I’m re-reading all the declarations released last December in the Jewel case (the EFF-tied lawsuit challenging the dragnet) … because I’m like that.
But I also want to call attention to details in this court filing challenging James Clapper’s most recent declaration about what has been declassified. In addition to pointing out that far more has been declassified on the upstream collection and the ineffectiveness of the phone dragnet, but contrary to court orders, the government is still withholding some declarations.
Those declarations are:
Given that we have a much better understanding of the relative happenings in the dragnets, I wanted to lay these dates out.
Back in James Clapper’s very first attempt to dismiss his lies to Ron Wyden, he said,
“What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that,” Clapper told National Journal in a telephone interview.
Apparently, however, NSA’s partner goes one step beyond that, with NSA”s assistance: GCHQ pores through bulk collected webcam photos, including those of US persons, of Yahoo’s users.
Britain’s surveillance agency GCHQ, with aid from the National Security Agency, intercepted and stored the webcam images of millions of internet users not suspected of wrongdoing, secret documents reveal.
GCHQ files dating between 2008 and 2010 explicitly state that a surveillance program codenamed Optic Nerve collected still images of Yahoo webcam chats in bulk and saved them to agency databases, regardless of whether individual users were an intelligence target or not.
This includes the 3 to 11% of images that show nudity.
Sexually explicit webcam material proved to be a particular problem for GCHQ, as one document delicately put it: “Unfortunately … it would appear that a surprising number of people use webcam conversations to show intimate parts of their body to the other person. Also, the fact that the Yahoo software allows more than one person to view a webcam stream without necessarily sending a reciprocal stream means that it appears sometimes to be used for broadcasting pornography.”
The document estimates that between 3% and 11% of the Yahoo webcam imagery harvested by GCHQ contains “undesirable nudity”.
Given past discussions of circumcision in regards to terrorist suspects, it’s only a matter of time before GCHQ defends its nudity stash because such evidence can be proof of radicalization (heh). Plus, we already know that NSA and GCHQ like to use targets’ online porn habits to discredit them.
Coming soon to an “oversight” hearing near you: James Clapper refuses to talk about this invasion of an American company’s customers’ privacy because it occurs under EO 12333 and liaison partnerships, and therefore is not subject to Congressional oversight.
“It’s tough on my family,” James Clapper said in an interview with the Daily Beast of observations he’s a liar. Especially his son, who is a high school teacher (though Clapper didn’t explain why his profession led his son to internalize accusations made against him).
The charges against his integrity bother Clapper. “I would rather not hear that or see that,” he said. “It’s tough on my family, I will tell you that. My son is a high school teacher and he has a tendency, or he is getting over it, to internalize a lot of this.”
And yet this man who thinks it unfair to question a public servant’s integrity after he lies blatantly, who has no idea why Edward Snowden did what he did, why he leaked proof that the NSA was collecting the phone records of most Americans, why Snowden leaked evidence of bulk collection (that includes Americans) overseas, why he leaked details on the NSA’s corruption of encryption.
Abdur-Rahim taught at the girls school surveilled by the NYPD — the school, which was accredited by the state of NJ — was actually in her home — and now teaches at another of the schools scoped out by the cops.
Zaimah Abdur-Rahim resides at [address removed]. She is currently a math teacher at Al Hidaayah Academy (“AHA”), a position she has held since 2010. A record of the NYPD’s surveillance of AHA appears in the Newark report, which includes a photograph and de scription of the school . Abdur-Rahim was also the principal of Al Muslimaat Academy (“AMA”), a school for girls grades five through twelve, from 2002 through 2010. Like AHA, a record of the NYPD’s surveillance of AMA appears in the Newark report, including a photograph, the address, and notations stating, among other things, that the school was located in a private house and that the ethnic composition of the school was African American.
