ counsel disagreed. Id at 4. As this Court noted in the March 12 Order and Opinion, it is ultimately up to the Northern District of California, rather than the FISC, to determine what BR metadata is relevant to the litigation pending before the court.

As the government is well aware, it has a heightened duty of candor to the Court in ex parte procedings. See MODEL RULES OF PROF’L CONDUCT R. 3.3(d) (2013). Regardless of the government’s perception of the materiality of the preservation orders in Jewel andShubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northern District of California required the preservation of the FISA telephony metadata at issue in the government’s February 25 Motion. E-mail Correspondence at 6-7. The fact that the plaintiffs had this understanding of the preservation orders–even if the government had a contrary understanding–was material to the FISC’s consideration of the February 25 Motion. The materiality of that fact is evidenced by the Court’s statement, based on the information provided by the government in the February 25 Motion, that “there is no indication that nay of the plaintiffs have sought discovery of this information or made any effort to have it preserved.” March 7 Opinion and Order at 8-9.

The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs’ understanding of their scopre, regardless of whether the plaintiffs had made a “specific request” that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs’ counsel from immediately raising this issue with the FISC or the Northern District of California. E-mail Correspondence at 5.

DOJ’s excuse for not telling Walton EFF believed they had a protection order is roughly as follows:

1. Notwithstanding a past comment about preservation orders in the matters before Judge Walton, the government claims EFF’s suits are unrelated to the phone dragnet.

[T]he Government has always understood [EFF's suits] to be limited to certain presidentially authorized intelligence collection activities outside FISA, the Government did not identify those lawsuits, nor the preservation order issued therein, in its Motion for the Second Amendment to Primary Order filed in the above-captioned Docket number on February 25, 2014. For the same reasons, the Government did not notify this Court of its receipt of plaintiffs’ counsel’s February 26, 2014, e-mail.

Note, to sustain this claim, the government withheld both the state secrets declarations that clearly invoke the FISC-authorized dragnets as part of the litigation, even though the government’s protection order invokes it repeatedly, as well as Vaughn Walker’s preservation order which is broader than DOJ’s own preservation plan. Thus, they don’t give Walton the things he needs to be able to assess whether DOJ’s actions in this matter were remotely reasonable.

2. It explains that it never provided EFF with its own 2007 preservation plan (which did not meet the terms of Walker’s order) until March 17, 2014 because Stellar Wind — but not the FISC-authorized programs that the preservation plan excluded — was classified until December 2013.

A classified submission was necessary at that time [in 2007] because the existence of the presidentially-authorized program was classified and remained so until December 2013.

Note, it doesn’t mention that 19 days passed between the time EFF formally raised concerns about the protection order and the date DOJ actually provided the declassified protection plan to them, during which time, it appears, NSA destroyed one of the most damning half year’s worth of data in the program’s history (which I’ll return to in a later post).

3. In spite of EFF telling DOJ their earlier suits were relevant (and not having received the preservation plan which could have been declassified in December), DOJ claims they didn’t think they were relevant so it didn’t tell FISC about EFF’s beliefs.

Because the Government’s Motion for Second Amendment already had sought relief from this Court based on a list of BR metadata pursuant to FISC authorization, see Motion for Second Amendment at 3-5, counsel did not appreciate — even after receiving the email from plaintiffs’ counsel in Jewel — that it would be be important to notify this Court about Jewel and Shubert or the email from counsel for the Jewel plaintiffs about those cases with which the Government disagreed. Rather, counsel viewed any potential dispute about the scope of Jewel and Shubert preservation orders as a mater to be resolved, if possible, by the parties to those cases (though a potential unclassified explanation to plaintiffs’ counsel) or, failing that, by the district court.

Note what DOJ is not mentioning here? That EFF has a Section 215 lawsuit too, and that its understanding of the impact on that suit may have been influenced by the Shubert and Jewel protection orders.

4. DOJ’s Civil Division lawyers did not forward EFF’s email to DOJ’s National Security Division lawyers, they claim, because the Civil Division lawyers did not agree with EFF’s interpretation of the protection order.

For these reasons, counsel did not think to forward the email from Jewel Plaintiffs’ counsel to the attorneys with primary responsibility for interaction with this Court before the Court ruled on the Motion for Second Amendment. The Department wishes to assure the Court that it has always endeavored to maintain close coordination within the Department regarding civil litigation matters that involve proceedings before this Court, and will take even greater care to do so in the future.

