As you likely know, there have been two developments with NSLs in the last few days. First, Twitter sued DOJ, on First Amendment grounds, to be able to publish how many NSLs and FISA orders it has received. And EFF argued before the 9th Circuit that the entire NSL statute should be declared unconstitutional.
These developments intersect with the USA Freedom Act in an interesting way. In the 9th Circuit, the Court (I believe this is Mary Murguia based on tweets from lawyers who were there, but am not certain) asked why Congress hasn’t just fixed the Constitutional problems identified in Doe v. Mukasey with NSL gag orders.
That set off DOJ Appellate lawyer Douglas Letter hemming and hawing in rather unspecific language (my transcription).
Mary Murguia: Have any measures been taken to Congress to try to change that reciprocal notice procedure, to make it legal as the 2nd Circuit suggested?
Douglas Letter: Your honor, my understanding is, and I’m a little hesitant to talk about this in this sense, as we know proposals can be made to Congress and who knows what will happen? The government is working on some, a, is working with Congressional staffers etcetera, we would hope that at some point we would have legislation. We do not as this point. I’m not, I’m not going to here make any predictions whether anything passes.
What Letter was talking about — bizarrely without mentioning it — was a provision addressing the unconstitutional NSL gags in USA Freedom Act.
The provision fixes one part of the NSLs by putting the onus on FBI to review every year whether gags must remain in place.
(A) IN GENERAL.—In the case of any request under subsection (b) for which a recipient has submitted a notification to the Government under section 3511(b)(1)(A) or filed a petition for judicial review under subsection (d)—
(i) an appropriate official of the Federal Bureau of Investigation shall, until termination of the nondisclosure requirement, review the facts supporting a nondisclosure requirement annually and upon closure of the investigation; and
(ii) if, upon a review under clause (i), the facts no longer support the nondisclosure requirement, an appropriate official of the Federal Bureau of Investigation shall promptly notify the wire or electronic service provider, or officer, employee, or agent thereof, subject to the nondisclosure requirement, and the court as appropriate, that the nondisclosure requirement is no longer in effect.
This would fix the problem identified by the 2nd Circuit.
Except that, bizarrely, it would require FBI to do what Letter represented to the Court FBI could not do — review the gags every year. Presumably, they assume so few providers will challenge the gag that they’ll be able to manage those few yearly reviews that would be required.
Which might be what this language is about.
(B) CLOSURE OF INVESTIGATION.—Upon closure of the investigation—
(i) the Federal Bureau of Investigation may petition the court before which a notification or petition for judicial review under subsection (d) has been filed for a determination that disclosure may result in the harm described in clause (i), (ii), (iii), or (iv) of paragraph (1)(B), if it notifies the recipient of such petition;
(ii) the court shall review such a petition pursuant to the procedures under section 3511; and
(iii) if the court determines that there is reason to believe that disclosure may result in the harm described in clause (i), (ii), (iii), or (iv) of paragraph (1)(B), the Federal Bureau of Investigation shall no longer be required to conduct the annual review of the facts supporting the nondisclosure requirement under subparagraph (A).
That is, in addition to fixing the constitutional problem with NSLs, USAF provides FBI way out of the supposedly onerous problem that fix requires, by establishing a way to get a permanent gag.
The NSL provisions in USAF have not gone totally unnoticed. Perhaps appropriately, one of the few public comments on it came from the EFF. It lumps it in with FBI’s exemption from reporting back door searches.
The FBI is exempt from Section 702 reporting, and the bill appears to provide a path for the FBI to get permanent gag orders in connection with national security letters.
And bill champion Kevin Bankston is acutely aware of the dynamic as well; after Twitter announced his suit he suggested this was a good reason to pass USAF.
Me, I’d rather let the courts work and get the leverage we might get that way.
Especially since it seems like FBI is more able to review yearly gag renewals that Letter told the court.
On Tuesday, EFF told the tale of yet another government freak-out over purportedly classified information. The DOJ lawyer litigating their multiple dragnet challenges, Anthony Coppolino, accidentally uttered classified information in a hearing in June. So the government tried to take the classified information out of the transcript without admitting they did so. After Judge Jeffrey White let EFF have a say about all this, the government ultimately decided the information wasn’t classified after all. So the Court finally released the transcript.
My wildarseguess is that this is the passage in question:
Judge Bates never ultimately held that the acquisition violated the Constitution. The problem in that case was the minimization procedures were not sufficient to protect the Fourth Amendment interests of the people of the United States.
And so he ordered that they be changed, and they were changed. And he approved them. And in addition, in the process of not only approving the minimization procedures, NSA implemented new system architecture that did a better job at assuring that those communications were minimized and ultimately destroyed, which is the goal here. It’s part of the statutory framework not to collect on U.S. citizens and when you’ve incidentally done it, destroy it. [my emphasis]
According to the John Bates opinions relating to this incident, the NSA implemented a new system of ingesting this data, marking it, checking it before it gets moved into the general repository of data, and purging it if it includes entirely domestic commuincations. But does that count as new architecture? I’m not sure.
Meanwhile, the NSA has been upgrading their architecture. We learned that (among other places) in the most recent Theresa Shea declaration on NSA systems in EFF’s Jewel case. It doesn’t mention new architecture pertaining to upstream 702, though she does discuss a more general architecture upgrade and how it affects Section 215 specifically.