Abdur-Rahim has been unfairly targeted and stigmatized by the NYPD’s surveillance of AHA, where she is currently employed, and AMA, where she was last employed, as part of the Department’s program targeting Muslim organizations. She reasonably fears that her future employment prospects are diminished by working at two schools under surveillance by law enforcement. Moreover, the Newark report’s photograph of AMA is also Abdur-Rahim’s home, where she has lived since 1993 with her husband and, at various times, her children and grandchildren. The fact that a photograph of h er home appears on the internet in connection with the NYPD’s surveillance p rogram that the City of New York has since publicly exclaimed is necessary for public safety, has decreased the value of the home and diminished the prospects for sale of the home.
I’m betting that having her home and places of work surveilled by the cops is tough on Abdur-Rahim’s family, far tougher than it is for Clapper’s son to internalize complaints by the citizens he serves about the demonstrable obfuscation by his father.
There is no evidence that the NSA programs defended by Clapper ever specifically targeted Abdur-Rahim, though in this era of information sharing it is conceivable that NYPD identified potential targets (especially mosques) using data obtained indirectly from NSA.
But the entire system Clapper defends — in which communication ties between individuals serve, by themselves, as cause for further investigation — foments a logic that questions the integrity of great many members of the Muslim community. They get swept up in a dragnet (or exposed to infiltrators selected in part by using the dragnet) that targets them not because of what they said publicly in front of television cameras, which is why Clapper’s integrity is under question, but simply because they are 2 or 3 degrees away from someone subjected to a virtual stop-and-frisk.
Imagine how the sons and daughters of the real live teachers targeted by Clapper’s dragnet must internalize the presumption of a lack of integrity or even worse? Imagine how much worse it must be when the suspicion comes not from actual actions taken, lies told, but from ties to a community?
Clapper’s plea for his own reputation here is ill-placed. It actually convinces me we’re relying on the wrong evidence for questioning his integrity.
Because his actions, particularly over the past 4 years, involved questioning the integrity of many people based on far, far less evidence than is now being wielded against him. But when he and his employees at the National Counterterrorism Center question someone’s integrity, in secret, with little recourse for appeal, there may be consequences, like losing the ability to fly, or receiving extra scrutiny when they do try to fly.
And he still doesn’t get the problem with that. He still doesn’t understand why his “so-called” domestic surveillance –and the foreign surveillance that also sucks up Americans — is so much worse than being held to account for lies you tell Congress.
I’m going to return to Glenn Greenwald’s latest showing details of how the NSA treated WikiLeaks and, to a lesser degree, Anonymous (as well as Alexa O’Brien’s update on the investigation into WikiLeaks) later.
If GCHQ does this kind of tracking, how did Five Eyes miss the Tsarnaev brothers?
But for now I want to look at one slide covering GCHQ’s AntiCrisis monitoring approach (see slide 34), which in this case is focused on WikiLeaks. It shows how GCHQ has the ability — and had it in 2012 — to monitor particular websites. It shows GCHQ can monitor the visitors of a particular website, where they’re coming from, what kind of browsers they use. None of that is, in the least surprising. But given those capabilities, it would be shocking if GCHQ weren’t doing similar monitoring of AQAP’s online magazine Inspire, with the added benefit that certain text strings in each Inspire magazine would make it very easy to track copies of it as it was downloaded, even domestically via upstream collection. And for the UK, this isn’t even controversial; even possessing Inspire in the UK can get you imprisoned.
Given that that’s the case, why didn’t GCHQ and NSA find the Tsarnaev brothers who — the FBI has claimed but provided no proof — learned to make a bomb from the Inspire release that GCHQ or NSA hacked? Why isn’t NSA reviewing why it didn’t find the brothers based on cross-referencing likely NSA tracking of Inspire with its FBI reporting on Tamerlan Tsarnaev?
I used to not believe NSA should have found the Tsarneavs. But now that I’ve seen all the nifty tools we’ve learned NSA and, especially, GCHQ have, they really do owe us an explanation for why they didn’t find the Tsarnaev brothers, one of whom was already in an FBI database, and who was allegedly learning to make a pressure cooker bomb from a document that surely gets tracked by the NSA and its partners.
