In this post, I argued that a likely explanation for the NSA’s limits on collecting domestic cell phone data stem from a decision Verizon made in 2009 to stop participating in an FBI call records program. I’m not sure if I’m right about the cause (I know I’m not right about the timing), but I based part of my argument on how the FISA Court resolved a problem with telecoms turning over foreign data in 2009. And that resolution definitely indicates there’s something different about the way Verizon produces dragnet data from how AT&T does (Sprint is probably a third case, but not as important for these purposes).
Let me be clear: Verizon was not the only telecom to have the problem. It affected at least one other telecom; I believe it may have affected all of them. But the FISC resolved it differently with Verizon, which I believe shows that Verizon complies with the Section 215 orders in different fashion than AT&T and Sprint.
The problem was first identified when, in May 2009, Verizon informed the NSA it had been including foreign-to-foreign records in the data it provided to the NSA. Here’s how David Kris explained it in his report accompanying the phone dragnet end to end report.
NSA advised that for the first time, in May 2009, [redacted--Verizon] stated it produced foreign-to-foreign record pursuant to the Orders. [redacted--Verizon] stopped its production of this set of foreign-to-foreign records on May 29, 2009, after service of the Secondary Order in BR 09-06, which carves out foreign-to-foreign records from the description of records to be produced. (19)
In an accompanying declaration Keith Alexander provided more detail.
In May 2009, during a discussion between NSA and [redacted--Verizon] regarding the production of metadata, a [redacted--Verizon] representative stated that [redacted] produced the records [redacted] pursuant to the BR FISA Orders. This was the first indication that NSA had ever received from [redacted--Verizon] of its contrary understanding. At the May 28, 2009, hearing in docket number BR 09-06, the government informed the Court of [redacted redacted]. To address the issue, based on the government’s proposal, the Court issued a Secondary Order to [redacted] in docket number BR 09-06 that expressly excluded foreign-to-foreign call detail records from the scope of records to be produced. On May 29, 2009, upon service of the Secondary Order in docket number BR 09-06, [redacted--Verizon] ceased providing foreign-to-foreign records [redacted]. (42/PDF67)
Almost every dragnet order since that May 29, 2009 one has broken its production order out into two subparagraphs to reflect this change.
We can be virtually certain that Verizon is this provider, because the Verizon secondary order leaked by Edward Snowden includes the language excluding foreign-to-foreign data. That long redaction likely hides Verizon’s full name under this program, “Verizon Business Network Services, Inc. on behalf of MCI Communication Services Inc., d/b/a Verizon Business Services (individually and collectively “Verizon”), which is the name initially used in the secondary order.
Additionally, ODNI originally released the January 20, 2011 primary order with the paragraph that clarifies this with Verizon’s name unredacted. The paragraph remains in the dragnet orders, even after Verizon and Vodaphone split earlier this year (though if the split affected this issue, they may have hidden the fact by retaining the paragraph, given that they’re now anticipating declassification of the orders).
Less than a month after this incident, on June 25, the NSA finished its End-to-End report, which reported just the Verizon issue. Sometime between then and July 9, the FISC appears to have realized one of the other providers had a similar problem. The July 9, 2009 dragnet order, in the only exception I know to the two-part production order, looked like this:
The production order is to plural custodians of records, meaning at least two providers must be named. But it applies the Verizon rules to all of the named providers.
The order also requires an explanation for inclusion of the foreign-to-foreign records (see the bullet at 16-17). It is redacted in the released order but the DOJ submission (see page 6) shows that Judge Walton ordered,
a full explanation of the extent to which NSA has acquired call detail records of foreign-to-foreign communications from [redacted--too long to just be Verizon] pursuant to orders of the FISC, and whether the NSA’s storage, handling, and dissemination of information in those records, or derived therefrom, complied with the Court’s orders;
The September 3, 2009 order reverts to the two-paragraph structure. But it also orders retroactive production from one of the providers (AT&T or Sprint, probably the latter based on redaction length) named in the first paragraph (I first wrote about this here).
In addition, the Custodian of Records of [redacted] shall produce to NSA upon service of the appropriate Secondary Order an electronic copy of the same tangible things created by [redacted] for the period from 5:11 p.m. on July 9, 2009 to the date of this Order, to the extent those records still exist.
And adds a requirement that NSA report on any significant changes in reapplications, including on any changes to how the government obtains the data from carriers.
Any application to renew or reinstate the authority granted herein shall include a report describing: (1) the queries made since the end of the reporting period of the last report filed with the Court; (ii) the manner in which NSA applied the procedures set forth in paragraph (3)C above; and (iii) any proposed changes in the way in which the call detail records would be received from the carriers and any significant changes to the systems NSA uses to receive, store, process, and disseminate BR metadata. [my emphasis]
The DOJ report provides further evidence that at least one other provider provided foreign-to-foreign records. When Kris introduces this problem (see page 18), he references a three part discussion in Alexander’s declaration.
You can see the heading for the third provider on page 46/PDF 71 of the Alexander declaration.
So the report appears to have commented on all three providers. The problem clearly affected two of them.
But FISC only retains the clarification for Verizon.
As I said, I appear to be wrong about the timing of this. I had suggested it was tied to Verizon deciding not to reup its contract under the FBI phone program in 2009. That almost certainly had to have happened (as Charlie Savage noted to me via Twitter, the Exigent Letter IG Report was focused on AT&T, MCI, and Verizon, and one of the latter two, which means basically one part of Verizon, backed out).
