Respondents might find the entire question bizarre, as requiring a private company to damage its product for information on a crime the FBI had already solved would be a tremendous waste. Based on the argument I laid out here — that the information the FBI might get from Syed Rezwan Farook’s work phone wouldn’t add all that much to what they presumably already got off two phones he tried unsuccessfully to destroy, as well as the phones or iCloud accounts of his colleagues — that’s the question I think Pew should have asked in its poll.
Here’s what Pew asked :
As you may know, RANDOMIZE: [the FBI has said that accessing the iPhone is an important part of their ongoing investigation into the San Bernardino attacks] while [Apple has said that unlocking the iPhone could compromise the security of other users’ information] do you think Apple [READ; RANDOMIZE]?
To be fair to Pew, FBI has said this phone will be “important,” and to Pew’s great credit, they described Apple’s stance to be about security, not privacy.
But the fact of the matter is FBI is demanding access to this phone knowing full well who the perpetrators are — Farook and his wife — and knowing (per Admiral Mike Rogers and a slew of FBI statements before his) that the couple didn’t have overseas help. San Bernardino was, the FBI has known for months, a particularly brutal workplace killing inspired by radical Islam.
I sort of suspect Americans might think differently about this particular back door request (though maybe not another case where the phone really would be central to solving the case) if it were explained in those terms.
“Intelligence professionals have a saying: There are no friendly intelligence services,” the WSJ describes former House Intelligence Chair Mike Rogers saying, on the record. While there’s no way of telling — particularly not with WSJ’s described “more than two dozen current and former U.S. intelligence and administration officials” sources behind it’s blockbuster story on US spying on Bibi Netanyahu and other Israelis, Rogers is a likely candidate for some of the other statements attributed to “former US officials,” a moniker that can include agency officials, consultants, and members of Congress.
Which is awfully funny, given that two of the people squealing most loudly in response to the story are Rogers’ immediate predecessor, Crazy Pete Hoekstra, who called it a “Maybe unprecedented abuse of power,” and successor, Devin Nunes, who has already started an investigation into the allegations in the story.
It is the height of hypocrisy for these men, who have been privy to and by their silence have assented to this and, in Crazy Pete’s case, far worse patently illegal spying, to wail about a story that shows the Administration abiding by NSA minimization procedures they’ve both celebrated as more than adequate to protect US person privacy. If NSA’s minimization procedures are inadequate to protect US persons, the first thing Nunes should do is repeal FISA Amendments Act, which can expose far more people than the tailored, presumably EO 12333 tap placed on Bibi, not to mention OmniCISA, which can be targeted at Americans and will have even fewer protections for US persons.
The immediate attempt by a bunch of surveillance maximalists to turn compliant spying into a big scandal raises the question of why this story is coming out now, not incidentally just after Iran turned over its uranium stockpile over to Russia and in the process achieved another big step of the Iran deal.
I’m not in any way meaning to slight the WSJ reporting. Indeed, the story seems to show a breadth of sources that reflect a broad range of interests, and as such is not — as would otherwise be possible — Mike Rogers attempting to leak something to the WSJ so his fellow Republicans can make a stink about things.
This story includes “current and former U.S. officials” providing a list of leaders they claim were detasked from spying in 2014 — François Hollande, Angela Merkel, and other NATO leaders — and those they claim were not — along with Bibi Netanyahu, Turkey’s leader Recep Tayyip Erdogan. Of course, like James Clapper’s claim that Edward Snowden’s leaks forced the NSA to shut down its full take spying on Afghanistan, this “confirmation” may instead have been an effort to cover for collection that has since been restarted, especially given the story’s even more revealing explanation that, “Instead of removing the [surveillance] implants, Mr. Obama decided to shut off the NSA’s monitoring of phone numbers and email addresses of certain allied leaders—a move that could be reversed by the president or his successor.” Obama did not eliminate the infrastructure that allows him to request surveillance (in actually, monitoring of surveillance going on in any case) to be turned on like a switch, and this WSJ article just conveyed that detail to Hollande and Merkel.
So the story could serve as disinformation to cover up restarted surveillance, and it could serve as a cue for the bogus, unbelievably hypocritical political scandal that Crazy Pete and Nunes appear to want to make it.
But I’m just as interested in the dick-waving in the story.
Some of the most interesting details in the story — once you get beyond the wailing of people like Crazy Pete and Devin Nunes probably swept up in intercepts described in the story — pertain to what NSA did and did not learn about Bibi’s efforts, largely executed through Israeli Ambassador to the US Ron Dermer, to thwart the Iran deal. A key detail here is that while (it is implied) NSA destroyed most or all of the intercepts involving members of Congress directly with Bibi, they passed on (with US person identities masked) the reports back through foreign ministry channels of discussions with or on behalf of Bibi.
The NSA has leeway to collect and disseminate intercepted communications involving U.S. lawmakers if, for example, foreign ambassadors send messages to their foreign ministries that recount their private meetings or phone calls with members of Congress, current and former officials said.
“Either way, we got the same information,” a former official said, citing detailed reports prepared by the Israelis after exchanges with lawmakers.
