Sheldon Whitehouse

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Obama’s Presidential Policy Directive: Pixie Dust 2.0

Back when John Yoo was finding ways to authorize President Bush’s illegal wiretap program — especially spying on Americans who were not agents of a foreign power — he changed the meaning of certain limits in EO 12333 without rewriting EO 12333. The President didn’t have to change EO 12333 to reflect actual practice, Yoo determined (relying on an Iran-Contra precedent), because ignoring EO 12333 amounted to modifying it.

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

I call this pixie-dusting, where the Executive makes his own orders and directives disappear in secret.


The use of pixie-dust — so recently used to justify spying on people while pretending not to spy on them — ought to give you pause when you read this passage from President Obama’s Presidential Policy Directive limiting US spying overseas (or, frankly, everything he said today, which all consists of the Executive exercising its prerogative to change and oversee Executive actions, but in no way includes any teeth to sustain such changes).

Nothing in this directive shall be construed to prevent me from exercising my constitutional authority, including as Commander in Chief, Chief Executive, and in the conduct of foreign affairs, as well as my statutory authority. Consistent with this principle, a recipient of this directive may at any time recommend to me, through the APNSA, a change to the policies and procedures contained in this directive.

Effectively Obama is laying out his prerogative to pixie dust this PPD.

And while the President admittedly would always have such prerogative, he didn’t include such a paragraph in his cyberwar PPD (which, of course, wasn’t meant to be public).

This PPD was designed to be ignored.

And I suspect our friends and adversaries know that.

Obviously Bogus Clapper Exoneration Attempt 4.0


Wyden: Does the NSA collect any type of data, at all, on millions, or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not?

Clapper: There are cases where they could inadvertently, perhaps, uh, collect, but not wittingly. [After 6:38]

Almost immediately after the first Edward Snowden leaks proved James Clapper lied when he told Ron Wyden the NSA doesn’t collect data of any kind on millions of Americans, Clapper explained that he meant the NSA didn’t vicariously pore through Americans’ emails.

“What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that,” Clapper told National Journal in a telephone interview.

That is, his first response was about reading emails in a certain smarmy fashion; he did not apparently deny collecting them.

Then, with a bit more time to think up an excuse, he admitted to Andrea Mitchell that he had been “too cute by half” but didn’t really explain what semantic excuse he had invented for himself.

First– as I said, I have great respect for Senator Wyden. I thought, though in retrospect, I was asked– “When are you going to start– stop beating your wife” kind of question, which is meaning not– answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no.


And this has to do with of course somewhat of a semantic, perhaps some would say too– too cute by half. But it is– there are honest differences on the semantics of what– when someone says “collection” to me, that has a specific meaning, which may have a different meaning to him. [my emphasis]

Nevertheless, the implication, less than a week after Snowden’s first revelations, was that collecting Americans’ metadata doesn’t count until you access it, which seems to address the phone dragnet data (though would apply to incidentally collected US person data as well).

Perhaps because his Mitchell answer only increased the mockery, Clapper thought up a new answer, one he sent Senate Intelligence Committee Chair Dianne Feinstein 3 months after he lied to her committee.

I have thought long and hard to re-create what went through my mind at the time. Continue reading

Sheldon Whitehouse: We Can’t Unilaterally Disarm, Even to Keep America Competitive

I have to say, the Senate Judiciary Committee hearing on the dragnet was a bust.

Pat Leahy was fired up — and even blew off a Keith Alexander attempt to liken the Internet to a library with stories of the library card he got when he was 4. While generally favoring the dragnet, Chuck Grassley at least asked decent questions. But because of a conflict with a briefing on the Iran deal, Al Franken was the only other Senator to show up for the first panel. And the government witnesses — Keith Alexander, Robert Litt, and James Cole — focused on the phone dragnet disclosed over 6 months ago, rather than newer disclosures like back door searches and the Internet dragnet, which moved overseas. Litt even suggested — in response to a question from Leahy — that they might still be able to conduct the dragnet if they could bamboozle the FISA Court on relevance, again (see Spencer on that). As a result, no one discussed the systemic legal abuses of the Internet dragnet or NSA’s seeming attempt to evade oversight and data sharing limits by moving their dragnet overseas.

Things went downhill when Leahy left for the Iran briefing and Sheldon Whitehouse presided over the second panel, with the Computer & Communications Industry Association’s Edward Black, CATO’s Julian Sanchez, and Georgetown professor (and former DOJ official) Carrie Cordero. Sanchez hit some key points on the why Internet metadata is not actually like phone pen registers. Cordero acknowledged that metadata was very powerful but then asserted that the metadata of the phone-based relationships of every American was not.

