PCLOB

A Good Idea that May Backfire: FISCR Fast Track

I’ve written several posts about Leahy’s USA Freedom already. To recap:

  • The bill is definitely an improvement off of USA Freedumber, though it retains “connection” chaining language I’m seriously concerned about
  • The bill permits the government to collect “bulky” collections in at least two ways: the use of IP addresses and non-individual persons (aka corporations)
  • The bill inexplicably exempts the FBI from reporting requirements on back door searches

My last new concern about the bill pertains to a measure that means well, but might backfire.

The bill includes language designed to provide for appeals of significant issues, first to the FISA Court of Review, and then to SCOTUS.

(j) REVIEW OF FISA COURT DECISIONS.—After issuing an order, a court established under subsection (a) shall certify for review to the court established under subsection (b) any question of law that the court determines warrants such review because of a need for uniformity or because consideration by the court established under subsection (b) would serve the interests of justice. Upon certification of a question of law under this paragraph, the court established under subsection (b) may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

(k) REVIEW OF FISA COURT OF REVIEW DECISIONS.—

(1) CERTIFICATION.—For any decision issued by the court of review established under subsection (b) approving, in whole or in part, an application by the Government under this Act, such court may certify at any time, including after a decision, a question of law to be reviewed by the Supreme Court of the United States.

(2) SPECIAL ADVOCATE BRIEFING.—Upon certification of an application under paragraph (1), the court of review established under subsection (b) may designate a special advocate to provide briefing as prescribed by the Supreme Court.

(3) REVIEW.—The Supreme Court may review any question of law certified under paragraph (1) by the court of review established under subsection (b) in the same manner as the Supreme Court reviews questions certified under section 1254(2) of title 28, United States Code.

That is, it provides a way for FISC to ask FISCR to review their work, and for FISCR to ask SCOTUS to review their work.

To some degree, the more eyes that look at these novel decisions, the better.

But neither the FISCR review nor the SCOTUS review requires even the Special Advocate. While FISCR has, in the past, permitted amici, they (and Yahoo, in the case where Yahoo appealed FISC’s 2007 recision on Protect America Act) were shooting in the dark. the new advocate, such as it exists, would be able to argue before FISCR if the court wanted it.

So to a significant extent that would result in the same people (the government and the Court’s permanent staff, on one side, and the unproven advocate on the other) arguing the same issue over and over. with the courts themselves choosing to have their own decisions certified by the higher courts.

With the potential result that you’d have appellate decisions or even a SCOTUS instruction without ever giving a real adversary a shot at the issue. If FISC responded to the phone dragnet question before the way they have since Snowden leaked details of it, they would have gotten it certified to confirm their authority.

One addition to Leahy’s bill could exacerbate that. His bill requires the FISC to consult with PCLOB on appointees as  Advocates. With today’s PCLOB, that’d be a good thing. But if Republicans win back the Senate — especially if Mitch McConnell retains his seat — you’d see another PCLOB member the likes of Elisabeth Collins Cook and Rachel Brand. Both are really smart. But both were architects of the surveillance regime while serving as DOJ Policy AAGs. Add a third of that ilk, and PCLOB could load up the Advocates corp with people like Steven Bradbury.

Moreover, for the foreseeable future, Justice John Roberts will be handpicking these judges, which doesn’t give me a lot of confidence.

I just think the Advocate system is unproven right now. It may work out, it may be gamed to reinforce the dysfunction of the court. And the record of the FISCR — especially Laurence Silberman’s efforts to rule FISA illegal in 2002 — give me no confidence this kind of self-appeal would do anything but sanction bad decisions.

Mind you, the Leahy bill also permits the government to go on denying aggrieved people of review of Section 215 collection, so it’s not clearly anyone else will get standing to challenge this program in particular.

But it seems like the FISC system is so dysfunctional, there’s no reason to pre-empt the possibility of real adversarial court function.

Update: Orin Kerr thinks this is unconstitutional.

NSA Only Finds 59% of Its Targeting of US Persons

This will be a minor point, but one that should be made.

The Privacies and Civil Liberties Oversight Board report on Section 702 included this little detail:

In 2013, the DOJ undertook a review designed to assess how often the foreignness determinations that the NSA made under the targeting procedures as described above turned out to be wrong — i.e., how often the NSA tasked a selector and subsequently realized after receiving collection from the provider that a user of the tasked selector was either a U.S. person or was located in the United States. The DOJ reviewed one year of data and determined that 0.4% of NSA’s targeting decisions resulted in the tasking of a selector that, as of the date of tasking, had a user in the United States or who was a U.S. person. As is discussed in further detail below, data from such taskings in most instances must be purged. The purpose of the review was to identify how often the NSA’s foreignness determinations proved to be incorrect. Therefore, the DOJ’s percentage does not include instances where the NSA correctly determined that a target was located outside the United States, but post-tasking, the target subsequently traveled to the United States.

0.4% of NSA’s targeting decisions falsely determine someone is a foreigner who is in fact a US person.

That’s a pretty low amount. Though based on ODNI’s number — showing 89,138 people were targeted in 2013 — that means 356 US persons get wrongly targeted each year. Again, still not a huge number, but it compares rather interestingly with the 1,144 people targeted under FISA each year. Those wrongly targeted under Section 702 actually make up 24% of those targeted in a year.

