And Bill Burck thinks American citizens should not know that fact before Kavanaugh gets a lifetime appointment.
Patrick Leahy just had two key interactions with Brett Kavanaugh. In the first, he made it clear that Kavanaugh had received emails that Orrin Hatch staffer Manny Miranda stole from Democrats, including Leahy himself, in 2001 to 2003 during the period Kavanaugh worked at the White House, including on judicial nominations.
In the second, he asked Kavanaugh whether he still stood by his claim not to have been involved in the authorization for Stellar Wind, Bush’s illegal wiretap program. Kavanaugh almost immediately reverted to the dodge that George Bush used when denying he had ignored FISA — referring to just a subset of the program, for which the Bush White House invented the term “Terrorist Surveillance Program.
From the context of Leahy’s questions, it’s clear that Kavanaugh was in the loop on this document, even if he wasn’t on the later documents. Leahy further made it clear that he couldn’t release the underlying documents making this clear because Chuck Grassley had deemed them Committee Confidential.
That’s important for several reasons. First, I’ve been told that the NSA started implementing Stellar Wind in response to a Finding (note, this document has the same date as the Gloves Come Off Memorandum of Notification that, according to Jane Meyer, included surveillance) before the October 4 OLC memo.
I’ve also been told that NSA conducted activities that are broader than what got covered by Yoo’s later memos under that Finding. That would make this Finding parallel to the July 13, 2002 John Yoo Fax under which CIA’s torture operated (which is how CIA claimed stuff that went beyond what was approved in the August 1, 2002 Bybee Memos still had DOJ authorization).
If that’s right, then Kavanaugh may not have been involved in authorizing illegal surveillance targeted at terrorists (and also potential culprits of the anthrax attack). But he would have been involved in authorizing even broader surveillance.
Leahy already asked to have the documents showing Kavanaugh’s involvement in this memo released publicly. He renewed that request today.
This underlying September 17 document has never been released, so we don’t know how extreme John Yoo got. But we may soon have the proof that Kavanaugh was involved in authorizing surveillance that goes beyond the scope of what we know got authorized as the Stellar Wind program.
Update: This story from Charlie Savage makes it clear that Kavanaugh was emailing John Yoo about the precursor to the memos authorizing Stellar Wind.
[I]n September 2001, after the terrorist attacks, Judge Kavanaugh engaged with a Justice Department lawyer about questions of warrantless surveillance at the time that lawyer wrote a memo an inspector general report later portrayed as the precursor to the Bush administration’s warrantless surveillance program.
Update: The email reads:
Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?
Several weeks ago, the government released its yearly transparency reports:
- FISA Court’s report: This provides a very useful description of approvals viewed from the FISA Court’s perspective. While it is the least deceptive report, FISC has only released one full year (2016) and one partial year (2015) report before, so it can’t be used to study trends or history.
- DOJ report: This is the mostly useless report, told from the government’s standpoint, reflecting how many final applications get approved. While it isn’t very useful for nuance, it is the only measure we can use to compare last year with the full history of FISA.
- DNI report: This is the report started in the wake of the Snowden leaks and codified in the USA Freedom Act and last year’s FISA Amendments Act. Parts of this report are very useful, parts are horribly misleading (made worse by new reporting requirements pass in the FAA reauthorization). But it requires more kinds of data than the other two reports.
I’ve been meaning to write more on the transparency reports released some weeks ago (see this post debunking the claim that we can say the FISA Court has rejected more applications than in the past). But given some misunderstandings in this post, I thought it better to lay out some general principles about how to understand what the transparency reports show us.
Consider the full surveillance playing hand
FISA is just one way that the government can collect data used for national security investigations, and because it involves a secret court, it attracts more attention than the many other ways. Worse, it often attracts the focus in isolation from other surveillance methods, meaning even experts fail to consider how authorities work together to provide different parts of the government all the kinds of data they might want. Additionally, an exclusive focus on FISA may blind people to how new restrictions or permissions in one authority may lead to changes in how the government uses another authority.
National security surveillance currently includes at least the following:
- FISA, including individualized orders, 702, and metadata collection
- NSLs, providing some kind of metadata with little (albeit increasing) court oversight
- Criminal investigative methods, collecting content, metadata, and business records; in 2016 this came to include Rule 41 hacking
- Other means to collect business records, such as private sector contractors or mandated bank reporting
- The Cybersecurity Information Sharing Act, permitting the private sector to share cyber data “voluntarily” with the government
- EO 12333: spying conducted overseas under Article II authority; in 2017, the Obama Administration permitted the sharing of raw data within the intelligence community (which includes FBI)
Two examples of how FISA interacts with other authorities may help to demonstrate the importance of considering all these authorities together.