In other words, NSA might not pass on the intercepts of calls members of Congress had with Bibi directly, but they would pass on the reports that Dermer or Bibi’s aides would summarize of such discussions. And according to “a former official” (curiously not described as high ranking) by passing on the reports of such conversations, “we got the same information.”
Usually, but not always, according to the story.
It describes that “Obama administration officials” (which may but probably doesn’t include intelligence officials) didn’t learn about John Boehner’s invitation to Bibi to address Congress ahead of time, even though Boehner extended that invite through Dermer.
On Jan. 8, John Boehner, then the Republican House Speaker, and incoming Republican Senate Majority Leader Mitch McConnell agreed on a plan. They would invite Mr. Netanyahu to deliver a speech to a joint session of Congress. A day later, Mr. Boehner called Ron Dermer, the Israeli ambassador, to get Mr. Netanyahu’s agreement.
Despite NSA surveillance, Obama administration officials said they were caught off guard when Mr. Boehner announced the invitation on Jan. 21.
According to the description of the article, this call should have been fair game to be shared with the White House as a report through the foreign ministry, but either wasn’t reported through normal channels on the Israeli side or NSA didn’t pass it along.
But, according to the story, the White House did get many of the details about Dermer’s attempt to scotch the Iran deal.
The NSA reports allowed administration officials to peer inside Israeli efforts to turn Congress against the deal. Mr. Dermer was described as coaching unnamed U.S. organizations—which officials could tell from the context were Jewish-American groups—on lines of argument to use with lawmakers, and Israeli officials were reported pressing lawmakers to oppose the deal.
A U.S. intelligence official familiar with the intercepts said Israel’s pitch to undecided lawmakers often included such questions as: “How can we get your vote? What’s it going to take?”
Let me interject and note that, if the people squealing about these intercepts weren’t such raging hypocrites, I might be very concerned about this.
Consider the Jane Harman case. In 2009 it got reported that NSA and FBI collected conversations Jane Harman had (probably on an individual FISA wiretap) with AIPAC suspects in which Harman allegedly agreed to help squelch the criminal investigation into the organization in exchange for help getting the Chairmanship of the House Intelligence Committee. The position, not incidentally, that all the people (save Mike Rogers, who seems to have had no problem with them) squealing about these intercepts have held or currently hold. At least according to 2009 reports on this, lawyers in then Attorney General Alberto Gonzales’ DOJ considered criminal charges against Harman, but chose not to pursue them, because Gonzales — who had criminally, personally authorized the Stellar Wind program in March 2004 — needed Harman’s support in advance of NYT breaking the Stellar Wind story at the end of 2005. That suggests (if these stories are to be believed) Gonzales used Harman’s purported criminal exposure to get protection against his own.
Now, Crazy Pete was out of power well before these particular intercepts were described (though may have his own reason to be concerned about what such intercepts revealed), but in the same period, Devin Nunes got himself appointed HPSCI Chair, just like AIPAC was allegedly brokering with Harman. He got himself appointed HPSCI Chair by the guy, Boehner, who invited Bibi to address Congress.
And what were AIPAC and other groups — who allegedly were offering congressional leadership posts back in 2005 — offering lawmakers last year to oppose the Iran deal? “What’s it going to take?” the intercepts apparently recorded.
What were they offering?
This is the reason permitting lawmakers’ communications to be incidentally collected is such a risk — because it collects the sausage-making behind legislative stances — but also defensible — because it might disclose untoward quid pro quo by foreign governments of members of Congress. It is a real concern that the Executive is collecting details of Congress’ doings. More protections, both for Members of Congress and for regular schlubs, are needed. But wiretapping the incidentally collected communications with foreign leaders is not only solidly within the parameters of Congressionally-approved NSA spying, but may sometimes be important to protect the US.
That’s the kind of the thing the White House may have seen outlines of in the reports it got on Darmer’s attempts — though the report indicates that Democratic lawmakers and Israelis who supported the Iranian deal (probably including former Mossad head Efraim Halevy, who was criticizing Bibi and Darmer’s efforts in real time) were sharing details of Darmer’s efforts directly with the White House.
In the final months of the campaign, NSA intercepts yielded few surprises. Officials said the information reaffirmed what they heard directly from lawmakers and Israeli officials opposed to Mr. Netanyahu’s campaign—that the prime minister was focused on building opposition among Democratic lawmakers.
Which brings me to the dick-waving part. Here’s the last line of the WSJ story.
The NSA intercepts, however, revealed one surprise. Mr. Netanyahu and some of his allies voiced confidence they could win enough votes.
Some of this story is likely to be disinformation for our allies, much of this story seems to be warning (both friendly and unfriendly) to those likely implicated by the intercepts. But this just seems like dick-waving, the spook-and-politician equivalent of spiking the football and doing a lewd dance in the end zone. The Israelis surely knew all the monitoring was going on (even if members of Congress may have been stupid about them), especially given the way John Kerry, as laid out in the story, raised concerns about Israeli spying during negotiations. But this line, the final reveal in the story, mocks the Israelis and their American interlocutors for assuming they had enough to offer — “What’s it going to take to get your vote?”– to kill the Iran deal.