Just as interesting is comparing the NSA’s internal audit (see page 6)  with DOJ’s results. For a period presumably covering some of the same time period, NSA discovered 20 US persons tasked (for some reason there was a big increase in this number for the last quarter of the report) and 191 incidences of “other inadvertent” tasking violations, which are described as, “situations where targets were believed to be foreign but who later turn out to be U.S. persons and other incidents that do not fit into the previously identified categories” (my emphasis). Not all of those 191 incidents should be counted as wrongly targeted US persons — the description includes other inadvertent targeting. But even counting them all as such, that means NSA only found 211 of the potential wrongly targeted US persons in a year, while DOJ found 356.

Again, in a country of 310 million people, these numbers are small, particularly as compared to the collection of US person communications under upstream collection, which is thousands of times higher.

But it does say that NSA’s internal reviews don’t find all the Americans who get wrongly targeted.

Correction: I originally mistranscribed DOJ’s number as .o4%–though I had calculated using .4%.

WaPo and PCLOB Agree: NSA Does Not Comply with Its Minimization Procedures

There are a number of issues with Marc Ambinder’s interpretation of the WaPo’s analysis of the content of NSA’s 702 collections as a “bust.” Ambinder:

  • Overstates the specificity of the certifications, particularly in light of the general “foreign government” one recently revealed by WaPo
  • Makes the same email rather than overwhelmingly IM mistake Stewart Baker made
  • Doesn’t deal with the fact that the bulk of US identifiers that got minimized — the largest category, constituting over 57,000 instances — is IP address, which presents different privacy concerns than what he addresses
  • Suggests this collection includes traditional FISA warrants; WaPo suggests it is all 702 collection, which ought to mean it includes less US person content (but apparently doesn’t)
  • Ignores how readily the NSA provides unaudited access to raw data for tech personnel and SIGDEV, and therefore how (in)secure we should expect this data to be in practice

But the most troublesome problem with it is Ambinder’s treatment of the NSA’s minimization obligations and practices. Here are some statements Ambinder makes about NSA’s minimization requirements.

Ok, so: having run the data through an automatic minimization system of some sort, the NSA analysts are required to minimize every U.S.-person communication that they see. Minimize does not “to get rid of.” It means to anonymize the U.S.-based non-target source.

[snip]

Maybe I could be a customer service representative from the pizza place that got his order wrong, and I’m e-mailing him to apologize for it. The NSA and the FBI are required by statute to minimize the communication if they determine it has no intelligence value. (And why would the NSA waste time reading a conversation about pizza anyway?)

[snip]

The analyst’s judgment can be subjective. On the first instance, the analyst has to figure out whether the communication is relevant to a foreign intelligence purpose.

First he states that minimization does not mean “get rid of,” then states NSA is required by statute to get rid of communications that have no intelligence value, then notes an analyst has to determine whether a communication has foreign intelligence value. Overall, though, Ambinder suggests that NSA does get rid of communications involving US persons without foreign intelligence value.

Ambinder is absolutely right the law requires the government to get rid of US person data that has no foreign intelligence value.

Here’s what one version of the minimization requirements say:

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and

(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

And here’s how that translates into the minimization procedures approved in 2011.

Personnel will exercise reasonable judgment in determining whether information acquired must be minimized and will destroy inadvertently acquired communications of or concerning a United States person at the earliest practicable point in the processing cycle at which such communication can be identified either: as clearly not relevant to the authorized purpose of the acquisition (e.g., the communication does not contain foreign intelligence information); or, as not containing evidence of a crime which may be disseminated under these procedures. Except as provided for in subsection 3(c)(2) below, such inadvertently acquired communications of or concerning a United States person may be retained no longer than five years from the expiration date of the certification authorizing the collection in any event.

Both the law and the minimization procedures approved by the FISC require NSA to get rid of US person communications that have no foreign intelligence purpose.

But here’s what the WaPo reveals about what NSA analysts do when they determine collection has no foreign intelligence value (note, however, these passages do not specify how many of these conversations include US person communications, though almost half of these communications involve US person identifiers).

Many other files, described as useless by the analysts but nonetheless retained, have a startlingly intimate, even voyeuristic quality. They tell stories of love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions, financial anxieties and disappointed hopes. The daily lives of more than 10,000 account holders who were not targeted are catalogued and recorded nevertheless.

[snip]

“None of the hits that were received were relevant,” two Navy cryptologic technicians write in one of many summaries of nonproductive surveillance. “No additional information,” writes a civilian analyst. [my emphasis]

While these passages are not quantifiable — both because WaPo didn’t say how many files NSA had determined to be “useless” and because WaPo didn’t identify how many of those include US persons — they do suggest that NSA is not complying with the legal requirement that they destroy communications involving US persons that don’t have foreign intelligence value. Not even for communications they describe as “useless” or “not relevant.”

That’s not surprising. As I noted the other day, PCLOB found that NSA “rarely” complies with this requirement and CIA and FBI never do.

[A]lthough a communication must be “destroyed upon recognition” when an NSA analyst recognizes that it involves a U.S. person and determines that it clearly is not relevant to foreign intelligence or evidence of a crime,531 in reality this rarely happens. Nor does such purging occur at the FBI or CIA: although their minimization procedures contain age-off requirements, those procedures do not require the purging of communications upon recognition that they involve U.S. persons but contain no foreign intelligence information.