Then there’s this language, addressing the NSA’s inability to filter US person data reliably, from PCLOB.
The NSA’s acquisition of MCTs is a function of the collection devices it has designed. Based on government representations, the FISC has stated that the “NSA’s upstream Internet collection devices are generally incapable of distinguishing between transactions containing only a single discrete communication to, from, or about a tasked selector and transactions containing multiple discrete communications, not all of which are to, from, or about a tasked selector.”155 While some distinction between SCTs and MCTs can be made with respect to some communications in conducting acquisition, the government has not been able to design a filter that would acquire only the single discrete communications within transactions that contain a Section 702 selector. This is due to the constant changes in the protocols used by Internet service providers and the services provided.156 If time were frozen and the NSA built the perfect filter to acquire only single, discrete communications, that filter would be out-of-date as soon as time was restarted and a protocol changed, a new service or function was offered, or a user changed his or her settings to interact with the Internet in a different way. Conducting upstream Internet acquisition will therefore continue to result in the acquisition of some communications that are unrelated to the intended targets.
The fact that the NSA acquires Internet communications through the acquisition of Internet transactions, be they SCTs or MCTs, has implications for the technical measures, such as IP filters, that the NSA employs to prevent the intentional acquisition of wholly domestic communications. With respect to SCTs, wholly domestic communications that are routed via a foreign server for any reason are susceptible to Section 702 acquisition if the SCT contains a Section 702 tasked selector.157 With respect to MCTs, wholly domestic communications also may be embedded within Internet transactions that also contain foreign communications with a Section 702 target. The NSA’s technical means for filtering domestic communications cannot currently discover and prevent the acquisition of such MCTs.158
The footnotes in this section all cite to John Bates’ 2011 opinion (including, probably, some language that remains redacted in the public copy, such as on page 47). So we might presume it is out of date. Except that PCLOB has done independent work on these issues and the end of the first paragraph includes language not sourced at all.
That is, PCLOB seems to think there remain technical problems with sorting out US person data, the filtering problem cannot be solved. (Which makes the ridiculous John Bates more skeptical on this point than PCLOB.)
So do the data segregation techniques implemented in 2011 amount to new architecture? Does the larger architecture upgrade going on going to affect upstream collection in some more meaningful fashion?
I don’t know. One other reason I think this might be the language is because Coppolino was — as he frequently does — running his mouth. Bates did rule the US person data collected before 2011 violated the Fourth Amendment, even if the task before him was solely to judge whether the minimization procedures before him did. More importantly, Bates was quite clear that this US person collection was intentional, not incidental.
So Coppolino was making claims about one of the practices (the PRTT collection is another) that is most likely to help EFF win their suit, upstream collection, which actually does entail domestic wiretapping of US person content. He made a claim that suggested — with the fancy word “architecture” — that NSA had made technical fixes. But PCLOB, at least, doesn’t believe they’ve gotten to the real issue.
Who knows? It’s just a guess. What’s not a guess is that Coppolino seems to recognize upstream 702 presents a real problem in this suit.
The ACLU and EFF normally do great work defending the Fourth Amendment. Both have fought the government’s expansive spying for years. Both have fought hard to require the government obtain a warrant before accessing your computer, cell phone, and location data.
But earlier this week, they may have taken action that directly undermines that good work.
On Wednesday, both civil liberties organizations joined in a letter supporting Patrick Leahy’s version of USA Freedom Act, calling it a necessary first step.
We support S. 2685 as an important first step toward necessary comprehensive surveillance reform. We urge the Senate and the House to pass it quickly, and without
making any amendments that would weaken the important changes described above.
ACLU’s Laura Murphy explained why ACLU signed onto the bill in a column at Politico, analogizing it to when, in 2010, ACLU signed onto a bill that lowered, but did not eliminate, disparities in crack sentencing.
Reform advocates were at a crossroads. Maximalists urged opposition despite the fact the bill would, in a very real way, make life better for thousands of people and begin to reduce the severe racial and ethnic inequality in our prison system. Pragmatists, fearing that opposition to the bill would preclude any reform at all, urged support.
It was a painful compromise, but the ACLU ultimately supported the bill. It passed, astoundingly, with overwhelming support in both chambers.
And then something amazing happened. Conservative lawmakers, concerned about government waste, increasingly came to the table to support criminal justice reform. Liberals realized they could vote their conscience on criminal justice without accusations of being “soft on crime.” It has not been easy and there have been many steps backward, but in recent years, we’ve seen greater public opposition to mandatory minimum sentences and real movement on things like reducing penalties for low-level drug offenses.
The analogy is inapt. You don’t end crack disparities by increasing the number of coke dealers in jail. But Leahy’s USA Freedom Act almost certainly will increase the number of totally innocent Americans who will be subjected to the full brunt of NSA’s analytical authorities indefinitely.
That’s because by outsourcing to telecoms, NSA will actually increase the total percentage of Americans’ telephone records that get chained on; sources say it will be more “comprehensive” than the current dragnet and Deputy NSA Director Richard Ledgett agrees the “the actual universe of potential calls that could be queried against is [potentially] dramatically larger.” In addition, the telecoms are unlikely to be able to remove all the noisy numbers like pizza joints — as NSA currently claims to – meaning more people with completely accidental phone ties to suspects will get sucked in. And USA Freedom adopts a standard for data retention — foreign intelligence purpose — that has proven meaningless in the past, so once a person’s phone number gets turned over to the NSA, they’ll be fair game for further NSA spying, the really invasive stuff, indefinitely.