And Black tried to make the case that the spying is killing America.

Or, more specifically, his industry’s little but significant corner of America, the Internet. While only some of this was in his opening statement, Black made the case that the Internet plays a critical role in America’s competitiveness.

While these are critical issues, it is important that the Committee also concern itself with the fact that the behavior of the NSA, combined with the global environment in which this summer’s revelations were released, may well pose an existential threat to the Internet as we know it today, and, consequently, to many vital U.S. interests, including the U.S. economy.


The U.S. government has even taken notice. A recent comprehensive re- port from the U.S. International Trade Commission (ITC) noted, “digital trade continues to grow both in the U.S. economy and globally” and that a “further increase in digital trade is probable, with the U.S. in the lead.” In fact, the re- port also shows, U.S. digital exports have exceeded imports and that surplus has continually widened since 2007.


As a result, the economic security risks posed by NSA surveillance, and the international political reaction to it, should not be subjugated to traditional national security arguments, as our global competitiveness is essential to long-term American security. It is no accident that the official National Security Strategy of the United States includes increasing exports as a major component of our national defense strategy.

Then he laid out all the ways that NSA’s spying has damaged that vital part of the American economy: by damaging trust, especially among non-American users not granted to the protections Americans purportedly get, and by raising suspicion of encryption.

Black then talked about the importance of the Internet to soft power. He spoke about this generally, but also focused on the way that NSA spying was threatening America’s dominant position in Internet governance, which (for better and worse, IMO) has made the Internet the medium of exchange it is.

The U.S. government position of supporting the multi-stakeholder model of Internet governance has been compromised. We have heard increased calls for the ITU or the United Nations in general to seize Internet governance functions from organizations that are perceived to be too closely associated with the U.S. government, such as the Internet Corporation for Assigned Names and Numbers (ICANN).

And he pointed to proposals to alter the architecture of the Internet to minimize the preferential access the US currently has.

Let’s be honest, Black is a lobbyist, and he’s pitching his industry best as he can. I get that. Yet even still, he’s not admitting that these governance and architecture issues really don’t provide neutrality — though US stewardship may be the least-worst option, it provides the US a big advantage.

What Black hinted at (but couldn’t say without freaking out foreign users even more) is that our stewardship of the Internet is not just one of the few bright spots in our economy, but also a keystone to our power internationally. And it gives us huge spying advantages (not everyone trying to erode our control of the Internet’s international governance is being cynical — Edward Snowden has made it clear we have abused our position).

Which is why Whitehouse’s response was so disingenuous. He badgered Black, interrupting him consistently. He asked him to compare our spying with that of totalitarian governments, which Black responded was an unfair comparison. And Whitehouse didn’t let Black point out that American advantages actually do mean we spy more than others, because we can.

Basically, Whitehouse suggested that, in the era of Big Data,  if we didn’t do as much spying as we could — and to hell with what it did to our preferential position on the Internet — it would amount to unilaterally disarming in the face of Chinese and Russian challenges.

If we were to pass law that prevented us from operating in Big Data, would be unilaterally disarming.

Whitehouse followed this hubris up with several questions that Sanchez might have gladly answered but Black might have had less leeway to answer, such as whether a court had ever found these programs to be unconstitutional. (The answer is yes, John Bates found upstream collection to be unconstitutional, he found the Internet dragnet as conducted for 5 years to be illegal wiretapping, and in the Yahoo litigation in 2007, Yahoo never learned what the minimization procedures were, and therefore never had the opportunity to make the case.) Black suggested, correctly, I think, that Whitehouse’s position meant we were just in an arms race to be the Biggest Brother.

I get it. Whitehouse is one of those who believelike Keith Alexander (whose firing Whitehouse has bizarrely not demanded, given his stated concerns about the failure to protect our data during Alexander’s tenure) that the Chinese are plundering the US like a colony.

Not only does this stance seem to evince no awareness of how America used data theft to build itself as a country (and how America’s hardline IP stance will kill people, making America more enemies). But it ignores the role of the Internet in jobs and competition and trade in ideas and goods.

Sheldon Whitehouse, from a state suffering economically almost as much as Michigan, seems anxious to piss away what competitive advantages non-defense America has to conduct spying that hasn’t really produced results (and has made our networks less secure as a result — precisely the problem Whitehouse claims to be so concerned about). That’s an ugly kind of American hubris that doesn’t serve this country, even if you adopt the most jingoistic nationalism imaginable.