5. DOJ told EFF to hold off formally alerting any Court in the belief that it could tell EFF about the preservation plan which could have been declassified in December but did not get declassified until 10 days after FISC issued its initial order requiring DOJ to destroy data, and that would solve everything.

In particular, the request in its February 28 email that counsel for the Jewel plaintiffs “forbear from filing anything with the FISC, or [the district court], until we have further opportunity to confer” was a good faith attempt to avoid unnecessary motions practice in the event that the issue could be worked out among the parties through the Government’s provision of an unclassified explanation concerning its preservation in Jewel and Shubert.

Continue reading

DOJ’s Multiple Authorities for Destroying Evidence

It seems like aeons ago, but just a week ago, EFF and DOJ had a court hearing over preserving evidence in the EFF lawsuits (Shubert, Jewel, and First Unitarian Church v. NSA). As I noted in two posts, a week ago Monday DOJ surprised EFF with the news that it had been following its own preservation plan, which it had submitted ex parte to Vaughn Walker, rather than the order Walker subsequently imposed. As a result, it has been aging off data in those programs (notably the PATRIOT-authorized Internet and phone dragnets) authorized by law, as opposed to what it termed Presidential authorization. DOJ’s behavior makes it clear that it is  trying to justify treating some data differently by claiming it was collected under different authorities.

Remember, there are at least five different legal regimes involved in the metadata dragnet:

  • EO 12333 authority for data going back to at least 1998
  • Stellar Wind authority lasting until 2004, 2006, and 2007 for different practices
  • PATRIOT-authorized authorities for Internet (until 2011) and phone records (until RuppRoge or something else passes)
  • SPCMA, which is a subset of EO 12333 authority that conducts potentially problematic contact chaining integrating US person Internet metadata
  • Five Eyes, which is EO 12333, but may involve GCHQ equities or, especially, ownership of the data

At the hearing and in their motions, EFF argued that their existing suits are not limited to any particular program (they didn’t name all these authorities, but they could have). Rather, they are about the act of dragnetting, regardless of what authority (so they’ll still be live suits after RuppRoge passes, for example).

EFF appears to have at least partly convinced Judge Jeffrey White, because on Friday he largely sided with EFF, extending the preservation order and — best as I can tell — endorsing EFF’s argument that their suits cover the act of dragnetting, rather than just the Stellar Wind, FISA Amendments Act, or phone and Internet dragnets.

With that as background, I want to look at a few things from the transcript of last Wednesday’s hearing. Continue reading

The October 30, 2009 Statement of Authorities: The EFF Document Fight Could Get Very Interesting

If the Chief FISC Judge accuses the government of material misrepresentations but no one but a dirty fucking hippie blogger reports it, did it happen?

On Friday, I reported on Judge Reggie Walton’s cranky opinion asking for an explanation about why the government didn’t tell him EFF believed they had a protection order in cases relevant to the dragnets. And while it overstates the resounding silence to say that only your esteemed DFH host reported it — TechDirt had a good reportsome of the other reporting on it thus far seems to have missed the whole material misrepresentation judgement in Walton’s order.

But I think it’s not yet clear — to anyone — how interesting this document fight could get.

Just as one example of why (I’ll develop some of the others over the next couple of days, I hope), consider the October 30, 2009 statement of authorities.

Earlier this month, I noted that EFF had submitted a list of filings that the government had not released in spite of what they believed to be Judge Jeffrey White’s order to declassify everything.

  • April 9, 2007 notices indicating FISC Judge rejected early bulk orders
  • October 25, 2007 government challenge to motion to protect evidence, with ex parte NSA official declaration submitted in Shubert
  • April 3, 2009 supplemental memorandum in Jewel
  • October 30, 2009 supplemental memorandum on points of authority in Shubert
  • November 2012

In last Wednesday’s hearing, the government claimed they didn’t have to release these because they engaged in a colloquy limiting White’s orders to the state secrets declarations. And for the moment, I’ll take that as accurate.

But since then, the government has released one of these — the October 25, 2007 challenge to the protection motion — as part of their filing on Monday fighting a protection order in EFF’s phone dragnet suit. And that document was pretty stunning. Not only did it show the government had redefined the Multidistrict Litigation suits so as to exclude any of the FISA-authorized metadata dragnets that EFF of course had no way of knowing about yet. But in the filing, the government revealed that because of this filing and in defiance of Vaughn Walker’s November 2007 protection order, it has been destroying the metadata dragnet data in the interim.

In other words, the government is withholding these filings because they’re fairly damning.

