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Post Snowden: The Government Doubles Down on Hard Power

I was asked to participate in a CATO debate about where we are a year post Snowden. My contribution to that debate — in which I argue any big drama going forward will come from the newly adversarial relationship between Google and the NSA —  is here.

As part of that, I argued that the government made a choice after Snowden: to double down on hard power over soft power.

The conflict between Google and its home country embodies another trend that has accelerated since the start of the Snowden leaks. As the President of the Computer & Communications Industry Association, Edward Black, testified before the Senate last year, the disclosure of NSA overreach did not just damage some of America’s most successful companies, it also undermined the key role the Internet plays in America’s soft power projection around the world: as the leader in Internet governance, and as the forum for open speech and exchange once associated so positively with the United States.

The U.S. response to Snowden’s leaks has, to a significant degree, been to double down on hard power, on the imperative to “collect it all” and the insistence that the best cyberdefense is an aggressive cyberoffense. While President Obama paid lip service to stopping short of spying “because we can,” the Executive Branch has refused to do anything – especially legislatively – that would impose real controls on the surveillance system that undergirds raw power.

And that will likely bring additional costs, not just to America’s economic position in the world, but in the need to invest in programs to maintain that raw power advantage. Particularly given the paltry results the NSA has to show for its domestic phone dragnet – the single Somali taxi driver donating to al-Shabaab that Sanchez described. It’s not clear that the additional costs from doubling down on hard power bring the United States any greater security.

Because I was writing this essay, that’s largely where my mind has been as we debate getting re-involved in Iraq.

In the 3 or 4 wars we’ve waged in the Middle East/South Asia since 9/11 (counting Afghanistan, Iraq, Libya, and Syria), we’ve only managed to further destabilize the region. That was largely driven by a belligerence that goes well beyond our imperative to collect it all.

But I do think both the Snowden anniversary and the Iraq clusterfuck should focus far more energy on how we try to serve American interests through persuasion rather than bombs and dragnets.

Mike Rogers Says Google Must Lose Its Quarter to Save a Rickety Bank

Screen shot 2014-06-12 at 10.03.25 PMJosh Gerstein already wrote about some of this Mike Rogers blather. But I wanted to transcribe the whole thing to display how utterly full of shit he is.

At a conference at Georgetown the other day, (see video 3), Rogers laid into the tech companies for opposing USA Freedumber, which he badly misrepresented just before this. The context of European opportunism beings at 1:06, the quote begins after 1:08.

We should be very mad at Google, and Microsoft, and Facebook, because they’re doing a very interesting, and I think, very dangerous thing. They’ve come out and said, “well, we oppose this new FISA bill because it doesn’t go far enough.” When you peel that onion back a little bit, and why are you doing this, this is a good bill, it’s safe, bipartisan, it’s rational, it meets all the requirements for Fourth Amendment protection, privacy protection, and allowing the system to work,

Rogers claims they’re doing so solely because they’re afraid to lose European business. And Rogers — a Republican! — is furious that corporations prioritize their profits (note, Rogers has never complained that some of these same companies use European tax shelters to cheat the tax man).

And they say, “well, we have to do this because we have to make sure we don’t lose our European business.” I don’t know about the rest of you, that offends me from the word, “European business.” Think about what they’re doing. They’re willing, in their minds, to justify the importance of their next quarter’s earnings in Europe, versus the National Security of the United States. Everybody on those boards should be embarrassed, and their CEOs should be embarrassed, and their stockholders should be embarrassed.That one quarter cannot be worth the National Security of the United States for the next 10 generations. And if we don’t get this part turned around very quickly, it will likely get a little ugly, and that emotional piece that we got by is going to be right back in the center of the room to no good advantage to our ability to protect the United States.

Mostly, he seems pissed because he knows the collective weight of the tech companies may give those of us trying to defeat USA Freedumber a fighting chance, which is what Rogers considers an emotional place because Democracy.