He should know better than this. But in today’s hearing, he seemed intent on silencing the Internet industry so he didn’t learn better.

Update: Fixed the Black quotation.

Update: Jack Goldsmith pushes back against the American double standards on spying and stealing here.

Under Keith Alexander’s Guard, America Can Be Plundered Like a Colony

Admittedly, Keith Alexander made things very easy on himself in this article on “Defending America in Cyberspace” by not mentioning the way DOD (or our ally, Israel) let StuxNet go free, not only exposing the attack on Iran, but also providing a map and code that others can use on us.

That reckless mistake and its potential consequences remains unmentioned, however, in the piece in which Alexander claims that his team has found and is implementing the magic formula for defending the country in cyberspace.

We have learned through two decades of trial and error that operationalizing our cyberdefenses by linking them to intelligence and information-assurance capabilities is not only the best but also the only viable response to growing threats.

We know how to defend the country, Alexander says. It involves creating security holes, then using them to find out who will attack us, all while living on the network and watching what private citizens are also doing.

But then Alexander utterly contradicts the claim that his team has found the successful formula by describing the sheer scale of successful attacks against the US, suggesting it rivals the plunder of the Mongols and the colonies (though curiously, not slavery).

Three times over the previous millennium, military revolutions allowed forces to conquer huge territories and forcibly transfer riches from losers to winners (namely, in the Mongol conquests of China, Russia and Baghdad; the Spanish conquests of the Americas; and the European empires in the nineteenth century). Remote cyberexploitation now facilitates the systematic pillaging of a rival state without military conquest and the ruin of the losing power. We have seen a staggering list of intrusions into major corporations in our communications, financial, information-technology, defense and natural-resource sectors. The intellectual property exfiltrated to date can be counted in the tens to hundreds of thousands of terabytes. We are witnessing another great shift of wealth by means of cybertheft, and this blunts our technological and innovative edge. Yet we can neither prevent major attacks nor stop wholesale theft of intellectual capital because we rely on architecture built for availability, functionality and ease of use—with security bolted on as an afterthought.

This repeats a claim he and others have made repeatedly, though after having been proven wrong about past claims about the scale of financial wealth transfer, he seems to have shifted to measuring the plunder that has occurred on his watch in terabytes, not dollars. Our country — which he has served in a key defense role for 8 years — has been plundered like a colony (I don’t buy this, mind you — I find the analogy downright offensive. But it is the argument he’s making).

In much of the rest of his paper, Alexander explains his future plans, which we should follow, he tells us, because he has been so successful that our country has been plundered like a colony.

I wonder. Might the most sane response to this paper be to, at a minimum, question what success looks like? At a minimum, might we discuss publicly some alternatives? And if being plundered like a colony is not our goal, perhaps we should consider whether what Alexander presents as the “only viable response” really is?

Study Shows Cybertheft Really Isn’t the Greatest Transfer of Wealth in History

I’ve long mocked the claim — often wielded by people like Sheldon Whitehouse and Keith Alexander — that cybertheft is the greatest transfer of wealth in history. Sure, cybertheft might be big. But bigger than colonization? Bigger than slavery?

But a new study shows that it is just a fraction of what cyber-boosters have been claiming: $25 to $100 billion rather than a $1 trillion.

The study does still show it is costly — leading to the lost of 508,000 jobs a year. And the study didn’t account for something else I often harp on: the unknown role of Chinese hacking into weapons programs in degrading the effectiveness of those programs.

Still unknown, for example, are the unseen costs of military cybertheft, said Mr. Lewis. “A lot of the cost overruns in some of our big programs are because they had to rewrite the code after the Chinese got in—and the real damage won’t appear until we see how weapons actually perform,” he said.

The study also did not calculate the effect of cybertheft on American competitiveness, which seems like a significant issue.

Ultimately, though, this is a problem that should be fought without the bluster. It is real. It is a threat, in large part, to private companies that don’t pay their fair share in taxes. How we combat that problem should account for those factors.

NSA’s Querying of US Person Data, Take Two

Update: Alexander’s office has conceded Udall and Wyden’s point about the classified inaccuracy. It also notes:

With respect to the second point raised in your 24 June 2013 letter, the fact sheet did not imply nor was it intended to imply “that the NSA has the ability to determine how many American communications it has collected under section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans.”

He then cites two letters from James Clapper’s office which I don’t believe have been published.

Joshua Foust tries to refute this post and in doing so proves once again he doesn’t understand the meaning of “target” under Section 702.