But that’s not the reason I find ACLU and EFF’s early support for USA Freedom so astounding.
I’m shocked ACLU and EFF are supporting this bill because they don’t know what the NSA will be permitted to do at the immunized telecoms. They have blindly signed onto a bill permitting “connection chaining” without first understanding what connection chaining entails.
As I have reported extensively, while every witness who has talked about the phone dragnet has talked about chaining on phone calls made — all the calls Anwar al-Awlaki made, all the calls those people made — the language describing this chaining process has actually been evolving. Dianne Feinstein’s Fake FISA Fix last fall allowed the NSA to chain on actual calls — as witnesses had described — but also on communications (not just calls) “to or from any selector reasonably linked to the selector.” A February modification and the last two dragnet orders permitted NSA to chain on identifiers “with a contact and/or connection” with the seed, making it clear that a “connection” is something different than a “contact.” The House bill USA Freedumber adopted the same language in a legislative report. Leahy’s bill adopts largely the same language for chaining.
(iii) provide that the Government may require the prompt production of call detail records—
(I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and
(II) using call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records;
Now, it’s possible that this language does nothing more than what NSA illegally did until 2009: chain on both the identifier itself, but also on identifiers it has determined to be the same person. Back in 2009, NSA referred to a separate database to determine these other identifiers. Though that’s unlikely, because the bill language suggests the telecoms will be identifying these direct connections.
It’s possible, too, that this language only permits the telecoms to find “burner” phones — a new phone someone adopts after having disposed of an earlier one — and chain on that too.
But it’s also possible that this language would permit precisely what AT&T does for DEA in its directly analogous Hemisphere program: conduct analysis using cell site data. The bill does not permit NSA to receive cell site data, but it does nothing to prohibit NSA from receiving phone numbers identified using cell site data. When Mark Warner asked about this, Ledgett did not answer, and James Cole admitted they could use these orders (with FISC approval) to get access to cell location.
It’s possible, too, that the telecoms will identify direct connections using other data we know NSA uses to identify connections in EO 12333 data, including phone book and calendar data.
The point is, nobody in the public knows what “connections” NSA will be asking its immunized telecom partners to make. And nothing in the bill or even the public record prohibits NSA from asking telecoms to use a range of smart phone information to conduct their analysis, so long as they only give NSA phone identifiers as a result.
In response to questions from Senators about what this means, Leahy’s office promised a letter from James Clapper’s office clarifying what “connections” means (No, I don’t remember the part of Schoolhouse Rock where those regulated by laws get to provide “clarifications” that don’t make it into the laws themselves). That letter was reported to be due on Tuesday, by close of business — several days ago. It hasn’t appeared yet.
I asked people at both EFF and ACLU about this problem. EFF admitted they don’t know what this language means. ACLU calls the language “ambiguous,” but based on nothing they were able to convey to me, insists getting smart phone data under the guise of connection chaining would be an abuse. ACLU also pointed to transparency provisions in the bill, claiming that would alert us if the NSA starting doing something funky with its connection language; that of course ignores that “connection chaining” is an already-approved process, meaning that existing processes won’t ever be need to be released. It also ignores that the Administration has withheld what is probably a directly relevant phone dragnet opinion from both ACLU and EFF in their dragnet FOIA.
I get Laura Murphy’s point about using USA Freedom to start the process of reform. But what I don’t understand is why you’d do that having absolutely no idea whether that “reform” codifies the kind of warrantless probable cause-free access to device data that ACLU and EFF have fought so hard to prevent elsewhere.
ACLU and EFF are supposed to be leaders in protecting the privacy of our devices, including smart phones. I worry with their embrace of this bill, they’re leading NSA right into our smart phones.
The Intercept has published their long-awaited story profiling a number of Muslim-American leaders who have been targeted by the FBI and NSA. It shows that:
In other words, the leaders of a number of different Muslim civil society organizations were wiretapped for years under a program that should require a judge agreeing they represent agents of a foreign power.
But they probably weren’t just wiretapped. They probably were also used as seeds for the phone and Internet dragnets, resulting in the associational mapping of their organizations’ entire structure.
On August 18, 2006, the phone dragnet primary order added language deeming “telephone numbers that are currently the subject of FISA authorized electronic surveillance … approved for meta data querying without approval of an NSA official due to the FISA authorization.”
Given the way the phone and Internet dragnet programs parallel each other (and indeed, intersect in federated queries starting at least by 2008), a similar authorization was almost certainly included in the Internet dragnet at least by 2006.
That means as soon as these men were approved for surveillance by FISA, the NSA also had the authority to run 3-degree contact chaining on their email and phone numbers. All their contacts, all their contacts’ contacts, and all their contacts’ contacts’ contacts would have been collected and dumped into the corporate store for further NSA analysis.
Not only that, but all these men were surveilled during the period (which continued until 2009) when the NSA was running automated queries on people and their contacts, to track day-to-day communications of RAS-approved identifiers.
So it is probably reasonable to assume that, at least for the period during which these men were under FISA-authorized surveillance, the NSA has an associational map of their organizations and their affiliates.