But Rogers’ rant gets truly bizarre later in the same video (after 1:23) where he explains what the security interest is:

We have one particular financial institution that clears, somewhere about $7 trillion dollars in global financial transactions every single day. Imagine if tomorrow that place gets in there and through an attack of which we know does exist, the potential does exist where the information is destroyed and manipulated, now you don’t know who owes what money, some of that may have lost transactions completely forever, imagine what that does to the economy, $7 trillion. Gone — right? Gone. It’s that serious.

Mind you, Rogers appears unaware that a banks shuffling of money — while an incredibly ripe target for hackers — does not really contribute to the American economy. This kind of daily volume is churn that only the very very rich benefit from. And one big reason it’s a target is because it is an inherently fragile thing.

To make all this even more hysterical, Rogers talks about risk driving insurance driving proper defensive measures from the target companies … yet he seems not to apply those rules to banks.

Mike Rogers, it seems, would rather kill Google’s business than permit this rickety vitality killing bank to feel the full brunt of the risk of its own business model.

The Triage Document

Accompanying a new story on GCHQ/NSA cooperation yesterday, the Intercept released one of the most revealing documents about NSA spying yet. It describes efforts to use Identifier Scoreboard to triage leads such that analysts spend manual time only with the most promising leads. Basically, the NSA aims to use this process to differentiate the 75% of metadata they collect that is interesting but not of high interest into different categories for further analysis.

It does so by checking the leads — which are identifiers like email addresses and phone numbers — against collected data (and this extends beyond just stuff collected on the wires; it includes captured media) to see what kind of contacts with existing targets there have been. Not only does the system pull up what prior contacts of interest exist, but also what time frame those occurred and in what number. From there, the analyst can link directly to either the collected knowledge about a target or the content.

Before I get into the significance, a few details.

First, the system works with both phone and Internet metadata. That’s not surprising, and it does not yet prove they’re chaining across platforms. But it is another piece of evidence supporting that conclusion.

More importantly, look at the authorities in question:

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First, FAA. The CP and CT are almost certainly certificates, the authority to collect on counterproliferation and counterterrorism targets. But note what’s not there? Cybersecurity, the third known certificate (there was a third certificate reapproved in 2011, so it was active at this time). Which says they may be using that certificate differently (which might make sense, given that you’d be more interested in forensic flows, but this triage system is used with things like TAO which presumably include cyber targets).

There is, however, a second kind of FAA, “FG.” That may be upstream or it may be something else (FG could certainly stand for “Foreign Government, which would be consistent with a great deal of other data). If it’s something else, it supports the notion that there’s some quirk to how the government is using FAA that differs from what they’ve told PCLOB and the Presidential Review Group, which have both said there are just those 3 certificates.

Then there’s FAA 704/705B. This is collection on US person overseas. Note that FAA 703 (collection on US person who is located overseas but the collection on whom is in the US) is not included. Again, this shows something about how they use these authorities.

Finally, there are two EO12333s. In other slides, we’ve seen an EO12333 and an EO123333 SPCMA (which means you can collect and chain through Americans), and that may be what this is. Update: One other possibility is that this distinguishes between EO12333 data collected by the US and by second parties (the Five Eyes).

Now go to what happens when an identifier has had contact with a target — and remember, these identifiers are just random IDs at this point.

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The triage program automatically pulls up prior contacts with targets. Realize what this is? It’s a backdoor search, conducted off an identifier about which the NSA has little knowledge.

And the triage provides a link directly from that the metadata describing when the contact occurred and who initiated it to the content.

When James Clapper and Theresa Shea describe the metadata serving as a kind of index that helps prioritize what content they read, this is part of what they’re referring to. That — for communications involving people who have already been targeted under whatever legal regime — the metadata leads directly to the content. (Note, this triage does not apparently include BR FISA or PRTT data — that is, metadata collected in the US — which says there are interim steps before such data will lead directly to content, though if that data can be replicated under EO 12333, as analysts are trained to do, it could more directly lead to this content.)