Ambinder is absolutely right that WaPo’s sample shows that NSA is pretty good, but not perfect, at masking US person identities in their data.

But both WaPo’s detailed analysis and PCLOB’s general review show that NSA does not comply with another key part of its legally required minimization obligations, to destroy communications involving US persons that have no foreign intelligence value. US person identifiers may be masked, but many of them shouldn’t be in the NSA’s databases at all. That needs to be acknowledged in any discussion of the NSA’s minimization procedures. The law requires them to get rid of US person communications with no intelligence value. But they don’t.

That’s why the sheer volume of very personal information in this sample is of concern (aside from the concern we should have for foreigners’ privacy; though again, WaPo doesn’t say how much of the US person data includes that personal information). Because the NSA and FBI and CIA can access this data without needing any suspicion of wrongdoing.

NYT Mischaracterizes PCLOB Report While Transcribing NSA Pushback to WaPo

The NYT has a story transcribing Administration efforts to “play down new disclosures” from the WaPo showing that the bulk of people whose communications were collected in a sample provided by Edward Snowden were not targets. The key claim NYT transcribes is that NSA “filters out” US person communications.

Administration officials said the agency routinely filters out the communications of Americans and information that is clearly of no intelligence value.

In addition, the NYT claims that PCLOB had no problems with the way the government minimized all this data.

Just days before the Post article, an independent federal privacy board had largely endorsed the N.S.A.’s execution of the program. The Privacy and Civil Liberties Oversight Board concluded last week that the “minimizing” of that data was largely successful, at least under the current law, which Congress passed six years ago.

Um, no.

I hope to explain this at more length, but the WaPo suggests that the government did not comply with targeting and minimization requirements in two ways: first, because the standards for foreignness were not as stringent as witnesses have claimed for a year (something which NYT’s sources apparently don’t even try to rebut). But also, WaPo showed the NSA was not destroying communications that — at least from their own and even some of the analysts’ own descriptions of it — had no foreign intelligence value. Here are some analysts judging the data collected irrelevant.

“None of the hits that were received were relevant,” two Navy cryptologic technicians write in one of many summaries of nonproductive surveillance. “No additional information,” writes a civilian analyst.

It’s this second detail NYT’s sources attempt to rebut.

But NYT’s claim that PCLOB concluded minimization “was largely successful” ignores a number of concerns they raised about it, a number of which pertain to back door searches and upstream collection.

In addition to those concerns (which about four of PCLOB’s recommendations address), PCLOB raised this issue:

Therefore, although a communication must be “destroyed upon recognition” when an NSA analyst recognizes that it involves a U.S. person and determines that it clearly is not relevant to foreign intelligence or evidence of a crime,531 in reality this rarely happens. Nor does such purging occur at the FBI or CIA: although their minimization procedures contain age-off requirements, those procedures do not require the purging of communications upon recognition that they involve U.S. persons but contain no foreign intelligence information.

A communication must be destroyed upon recognition if it’s a US person communication with no intelligence value — PCLOB restates the standard that NYT’s sources claim is actually used. But after laying out that standard, PCLOB immediately says meeting that requirement “rarely happens.”

NYT’s sources say it routinely happens. PCLOB says it rarely happens at NSA, and not at all at CIA and FBI.

PCLOB, incidentally, recommends addressing this issue by having FISC review what tasking standards are actually used and then reviewing a subset of the data returned — precisely what the WaPo just did, though we have no way of knowing if WaPo had a representative sample.

But the story here should have been, “Administration’s rebuttal has already been refuted by PCLOB’s independent review.”

PCLOB and WaPo disagree about the tasking — PCLOB sides with past Administration witnesses on the assiduousness of NSA’s targeting.

But PCLOB entirely backs WaPo on how many worthless communications NSA is keeping and documenting.

What Happened to Obama’s Ordered Restrictions on Back Door Searches?

In the wake of yesterday’s PCLOB Report, Presidential Review Board Member Geoffrey Stone reminded that Obama’s hand-picked group recommended requiring warrants before accessing US person data collected via Section 702.

In effect, the Review Group recommended that backdoor searches for communications involving American citizens should be prohibited unless the government has probable cause and a warrant. This is essentially what the recently enacted House amendment endorsed.

The Review Group concluded that the situation under section 702 is distinguishable from the situation when the government lawfully intercepts a communication when it has probable cause and a warrant. This is so because, in the section 702 situation, the government is not required to have either probable cause or a warrant to intercept the communication. Because section 702 was not intended to enable the government to intercept the communications of American citizens, because our recommended reform would leave the government free to use section 702 to obtain the types of information it was designed and intended to acquire—the communications of non-U.S. citizens, and because the recommended reform would substantially reduce the temptation the government might otherwise have to use section 702 impermissibly in an effort intentionally to intercept the communications of American citizens, we concluded that this reform was both wise and essential.

But there’s a forgotten detail from ancient history of greater interest. Even the President ordered up changes for back door searches in criminal contexts.

Specifically, I am asking the Attorney General and DNI to institute reforms that place additional restrictions on government’s ability to retain, search, and use in criminal cases, communications between Americans and foreign citizens incidentally collected under Section 702.