Out of courtesy to him, I’m going to rewrite this post to help him understand it. The issue is not whether the US can “target” a US person without a warrant. They can’t. The issue is what the US does with US person data they collect incidentally off a legal target (which must be a foreigner overseas collected for a legitimate intelligence purpose).

At issue is this sentence in the Mark Udall/Ron Wyden letter to Keith Alexander.

Separately, this same fact sheet states that under Section 702, “Any inadvertently acquired communication of or concerning a US person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime.” We believe that this statement is somewhat misleading, in that it implies that the NSA has the ability to determine how many American communications it has collected under section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans.

The passage says that the claim, “any inadvertently acquired communication of or concerning a US person must be promptly destroyed” is “somewhat misleading,” for two reasons:

  1. It implies that the NSA has the ability to determine how many American communications it has collected under section 702
  2. It implies that the law does not allow the NSA to deliberately search for the records of particular Americans

Now, before I get into bullet point 2, which is the one in question, note that this entire passage is talking about “inadvertently acquired communication of or concerning a US person.” This is not information on someone who has been targeted. It discusses what happens to information collected along with the communications of those who’ve been targeted (say, by emailing the target). Therefore, this entire passage is irrelevant to the issue of what happens with the targeted person’s communication. The Udall/Wyden claim is not about targeting in the least; it is about incidental collection.

Okay, bullet point 2: Udall and Wyden claim that Alexander’s fact sheet is misleading because it implies the law does not allow the NSA to deliberately search for the records of particular Americans. They could be wrong, but their claim is that it is misleading for Alexander to suggest that the law does not allow the NSA to deliberately search for the records of particular Americans. That means they believe the law does allow the NSA to deliberately search for the records of particular Americans, otherwise they wouldn’t think his statement was misleading.

Now, if it were just Udall and Wyden making this claim, it’d be a he-said/he-said. But  pointed out that this claim is not new at all. It’s not even one limited to Udall and Wyden. In the FAA report released by Dianne Feinstein last year, it said,

Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession.

First, the report describes a debate the committee had:

The Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained.

The committee debated two things:

  1. Whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited.
  2. Whether querying information collected under Section 702 to find communications of a particular United States person should be more robustly constrained.

Bullet point 1 makes it clear they were debating whether they should prohibit this activity. If they had to consider that, it means that it is not prohibited (which is precisely what Udall and Wyden say–that the law allows it). Bullet point 2 says they also considered whether they should “more robustly constrain” it, which suggests (though does not prove) that it is going on now, otherwise there’d be nothing to constrain.

The IC IGs won’t tell us how much of this goes on–they claim they have no way of counting it, which ought to alarm you, because it says they’re not actually tracking it via some kind of auditing function.

I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.

Now, as I already laid out, what we’re talking about is not targeting a US person–focusing collection on that person. What we’re talking about is what you can do with the US person data collected “incidentally” with the communications collected of that targeted person. That information–as the minimization guidelines describe–is lawfully collected. The big question is what you can do with it once you have collected it, and in many but not all cases there are restrictions against circulating that information before you’ve hidden the identity of the US person in question.

The last part of the passage from the SSCI says,

With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession.

Again, some amount of US person data is collected under Section 702 along with the data of the targeted person (if it weren’t, they wouldn’t need minimization procedures). It is lawfully collected. The question is what you’re allowed to do with it. And as part of the debate the committee had about whether they were going to “prohibit” or “more robustly constrain” the querying of US person data that was lawfully collected as incidental data, SSCI describes the Intelligence Community (which includes, in part, the NSA, the CIA, and the FBI) providing several reasons why it might need to conduct queries of this data. And the committee agreed that these reasons were “legitimate foreign intelligence needs.”

The minimization procedures from 2009, at least, require destruction of US person data if it is “clearly not relevant to the authorized purpose of the acquisition (e.g., the communication does not contain foreign intelligence information).” (3(b)(1)) What is not immediately destroyed may be kept for up to 5 years. But it only destroys the stuff that is “clearly not relevant,” not data that might be relevant to the purpose of the investigation.

Now, while the language is not exact, the SSCI report’s description of data that has a “legitimate foreign intelligence” surely includes “foreign intelligence information.” This is kind of backwards (which may be part of complaint from Udall and Wyden), but unless the information is clearly not relevant — and the intelligence community says some of this data has legitimate intelligence purposes — then it is retained. This is probably why Udall and Wyden think Alexander’s “must be promptly destroyed” is misleading, because if the IC thinks they might need to query it because it would serve a legitimate foreign intelligence purpose, then it is not.