Which got me thinking about the timing and significance of the October 30, 2009 supplemental memorandum on points of authority supporting a motion to dismiss the Shubert suit based on sovereign immunity and state secrets.

At one level, the memorandum is not all that suspicious. As you can see above, the government filed what is presumably roughly the same filing at the analogous time in Jewel, just as it was making its state secrets bid.

But I find the timing of the October 30 filings in Shubert to be of particular interest. That’s because a 2011 NSA training program seems to indicate that the Internet dragnet shut down at almost precisely that time, as it indicates that Internet dragnet data collected prior to November 2009 requires some sort of special treatment.

In addition, in the source information at the end of the line, the SIGAD [redacted] BR data can be recognized by SIGADs beginning with [redacted] For PR/TT, data collected after October 2010 is found [redacted] For a comprehensive listing of all the BR and PR/TT SIGADs as well as information on PR/TT data collected prior to November of 2009, contact your organization’s management or subject matter expert.

Remember, Shubert was suing for illegal wiretapping. And while Judge John Bates did not fully assess what NSA was doing — which appears to be collecting data that counts as content in the guise of collecting metadata — until the following year (some time between July and October 2010), when he did so, he implied the government had to comply with the laws in which they were claiming, in 2009, they had sovereign immunity. And the government had to know by that point they had serious legal problems with the Internet dragnet.

Indeed, the government kept asking for extensions leading up to this filing — at the time they claimed it was because of DOJ’s whats-old-is-new state secrets policy. Altogether they got an extra 22 days to file this filing (which should have been substantially similar to the ones they filed in April). They were almost certainly having still-undisclosed problems with the phone dragnet (probably relating to dissemination of data), as the October 30, 2009 phone dragnet orders is one of the ones the government has withheld even though it is obviously responsive to ACLU and EFF’s FOIA. But the discussions on the Internet dragnet must have been even more contentious, given that the FISC (probably either Reggie Walton or John Bates) refused to reauthorize it. (Note, October 30, 2009 was a Friday, so if FISC formally didn’t approve the Internet dragnet in October 2009, it would have been that day).

And the thing is, from Keith Alexander’s state secrets declaration, submitted perhaps hours and almost certainly no more than a month before the Internet dragnet got shut down because it was illegally collecting metadata that was legally content, it’s not at all clear that the government fully disclosed details they knew about those legal problems with the dragnet. Look closely at ¶¶ 27 and 28, ¶¶48-56, ¶¶58-62 with footnotes.

The phone dragnet description hides the problems with ongoing dissemination problems (which the Administration hid from Congress, as well). It also makes no mention that the phone dragnet had US persons on an alert list without reviewing those selectors for First Amendment review, something that should be central to the suits against NSA (see in particular ¶60). And while there are redacted sentences and footnotes — 13 and 24 — which could include notice that the government was (and had been, since the inception of the FISC-authorized Internet dragnet) collecting metadata that counted as content, those are all very brief descriptions. Moreover, the unredacted descriptions clearly claim that the Internet dragnet program collects no content, which legally it almost certainly did. Moreover, note that the references to the Internet dragnet speak of it in the present tense: “Pursuant to the FISA Pen Register, …. NSA is authorized to collect in bulk.”But there doesn’t seem to be the parallel structure in ¶28 where you’d expect the government to confess that the program was imminently shutting down because it was illegally collecting Internet content.

Note, too, how the declaration refers to the reauthorizations. ¶59 describes the phone dragnet authority “continuing until October 30, 2009″ and ¶58 describes the Internet dragnet “requires continued assistance by the providers through [redacted] 2009. They appear not to have known for sure whether the programs would be reauthorized that night! But they appear not to have explained why not.

Perhaps the most pregnant paragraph is ¶62, which in context appears to relate only to the phone dragnet, though I suspect the government would point to to claim their description of violations was not comprehensive:

NSA is committed to working with the FISC on this and other compliance issues to ensure that this vital intelligence tool works appropriately and effectively. For purposes of this litigation, and the privilege assertions now made by the DNI and by the NSA, the intelligence sources and methods described herein remain highly classified and the disclosure that [redacted] would compromise vital NSA sources and methods and result in exceptionally grave harm to national security.

By any measure, Alexander’s declaration falls short of what the government already knew at that time, demonstrably so in the case of the phone dragnet. He hid details — significantly, the watchlist of Americans that violated statute, and almost certainly that the NSA was collecting content in the name of metadata — that were material to the suits at hand.

