Technical Glitches and Minimization

A number of you sent me this Eric Lichtblau story describing how, because of a "technical glitch," the FBI accidentally got all the emails going to one domain, rather than just the emails to and from their particular target.

A technical glitch gave the F.B.I. access to the e-mail messages from an entire computer network — perhaps hundreds of accounts or more — instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation, according to an internal report of the 2006 episode.

F.B.I. officials blamed an “apparent miscommunication” with the unnamed Internet provider, which mistakenly turned over all the e-mail from a small e-mail domain for which it served as host. The records were ultimately destroyed, officials said.

Bureau officials noticed a “surge” in the e-mail activity they were monitoring and realized that the provider had mistakenly set its filtering equipment to trap far more data than a judge had actually authorized.

The episode is an unusual example of what has become a regular if little-noticed occurrence, as American officials have expanded their technological tools: government officials, or the private companies they rely on for surveillance operations, sometimes foul up their instructions about what they can and cannot collect.

The problem has received no discussion as part of the fierce debate in Congress about whether to expand the government’s wiretapping authorities and give legal immunity to private telecommunications companies that have helped in those operations.

But an intelligence official, who spoke on condition of anonymity because surveillance operations are classified, said: “It’s inevitable that these things will happen. It’s not weekly, but it’s common.”

My response to this is sort of similar to Kagro X’s (and given all my posts about minimization, I would certainly take issue with Lichtblau’s assertion that "the problem has received no discussion"). This story illustrates why minimization is every bit as important in the FISA discussion as immunity.

Hmm. Minimization. That rings a bell. What was it?

Oh yeah! The FISA fight in the Senate! Minimization was a concern because the Senate bill pretty much gave the government a free hand to suck up every phone call, e-mail, text message, etc. there is, and — amazingly enough — had to be amended on the floor in order to even approach a proper handling of minimization concerns. Curiously, it happened that there was no provision in the new law that said what actually happens if the government, oh, let’s say… doesn’t destroy "accidentally" captured communications. Senator Whitehouse had to try to shoehorn that in as an amendment, and along the way had to agree to soften his language from explicitly authorizing compliance reviews by the FISA court, down to some mumblings about how nothing in the bill should be construed to reduce or contravene the FISA court’s inherent authority to enforce its orders regarding minimization (if any).

Subtle difference, I suppose. The affirmative power to conduct reviews, versus a grudging acknowledgment that a court should be able to enforce its own orders. But not that subtle.

The story actually does sound a genuine mistake. It illustrates the need for minimiz ation. But it doesn’t explain why it is that McConnell apparently abandoned the Democratic bills in August 2007 because they actually required minimization. It doesn’t explain why the Administration is so afraid of oversight on their ability to minimize US person data.

See, I’m not so much worried about mistakes like this. I’m worried about the apparent fact that having real oversight to find the non-mistakes was a deal-breaker in August.

44 replies
  1. bmaz says:

    Man, you have been working today. And fast too I might add; according to the NYT page I was reading, it said the article had only been there 5 minutes. Crikey.

    • PetePierce says:

      You see articles like the NYT I caught about the same time you did and you just know they don’t give a damn what legislation gets passed–they are data mining like there is no tomorrow 66 ways to Christmas. And their excuses “whoops accident” don’t fly with me.

  2. PetePierce says:

    It was my understanding that the amendment to get minimization done properly failed because of the cowards in the Senate–one of many terrible aspects of S. 2248. At least that’s what I gather from this:

    Amendment Summary and Debate Duration

    Now the house is fighting to at least save the provision stripping immunity/ and giving us the opportunity to try to nail Cheney and Addington’s people who co-opted the willing telecoms who were staffed with general counsel who were former DOJ NationaSecurity/Intelligence attorneys–I wish I could be optimistic about this.

    • emptywheel says:

      No. Minimization did pass–which is, I suspect, why Whitehouse voted for the final bill.

      In the House we’re looking, first, for exclusivity, and then for immunity, and then for a bunch more gravy we’re unlikely to get.

      • PetePierce says:

        I didn’t realize that. I guess I got confused with some of the langauge.

        I understand your summary of the House. I know there was a conference meeting Friday. The House is going to have to stand very firm, and whatever there is Conference Committee or informal meetings the Senate members who are trying to get exclusivity and some more of that gravy are really going to have to dig in. I don’t know how they recruit more help/votes.