Yet in spite of the fact the President asked the Attorney General and DNI to place additional restrictions on the government’s ability to keep, search, and use Section 702 collected information in criminal cases, here’s what we learned yesterday.

[A]lthough a communication must be “destroyed upon recognition” when an NSA analyst recognizes that it involves a U.S. person and determines that it clearly is not relevant to foreign intelligence or evidence of a crime,531 in reality this rarely happens. Nor does such purging occur at the FBI or CIA: although their minimization procedures contain age-off requirements, those procedures do not require the purging of communications upon recognition that they involve U.S. persons but contain no foreign intelligence information.

[snip]

FBI requires that metadata queries, like content queries, be reasonably designed to return foreign intelligence or evidence of a crime. As noted above, however, the FBI does not separately track which of its queries involve U.S. person identifiers, and so the number of such metadata queries is not known.

As illustrated above, rules and oversight mechanisms are in place to prevent U.S. person queries from being abused for reasons other than searching for foreign intelligence or, in the FBI’s case, for evidence of a crime. In pursuit of the agencies’ legitimate missions, however, government analysts may use queries to digitally compile the entire body of communications that have been incidentally collected under Section 702 that involve a particular U.S. person’s email address, telephone number, or other identifier, with the exception that Internet communications acquired through upstream collection may not be queried using U.S. person identifiers.540 In addition, the manner in which the FBI is employing U.S. person queries, while subject to genuine efforts at executive branch oversight, is difficult to evaluate, as is the CIA’s use of metadata queries.

And the best estimate we’ve been given for how many of these FBI queries take places is a “substantial” amount.

It has been 6 months since the President ordered changes. And the FBI still can’t even count its US person queries, much less quantify them. PCLOB calls it “difficult to evaluate.”

Um, did James Clapper and Eric Holder just blow off the President’s order in January? Because it sure looks like FBI’s back door searches remain a relatively unregulated mess.

In Advance of USA Freedom and CISA Fights, PCLOB Pretends Section 702 Doesn’t Have a Cyber Function

In a piece for Salon, I note some of the weird silences in yesterday’s PCLOB report, from things like the failure to give defendants notice (which I discussed yesterday) to the false claim that Targeting Procedures haven’t been released (they have been — by Edward Snowden). One of the most troubling silences, however, pertains to cybersecurity.

That’s especially true in one area where PCLOB inexplicably remained entirely silent. PCLOB noted in its report that, because Congress limited its mandate to counterterrorism programs, it focused primarily on those uses of Section 702. That meant a number of PCLOB’s discussions — particularly regarding “incidental collections” of Americans sucked up under Section 702 — minimized the degree to which Americans who corresponded with completely innocent foreigners could be in a government database. That said, PCLOB did admit there were other uses, and it discussed the government’s use of Section 702 to pursue weapons proliferators.

Yet PCLOB remained silent about a use of Section 702 that both Director of National Intelligence James Clapper’s office, in its very first information sheet on Section 702 released in June 2013, and multiple government witnesses at PCLOB’s own hearing on this topic in March, discussed: cybersecurity. Not only should that have been discussed because Congress is preparing to debate cybersecurity legislation that would be modeled on Section 702. But the use of Section 702 for cybersecurity presents a number of unique, and potentially more significant, privacy concerns.

And PCLOB just dodged that issue entirely, even though Section 702′s use for cybersecurity is unclassified.

In the transcript of the March PCLOB hearing on Section 702 uses, the word “cyber” shows up 12 times. Four of those references come from DOJ’s Deputy Assistant Attorney General Brad Wiegmann’s description of the kinds of foreign intelligence uses targeted under Section 702. (The other references came from Information Technology Industry Council President Dean Garfield.)

MR. WIEGMANN: You task a selector. So you’re identifying, that’s when you take that selector to the company and say this one’s been approved. You’ve concluded that it is, does belong to a non-U.S. person overseas, a terrorist, or a proliferator, or a cyber person, right, whoever it is, and then we go to the company and get the information.

[snip]

It’s aimed at only those people who are foreign intelligence targets and you have reason to believe that going up on that account that I mentioned, bad guy at Google.com is going to give you back information, information that is foreign intelligence, like on cyber threats, on terrorists, on proliferation, whatever it might be.

[snip]

So in other words, if I need to, if it’s Joe Smith and his name is necessary if I’m passing it to that foreign government and it’s key that they understand that it’s Joe Smith because that’s relevant to understanding what the threat is, or what the information is, let’s say he’s a cyber, malicious cyber hacker or whatever, and it was key to know the information, then you might pass Joe Smith’s name.

Yesterday’s report, however, doesn’t mention “cyber” a single time. Indeed, it seems to go out of its way to avoid mentioning it.

As discussed elsewhere in this Report, the Board believes that the Section 702 program significantly aids the government’s efforts to prevent terrorism, as well as to combat weapons proliferation and gather foreign intelligence for other purposes.

[snip]

The Section 702 program, for instance, is also used for surveillance aimed at countering the efforts of proliferators of weapons of mass destruction.473 Given that these other foreign intelligence purposes of the program are not strictly within the Board’s mandate, we have not scrutinized the effectiveness of Section 702 in contributing to those other purposes with the same rigor that we have applied in assessing the program’s contribution to counterterrorism. Nevertheless, we have come to learn how the program is used for these other purposes, including, for example, specific ways in which it has been used to combat weapons proliferation and the degree to which the program supports the government’s efforts to gather foreign intelligence for the benefit of policymakers.