Which is why I find it interesting that DOJ refused to comment on this story, but told other reporters that FBI had never had a FISA warrant for CAIR founder Nihad Awad specifically.
The Justice Department did not respond to repeated requests for comment on this story, or for clarification about why the five men’s email addresses appear on the list. But in the weeks before the story was published, The Intercept learned that officials from the department were reaching out to Muslim-American leaders across the country to warn them that the piece would contain errors and misrepresentations, even though it had not yet been written.
Prior to publication, current and former government officials who knew about the story in advance also told another news outlet that no FISA warrant had been obtained against Awad during the period cited. When The Intercept delayed publication to investigate further, the NSA and the Office of the Director of National Intelligence refused to confirm or deny the claim, or to address why any of the men’s names appear on the FISA spreadsheet.
Awad’s organization, CAIR, is a named plaintiff in the EFF’s suit challenging the phone dragnet. They are suing about the constitutionality of a program that — the EFF suit also happens to allege — illegally mapped out associational relations that should be protected by the Constitution.
CAIR now has very good reason to believe their allegations in the suit — that all their relationships have been mapped — are absolutely correct.
Update: EFF released this statement on the Intercept story, reading, in part,
Surveillance based on First Amendment-protected activity was a stain on our nation then and continues to be today. These disclosures yet again demonstrate the need for ongoing public attention to the government’s activities to ensure that its surveillance stays within the bounds of law and the Constitution. And they once again demonstrate the need for immediate and comprehensive surveillance law reform.
We look forward to continuing to represent CAIR in fighting for its rights, as well as the rights of all citizens, to be free from unconstitutional government surveillance.
EFF represents CAIR Foundation and two of its regional affiliates, CAIR-California and CAIR-Ohio, in a case challenging the NSA’s mass collection of Americans’ call records. More information about that case is available at: First Unitarian Church of Los Angeles v. NSA.
Remember “the wall” that used to separate intelligence from criminal investigations and was used as an excuse for intelligence agencies not sharing intelligence they were permitted to share before 9/11?
It was demolished in 2001 — when the PATRIOT Act explicitly permitted what had been permitted before, sharing of intelligence information with the FBI – and 2002 — when the FISA Court of Review overruled presiding FISA Judge Royce Lamberth’s efforts to sustain some Fourth Amendment protections in criminal investigations using minimization procedures.
Nevertheless, the specter of a wall that didn’t prevent the Intelligence Committee from discovering 9/11 rising again is one of the things lying behind PCLOB’s weak recommendations on back door searches in its report on Section 702.
Of particular note, that’s what the Center for Democracy and Technology’s James Dempsey cites in his squishy middle ground recommendation on back door searches.
It is imperative not to re-erect the wall limiting discovery and use of information vital to the national security, and nothing in the Board’s recommendations would do so. The constitutionality of the Section 702 program is based on the premise that there are limits on the retention, use and dissemination of the communications of U.S. persons collected under the program. The proper mix of limitations that would keep the program within constitutional bounds and acceptable to the American public may vary from agency to agency and under different circumstances. The discussion of queries and uses at the FBI in this Report is based on our understanding of current practices associated with the FBI’s receipt and use of Section 702 data. The evolution of those practices may merit a different balancing. For now, the use or dissemination of Section 702 data by the FBI for non-national security matters is apparently largely, if not entirely, hypothetical. The possibility, however, should be addressed before the question arises in a moment of perceived urgency. Any number of possible structures would provide heightened protection of U.S. persons consistent with the imperative to discover and use critical national security information already in the hands of the government.546
546 See Presidential Policy Directive — Signals Intelligence Activities, Policy Directive 28, 2014 WL 187435, § 2, (Jan. 17, 2014) (limiting the use of signals intelligence collected in bulk to certain enumerated purposes), available at http://www.whitehouse.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities. [my emphasis]
Dempsey situates his comments in the context of the “wall.” He then suggests there are two possible uses of back door searches: “national security matters,” and non-national security matters, with the latter being entirely hypothetical, according to what the FBI self-reported to PCLOB.
Thus, he’s mostly thinking in terms of “possible structures [that] would provide heightened protection of US. persons,” to stave off future problems. He points to President Obama’s PPD-28 as one possibility as a model.
But PPD-28 is laughably inapt! Not only does the passage in question address “bulk collection,” which according to the definition Obama uses and PCLOB has adopted has nothing to do with Section 702. “[T]he Board does not regard Section 702 as a ‘bulk’ collection program,” PCLOB wrote at multiple points in its report.
More troubling, the passage in PPD-28 Dempsey cites permits bulk collection for the following uses:
(1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests;
(2) threats to the United States and its interests from terrorism;
(3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction;
(4) cybersecurity threats;
(5) threats to U.S. or allied Armed Forces or other U.S or allied personnel;
(6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section;
Ultimately, this represents — or should — an expansion of permissible use of Section 702 data, because its discussion of terrorism and cybersecurity do not distinguish between those with an international nexus and those without. And the discussion of transnational crime might subject any petty drug dealer selling dope from Mexico to foreign intelligence treatment.
That this is what passes for the mushy middle on PCLOB is especially curious given that Dempsey was one of the first PCLOB member to express concern about back door searches. He did so in November’s Section 215 hearing, and even suggested limiting back door searches to foreign intelligence purposes (which is not the standard for FBI, in any case) was inadequate. Nevertheless, in last week’s report, he backed only very weak protections for back door searches, and did so within the context of national security versus non-national security, and not intelligence versus crime.