This may, in part, be an effort to get those implicated in the intercepts to exercise some more caution. But it also seems to be a victory dance, just as Russia ships away Iran’s uranium stockpiles.
A penny dropped for me, earlier this week, when Marco Rubio revealed that authorities are asking “a large number of companies” for “phone records.” Then, yesterday, he made it clear that these companies don’t fall under FCC’s definition of “phone” companies, because they’re not subject to that regulator’s 18 month retention requirement.
His comments clear up a few things that have been uncertain since February 2014, when some credulous reporters started reporting that the Section 215 phone dragnet — though they didn’t know enough to call it that — got only 20 to 30% of “all US calls.”
The claim came not long after Judge Richard Leon had declared the 215 phone dragnet to be unconstitutional. It also came just as the President’s Review Group (scoped to include all of the government’s surveillance) and PCLOB (scoped to include only the 215 phone dragnet) were recommending the government come up with a better approach to the phone dragnet.
The report clearly did several things. First, it provided a way for the government to try to undermine the standing claim of other plaintiffs challenging the phone dragnet, by leaving the possibility their records were among the claimed 70% that was not collected. It gave a public excuse the Intelligence Community could use to explain why PRG and PCLOB showed the dragnet to be mostly useless. And it laid the ground work to use “reform” to fix the problems that had, at least since 2009, made the phone dragnet largely useless.
It did not, however, admit the truth about what the 215 phone dragnet really was: just a small part of the far vaster dragnet. The dragnet as a whole aspires to capture a complete record of communications and other metadata indicating relationships (with a focus on locales of concern) that would, in turn, offer the ability to visualize the networks of the world, and not just for terrorism. At first, when the Bush Administration moved the Internet (in 2004) and phone (in 2006) dragnets under FISC authority, NSA ignored FISC’s more stringent rules and instead treated all the data with much more lax EO 12333 rules(see this post for some historical background). When FISC forced the NSA to start following the rules in 2009, however, it meant NSA could no longer do as much with the data collected in the US. So from that point forward, it became even more of a gap-filler than it had been, offering a thinner network map of the US, one the NSA could not subject to as many kinds of analysis. As part of the reforms imposed in 2009, NSA had to start tracking where it got any piece of data and what authority’s rules it had to follow; in response, NSA trained analysts to try to use EO 12333 collected data for their queries, so as to apply the more permissive rules.
That, by itself, makes it clear that EO 12333 and Section 215 (and PRTT) data was significantly redundant. For every international phone call (or at least those to countries of terrorism interest, as the PATRIOT authorities were supposed to be restricted to terrorism and Iran), there might be two or more copies of any given phone call, one collected from a provider domestically, and one collected via a range of means overseas (in fact, the phone dragnet orders make it clear the same providers were also providing international collection not subject to 215). If you don’t believe me on this point, Mike Lee spelled it out last week. Not only might NSA get additional data with the international call — such as location data — but it could subject that data to more interesting analysis, such as co-location. Thus, once the distinction between EO 12333 and PATRIOT data became formalized in 2009 (years after it should have been) the PATRIOT data served primarily to get a thinner network map of the data they could only collect domestically.
Because the government didn’t want to admit they had a dragnet, they never tried to legislate fixes for it such that it would be more comprehensive in terms of reach or more permissive in terms of analysis.
So that’s a big part of why four beat journalists got that leak in February 2014, at virtually the same time President Obama decided to replace the 215 phone dragnet with something else.
The problem was, the government never admitted the extent of what they wanted to do with the dragnet. It wasn’t just telephony-carried voice calls they wanted to map, it was all communications a person might make from their phone, which increasingly means a smart phone. It wasn’t just call-chaining they wanted to do, it was connection chaining, linking identities, potentially using far more intrusive technological analysis.
Some of that was clear with the initial IC effort at “reform.” Significantly, it didn’t ask for Call Detail Records, understood to include either phone or Internet or both, but instead “records created as a result of communications of an individual or facility.” That language would have permitted the government to get backbone providers to collect all addressing records, regardless if it counted as content. The bill also permitted the use of such tools for all purposes, not just counterterrorism. In effect, this bill would have completed the dragnet, permitting the IC to conduct EO 12333 collection and analysis on records collected in the US, for any “intelligence” purpose.
But there was enough support for real reform, demonstrated most vividly in the votes on Amash-Conyers in July 2013, that whatever got passed had to look like real reform, so that effort was killed.
So we got the USA F-ReDux model, swapping more targeted collection (of communications, but not other kinds of records, which can still be collected in bulk) for the ability to require providers to hand over the data in usable form. This meant the government could get what it wanted, but it might have to work really hard to do so, as the communications provider market is so fragmented.
The GOP recognized, at least in the weeks before the passage of the bill, that this would be the case. I believe that Richard Burr’s claimed “mistake” in claiming there was an Internet dragnet was instead an effort to create legislative intent supporting an Internet dragnet. After that failed, Burr introduced a last minute bill using John Bates’ Dialing, Routing, Addressing, and Signaling language, meaning it would enable the government to bulk collect packet communications off switches again, along with EO 12333 minimization rules. That failed (in part because of Mitch McConnell’s parliamentary screw ups).