It’s footnote to that last section cites DOJ’s 2012 report to SSCI on the uses of Section 702 (which doesn’t mention cyber) rather than the information sheet released in June 2013, which does.

I find PCLOB’s silence about the use of Section 702 to pursue cyber targets particularly interesting for several reasons.

First, because cyber targets pose unique privacy threats — in part because cyberattackers are more likely to hide their location and exploit the communications of entirely innocent people, meaning Section 702′s claimed targeting limits offer no protection to Americans. Additionally, targeting (as Wiegmann describes it) a “malicious cyber hacker” goes beyond any traditional definition of foreign agent; it is telling he didn’t use a Chinese military hacker as his example instead! Indeed, while proliferation (along with foreign governments, the other presumed certification) is solidly within FISA Amendment Act’s definition of foreign intelligence, cybersecurity is not. In its discussion of back door searches, PCLOB admits there are concerns raised by back door searches that are heightened (or perhaps more sensitive, because they involve affluent white people) outside the counterterrorism context, that’s especially true for cybersecurity targeting.

Consider, too, the likelihood that cyber collection is among the categories of about collection that PCLOB obliquely mentions but doesn’t describe due to classification.

Although we cannot discuss the details in an unclassified public report, the moniker “about” collection describes a number of distinct scenarios, which the government has in the past characterized as different “categories” of “about” collection. These categories are not predetermined limits that confine what the government acquires; rather, they are merely ways of describing the different forms of communications that are neither to nor from a tasked selector but nevertheless are collected because they contain the selector somewhere within them.

At the beginning of the report, PCLOB repeated the government’s claim this is primarily about emails; here in the guts of it, it obliquely references other categories of collection, without really considering whether these categories present different privacy concerns.

Remember, too, that the original, good version of USA Freedom Act remains before the Senate Judiciary Committee. That bill would disallow the use of upstream 702 for any use but counterterrorism and counterproliferation. Did PCLOB ignore this use of Section 702 just to avoid alerting Senators who haven’t been briefed on it that it exists?

Finally, I also find PCLOB’s silence about NSA’s admitted use of Section 702 to pursue cyberattackers curious given that, after Congress largely ditched ideas to involve PCLOB in various NSA oversight — such as providing it a role in the FISA Advocate position — Dianne Feinstein’s Cyber Information Sharing Act all of a sudden has found a use for PCLOB again (serving a function, I should add, that arguably replaces FISC review).

(1) BIENNIAL REPORT FROM PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD.—Not later than 1 year after the date of the enactment of this Act and not less frequently than once every 2 years thereafter, the Privacy and Civil Liberties Oversight Board shall submit to Congress and the President a report providing—

(A) an assessment of the privacy and civil liberties impact of the type of activities carried out under this Act; and

(B) an assessment of the sufficiency of the policies, procedures, and guidelines established pursuant to section 5 in addressing privacy and civil liberties concerns.

Feinstein introduced this bill on June 17, several weeks after PCLOB briefed her staffers on their report (they briefed Congressional committee aides on June 2, and the White House on June 17 — see just after 9:00).

A renewed openness to expanding PCLOB’s role may be entirely unmotivated, or it may stem from PCLOB’s chastened analysis of the legal issues surrounding Section 702.

But I do find it interesting that PCLOB uttered, literally, not one word about the topic that, if DiFi’s bill passes, would expand their mandate.

PCLOB Ignores Glaring Section 702 Non-Compliance: Notice to Defendants

I will have far more to say about PCLOB once I finish my working thread. But there’s one glaring flaw in the report’s claim that the government complies with the statute.

Based on the information that the Board has reviewed, the government’s PRISM collection complies with the structural requirements of the statute.

But here’s the report’s discussion of what happens with aggrieved persons — those prosecuted based in information derived from Section 702 information.

Further, FISA provides special protections in connection with legal proceedings, under which an aggrieved person — a term that includes non-U.S. persons — is required to be notified prior to the disclosure or use of any Section 702–related information in any federal or state court.447 The aggrieved person may then move to suppress the evidence on the grounds that it was unlawfully acquired and/or was not in conformity with the authorizing Section 702 certification.448 Determinations regarding whether the Section 702 acquisition was lawful and authorized are made by a United States District Court, which has the authority to suppress any evidence that was unlawfully obtained or derived.449 

But for 5 years after the passage of the law, the government never once gave defendants notice they were aggrieved under Section 702. It lied to the Supreme Court about not having done so. And even while it has since given a limited number of defendants — like Mohamed Osman Mohamud — notice, there are others — David Headley, Najibullah Zazi and Adis Medunjanin, and Khalid Ouazzani — who are known to be aggrieved under Section 702 who have never received notice. Finally, there is the case of the Qazi brothers, which seems to be a case where the government is parallel constructing right in the face of the magistrate.

PCLOB said that the government is generally in compliance with the statute. And yet, it made no mention of known, fairly egregious violations of the statute.

That suggests the report as a whole may be flawed.