So they find the identifiers, search on prior contact with targets, then pull up that data, at least in the case of EO12333 data. (Another caution, these screens date from a period when NSA was just rolling out its back door search authorities for US persons, and there’s nothing here that indicates these were US persons, though it does make clear why — as last year’s audit shows — NSA has had numerous instances where they’ve done back door searches on US person identifiers they didn’t know were US person identifiers.)

Finally, look at the sources. The communications identified here all came off EO12333 communications (interestingly, this screen doesn’t ID whether we’re looking at EO12333_X or _S data). As was noted to me this morning, the SIGADS that are known here are offshore. But significantly, they include MUSCULAR, where NSA steals from Google overseas.

That is, this screen shows NSA matching metadata with metadata and content that they otherwise might get under FAA, legally, within the US. They’re identifying that as EO12333 data. EO12333 data, of course, gets little of the oversight that FAA does.

At the very least, this shows the NSA engaging in such tracking, including back door searches, off a bunch of US providers, yet identifying it as EO12333 collection.

Update: Two more things on this. Remember NSA has been trying, unsuccessfully, to replace its phone dragnet “alert” function since 2009 when the function was a big part of its violations (a process got approved in 2012, but the NSA has not been able to meet the terms of it technically, as of the last 215 order). This triage process is similar — a process to use with fairly nondescript identifiers to determine whether they’re worth more analysis. So we should assume that, while BR FISA (US collected phone dragnet) information is not yet involved in this, the NSA aspires to do so. There are a number of reasons to believe that moving to having the providers do the initial sort (as both the RuppRoge plan offered by the House Intelligence Committee and Obama’s plan do) would bring us closer to that point.

Finally, consider what this says about probable cause (especially if I’m correct that EO12333_S is the SPMCA that includes US persons). Underlying all this triage is a theory of what constitutes risk. It measures risk in terms of conversations –how often, how long, how many times — with “dangerous” people. While that may well be a fair measure in some cases, it may not be (I’ve suggested, for example, that people who don’t know they may be at risk are more likely to speak openly and at length, and those conversations then serve as a kind of camouflage for the truly interesting, rare by operational security conversations). But this theory (though not this particular tool) likely lies behind a lot of the young men who’ve been targeted by FBI.

Back Door Searches: One of Two Replacements for the Internet Dragnet?

I said the other day, most of NSA’s Civil Liberties and Privacy Office comment to the Privacy and Civil Liberties Oversight Board on Section 702 was disappointing boilerplate, less descriptive than numerous other statements already in the public record.

In the passage on back door searches I looked at, however, there was one new detail that is very suggestive. It said NSA does more back door searches on metadata than on content under Section 702.

NSA distinguishes between queries of communications content and communications metadata. NSA analysts must provide justification and receive additional approval before a content query using a U.S. person identifier can occur. To date, NSA analysts have queried Section 702 content with U.S. person identifiers less frequently than Section 702 metadata.

Consider what this means. NSA collects content from a selector — say, all the Hotmail communications of ScaryAQAPTerrorist. That content of course includes metadata (setting aside the question of whether this is legally metadata or content for the moment): the emails and IPs of people who were in communication with that scary terrorist.

The NSA is saying that the greater part of their back door searches on US person identifiers – say, searching on the email, “TroubledTeenager@gmail.com” — is just for metadata.

Given the timing, it seems that they’re using back door searches as one of two known replacements for the PRTT Internet dragnet shut down around October 30, 2009, turned on again between July and October 2010, then shut down for good in 2011 (the other being the SPCMA contact chaining of EO 12333 collected data through US person identifiers).

Recall that NSA and CIA first asked for these back door searches in April 2011. That was somewhere between 6 to 9 months after John Bates had permitted NSA to turn the Internet dragnet back on in 2010 under sharply restricted terms. NSA was still implementing their rules for using back door searches in early 2012, just months after NSA had shut down the (domestic) Internet dragnet once and for all.

And then NSA started using 702 collection for a very similar function: to identify whether suspicious identifiers were in contact with known suspicious people.

There are many parts of this practice that are far preferable to the old Internet dragnet.