Which brings me to the memo on authorities. Even as the government was hiding material violations of the statutes they were disclosing to Judge Walker, was it also making expansive Executive Authority claims it couldn’t (and still can’t) share with plaintiffs? Did the government, for example, make an Executive Authority claim that we have every reason to believe John Bates (especially) and Reggie Walton would rebut if they knew about it?

In any case, in addition to the watchlist data from those 3,000 US persons (which would have aged off last month otherwise), the last of the illegal Internet content-as-metadata data might be aged off as soon as April absent these stays.That data might well provide plaintiffs proof they were illegally wiretapped (note, the Internet dragnet was limited to certain switches, but Jewel was built around the Folsom Street switch which was almost certainly included in that). And that the government provided highly misleading descriptions to Vaughn Walker when bidding for a state secrets exemption.

And add in one more legal fight here: as I noted, DOJ is withholding the October 30, 2009 (as well as one later one from 2009) from both the ACLU and EFF (the EFF suit is before a different San Francisco judge). In addition, DOJ is refusing all push for expedited processing on FOIAs for the Internet dragnet filings.

Seeing how clearly manipulative their data release in these lawsuits is, it seems safe to suggest the government is also making FOIA decisions to prevent plaintiffs from obtaining information to really contest these suits. That shouldn’t surprise anyone. But I would hope it would piss off the judges.

Judge Reggie Walton Is Pissed that Government Is Making Material Misstatements to FISC, Again

FISA Court Chief Judge Reggie Walton just issued a rather unhappy order requiring the government to explain why it materially misstated the facts about whether any plaintiffs had protection orders that governed the phone dragnet.

Generally, he wants to know why the government didn’t tell him that EFF had protection orders in the Jewel and Shubert cases. More specifically, he wants to know why they didn’t tell him that — as I reported here — the EFF had asked the government how they could claim there was no protection order when they had one in their suits of the larger dragnet.

A review of the E-mail Correspondence indicates that as early as February 26, 2014, the day after the government filed its February 25 Motion, the plaintiffs in Jewel and First Unitarian indeed sought to clarify why the preservation orders in Jewel and Shubert were not referenced in that motion. E-mail Correspondence at 6-7. The Court’s review of the E-mail Correspondence suggests that the DOJ attorneys may have perceived the preservation orders in Jewel and Shubert to be immaterial to the February 25 Motion because the metadata at issue in those cases was collected under what DOJ referred to as the “President’s Surveillance Program” (i.e., collection pursuant to executive authority), as opposed to having been collected under Section 215 pursuant to FISC orders — a proposition with which plaintiffs’ counsel disagreed. Id at 4. As this Court noted in the March 12 Order and Opinion, it is ultimately up to the Northern District of California, rather than the FISC, to determine what BR metadata is relevant to the litigation pending before the court.

As the government is well aware, it has a heightened duty of candor to the Court in ex parte procedings. See MODEL RULES OF PROF’L CONDUCT R. 3.3(d) (2013). Regardless of the government’s perception of the materiality of the preservation orders in Jewel and Shubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northern District of California required the preservation of the FISA telephony metadata at issue in the government’s February 25 Motion. E-mail Correspondence at 6-7. The fact that the plaintiffs had this understanding of the preservation orders–even if the government had a contrary understanding–was material to the FISC’s consideration of the February 25 Motion. The materiality of that fact is evidenced by the Court’s statement, based on the information provided by the government in the February 25 Motion, that “there is no indication that nay of the plaintiffs have sought discovery of this information or made any effort to have it preserved.” March 7 Opinion and Order at 8-9.

The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs’ understanding of their scopre, regardless of whether the plaintiffs had made a “specific request” that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs’ counsel from immediately raising this issue with the FISC or the Northern District of California. E-mail Correspondence at 5.

In a number of places, Walton provides an out for the government, suggesting they might just be stupid and not obstructing (those are my words, obviously). He even goes so far as to suggest that DOJ might have an internal communication problem between the Civil Division, which is litigating the EFF suits, and the National Security Division, which works with FISC.

But then he notes that both Civil AAG Stuart Delery and Acting NSD AAG John Carlin submitted the filings to him.

The government’s failure to inform the FISC of the plaintiffs’ understanding that the prior preservation orders require retention of Section 591 telephony metadata may have resulted from imperfect communication or coordination within the Department of Justice rather than from deliberate decision-making.4 Nonetheless, the Court expects the government to be far more attentive to its obligations in its practice before this Court.

4 Attorneys from the Civil Division of the Department of Justice participated in the E-Mail Correspondence with plaintiffs’ counsel. As a general matter, attorneys from the National Security Division represent the government before the FISC. The February 25 Motion, as well as the March 13 Response, were submitted by the Assistant Attorney General for the Civil Division and the Acting Attorney General for the National Security Division.