The Internet dragnet moves to PRISM and SPCMA
For virtually the entirety of the time the government collected Internet metadata as metadata domestically, it was breaking the law (because the concepts of metadata and content don’t apply neatly to packet based collection). From 2009 to 2011, the government tried to fake their way through this (in part by playing games with the distinction between collection and access). By the end of 2011, however, that game became legally untenable. Plus, the restrictions the FISA Court imposed on dissemination rules and purpose (NSA was only permitted to collect this data for counterterrorism purposes) made the program less useful. As a result, the government moved the function of chaining on Internet metadata to two different areas: metadata collected under PRISM (which because it was collected as content avoided the legal problems with Internet metadata collection) and metadata collected under EO 12333 and made accessible to analysts under Special Procedures approved in 2008 and extended throughout NSA in early 2011.
Some location collections moves to criminal context
As I’ve laid out, the FISC actually takes notice of rulings in the criminal context — even at the magistrate level — and adjusts FISC rulings accordingly. They’ve done this with both Post Cut Through Dialed Digits and location data. When the FISC adopted a highest common denominator for location collection, it meant that, in jurisdictions where FBI could still obtain location data with a d order, they might do that for national security purposes rather than obtain a PRTT under FISA (to say nothing of the additional paperwork). More recently, we’ve gotten hints that FBI had ways to access cell phones in a national security realm that were unavailable in a criminal realm.
This probably goes on all the time, as FBI Agents make trade offs of secrecy, notice to defendants, paperwork and oversight, and specific collection techniques to pursue national security investigations. We don’t get great numbers for FBI collection in any case, but what we do get will be significantly affected by these granular decisions made in secret.
Understand why surveillance law changes
Additionally, it’s important to understand why surveillance laws get passed.
CISA, for example, came about (among many other reasons) because Congress wouldn’t permit the government to conduct upstream collection using Section 702 for all cybersecurity purposes. Engaging in “voluntary” sharing with backbone providers gave the government data from all kinds of hostile actors (not just nation states), with fewer restrictions on sharing, no court oversight, and no disclosure requirements.
Similarly, to this day, many privacy activists and journalists misunderstand why the government was willing (nay, happy!) to adopt USA Freedom Act. It’s not that the government didn’t collect mobile data. On the contrary, the government had been obtaining cell data from AT&T since 2011, and that was probably a resumption of earlier collection incorporating FISA changed rules on location collection. Nor was it about calling card data; that had been explicitly permitted under the old program. Rather, USAF gave the government the ability to require assistance, just as it can under Section 702. While that was instrumental in getting access to Verizon cell data (which had avoided complying because it did not retain business records in the form that complied with FISA collection rules), that also gave the ability to get certain kinds of data under the “session identifier” definition of call records in the law.
Here’s a post on all the other goodies the government got with USA Freedom Act.
One more important detail virtually unmentioned in coverage of this authority: the 215 dragnet (both the old one and the USAF one) intersect with a far vaster dragnet of metadata collected under 12333. The “bulk” is achieved — and has been since 2009! — using EO 12333 data, data which doesn’t have the same restrictions on things like location data that FISA data does. Section 215 is about getting records (and correlations) that aren’t available overseas, effectively filling in the holes in data collected overseas.
All that is necessary background to understanding numbers that track just FISA (and NSL authorities). FISA is just one part of the always evolving national security collection the government does. And as permissive as a lot of people think FISA is, in many ways it is the most closely regulated part of national security collection.
In a series of questions for the record about whether CIA will continue to publicly post its surveillance procedures, CIA Director nominee Gina Haspel suggested she wouldn’t note changes if doing so would expose sources and methods.
Yes, subject only to my duty to protect classified information and intelligence sources and methods.
One question to which she gave that answer pertained to PPD-28, the Obama directive that provided some protections to foreign citizens.
The CIA’s PPD-28 Section 4 policies and procedures are publicly available. Will you ensure that the CIA continues to post these procedures as well as any modifications, superseding policies and procedures, or significant interpretations?
When Wyden asked about the importance of PPD-28 to bilateral relationships, Haspel explained that the Trump Administration had reviewed and retained it last year (Mike Pompeo had floated ditching it in his confirmation hearing). But in discussions about modifications, she envisioned only substantial modifications might interest allies.
PPD-28 underlies the US commitment to the EU/US Privacy Shield. This administration reviewed PPD-28 last year and decided to retain it. If PPD-28 were substantially modified or eliminated, our European partners might re-evaluate their commitment to the Privacy Shield that support trans-Atlantic commercial data flows.
The answers certainly leave the possibility that, in reviewing PPD-28 last year, the Trump Administration did make classified modifications, but did not consider them major enough to tell our European friends about.