So who makes this decision whether to keep the data? “NSA analyst(s) will determine whether it … is reasonably believed to contain foreign intelligence information.” (3(b)(4)) The NSA, not FBI or CIA.

And this data cannot just be retained. It can also be “forwarded to analytic personnel responsible for producing intelligence information from the collected data.” (3(b)(2))

Now, in most cases, that information must be anonymized (which is what Kurt Eichenwald discusses here, which Foust cites). But it has always been the case there are exceptions to that rule. Some exceptions are if:

  • The Director of NSA specifically determines, in writing, that the communication is reasonably believed to contain significant foreign intelligence information. (5(1)) In that case the information goes to the FBI. [Update: This distribution is permitted with domestic communication--that is, US to US person.]
  • A recipient requiring the identity of such person for the performance of official duties needs the identity of the United States person to understand foreign intelligence information or assess its importance. (6(b)(2) This sometimes, but not always, happens after an initial distribution.

There are actually a slew more exceptions but these two should suffice. Again, these rules on distribution (except as they affect technical data base information, which might be relevant here, but not necessary) are not new with FAA. They’ve long been in place.

Again, this is all about what happens to incidentally collected data, not the data of the person actually targeted. Which is why these two passages are irrelevant to the entire point (the second of which Foust thought I was leaving out because it hurt my point).

As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause.


The Department of Justice and Intelligence Community reaffirmed that any queries made of Section 702 data will be conducted in strict compliance with applicable guidelines and procedures and do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.

What they say is that the government is prohibited from targeting a US person without a warrant and that any other things done with incidentally collected data must be conducted in strict compliance with applicable guidelines, which are the minimization procedures I just reviewed (though again, those are from 2009 so they may have changed somewhat). The passage very clearly envisions making queries of the data and very clearly considers such queries to be distinct from the targeting of a US person.

And the minimization procedures make it clear that if data is not “clearly not foreign intelligence,” (that is, if it might be foreign intelligence, as this queried data is, according to the IC) then it is retained, at least through the initial (NSA-conducted) review. Where it can be queried, so long as the other minimization procedures are met.

One final thing. Foust is actually wrong when he suggests the IC asked for new authority (in any case, the only conclusion would be that they got it). Rather, in both the SSCI and the Senate Judiciary Committee, Senators tried to limit this authority. In SJC, Mike Lee,  Dick Durbin, and Chris Coons submitted an amendment to (among other things) prohibit,

the searching of the contents of communications acquired under this section [702] in an effort to find communications of a particular United States person…

…Except with an emergency authorization.

Dianne Feinstein fought the amendment by arguing such a prohibition would have made it harder to find Nidal Hasan (whom we didn’t find anyway, and whose communications with Anwar al-Awlaki may well have been traditional FISA collection). But at one level that makes sense.

Sheldon Whitehouse said that such a restriction would “kill this program.”

I may not like what Whitehouse stated. But I do trust his judgement about how central to this program is access to US person communications.

That doesn’t say how much of this stuff goes on (though it does seem to suggest it does). But it does say we ought to at least track it.

Obama’s Stubbornness and the Risk of Snowden

At the outset of this post, let me lay out my following assumptions (I can’t prove these points, but I suspect them):

  • The documents released so far by Guardian and WaPo — information on the Section 215 program, PRISM, and the PPD on cyberwar — have done negligible damage to our security (indeed, even Sheldon Whitehouse, a big defender of these programs, said the government should have been transparent about them earlier)
  • China already knew the content of Edward Snowden’s public revelations about our hacking into Chinese networks (we know China’s compromises of us, so it is unlikely China, which is more successful and aggressive at hacking than we are, doesn’t know our compromises of it); the revelations on this front so far have served primarily to even out the playing field on mutual accusations of hacking
  • Snowden personally (and his laptops) have information that China and Russia could both find of more use, particularly given that some of our programs targeting them were run out of HI
  • Snowden may also have things that might be of use to others, such as organized crime (If I were planning on longevity and had access, for example, I would take some zero day exploits when I left the NSA, though the street value of them would diminish once NSA had inventoried what I took)
  • The reporting I’ve seen has not confirmed reports that either China or Russia has debriefed Snowden or scanned his computers (indeed, this report on China’s involvement in his departure from Hong Kong suggests they did not talk with him directly)
  • Julian Assange knows where Snowden is, leading to the possibility he has escaped Russia to a country that has not yet been named in reports of Snowden’s escape (named countries have included Venezuela, Cuba, Ecuador, and Iceland)

All of that is a roundabout way of saying that Snowden could do great damage to the US, but may not have yet, and certainly hadn’t by the time he first revealed himself in Hong Kong.