In Advance of PCLOB, WaPo Busts ODNI’s Limited Hang Out on Certifications

Earlier today, I got to tell the journalists who have long ignored that the FBI does back door searches — or even suggested I was guessing that they do, when it appeared in multiple public documents — that I had been telling them so for a long time.

But today I also have to admit I got suckered by a year-long Director of National Intelligence effort at a limited hangout. That effort was, I’m convinced, designed to hide that the Section 702 program is far broader than government witnesses wanted to publicly admit it was. Nevertheless, I was wrong about a supposition I had believed until about 2 months ago.

Since the first days after the Snowden leaks, the government has suggested it had 3 certificates under Section 702, covering counterterrorism, counterproliferation, and cybersecurity.  But — as the WaPo reports (as with the ODNI back door search numbers, in convenient timing that conveniently preempts the PCLOB report) — that’ s not the case. The NSA has a certificate that covers every foreign government except the other 4 members of the 5 Eyes (UK, Canada, New Zealand, and Australia), as well as various foreign organizations like OPEC, the European Central Bank, and various Bolivarist groups.

For an entire year, the government has been suggesting that is not the case. I even believed them, the one thing I know of where I got utterly suckered. I was wrong.

Frankly, this certification should not be a surprise. It is solidly within the letter of the law, which permits collection on any agent of a foreign power. From the very first PRISM revelations, which showed collection on Venezuela, it was clear NSA collected broadly, including on Bolivarist governments and energy organizations.

But consistently over the last year, the NSA has suggested it only had certifications for CT, CP, and cyber.

On June 8 of last year, for example, ODNI listed 3 Section 702 successes.

  • Communications collected under Section 702 have provided the Intelligence Community insight into terrorist networks and plans. For example, the Intelligence Community acquired information on a terrorist organization’s strategic planning efforts.
  • Communications collected under Section 702 have yielded intelligence regarding proliferation networks and have directly and significantly contributed to successful operations to impede the proliferation of weapons of mass destruction and related technologies.
  • Communications collected under Section 702 have provided significant and unique intelligence regarding potential cyber threats to the United States including specific potential computer network attacks. This insight has led to successful efforts to mitigate these threats

The October 3, 2011 John Bates opinion, released in October, made it clear there were just 3 certificates at that point.

3 certificates

 

 

(Though note the Semiannual Compliance Review released last year looked to be consistent with at least one more certificate.)

The President’s Review Group emphasized the categorical nature of certificates, and in its second discussion thereof named those same three categories.

[S]ection 702 authorized the FISC to approve annual certifications submitted by the Attorney General and the Director of National Intelligence (DNI) that identify certain categories of foreign intelligence targets whose communications may be collected, subject to FISC-approved targeting and minimization procedures. The categories of targets specified by these certifications typically consist of, for example, international terrorists and individuals involved in the proliferation of weapons of mass destruction.

[snip]

Section 702 requires that NSA’s certifications attest that a “significant purpose” of any acquisition is to obtain foreign intelligence information (i.e. directed at international terrorism, nuclear proliferation, or hostile cyber activities), that it does not intentionally target a United States person, that it does not intentionally target any person known at the time of acquisition to be in the United States, that it does not target any person outside the United States for the purpose of targeting a person inside the United States, and that it meets the requirements of the Fourth Amendment.

And in March testimony before PCLOB, NSA General Counsel Raj De suggested those same three topics.

But beyond that there has to be a valid foreign intelligence reason within the ambit of one of those certifications that the FISC approves annually. Those are certifications on things like counterterrorism, encountering WMDs, for example, weapons of mass destruction.

Most recently, former DOJ official Carrie Cordero – who has been involved in this whole certification process – claimed in the CATO debate we’ve been engaged in “they are not so broad that they cover any and everything that might be foreign intelligence information.”

And yet, there’s a foreign intelligence certificate that covers any and everything that might be foreign intelligence information, a certificate that destroys the whole point of having certificates (though if there’s a cyber one, I suspect it has its own problems, in that it permits domestic collection).

Lots of people are claiming WaPo’s latest is no big deal, because of course the NSA spies on foreign government’s. They’re right, to a point. Except that the government has been strongly implying, since day one, that Section 702 was narrowly deployed, not available to use against all but our 4 closest spying allies.

PCLOB is surely about to make it clear that’s not the case. And voila! All of a sudden it becomes clear the government has been misleading when it claimed this was narrowly deployed.

USA Freedumb Act: The Timing

A number of people have expressed appreciation for this analysis: if you find this useful, please consider donating to support my work. 

I’m going to do a series of more finished posts on the “compromised” version of Jim Sensenbrenner’s USA Freedom Act, which I hereby dub the USA Freedumb Act (thanks to Fake John Schindler for the suggestion), because so many of the reforms have been gutted. Here’s the initially proposed bill. Here’s my working thread on USA Freedumb.

You will hear a great many respectable people making positive comments about this bill, comments they normally would not make. That’s because of the carefully crafted timing.

As you recall, Mike Rogers originally got the House Parliamentarian to rule that the bill could go through the House Intelligence Committee. And his bill, which I affectionately call “RuppRoge” after Rogers and Dutch Ruppersberger and Scooby Doo’s “Rut Roh” phase, is genuinely shitty. Not only does it put the NSA onsite at providers and extend call records collection beyond terrorism applications, but it also extends such collection beyond call records generally. It is likely an attempt to get the US back into the Internet dragnet business. Shitty bill.

