Coats v. Wyden, the Orwellian Reclassification Edition

Back on June 7, Ron Wyden asked a question similar to the one he asked James Clapper in 2013: “Can the government use FISA 702 to collect communications it knows are entirely domestic?” As Clapper did 4 years before ,Coats denied that it could. “Not to my knowledge. It would be against the law.”

The claim was particularly problematic, given that less than two months earlier, Coats had signed a Section 702 certificate that admitted that the NSA would acquire entirely domestic communications via upstream collection.

When I asked ODNI about Coats’ comment, they responded by citing FISA.

Section 702(b)(4) plainly states we “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.” The DNI interpreted Senator Wyden’s question to ask about this provision and answered accordingly.

On June 15, Wyden — as he had in 2013 — insisted that Coats answer the question he asked, not the one that made for easy public assurances.

That was not my question. Please provide a public response to my question, as asked at the June 7, 2017 hearing.

After Wyden asked a few more times — again, as happened in 2013 — Coats provided a classified response on July 24. On September 1, however, Coats wrote Wyden stating that,

After consulting with the relevant intelligence agencies, I concluded that releasing the information you are asking to be made public would cause serious damage to national security. To that end, I provided you a comprehensive classified response to your question on July 24.

[snip]

While I recognize your goal of an unclassified response, given the need to include classified information to fully address your question, the classified response provided on July 24 stands as our response on this matter.”

Wyden is … unsatisfied … with this response.

It is hard to view Director Coats’ behavior as anything other than an effort to keep Americans in the dark about government surveillance. I asked him a simple, yes-or-no question: Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

What happened was almost Orwellian. I asked a question in an open hearing. No one objected to the question at the time. Director Coats answered the question. His answer was not classified. Then, after the fact, his press office told reporters, in effect, Director Coats was answering a different question.

I have asked Director Coats repeatedly to answer the question I actually asked. But now he claims answering the question would be classified, and do serious damage to national security.

The refusal of the DNI to answer this simple yes-no question should set off alarms. How can Congress reauthorize this surveillance when the administration is playing games with basic questions about this program?

This is on top of the administration’s recent refusal even to estimate how many Americans’ communications are swept up under this program.

The Trump administration appears to have calculated that hiding from Americans basic information relevant to their privacy is the easiest way to renew this expansive surveillance authority. The executive branch is rejecting a fundamental principle of oversight by refusing to answer a direct question, and saying that Americans don’t deserve to know when and how the government watches them.

Significantly, in the midst of this back-and-forth about targeting, Wyden and Coats were engaged in a parallel back-and-forth about counting how many US persons are impacted by Section 702. In a letter sent to Coats on August 3, Wyden suggested that it might be easier for NSA to count how many people located in the US are affected by Section 702.

First, whatever challenges there may be arriving at an estimate of U.S. persons whose communications have been collected under Section 702, those challenges may not apply equally to persons located in the United States. I believe that the impact of Section 702 on persons inside the United States would constitute a “relevant metric,” and that your conclusion that an estimate can and should be revisited on that basis.

So effectively, Coats is willing to say publicly that the NSA can’t knowingly target entirely domestic communications, but it does knowingly collect entirely domestic communications. But he’s unwilling to explain how or why it continues to do so in the wake of ending “about” collection.

And in the middle of Coats’ non-admission, Wyden challenged him to come up with a count of how many people in America are affected by Section 702, which would presumably include those incidentally collected because they were communicated with a target, but also these entirely domestic communications that Coats admits exist but won’t explain.

I’ll try to explain in a follow-up what I think this is about.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

10 replies
  1. Rugger9 says:

    One of the things that disappoints me about the Obama administration is that he had the opportunity to restore Constitutional norms he was well aware of (as a con law professor) and failed to do so.  So, the government overreach that was fast-tracked by Darth Cheney of the Shrub Administration is now in the hands of Caesar Disgustus (who can almost be guaranteed to abuse the constitutional process) because of the failure by Obama to rein the so-called “Deep State” in.  Does anyone really think that any part of this administration would show any scruples about violating the 4th Amendment if they thought it would keep Caesar in power?

    So, on the previous thread, the question about trust was raised, and for a reason.  It still applies here.  Until we the people have clear and independent evidence to the contrary we should presume that we are being watched and act accordingly.

  2. Peterr says:

    Wyden is not asking about sources and methods — he’s asking about the law. “Does the law allow X or not?” If Coates is saying that the answer must be classified, then he’s saying we have Secret Law in the US, about which the makers of the law cannot speak.

    Back in the day, things ended poorly for those pushing this kind of power over our legislators. With only a few tweaks, some of the somewhat famous words from back then ring suspiciously strongly today, which bodes not well for King Daniel and his minions:

    He has kept among us, in times of peace, Standing Armies of Intelligence Officers without the Consent of our legislatures.

    He has affected to render the Military Intelligence Community independent of and superior to the Civil Power. . . .

    He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: . . . For suspending ignoring our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

    But hey — Coates doesn’t kneel down when the national anthem is played before a football game, so it’s all good, right?