        • emptywheel says:

          Right–that’s why Kagro thinks the language has been watered down so much. Here’s what’s left:

          “(h)(1) Nothing in this Act shall be considered to reduce or contravene the inherent authority of the Foreign Intelligence Surveillance Court to determine, or enforce, compliance with an order or a rule of such Court or with a procedure approved by such Court.

          “(2) In this subsection, the terms `Foreign Intelligence Surveillance Court’ and `Court’ mean the court established by subsection (a).”.

          That is, it gives the FISC ability to enforce the provisions it approves in minimization and (presumably) targeting. The original language said that FISC had to review it, then it got to be an optional review of compliance with minimization. This is still better than it was, which didn’t give FISC any power to review minimization, which is what we had under PAA.

          • Scarecrow says:

            So, did the pre-PAA FISA give the FISC sufficient mimimization oversight? So that the expiration of PAA restores that oversight? Or did the need for mimimization arise only because of new intelligence sweeps authorized by PAA?

      • phred says:

        I was relieved to hear Pelosi mention both exclusivity and no immunity in her press conference on Thursday. In a continuance of my undue optimism, I’m hopeful that she will insist on both.

          • phred says:

            Sorry Loo Hoo — I think I must have come across as sarcastic (my usual, I know), but I really meant it. Pelosi will look like a dope if the conference committee comes back without exclusivity and with immunity after her press conference remarks, so I really do think we are likely to get both (although I agree with EW, that we’re likely to get watered down DiFi immunity, rather than none at all). bmaz was mocking my enthusiasm on Thursday, that was all I meant by my “undue” optimism ; )

          • cboldt says:

            How about some positive words/thoughts?

            You’ll have to settle for negative. The devil is in the details. I’d no more take Pelosi at her word about the contents of a bill, than I would Mitch McConnell, President Bush, or Harry Reid.

            When the DEMs come out with claims of “successful negotiations” and “winning one for privacy,” be sure to check the fine print.

            Regardless of what the bill says, we’re still stuck with stonewalling and prevarication by the intelligence agencies. IOW, the bill can have full blown minimization and exclusivity provisions, and the legal situation would be status quo … i.e., “state secrets” prevails.

              • cboldt says:

                You mean because she uses language like “misrepresenting” for Bushes blatant bullshitting?

                No — I mean because I don’t trust any of them. Not to say all of them misrepresent 100% of the time, just that there’s no substitute for digging into the dirty details.

                Great cartoon. “We do it because we love you, and if you don’t believe us, then you’re with the terrorists.”

        • emptywheel says:

          I think there’s a very good chance we’ll get exclusivity–it only failed by Hillary, Ben Nelson, and one more vote in the Senate (such as Norm Coleman). I think it unlikely we get full immunity–perhaps, again, DiFi’s compromise (which, IMO, is better than Specter/Whitehouse’s compromise).

          • PetePierce says:

            The trouble with DiFi’s compromise which failed in the Senate Thursday, (on a 41-57 vote (Carper, Dodd, Inouye, Johnson, Landrieu, Lieberman, Menendez, Nelson (NE), Pryor, and Rockefeller voted NAY. Clinton and Graham did not vote–thanks to CBodlt’s list for this) which removes the pending civil litigation pertaining to the TSP to the FISC and defines the standard of review leading to dismissal which FISC will interpret any way they please and then make their opinion completely secret from us:

            1) FISA court consistently covers up their opinions. Bates did. I would expect any opinion they would issue ala Feinstein’s to me goofy suggestion would never see the light of day for us to understand

            2) It forecloses our chance to find out what happened consistent with a number of posts you’ve done on this very subject.

            3) The FISA court isn’t going to make any decision IMO that is adverse to the phone companies and more importantly to Cheney/Addington and the NSA and DOJ architects of the phone company wiretapping.

            • emptywheel says:

              I guess the question is, faced with !) no immunity, 2) virtual immunity (substitution), or 3) some real legal review, which would you take. I’m not so pessimistic about the FISC as you. After all, they’ve ruled against the govt twice in the last year, and one of the sources for the Lichtblau/Risen story WAS the FISC. They’re all honest to god Article III judges with a real interest in guarding Article III power.