Now, I don’t mean to pick on Dempsey exclusively — I’ll have a few more posts on this issue. And to be clear, Dempsey does not represent CDT at PCLOB; he’s there in his private capacity.
But I raised his affiliation with CDT because in that capacity, Dempsey was part of an amicus brief, along with representatives from ACLU, Center for National Security Studies, EPIC, and EFF, submitted in the In Re Sealed Case in 2002, in which the FISA Court of Review reversed Lamberth and permitted prosecutor involvement in FISA warrants. That brief strongly rebuts the kind of argument he adopted in last week’s PCLOB report.
Citing the significant public interest and past overclassification, the judge in EFF’s side of the Section 215 FOIA has ordered DOJ to cough up 5 (actually, I believe it is 6) orders, so she can review them in camera to see whether the government should release them.
The orders — with my speculation about what they are — are:
FISC opinion dated 8/20/2008 (6 pages)
I wrote about this opinion here. Two days before the order, the government submitted information on how it correlates different phone selectors for further chaining, which leads me to believe that’s the topic of the opinion. The government doesn’t want to release it because it is still using this “method,” which leads me to believe it would offer some insight on what it means that the automatic queries approved in 2012 and the connection-based chaining envisioned under the reformed program.
(2) FISC order dated 10/31/2006 (19 pages);
I believe this is actually two orders, one of 15 and one of 4 pages. If these pertain to the phone dragnet, one might pertain to compensation, another might either deal with violations the program was already experiencing (the next primary order imposed new regular reviews).
But it’s just as likely that these orders approve bulk collection for something else — perhaps financial records, for example.
(5) FISC orders dated 12/16/2005 (16 pages)
(3) FISC orders dated 2/17/2006 (17 pages)
(4) FISC orders dated 2/24/2006 (8 pages)
Given the timing (I’ve retained Judge Yvonne Gonzales Rogers’ numbering but adjusted order to match timing), I suspect these deal with the illegal wiretapping program. After all the first of these three orders was approved the day after the program was disclosed, during the period when PATRIOT Authority was extended after an true extension was filibustered.
Mind you, these are not supposed to deal with bulk collection. It may be they dealt with extending existing programs, providing feedback about what would not be acceptable bulk collection, or simply smaller orders affecting the most important part of the production.
As a reminder, there are 3 other known dragnet orders — from during the period when FISC was working through the violations in 2009 — the government didn’t even disclose to EFF. I wrote about those here.
Later that day, EFF Legal Director Cindy Cohn emailed her contact at DOJ, Marcia (Marcy) Berman, saying,
Jewel plaintiffs are okay with [a deadline extension] if the government can assure us that no additional information will be destroyed in the meantime.
As you can see, we went ahead and filed [the motion on spoliation].
The following Monday, after Cohn asked Berman, “Does that mean no additional information will be destroyed in the meantime?” Berman answered,
What it means is that we have already explained in our opening brief that we are in compliance with our preservation obligations and do not feel that we should have to make any further assurances or undertakings to accommodate plaintiffs’ need for additional time.
Later that day, Cohn reminded Berman that the Temporary Restraining Order covering destruction of information “including but not limited to … telephone metadata” remained in place. Cohn continued,
You appear to be saying that routine destruction of post-FISC material is continuing to occur regardless of the TRO; please confirm whether this is correct.
Berman responded, obliquely, yes.
The Court is presently considering whether the Government must preserve material obtained under Section 702 of FISA in the context of the Jewel/Shubert litigation. In the meantime, pending resolution of the preservation issues in this case, we have been examining with our clients how to address the preservation of data acquired under the Section 702 program in light of FISC imposed data retention limits (even though we disagree that the program is at issue in Jewel and Shubert).
Hoffman wrote a bunch more about “technical” “classified” blah blah blah, which I’ll return to, because I think it’s probably significant.
I can’t think of a more relevant NSA practice to a suit that relies significantly on Mark Klein’s whistle-blowing about the room where AT&T diverted and copied large amounts of telecom traffic than upstream 702 collection, in which AT&T and other telecom providers divert and copy large amounts of telecom traffic. While I’m not certain this evidence pertains to upstream — and not PRISM — EFF suggests that is included.
In communications with the government this week, plaintiffs learned to their surprise that the government is continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the Foreign Intelligence Surveillance Act. This would include evidence relating to its use of “splitters” to conduct bulk interceptions of the content of Internet communications from the Internet “backbone” network of AT&T, as described in multiple FISC opinions and in the evidence of Mark Klein and J. Scott Marcus, ECF Nos. 84, 85, 89, 174 at Ex. 1
If it is, then it seems all the more damning, given that upstream collection is the practice that most obviously violates the ban on wiretapping Americans in the US.
EFF filed a motion accusing the government of illegally destroying evidence. And the government’s response was to destroy more evidence.
Update: The government has asked for an emergency stay of the Court’s June 5 order (which is actually a March 10 order, but the government doesn’t admit that) because NSA says so.