If that’s right, then it seems the Obama approach has been precisely the wrong approach in limiting potential damage to national security. The best way to limit damage, for example, would be to get Snowden to a safe place where our greatest adversaries can’t get to him, where we could make an eternal stink about his asylum there, but still rest easy knowing he wasn’t leaking further secrets. Indeed, if he were exiled in some place like France, we’d likely have more influence over what he was allowed to do than if he gets to Ecuador, for example.

The most likely approach to lead to further damage, however, is to charge him with Espionage. This not only raises the specter of the treatment we’ve given Bradley Manning — giving Snowden Denise Lind’s judgement that Manning’s rights were violated to include in any asylum application — but also easily falls under what states can call political crimes, which permits them to ignore extradition requests. That is, we appear to be pursuing the approach that could lead to greater damage.

By contrast, letting Snowden get someplace safe is perfectly equivalent to letting the CIA off for torture (or, for that matter, James Clapper off for lying to Congress). It’s a violation of rule of law, but it also serves to minimize the tremendous damage the spooks might do to retaliate. Obama has chosen this path already when the criminals were his criminals; he clearly doesn’t have the least bit of compunction of setting aside rule of law for pragmatic reasons. But in Snowden’s case, he seems to be pursuing a strategy that not only might increase the likelihood of damage, but also lets China and Russia retaliate for perceived slights along the way.

All this is just an observation. I believe Obama’s relentless attacks on whistleblowers and his ruthless enforcement of information asymmetry have actually raised the risk of something like this. And he seems to be prioritizing proving the power of the US (which has, thus far, only proved our diminishing influence) over limiting damage Snowden might do.

Update: This fearmongering WaPo article nevertheless quotes a former senior US official admitting that what Snowden has released so far wouldn’t help China or Russia.

A former senior U.S. official said that the material that has leaked publicly would be of limited use to China or Russia but that if Snowden also stole files that outline U.S. cyber-penetration efforts, the damage of any disclosure would be multiplied.

Keith Alexander’s “Packets in Flight” Turn Hackers into Terrorists

Keith Alexander showed up to chat with a typically solicitous George Stephanopoulos yesterday. The interview demonstrates something I’ll be increasingly obsessed with in upcoming weeks.

The government is using the limited success of NSA’s counterterrorism spying to justify programs that increasingly serve a cybersecurity function — a function Congress has not enthusiastically endorsed.

The interview starts with Alexander ignoring Steph’s first question (why we didn’t find Snowden) and instead teeing up 9/11 and terror terror terror.

And when you think about what our mission is, I want to jump into that, because I think it reflect on the question you’re asking.

You know, my first responsibility to the American people is to defend this nation. And when you think about it, defending the nation, let’s look back at 9/11 and what happened.

The intel community failed to connect the dots in 9/11. And much of what we’ve done since then were to give us the capabilities — and this is the business record FISA, what’s sometimes called Section 215 and the FAA 702 — two capabilities that help us connect the dots.

The reason I bring that up is that these are two of the most important things from my perspective that helps us understand what terrorists are trying to do. And if you think about that, what Snowden has revealed has caused irreversible and significant damage to our country and to our allies.

When — on Friday, we pushed a Congress over 50 cases where these contributed to the understanding and, in many cases, disruptions of terrorist plots.

Steph persists with his original question and gets Alexander to repeat that they’ve “changed the passwords” at NSA to prevent others from leaking.

Steph then asks Alexander about Snowden’s leaks of details on our hacking of China (note, no one seems to be interested in this article, which is just as revealing about our hacking of China as Snowden’s revelations).

Note how, even here, Alexander says our intelligence collection in China is about terrorism.

STEPHANOPOULOS: In the statement that Hong Kong put out this morning, explaining why they allowed Snowden to leave, they also say they’ve written to the United States government requesting clarification on the reports, based on Snowden’s information, that the United States government attacked (ph) computer systems in Hong Kong.

He said that the NSA does all kinds of things like hack Chinese cell phone companies to steal all of your SMS data.

Is that true?

ALEXANDER: Well, we have interest in those who collect on us as an intelligence agency. But to say that we’re willfully just collecting all sorts of data would give you the impression that we’re just trying to canvas the whole world.

The fact is what we’re trying to do is get the information our nation needs, the foreign intelligence, that primary mission, in this case and the case that Snowden has brought up is in defending this nation from a terrorist attack.

Alexander then shifts the issue and suggests we’re collecting on China because it is collecting on us.

