Did Anthony Coppolino Fib about NSA’s New Architecture?

On Tuesday, EFF told the tale of yet another government freak-out over purportedly classified information. The DOJ lawyer litigating their multiple dragnet challenges, Anthony Coppolino, accidentally uttered classified information in a hearing in June. So the government tried to take the classified information out of the transcript without admitting they did so. After Judge Jeffrey White let EFF have a say about all this, the government ultimately decided the information wasn’t classified after all. So the Court finally released the transcript.

My wildarseguess is that this is the passage in question:

Judge Bates never ultimately held that the acquisition violated the Constitution. The problem in that case was the minimization procedures were not sufficient to protect the Fourth Amendment interests of the people of the United States.

And so he ordered that they be changed, and they were changed. And he approved them. And in addition, in the process of not only approving the minimization procedures, NSA implemented new system architecture that did a better job at assuring that those communications were minimized and ultimately destroyed, which is the goal here. It’s part of the statutory framework not to collect on U.S. citizens and when you’ve incidentally done it, destroy it. [my emphasis]

According to the John Bates opinions relating to this incident, the NSA implemented a new system of ingesting this data, marking it, checking it before it gets moved into the general repository of data, and purging it if it includes entirely domestic commuincations. But does that count as new architecture? I’m not sure.

Meanwhile, the NSA has been upgrading their architecture. We learned that (among other places) in the most recent Theresa Shea declaration on NSA systems in EFF’s Jewel case. It doesn’t mention new architecture pertaining to  upstream  702, though she does discuss a more general architecture upgrade and how it affects Section 215 specifically.

Then there’s this language, addressing the NSA’s inability to filter US person data reliably, from PCLOB.

The NSA’s acquisition of MCTs is a function of the collection devices it has designed. Based on government representations, the FISC has stated that the “NSA’s upstream Internet collection devices are generally incapable of distinguishing between transactions containing only a single discrete communication to, from, or about a tasked selector and transactions containing multiple discrete communications, not all of which are to, from, or about a tasked selector.”155 While some distinction between SCTs and MCTs can be made with respect to some communications in conducting acquisition, the government has not been able to design a filter that would acquire only the single discrete communications within transactions that contain a Section 702 selector. This is due to the constant changes in the protocols used by Internet service providers and the services provided.156 If time were frozen and the NSA built the perfect filter to acquire only single, discrete communications, that filter would be out-of-date as soon as time was restarted and a protocol changed, a new service or function was offered, or a user changed his or her settings to interact with the Internet in a different way. Conducting upstream Internet acquisition will therefore continue to result in the acquisition of some communications that are unrelated to the intended targets.

The fact that the NSA acquires Internet communications through the acquisition of Internet transactions, be they SCTs or MCTs, has implications for the technical measures, such as IP filters, that the NSA employs to prevent the intentional acquisition of wholly domestic communications. With respect to SCTs, wholly domestic communications that are routed via a foreign server for any reason are susceptible to Section 702 acquisition if the SCT contains a Section 702 tasked selector.157 With respect to MCTs, wholly domestic communications also may be embedded within Internet transactions that also contain foreign communications with a Section 702 target. The NSA’s technical means for filtering domestic communications cannot currently discover and prevent the acquisition of such MCTs.158 

The footnotes in this section all cite to John Bates’ 2011 opinion (including, probably, some language that remains redacted in the public copy, such as on page 47). So we might presume it is out of date.  Except that PCLOB has done independent work on these issues and the end of the first paragraph includes language not sourced at all.

That is, PCLOB seems to think there remain technical problems with sorting out US person data, the filtering problem cannot be solved. (Which makes the ridiculous John Bates more skeptical on this point than PCLOB.)

So do the data segregation techniques implemented in 2011 amount to new architecture? Does the larger architecture upgrade going on going to affect upstream collection in some more meaningful fashion?

I don’t know. One other reason I think this might be the language is because Coppolino was — as he frequently does — running his mouth. Bates did rule the US person data collected before 2011 violated the Fourth Amendment, even if the task before him was solely to judge whether the minimization procedures before him did. More importantly, Bates was quite clear that this US person collection was intentional, not incidental.

So Coppolino was making claims about one of the practices (the PRTT collection is another) that is most likely to help EFF win their suit, upstream collection, which actually does entail domestic wiretapping of US person content. He made a claim that suggested — with the fancy word “architecture” — that NSA had made technical fixes. But PCLOB, at least, doesn’t believe they’ve gotten to the real issue.