              • bmaz says:

                Yeah, i am with you on that. I have some faith in the FISC panel as well (although, I think, Walton excluded, that it too may be trending in the wrong direction as all Federal jurisdictions are with the influx of crappy Bush nominees (I can’t find it now, but I swear I recently read 35-40 % of the Federal judiciary are now Bush appointees). All in all though, I will give them the benefit of the doubt as to being an honest and forthright forum; the problem I see is the secrecy bit. The devil could/would be in the details of the implementation. As I have said repeatedly, the telcos already have cover for any legal and justifiable actions, and hidden indemnification avenues for any losses for which the government demanded cooperation and liability is assessed and damages are awarded; so there is no sane reason for “substitution”. The follow-on problem with “substitution” is that, with the government as the only party defendant, there is too much room for states secrets hanky panky and no private defendant to play off of the government; the prejudice to the plaintiff is beyond immense and potentially crippling to their ability to litigate effectively.

                MadDog @18 – if you can package that with a no interest, cash out now sub-prime loan, I will take that property off your hands. Always looking to expand the Broken Wheel Ranch holdings….

                • PetePierce says:

                  I will try to nail down the exact number. I have the links somewhere. But I’m close when I say Bush has confirmed 260 judges to a federal judiciary of about 760 judges or close to 35%.

                • PetePierce says:

                  Fromthe AFJ site:

                  The State of the Judiciary

                  I thought it was 260 judges so far confirmed that Bush appointed and many regretably by horse trade deals–some secret sealed in House Senate conference committees. The figure here:

                  Nine out of thirteen circuits are majority Republican-appointed and two more are evenly divided. President Bush has appointed nearly 300 judges to the federal courts, including 57 court of appeals judges and two Supreme Court justices. Many of these judges will likely serve for decades on the federal bench, shaping the law for a generation to come.

                  Since 2007, when Democrats became the majority party, the Senate has confirmed 40 nominees, which, as the Los Angeles Times recently noted, is “more than in the previous three years when Republicans held the majority.”

                  I have seen sites and figures that actually Clinton has appointed/confirmed more appellate judges than Bush and Bush may not catch Clinton there.

                  Pending controversial nominees include:

                  Robert Conrad, Fourth Circuit: Conrad has never ruled for a plaintiff in an employment discrimination case. He referred to the writings of Sister Helen Prejean as “liberal drivel” and to Sister Helen herself as a “Church-hating nun.”

                  Steve Matthews, Fourth Circuit: Matthews served on the board of the Landmark Legal Foundation at the time that it nominated Rush Limbaugh for the Nobel Peace Prize.

                  Richard Honaker, District of Wyoming: Honaker’s public statements demonstrate that he believes that the law should reflect the doctrines of the Bible and Christianity.

              • PetePierce says:

                I guess the question is, faced with !) no immunity, 2) virtual immunity (substitution), or 3) some real legal review, which would you take. I’m not so pessimistic about the FISC as you. After all, they’ve ruled against the govt twice in the last year, and one of the sources for the Lichtblau/Risen story WAS the FISC. They’re all honest to god Article III judges with a real interest in guarding Article III power.

                I want real legal review which is getting extinct these days.

                Article III Judges:

                1) There are about 760 of them. They come predominantly from the ranks of DOJ and most of them bring a pro-DOJ, prosecutorial agenda. That’s a whole other subject which certainly escapes the MSM.

                I’d prefer to refer to the current situation as predominantly “severely cowed Article III judges.” So far, the DOJ has done very well in waving the “state secrets” argument in the Ninth Circuit Telcom pair of cases, in the Cybil Edmonds appeal in the D.C. Circuit, in the Cybil Edmonds cert. denial in the S. Ct., and in another D.C. Circuit case, and Jeffery Sterling’s discrimination case against the C.I.A. in the Fourth Circuit to name just a few prominent “State Secrets as a Club” appellate cases.

                The 4th Circuit egregiously crushed the El Masri appeal via State Secrets in El Masri v. Tenet in a case that is well known to everyone here.

                State Secrets Privilege Selected Case Files

                I certainly don’t want “no immunity” but I want the full panoply of discovery that will tease out and parse each and every player that was part of the conspiracy to wiretap us since 2000, including the former DOJ National Security/Intelligence division (yes there is such an entity) attorneys who are now helping completement the ranks of Telcom/Comcom general counsel.

                My confidence in the FISC court is diluted because I don’t want us to be at arms length as to what’s going on–particularly if optimistically there will be a new administration in town after January.

                The Bates ruling in response to the A.C.L.U.’s wiretapping suit is to me a bellweather signal as to what would happen if FISC were to get its hands on the immunity situation.

                Under FISA and the applicable Security Procedures, there is no role for this Court independently to review, and potentially override, Executive Branch classification decisions,” wrote Judge John D. Bates in the FISC decision. “If the FISC were to assume the role of independently making declassification and release decisions in the probing manner requested by the ACLU, there would be a real risk of harm to national security interests and ultimately to the FISA process itself.”