That said, in key ways RuppRoge is very similar to USA Freedumb. Both “limit” bulk collection by limiting collection to selectors (Freedumb does so across the board, including for NSLs, whereas RuppRoge does so for sensitive Business Records, call records, and Internet metadata). Both propose a similarly (IMO) flimsy FISC advocate. Both propose laughably weak FISC transparency measures. Both will include compensation and immunity for providers they don’t currently have.

Aside from three areas where RuppRoge is better — it forces agencies to update their EO 12333 proposals, doesn’t extend the PATRIOT Act, and provides a (not very useful) way to challenge certificates, all the way up to SCOTUS — and three where it is far worse — it develops more Insider Threat measures, it applies for uses beyond terrorism and beyond call records, and doesn’t include new (but now circumscribed) IG reporting  – they’re not all that different. [Correction: USA Freedumb ALSO applies beyond terrorism.]

They’re differently shitty, but both are pretty shitty.

The reason why otherwise respectable people are welcoming the shitty Freedumb bill, however, is that it gives House Judiciary Committee — with a number of real reformers on it — first pass on this bill. It’s a jurisdictional issue. It puts the jurisdiction for surveillance bills back where it belongs, at the Judiciary Committee.

Oh, by the way, one of the more extensive (in terms of text) real changes in Freedumb is it finally includes the House Judiciary Committee, along with the House and Senate Intelligence Committees and Senate Judiciary Committee, among the committees that get certain kinds of reporting. Jurisdiction. (No, I can’t explain to you why it wasn’t included in the first place in 2008, and no, I can’t explain why that detail is not better known.) It gives everyone on HJC a tiny reason to support the bill, because they’ll finally get the reporting they should have gotten in 2008.

The House Intelligence Committee will consider RuppRoge the day after HJC considers Freedumb, Thursday. Which has elicited hasty (overly hasty, IMO) statements of support for Freedumb, as a way to head off the shitty RuppRoge.

Effectively, the National Security State has managed to put two differently shitty bills before Congress and forced reformers to choose. Freedumb is the better (as in less horrible) bill, and it might get better in Committee. But it’s not a runaway call. And the haste has prevented anyone from really figuring out what a central change to both programs means, which limits collection to selectors, which could be defined in very broad terms (and about which — you’ll have to take my word for now — the NSA has lied in public comments).

One more timing issue that I suspect explains the sudden activity surrounding “reform.” The Privacy and Civil Liberties Oversight Board is due to release a report on Section 702 in the next month or so (its comment period for the report closed on April 11). Given the comments of David Medine, James Dempsey, and Patricia Wald at hearings, I strongly suspect PCLOB will recommend reforms — at least — to back door searches, and possibly to upstream collection. Both are items which were gutted as USA Freedom became Freedumb. (In addition, two aspects that would have expanded PCLOB’s authorities — giving it a role in picking the FISC advocate and giving it subpoena power — have been removed.) So in the same way that President Obama rushed to reaffirm NSA’s unified structure, in which the Information Assurance Division and Cybercommand functions are unified with the more general NSA spying function, before his handpicked Review Group recommended they be split, this seems to be a rush to pre-empt any recommendations PCLOB makes.

Ultimately, these two shitty bills are destined to be merged in conference anyway, and reformers seem to have given up 75% of the field before we get started.

Which means just about the only “reform” we’ll get are actually tactical fixes to help the Security State deal with legal and technical issues they’ve been struggling with.

The USA Freedumb Act has become — with DiFi’s Fake FISA Fix and RuppRoge before it — the third fake reform since Edward Snowden’s leaks first got published. Wearing down the reformers seems to be working.

The Verizon Publicity Stunt, Mosaic Theory, and Collective Fourth Amendment Rights

On Friday, I Con the Record revealed that a telecom — Ellen Nakashima confirms it was Verizon — asked the FISA Court to make sure its January 3 order authorizing the phone dragnet had considered Judge Richard Leon’s December 16 decision that it was unconstitutional. On March 20, Judge Rosemary Collyer issued an opinion upholding the program.

Rosemary Collyer’s plea for help

Ultimately, in an opinion that is less shitty than FISC’s previous attempts to make this argument, Collyer examines the US v. Jones decision at length and holds that Smith v. Maryland remains controlling, mostly because no majority has overturned it and SCOTUS has provided no real guidance as to how one might do so. (Her analysis raises some of the nuances I laid out here.)

The section of her opinion rejecting the “mosaic theory” that argues the cumulative effect of otherwise legal surveillance may constitute a search almost reads like a cry for help, for guidance in the face of the obvious fact that the dragnet is excessive and the precedent that says it remains legal.

A threshold question is which standard should govern; as discussed above, the court of appeals’ decision in Maynard and two concurrences in Jones suggest three different standards. See Kerr, “The Mosaic Theory of the Fourth Amendment,” 111 Mich. L. Rev. at 329. Another question is how to group Government actions in assessing whether the aggregate conduct constitutes a search.See id. For example, “[w]hich surveillance methods prompt a mosaic approach? Should courts group across surveillance methods? If so, how? Id. Still another question is how to analyze the reasonableness of mosaic searches, which “do not fit an obvious doctrinal box for determining reasonableness.” Id. Courts adopting a mosaic theory would also have to determine whether, and to what extent, the exclusionary rule applies: Does it “extend over all the mosaic or only the surveillance that crossed the line to trigger a search?”