But the End-to-End Report makes it clear Verizon first started turning over this data in January 2007.
This foreign-to-foreign metadata started coming into NSA in January 2007. (15)
There was not even a dragnet order signed in January 2007, so it can’t be tied primarily to the phone dragnet. It also preceded the end of the on-site phone provider program (which ended in December 2007) and even the release of the first NSL IG Report in March 2007, which led the providers to get squirrelly (see page 191 for these dates).
The details regarding the potential problems with Verizon’s provision of foreign-to-foreign records suggests this may have something to do with upstream production (Verizon had been providing upstream records to the NSA for years, but it only came under the oversight of the FISC in January 2007).
Furthermore, because the records are records of foreign-to-foreign communications, almost all of them do not concern the communications of U.S. persons. To the extent any of the records concern the communications of U.S. persons, such communications would be afforded the same protections as any other U.S. person communication [redacted] authorities. Id. at 43. (19)
almost all of them concern the communications of non-U.S. persons located outside the United States. If NSA were to find that any of the records concerned U.S. persons, their dissemination would be governed by the terms of USSID 18 which are the procedures established pursuant to EO 12333, as amended. (68)
The discussion of records that might “concern the communications” sounds like an “about” search (though I’m not sure of what).
All that said, AT&T should have had the same upstream “about” obligations starting in January 2007 that Verizon did. I suspect (based on my guess that Sprint is the production that got shut down) the order in the July 9, 2009 order is the only instruction they ever got to stop providing foreign-to-foreign records. Yet FISC felt the need — still feels the need — to keep that explicit order to Verizon in every single primary order.
Mind you, all this shows that Verizon was able to shut down the foreign production immediately, on the same day. So it’s clear they can shut down certain kinds of production.
All this seems to suggest that — in addition to at least some part of Verizon withdrawing from the FBI’s records program, and to Verizon not retaining records for the same length of time AT&T does — Verizon also produces phone dragnet data differently than AT&T does.
Via Mike Masnick, I see that in addition to submitting a new state secrets declaration and a filing claiming EFF’s clients in Jewel v. NSA don’t have standing, the government also submitted a secret supplemental brief on its statement of authorities, which EFF has challenged.
The secret supplemental brief is interesting given the government’s outrageous state secrets claim in the lawsuit against United Against a Nuclear Iran, in which it refuses to explain why it must protect the intelligence sources and methods of an allegedly independent NGO. It seems the government’s state secrets claims are getting even more outrageous than they already were.
That’s particularly interesting given what appears to be the outlines of a claim that if the court recognizes Jewel’s standing, then all hell will break loose.
Due to the failings of Plaintiffs’ evidence described above, the Court need not consider the impact of the state secrets privilege on the standing issue. However, if the Court were to find Plaintiffs’ declarations admissible and sufficiently probative of Plaintiffs’ standing to raise a genuine issue meriting further inquiry (which it should not), adjudication f the standing issue could not proceed without risking exceptionally grave damage to national security (a threshold issue on which the Court requested briefing). That is so because operational details of Upstream collection that are subject to the DNI’s assertion of the state secrets privilege in this case are necessary to address Plaintiffs’ theory of standing. The Government presented this evidence to the Court in the DNI’s and NSA’s classified declarations of December 20, 2013, and supplements it with the Classified Declaration of Miriam P., NSA, submitted in camera, ex parte, herewith. Disclosure of this evidence would risk informing our Nation’s adversaries of the operational details of the NSA’s Upstream collection, including the identities of electronic-communications-service providers assisting with Upstream collection.
Behind these claims of grave harm are the reality that if US persons started to get standing under the dragnet, then under John Bates’ rules (in which illegal wiretapping is only illegal if the government knows US persons are targeted), the entire program would become illegal. So I suspect the government is ultimately arguing that Jewel can’t have standing because it would make the entire program illegal (which is sort of the point!).
But the biggest reason I’m intrigued by the government’s sneaky filing is because of what happened the last time it submitted such a sneaky filing.
I laid out in this post how a state secrets filing submitted in EFF’s related Shubert lawsuit by Keith Alexander on October 30, 2009 demonstrably lied. Go back and read it–it’s a good one. A lot of what I show involves Alexander downplaying the extent of the phone dragnet problems.
But we now know more about how much more Alexander was downplaying in that declaration.
As I show in this working thread, it is virtually certain that on September 30, 2009, Reggie Walton signed this order, effectively shutting down the Internet dragnet (I’m just now noticing that ODNI did not — as it has with the other FISC dragnet orders — release a copy with the timestamp that goes on all of these orders, which means we can’t determine what time of the day this was signed). Some time in the weeks before October 30, DOJ had submitted this notice, admitting that NSA had been violating the limits on “metadata” collection from the very start, effectively meaning it had been collecting content in the US for 5 years.
Precisely the kind of illegal dragnet Virginia Shubert was suing the government to prevent.