Speaking of NSA failures…
Which brings me back to James Clapper’s interview with Eli Lake.
Clapper said the problems facing the U.S. intelligence community over its collection of phone records could have been avoided. “I probably shouldn’t say this, but I will. Had we been transparent about this from the outset right after 9/11—which is the genesis of the 215 program—and said both to the American people and to their elected representatives, we need to cover this gap, we need to make sure this never happens to us again, so here is what we are going to set up, here is how it’s going to work, and why we have to do it, and here are the safeguards… We wouldn’t have had the problem we had,” Clapper said.
“What did us in here, what worked against us was this shocking revelation,” he said, referring to the first disclosures from Snowden. If the program had been publicly introduced in the wake of the 9/11 attacks, most Americans would probably have supported it. “I don’t think it would be of any greater concern to most Americans than fingerprints
Now, I’ll have to review the latest declarations in Jewel, but I think Clapper’s statement — that the genesis of today’s phone dragnet dates to 9/11 – goes slightly beyond what has been admitted, because it ties today’s phone dragnet program back to the PSP phone dragnet program. Ron Wyden has tried to make the tie between the illegal program and the current one clear for months. Clapper has now inched closer to doing so.
But I also want to take issue with Clapper’s claim that if NSA had presented a “gap” to Members of Congress and the public after 9/11 we would have loved the dragnet.
Had we known of the errors and territorialism that permitted 9/11, would we have agreed to any of this?
I do so, in part, because the claim there was a “gap” is erroneous and has been proven to be erroneous over and over. Moreover, that myth dates not to the days after 9/11, but to misrepresentations about the content of the 9/11 Commission report 3 years later. Note, too, that (as has happened with Inspector Generals reviews of the Boston Marathon attack) the Commission got almost no visibility into what NSA had against al Qaeda.
More importantly, had NSA gone to the public with claims about gaps it did and didn’t have before 9/11, we would likely have talked not about providing NSA more authority to collect dragnets, but instead, about the responsibility of those who sat on intelligence that might have prevented 9/11.
As Thomas Drake and the other NSA whistleblowers have made clear, the NSA had not shared intelligence reports that might have helped prevent 9/11.
I found the pre- and post-9/11 intelligence from NSA monitoring of some of the hijackers as they planned the attacks of 9/11 had not been shared outside NSA. Continue reading
Office of Director of National Intelligence General Counsel Robert Litt, 45 days ago:
Senator Ron Wyden asked about collection of information on Americans during a lengthy and wide-ranging hearing on an entirely different subject. While his staff provided the question the day before, Mr. Clapper had not seen it. As a result, as Mr. Clapper has explained, he was surprised by the question and focused his mind on the collection of the content of Americans’ communications. In that context, his answer was and is accurate.
When we pointed out Mr. Clapper’s mistake to him, he was surprised and distressed. I spoke with a staffer for Senator Wyden several days later and told him that although Mr. Clapper recognized that his testimony was inaccurate, it could not be corrected publicly because the program involved was classified.
This incident shows the difficulty of discussing classified information in an unclassified setting and the danger of inferring a person’s state of mind from extemporaneous answers given under pressure.
Director of National Intelligence James Clapper, today:
But Clapper told The Daily Beast that he simply misunderstood Wyden’s question. At the time of the hearing last March, Congress had just finished consideration of a bill to renew the Foreign Intelligence Surveillance Act (FISA). Section 702 of that legislation gives the National Security Agency the authority to collect the electronic communications of non-U.S. persons. In his question, Wyden asked initially if the United States had collected “dossiers” on American citizens and referred to an answer to this question by then NSA director, Keith Alexander.