For starters, it has the benefit of being legal, which the Internet dragnet never was!

Congress and the FISC have authorized NSA to collect this data from the actual service providers targeting on overseas targets. Rather than collecting content-as-metadata from the telecoms — which no matter how hard they tried, NSA couldn’t make both legal and effective — NSA collected the data from Yahoo and Microsoft and Google. Since the data was collected as content, it solves the content-as-metadata problem.

And this approach should limit the number of innocent Americans whose records are implicated. While everyone in contact with ScaryAQAPTerrorist will potentially be identified via a backdoor search, that’s still less intrusive than having every Americans’ contacts collected (though if we can believe the NSA’s public statements, the Internet dragnet always collected on fewer people than the phone dragnet).

That said, the fact that the NSA is presumably using this as a replacement may lead it to task on much broader selectors than they otherwise might have: all of Yemen, perhaps, rather than just certain provinces, which would have largely the same effect as the old Internet dragnet did.

In addition, this seems to reverse the structure of the old dragnet (or rather, replicate some of the problems of the alert system that set off the phone dragnet problems in 2009). It seems an analyst might test a US person identifier — remember, the analyst doesn’t even need reasonable articulable suspicion to do a back door search — against the collected metadata of scary terrorist types, to see if the US person is a baddie. And I bet you a quarter this is automated, so that identifiers that come up in, say, a phone dragnet search are then run against all the baddies to see if they also email at the press of a button. And at that point, you’re just one more internal approval step away from getting the US person content.

In short, this would seem to encourage a kind of wild goose chase, to use Internet metadata of overseas contact to judge whether a particular American is suspicious. These searches have a far lower standard than the phone and Internet dragnets did (as far as we know, neither the original collection nor the back door search ever require an assertion of RAS). And the FISC is far less involved; John Bates has admitted he doesn’t know how or how often NSA is using this.

But it is, as far as we know, legal.

Is Twitter EFF’s Second NSL Client?

In the past, I’ve tracked the efforts of a telecom — which WSJ convincingly argued was Credo — to challenge a 2011 National Security Letter. It has the support of EFF on that challenge. I also noted language in Credo’s Transparency Report (which was issued after DOJ permitted providers to give broad bands for NSLs, but before DOJ permitted them to give broad bands for other national security demands) saying it was prohibited from giving more information about NSLs and Section 215 orders.

It is important to note that it may not be possible for CREDO or any telecom carrier to release to the public a full transparency report, as the USA PATRIOT Act and other statutes give law enforcement the ability to prevent companies from disclosing whether or not they have received certain orders, such as National Security Letters (NSLs) and Section 215 orders seeking customer information. [my emphasis]

Today, EFF noted that it has filed what should be its response to the government’s appeal in that case.

Only, it makes it it representing not just the known telecom client, but also an Internet client.

The Electronic Frontier Foundation (EFF) filed two briefs on Friday challenging secret government demands for information known as National Security Letters (NSLs) with the Ninth Circuit Court of Appeals.  The briefs—one filed on behalf of a telecom company and another for an Internet company—remain under seal because the government continues to insist that even identifying the companies involved might endanger national security.

While the facts surrounding the specific companies and the NSLs they are challenging cannot be disclosed, their legal positions are already public: the NSL statute is a violation of the First Amendment as well as the constitutional separation of powers.

Now, one obvious potential Internet client would be Google. It is known to have fought NSLs in Judge Susan Illston’s court and lost.

But I wonder whether it isn’t Twitter.

I say that, first of all, because of the cryptic language in Twitter’s own Updated Transparency Report, which was released after the DOJ settlement which should have permitted it to report NSLs. But instead of doing so, it pointed out that it can’t report its national security orders, if any, with enough particularity. It called out NSLs specifically. And it used a language of prohibition.

Last week, the U.S. Department of Justice and various communications providers reached an agreement allowing disclosure of national security requests in very large ranges. While this agreement is a step in the right direction, these ranges do not provide meaningful or sufficient transparency for the public, especially for entities that do not receive a significant number of – or any – national security requests.