                Bates’ Order Denying Release of Wiretapping Records on Illegal Wiretapping

                This is the lack of transparency I expect if Feinstein’s terrible idea were to see the light of day. I have as little confidence in the FISC court as I do in Feinstein.

                I also detest the idea that Mommy and Daddy Senator have seen information, and they are watching out for me.

                From Cboldt:

                “We do it because we love you, and if you don’t believe us, then you’re with the terrorists.”

                Bmaz raised the number of Bush Judges–to date Bush has named about 260 federal trial and appellate judges out of approximately 760 federal judges or about 35%.

                • bmaz says:

                  The discussion of the judges is a critical one that is often overlooked, or at least not looked at as critically and as often as it may deserve. There are a number that are pending or that may be open prior to the blessed day that Bush is gone; the total number could easily be well in excess of 300 out of the 760 by the time he leaves. I am working off of Pete’s numbers with the assumption that they are reasonably close. It should be noted that not all federal judgeships are filled at any one time. There are 179 Court of Appeal positions possible and 678 District Court positions possible, for a total of 857 possible. But, again, there are always many slots that are not filled at any one given time, and the slack is taken up by semi-retired judges serving in what is known as “Senior Status”. when EW and others talk about Article III judges, she is referring to Article III of the Constitution, which is the enabling provision for Supreme Court justices, appellate and district court judges, and a few Court of International Trade judges (the ITC judges are not particularly relevant to most of what we discuss here).

                  The bottom line is that an ungodly percentage of the prime active federal judiciary, likely over 45%, will be Bush appointees. That is not the worst news though. Most Presidents have appointed well seasoned and experienced judges, which means they are generally a little older, and hopefully, wiser. But the Bush theocon crowd has made a concerted effort to appoint young and extremely dogmatic nominees that will be clogging up the federal judiciary for, on the whole, a lot longer than the groups as a whole appointed by past presidents. And, again, these are the extremely dogmatic types, often groomed by the Federalist Society types, that have neither the seasoning nor inclination to be fair and impartial arbiters of the law. McCain has made it a belligerent point to promise that he will continue this path on Federal judge appointments. If he is elected President, we are truly fucked; the legal system will never recover (and that is not even going into the DOJ isues we all know so well).

                  Now, lastly, a word about this quote in Pete’s comment @31 about who gets to be Federal judges:

                  They come predominantly from the ranks of DOJ and most of them bring a pro-DOJ, prosecutorial agenda. That’s a whole other subject which certainly escapes the MSM.

                  For the Circuit Appellate positions, that is very often the case, and when not, the nominees are invariably out of some other governmental position, such as the White House or other Administration counsel offices etc. For the District Court judgeships, they are also very often out of the DOJ, but usually out of the local US Attorneys office or the like; maybe not a majority, but a significant number. When not, they are, from what I have seen, plucked out of the local state attorney general offices, state courts and big governmental defense law firms. The net result is that you have a federal judiciary that is, almost to a person, straight out of, and beholden to, the government; not to mention that they were nominated and confirmed by the government. This is an important concept to keep in mind when viewing and predicting how Federal courts treat some of the issues we are interested in. For instance, I have, from the Plame suit to the wiretapping suits to other instances, described how Federal trial judges contort and bend over backwards on standing and immunity/qualified immunity issues to find in favor of the government and against the plaintiff (even though the crystal clear standard is that all presumptions and factual inferences must be given to the plaintiff). Well, what has just been described herein is effectively why that occurs. At least that is, and long has been, my opinion. for what it is worth…

  3. JohnLopresti says:

    I was wondering if the nearing ripeness of the Marrero September 6, 2007 decision 102pp in the followup to the Gperson agency’s facing the music for excesses in nsl letter oversight affected McConnell’s resolve, in the sense that by mid to late summer McConnell may have had a sense of how far the case would go into potentially embarrassing material, and by way of political corollary, how much room McConnell would have to redeploy tactics in the FISA redesign discussion in congress. I think that SDNY case was one kx followed closely. Though I admit to my own lacking time for realtime advocacy in the sausage manufacture process with minimization. I think there were lessons learned in the matter of those administrative letters as instruments for eavesdropping and concomitant gags.

  4. MadDog says:

    The NYT article also has this wee bit of glitchery:

    In the warrantless wiretapping program approved by President Bush after the Sept. 11 terrorist attacks, technical errors led officials at the National Security Agency on some occasions to monitor communications entirely within the United States — in apparent violation of the program’s protocols — because communications problems made it difficult to tell initially whether the targets were in the country or not.

