The discussion about the various “NSA” programs we’ve seen so far have discussed only how NSA works with FBI. FBI requests the dragnet phone information and hands it over to NSA. NSA negotiates direct access to internet companies that allow FBI to make direct queries.
We’ve heard from Keith Alexander about what NSA does — its only use of Section 215, he said, was the phone records.
We heard from Robert Mueller who gave less clear answers about what FBI does and does not do.
But we have yet to have direct testimony from James “least untruthful too cute by half” James Clapper. Mind you, we’ve gotten several fact sheets and Clapper’s hilarious interview with Andrea Mitchell. Just no specific public testimony.
And curiously, in the DNI’s own fact sheets, he doesn’t specify who does what, aside from describing the statutory role his position and the Attorney General play in authorizing FAA 702 orders. He doesn’t say what FBI does, what NSA does … or what his own organization does.
That’s important, because in addition to overseeing all intelligence, Clapper’s office also includes the National Counterterrorism Center. And the NCTC is the entity in charge sharing data. Indeed, it is statutorily required to have access to everything.
[The National Security Act] provides that “[u]nless otherwise directed by the President, the Director of National Intelligence shall have access to all national intelligence and intelligence related to the national security which is collected by any federal department, agency, or other entity, except as otherwise provided by law, or as appropriate, under guidelines agreed upon by the Attorney General and the Director of National Intelligence.
That means, presumably, that NCTC is doing a lot of the work that NSA and FBI are making narrow denials about.
But it also means that NCTC can play with these databases — the dragnet and the access via PRISM to 702 data — as well as any other data in the Federal government, including databases that John Brennan gave it the ability to go get.
So here’s the thing. When Keith Alexander gives you pat reassurances about how limited NSA’s access to Americans’ call data is, that may disclose a whole lot more intrusive data mining over at James Clapper’s shop.
Remember, here is what James Clapper was initially asked.
Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
Clapper: No, sir.
Wyden: It does not?
Clapper: Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly.” [my emphasis]
His first attempt to walk back that lie went like this:
What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. [my emphasis]
His second attempt to walk it back went like this:
ANDREA MITCHELL: Senator Wyden made quite a lot out of your exchange with him last March during the hearings. Can you explain what you meant when you said that there was not data collection on millions of Americans?
JAMES CLAPPER: First– as I said, I have great respect for Senator Wyden. I thought, though in retrospect, I was asked– “When are you going to start– stop beating your wife” kind of question, which is meaning not– answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no.
And again, to go back to my metaphor. What I was thinking of is looking at the Dewey Decimal numbers– of those books in that metaphorical library– to me, collection of U.S. persons’ data would mean taking the book off the shelf and opening it up and reading it.
ANDREA MITCHELL: Taking the contents?
JAMES CLAPPER: Exactly. That’s what I meant. Now–
ANDREA MITCHELL: You did not mean archiving the telephone numbers?
All of those efforts were, by context at least, limited exclusively to NSA. They don’t address, at all, what NCTC might do with this data (or, for that matter, FBI).
So what does the NCTC do with the data that NSA and FBI have issued careful denials about?
Update: I’m going to replicate a big chunk of this post on the oversight over NCTC’s use of other agencies data, complete with the bit about how the guy in charge of it thought Cheney’s illegal program was the shit.
Back when John Negroponte appointed him to be the Director of National Intelligence’s Civil Liberties Protection Officer, Alexander Joel admitted he had no problem with Cheney’s illegal domestic wiretap program.
As I noted here and here, yesterday the Director of National Intelligence and DOJ rolled out new Guidelines allowing the National Counterterrrorism Center to acquire non-terrorist datasets from federal agencies–including US person data–so they can do pattern analysis on those datasets and pass off the resulting data to other agencies.
When intelligence officials wanted to explain to Charlie Savage how this would work, they pointed to a State Department dataset–visa applications–as one dataset NCTC might now access directly.
A person from Yemen applies for a visa and lists an American as a point of contact. There is no sign that either person is a terrorist. Two years later, another person from Yemen applies for a visa and lists the same American, and this second person is a suspected terrorist.
Under the existing system, they said, to discover that the first visa applicant now had a known tie to a suspected terrorist, an analyst would have to ask the State Department to check its database to see if the American’s name had come up on anyone else’s visa application — a step that could be overlooked or cause a delay. Under the new rules, a computer could instantly alert analysts of the connection.
The State Department is, of course, still reportedly recovering from the fact that because of DOD’s lax network security, 250,000 diplomatic cables got liberated for the world to see.
Not surprisingly, then, the new Guidelines appear determined to reassure original dataset owners that their data won’t be compromised by sharing it with NCTC (which can then share it with other elements of the Intelligence Community and even foreign allies). You can tell they’re serious about this, because it’s one of the places they occasionally use “shall” (in other sensitive areas, they use the squishier “will”).
