Section 215 Dragnet: Again with the Passive Voice Oversight

The NSA released a more-detailed sheet on the Section 215 dragnet which provides a number of details that are more troubling than what got presented in front of the TV cameras earlier today.

As always, I’m particularly interested in the documentation process. And once again,  unnamed passive-voiced actors do the critical audits.

  • This metadata may be queried only when there is a reasonable suspicion, based on specific and articulated facts, that the identifier that will be used as the basis for the query is associated with specific foreign terrorist organizations.
  • The basis for these queries must be documented in writing in advance.
  • Fewer than two dozen NSA officials may approve such queries.
  • The documented basis for these queries is regularly audited by the Department of Justice

Here’s how the transmission of aggregate numbers of the queries looks.

Every 30 days, the government must file with the Foreign Intelligence Surveillance Court a report describing the implementation of the program, to include a discussion of the application of the Reasonable Articulable Suspicion (RAS) standard, the number of approved queries and the number of instances that query results that contain U.S. person information were shared outside of NSA in any form.

And, in spite of the fact that several people have said all three branches can audit these numbers (as Adam Schiff noted today, the court can’t, because they only get the aggregate numbers), there’s not mention of Congress’ oversight role.

9 replies
  1. What Constitution? says:

    Maybe some congressperson from Missouri could hold up a copy of this series of baldfaced assertions and say “show me”. We’ve been hearing a spiraling but ultimately repetitive “trust us” for quite a while now. Since virtually every verifiable “justification/explanation” that has been offered has been shown to be on shaky grounds, truth-wise, upon closer inspection, how many institutional lies must be endured before a realistic audit is actually undertaken. That will not be a job for the foxes to undertake.

  2. lefty665 says:

    The larger issue is that NSA is now looking inward at US citizens instead of outward at our adversaries. Duhbya illegally changed NSA’s mission. Obama has dressed up the legal rationalization, so now it is all supposed to be hunky dory.

    NSA’s tools focused domestically are just a policy change away from enabling tyranny. The 215 and 702 trees are important, but please do not let them distract from the forest.

    “It is at times like these where our enemies within become almost as damaging as our enemies on the outside,” said committee Chairman Mike Rogers (R-Mich.).”

    The idea that we become “enemies within” by standing for the Constitution and Bill of Rights is itself treason. If Rogers perception prevails, we are lost.

  3. Orestes Ippeau says:

    On the obligation that the FISAA imposes on the NSA to report aggregate numbers to the FISC: A number of other countries in the English-speaking world have laws that require reporting aggregate numbers to their legislatures. Anyone ever involved in an audit would readily recognize that type reporting doesn’t allow for audit; it’s ‘in lieu of’ audit. That aside, I’m unaware of even one single report of any meaningful action undertaken by any of those legislatures based on such reporting; I take that absence to constitute evidence supporting the conclusion that such aggregate reporting renders audits impossible. So much for monthly reporting to the FISC.

    Moreover, as I read the FISAA, it allows the NSA to elect to destroy search-related records (which to me means “queries”, or at least surely would include queries, that either get abandoned completely or substituted for). Obviously, that’s another factor that defeats meaningful audits.

    There’s another animal I’ve seen referred to as a “process audit”, where the audit is NOT performed against any performance standard or actual history. You see these sorts of audits a lot in plant and systems construction. If that’s the sort of review being performed by the DoJ and ODNI, it may be that all that’s getting audited is the currency and history of internal directives against the goals of the FISAA … or at least giving off the appearance. Obviously, there are big practical limits on this sort of audit catching abuses.

    Moreover, I’m sure I’m not alone in having found that, more often than not, the biggest fish caught in audits are those management wasn’t aware of — willfully or otherwise. Process audits don’t even aim to pick up performance abuses, and proper ones don’t pretend to.

    But that’s what Congress made and two presidents signed: pointless reporting to the FISC that can’t substitute for audit, process audits to DoJ and ONDI that have no reference to actual performance, and a combination of classified bullshit and public posturing to Congress.

  4. Greg Bean (@GregLBean) says:

    At some stage this whole thing has to be flipped on its head.

    With such a corrupt Administration and corrupted processes one has to ask when the audit will be removed from them and made available to the people.

    The only valid audit is when an individual can apply for a complete record of all information the Government holds on that individual.

    Then and only then will the Government be held accountable.

    While this seems radical, it is not. When an individual is accused of a crime he is presented with all evidence against him, and asked to defend himself.

    Should the Government not be held to this basic standard? Show the evidence and all surveillance and permit individuals to defend themselves against these details.

    That is justice as I understand it.

    When individuals have access to the detail collected by the state, then and only then is justice available.

  5. GKJames says:

    Do committee members have available to them people with the legal and technical expertise to parse government assertions, so that members can question witnesses effectively?

  6. Art says:

    Has anyone asked if NSA data sweep includes data flowing through Onstar or other auto systems?

  7. Orestes Ippeau says:

    @GKJames: It’s not unusual with committee staff. But that doesn’t mean those folks can, or will, act in any way antagonistic to or skeptical of career government types.

    The business model for PPP has always been institutional capturel democratic government bureaucracies of necessity have to adhere to behavioral constraints that business interests don’t need to, while business interests have an overriding goal that provides an incentive to corrupt.

    Consider the characteristics of someone who’d go work for the U.S. intel community, government or private, in the first place, survive and thrive well enough in that bureaucratic setting to get a rep on the Hill, then choose to go work for a congressional rep or committee staff. If they’d ever had a skeptical bone, it’d atrophy or be excised.

  8. What Constitution? says:

    @Orestes Ippeau: and @GKJames and @Greg Bean: Agree completely that the structure of existing operations is designed not to be “audited” in any meaningful sense, that correcting this feature (it’s not a bug) is imperative and that the results of a realistic assessment must be knowable. Attention to how to get there is needed. Nothing better demonstrates this than the very title of the Booz Allen-sponsored “‘informational’ kabuki” yesterday, unless maybe it’s the President’s speech itself. I’m not advocating the creation of a Warren Commission of all-star apologists, but for a blue ribbon inquiry consisting also of people with at least a cross-section of opinion, and given full access to report back on what is being done and an independent assessment about whether what is being done is consistent with the Constitution first, and with the actual scope of laws enacted which may be considered constitutional as written but where the implementation is not. What we’re seeing now is a great focus of attention, unprecedented in its sweep in the post-9/11 environment — carrying this forward to the next step of public understanding and rectification of errors is what needs to happen and is also exactly what yesterday’s Booz Allen-style obfuscations is being mounted to avoid.

  9. lefty665 says:

    @Art: We never have any expectation of privacy for communications that are wirelessly transmitted. The Federal Communications Act of 1934 established that. If you do not want someone to listen to you, do not transmit the information to them. That also goes to NSA’s collection of cellular voice or data. It is legally theirs with no need to resort to court orders.

    Please also be aware that many cars, even without Onstar or the equivalent, have cellular/satellite communication capabilities. Not only your phone, but your car can easily be turned into a brick or a bug.

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