But now the IC is left with a law that does what it said it wanted (plus some, as it definitely gets non-telephony “phone” “calls”), rather than one that does what it wanted, which was to re-establish the full dragnet it had in the US at various times in the past.
I would expect they won’t stop trying for the latter, though.
Indeed, I suspect that’s the real reason Marco Rubio has been permitted to keep complaining about the dragnet’s shortcomings.
There were a number of interesting exchanges in the Senate Armed Services Committee on cybersecurity hearing today, which I’ll return to in a bit. But for the moment I wanted to point to this bizarre exchange featuring Bill Nelson.
Nelson: Admiral, I’m concerned about all of these private telecoms that are going to encrypt. If you have encryption of everything, how, in your opinion, does that affect Section 702 and 215 collection programs?
Rogers: It certainly makes it more difficult.
Nelson: Does the Administration have a policy position on this?
Rogers: No. I think we’re still — I mean, we’re the first to acknowledge this is an incredibly complicated issue, with a lot of very valid perspectives. And we’re still, I think, collectively trying to work through what’s the right way ahead, here, recognizing that there’s a lot of very valid perspectives but from the perspective as CyberCommand and NSA as I look at this issue, there’s a huge challenge here that we have got to deal with.
Nelson: A huge challenge? And I have a policy position. And that is that the telecoms better cooperate with the United States government or else … it just magnifies the ability for the bad guys to utilize the Internet to achieve their purposes.
Bill Nelson is apparently very upset by the increasing use of encryption, but seems to believe Apple — which is at the center of these discussions — is a telecom. I’m happy to consider Apple a “phone company,” given that iMessage messages would go through the Internet and Apple rather than cell providers, and I think the IC increasingly thinks of Apple as a phone company. But it’s not a telecom, which is a different legal category.
He also believes that Apple’s encryption would hurt NSA’s Section 215 collection program. And NSA Director Mike Rogers appears to agree!
It shouldn’t. While Apple’s use of encryption will make it harder to get iMessage content, the metadata should still be available. So I’m rather curious why it is that Rogers agreed with Nelson?
In any case, Nelson doesn’t seem very interested in why Rogers immediately noted how complicated this question is — this is, after all, a hearing on cybersecurity and we know the Administration admits that more widespread encryption actually helps cybersecurity (especially since sophisticated hackers will be able to use other available encryption methods).
But I am intrigued that Rogers didn’t correct Nelson’s assertion that encryption would hurt the Section 215 program.
Update: This, from Apple’s transparency report, is one more reason Rogers’ agreement that encryption creates problems for the Section 215 program is so curious.
To date, Apple has not received any orders for bulk data.
34 years ago Ronald Reagan issued the Executive Order that still governs most of our country’s intelligence activities, EO 12333.
As part of it, the EO required any agency using information concerning US persons to have a set of procedures laying out how it obtains, handles, and disseminates information (see the language of 2.3 below).
Only — as the Privacy and Civil Liberties Oversight Board started pointing out in August 2013 — some agencies have never complied. In February, PCLOB revealed the 4 agencies that are still flouting Reagan’s rules, along with what they have been using:
The Department of Homeland Security’s notoriously shoddy Office of Intelligence and Analysis: Pending issuance of final procedures, I&A is operating pursuant to Interim Intelligence Oversight Procedures, issued jointly by the Under Secretary for Intelligence and Analysis and the Associate General Counsel for Intelligence (April 3, 2008).
United States Coast Guard (USCG)- Intelligence and counterintelligence elements: Pending issuance of final procedures, operating pursuant to Commandant Instruction – COMDINST 3820.12, Coast Guard Intelligence Activities (August 28, 2003).
Department of Treasury Office of Intelligence and Analysis (OIA): Pending issuance of final procedures. While draft guidelines are being reviewed in the interagency approval process, the Office of Intelligence and Analysis conducts intelligence operations pursuant to EO 12333 and statutory responsibilities of the IC element, as advised by supporting legal counsel.
Drug Enforcement Administration, Office of National Security Intelligence (ONSI): Pending issuance of final procedures, operates pursuant to guidance of the Office of Chief Counsel, other guidance, and: Attorney General approved “Guidelines for Disclosure of Grand Jury and Electronic, Wire, and Oral Interception Information Identifying United States Persons” (September 23, 2002); Attorney General approved “Guidelines Regarding Disclosure to the Director of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in the Course of a Criminal Investigation” (September 23, 2002).
Last year’s House Intelligence Committee version of NSA reform (the one I called RuppRoge) would have included language requiring agencies to finish these procedures — mandated 34 years ago — within 6 months. And now, over a year later, Dianne Feinstein’s latest attempt at reform echoed that language.
Which strongly suggests these agencies are still deadbeats.
As I said in February, I’m most concerned about DEA (because DEA is out of control) and, especially, Treasury (because Treasury’s intelligence activities are a black box with little court review). Treasury is making judgements that can blacklist someone financially, but it has thus far refused to institute procedures to protect Americans’ privacy while it does so.