[snip]

Any such overhaul of Fourth Amendment law is for the Supreme Court, rather than this Court, to initiate. While the concurring opinions in Jones may signal that some or even most of the Justices are ready to revisit certain settled Fourth Amendment principles, the decision in Jones itself breaks no new ground concerning the third-party disclosure doctrine generally or Smith specifically. The concurring opinions notwithstanding, Jones simply cannot be read as inviting the lower courts to rewrite Fourth Amendment law in this area.

As I read these passages, I imagined that Collyer was trying to do more than 1) point to how many problems overruling the dragnet would cause and 2) uphold the dignity of the rubber stamp FISC and its 36+ previous decisions the phone dragnet is legal.

There is reason to believe she knows what we don’t, at least not officially: that even within the scope of the phone dragnet, the dragnet is part of more comprehensive mosaic surveillance, because it correlates across platforms and identities. And all that’s before you consider how, once dumped into the corporate store and exposed to NSA’s “full range of analytic tradecraft,” innocent Americans might be fingerprinted to include our lifestyles.

That is, not only doesn’t Collyer see a way (because of legal boundary concerns about the dragnet generally, and possibly because of institutional concerns about FISC) to rule the dragnet illegal, but I suspect she sees the reverberations that such a ruling would have on the NSA’s larger project, which very much is about building mosaics of intelligence.

No wonder the government is keeping that August 20, 2008 opinion secret, if it indeed discusses the correlations function in the dragnet, because it may well affect whether the dragnet gets assessed as part of the mosaic NSA uses it as.

Verizon’s flaccid but public legal complaint

Now, you might think such language in Collyer’s opinion would invite Verizon to appeal this decision. But given this lukewarm effort, it seems unlikely to do so. Consider the following details:

Leon issued his decision December 16. Verizon did not ask the FISC for guidance (which makes sense because they are only permitted to challenge orders).

Verizon got a new Secondary Order after the January 3 reauthorization. It did not immediately challenge the order.

It only got around to doing so on January 22 (interestingly, a few days after ODNI exposed Verizon’s role in the phone dragnet a second time), and didn’t do several things — like asking for a hearing or challenging the legality of the dragnet under 50 USC 1861 as applied — that might reflect real concern about anything but the public appearance of legality. (Note, that timing is of particular interest, given that the very next day, on January 23, PCLOB would issue its report finding the dragnet did not adhere to Section 215 generally.)

Indeed, this challenge might not have generated a separate opinion if the government weren’t so boneheaded about secrecy.

Verizon’s petition is less a challenge of the program than an inquiry whether the FISC has considered Leon’s opinion.

It may well be the case that this Court, in issuing the January 3,2014 production order, has already considered and rejected the analysis contained in the Memorandum Order. [redacted] has not been provided with the Court’s underlying legal analysis, however, nor [redacted] been allowed access to such analysis previously, and the order [redacted] does not refer to any consideration given to Judge Leon’s Memorandum Opinion. In light of Judge Leon’s Opinion, it is appropriate [redacted] inquire directly of the Court into the legal basis for the January 3, 2014 production order,

As it turns out, Judge Thomas Hogan (who will take over the thankless presiding judge position from Reggie Walton next month) did consider Leon’s opinion in his January 3 order, as he noted in a footnote.

Screen Shot 2014-04-28 at 10.49.42 AM

And that’s about all the government said in its response to the petition (see paragraph 3): that Hogan considered it so the FISC should just affirm it.

Verizon didn’t know that Hogan had considered the opinion, of course, because it never gets Primary Orders (as it makes clear in its petition) and so is not permitted to know the legal logic behind the dragnet unless it asks nicely, which is all this amounted to at first.

Note that the government issued its response (as set by Collyer’s scheduling order) on February 12, the same day it released Hogan’s order and its own successful motion to amend it. So ultimately this headache arose, in part, because of the secrecy with which it treats even its most important corporate spying partners, which only learn about these legal arguments on the same schedule as the rest of us peons.

Yet in spite of the government’s effort to dismiss the issue by referencing Hogan’s footnote, Collyer said because Verizon submitted a petition, “the undersigned Judge must consider the issue anew.” Whether or not she was really required to or could have just pointed to the footnote that had been made public, I don’t know. But that is how we got this new opinion.

Finally, note that Collyer made the decision to unseal this opinion on her own. Just as interesting, while neither side objected to doing so, Verizon specifically suggested the opinion could be released with no redactions, meaning its name would appear unredacted.

The government contends that certain information in these Court records (most notably, Petitioner’s identity as the recipient of the challenged production order) is classified and should remain redacted in versions of the documents that are released to the public. See Gov’t Mem. at 1. Petitioner, on the other hand, “request[s] no redactions should the Court decide to unseal and publish the specified documents.” Pet. Mem. at 5. Petitioner states that its petition “is based entirely on an assessment of [its] own equities” and not on “the potential national security effects of publication,” which it “is in no position to evaluate.” Id.

I’ll return to this. But understand that Verizon wanted this opinion — as well as its own request for it — public.

Continue reading

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