Mind you, there are hints of NSA’s Internet dragnet violations in Alexander’s declaration. In ¶59, Alexander says of the dragnet, “The FISC Telephone Business Records Order was most recently reauthorized on September 3, 2009, with authority continuing until October 30, 2009″ (Walton signed the October 30, 2009 phone dragnet order around 2:30 ET, which would be 11:30 in NDCA where this declaration was filed). In ¶58, he says, “The FISC Pen Register Order was most recently reauthorized on [redacted], 2009, and requires continued assistance by the providers through [redacted] 2009″ (this is a longer redaction than October 30 would take up, so it may reflect the 5PM shutdown Walton had imposed). So it may be that one of the redacted passages in Alexander’s declaration admitted that FISC had ordered the Internet dragnet shut down.
In addition, footnote 24 is quite long (note it carries onto a second page); particularly given that the tense used to describe the dragnets in the referenced paragraph differ (the Internet dragnet is in the past tense, the phone dragnet is in the present tense), it is possible Alexander admitted to both the compliance violation and that NSA had “voluntarily” stopped querying the dragnet data.
Further, in his later discussions, he refers to this data as “non-content metadata” and “records about communication transactions,” which may reflect a tacit (or prior) acknowledgment that the NSA had been collecting more than what, to the telecoms who were providing it, was legally metadata, or, if you will, was in fact “content as metadata.”
To the extent that the plaintiffs “dragnet” allegations also implicate other NSA activities, such as the bulk collection of non-content communications meta data or the collection of communications records, see, e.g., Amended Compl ¶58, addressing their assertions would require disclosure of NSA sources and methods that would cause exceptionally grave harm to national security.
Accordingly, adjudication of plaintiffs’ allegations concerning the collection of non-content meta data and records about communication transactions would risk or require disclosure of critical NSA sources and methods for [redacted] contacts of terrorist communications as well as the existence of current NSA activities under FISC Orders. Despite media speculation about those activities, official confirmation and disclosure of the NSA’s bulk collection and targeted analysis of telephony meta data would confirm to all of our foreign adversaries [redacted] the existence of these critical intelligence capabilities and thereby severely undermine NSA’s ability to gather information concerning terrorist connections and cause exceptionally grave harm to national security.
So it seems that Alexander provided some glimpse to Vaughn Walker of the troubles with the Internet dragnet program. So when after several long paragraphs describing the phone dragnet problems (making no mention even of the related Internet dragnet ones), Alexander promised to work with the FISC on the phone dragnet “and other compliance issues,” he likely invoked an earlier reference to the far more egregious Internet dragnet ones.
NSA is committed to working with the FISC on this and other compliance issues to ensure that this vital intelligence tool works appropriately and effectively. For purposes of this litigation, and the privilege assertions now made by the DNI and by the NSA, the intelligence sources and methods described herein remain highly classified and the disclosure that [redacted] would compromise vital NSA sources and methods and result in exceptionally grave harm to national security.
I find it tremendously telling how closely Alexander ties the violations themselves to the state secrets invocation.
The thing is, at this point in the litigation, the only honest thing to submit would have been a declaration stating, “Judge Walker? It turns out we’ve just alerted the FISC that we’ve been doing precisely what the plaintiffs in this case have accused of us — we’ve been doing it, in fact, for 5 years.” An honest declaration would have amounted to concession of the suit.
But it didn’t.
And that state secrets declaration, like the one the government submitted at the end of September, was accompanied by a secret statement of authorities, a document that (unless I’m mistaken) is among the very few that the government hasn’t released to EFF.
Which is why I find it so interesting that the government is now, specifically with reference to upstream collection, following the same approach.
Do these secret statements of authority basically say, “We admit it, judge, we’ve been violating the law in precisely the way the plaintiffs claim we have. But you have to bury that fact behind state secrets privilege, because our dragnets are more important than the Fourth Amendment”? Or do they claim they’re doing this illegal dragnettery under EO 12333 so the court can’t stop them?
If so, I can see why the government would want to keep them secret.
Update: I originally got the name of Shubert wrong. Virginia Shubert is the plaintiff.
As you’ve likely read, NSA’s Chief Technology Officer has so little to keep him busy he’s also planning on working 20 hours a week for Keith Alexander’s new boondoggle.
Under the arrangement, which was confirmed by Alexander and current intelligence officials, NSA’s Chief Technical Officer, Patrick Dowd, is allowed to work up to 20 hours a week at IronNet Cybersecurity Inc, the private firm led by Alexander, a retired Army general and his former boss.
The arrangement was approved by top NSA managers, current and former officials said. It does not appear to break any laws and it could not be determined whether Dowd has actually begun working for Alexander, who retired from the NSA in March.
Dowd is the guy with whom Alexander filed 7 patents for work developed at NSA.
During his time at the NSA, Alexander said he filed seven patents, four of which are still pending, that relate to an “end-to-end cybersecurity solution.” Alexander said his co-inventor on the patents was Patrick Dowd, the chief technical officer and chief architect of the NSA. Alexander said the patented solution, which he wouldn’t describe in detail given the sensitive nature of the work, involved “a line of thought about how you’d systematically do cybersecurity in a network.”
That sounds hard to distinguish from Alexander’s new venture. But, he insisted, the behavior modeling and other key characteristics represent a fundamentally new approach that will “jump” ahead of the technology that’s now being used in government and in the private sector.
Presumably, bringing Dowd on board will both make Alexander look more technologically credible and let Dowd profit off all the new patents Alexander is filing for, which he claims don’t derive from work taxpayers paid for.