As previously noted, we think it is essential for companies to be able to disclose numbers of national security requests of all kinds – including national security letters and different types of FISA court orders – separately from reporting on all other requests. For the disclosure of national security requests to be meaningful to our users, it must be within a range that provides sufficient precision to be meaningful. Allowing Twitter, or any other similarly situated company, to only disclose national security requests within an overly broad range seriously undermines the objective of transparency. In addition, we also want the freedom to disclose that we do not receive certain types of requests, if, in fact, we have not received any.

Unfortunately, we are currently prohibited from providing this level of transparency. We think the government’s restriction on our speech not only unfairly impacts our users’ privacy, but also violates our First Amendment right to free expression and open discussion of government affairs. We believe there are far less restrictive ways to permit discussion in this area while also respecting national security concerns. Therefore, we have pressed the U.S. Department of Justice to allow greater transparency, and proposed future disclosures concerning national security requests that would be more meaningful to Twitter’s users. We are also considering legal options we may have to seek to defend our First Amendment rights. [my emphasis]

It was a defiant Transparency Report, and it discussed prohibitions in a way that no one else — except Credo — had done.

Moreover, it would make sense that EFF would be permitted to represent Twitter in such a matter, because it already had a role in Twitter’s challenge of the Administrative subpoena for various WikiLeaks’ associates Twitter data.

Finally, EFF notes that this Internet client is fighting just 2 NSLs; Google is fighting 19.

The very same day that the district court issued that order striking down the statute, a second EFF client filed a similar petition asking the same court to declare the NSL statute to be unconstitutional and to set aside the two NSLs that it received.

Notwithstanding the fact that it had already struck down the NSL statute on constitutional grounds in EFF’s first NSL case, but indicating that it would be up to the Ninth Circuit to evaluate whether that evaluation was correct, the district court denied EFF’s client’s petitionand ordered them to comply with the remaing NSL in the interim.

If Twitter is the client, it would present real First Amendment issues. It would suggest that, after Twitter took the rare step of not just challenging but giving notice in an Administrative subpoena, DOJ decided to use NSLs, which are basically Administrative subpoenas with additional gags, in response.

Update: in potentially related news, Verizon just updated its Transparency Report, claiming it can’t provide details on some bulk orders.

We note that while we now are able to provide more information about national security orders that directly relate to our customers, reporting on other matters, such as any orders we may have received related to the bulk collection of non-content information, remains prohibited.

Between Two Ends of the WikiLeaks Investigation: Parallel Constructing the FBI’s Secret Authorities

Two pieces of news on the government’s investigation of WikIleaks came out yesterday.

At the Intercept, Glenn Greenwald reported:

  • In 2010, a “Manhunting Timeline” described efforts to get another country to prosecute what it called the “rogue” website
  • In a targeting scenario dating to July 25, 2011, the US’ Targeting and General Counsel personnel responded to a question about targeting WikiLeaks’ or Pirate Bay’s server by saying they’d have to get back to the questioner
  • In 2012, GCHQ monitored WikiLeaks — including its US readers — to demonstrate the power of its ANTICRISIS GIRL initiative

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Also yesterday, Alexa O’Brien reported (and contextualized with links back to her earlier extensive reporting):

  • The grand jury investigation of WikiLeaks started at least as early as September 23, 2010
  • On January 4, 2011 (21 days after the December 14, 201 administrative subpoena for Twitter records on Appelbaum and others), DOJ requested Jacob Appelbaum’s Gmail records
  • On April 15, 2011, DOJ requested Jacob Appelbaum’s Sonic records

Now, as O’Brien lays out in her post, at various times during the investigation of WikiLeaks, it has been called a Computer Fraud and Abuse investigation, an Espionage investigation, and a terrorism investigation.

Which raises the question why, long after DOJ had deemed the WikiLeaks case a national security case that under either the terrorism or Espionage designation would grant them authority to use tools like National Security Letters, they were still using subpoenas that were getting challenged and noticed to Appelbaum? Why, if they were conducting an investigation that afforded them all the gagged orders they might want, were they issuing subpoenas that ultimately got challenged and exposed?