“I was not even thinking of what he was asking about, which is of course we now all know as section 215 of the Patriot Act governing the acquisition and storage of telephony business records metadata,” Clapper said. “Wasn’t even thinking of that.” The director of national intelligence said he thought Wyden’s question was actually about section 702 of FISA.
“The allegation about my lying and committing perjury I think are disproven by my labored amplification when I said, ‘if there is, it’s inadvertent collection,’ meaning when we’re collecting overseas under section 702, and if we inadvertently collect which we may not know at the time, U.S. persons data, that’s what I meant by inadvertent. That comment would make absolutely no sense whatsoever in the context of section 215.”
At the time of the Mitchell interview, the U.S. government was still in the process of declassifying elements of the FISA 702 program. “There is only one person on the planet who actually knows what I was thinking,” Clapper said of his testimony from last March. “Not the media, and not certain members of Congress, only I know what I was thinking.”
If only one person knows what he was thinking, then how was Robert Litt in any position to tell us Clapper was “surprised”?
And has Clapper decided he wasn’t “surprised” (perhaps because he had been briefed, not to mention had received months and months of letters, about the question), but instead simply “misunderstood” the intent of a question he had received months of letters about?
As part of my new focus on leaked claims that the NSA can’t collect call call data because of problems stripping out cell location data, I want to look at the two exchanges Ron Wyden and James Clapper have had about cell location data.
First, at the Global Threats Hearing 2 years ago just after the US v. Jones decision ruled GPS tracking a search (watching Ron Wyden discomfit Clapper at Threat Hearings used to be my exclusive beat, you know), they had this exchange.
Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.
Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment. [my emphasis]
We now have proof (as if Wyden’s hints weren’t enough of a tell, given his track record) that NSA was collecting cell location at the time of Wyden’s question. While the exchange took place after (according to NSA’s public claims) NSA’s domestic experiments with cell data under Section 215 ended, it suggests the actual NSA collection took place outside of Section 215.
As it happens, NSA’s own slide shows that on the day Wyden asked the question — January 31, 2012 — it collected around 4 billion cell location records (it was a slow day that day — NSA had been collecting closer to 5 billion records a day in 2012). That collection presumably would have been conducted under EO 12333.
Given that we know NSA collected around 4 billion cell location records that day, I’m particularly struck by Clapper’s emphasis on two things: First his suggestion that the legal analysis might be different for an intelligence use than for a law enforcement use. Given his claim the IC abided by the Fourth Amendment, I assume he imagines they have a Special Need to suck up all this cell location data that makes such searches “reasonable.”
Also note his reference to “foreign or domestic.” I’m guessing the IC was also busy arguing that, in spite of the US person cell locations they were ingesting, because they were doing so in a foreign location, it didn’t violate the Fourth Amendment.
With all that in mind, consider Wyden’s question to Keith Alexander on September 26, just before Alexander admitted to the past Section 215 experiments as some kind of limited hangout. Continue reading
I joked yesterday that James Clapper did no more than cut and paste to accomplish President Obama’s order of providing a list of acceptable bulk collection. But I’d like to note something about the list of permissible uses of bulk collection.
For months, I have been noting hints that the use of Section 702 — which is one of several kinds of domestic bulk collection — is limited by the number of certifications approved by FISC, which might be limited by FISC’s assessment of whether such certifications establish a certain level of “special need.”
In 2011, it seems clear from John Bates’ opinion on the government’s Section 702 applications, there were 3 certifications.
If there are just 3 certifications, then it seems clear they cover counterterrorism, counterproliferation, and cybersecurity (which is consistent with both ODNI’s public descriptions of Section 702 and the Presidential Review Group’s limits on it), 3 of 6 of the permitted uses of bulk collection.
Furthermore, there’s some history (you’ll have to take my word for this for now, but the evidence derives in part from reports on the use of National Security Letters) of lumping in Counterintelligence and Cybersecurity, because the most useful CI application of bulk collection would target technical exploits used for spying. So if that happens with 702 collection, then 4 of the 6 permissible applications would be covered by existing known certifications.