Frankly, I hope Walton ultimately tries to learn why he wasn’t told about these protection orders in more detail years ago, when the government was deciding whether or not to destroy evidence of lawbreaking that Walton first identified in 2009. I also hope he gets to the bottom of why Deputy Attorney General James Cole had to intervene in this issue. But for now, I’m happy to see DOJ taken to the woodshed for misinforming the Court.

Update: Meanwhile, on the other coast, Judge Jeffrey White issued a protection order that is far broader than the government would prefer it to be. The government had implied that the First Unitarian Church suit only covered Section 215; earlier this week (I’ve got a post half written on it), EFF argued they’re challenging the dragnet, irrespective of what authorization the government used to collect it. Nothing in White’s order limits the protection order to Section 215 and this passage seems to encompass the larger dragnet.

Defendants’ searching of the telephone communications information of Plaintiffs is done without lawful authorization, probable cause, and/or individualized suspicion. It is done in violation of statutory and constitutional limitations and in excess of statutory and constitutional authority. Any judicial, administrative, or executive authorization (including any business records order issued pursuant to 50 U.S.C. § 1861) of the Associational Tracking Program or of the searching of the communications information of Plaintiffs is unlawful and invalid.

Update: fixed a typo in which I inadvertently said Walton caused rather than found the lawbreaking in 2009.

The Government Has a Festering EO 12333 Problem In Jewel/First Unitarian

The government claims it does not have a protection order pertaining to the phone dragnet lawsuits because the suits with a protection order pertain only to presidentially-authorized programs.

The declaration made clear, in a number of places, that the plaintiffs challenged activities that occurred under presidential authorization, not under orders of the Foreign Intelligence Surveillance Court (FISC), and that the declaration was therefore limited to describing information collected pursuant to presidential authorization and the retention thereof.

Therefore, the government is challenging the EFF’s effort to get Judge Jeffrey White to reaffirm that the preservation orders in the Multidistrict Litigation and Jewel apply to the phone dragnet.

Fine. I think EFF can and should challenge that claim.

But let’s take the government at its word. Let’s consider what it would obliged to retain under the terms laid out.

The government agrees it was obliged, starting in 2007, to keep the content and metadata dragnets that were carried out exclusively on presidential authorization. Indeed, the declaration from 2007 they submitted describing the material they’ve preserved includes telephone metadata (on tapes) and the queries of metadata, including the identifiers used (see PDF 53). It also claimed it would keep the reports of metadata analysis.

That information is fundamentally at issue in First Unitarian Church, the EFF-litigated challenge to the phone dragnet. That’s true for three reasons.

First, the government makes a big deal of their claim, made in 2007, that the metadata dragnet databases were segregated from other programs. Whether or not that was a credible claim in 2007, we know it was false starting in early 2008, when “for the purposes of analytical efficiency,” a copy of that metadata was moved into the same database with the metadata from all the other programs, including both the Stellar Wind phone dragnet data, and the ongiong phone dragnet information collected under EO 12333.

And given the government’s promise to keep reports of metadata analysis, from that point until sometime several years later, it would be obliged to keep all phone dragnet analysis reports involving Americans. That’s because — as is made clear from this Memorandum of Understanding issued sometime after March 2, 2009 — the analysts had no way of identifying the source of the data they were analyzing. The MOU makes clear that analysts were performing queries on data including “SIGINT” (EO 12333 collected data), [redacted] — which is almost certainly Stellar Wind, BRFISA, and PR/TT. So to the extent that any metadata report didn’t have a clear time delimited way of identifying where the data came from, the NSA could not know whether a query report came from data collected solely pursuant to presidential authorization or FISC order. (The NSA changed this sometime during or before 2011, and now metadata all includes XML tags showing its source; though much of it is redundant and so may have been collected in more than one program, and analysts are coached to re-run queries to produce them under EO 12333 authority, if possible.)

Finally, the real problem for the NSA is that the data “alerted” illegally up until 2009 — including the 3,000 US persons watchlisted without undergoing the legally required First Amendment review — was done so precisely because when NSA merged its the phone dragnet data with the data collected under Presidential authorization — either under Stellar Wind or EO 12333 — it applied the rules applying to the presidentially-authorized data, not the FISC-authorized data. We know that the NSA broke the law up until about 5 years ago. We know the data from that period — the data that is under consideration for being aged off now — broke the law precisely because of the way the NSA mixed EO 12333 and FISC regulations and data.