For access to or acquisition of specific datasets, the DNI, or the DNI’s designee, shall collaborate with the data provider to identify any legal constraints, operational considerations, privacy or civil rights or civil liberties concerns and protections, or other issues, and to develop appropriate Terms and Conditions that will govern NCTC’s access to or acquisition of datasets under these guidelines.
In addition to the [general requirements laid out for sharing this data], at the time when NCTC acquires a new dataset or a new portion of a dataset, the Director of NCTC shall determine, in writing, whether enhanced safeguards, procedures, and oversight mechanisms are needed.
Though this bold approach almost immediately breaks down, as the Guidelines not only revert to “will,” but–worse–dig out the passive voice when describing the data transfer.
Measures will be put into place to ensure that the dataset is received and stored in a manner to prevent unauthorized access and use prior to the completion of replication.
And when the Guidelines get into specifics, they use that passive “will” again.
Access to these datasets will be monitored, recorded, and audited. This includes tracking of logons and logoffs, file and object manipulation, and changes, and queries executed, in according with audit and monitoring standards applicable to the Intelligence Community.
Who will (“shall”) implement these data security measures? What if he or she fails to do so adequately?
It’s a really, really important question because–as this year’s intelligence authorizations make clear, the Intelligence Community does not yet have insider threat detection–the kind of security that would permit these audits–and they’re not going to get it until 18 months from now. Hell, they’re not even going to start getting it until 6 months from now!
(a) Initial Operating Capability.–Not later than October 1, 2012, the Director of National Intelligence shall establish an initial operating capability for an effective automated insider threat detection program for the information resources in each element of the intelligence community in order to detect unauthorized access to, or use or transmission of, classified intelligence.
I’m going to have a series of posts on the new National Counterterrorism Center data sharing guidelines. As a reminder, the whole point of these guidelines is to allow the NCTC to obtain information on US persons, dump it into their datamining, and then ultimately pass it on. In this, I’ll show how, by magic of cynical bureaucracy, the government is about to turn non-terrorist data into terrorist data.
Here’s how that trick is accomplished rhetorically. In the Background section (and in one or two other places), the document includes this language to legally justify throwing US person data into big databases to be data mined. It starts by laying out NCTC’s data mandate:
[NCTC] shall “serve as the primary organization in the United States for analyzing and integrating all intelligence possessed or acquired by the United States Government pertaining to terrorism and counterterrorism, excepting intelligence pertaining exclusively to domestic terrorists and domestic counterterrorism.
It blathers on about how NCTC also has the responsibility to request information and pass it on. This is the legal language they’re going to translate to mean the opposite of what it says.
Jumping ahead a bit, the guidelines acknowledges that NCTC is only supposed to have access, if needed, to domestic terrorism information.
In the National Security Act of 1947, as amended, Congress recognized that NCTC must have access to a broader range of information than it has primary authority to analyze and integrate if it is to achieve its missions. The Act thus provides that NCTC “may, … receive intelligence pertaining exclusively to domestic terrorism from any Federal, State, or local government or other source necessary to fulfill its responsibility and retain and disseminate intelligence.” [my emphasis]
See that? It can have all the foreign terrorism information, and then if it needs to, it can have the domestic terrorism information.
Now, going back a few lines, it takes this authority–”pertaining exclusively to domestic terrorism”–and uses it to get … everything.
NCTC’s analytic and integration efforts … at times require it to access and review datasets that are identified as including non-terrorism information in order to identify and obtain “terrorism information,” as defined in section 1016 of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, as amended. “Non-terrorism information” for purposes of these Guidelines includes information pertaining exclusively to domestic terrorism, as well as information maintained by other executive departments and agencies that has not been identified as “terrorism information” as defined by IRTPA. [my emphasis]
Note that bolded section is not a citation from existing law. It is, instead, NCTC turning NCTC’s authority to sometimes get domestic terrorism information into authority to get any dataset maintained by any executive agency that NCTC believes might include some information that might be terrorism information.
Those of us in the US Government’s tax, social security, HHS, immigration, military, and other federal databases? We’ve all, by bureaucratic magic, been turned into domestic terrorists.
Now, NCTC seems to understand what a grasp this is, so it deploys one more rhetorical effort, this time noting that the Director of National Intelligence–to whom NCTC reports–also gets access to all national security intelligence.
[The National Security Act] provides that “[u]nless otherwise directed by the President, the Director of National Intelligence shall have access to all national intelligence and intelligence related to hte national security which is collected by any federal department, agency, or other entity…”
So in addition to all of us in government databases–that is, all of us–being deemed domestic terrorists, the data the government keeps to track our travel, our taxes, our benefits, our identity? It just got transformed from bureaucratic data into national security intelligence.
We are all, now, first and foremost potential terrorists now. Only after NCTC destroys our data in five years (if they don’t find some excuse to keep it before then) will we become citizens again.