Capitalism, baby! Privatizing the profits paid for by the public!
All that said, I’m wondering whether this is about something else — and not just greed.
Yesterday, as part of a bankster cybersecurity shindig, one of Alexander’s big named clients, SIFMA, rolled out its “Cybersecurity Regulatory Guidance.” It’s about what you’d expect from a bankster organization: demands that the government give what it needs, use a uniform light hand while regulating, show some flexibility in case that light hand becomes onerous, and never ever hold the financial industry accountable for its own shortcomings.
Bullet point 2 (Bullet point 1 basically says the US government has a big role to play here which may be true but also sounds like a demand for a handout) lays out the kind of public-private partnership SIFMA expects.
Principle 2: Recognize the Value of Public–Private Collaboration in the Development of Agency Guidance
Each party brings knowledge and influence that is required to be successful, and each has a role in making protections effective. Firms can assist regulators in making agency guidance better and more effective as it is in everyone’s best interests to protect the financial industry and the customers it serves.
The NIST Cybersecurity Framework is a useful model of public-private cooperation that should guide the development of agency guidance. NIST has done a tremendous job reaching out to stakeholders and strengthening collaboration with financial critical infrastructure. It is through such collaboration that voluntary standards for cybersecurity can be developed. NIST has raised awareness about the standards, encouraged its use, assisted the financial sector in refining its application to financial critical infrastructure components, and incorporated feedback from members of the financial sector.
In this vein, we suggest that an agency working group be established that can facilitate coordination across the agencies, including independent agencies and SROs, and receive industry feedback on suggested approaches to cybersecurity. SIFMA views the improvement of cybersecurity regulatory guidance and industry improvement efforts as an ongoing process.
Effective collaboration between the private and public sectors is critical today and in the future as the threat and the sector’s capabilities continue to evolve.
Again, this public-private partnership may be necessary in the case of cybersecurity for critical infrastructure, but banks have a history of treating such partnership as lucrative handouts (and the principle document’s concern about privacy has more to do with hiding their own deeds, and only secondarily discusses the trust of their customers). Moreover, experience suggests that when “firms assist regulators in making agency guidance better,” it usually has to do with socializing risk.
In any case, given that the banks are, once again, demanding socialism to protect themselves, is it any wonder NSA’s top technology officer is spending half his days at a boondoggle serving these banks?
And given the last decade of impunity the banks have enjoyed, what better place to roll out an exotic counter-attacking cybersecurity approach (except for the risk that it’ll bring down the fragile house of finance cards by mistake)?
Alexander said that his new approach is different than anything that’s been done before because it uses “behavioral models” to help predict what a hacker is likely to do. Rather than relying on analysis of malicious software to try to catch a hacker in the act, Alexander aims to spot them early on in their plots.
One of the most recent stories on the JP Morgan hack (which actually appears to be the kind of Treasuremapping NSA does of other country’s critical infrastructure all the time) made it clear the banksters are already doing the kind of data sharing that Keith Alexander wailed he needed immunity to encourage.
The F.B.I., after being contacted by JPMorgan, took the I.P. addresses the hackers were believed to have used to breach JPMorgan’s system to other financial institutions, including Deutsche Bank and Bank of America, these people said. The purpose: to see whether the same intruders had tried to hack into their systems as well. The banks are also sharing information among themselves.
So clearly SIFMA’s call for sharing represents something more, probably akin to the kind of socialism it benefits from in its members’ core business models.
In the intelligence world, they use the term “sheep dip” to describe how they stick people subject to one authority — such as the SEALs who killed Osama bin Laden — under a more convenient authority — such as CIA’s covert status. Maybe that’s what’s really going on here: sheep dipping NSA’s top tech person into the private sector where his work will evade even the scant oversight given to NSA.
If SIFMA’s looking for the kind of socialistic sharing akin to free money, then why should we be surprised the boondoggle at the center of it plans to share actual tech personnel?
Update: Reuters reports the deal’s off. Apparently even Congress (beyond Alan Grayson, who has long had questions about Alexander’s boondoggle) had a problem with this.
Have you noticed that every time someone covers all the patents Keith Alexander is getting for his cybersecurity boondoggle, the number of patents grows?
In this installment, it is 10.
IronNet is working with lawyers to draft as many as 10 patent applications in which the NSA would have no stake. Alexander said the “real key” to the patents was a person who never worked for the agency.
In addition to dispensing advice, IronNet is working with lawyers to draft as many as 10 patent applications that will include Alexander as co-inventor on one and “maybe a few others,” he said.
Of course, no matter how many patents it will be, Alexander is still left with the problem of explaining either why this isn’t stuff taxpayers paid for at NSA, or why Alexander didn’t implement these whiz-bang solutions while in charge of NSA.
So he’s inching closer and closer to one that might work: he’s going to patent having no knowledge.
Current cybersecurity strategies assume the defender knows what threats are present, and can quickly identify them by their digital profile, known as their signature. Alexander said IronNet’s approach is to counter those attacks as quickly as possible, without that prior knowledge.
“All the patents and stuff that people work on today assume knowledge of the threat,” he said. “What it means is a new approach. Something that’s never been used.”
It’s surely a novel approach — attacking perceived threats before you’re sure what that threat is. I’m just not sure how well it’s going to work.