    • earlofhuntingdon says:

      Coats is also saying his agency is willfully violating the law, but will only do so in a secure communication, with a woefully inadequate justification attached, and then dare a congresscritter to violate the law by spilling the beans.  What could be wrong with that picture?

  3. SpaceLifeForm says:

    OT? (likely related): SS7 yet again

    Senator Wyden wants some answers.

    http://www.thedailybeast.com/senator-demands-answers-from-telecom-giants-on-phone-spying

    Wyden sent letters to the CEOs of T-Mobile U.S., Sprint, Verizon, and AT&T. Wyden’s office shared copies of the letters with The Daily Beast.

    “As such, the continued existence of these vulnerabilities and the ease with which they can be exploited by hackers and foreign governments poses a serious threat to U.S. national and economic security,” the letters read.

    The Oregon Democrat asks the telecoms whether they have retained any outside security experts to conduct SS7-focused penetration tests of their networks; whether the companies have refused to give the Department of Homeland Security (DHS) permission to conduct their own tests on the telecoms’ network security; and whether they have installed a so-called SS7 firewall that may protect against some SS7 exploitation techniques. Wyden gave the companies a deadline of Oct. 13 to answer his questions.

    [I am becoming more convinced that tcp handshake metadata is being fed into SS7. Which then can provide terminology cover]

    [I.E. SS7 *is* ‘”UPSTREAM”]

  4. greengiant says:

    Pretty funny how much other actors know but is never to be revealed to US public.  Besides SS7,  go back to NSA tapping in ports of entry locations.  Why would the NSA “filter” the data on site when it was cheaper to just forward the entire bandwidth to the data farm?  That which is never classified is never revealed by declassification nor by classification trails,  only revealed when it is CIA malware that has to be unclassified to use.  Just add the google malware check on every web link used and the DNS lookup data as used in the “Trump Tower” or Cendyn server fluffer.

    • SpaceLifeForm says:

      Why would the NSA “filter” the data on site when it was cheaper to just forward the entire bandwidth to the data farm?

      Besides bandwidth considerations, they would need to control the entire pipe, including routers.

      One reason to filter is to prevent another TLA from possibly discovering an op.

      Say TLA1 has an op going on targeting Target A. And Target A is a suspected spy/mole that allergedly works for TLA2.

      You maybe would want to filter to prevent TLA2 folks from determining that Target A is being watched.

      • SpaceLifeForm says:

        Note splitting and filtering is also a way to block an op. You split, and drop packets that may have went over the normal preferred route, and then filter and then route back onto preferred route.

        An op could be made to appear to be ‘down’, appearing as if the target computer is offline, so it can not reach the C2.

      • greengiant says:

        Just day dreaming,  but it seemed to me that the “release” of the San Francisco tapping configuration seemed a lot less capable than was desired.  The bandwidth considerations became a nothing burger when ATT and others figured out how to use multiple wavelengths? on the same cable which made the first generation(s) of cable layers quite a bit overbuilt. [ which may be part of the level3/USWest/Nacchio background USWest node replacement?] For the overseas vacuum to work, well they tapped at every inter-Tie/port of entry.  Do you think they waited for the photons to leave the US before tapping?  Same for 50 years ago on wire traffic and that window less building in NYC.  To get the US vacuum to work,  they just force the routes through the tap points.  In my work of fiction which Snowden evidently agrees with,  everything is sucked down.  The logic in the old days would have been if the Russkies’ boats or embassies could get the signal,  then the NSA might as well pull it in too.

  5. Rugger9 says:

    OT for the main point of the linked article, but it points out what NSA collections can do: create more problems for Trump, Bannon, Kushner and Flynn.

    So, it appears that there was an operation by the UAE in mid December to undermine Obama’s short-timer presidency with the willing participation of Caesar and the chief minions at the time. Erik Prince also had his Seychelles meeting (I think that’s the one this article refers to) to work another angle around this time as well.

    Lefty can explain to us why this is not a gross violation of his oath by Flynn, as well as his obligation as a flag officer (they don’t retire like the rest of us do) to obey the commands of his superior officer, President Obama. This is another example of what I think will eventually lead to the proverbial smoking gun on Flynn and the rest. Did money change hands? What commitments were made?

    Also, I do not think Jared has a prayer now to solve the Mideast peace question since a meeting like this clearly marks him as Bibi’s partisan, which was unfortunately reinforced by Jared’s reported conduct in the visit he made earlier this year to Israel. FWIW, my solution is the 1967 border two-state solution that was agreed to in Oslo, and that Jerusalem is made into an open city like Trieste was during the Cold War. If it is God’s city (all three faiths say so) then let God own it.

    If one wants an efficient administrative operation free of conflicts of interest, have India run it.

    https://www.juancole.com/2017/09/vindicated-unmask-meeting.html

  6. GKJames says:

    Why would Senator Wyden not simply say, “The government’s obtuse responses justify the reasonable inference — an inference to be used as the basis for action by the Committee in its oversight responsibilities — that the government does use FISA Act Section 702 to collect communications it knows to be entirely domestic”.

Comments are closed.