And no one seems to be rushing to require them to do so.
2.3 Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention and dissemination of the following types of information:
(a) Information that is publicly available or collected with the consent of the person concerned;
(b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the FBI or, when significant foreign intelligence is sought, by other authorized agencies of the Intelligence Community, provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons;
(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation;
(d) Information needed to protect the safety of any persons or organizations, including those who are targets, victims or hostages of international terrorist organizations;
(e) Information needed to protect foreign intelligence or counterintelligence sources or methods from unauthorized disclosure. Collection within the United States shall be undertaken by the FBI except that other agencies of the Intelligence Community may also collect such information concerning present or former employees, present or former intelligence agency contractors or their present or former employees, or applicants for any such employment or contracting;
(f) Information concerning persons who are reasonably believed to be potential sources or contacts for the purpose of determining their suitability or credibility;
(g) Information arising out of a lawful personnel, physical or communications security investigation;
(h) Information acquired by overhead reconnaissance not directed at specific United States persons;
(i) Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws; and
(j) Information necessary for administrative purposes.
In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.
On May 7, the very same day the Second Circuit ruled that Congress has to say specifically what a surveillance bill means for the bill to mean that thing, Richard Burr engaged in a staged colloquy on the Senate floor where he claimed that the Section 215 bulk collection program collects IP addresses. After Andrew Blake alerted me to that and I wrote it up, Burr stuffed the claim into the memory hole and claimed, dubiously, to have made a misstatement in a planned colloquy.
Then, after Mitch McConnell created a crisis by missing the first Section 215 reauthorization deadlines, Burr submitted a bill that would immediately permit the bulk collection of IP addresses, plus a whole lot more, falsely telling reporters this was a “compromise” bill that would ensure a smooth transition between the current (phone) dragnet and its replacement system.
Which strongly suggests Burr’s initial “misstatement” was simply an attempt to create a legislative record approving a vast expansion of the current dragnet that, when he got caught, led Burr to submit a bill that actually would implement that in fact.
This has convinced me we’re going to need to watch these authoritarians like hawks, to prevent them from creating the appearance of authorizing vast surveillance systems without general knowledge that’s what’s happening.
So I reviewed the speech Mitch made on Friday (this appears after 4:30 to 15:00; unlike Burr’s speech, the congressional record does reflect what Mitch actually said; h/t Steve Aftergood for Congressional Record transcript). And amid misleading claims about what the “compromise” bill Burr was working on, Mitch suggested something remarkable: among the data he’s demanding be retained are documents, not just call data.
I’ve placed the key part of Mitch’s comments below the rule, with my interspersed comments. As I show, one thing Mitch does is accuse providers of an unwillingness to provide data when in fact what he means is far more extensive cooperation. But I’m particularly interested in what he says about data retention:
The problem, of course, is that the providers have made it abundantly clear that they will not commit to retaining the data for any period of time as contemplated by the House-passed bill unless they are legally required to do so. There is no such requirement in the bill. For example, one provider said the following: “[We are] not prepared to commit to voluntarily retain documents for any particular period of time pursuant to the proposed USA FREEDOM Act if not otherwise required by law.”
Now, one credulous journalist told me the other day that telecoms were refusing to speak to the Administration at all, which he presumably parroted from sources like Mitch. That’s funny, because not only did the telecom key to making the program work — Verizon — provide testimony to Congress (which is worth reviewing, because Verizon Associate General Counsel — and former FBI lawyer — Michael Woods pointed to precisely what the dragnet would encompass under Burr’s bill, including VOIP, peer-to-peer, and IP collection), but Senator Feinstein has repeatedly made clear the telecoms have agreed with the President to keep data for two years.
Furthermore, McConnell’s quotation of this line from a (surely highly classified letter) cannot be relied on. Verizon at first refused to retain data before it made its data handshake with the President. So when did this provider send this letter, and does their stance remain the same? Mitch doesn’t say, and given how many other misleading comments he made in his speech, it’s unwise to trust him on this point.
Most curiously, though, look at what they’re refusing to keep. Not phone data! But documents.
Both USA F-ReDux and Burr’s bill only protect messaging contents, not other kinds of content (and Burr’s excludes anything that might be Dialing, Routing Addressing and Signaling data from his definition of content, which is the definition John Bates adopted in 2010 to be able to permit NSA to resume collecting Internet metadata in bulk). Both include remote computing services (cloud services) among the providers envisioned to be included not just under the bill, but under the “Call Detail Record” provision.
Perhaps there’s some other connotation for this use of the word “documents.” Remember, I think the major target of data retention mandates is Apple, because Jim Comey wants iMessage data that would only be available from their cloud.
But documents? What the hell kind of “Call Detail Records” is Mitch planning on here?