Now we have other intelligence interests just like other nations do. That’s what you’d expect us to do. We do that right. Our main interest: who’s collecting on us?

Alexander next goes on to answer Steph’s question about whether we broke Hong Kong law by saying this hacking doesn’t break our law. Continue reading

The CNET “Bombshell” and the Four Surveillance Programs

CNET is getting a lot of attention for its report that NSA, “has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.”

In general, I’m just going to outsource my analysis of what the exchange means to Julian Sanchez (I hope he doesn’t charge me as much as Mike McConnell’s Booz Allen Hamilton for outsourced analysis).

What seems more likely is that Nadler is saying analysts sifting through metadata have the discretion to determine (on the basis of what they’re seeing in the metadata) that a particular phone number or e-mail account satisfies the conditions of one of the broad authorizations for electronic surveillance under §702 of the FISA Amendments Act.


The analyst must believe that one end of the communication is outside the United States, and flag that account or phone line for collection. Note that even if the real target is the domestic phone number, an analyst working from the metadatabase wouldn’t have a name, just a number.  That means there’s no “particular, known US person,” which ensures that the §702 ban on “reverse targeting” is, pretty much by definition, not violated.

None of that would be too surprising in principle: That’s the whole point of §702!

That is, what Nadler may have learned that the same analysts who have access to the phone metadata may also have authority to issue directives to companies for phone content collection. If so, it would be entirely feasible for the same analyst to learn, via the metadata database, that a suspect phone number is in contact with the US and for her to submit a request for actual content to the providers, without having to first get a FISA order covering the US person callers directly. Since she was still “targeting” the original overseas phone number, she would be able to get the US person content without a specific order.

Screen shot 2013-06-16 at 11.50.59 AMI just want to point to a part of this exchange that everyone is ignoring (but that I pointed out while live tweeting this).

Mueller: I’m not certain it’s the same–I’m not certain it’s an answer to the same question.

Mueller didn’t deny the NSA can get access to US person phone content without a warrant. He just suggested that Nadler might be conflating two different programs or questions.

And that’s one of the things to remember about this discussion. Among many other methods of shielding parts of the programs, the government is thus far discussing primarily the two programs identified by the Guardian: the phone metadata collection (which the WaPo reports is called MAINWAY) and the Internet content access (PRISM).

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Russ Feingold: Yahoo Didn’t Get the Info Needed to Challenge the Constitutionality of PRISM

The NYT has a story that solves a question some of us have long been asking: Which company challenged a Protect America Act order in 2007, only to lose at the district and circuit level?

The answer: Yahoo.

The Yahoo ruling, from 2008, shows the company argued that the order violated its users’ Fourth Amendment rights against unreasonable searches and seizures. The court called that worry “overblown.”

But the NYT doesn’t explain something that Russ Feingold pointed out when the FISA Court of Review opinion was made public in 2009 (and therefore after implementation of FISA Amendments Act): the government didn’t (and still didn’t, under the PAA’s successor, the FISA Amendments Act, Feingold seems to suggests) give Yahoo some of the most important information it needed to challenge the constitutionality of the program.

The decision placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access. The court upheld the constitutionality of the PAA, as applied, without the benefit of an effective adversarial process. The court concluded that “[t]he record supports the government. Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case.” However, the company did not have access to all relevant information, including problems related to the implementation of the PAA. Senator Feingold, who has repeatedly raised concerns about the implementation of the PAA and its successor, the FISA Amendments Act (“FAA”), in classified communications with the Director of National Intelligence and the Attorney General, has stated that the court’s analysis would have been fundamentally altered had the company had access to this information and been able to bring it before the court.

In the absence of specific complaints from the company, the court relied on the good faith of the government. As the court concluded, “[w]ithout something more than a purely speculative set of imaginings, we cannot infer that the purpose of the directives (and, thus, of the surveillance) is other than their stated purpose… The petitioner suggests that, by placing discretion entirely in the hands of the Executive Branch without prior judicial involvement, the procedures cede to that Branch overly broad power that invites abuse. But this is little more than a lament about the risk that government officials will not operate in good faith.” One example of the court’s deference to the government concerns minimization procedures, which require the government to limit the dissemination of information about Americans that it collects in the course of its surveillance. Because the company did not raise concerns about minimization, the court “s[aw] no reason to question the adequacy of the minimization protocol.” And yet, the existence of adequate minimization procedures, as applied in this case, was central to the court’s constitutional analysis. [bold original, underline mine]

This post — which again, applies to PAA, though seems to be valid for the way the government has conducted FAA — explains why.

