Dragnet FOIA, Hiding the Dragnet Numbers and Providers from Congress

Unrelated, but Rosemary Collyer threw out the Awlaki wrongful death suit, meaning the government can kill its own citizens (including the innocent 16-year olds) with no due process with impunity. I’ll write about this ruling later. 

Last Saturday, I did a post on the three releases I Con the Record released as a Friday night document dump. It turns out ODNI also released an unintentionally revealing declaration that helps explain those and a number of other documents.

In this post I’ll provide some general comments about what the declaration says. In a follow-up post, I’ll describe that the declaration suggests about Verizon’s foreign record problems and a correlation function that permits matching burner cells and so much more.

As far as last week’s documents:

  • The single solitary new thing unclassified in the March 2, 2009 order is to disclose the words “those providers” on the first page. DOJ, it seems, believed not only that there were multiple providers was secret, but was ignorant of the many details already declassified that make that clear.
  • The only new things in the June 22, 2009 order — besides combining the Internet and phone version that had been previously released — were the paltry number of reports issued from the Internet dragnet (117) on page 3 and the phrase “high volume” selector which I talk about incessantly. ODNI claims it was an administrative error to release the document in two versions previously; I suspect it was an even bigger screw-up, especially given that DOJ admits it is trying to hide the Internet dragnet dates from us for reasons that don’t stand up to scrutiny.
  • The BR 10-82 financial order that makes up the bulk of the description apparently applied only to an FBI investigation of a specific counterterrorism target which is still on-going. The declaration describes the scope of this being super secret, so even though this is presumably not everyone’s credit card records, it may well be a lot of people’s. And the reason we got it is because the supplemental order was a significant legal interpretation, one they can of course use over and over now. I will return to this one at a future date.

In addition to these details, this document reveals that the government is hiding the dragnet numbers and providers from Congress.

EFF and ACLU FOIAed DOJ, not NSA for these documents. As a result, a lot of the documents in their possession either probably had personal notes (those are reflected in the Vaughn Index, not this declaration) or were the redacted version provided to Congress under FAA. Interestingly, those documents for Congress came pre-redacted (potentially meaning not even the National Security Division technically has the original information). And just two things get redacted: the numbers showing the scale of the dragnet, and the provider names.

Hiding the dragnet numbers from Congress is particularly interesting, because it would explain why some people (like Richard Blumenthal) claim to have just learned the “fact” that NSA only collects about 30% of the call data in the US. But it also means the NSA can hide the true scale of how the dragnet gets apportioned around different authorities.


10 replies
    • Garrett says:

      Kiss Bivens good bye.

      Although litigants may not often choose to seek relief, it is important, in a civilized society, that the judicial branch of the Nation’s government stand ready to afford a remedy in these circumstances.

      Bivens v. Six Unknown Named Agents, Burger C.J.

      The implied right to a remedy, in a case about a warrantless search, won’t be applied to a case about blowing you away with a Hellfire missile. Or locking you up in a military prison, with all the standard U.S. torture techniques, for that matter.

      We need to protect the right against easy and frivolous use. So killing and torture don’t count, about where our civilized society should draw the line.

  1. Snoopdido says:

    On page 19 of the Hudson Declaration, she explicitly admits that there are telecommunication providers that aren’t “subject to the FISC orders”.

    I don’t take that as an admission that the NSA is NOT obtaining call records from those telecommunication providers that are “not covered” by FISC orders, but that the NSA may be acquiring those call records outside of FISC orders.

    • Snoopdido says:

      On page 24 of the Hudson Declaration, she explicitly admits that the:
      “NSA obtains bulk call detail records from multiple telecommunication service providers…and refers to the FBI information…that the NSA concludes have counterterrorism value, typically information about communications between known or suspected terrorist operatives and persons located with the United States.”
      The important admission as I see it is that the primary NSA target for collection is not focused on foreign targets, but domestic targets.
      Isn’t that the very definition of “reverse targeting” which the US government claims it doesn’t do?
      Unless of course you re-define “reverse targeting”.

    • emptywheel says:

      There were only 3 providers, probably at any given time. They get the rest of them via the backbone providers (largely AT&T and Verizon).

      • Snoopdido says:

        I agree. I wonder if those existing providers give up all the SS7 data that flows through their switches voluntarily without the requirement of a FISC order, and in that fashion, allows the NSA to claim it only gets +/-30% of call detail records under 215 program all the while getting almost all call detail data via other means.

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