Who knows? It’s just a guess. What’s not a guess is that Coppolino seems to recognize upstream 702 presents a real problem in this suit.

image_print
17 replies
  1. Saul Tannenbaum says:

    I clicked through to the Shea declaration and had this astonishing sense of deja vue: I’ve written that declaration myself.

    Now, to be clear, mine was much shorter and was unredacted, but when faced with my organization’s counsel’s request that we retain email for litigation purposes – we were being sued for discrimination and it was in response to opposing counsel’s discovery requests – I was obligated to write a “this is going to be hard and cost a lot of money” memo. Of course, it was hard and costly because, up until then, nobody with budgetary authority listened to requests to fund an archiving system because they thought the notion of email-as-discoverable-evidence was funny.

    To turn this back to the NSA, the subtext of the Shea declaration is that nobody in the NSA ever thought that data retention in support of litigation was a business requirement. That is, at best, extremely naive. Did they really, really think nobody was ever going to find out and sue?

  2. wallace says:

    quote”The DOJ lawyer litigating their multiple dragnet challenges, Anthony Coppolino, accidentally uttered classified information in a hearing in June. So the government tried to take the classified information out of the transcript without admitting they did so. “unquote

    After reading a different article about this event, I immediately came here, guessing you had already seen the news and written a new post. Voila. You don’t disappoint, emptywheel.

    However, this is astounding. Our government, in a bid to keep secrets, tried to have an “alleged” secret, secretly removed from a court record. Shades of the Ministry of Truth notwithstanding..this is so far beyond “rule of law”, it’s almost incomprehensible.

    Here is why. Had the Judge acquiesced to the governments insidious request, a NON-CLASSIFIED statement would have been removed from the court record…and NO ONE would have been the wiser as it is the government itself who decides what and what is not, classified. And, it would have created a precedent, no? In any case, thank god this Judge isn’t a typical USG asslicking lapdog.

    What I don’t understand though is this…
    quote”So the Court finally released the transcript.”unquote

    IF, the government didn’t have a copy of the transcript already, what made them think Coppolino accidentally uttered classified information in a hearing clear back in June. And why, did it take this long to do something like this?

    Furthermore, it would appear, IF that little tidbit of information..ie..
    quote” NSA implemented new system architecture that did a better job at assuring that those communications were minimized and ultimately destroyed”unquote(I assume this is the part in question due to the italics, no?)

    …was so important, I would have thought the EFF would have been all over it.

    However, the mere fact the government tried to pull this off, speaks volumes of our decent into the abyss of tyranny, and the governments willingness to thwart every conceivable usurpation of the Constitution to get there.
    To me, this should have elicited a judges response of such magnitude as to shame the DOJ across the entire planet, notwithstanding lighting their ears on fire.

    What’s not a guess is that Coppolino seems to recognize upstream 702 presents a real problem in this suit.

  3. wallace says:

    oops. Fogot to scratch the last line. So…I’ll address it here.

    quote”What’s not a guess is that Coppolino seems to recognize upstream 702 presents a real problem in this suit.”unquote

    Is that referring to this?:

    quote”The problem in that case was the minimization procedures were not sufficient to protect the Fourth Amendment interests of the people of the United States.”unquote

  4. Bonky Moon says:

    Upstream702.  That’ll be my new handle from now on.

    Upstreaming.  It sounds so wholesome, doesn’t it.

    Your government is sucking down the whole stream of photons from the collective phatpipe, 24/7.  You, the taxpayer, are footing the bill.

    NSA/CIA should have been shamed by the revelations of their malfeasance months ago.  But they have zero interest in modifying their behavior.  They are is toxic & will do us in.

  5. wallace says:

    quote”You, the taxpayer, are footing the bill.”unquote

    shush. whatta ya tryin to do..cause an insurrection?

    meanwhile, the entire DCOTP(tm) will turn in their 1040 come 4/14 next year, happy that the IRS won’t put a bullet thru their head.

  6. wallace says:

    Goddammit emptywheel. I directly asked 3 different questions here, only to hear NOTHING. What am I doing here. Filling your comment section for nothing? If so..I’ll leave it BLANK.

  7. Bill Michtom says:

    SCTs and MCTs are what?

