Shell Games: How to Keep Doing Internet Data Mining and Avoid the Courts

As I noted, the WaPo makes it clear one of the most sensitive parts of the government’s surveillance programs is the collection of Internet metadata.

But the thing is, it doesn’t come out and explain whether and if so how it continues to go on.

This passage, written in the present tense, sure seems to suggest it continues.

MARINA and the collection tools that feed it are probably the least known of the NSA’s domestic operations, even among experts who follow the subject closely. Yet they probably capture information about more American citizens than any other, because the volume of e-mail, chats and other Internet communications far exceeds the volume of standard telephone calls.

The NSA calls Internet metadata “digital network information.” Sophisticated analysis of those records can reveal unknown associates of known terrorism suspects. Depending on the methods applied, it can also expose medical conditions, political or religious affiliations, confidential business negotiations and extramarital affairs.

What permits the former and prevents the latter is a complex set of policies that the public is not permitted to see. “You could do analyses that give you more information, but the law and procedures don’t allow that,” a senior U.S. intelligence lawyer said.

Yet buried in the last paragraphs of the story, WaPo’s sources suggest “the NSA is no longer doing it.” Or — as elaborated — doing “it” under the guise of and with the oversight of the FISA court.

As for bulk collection of Internet metadata, the question that triggered the crisis of 2004, another official said the NSA is no longer doing it. When pressed on that question, he said he was speaking only of collections under authority of the surveillance court.

“I’m not going to say we’re not collecting any Internet metadata,” he added. “We’re not using this program and these kinds of accesses to collect Internet metadata in bulk.”

I keep saying this: sources on this story are trying hard to get us to focus on a few programs managed by FBI and NSA under two particular provisions of law that happen to have (secret, limited) court oversight, Section 215 of the PATRIOT Act and the FISA Amendments Act. But that leaves out several other likely candidates to conduct such intelligence analysis, notably the NCTC. And it leaves out other potential sources of collection, such as cybersecurity in the name of self-defense.

8 replies
  1. Citizen92 says:

    In the case of VOIP calls, any chance the government could be classifying the content as “digital network information” as well, thereby placing it in a different control category? VOIP like all data (and unlike wireline calls) transmits in packets that are disassembled at point of transmission and reassembled at point of receipt (the intended caller). If someone other than the caller or recipient is the “man in the middle” collecting data packets (and reassembling them on their own) is that a “call” or is it just “digital network information.”

    Also recalling a recent story that said Greenwald and Snowden (at Snowden’s direction) set up secure communications before beginning their dialogue. Does the spying infrastructure largely rely on the fact that Google, Yahoo and other medium and users do not use encryption? There was some kerfluffle late in the 90’s about the USG needing access to all encryption keys. Don’t remember how that played out.

  2. Snoopdido says:

    I too am intrigued by the last quote in Gellman’s piece. I’m still in a quandary as to what it means since the quoted senior intelligence official was quite obviously tap-dancing around the issue of bulk collection of Internet metadata.

    The one thing that does seem clear is the US government still does it, but just as you say Emptywheel not under the cover of the FISA court or the Patriot act.

  3. orionATL says:

    As i watch the united states government’s spying activities broaden and then broaden again before my eyes, i keep wondering

    What kind of individuals could lead or allow such activities?

    What obsession, what tunnel vision could lead those responsible for these spying activities to ignore obvious legal or moral concerns about their own activities?

    What abandonment of architectural and oversight responsibilities, not to mention simple citizenship responsibilities, could lead u.s. military leaders, presidents, ministers, congresspeople, judges, government security bureaucrats, corporate bureaucrats, and political party operatives to sanction these spying activities?

    What dishonesty could lead this same sorry group of american leaders to then construct a maze of lies with which to hide the spying programs from their knowlegable critics and from the american people?

    What defective personal concepts of leadership could allow a president, an attorney general, an fbi director, military military generals, and cia security bureaucrats to conduct a war of court terrorism against govt employees, reporters and citizens who saw misconduct and overreaching in the military-paramilitary spying organizations and publicized it?

    The interlocking directorate of individual american leaders supporting spying-for-security in america has created a social system, a social spying system, that is pathological in the same totalitarian way as those social structures created by the national socialist party in germany or the communist party in the old ussr.

    That this nation with its proud constitutional history could have fallen prey to these follies and created these nsa, fbi, cia, u.s. military social-structures-for-spying – on every single individual in the united states – in a mere decade is a cautionary tale of greatest importance for all of us on the planet.

  4. lefty665 says:

    The focus is backwards, not prospective.

    When Beef Hollow Rd. lights up, it will have capacity for all data, meta or otherwise. It is a yottabyte of high speed searchable storage. Staffing there (150-200 for 1,500,000 square feet) is clearly maintenance, not analysis. That will be done offsite by anyone granted access. Could that include NSA, CIA, FBI, NCTC, DIA, DoJ…? Might it drill right down to your friendly state fusion center and the local cop on his cruiser pc when you get pulled for speeding?

    General Keith has said he envisions a time when NSA will have to take control of the domestic web. The plans are clearly in place. What makes anyone think that is not functionally happening now?

    How long before the press begins to explore where we are headed? Total Information Awareness metastasizes totally.

  5. lefty665 says:

    @orionATL: “As i watch the united states government’s spying activities broaden and then broaden again before my eyes…”

    The activities have not broadened, it’s just the splash in the headlines. The activities broadened when NSA changed its focus to pointing inward, apparently in 2002. Since then the hints and clues about what was happening have all been there, just not writ large until now.

    We owe Holder a huge debt for clumsy overstepping and abusing the presstitutes to the point they re-evolved backbones. We may actually learn something from the ensuing feeding frenzy.

    ps nice new keyboard. i like the caps. makes it a lot more pleasant to read:)

  6. der says:

    Unless Google, Yahoo, et al are given the keys to the secret lock box NSA put on their equipment no one will be able to know even with the toughest oversight Congress can think up (cough). If fed/state employees are prohibited by congress from snooping then General Keith will move it off site using black ops money, Booz, Allen and Wackenhut.

    Chris Hedges says it’s all of a plan, with the coming climate catastrophe the elites will need to know who wants to drink their milkshake and how to stock the moat.

  7. emptywheel says:

    @Citizen92: I think Google does use encryption now, which is why they have to get info from Google.

    But somewhere in all this, it makes it clear that Skype came in w/MSFT, which may be why they came in before the other Internet providers.

    I think now they’re data, as you explain, but who knows how they were?

  8. Saul Tannenbaum says:

    @emptywheel: When you’re talking about encryption, for each of the big players, you need to qualify which service you’re talking about and whether encryption is the default or just an option.

    (Unsolicited plug: Get the EFF’s HTTPS Everywhere browser extension to make sure you’re encrypting everywhere it’s possible. )

    Government key escrow was a dead issue shortly after the notion was introduced. And the sort of encryption Snowden/Greenwald set up is end-to-end encryption. When your connection to Google is encrypted, your message is protected in transit, but is in the clear at your end and at Google’s end. End-to-end encryption leaves it encrypted at your end and at Google’s end. The technology exists to do that, but it has never taken off for a variety of fairly valid reasons.

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