One more thing is remarkable about this. Mitch is suggesting it will take longer for providers to comply with this system than it took them to comply with Protect America Act. Yahoo, for example, challenged its orders and immediately refused to comply on November 8, 2007. Yet, even in spite of challenging that order and appealing, Yahoo started complying with it on May 5, 2008, that same 180-time frame envisioned here. And virtually all of the major providers already have some kind of compliance mechanism in place, either through PRISM (Apple, Google, and Microsoft) or upstream 702 compliance (AT&T and Verizon).
At the end of a must-read article on how the people — whom it names — in charge of the CIA’s drone program are the same people who were in charge of the torture program, the NYT also reveals that Richard Burr joined Mike Rogers pressuring CIA to kill American citizen Mohanad Mahmoud Al Farekh — who recently got captured and charged in the US with material support for terrorism — be drone killed.
The Republican lawmakers, Senator Richard M. Burr of North Carolina and Representative Mike Rogers of Michigan, said during the closed sessions that the administration was being timid, and urged that [Mohanad Mahmoud Al] Farekh be hunted and killed.
Burr is, as he likes to point out, a relative of Aaron Burr, who killed Treasury Secretary Alexander Hamilton in a duel, a detail about which Burr reminded Treasury Secretary Jack Lew last year. It appears the Burr family no longer operates with the faux honor of dueling, but instead sits inside secret closets and demands CIA conduct assassination by remotely piloted drone.
And that’s why NYT’s decision to name names is so notable.
The C.I.A. asked that Mr. D’Andrea’s name and the names of some other top agency officials be withheld from this article, but The New York Times is publishing them because they have leadership roles in one of the government’s most significant paramilitary programs and their roles are known to foreign governments and many others.
The article names D’Andrea — the long-time head of CIA’s Counterterrorism Center, whom Gawker named last month but whom the WaPo continued to refer to under the pseudonym Roger last month, it named his replacement, Chris Wood, who has served in ALEC station and oversaw operations in Afghanistan and Pakistan, and it named the Operations Chief, Greg Vogel, who was Kabul Station Chief before leading the CIA’s paramilitary Special Activities Division.
These are the men who invite people like Rogers and Burr and Dianne Feinstein (who is a champion of D’Andrea) and their staffers to watch a monthly snuff film of drone operations and with it convince them that CIA should remain in charge of assassinations.
As the NYT notes in explaining why it was refusing to cede to John Brennan’s demand that the paper hide these identities, others know who they are. It’s just the public, those who pay their salaries and in whose name those assassinations are conducted, that didn’t know.
That, of course, prevents anyone — the family of Warren Weinstein, for example — from holding them to legal account.
But it also prevents us from holding Feinstein accountable when she shields the same people who oversaw the torture program she claims to abhor.
Perhaps the NYT’s decision to break the spell of false secrecy will demonstrate that these men’s identities were’t really secrets. They were rather just a vacuum of accountability.
In an article describing the current state of play on the Section 215 sunset, WaPo quotes Devin Nunes claiming that the poor maligned phone dragnet is just misunderstood. So he plans on having more briefings (curiously, just for the Republican caucus).
“NSA programs, including the bulk telephone metadata program, are crucial anti-terror and foreign intelligence tools that should be reauthorized,” said Rep. Devin Nunes (R-Calif.), chairman of the House Intelligence Committee.
He told reporters on Tuesday that he felt the program has been misunderstood and that he would hold classified briefings for the GOP caucus.
But I do think it worth noting two things.
First, Nunes’ decision to tell Republicans more, coming relatively soon after he took over the House Intelligence Chair from Mike Rogers, suggests that Mike Rogers was never fully forthcoming — not even in the secret briefings he gave in lieu of passing on Executive Branch explanations of the phone dragnet — about what it did.
But Nunes’ response is not to require the government to itself explain publicly what it’s really doing with the phone dragnet. But instead to hold classified briefings that often serve as a means to buy silence from those who attend.
In any case, that story you’ve been told for almost two years about how the phone dragnet identifies who is two degrees away from Osama bin Laden? Unsurprisingly, it’s nowhere near the full story.
[A]ssessments of the phone dragnet […] don’t even take the IC at its word in its other, quieter admissions of how it uses the dragnet (notably, in none of Stone’s five posts on the dragnet does he mention any of these — one, two, three, four,five — raising questions whether he ever learned or considered them). These uses include:
Corporate store: As the minimization procedures and a few FISC documents make clear, once the NSA has run a query, the results of that query are placed in a “corporate store,” a database of all previous query results.
ACLU’s Patrick Toomey has described this in depth, but the key takeaways are once data gets into the corporate store, NSA can use “the full range of SIGINT analytic tradecraft” on it, and none of that activity is audited.
NSA would have you believe very few Americans’ data gets into that corporate store, but even if the NSA treats queries it says it does, it could well be in the millions. Worse, if NSA doesn’t do what they say they do in removing high volume numbers like telemarketers, pizza joints, and cell voice mail numbers, literally everyone could be in the corporate store. As far as I’ve seen, the metrics measuring the phone dragnet only involve tips going out to FBI and not the gross number of Americans’ data going into the corporate store and therefore subject to “the full range of analytic tradecraft,” so we (and probably even the FISC) don’t know how many Americans get sucked into it. Worse, we don’t know what’s included in “the full range of SIGINT analytic tradecraft” (see this post for some of what they do with Internet metadata), but we should assume it includes the data mining the government says it’s not doing on the database itself.
