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You Can Get Clearance If You Always Believed in the Fourth Amendment, But Not if You’re a Fourth Amendment Convert

Screen Shot 2016-05-14 at 8.43.08 PMOn Thursday night at 11PM, in advance of an Oversight and Government Reform hearing scheduled at 9AM Friday, James Clapper’s office rolled out a new policy integrating the use of social media in security clearance reviews. Basically, the government can use public social media in making security clearance determinations, but can’t ask for your password, friend you to collect information, or access your non-public social media activity. They additionally claim, implausibly, they won’t keep anything unnecessary to make such determinations.

Even taking those caveats in good faith, the policy should not be regarded as a risk-free policy, because government bureaucrats don’t have a perfect record with attribution (something National Counterintelligence Director William Evanina admitted in the hearing) and they have a still worse one with irony. Plus, the history of FBI prosecutions of alleged terrorists for RTs suggests they will read certain actions in social media with a certain kind of intent that may not be true.

Worse, Evanina said two ridiculous things in the hearing that raises real questions about the policy and his ability to implement it fairly.

First, Thomas Massie asked Evanina whether political views would be considered. Massie, after having noted the committee notes suggested a social media search might have identified Snowden as a potential threat (Snowden did spend time online before his classified career, but nothing would have obviously flagged him), also noted their similar political contribution histories. “Do you take into account political support when you’re doing background research on social media?” After Evanina explained the background check would not review that, Massie asked specifically about whether a person supported a candidate who was strong on the Fourth Amendment.”Your belief in Fourth Amendment would not have any predication on whether you could hold or maintain a security clearance,” Evanina replied in response.

Breaking! You can believe in the Fourth Amendment and get a security clearance. 

Only, that’s not true if you’re a convert to the Fourth Amendment (as Snowden arguably was, given his online comments).

Barely mentioned at the hearing were the guidelines the Intelligence Authorization had laid out for this policy, which I wrote about here and here.

(C) publicly available information, whether electronic, printed, or other form, including relevant security or counterintelligence information about the covered individual or information that may suggest ill intent, vulnerability to blackmail, compulsive behavior, allegiance to another country, change in ideology, or that the covered individual lacks good judgment, reliability, or trustworthiness; [my emphasis]

One thing Congress explicitly wanted to measure was “change in ideology” (I believe this was always included in security clearance determinations, but it has a much different impact if one is reviewing everyone’s candid thoughts), the kind of thing when someone who once railed against leakers in public comments goes on to question whether surveillance has gotten out of hand, as Snowden did.

Or as a lot of other people did, when they considered the impact of their dragnets.

The other ridiculous thing Evanina said came in response to Ted Lieu’s concerns about the number of Asian Americans charged with spying charges that later collapsed (something that Judy Chu has also been hitting on). Lieu also mentioned that since the public reports of spying cases collapsing, he has heard from some people who believe they were denied security clearances because of their (presumably Chinese-American) ethnicity.

So Lieu asked Evanina if that’s ever a consideration.

Evanina not only claimed that it is not a consideration (in spite of the case of the man who was denied clearance because of the USAID-tied organization his wife worked for), but he offered up that in his 19 years at FBI, they had also never used ethnicity as a reason for investigation.

There’s one ginormous problem with that claim (which was sworn).

Evanina was at FBI when, in 2008, they changed the Domestic Investigations and Operations Guide (as noted above) to permit consideration of First Amendment protected activities, including religion, among the things FBI Agents may take into account during an investigation.

FBI employees may take appropriate cognizance of the role religion may play in the membership or motivation of a criminal or terrorism enterprise. If, for example, affiliation with a certain religious institution or a specific religious sect is a known requirement for inclusion in a violent organization that is the subject of an investigation, then whether a person of interest is a member of that institution or sect is a rational and permissible consideration. Similarly, if investigative experience and reliable intelligence reveal that members of a terrorist or criminal organization are known to commonly possess or exhibit a combination of religion-based characteristics or practices (e.g., group leaders state that acts of terrorism are based in religious doctrine), it is rational and lawful to consider such a combination in gathering intelligence about the group-even if any one of these, by itself, would constitute an impermissible consideration.

Worse, Evanina served in a policy role when, in 2011, they reinforced this permission in that year’s DIOG.

Admittedly, religion is not the same thing as ethnicity. But for a number of ethnicities, including Chinese and Muslim Arabs, religion can stand in for a kind of ethnicity.

It may be that Evanina was foolish enough to raise his FBI experience, which might be entirely unrelated to the practice of security clearance evaluations. But he did. And that raised some really good reasons (on top of the known record and explicit direction from Congress about what this social media approach should entail) to doubt his assurances to the committee about civil liberties problems with this policy.

I get that it makes sense to review someone’s social media to see if they can keep a secret. But it is also the case that the IC generally, the FBI in particular, and Evanina personally, are not credible on this point.

Barb Mikulski Still Thinks You’re Stupid about “Target” and “Content”

In the CRomnibus legislation — the appropriations bill that will pass Congress in the next few days — the powers that be (largely Barb Mikulski and AlabamaKentucky’s Harold Rogers) stripped out the Massie-Lofgren Amendment that would have prohibited back door searches of Section 702 information and required back doors on software, and replaced it with this language.

SEC. 8128. None of the funds made available by this Act may be used by the National Security Agency to—

(1) conduct an acquisition pursuant to section 702 of the Foreign Intelligence Surveillance Act of 1978 for the purpose of targeting a United States person; or

(2) acquire, monitor, or store the contents (as such term is defined in section 2510(8) of title 18, United States Code) of any electronic communication of a United States person from a provider of electronic communication services to the public pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978.

The language is ridiculous on three counts.

First, it defunds only the NSA. The original might have defunded anything that involved DOD, including FBI and CIA.

Clause 1 does nothing but say that NSA has to follow the law, by prohibiting Section 702 from being used to target Americans (but not including penalties or legal recourse).

Clause 2 does nothing but say that NSA has to follow the law, by prohibiting the government from using Section 215 to get content (this clause might be more interesting if it applied to FBI, too, because I’m fairly certain some of what they get is arguably content).

That is, this replaces real legislation, supported by a huge majority in the House, with the same word games NSA has been hiding behind for over 18 months.

 

Massie-Lofgren Would Shut Down ALL Back Door Searches under Section 702

There are two details about the Massie-Lofgren Amendmentwhich passed the house by a 293-123 vote last night — that are currently being missed. First, the bill would shut down all back door searches under Section 702.

Except as provided in subsection (b), none of the funds made available by this Act may be used by an officer or employee of the United States to query a collection of foreign intelligence information acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) using a United States person identifier.

That means it would apply to FBI, in addition to CIA and NSA (which is what some people are reporting).

That’s the other detail people are missing. According to the John Bates opinion in which he first authorized back door searches for NSA and CIA in 2011, a third agency, which another document says is the FBI, had had that authority going back to 2008. According to the same language, FBI also had the authority to conduct back door searches on traditional FISA taps, which they would retain under this amendment.

 

Massie-Lofgren Amendment Closes NSA’s Back Door (for Now)

The Massie-Lofgren amendment to the appropriations bill just passed, 293-123.

The amendment would prohibit funds to be used to do either of two things:

  • Conduct back door searches on US person selectors
  • Require companies to put back doors into their products

The vote total was similar to that the National Security folks have been crowing that USA Freedumber got a few weeks ago.

Leadership on both sides of the aisle will attempt to find some way to kill this, so the battle is not won yet. But the vote makes it very clear that a bipartisan majority is not okay with some of NSA’s worst abuses.

Update: Here’s the roll call. I’ll have more to say about that tomorrow.