Undersigned counsel have been advised by the National Security Agency that compliance with the June 5, 2014 Order would cause severe operational consequences for the National Security Agency (NSA’s) national security mission, including the possible suspension of the Section 702 program and potential loss of access to lawfully collected signals intelligence information on foreign intelligence targets that is vital to NSA’s foreign intelligence mission
There’s something funky here — perhaps that some of this actually belongs to GCHQ? I dunno — which is leading the government to be so obstinate. Let’s hope we learn what it is.
Update: And EFF objected to DOJ’s request for a stay, pointing out what I did: that what they’re really asking for is blessing for ignoring the March 10 order.
The ACLU and EFF FOIAs for Section 215 documents are drawing to a head. Later this week, EFF will have a court hearing in their suit. And last Friday, the government renewed its bid for summary judgment in the ACLU case.
Both suits pivot on whether the government’s past withholdings on Section 215 were in good faith. Both NGOs are arguing they weren’t, and therefore the government’s current claims — that none of the remaining information may be released — cannot be treated in good faith. (Indeed, the government likely released the previously sealed NSA declaration to substantiate its claim that it had to treat all documents tying NSA to the phone dragnet with a Glomar because of the way NSA and DOJ respectively redact classification mark … or something like that.)
But the government insists it is operating in good faith.
Instead, the ACLU speculates, despite the government’s declarations to the contrary, that there must be some non-exempt information contained in these documents that could be segregated and released. In an attempt to avoid well-established law requiring courts to defer to the government’s declarations, especially in the area of national security, the ACLU accuses the government of bad faith and baldly asserts that the government’s past assertions regarding segregability—made before the government’s discretionary declassification of substantial amounts of information regarding its activities pursuant to Section 215— “strip the government’s present justifications of the deference due to them in ordinary FOIA cases.” ACLU Br. at 25. The ACLU’s allegations are utterly unfounded. For the reasons set forth below, the government’s justifications for withholding the remaining documents are “logical and plausible,”
EFF and ACLU have focused closely on a August 20, 2008 FISC order describing a method to conduct queries; I have argued it probably describes how NSA makes correlations to track correlations.
The government is refusing to identify 3 orders it has already identified
But — unless I am badly mistaken, or unless the government mistakenly believes it has turned over some of these orders, which is possible! — I think there are three other documents being withheld (ones the government hasn’t even formally disclosed to EFF, even while pretending they’ve disclosed everything to EFF) that raise questions about the government’s good faith even more readily: the three remaining phone dragnet Primary Orders from 2009. All three have been publicly identified, yet the government is pretending they haven’t been. They are:
BR 09-09, issued on July 8, 2009. Not only was this Primary Order identified in paragraph 3 of the next Primary Order, but it was discussed extensively in the government’s filing accompanying the end-to-end report. In addition, the non-approval of one providers’ metadata (I increasingly suspect Sprint is the provider) for that period is reflected in paragraph 1(a) of that next Primary Order.
BR 09-15, issued on October 30, 2009. The docket number and date are both identified on the first page of this supplemental order.
BR 09-19, issued on December 16, 2009. It is mentioned in paragraph 3 of the next Primary Order. The docket number and the date are also referred to in the documents pertaining to Sprint’s challenge recently released. (See paragraph 1 and paragraph 5 for the date.)
Thus, the existence of all three Primary Orders has been declassified, even while the government maintains it can’t identify them in the context of the FOIAs where they’ve already been declassified.
The government has segregated a great deal of the content of BR 09-09
The government’s withholding of BR 09-09 is particularly ridiculous, given how extensively the end-to-end motion details it. From that document, we learn:
Significant parts of at least 13 pages of the Primary Order (the next Primary Order is 19 pages long) have already been deemed segregable and released. Yet the government now appears to be arguing, while claiming it is operating in good faith, that none of these items would be segregable if released with the order itself!
Wildarse speculation about why the government is withholding these orders
Which raises the question of why. Why did the government withhold these 3 orders, alone among all the known regular Primary Orders from the period of EFF and ACLU’s FOIAs? (See this page for a summary of the known orders and the changes implemented in each.)
The reason may not be the same for all three orders. BR 09-09 deals with two sensitive issues — the purging of credit card information and tech personnel access — that seem to have been resolved with that order (at least until the credit card problems returned in March 2011).
But there are two things that all three orders might have in common.
First, BR 09-09 deals closely with dissemination problems — the ability of CIA and FBI to access NSA results directly, and the unfettered sharing of information within NSA. BR 09-15 lays out new dissemination rules, with the supplement in November showing NSA to still be in violation. So it’s likely all 3 orders deal with dissemination violations (and therefore with poison fruit of inappropriate dissemination that may still be in the legal system), and that the government is hiding one of the more significant aspects of the dragnet violations by withholding those orders.
I also think it’s possible the later two (potentially all three, but more likely the later two) orders combine the phone and Internet dragnets. That’s largely because of timing: A June 22, 2009 order — the first one to deal with the dissemination problems formally addressed in BR 09-09 — dealt with both dragnets. There is evidence the Internet dragnet data got shut down (or severely restricted) on October 30, 2009, the date of BR 09-15. And according to the 2010 John Bates Internet dragnet opinion, NSA applied to restart the dragnet in late 2009 (so around the time of BR 09-19). So I think it possible the later orders, especially, deal with both programs, thereby revealing details about the legal problems with PRTT the government would like to keep suppressed. (Note, if BR 09-15 and BR 09-19 are being withheld because they shut down Internet production, it would mean all three orders shut down some production, as BR 09-09 shut down one provider’s telephone production.)