Before you answer “parallel construction,” lets reconsider something I’ve been mulling since the very first Edward Snowden disclosure: the secret authority DOJ and FBI (and potentially other agencies) used to investigate not just WikiLeaks, but also WikiLeaks’ supporters.

Back in June 2011, EPIC FOIAed DOJ and FBI (but not NSA) for records relating to the government’s investigation of WikiLeaks supporters.

EPIC’s FOIA asked for information designed to expose whether innocent readers and supporters of WikiLeaks had been swept up in the investigation. It asked for:

  1. All records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks;
  2. All records regarding lists of names of individuals who have demonstrated support for or interest in WikiLeaks;
  3. All records of any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and
  4. All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks. [my emphasis]

In their motion for summary judgment last February, DOJ said a lot of interesting things about the records-but-not-lists they might or might not have and generally subsumed the entire request under an ongoing investigation FOIA exemption.

Most interesting, however, is in also claiming that some statute prevented them from turning these records over to EPIC, they refused to identify the statute they might have been using to investigate WikiLeaks’ supporters.

All three units at DOJ — as reflected in declarations from FBI’s David Hardy, National Security Division’s Mark Bradley, and Criminal Division’s John Cunningham – claimed the files at issue were protected by statute.

None named the statute in question. All three included some version of this statement, explaining they could only name the statute in their classified declarations.

The FBI has determined that an Exemption 3 statute applies and protects responsive information from the pending investigative files from disclosure. However, to disclose which statute or further discuss its application publicly would undermine interests protected by Exemption 7(A), as well as by the withholding statute. I have further discussed this exemption in my in camera, ex parte declaration, which is being submitted to the Court simultaneously with this declaration

In fact, it appears the only reason that Cunningham submitted a sealed declaration was to explain his Exemption 3 invocation.

And then, as if DOJ didn’t trust the Court to keep sealed declarations secret, it added this plaintive request in the motion itself.

Defendants respectfully request that the Court not identify the Exemption 3 statute(s) at issue, or reveal any of the other information provided in Defendants’ ex parte and in camera submissions.

DOJ refuses to reveal precisely what EPIC seems to be seeking: what kind of secret laws it is using to investigate innocent supporters of WikiLeaks.

Invoking a statutory exemption but refusing to identify the statute was, as far as I’ve been able to learn, unprecedented in FOIA litigation.

The case is still languishing at the DC District.

I suggested at the time that the statute in question was likely Section 215; I suspected at the time they refused to identify Section 215 because they didn’t want to reveal what Edward Snowden revealed for them four months later: that the government uses Section 215 for bulk collection.

While they may well have used Section 215 (particularly to collect records, if they did collect them, from Visa, MasterCard, and PayPal — but note FBI, not NSA, would have wielded the Section 215 orders in that case), they couldn’t have used the NSA phone dragnet to identify supporters unless they got the FISC to approve WikiLeaks as an associate of al Qaeda (update: Or got someone at NSA’s OGC to claim there were reasons to believe WikiLeaks was associated with al Qaeda). They could, however, have used Section 215 to create their own little mini WikiLeaks dragnet.

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Were the 58-61,000 Internet Targets Part of NSA’s 73,000 Targets?

As I noted, Google, Yahoo, and Microsoft all released transparency reports today.

During the second half of 2012, Microsoft had FISA requests affecting 16,000-16,999 accounts, Google had 12,000 – 12,999.  We don’t have Yahoo’s numbers for that period, but for the following six month period they had requests affecting 30,000 – 30,999 accounts; given that numbers for the other two providers dropped during this six month period, it’s likely Yahoo’s did too, so the 30,000 is conservative for the earlier period. So the range for the big 3 email providers in that period is likely around 58,000 – 60,997. [Update: Adding FaceBook would bring it to 62,000 - 64,996. h/t CNet]

I’d like to compare what they report with what this report on FISA Amendments Act compliance shows. I think pages 23 through 26 of the report show that NSA had an average of 73,103 selectors selected via NSA targeting on any given day during the period from June 1, 2012 to November 30, 2012. That’s because the notification delays from the period (212 — see page 26) should be .29% of the average daily selectors (see amount on 23 less amount without the notification delays on page 34).