While Alexander is busy shoring up his 10, 11, 12 patents, I think I’ll rush to copyright my new novel, in which a hubristic cybersecurity profiteer takes down the entire banking system by attacking core finance functions he identifies as attacks.
On Sunday I asked who was crying wolf — JP Morgan itself, or Mike Rogers — about the claimed JP Morgan attack that might not be a serious attack at all and had been attributed to Russia without yet proof of that.
So who should crawl out of his sinecure but Keith Alexander?
Keith Alexander, the NSA director from 2005 until last March, said he had no direct knowledge of the attack though it could have been backed by the Russian government in response to sanctions imposed by the U.S. and EU over the crisis in Ukraine.
“How would you shake the United States back? Attack a bank in cyberspace,” said Alexander, a retired U.S. Army general who has started his own cybersecurity company to sell services to U.S. banks. “If it was them, they just sent a real message: ‘You’re vulnerable.’”
The hackers who attacked JPMorgan, the biggest U.S. bank, were “a group with exceptional skills or a nation-state backed group,” Alexander said in an interview yesterday at Bloomberg’s Washington bureau.
“If you wanted to send a message, do you think that was significant enough for the U.S. government to say one of the best banks that we have from a cybersecurity perspective was infiltrated by somebody?” Alexander asked. “And if they could get in to do that, even if they never use it, they could get in and collapse it. Does that cause you concern?”
Note how Alexander admits he has no personal knowledge of the attack but then opines about the skills of the hackers and goes from there to hypothesize how this was a response from Russia?
So maybe it wasn’t JP Morgan or Mike Rogers crying wolf. It sure looks like Alexander is willingly feeding the poorly evidenced claims about this hack.
But don’t worry, Keith Alexander doesn’t have a conflict of interest at all.
In the middle of a discussion of how the NSA let FBI, CIA, and NCTC directly access the database of Internet query results in the report accompanying the Internet dragnet End-to-End report, a footnote describes searches NSA’s litigation support team conducts. (See page 12)
In addition to the above practices, NSA’s litigation support team conducts prudential searches in response to requests from Department of Justice or Department of Defense personnel in connection with criminal or detainee proceedings. The team does not perform queries of the PR/TT metadata. This practice of sharing information derived from PR/TT metadata was later specifically authorized. See Primary Order, Docket Number PR/TT [redacted] at 12-13. The Government respectfully submits that NSA’s historic practice of sharing of U.S. person identifying information in this manner before it was specifically authorized does not constitute non-compliance with the PR/TT Orders.
Keith Alexander’s declaration accompanying the E2E adds more detail. (See page 16)
The designated approving official does not make a determination to release information in response to requests by Department of Justice or Department of Defense personnel in connection with criminal or detainee proceedings. In the case of such requests, NSA’s Litigation Support Team conducts prudential, specific searches of databases that contain both previously disseminated reporting and related analyst notes. The team does not perform queries of the PR/TT metadata. NSA then provides that research to Department of Justice or Department of Defense personnel for their review in connection with criminal or detainee proceedings. This practice of sharing information derived from the PR/TT metadata is now specifically authorized. See Primary Order, Docket Number PR/TT [redacted] at 12-13.
Language approving searches of the corporate store conducted on behalf of DOJ and DOD does not appear (at least not at 12-13) in the early 2009 — probably March 2, 2009 — Internet dragnet primary order. But related language was included in the September 3, 2009 phone dragnet order (it does not appear in the July 8, 2009 phone dragnet order, so that appears to have been the first approval for it). Given the timing, the language might stem either from another notice of violation to the FISC (one the government has redacted thus far); or, it might be a response to recommendations made in the Joint IG Report on the illegal dragnet, which was released July 10, 2009, and which did discuss discovery problems.
But the language describing the Litigation Support Team searches is far less descriptive in the September 3, 2009 phone dragnet order.
Notwithstanding the above requirements, NSA may share information derived from the BR metadata, including U.S. person identifying information, with Executive Branch personnel in order to enable them to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings.
The E2E and Alexander’s declaration make two things more clear.
First, NSA can disseminate this information without declaring the information is related to counterterrorism (that’s the primary dissemination limitation discussed in this section), and of course, without masking US person information. That would at least permit the possibility this data gets used for non-counterterrorism purposes, but only when it should least be permitted to, for criminal prosecutions of Americans!
Remember, too, the government has explicitly said it uses the phone dragnet to identify potential informants. Having non-counterterrorism data available to coerce cooperation would make that easier.
The E2E and Alexander declaration also reveal that the Litigation Support Team conducts these searches not just for DOJ, but also for DOD on detainee matters.
That troubles me.
According to the NYT’s timeline, only 20 detainees arrived at Gitmo after these dragnets got started, and 14 of those were High Value Detainees who had been stashed elsewhere for years (as were the last batch arrived in 2004). None of the men still detained at Gitmo, at least, had been communicating with anyone outside of very closely monitored situations for years. None of the Internet dragnet data could capture them (because no historical data gets collected). And what phone data might include them — and remember, the phone dragnet was only supposed to include calls with one end in the US — would be very dated.
So what would DOD be using these dragnets for?
Perhaps the detainees in question weren’t Gitmo detainees but Bagram detainees. Plenty of them had been out communicating more recently in 2004 and 2006 and even 2009, and their conversations might have been picked up on an Internet dragnet (though I find it unlikely any were making phone calls to the US).