Another possibility has to do with the co-mingling of EO 12333 and Section 215 data. These three orders all deal with the fact that providers (at least Verizon, but potentially the other two as well) had included foreign-to-foreign phone records along with the production of their domestic ones.That’s the reason production from one provider got shut down in BR 09-09. And immediately after the other withheld records, the Primary Orders always included a footnote on what to do with EO 12333 data turned over pursuant to BR FISA orders (see footnote 7 and footnote 10 for examples). Also, starting in March 2009, the Orders all contain language specifically addressing Verizon. So we know the FISC was struggling to come up with a solution for the fact that NSA had co-mingled data obtainable under EO 12333 and data the telecoms received PATRIOT Act orders from. (I suspect this is why Sprint insisted on legal cover, ultimately demanding the legal authorization of the program with the December order.) So it may be that all these orders reveal too much about the EO 12333 dragnet — and potential additional violations — to be released.
Whatever the reason, there is already so much data in the public domain, especially on BR 09-09, it’s hard to believe withholding it is entirely good faith.
I’ve written about these accusations in the past. EFF got a preservation order in its NSA lawsuits back in 2008. Only after the government asked for permission to destroy phone dragnet data earlier this year did they learn the government has been destroying data relevant to their various suits for years.
But now they’ve written an aggressive motion asking for sanctions.
There is now no doubt that the government defendants have destroyed evidence relevant to plaintiffs’ claims. This case concerns the government’s mass seizure of three kinds of information: Internet and telephone content, telephone records and Internet records. The government’s own declarations make clear that the government has destroyed three years of the telephone records it seized between 2006 and 2009; five years of the content it seized between 2007 and 2012; and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended those seizures.
By destroying this evidence, the government has hindered plaintiffs’ ability to prove with governmental evidence that their individual communications and records were collected as part of the mass surveillance, something the government has vigorously insisted that they must do, even as a threshold matter. Although plaintiffs dispute that the showing the government seeks is required, the government’s destruction of the best evidence that plaintiffs could use to make such a showing is particularly outrageous.
This is spoliation of evidence. A litigant has a clear legal duty to preserve evidence relevant to the facts of a case pending consideration by the court, and that duty requires preservation of all relevant evidence, defined as anything that is likely to lead to the discovery of admissible evidence. This duty is subject only to practical considerations, none of which the government has ever raised. Any private litigant who engaged in this behavior would be rightly sanctioned by the court; indeed many have been severely sanctioned for failure to preserve evidence in far less egregious circumstances.
This court has the power to order a broad range of remedies for spoliation, up to and including terminating sanctions. Plaintiffs here seek more modest relief: that the government be subject to an adverse inference that the destroyed evidence would have shown that the government has collected plaintiffs’ communications and communications records. Plaintiffs also request that the Court set a prompt hearing date on this matter in order to halt any ongoing destruction.
My favorite part — being a bit of a timeline wonk — is the timeline showing all the broad claims the government made to ensure state secrets would cover even activities authorized by FISA, interspersed with what data the NSA was destroying when.
Then there’s this lesson in warrantless wiretapping.
The government overreaches in trying to limit plaintiffs’ complaint. For example, the government tries to use the fact that plaintiffs often characterize the surveillance as “warrantless” as indicating that the complaint doesn’t reach surveillance conducted under the FISC. But this characterization is absolutely true even as to the FISC-authorized surveillance. Whatever the legal import of the FISC orders, they are unequivocally not full Fourth Amendment warrants, and the surveillance conducted under them is “warrantless.” Thus, this court was exactly correct in July 2013 when it stated that Plaintiffs’ claim is “that the federal government . . . conducted widespread warrantless dragnet communications surveillance of United States citizens following the attacks of September 11, 2001.”
Given all the things the government destroyed here — such as the US person phone data collected without requisite First Amendment review, the Internet metadata that included content, and the US person communications collected under upstream collection, the EO 12333 collected metadata mingled with the PATRIOT authorized data – they might well rather give EFF standing without all that data.
We shall see. But it does make some nice Friday afternoon reading.
Last week, I laid out the amazing coinkydink that DOJ provided Sprint a bunch of FISA opinions — including the December 12, 2008 Reggie Walton opinion finding that the phone dragnet did not violate ECPA — on the same day, January 8, 2010, that OLC issued a memo finding that providers could voluntarily turn over phone records in some circumstances without violating ECPA.
Looking more closely at what we know about the opinion, I’m increasingly convinced it was not a coinkydink at all. I suspect that the memo not only addresses FBI’s exigent letter program, but also the non-Section 215 phone dragnet.
As a reminder, we first learned of this memo when, in January 2010, DOJ’s Inspector General issued a report on FBI’s practice of getting phone records from telecom provider employees cohabiting at FBI with little or no legal service. The report was fairly unique in that it was released in 3 versions: the public unclassified but heavily redacted version, a Secret version, and a Top Secret/SCI version. Given how closely parallel the onsite telecom provider program was with the phone dragnet, that always hinted the report may have touched on other issues.
Roughly a year after the IG Report came out, EFF FOIAed the memo (see page 30). Over the course of the FOIA litigation — the DC Circuit rejected their appeal for the memo in January — DOJ provided further detail about the memo.