But remember: these are not the same measurement. The government report number is based on average daily selectors, so it reflects the total of selectors tasked on any given day. Whereas the providers are (I think the numbers must therefore show) the total number of customer selectors affected across the entire 6-month period, and they almost certainly weren’t all tasked across the entire 6 month period (though some surely were).

There’s one possible (gigantic) flaw in this logic. The discussion of the FBI targeting is largely redacted in the government memo. And there have been hints — pretty significant ones — that the FBI takes the lead with the PRISM providers. if so, these numbers are totally unrelated.

Also remember, there are at least two other kinds of 702 targeting: the upstream collection that makes up about 9% of the volume of 702 collection, and phone collection, which is going up again.

This would sure be a lot easier if the government actually backed its claims to transparency.

Is Google Sharing 9,500 Users’ Data, or 65,000?

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Google just released its shiny new transparency numbers reflecting DOJ’s new transparency rules.

While they tell us some interesting things, the numbers show how many questions the transparency system raises. I’ve raised the questions below, linked to my discussion by bolded number.

[NSA presentation, PRISM collection dates, via Washington Post]

Google is using option 1 (perhaps because they had already reported their NSL numbers), in which they break out NSLs separately from FISA orders, but must report in bands of 1000.

Note that Google starts this timeline in 2009, whereas their criminal process numbers pertaining to user accounts only start in 2011. Either because they had these FISA numbers ready at hand, or because they made the effort to go back and get them (whereas they haven’t done the same for pre-2011 criminal process numbers), they’re giving us more history on their FISA orders than they did on criminal process. They probably did this to show the entire period during which they’ve been involved in PRISM, which started on January 14, 2009.

Google gets relatively few non-content requests, and the number — which could be zero! — has not risen appreciably since they got involved in PRISM.(1) (I suspect we’re going to see fairly high non-content requests from Microsoft, because they pushed to break these two categories out).

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Clapper and Holder Remind Us “Disclosure” Mostly Pertains to Targets

I want to thank James Clapper and Eric Holder who, in their statement on yesterday’s “disclosure” agreement emphasized the word “target.”

As indicated in the Justice Department’s filing with the Foreign Intelligence Surveillance Court, the administration is acting to allow more detailed disclosures about the number of national security orders and requests issued to communications providers, the number of customer accounts targeted under those orders and requests, and the underlying legal authorities.

I should have given this more emphasis yesterday. All “transparency” numbers provided by the tech companies will describe the number of accounts or “selectors” “targeted,” with the exception of National Security Letter reporting using Option One. So if thousands of other Google accounts are getting sucked into requests for content or metadata, we’ll never know that.

The New Transparency Guidelines

DOJ and the tech companies just came to a deal on new transparency reporting. (h/t Mike Scarcella) It is a big improvement over what the government offered last year which was:

Option One: Provide total number of requests (criminal NSL, FISA) and total number of accounts targeted, broken out by 1000s

Option Two: Provide exact number of criminal requests and accounts affected, and number of NSLs received and accounts affected, broken out by 1000s, without providing any numbers on FISC service

This approach basically permitted the government to hide the FISC surveillance, by ensuring it only ever appeared lumped into the larger universe of criminal requests, along with other bulk requests. In addition, it didn’t let providers say whether they were mostly handing over metadata (NSLs would be limited to metadata, though FISC requests might include both metadata and content) or content in a national security context.