The NSA’s declarations on document preservation — not to mention the declarations about the dragnets more generally — don’t talk about how the EO 12333 data gets dumped in with and mixed up with the FISC-authorized data. That’s NSA’s own fault (and if I were Judge White it would raise real questions for me about the candor of the declarants).

But since the government agreed to preserve the data collected pursuant to presidential authorization without modification (without, say, limiting it to the Stellar Wind data), that means they agreed to preserve the EO 12333 collected data and its poisonous fruit which would just be aging off now.

I will show in a follow-up post why that data should be utterly critical, specifically as it pertains to the First Unitarian Church suit.

But suffice it to say, for now, that the government’s claim that it is only obliged to retain the US person data collected pursuant to Presidential authorization doesn’t help it much, because it means it has promised to retain all the data on Americans collected under EO 12333 and queries derived from it.

The Clear Precedent for Carrie Cordero’s “Uncharted Territory” of Destruction of Evidence

Shane Harris has a report on the government’s odd behavior in regards to preserving the phone dragnet data in light of the suits challenging its legality.

It’s surprising on three counts. First, because he claims the legal back and forth has not previously been reported.

Now, that database will include phone records that are older than five years — not exactly the outcome that critics of the NSA program were hoping for. A dramatic series of legal maneuvers, which have not been previously reported, led the outcome.

It’s surprising not just because the “legal maneuvers” have in fact been reported before (though not the detail that James Cole got involved, though it’s not yet clear how his involvement affected the actual legal maneuvers rather than the internal DOJ communication issues). But also because Harris neglects to mention key details of those legal maneuvers — notably that EFF reminded DOJ, starting on February 26, that it had preservation orders that should affect the dragnet data, reminders which DOJ stalled and then ignored.

Harris’ piece is also surprising because of the implicit suggestion that NSA hasn’t been aging off data regularly, as it is supposed to be.

A U.S. official familiar with the legal process said the question about what to do with the phone records needn’t have been handled at practically the last minute. “The government was coming up on a five-year deadline to delete the data. Lawsuits were pending. The Justice Department could have approached the FISC months ago to resolve this,” the official said, referring to the Foreign Intelligence Surveillance Court.

There should be no “deadline” here — aside from the daily “deadline” that should automatically age off the five year old data. Now, the WSJ had previously reported that that’s not actually how age-off works.

As the NSA program currently works, the database holds about five years of data, according to officials and some declassified court opinions. About twice a year, any call record more than five years old is purged from the system, officials said.

But even assuming NSA only ages off data twice a year (in which case they should stop claiming they only “keep” data for 5 years because they already keep some of it for 5 1/2 years), most of these suits are well older than 6 months old, predating what might have been an August age-off, which means unless NSA already deviated from its normal pattern, it deleted data relevant to the suits.

By far the most surprising detail in Harris’ story, however, is this response from former DOJ National Security Division Counsel Carrie Cordero to the news that Deputy Attorney General James Cole has gotten involved. This is, Cordero claims, “uncharted territory.”

“This is all uncharted territory,” said Carrie Cordero, a former senior Justice Department official who recently served as the counsel to the head of the National Security Division. “Given the complexity and the novelty of this chain of events, it’s a good thing that the deputy attorney general is personally engaged, and it demonstrates the significant attention that they’re giving to it.”

To be more specific about Cordero’s work history, from 2007 to 2011, she was deeply involved in FISA-related issues, first at ODNI and then at DOJ’s NSD.

In 2009, I served as Counsel to the Assistant Attorney General for National Security at the Unit ed States Department of Justice, where I co – chaired an interagency group created by the Director of National Intelligence (DNI) to improve FISA processes. From 2007 – 2009, I served in a joint duty capacity as a Senior Associate General Counsel at the Office of the Director of National Intelligence, where I worked behind the scenes on matters relating to the legislative efforts that resulted in the FISA Amendments Act of 2008.

Given her position in the thick of FISA-related issues, one would think she was at least aware of the protection order Vaughn Walker issued on November 6, 2007 ordering the preservation of evidence, up to and including “tangible things,” in the multidistrict litigation issues pertaining to the dragnet.

[T]he court reminds all parties of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data and tangible things in the possession, custody and control of the parties to this action,

And Cordero presumably should be aware that Walker renewed the same order on November 13, 2009, extending it to cover the Jewel suit, which had an ongoing focus.