It’s possible the dragnet was used, in part, to track released detainees. Is dragnet contact chaining one of the things that goes into claims about “recidivist” detainees?
Finally, a more troubling possibility is that detainee attorneys’ contacts with possible witnesses got tracked. Is it possible, for example, that DOD tracked attorneys’ contacts with detainee family members in places like Yemen? Given allegations the government spied on detainees’ lawyers, that’s certainly plausible. Moreover, since NSA does not minimize contacts between attorneys and their client until the client has been indicted, and so few of the Gitmo detainees have been charged, it would be utterly consistent to use the dragnet to track lawyers’ efforts to defend Gitmo detainees. Have the dragnets been focused on attorneys all this time?
One thing is clear. There is not a single known case where DOJ or DOD have used the dragnets to provide exculpatory information to someone; Dzhokhar Tsarnaev was unable to obtain discovery on dragnet information even after the government bragged about using the dragnet in his case.
Nevertheless, NSA has been sharing US person information without even having to attest it is counterterrorism related, outside of all the minimization procedures the government boasts about.
At some point (perhaps at the end of 2009, but sometime before this application), the government tried to reapply, but withdrew their application. The three letters below were sent in response to that. But they were submitted with the reapplication.
(15/27) In addition to tagging data itself, the source now gets noted in reports.
(16/27) NSA wanted all analysts to be able to query.
(16/27) COntrary to what redaction seemed to indicate elsewhere, only contact chaining will be permitted.
(17/27) This implies that even technical access creates a record, though not about what they access, just when and who did it.
(17/27) NSA asked for the same RAS timelines as in BRFISA — I think this ends up keeping RAS longer than an initial PRTT order.
(18/27) “Virtually every PR/TT record contains some metadata that was authorized for collection, and some metadata that was not authorized for collection … virtually every PR/TT record contains some data that was not authorized by prior orders and some that was not.”
(21/27) No additional training for internal sharing of emails.
(21/27) Proof they argue everything that comes out of a query is relevant to terrorism:
Results of queries of PR/TT-sourced metadata are inherently germane to the analysis of counterterrorism-related foreign intelligence targets. This is because of NSA’s adherence to the RAS standard as a standard prerequisite for querying PR/TT metadata.
(22/27) Note “relevance” creep used to justify sharing everywhere. I really suspect this was built to authorize the SPCMA dragnet as well.
(23/27) Curious language about the 2nd stage marking: I think it’s meant to suggest that there will be no additional protection once it circulates within the NSA.
(24/27) NSA has claimed they changed to the 5 year age-off in December 2009. Given the question about it I wonder if that’s when these letters were sent?
(24/27) Their logic for switching to USSID-18:
these procedures form the very backbone for virtually all of NSA’s dissemination practices. For this reason, NSA believes a weekly dissemination report is no longer necessary.
(24-5/27) The explanation for getting rid of compliance meetings is not really compelling. Also note that they don’t mention ODNI’s involvement here.
(25/27) “effective compliance and oversight are not performed simply through meetings or spot checks.”
(27/27) “See the attached word and pdf documents provided by OIG on an intended audit of PR/TT prior to the last Order expiring as an example.” Guess this means the audit documents are from that shutdown period.
(2) DNI adopted new serial numbers for reports, so as to be able to recall requests.
(3) THey’re tracking the query reports to see if they can withdraw everything.
(3) THis is another of the places they make it clear they can disseminate law enforcement information without the USSID requirements.
(4) It appears the initial application was longer than the July 2010, given the reference to pages 78-79.
There are some very interesting comparisons with the early 2009 application, document AA.
(1) Holder applied directly this time rather than a designee (Holder may not have been confirmed yet for the early 2009 one).
(2) The redacted definition of foreign power in AA was longer.
(3) “collect” w/footnote 3 was redacted in AA.
(3) Takes out reference to “email” metadata.
(3) FN 4 both focuses on “Internet communication” rather than “email [redacted]” as AA did, but it also scopes out content in a nifty way.
I said yesterday that the plan, going as far back as 2002, was to let CIA and FBI tap right into NSA’s data. I base that on this explanation from Keith Alexander, which he included in his declaration accompanying the End to End Report that was submitted sometime after October 30, 2009.
By the fall of 2002, the Intelligence Community had grown increasingly concerned about the potential for further attacks on the United States. For example, during 10 to 24 September 2002, the Government raised the homeland security threat condition to “orange,” indicating a high likelihood of attack. In this context, in October 2002 the Directors of NSA, CIA, and FBI established an Inter-Agency Review Group to examine information sharing [redacted] The group’s top recommendation was that NSA create a common target knowledge database to allow joint research and information exchanges [redacted].
Of course, we now know that the threat level was high in September 2002 because the government was chasing down a bunch of false leads from Abu Zubaydah’s torture.
Abu Zubaida’s revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms. The interrogations led directly to the arrest of Jose Padilla, the man Abu Zubaida identified as heading an effort to explode a radiological “dirty bomb” in an American city. Padilla was held in a naval brig for 3 1/2 years on the allegation but was never charged in any such plot. Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports.
“We spent millions of dollars chasing false alarms,” one former intelligence official said.
In other words, the justification for creating a database where CIA and FBI could directly access much of NSA’s data was a mirage, one created by CIA’s own torture.