The new solution is:

Option One: Biannual production, with a 6-month delay on FISC reporting

  1. Criminal process, subject to no restrictions
  2. NSLs and the number of customer accounts affected by NSLs, reported in bands of 1000, starting at 0-999
  3. FISA orders for content and the number of customer selectors targeted, both reported in bands of 1000, starting at 0-999
  4. FISA orders for non-content and the number of customer selectors targeted, both reported in bands of 1000, starting at 0-999*

This option subjects a two-year delay on new (internally developed or purchased) platforms, products, or services. So for example, if Google started to get Nest orders today, Google couldn’t include it in their reporting until 2 years from now.

Option Two:

  1. Criminal process, subject to no restrictions
  2. Total national security process, including NSLs and FISA lumped together, reported in bands of 250, starting at 0-250
  3. Total customer selectors targeted under all national security requests, reported in bands of 250, starting at 0-250

* The order has a footnote basically saying the government hasn’t ceded the issue of reporting on the phone dragnet yet (though only tech companies were parties to this, and their only telecom production would be VOIP).

So my thoughts:

First, you can sort of see what the government really wants to hide with these schemes. They don’t want you to know if they submit a single NSL or 215 order affecting 1000 customers, which it’s possible might appear without the bands.They don’t want you to see if there’s a provider getting almost no requests (which would be hidden by the initial bands).

And obviously, they don’t want you to know when they bring new capabilities online, in the way they didn’t want users to know they had broken Skype. Though at this point, what kind of half-assed terrorist wouldn’t just assume the NSA has everything?

I think the biggest shell game might arise from the distinction between account (say, my entire Google identity) and selector (my various GMail email addresses, Blogger ID, etc). By permitting reporting on selectors, not users, this could obscure whether a report affects 30 identities of one customer or the accounts of 30 customers. Further, there’s a lot we still don’t know about what FISC might consider a selector (they have, in the past, considered entire telecom switches to be).

But it will begin to give us an outline of how often they’re using NatSec process as opposed to criminal process, which providers are getting primarily NSL orders and which are getting potentially more exotic FISC orders. Further, it will tell us more about what the government gets through the PRISM program, particularly with regard to metadata versus content.

Update: Apple’s right out of the gate with their report of fewer than 250 orders affecting fewer than 250 “accounts,” which doesn’t seem how they’re supposed to report using that option.

Update: Remember, Verizon issued a transparency report itself, just 5 days ago. Reporting under these new guidelines wouldn’t help them much as the government has bracketed whether it could release phone dragnet information. Moreover, Verizon is almost certainly one of the telecoms that provide upstream content; that would likely show up as just one selector, but it’s not clear how it gets reported.

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Emptywheel Twitterverse
JimWhiteGNV @Pedinska Indeed. Then it turns into what we call UFC grooming.
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bmaz Just saw my first @RubenGallego commercial on TV, was at 6:51pm on @CNN Good to see, need more. Go Ruben!
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bmaz It is really brave of High Holy Civil Rights Constitutional Law Scholar+Humanitarian Obama to "condemn" the Palestinians in face of genocide
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JimWhiteGNV This grooming session looks peaceful for now, but is likely to escalate to violence. http://t.co/gdcySOJOkN
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emptywheel Apparently Director of "Intelligence" Clapper doesn't remember that just 5 years ago govt declassified more than 480 pages of torture docs.
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emptywheel RT @ChadPergram: DNI Clapper: The redactions were the result of an extensive & unprecedented interagency process..to protect sensitive clas…
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emptywheel @Casual_Obs Most of what @onekade is riffing on is in this post. http://t.co/HBWMUN6eR9 I was riffing too.
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emptywheel @Casual_Obs No, I used that. It's the mid-point of estimates, but as @onekade notes, some estimates are 3X that.
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emptywheel @jilliancyork You had me worried! @EFF
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emptywheel @Kittfornow Well, sure. But faking accountability while protecting the powerful comes naturally to Bayh. Like breathing. @onekade
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emptywheel @NickBaumann I think Obama learned his lesson on admitting involvement in Yemeni legal actions w/Abdulelah Haider Shaye. @adammbaron
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emptywheel RT @NickBaumann: Wonder if US lying about knowing of @adammbaron's deportation like it lied about knowing of Mobley's detention: http://t.c…
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