The government doesn’t datamine phone records in the main dragnet database, but they’re legally permitted to datamine anyone’s phone records who has come within 3 degrees of separation from someone suspected of having ties to terrorism.
“Data integrity” analysis: As noted, the NSA claims that before analysts start doing more formal queries of the phone dragnet data, “data integrity” analysts standardize it and do something (it’s unclear whether they delete or just suppress) “high volume numbers.” They also — and the details on this are even sketchier — use this live data to develop algorithms. This has the possibility of significantly changing the dragnet and what it does; at the very least, it risks eliminating precisely the numbers that might be most valuable (as in the Boston Marathon case, where a pizza joint plays a central role in the Tsarnaev brothers’ activities). The auditing on this activity has varied over time, but Dianne Feinstein’s bill would eliminate it by statute. Without such oversight, data integrity analysts have in the past, moved chunks of data, disaggregated them from any identifying (collection date and source) information, and done … we don’t know what with it. So one question about the data integrity analyst position is how narrowly scoped the high volume numbers are (if it’s not narrow, then everyone’s in the corporate store); an even bigger is what they do with the data in often unaudited behavior before it’s place into the main database.
Informants: Then there’s the very specific, admitted use of the dragnet that no one besides me (as far as I know) has spoken about: to find potential informants. From thevery start of the FISC-approved program, the government maintained the dragnet “may help to discover individuals willing to become FBI assets,” and given that the government repeated that claim 3 years later, it does seem to have been used to find informants.
This is an example of a use that would support “connecting the dots” (as the program’s defenders all claim it does) but that could ruin the lives of people who have no tie to actual terrorists (aside from speaking on the phone to someone one or two degrees away from a suspected terror affiliate). The government has in the past told FISCR it might use FISA data to find evidence of other crimes — even rape — to coerce people to become informants, and in some cases, metadata (especially that in the corporate store, enhanced by “the full range of analytic tradecraft”) could pinpoint not just potential criminals, but people whose visa violations and extramarital affairs might make them amenable to narcing on the people in their mosque (with the additional side effect of building distrust within a worship community). There’s not all that much oversight over FBI’s use of informants in any case (aside from permitting us to learn that they’re letting their informants commit more and more crimes), so it’s pretty safe to assume no one is tracking the efficacy of the informants recruited using the powerful tools of the phone dragnet.
Index: Finally, there’s the NSA’s use of this metadata as a Dewey Decimal System (to useJames Clapper’s description) to pull already-collected content off the shelf to listen to — a use even alluded to in the NSA’s declarations in suits trying to shut down the dragnet.
Section 215 bulk telephony metadata complements other counterterrorist-related collection sources by serving as a significant enabler for NSA intelligence analysis. It assists the NSA in applying limited linguistic resources available to the counterterrorism mission against links that have the highest probability of connection to terrorist targets. Put another way, while Section 215 does not contain content, analysis of the Section 215 metadata can help the NSA prioritize for content analysis communications of non-U.S. persons which it acquires under other authorities. Such persons are of heightened interest if they are in a communication network with persons located in the U.S. Thus, Section 215 metadata can provide the means for steering and applying content analysis so that the U.S. Government gains the best possible understanding of terrorist target actions and intentions. [my emphasis]
Don’t get me wrong. Given how poorly the NSA has addressed its longterm failure to hire enough translators in target languages, I can understand how much easier it must be to pick what to read based on metadata analysis (though see my concerns, above, about whether the NSA’s assessment techniques are valid). But when the NSA says, “non-US persons” here, what they mean is “content collected by targeting non-US persons,” which includes a great deal of content of US persons.
Which is another way of saying the dragnet serves as an excuse to read US person content.
One former and one current high-ranking intelligence official (is that you Keith?) have gone to CNBC to complain that tech firms are showing reluctance to get more of their people security clearances.
U.S. government officials say privately they are frustrated that Silicon Valley technology firms are not obtaining U.S. security clearances for enough of their top executives, according to interviews with officials and executives in Washington and California. Those clearances would allow the government to talk freely with executives in a timely manner about intelligence they receive, hopefully helping to thwart the spread of a hack, or other security issues.
The lack of cooperation from Silicon Valley, Washington officials complain, injects friction into a process that everyone agrees is central to the fight to protect critical U.S. cyberinfrastructure: Real-time threat information sharing between government and the private sector.
The former intelligence official said dealing with Silicon Valley firms is much different than his experience in other industries—or with all American companies a generation ago. “It used to be, during World War II or the Cold War, that getting cooperation from boards of directors was pretty straightforward. That’s not true today, particularly at these huge start-ups that went from nothing to billions.”
It’s interesting that this complainer went to CNBC’s Eamon Javers, who covers the overlap between corporations and intelligence, rather than someone like Kim Zetter or Shane Harris, who just finished interesting books on cybersecurity. Because the only challenge to those DC insiders’ claims about the importance of information sharing comes from this anonymous executive’s suggestion that the intelligence they’d get from the government isn’t all that useful.