All that’s separate from the question of whether CIA and FBI should have access directly to NSA’s data. Perhaps it makes us more responsive. Perhaps it perpetuates this process of chasing ghosts. That’s a debate we should have based on actual results, not the tortured false confessions of a decade past.
But it’s a testament to two things: the way in which torture created the illusion of danger, and the degree to which torture — and threat claims based on it — have secretly served as the basis the Executive uses to demand the FISA Court permit it to extend the dragnet.
Even the current CIA Director has admitted this to be true — though without explicitly laying out the import of it. Isn’t it time we start acknowledging this — and reassessing the civil liberties damage done because of it — rather than keeping it hidden under redactions?
The early focus on the dragnet violations was on the phone dragnet. At the end of March, however, DOJ started preparing to look more closely at the PRTT program in late April 2009, which may be why some of the following violations got disclosed to Reggie Walton in conjunction with a May reauthorization application. The CIA, FBI, and NCTC access to the PRTT seems to have been a bigger issue than the BR FISA data.
All that said, when the NSA completed its End-to-End report sometime in fall 2009, they didn’t report all that much beyond the violations noted in May (though they did note the NSA did not shut down some automatic process when it said it did), mostly by claiming they didn’t realize the original dragnet order meant what it said (in spite of the violation in the first dragnet order).
It was only after that that they noticed FISC NSA had been collecting content from the start of the program (see document O). Once they admitted that, NSA decided not to reapply for a Primary Order, and Reggie Walton issued a supplemental order (document E) ordering them not to collect any more, but also not to access the data they did have. Only after that did DOJ submit the End-to-End report, accompanied by DOJ and Keith Alexander reports that admitted the content violation.
I Con the Record just released some ridiculously overclassified Internet dragnet documents it claims shows oversight but which actually shows how they evaded oversight. I’ve added letters to ID each document (I’ll do a post rearranging them into a timeline tomorrow or soon thereafter).
For a timeline I did earlier of the Internet dragnet program see this post.
This will be the first of several working threads, starting with descriptions of what we’ve got.
8/12: Note I will be updating this as I can clarify dates and content.
B. FISC Primary Order: This is an Internet dragnet order signed by Reggie Walton, probably in 2008 or very early 2009. It shows that the Internet dragnet program, which was almost certainly illegal in any case, had less oversight than the phone dragnet program (though at this point also collected fewer records). It was turned over pursuant to FAA requirements on March 13, 2009.
C. FISC Primary Order: This is an Internet dragnet order probably from May 29, 2009 (as identified in document D), signed by Reggie Walton. It shows the beginning of his efforts to work through the Internet violations. It appears to have been provided to Congress on August 31, 2009.
D. FISC Order and Supplemental Order: This is a version of the joint June 22, 2009 order released on several occasions before. It shows Reggie Walton’s efforts to work through the Internet dragnet violations. Here’s one version.
E. FISC Supplemental Order: This appears to be the dragnet order shutting down dragnet production. It would date to fall 2009 (production was likely shut down in October 2009, though this might reflect the initial shut-down).
F. FISC Primary Order: I’m fairly sure this is an order from after Bates turned the Internet dragnet back on in 2010 (and is signed by him), though I will need to verify that. It does require reports on how the NSA will segregate previously violative records, which is consistent with it dating to 2011 sometime (as is the requirement that the data be XML tagged).
G. FISC Memorandum Opinion Granting in Part and Denying in Part Application to Reinitiate, in Expanded Form, Pen Register/Trap and Trace Authorization: This is the order, from sometime between July and October 2010, where John Bates turned back on and expanded the Internet dragnet. Here’s the earlier released version (though I think it is identical).
H. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This was a report Walton required in document C, above, and so would be in the May-June 2009 timeframe. Update: Likely date June 18, 2009.
I. Government’s Response to the FISC’s Supplemental Order: This is the government’s response to an order from Walton, probably in his May 29, 2009 opinion (see this order for background), or even earlier in May.Update: This response dates to June 18, 2009 or slightly before.
J. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This appears to be the declaration submitted in support of Response I and cited in several places. Update: likely date June 18, 2009.
K. Supplemental Declaration of Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This appears to be the declaration that led to document C above.
L. Government’s Response to the FISC’s Supplemental Order Requesting a Corrective Declaration: This is a declaration admitting dissemination outside the rules responding to 5/29 order.
M. Government’s Response to a FISC Order: This is the government’s notice that it was using automatic queries on Internet metadata, just as it also was with the phone dragnet. This notice was provided to Congress in March 2009.
N. Declaration of Lieutenant General Keith B. Alexander, U.S. Army, Director, NSA, Concerning NSA’s Compliance with a FISC Order: After Walton demanded declarations in response to the initial phone dragnet violation, he ordered NSA to tell him whether the Internet dragnet also had the same problems. This is Keith Alexander’s declaration describing the auto scan for that program too. It was provided to Congress in March 2009.
O. Preliminary Notice of Potential Compliance Incident: This is the first notice of the categorical violations that ultimately led to the temporary shutdown of the dragnet, in advance of order E.
P. Notice of Filing: This is notice of a filing in response to inquiry from Judge Walton. It could be from any time during David Kris’ 2009 to early 2011 tenure.