Threats against Armed Forces would, for the most part, be overseas, suggesting the bulk collection on it would be too. (Though it appears Bush’s illegal program used the excuse of force protection to spy on Iraqi-related targets, potentially even in the US, until the hospital confrontation stopped it.)
Which leaves just transnational crime threats — against which President Obama rolled out a parallel sanctions regime to terrorism in 2011 (though there had long been a regime against drug traffickers) — as the sole bulk collection that might apply in the US that doesn’t have certifications we know about.
Given that at least drug cartels have a far more viable — and deathly — operation in the United States than al Qaeda, I can’t think of any reason why the Administration wouldn’t have applied for a certification targeting TCOs, too (one of Treasury’s designated TCO targets — Russian and East European mobs — would have some overlap with the cyber function, and one — Yakuza — just doesn’t seem like a big threat to the US at all).
And last year’s Semiannual Compliance Assessment may support the argument that there are more than 3 certificates. In its description of the review process for 702 compliance, the report lays out review dates by certifications. Here’s the NSA review schedule:
This seems to show 4 lines of certifications, one each in August and December, but two in October. Perhaps they re-review one of the certifications (counterterrorism, most likely). But if not, it would seem to suggest there’s now a 4th certification.
Here’s the FBI review schedule (which apparently requires a lot more manual review).
Given that this requires manual review, I wouldn’t be surprised if they repeated the counterterrorism certifications review (and we don’t know whether all the NSA certifications would be used by FBI). But the redactions would at least allow for the possibility that there is a 4th certification, in addition to the 3 we know about.
Perhaps Obama rolled out TCOs as a 4th certification as he rolled out his new Treasury initiative on it (which would be after the applications laid out by Bates).
Of course, we don’t know. But I think two things are safe to say. First, the use of 702 is tied to certifications by topic. And the public statement about permissible use of bulk collection, it would seem to envision the possibility of a 4th certification covering TCOs, and with it, drug cartels.
As part of his Presidential Policy Directive on Signals Intelligence, Obama said this about bulk collection:
In particular, when the United States collects nonpublicly available signals intelligence in bulk, it shall use that data only for the purposes of detecting and countering: (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; and (6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section. In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S . business sectors commercially; or achieving any purpose other than those identified in this section.
The Assistant to the President and National Security Advisor (APNSA), in consultation with the Director of National Intelligence (DNI), shall coordinate, on at least an annual basis, a review of the permissible uses of signals intelligence collected in bulk through the National Security Council Principals and Deputies Committee system identified in PPD-1 or any successor document. At the end of this review, I will be presented with recommended additions to or removals from the list of the permissible uses of signals intelligence collected in bulk.
The DNI shall maintain a list of the permissible uses of signals intelligence collected in bulk. This list shall be updated as necessary and made publicly available to the maximum extent feasible, consistent with the national security.
To fulfill that bolded “shall” language, James Clapper just released this on his IContheRecord Tumblr page:
Presidential Policy Directive/PPD-28 – Signals Intelligence Activities establishes a process for determining the permissible uses of nonpublicly available signals intelligence that the United States collects in bulk. It also directs the Director of National Intelligence to “maintain a list of permissible uses of signals intelligence collected in bulk” and make the list “publicly available to the maximum extent feasible, consistent with the national security.”
Consistent with that directive, I am hereby releasing the current list of permissible uses of nonpublicly available signals intelligence that the United States collects in bulk.
Signals intelligence collected in “bulk” is defined as “the authorized collection of large quantities of signals intelligence data which, due to technical or operational considerations, is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).” As of Jan. 17, 2014, nonpublicly available signals intelligence collected by the United States in bulk may be used by the United States “only for the purposes of detecting and countering:
- Espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests;
- Threats to the United States and its interests from terrorism;
- Threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction;
- Cybersecurity threats;
- Threats to U.S. or allied Armed Forces or other U.S. or allied personnel; and
- Transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named above.”