    And we the people are supposed to believe the same folks can handle minimization on their own?

    I’ve got some oceanfront property to sell ya in Phoenix. *g*

  5. cboldt says:

    And I’d use the more direct “lie” word, rather than “misrepresent,” for this nugget in President Bush’s radio address:

    At midnight, the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad.

      • JTMinIA says:

        My favorite part of the WH’s argument is that the House bill is no good because the Preznit won’t sign it. Defining “good” as “what the Preznit will sign” is brilliant. It’s brilliant in part because the M$M and Lum day la Roo buys it.

    • skdadl says:

      “Stripped at midnight …” Somebody could work with that.

      I don’t mean to be disrespectful, but if the WH is going to lie, then people are going to make jokes.

  6. JohnLopresti says:

    re trending@19, I appreciate the framing of the secret court process in proposed law as somewhat adrift. At least, characterizing those views this way provides an added method for interpreting the tentativeness in the partial carte blanche MSloan’s outfit received in the DC court February 11, 2008 opinion there 6pp. Stretching considerably afieldOT, in a possibly related thrust, I thought what happened with the steroids hearing was Waxman assigned a subcommittee a subset of the originally planned hearing on executive agency 400+ discrete and sequenced days’ lost backups of emails which my notes had pegged to occur February 15; see some of the formal statements at the February 14 hearing the subcommittee held there; but also evidently February 28 is the new time for that Waxman hearing oversight and government reform.

  7. CTuttle says:

    I love it when the truth comes out…

    NPR: Mr. McConnell, the Bush administration says that if the Protect America Act isn’t made permanent, it will tie your hands, intelligence hands, especially when it comes to new threats. But isn’t it true that any surveillance underway does not expire, even if this law isn’t renewed by tomorrow?

    MCCONNELL: Well, Renee it’s a very complex issue. It’s true that some of the authorities would carry over to the period they were established for one year. That would put us into the August, September time-frame. However, that’s not the real issue. The issue is liability protection for the private sector.

    • PetePierce says:

      The issue is liability protection for the Telcoms and Comcoms and another area–”ass protection” for the complicit attorneys at DOJ, NSA, DIA, and former attorneys from those agencies who are general counsel of the Telcoms and Comcoms and Cheney’s staff, Addington’s staff, Gonzales’ WH staff, Miers’ staff, and now Fielding’s staff.

  8. freepatriot says:

    this is off-topic, but it’s TOO FUNNY to let slide

    remember a few days back, when ew did a post about Obama appearing at a GM plant in Michigan ??? ew was wondering why Obama was in Michigan, then we learned it was actually in Wisconsin ???

    well, at least ew knew Obama was appearing in a GM Plant:

    Summary: Responding to Chris Matthews’ question, “[W]ill Barack Obama’s oratorical ability on the lectern in front of big rooms continue to be his winning edge?” The New York Times’ David Brooks said: “Yes, but he’s got to get away from colleges. Go visit a factory for once.” In fact, Obama delivered what his campaign called a “major economic policy address” at a Wisconsin General Motors factory a few days before Brooks made his comment.

    way to go BoBo

    oh, and ew, sorry bout that “Emily Litella” quip …

  9. jackie says:

    This is just odd and the returned wallet etc bit is just well odd.

    ‘It is understood Mr Raynor vanished as his girlfriend was looking for a taxi.

    She was unable to reach him on his mobile phone and later contacted police after he did not return to their hotel.

    An elderly couple later returned Mr Raynor’s mobile, wallet and room key to the hotel. It is not known where they were found.’…..249901.stm

  10. pseudonymousinnc says:

    Reading Charlie Savage’s piece on Declassification Dick’s attitude towards FISA really does make me wonder if the Bush admin would have liked the chance to take FISA’s constitutionality to court. Probably not: the OLC makes the laws that the executive follows, and Congress makes laws for the rest of us.

  11. freepatriot says:

    hey, bobo did one better today

    get this

    the repuglitards are the party of “real world responsibility”

    Republicans tend to think of themselves as the governing party — with some of the arrogance and narrowness that implies, but also with a sense of real-world responsibility

    bobo and the repuglitards don’t even live in the real world, how could they be the party of “real world responsibility”

    does ANYBODY buy this upside down shit anymore ???

    read the rest of his column, it’s a real hoot

    hey bobo, I like to think of myself as SUPERMAN. don’t mean I can fly though

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