Q: Government’s Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes:
This appears to be the application following Order E, above. I don’t think it’s the 2010 application that led to the reauthorization of the dragnet, because it refers to facilities whereas the 2010 order authorized even broader collection. (Remember Bates’ 2010 order said the government applied, but then withdrew, an application.) Update and correction: this application must post-date December 2009, because that’s when NSA changed retention dates from 4.5 years to 5. Also note reference to change in program and request to access illegally collected data from before 10/09.
R. Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes: This appears to be the memorandum of law accompanying application Q.
S. Declaration of General Keith B. Alexander, U.S. Army, Director, NSA, in Support of Pen Register/Trap and Trace Application: This is Alexander’s declaration accompanying Q.
T. Exhibit D in Support of Pen Register/Trap and Trace Application: This is a cover letter. I’m not sure whether it references prior communications or new ones.
U. First Letter in Response to FISC Questions Concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices: This is the first of several letters in support of reinitiation of the program. The tone has changed dramatically here. For that reason, and because so much of it is redacted, I think this was part of the lead-up to the 2010 reauthorization.
V. Second Letter in Response to FISC Questions concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices: This second letter is entirely redacted except for the sucking up to Bates stuff.
W. Third Letter in Response to FISC Questions Concerning NSA Bulk Metadata Collection Using Pen Register/Trap and Trace Devices: More sucking up. Some language about trying to keep access to the existing illegally collected data.
X. Application for Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes: This is the first application for the Internet dragnet, from 2004. Very interesting. Note it wasn’t turned over until July 2009, after Congress was already learning of the new problems with it.
Y. Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes: The memorandum of law accompanying X. Also turned over to Congress in 2009.
Z. Declaration of General Michael V. Hayden, U.S Air Force, Director, NSA, in Support of Pen Register/Trap and Trace Application: This goes with the initial application. NSA has left stuff unredacted that suggests they were access less bandwith than they, in the end, were. Also remember NSA violated this from the very beginning.
AA. Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes:
This appears to be the application for the second PRTT order. I’ll return to this tomorrow, but I don’t think it reflects the violation notice it should.
BB. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate:
This is NSA’s declaration in conjunction with the first reapplication for the dragnet. This should have declared violations. It was turned over to Congress in March 2009. [update: these appear to be early 2009 application]
CC. Declaration Lieutenant General Keith B. Alexander, U.S. Army, Director, NSA, Concerning NSA’s Implementation of Authority to Collect Certain Metadata: This is Alexander’s declaration accompanying the End-to-End report, from sometime in fall 2009.
DD: NSA’s Pen Register Trap and Trace FISA Review Report: The end-to-end report itself. it was provided to Congress in January 2010.
EE: DOJ Report to the FISC NSA’s Program to Collect Metadata: DOJ’s accompaniment to the end-to-end report.
FF: Government’s First Letter to Judge Bates to Confirm Understanding of Issues Relating to the FISC’s Authorization to Collect Metadata: After Bates raauthorized the Internet dragnet, DOJ realized they might not be on the same page as him. Not sure if this was in the 2009 attempt or the 2010 reauthorization.
HH: Tab 1 Declaration of NSA Chief, Special Oversight and Processing, Oversight and Compliance, Signals Intelligence: This appears to be the 90-day report referenced in document C. Update: Actually it is referenced in Document A: note the paragraphs describing the chaining that were discontinued before the dragnet approval.
II: Verified Memorandum of Law in Response to FISC Supplemental Order: This is one of the most fascinating documents of all. It’s a 2009-2011 (I think August 17, 2009, though the date stamp is unclear) document pertaining to 3 PRTT targets, relying on criminal PRTT law and a 2006 memo that might be NSA’s RAS memo (though the order itself is FBI, which makes me wonder whether it seeds the FBI program). It may have been what they used to claim that Internet content counted as metadata.
JJ: Memorandum of Law in Response to FISC Order: A September 25, 2006 response to questions from the FISC, apparently regarding whether rules from criminal pen registers apply to PATRIOT PRTT. While I think this addresses the application to Internet, I also think this language may be being used for location.
KK: Government’s Motion to Unseal FISC Documents in Order to Brief Congressional Intelligence and Judiciary Committees: This is a request to unseal an order — I suspect document E — so it could be briefed to Congress.
LL: Order Granting the Government’s Motion to Unseal FISC Documents in Order to Brief Congressional Intelligence and Judiciary Committees: Walton’s order to unseal KK for briefing purposes.
MM: April 27, 2005 Testimony of the Attorney General and Director, FBI Before the Senate Select Committee on Intelligence: This is the 2005 testimony in which – I pointed out before — Alberto Gonzales did not brief Congress about the Internet dragnet.
NN: NSA IG Memo Announcing its Audit of NSA’s Controls to Comply with the FISA Court’s Order Regarding Pen Register/Trap and Trace Devices: This lays out an audit with PRTT compliance, noting that the audit also pertains to BR FISA (phone dragnet). It admits the audit was shut down when the order was not renewed. It’s unclear whether this was the 2009 or the 2011 shutdown, but the implication is it got shut down because it would not pass audit.
OO: NSA IG Memo Suspending its Audit of NSA after the NSA’s PRTT Metadata Program Expired: the formal announcement they were shutting down the IG report. Again, it’s not clear whether this was the 2009 or the 2011 shutdown.
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