Further, as prescribed in PPD-28, “in no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially;” or achieving any purpose other than those identified above.
Effectively, Clapper fulfilled an obligation mandated by the PPD by simply cutting and pasting the list of 6 permissible uses of bulk collection in the PPD.
Given that this list is expected to be assessed annually, does that mean the PPD itself should be considered valid for no more than a year?
It seems that Mike Rogers lately is aiming to take over the Emptywheel blog. When he’s not yapping about criminalizing journalism or dissembling about Congressional briefings on the Patriot Act renewal, he’s putting out bloodthirsty endorsements of drone violence. When we last heard from him on the drone front, he was joining the mad rush to come up with the most damning indictment of Hakimullah Mehsud after the US disrupted Pakistan’s plans to start peace talks the very next day with a Taliban group headed by Mehsud. Yesterday, Rogers used a hearing of his House Intelligence Committee as a venue in which to pitch a tantrum over the US daring to adjust its drone policy, leading to fewer strikes.
Now, almost exactly three months after the Mehsud drone strike, we see the prospect for peace talks between Pakistan and the Taliban disrupted again. As I mentioned yesterday, Taliban negotiators fear that Pakistan’s government may be planning to scuttle the talks in order to launch an offensive against the Taliban in tribal areas, which might also play into a desire by Sharif’s government to be in line for counterterrorism funds which the US might not be spending in Afghanistan.
The Washington Post has Rogers’ tirade. First, there is news of a pause in drone strikes in Pakistan:
The Obama administration has sharply curtailed drone strikes in Pakistan after a request from the government there for restraint as it pursues peace talks with the Pakistani Taliban, according to U.S. officials.
“That’s what they asked for, and we didn’t tell them no,” one U.S. official said. The administration indicated that it will still carry out strikes against senior al-Qaeda targets, if they become available, and move to thwart any direct, imminent threat to U.S. persons.
Concern about Pakistani political sensitivities provides one explanation for the absence of strikes since December, the longest pause in the CIA’s drone campaign since a six-week lull in 2011, after an errant U.S. air assault killed 24 Pakistani soldiers at a border post, triggering a diplomatic crisis.
Oooh, look! There’s Marcy’s favorite word again, “imminent“. But this lull in drone strikes, coupled with the explanation offered in the Post, tells us that no suitable al Qaeda targets with credible plans against the US presented themselves in Pakistan’s tribal areas for over a month. That didn’t deter Rogers; he’s upset that any potential targets aren’t blasted immediately: Continue reading
Here are some excerpts from the Global Threats report pertaining to the cyber threat.
We assess that computer network exploitation and disruption activities such as denial-of-service attacks will continue.
… many countries are creating cyber defense institutions within their national security establishments. We estimate that several of these will likely be responsible for offensive cyber operations as well.
Critical infrastructure, particularly the Industrial Control Systems (ICS) and Supervisory Control and Data Acquisition (SCADA) systems used in water management, oil and gas pipelines, electrical power distribution, and mass transit, provides an enticing target to malicious actors. Although newer architectures provide flexibility, functionality, and resilience, large segments of legacy architecture remain vulnerable to attack, which might cause significant economic or human impact.
It’s as if the intelligence community called up NSA and CyberCommand, asked what they had been working on, and then “assessed” that those targets presented threats going forward.
And while I expect that China commits what would be judged the largest number of hacks (in part because much of the information we steal right from the communication backbone they would have to hack to get), the inclusion of SCADA in the list of vulnerabilities is particularly rich, considering we are believed to have pioneered that kind of attack with StuxNet.
Again, I’m not denying these other entities hack (the unclassified version of the report left off Israel and France, as unclassified versions tend to do). Just that we continue to exhibit no awareness that some part of this threat amounts to our genie blowing back in our face.