Here’s how OLC Special Counsel Paul Colborn described the memo (starting at 25):
The document at issue in this case is a January 8, 2010 Memorandum for Valerie Caproni, General Counsel of the Federal Bureau of Investigation (the “FBI”), from David J. Barron, Acting Assistant Attorney General for the Office of Legal Counsel (the “Opinion”). The OLC Opinion was prepared in response to a November 27, 2009 opinion request from the FBI’s General Counsel and a supplemental request from Ms. Caproni dated December 11, 2009. These two requests were made in order to obtain OLC advice that would assist FBI’s evaluation of how it should respond to a draft Report by the Office of Inspector General at the Department of Justice (the “OIG”) in the course of a review by the OIG of the FBI’s use of certain investigatory procedures.In the context of preparing the Opinion, OLC, as is common, also sought and obtained the views of other interested agencies and components of the Department. OIG was aware that the FBI was seeking legal advice on the question from OLC, but it did not submit its views on the question.
The factual information contained in the FBI’s requests to OLC for legal advice concerned certain sensitive techniques used in the context of national security and law enforcement investigations — in particular, significant information about intelligence activities, sources, and methodology.
Later in his declaration, Colborn makes it clear the memo addressed not just FBI, but also other agencies.
The Opinion was requested by the FBI and reflects confidential communications to OLC from the FBI and other agencies. In providing the Opinion, OLC was serving an advisory role as legal counsel to the Executive Branch. In the context of the FBI’s evaluation of its procedures, the general counsel at the FBI sought OLC advice regarding the proper interpretation of the law with respect to information-gathering procedures employed by the FBI and other Executive Branch agencies. Having been requested to provide counsel on the law, OLC stood in a special relationship of trust with the FBI and other affected agencies.
And FBI Record/Information Dissemination Section Chief David Hardy’s declaration revealed that an Other Government Agency relied on the memo too. (starting at 46)
This information was not examined in isolation. Instead, each piece of information contained in the FBI’s letters of November 27, 2009 and December 11, 2009, and OLC’s memorandum of January 8, 2010, was evaluated with careful consideration given to the impact that disclosure of this information will have on other sensitive information contained elsewhere in the United States intelligence community’s files, including the secrecy of that other information.
As part of its classification review of the OLC Memorandum, the FBI identified potential equities and interests of other government agencies (“OGAs”) with regard to the OLC memo. … FBI referred the OLC Memo for consultation with those OGAs. One OGA, which has requested non-attribution, affirmatively responded to our consultation and concurs in all of the classification markings.
Perhaps most remarkably, the government’s response to EFF’s appeal even seems to suggest that what we’ve always referred to as the Exigent Letters IG Report is not the Exigent Letters IG Report!
Comparing EFF’s claims (see pages 11-12) with the government’s response to those claims (see pages 17-18), the government appears to deny the following:
Along with these denials, the government reminded that the report “contained significant redactions to protect classified information and other sensitive information.” And with each denial (or non-response to EFF’s characterizations) it “respectfully refer[red] the Court to the January 2010 OIG report itself.”
The Exigent Letters IG Report is not what it seems, apparently.
With all that in mind, consider two more details. First, as David Kris (who was the Assistant Attorney General during this period) made clear in his paper on the phone (and Internet) dragnet, in addition to Section 215, the government obtained phone records from the telecoms under USC 2511(2)(f), the clause in question.
And look at how the chronology maps.
November 5, 2008: OLC releases opinion ruling sneak peak and hot number requests (among other things) impermissible under NSLs
December 12, 2008: Reggie Walton rules that the phone dragnet does not violate ECPA
Throughout 2009: DOJ confesses to multiple violations of Section 215 program, including:
- An alert function that serves the same purpose as sneak peaks and also violates Section 215 minimization requirements
- NSA treated Section 215 derived data with same procedures as EO 12333 data; that EO 12333 data included significant US person data
- One provider’s (which I originally thought was Sprint, then believed was Verizon, but could still be Sprint) production got shut down because it included foreign-to-foreign data (the kind that, according to the OLC, could be obtained under USC 2511(2)(f)
Summer and Fall, 2009: Sprint meets with government to learn how Section 215 can be used to require delivery of “all” customer records
October 30, 2009: Still unreleased primary order BR 09-15
November 27, 2009: Valerie Caproni makes first request for opinion
December 11, 2009: Caproni supplements her request for a memo
December 16, 2009: Application and approval of BR 09-19
December 30, 2009: Sprint served with secondary order
January 7, 2010: Motion to unseal records
January 8, 2010: FISC declassifies earlier opinions; DOJ and Sprint jointly move to extend time when Sprint can challenge order; and OLC releases OLC opinion; FISC grants motion (John Bates approves all these motions)
January 11, 2010: DOJ moves (in a motion dated January 8) to amend secondary order to incorporate language on legality; this request is granted the following day (though we don’t get that order)
January 20, 2010: IG Report released, making existence of OLC memo public
This memo is looking less and less like a coinkydink after all, and more and more a legal justification for the provision of foreign-to-foreign records to accompany the Section 215 provision. And while FBI said it wasn’t going to rely on the memo, it’s not clear whether NSA said the same.
Golly. It’d sure be nice if we got to see that memo before David Barron got to be a lifetime appointed judge.