In Silicon Valley, however, cybersecurity executives have a different perspective on the tension. “I believe that this is more about the overclassification of information and the relatively low value that government cyberintel has for tech firms,” said one Silicon Valley executive. “Clearances are a pain to get, despite what government people think. Filling out the paper work … is a nightmare, and the investigation takes a ridiculous amount of time.”
More generally (including in each of their books), I think people are raising more questions about the value of information sharing. At a recent panel on cybersecurity (starting at 12:20) for example, a bunch of security experts seemed to agree that information sharing shouldn’t be the priority it is. Yahoo CISO Alex Stamos (who at the same conference had this awesome exchange with NSA Director Mike Rogers) argued that the government emphasizes information sharing because it’s easy — he’d rather see the government cancel just one F-35 and put the money into bug bounties for open source software.
Nevertheless, these sources have been granted anonymity to suggest tech companies are un-American because they’re not rushing to share more data with the federal government.
Not to mention, not rushing to sign up to have their lives regulated by the McCarthyite system of security clearances.
Because it’s not just that the security clearance application that is unwieldy. It’s that clearance comes with a gag order about certain issues, backed by the threat of prison (I forget whether it was Harris’ or Zetter’s book, but one describes a tech expert talking about that aspect of clearance).
Why would anyone sign up for that if the tech companies have more that the government wants than the government has that the tech companies need?
So it will be interesting to see how the security establishment respond to this. It would be a wonderful way to force the government fix some of the problems with overclassification to be able to obtain the cooperation of what are supposed to be private corporations.
There is an exception to every rule, standard operating procedure, and policy; it is up to leaders to determine when exceptions should be made and to explain why they made them.
— David Petraeus’ Rules for Living, as presented by Paula Broadwell as they were being caught in an FBI investigation
Predictably, Trey Gowdy has subpoenaed more information about Hillary Clinton’s email personal email revealed this week.
But it seems he also ought to call David Petraeus in for another chat about Benghazi in light of details in the former CIA Director’s plea deal.
That’s because the Plea Documents show that the investigation into Petraeus and Paula Broadwell intersects with the Benghazi investigation in ways that are even more interesting than was already clear. Consider what those two timelines look like when you add in the fact that Petraeus lied to the FBI about leaking information to his mistress on October 26, 2012, which has been updated from this post (note that contemporaneous reporting dated Petraeus’ FBI interview to October 29).
From the sex and leaking standpoint, the revised timeline is interesting because it shows Petraeus and Broadwell together at — of all places! — the annual celebration for old-style subterfuge, the OSS dinner, between the time Petraeus lied to the FBI and the time Broadwell was interviewed a second time.
But from a Benghazi perspective, it shows that on the same day Petraeus lied to the FBI, Paula Broadwell made the accusation that the attack was really about freeing militia members held at the CIA annex. The next day Petraeus and Broadwell hobnobbed together among the old style spooks. and then days later — even as an FBI whistleblower was forcing the investigation into the public, without which it might have been dropped — Petraeus went on a “fact-finding” mission to Cairo, in part to consult with some of the people involved in the Benghazi response.
Petraeus did a report on that trip, but Dianne Feinstein was complaining that her committee had not received a copy of it on November 12 (Petraeus was resisting, in part, because he no longer worked at CIA).
There’s no evidence that the House Intelligence Committee consulted Petraeus’ trip report when they did their report on the attack. (Indeed, the report shows remarkable lack of interest in Petraeus’ role altogether, in spite of the fact that he watched the later parts of the attack develop via the drone surveillance camera feed piped to the SCIF at his home.)
Did either of the Intelligence Committees ever get the report on the trip Petraeus did after he knew he was in trouble with the FBI, at a time when his ex-girlfriend was claiming the reason behind the attack was entirely different from what we’ve been told?
As I’ve noted, more than anyone else, current HPSCI Chair Devin Nunes showed significant interest in that claim about detainees, as reflected in the backup to a report that Mike Rogers made sure to get done before he left Nunes in charge. In response to his question (as well as some questions about arms-running) Nunes got non-denials denials.
In a related detail, in the earlier session Nunes also elicited a non-denial denial about detainees (and accusation first leveled by David Petraeus’ mistress Paula Broadwell), the other alleged reason for the attack on US entities in Benghazi.
Mr. Nunes: Okay. To the detainees, were there ever any detainees at either of these locations in the last year of any kind?
Mr. Morell: Not with regard to the CIA facility, sir.
Mr. Kennedy: And the State Department does not engage in detentions overseas.
Rather than just answering no, between them Morell and Kennedy carved out a space where it might be possible the CIA (or someone else, possibly JSOC) were holding detainees at the TMF or elsewhere in Benghazi.
Maybe Petraeus’ last minute trip to do a personal investigation of the aftermath of Benghazi — the results of which Petraeus resisted sharing with the Committees investigating the attack — is just a coinkydink.
But given the timing — and Petraeus’ sweetheart plea deal — it’d be nice if the Benghazi Committee asked a few more questions about that coinkydink. Continue reading