The court’s ruling makes it clear that PAA (and by association, FAA) by itself is not Constitutional. By itself, a PAA or FAA order lacks both probable cause and particularity.

The programs get probable cause from Executive Order 12333 (the one that John Yoo has been known to change without notice), from an Attorney General assertion that he has probable cause that the target of his surveillance is associated with a foreign power.

And the programs get particularity (which is mandated from a prior decision from the court, possibly the 2002 one on information sharing) from a set of procedures (the descriptor was redacted in the unsealed opinion, but particularly given what Feingold said, it’s likely these are the minimization procedures both PAA and FAA required the government to attest to) that give it particularity. The court decision makes it clear the government only submitted those — even in this case, even to a secret court — ex parte.

The petitioner’s arguments about particularity and prior judicial review are defeated by the way in which the statute has been applied. When combined with the PAA’s other protections, the [redacted] procedures and the procedures incorporated through the Executive Order are constitutionally sufficient compensation for any encroachments.

The [redacted] procedures [redacted] are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. [redacted] Although the PAA itself does not mandate a showing of particularity, see 50 USC 1805b(b), this pre-surveillance procedure strikes us as analogous to and in conformity with the particularity showing contemplated by Sealed Case.

In other words, even the court ruling makes it clear that Yahoo saw only generalized descriptions of these procedures that were critical to its finding the order itself (but not the PAA in isolation from them) was constitutional.

Incidentally, while Feingold suggests the company (Yahoo) had to rely on the government’s good faith, to a significant extent, so does the court. During both the PAA and FAA battles, the government successfully fought efforts to give the FISA Court authority to review the implementation of minimization procedures.

The NYT story suggests that the ruling which found the program violated the Fourth Amendment pertained to FAA.

Last year, the FISA court said the minimization rules were unconstitutional, and on Wednesday, ruled that it had no objection to sharing that opinion publicly. It is now up to a federal court.

I’m not positive that applies to FAA, as distinct from the 215 dragnet or the two working in tandem.

But other reporting on PRISM has made one thing clear: the providers are still operating in the dark. The WaPo reported from an Inspector General’s report (I wonder whether this is the one that was held up until after FAA renewal last year?) that they don’t even have visibility into individual queries, much less what happens to the data once the government has obtained it.

But because the program is so highly classified, only a few people at most at each company would legally be allowed to know about PRISM, let alone the details of its operations.


According to a more precise description contained in a classified NSA inspector general’s report, also obtained by The Post, PRISM allows “collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations,” rather than directly to company servers. The companies cannot see the queries that are sent from the NSA to the systems installed on their premises, according to sources familiar with the PRISM process. [my emphasis]

This gets to the heart of the reason why Administration claims that “the Courts” have approved this program are false. In a signature case where an Internet provider challenged it — which ultimately led the other providers to concede they would have to comply — the government withheld some of the most important information pertaining to constitutionality from the plaintiff.

The government likes to claim this is constitutional, but that legal claim has always relied on preventing the providers and, to some extent, the FISA Court itself from seeing everything it was doing.

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Emptywheel Twitterverse
bmaz @runtodaylight Doubt it will go criminal, too many complications.But I do have a client who is a Dr. there from a previous matter.
bmaz @FalguniSheth @adamsteinbaugh @emptywheel No calves. I have my cows all grazing on Uncle Sam's land up in Nevada. Beer smooth.
bmaz @adamsteinbaugh @emptywheel @FalguniSheth Never had Founder's beer before. Pale ale is killer.
bmaz .@emptywheel @FalguniSheth My Founder's beer from our patio bar seat tonight:
bmaz @steve_vladeck @ACLU_NCA Yeah, and neither will the FISC and other courts apparently.
bmaz In the not even close to news dept, breaking or otherwise, The Blue Angels are a bunch of rowdy fighter jocks
bmaz @gideonstrumpet @nancyleong @ntswanson Is that a hospital in CT is it?
bmaz RT @erinscafe: If you come to the premiere of Follow Friday the Film Friday at 5:45 pm, you can meet @LynsieLee, my fav stripper. http://t.…
bmaz @yvonnewingett @barrettmarson @JimSmall Hey, I think I made that point already!
bmaz I'd love to convict this Blackwater fuckstic; but the Stated Dept tanked the case w/Garrity statements at the get go
bmaz @barrettmarson @JimSmall "Innocent"??
bmaz @APribetic @gideonstrumpet @ScottGreenfield @kashhill @adamsteinbaugh My media strategy is "don't talk to the media". Nothing good happens.
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