    Could you include the actual words, please, or, perhaps, create a glossary for those of us who haven’t memorized the acronyms yet?

    Thanks.

      • Bill Michtom says:

        That’s a standard source for me. Didn’t find something that looked like it fit. But, thanks.

        • TomVet says:

          I use Acronym Finder daily, it’s great.
          I found MCT nearly at the end of the list. I got 79 returns and it was the 78th.

          MCT Multi-Communication Transaction (US NSA)

          I think the S in SCT is single, although it doesn’t show up in AF.

    • emptywheel says:

      SCTs and MCTs are NSA’s madeup acronyms (single and multiple communication transactions) for the packet-level of data they get when they do upstream collection. The important part is that when you search on strings (alleged to be phone numbers and emails, which it surely includes, but it also includes malware signatures), you get stuff from the US that has been routed overseas. You get domestic collection.

      By distinguishing between the two NSA was only trying to claim the SCTS (that is, packets consisting entirely of US person communications targeted because of their contents) is somehow now the problem when in fact it is absolutely domestic wiretapping.

      • wallace says:

        quote”By distinguishing between the two NSA was only trying to claim the SCTS (that is, packets consisting entirely of US person communications targeted because of their contents) is somehow now the problem when in fact it is absolutely domestic wiretapping.”unquote

        OMG. Really? Color the FISC dumfounded. I’m positive they’ll take the NSA’s word for it though, notwithstanding 11th hour amendments to Freedumb3… TIC speaking of course.

        bartender..make it a double facepalm.

  8. wallace says:

    quote”Could you include the actual words, please, or, perhaps, create a glossary for those of us who haven’t memorized the acronyms yet? “unquote

    I’ve asked too. I even started one myself a few weeks back. Unfortunately, I haven’t kept up at it.
    quote:”I’ve bookmarked http://www.acronymfinder.com/ and find it very useful. (I hope that becomes a link.)”unquote

    Hey, thanks. This is a great resource for twitter regulars too. :) I’ve seen tweets where the entire tweet is one big #acronym. Doesn’t look like you can upload your own though. Here’s a few of mine that I use here regularly…

    AE= Asinine Euphemism
    LTTT=Lying Through Their Teeth
    GMIS=Great Moments in Stupidity
    RSDR=Record Setting Dumb-O-Meter Readings
    OOD= Office of Obfuscation and Doublespeak
    DCOTP(tm)=Dumbest Country On The Planet
    TIC=Tongue In Cheek

    TIC speaking of course.
    :)

  9. What Constitution? says:

    So we have this DOJ lawyer “explaining” that Judge Bates really meant only to be addressing the efficacy of the “protocols” layered over data collected in bulk, and it turns out that Judge Bates himself is taking to writing letters to Congress to complain, in his official capacity as a FISA judge, that we don’t need no steenking “privacy advocates” to go messin’ around in the secret FISA proceedings anyway — because that might mean somebody would be able to present information inconsistent with what the Government wants in that forum.

    Between the two “comments”, it might be nice to have a discussion about how the Supreme Court’s decision in Riley might factor in. That’s the one where the Court just decidedly ruled that the Fourth Amendment remains a functional part of US constitutional law, offering a rather refreshing observation that “the Founders did not fight a revolution over ‘protocols'”. Seems that between Coppolino’s Fib about how wonderfully the protocols to “protect constitutional rights” serve to de-unconstitutionalize unconstitutional bulk collection, on the one hand, and Judge Bates’ suggestion that the FISA judges object to having to consider the input of somebody who might disagree with the DOJ’s stated desires, it’s now a prudent time to engage in revisiting the idea what the FISA court has become and whether its existence is justifiable in our society.

  10. wallace says:

    quote”..it’s now a prudent time to engage in revisiting the idea what the FISA court has become and whether its existence is justifiable in our society.” unquote

    I second the motion, all in favor…say AYE.

    (cricketts)

  11. wallace says:

    quote”SCTs and MCTs are NSA’s madeup acronyms (single and multiple communication transactions)..”unquote

    Latest OOD FISC warrant application acronym encryption ..
    DWT=SCTS

    Not to be confused with =LTTT unless sober.

    bartender..make that a TRE instead.

    New addition to wallace acronym glossary
    DFP= blended liqueur drink called DoubleFacePalm
    TRE= Michigan brewed beer called TwoRollingEyes

Comments are closed.