What Secrets Are the Spooks Telling HJC about Section 702?

There’s a paper that has been making waves, claiming it has found a formula to debunk conspiracies based on the likelihood if they were real, they would have already been leaked. Never mind that people have already found fault with the math, the study has another glaring flaw. It treats the PRISM program — and not, say, the phone dragnet — as one of its “true” unknown conspiracies.

PRISM — one part of the surveillance program authorized by Section 702 of the FISA Amendments Act — was remarkable in that it was legislated in public. There are certainly parts of Section 702 that were not widely known, such as the details about the “upstream” collection from telecom switches, but even that got explained to us back in 2006 by Mark Klein. There are even details of how the PRISM collection worked — its reliance on network mapping, the full list of participants. There are details that were exposed, such as that the government was doing back door searches on content collected under it, but even those were logical guesses based on the public record of the legislative debates.

Which is why it is so remarkable that — as I noted here and here — House Judiciary Committee Chair Bob Goodlatte has scheduled a classified hearing to cover the program that has been the subject of open hearings going back to at least 2008.

The hearing is taking place as we speak with the following witnesses.

  • Mr. Robert S. Litt
    General Counsel
    Office of the Director of National Intelligence
  • Mr. Jon Darby
    Deputy Director for Analysis and Production, Signals Intelligence Directorate
    National Security Agency
  • Mr. Stuart J. Evans
    Deputy Assistant Attorney General for Intelligence, National Security Division
    U.S. Department of Justice
  • Mr. Michael B. Steinbach
    Assistant Director for Counterterrorism
    Federal Bureau of Investigation

This suggests there is either something about the program we don’t already know, or that the government is asking for changes to the program that would extend beyond the basic concept of spying on foreigners in the US using US provider help.

I guess we’re stuck wildarseguessing what those big new secrets are, given the Intelligence Community’s newfound secrecy about this program.

Some observations about the witnesses. First, between Litt and Evans, these are the lawyers that would oversee the yearly certification applications to FISC. That suggests the government may, in fact, be asking for new authorities or new interpretations of authorities.

Darby would be in charge of the technical side of this program. Since the PRISM as it currently exists is so (technologically) simple, that suggests the new secrets may involve a new application of what the government will request from providers. This might be an expansion of upstream, possibly to bring it closer to XKeyscore deployment overseas, possibly to better exploit Tor. Remember, too, that under USA Freedom Act, Congress authorized the use of data collected improperly, provided that it adheres to the new minimization procedures imposed by the FISC. This was almost certainly another upstream collection, which means there’s likely to be some exotic new upstream application that has caused the government some problems of late.

Note that the sole FBI witness oversees counterterrorism, not cybersecurity. That’s interesting because it would support my suspicions that the government is achieving its cybersecurity collection via other means now. But also that any new programs may be under the counterterrorism function. Remember, the NatSec bosses, including Jim Comey, just went to Silicon Valley to ask for help applying algorithms to identify terrorism content. Remember, too, that such applications would have been useless to prevent the San Bernardino attack if they were focused on the public social media content. So it may be that NSA and FBI want to apply algorithms identifying radicalizers to private content.

Finally, and critically, remember the Apple debate. In a public court case, Apple and the FBI are fighting over whether Apple can be required to decrypt its customers’ smart device communications. The government has argued this is within the legal notion of “assistance to law enforcement.” Apple disagrees. I think it quite possible that the FBI would try to ask for decryption help to be included under the definition of “assistance” under Section 702. Significantly, these witnesses are generally those (including Bob Litt and FBI counterterrorism) who would champion such an interpretation.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

1 reply
  1. martin says:

    quote”Significantly, these witnesses are generally those (including Bob Litt and FBI counterterrorism) who would champion such an interpretation.”unquote

    Champion indeed. If all these good little Totalitarianism-R-Us scumbags had their way the thought police of the Surveillance State Stazi would be everywhere and anywhere making sure you don’t read anything not approved by the State regardless if it isn’t on the internet…er…. wait..I forgot..

    http://observer.com/2016/02/the-fbi-and-nypd-interrogated-me-for-reading-an-article-about-isis/

    Orwell would go into shock. Anyone who thinks the government of this country is still bound by the Constitution is a certifiable idiot.

Comments are closed.