Cordero is presumably aware of two other details. First, there should be absolutely no dispute that the phone dragnet was covered by these suits. That’s because at least as early as May 25, 2007 (and again in a declaration submitted October 2009), Keith Alexander included the phone dragnet among the things he considered related to the EFF and other suits over which he claimed state secrets.

In particular, disclosure of the NSA’s ability to utilize the TSP (or, therefore, the current FISA Court-authorized content collection) in conjunction with contact chaining [redacted--probably relating to data mining] would severely undermine efforts to detect terrorist activities.

[snip]

To the extent that the NSA’s bulk collection and targeted analysis of communication meta data may be at issue in this case, those activities–as described in paragraphs 27 and 28 above–must also be protected from disclosure.

In paragraphs 27 and 28 and the following paragraphs, Alexander named the FISC Pen Register and Telephone Records Orders by name.

Thus, as far back as 2007, the NSA acknowledged that it used its content collection in conjunction with its metadata dragnets, including data obtained pursuant to the FISA dragnet orders.

Continue reading

The Government Tries to Quickly Force Feed Its Dog Its Phone Dragnet Homework

I have been following the government’s claims that it needs to make the phone dragnet plaintiffs look bad preserve evidence in the phone dragnet cases. I noted:

  1. NSA’s claim, on February 20, that it might need to preserve the phone dragnet information
  2. EFF Legal Director Cindy Cohn’s observation that NSA already should have been preserving phone dragnet data because of earlier orders in EFF cases
  3. NSA’s own claim, in 2009, that it was under a preservation order that might prevent it from destroying illegal alert information
  4. NSA’s own quickness to destroy 3,000 violative files in 2012 when caught retaining data in ways it shouldn’t have been
  5. NSA’s rather bizarre claim — given their abysmal track record on this point — that a great concern about defendants’ rights meant they had to keep the data
  6. The likelihood that, that claim of concern about defendants’ rights notwithstanding, NSA had probably already destroyed highly relevant data pertaining to Basaaly Moalin
  7. FISC’s equally bizarre — given their own destruction of any normal meaning of the word, “relevant” — order to force the government to continue destroying the dragnet data

That last bit — FISC’s order that the government go on destroying data in spite of existing protection orders to retain it — happened Friday.

Since Friday, the EFF has been busy.

First, it filed a motion for a Temporary Restraining Order to retain the records, pointing out that there have been two preservation order in effect for at least 5 years that should govern the phone dragnet.

There has been litigation challenging the lawfulness of the government’s telephone metadata collection activity, Internet metadata collection activity, and upstream collection activity pending in the Northern District of California continuously since 2006. The government has been under evidence preservation orders in those lawsuits continuously since 2007.

The first-filed case was Hepting v. AT&T, No. 06-cv-0672 (N.D. Cal). It became the lead case in the MDL proceeding in this district, In Re: National Security Agency Telecommunications Records Litigation, MDL No. 06-cv-1791-VRW (N.D. Cal). On November 6, 2007, this Court entered an evidence preservation order in the MDL proceeding. ECF No. 393 in MDL No. 06-cv- 1791-VRW. One of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv- 0603-JSW (N.D. Cal.), remains in litigation today before this Court, and the MDL preservation order remains in effect today as to that case.

In 2008, movants filed this action—Jewel v. NSA—and this Court related it to the Hepting action. This Court entered an evidence preservation order in Jewel. ECF No. 51. The Jewel evidence preservation order remains in effect as of today.

EFF also filed a similar motion with the FISA Court.

And it provided all the emailed reminders it sent the government, starting on February 26 after the government filed a motion with FISC to destroy the data, that it was already under a preservation order. On February 28, DOJ asked EFF to hold off until roughly March 5. But DOJ did nothing at that time, and EFF followed up again on March 7, after the order, asking how it was that the FISC didn’t know that existing preservation orders covered the phone dragnet. In response, DOJ’s Marcia (Marcy) Berman got dragged back into the case to give this convincing response.

[T]he Government’s motion fo the FISC, and the FISC’s decision today [March 7], addressed the recent litigation challenging the FISC-authorized telephony metadata collection under Section 215-litigation as to which there are no preservation orders. As we indicated last week, the Government’s motion did not address the pending Jewel (and Shubert) litigation because the district court had previously entered preservation orders applicable to those cases. As we also indicated, since the entry of those orders the Government has complied with our preservation obligations in those cases. At the time the preservation issue was first litigated in the MDL proceedings in 2007, the Government submitted a classified ex parte, in camera declaration addressing in detail the steps taken to meet our preservation obligations. Because the activities undertaken in connection with the President’s Surveillance Program (PSP) were not declassified until December 2013, we were not able to consult with you previously about the specific preservation steps that have been taken with respect to the Jewel litigation. However, the Government described for the district court in 2007 how it was meeting its preservation obligations, including with respect to the information concerning the PSP activities declassified last December. We have been working with our clients to prepare an unclassified summary of the preservation steps described to the court in 2007 so that we can address your questions in an orderly fashion with Judge White, if you continue to believe that is necessary.

After San Francisco Judge Jeffrey White ordered the government to explain itself, the government changed the timeline, suppressing the fact that they told EFF to hold off on making any filings. It also said it would just have to keep destroying data.

Therefore, in light of the FISC’s March 7 order, the Government currently remains subject to orders of the FISC—the Article II Court established by Congress with authority to issue orders pursuant to FISA and to impose specific minimization requirements—which orders require the destruction of call-details records collected by the NSA pursuant to Section 215 that are more than five years old.

In light of the obligations created by those orders, on March 7, 2014, upon receipt of the FISC’s decision, the Government filed a notice in First Unitarian and other cases challenging the legality of the Section 215 telephony metadata program of the Government’s intention, as of the morning of Tuesday, March 11, 2014, to comply with applicable FISC orders requiring the destruction of call-detail records at this time, absent a court order to the contrary.

Judge White was not impressed — he issued an order requiring the government to retain the data.

There are two things, even at first glance, that don’t make sense about all this.

First, there’s still one case that hasn’t been officially mentioned in any court discussion of retaining data I know of: Basaaly Moalin’s challenge to his dragnet identification, based off 2007 data that has probably already been destroyed but which almost certainly would reflect the many violations characteristic of the program at the time.

Then there’s the likelihood that one or both of the EFF cases was the case mentioned on February 17, 2009 — just over the 5 year age-off period at this point — regarding age-off requirements. If it was relevant then, why isn’t it now? Note, Reggie Walton is still presiding over the same decisions, so if that earlier case were an EFF one, Walton should know about it.

I would normally think this charade was just two sides lobbying for good press. Except that the phone dragnet data from just over 5 years ago — the stuff that would age off if the government followed FISC’s order — would show a great deal of violations, almost certainly constitutionally so.

So who is the entity in such a rush to destroy that data? DOJ? Or the FISC?

Emptywheel Twitterverse
JimWhiteGNV Grumpy surveillance apologists are STILL grumpy.
25mreplyretweetfavorite
emptywheel RT @ashk4n: Fed appeals court affirms Lavabit district decision: providing SSL keys in 4-point font is in contempt http://t.co/u0LDsGyV8L #…
28mreplyretweetfavorite
JimWhiteGNV RT @NRCATtweets: COMMENTARY: CIA #torture report ought to disturb all our consciences http://t.co/yK1oWO0ALz via @washingtonpost
48mreplyretweetfavorite
bmaz RT @JoshMBlackman: Did Congress Pass A Bill Of Attainder That Denied Visa to Iranian Envoy Who Was Involved in 1979 Hostage Crisi... http:/…
3hreplyretweetfavorite
emptywheel @barryeisler Nope. Just noting it on twitter and elsewhere. Glad you wrote it up.
5hreplyretweetfavorite
emptywheel @adambonin Wait. David Brooks? Can I get my tuition back? @NateSilver538 @AmherstCollege
10hreplyretweetfavorite
emptywheel @adambonin Wait what?!?! I'd say got to Brunos but I understand ... sadly ... @NateSilver538 @AmherstCollege
10hreplyretweetfavorite
emptywheel Fat Evil Parallel Gore RT @twolf10: Snow sticking to ground in mid April, 2 days after almost hit 80. I blame evil parallel universe Al Gore
11hreplyretweetfavorite
bmaz That said Olivia Wilde was one light year closer to Suzy Miller than Chris Hemsworth was to the real James Hunt who I actually knew a little
11hreplyretweetfavorite
bmaz I was fortunate enough to meet Suzy Miller back in the day, and Olivia Wilde looks nothing at all like her.
11hreplyretweetfavorite
emptywheel @adamgoldmanwp Lots of reasons to imagine why it might remain suppressed, most innocuous of which is investigation in key stage.
11hreplyretweetfavorite
emptywheel @adamgoldmanwp It may not be in there--but it is in HHSAC report. Prosecutors won't let Dhokhar's team see it either.
11hreplyretweetfavorite
April 2014
S M T W T F S
« Mar    
 12345
6789101112
13141516171819
20212223242526
27282930