I get it. Trump is making us all crazy. But Chuck “Ethanol flipflop” Grassley and Lindsey “Trump’s best golfing buddy” Graham are going nuts not because of Trump but because of Christopher Steele. They’ve just written a letter to Susan Rice asking her why she emailed herself a letter, memorializing a January 5, 2017 meeting about the Russian hack, just before she left the White House.
In this email to yourself, you purport to document a meeting that had taken place more than two weeks before, on January 5, 2017. You wrote:
On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.
That meeting reportedly included a discussion of the Steele dossier and the FBI’ s investigation of its claims. 1 Your email continued:
President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book. From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.
The next part of your email remains classified. After that, you wrote:
The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.
It strikes us as odd that, among your activities in the final moments on the final day of the Obama administration, you would feel the need to send yourself such an unusual email purporting to document a conversation involving President Obama and his interactions with the FBI regarding the Trump/Russia investigation. In addition, despite your claim that President Obama repeatedly told Mr. Comey to proceed “by the book,” substantial questions have arisen about whether officials at the FBI, as well as at the Justice Department and the State Department, actually did proceed “by the book.”
It pains me that two top Republicans on the Senate Judiciary Committee are too fucking stupid to see that, in fact, the FBI proceeded quite cautiously with the Russia investigation, not inappropriately, as they suggest. It pains me still more that they think this is all about the dossier.
7. During the meeting, did Mr. Comey or Ms. Yates mention potential press coverage of the Steele dossier? If so, what did they say?
8. During the meeting, did Mr. Comey describe the status of the FBI’s relationship with Mr. Steele, or the basis for that status?
9. When and how did you first become-aware of the allegations made by Christopher Steele?
10. When and how did you first become aware that the Clinton Campaign and the Democratic National Committee funded Mr. Steele’s efforts?
It’s certainly possible, given what I laid out here, that DOJ was prepping the second FISA application for Carter Page (though if the reauthorization were dated January 9, the application would have had to have been submitted by January 2).
But there are other reasons why you’d expect to have this meeting on January 5 and why Rice would want a record of it for posterity (the meeting generally probably relates to this story about the way Obama protected information on the investigation in the last days of the Administration).
As reporting on the discovery of Mike Flynn’s conversations about Russian sanctions with Sergey Kislyak make clear, the conversation wasn’t discovered in real time. Rather, after Putin didn’t respond to the December sanctions against Russia, analysts sought to figure out why. Only after that did they discover the conversation and Flynn’s role in it.
For Yates and other officials, concerns about the communications peaked in the days after the Obama administration on Dec. 29 announced measures to punish Russia for what it said was the Kremlin’s interference in the election in an attempt to help Trump.
After the sanctions were rolled out, the Obama administration braced itself for the Russian retaliation. To the surprise of many U.S. officials, Russian President Vladimir Putin announced on Dec. 30 that there would be no response. Trump praised the decision on Twitter.
Intelligence analysts began to search for clues that could help explain Putin’s move. The search turned up Kislyak’s communications, which the FBI routinely monitors, and the phone call in question with Flynn, a retired Army lieutenant general with years of intelligence experience.
So it would be right around this time when law enforcement concerns about the incoming National Security Advisor would have arisen.
Update: This story confirms that the January 5 meeting was partly about the Flynn phone call.
On Jan. 5, FBI Director James B. Comey, CIA Director John Brennan and Director of National Intelligence James R. Clapper Jr. briefed Obama and a small group of his top White House advisers on the contents of a classified intelligence report showing that Russia intervened in the 2016 election to help Trump. That’s when White House officials learned that the FBI was investigating the Flynn-Kislyak calls. “The Flynn-Kislyak relationship was highlighted,” a former senior U.S. official said, adding that the bureau made clear “that there was an actual investigation” underway.
And, in a very significant way, the investigation did not proceed by the book, almost certainly because of Mike Flynn’s (and possibly even Jeff Sessions’) potential compromise. Back in March, Jim Comey admitted to Elise Stefanik that the FBI had delayed briefing Congress about the counterintelligence investigation into Trump because it had, in turn, delayed telling the Executive Branch until February.
Stefanik returned to her original point, when Congress gets briefed on CI investigations. Comey’s response was remarkable.
Stefanik: It seems to me, in my first line of questioning, the more serious a counterintelligence investigation is, that would seem to trigger the need to update not just the White House, the DNI, but also senior congressional leadership. And you stated it was due to the severity. I think moving forward, it seems the most severe and serious investigations should be notified to senior congressional leadership. And with that thanks for your lenience, Mr. Chairman, I yield back.
Comey could have been done with Stefanik yielding back. But instead, he interrupted, and suggested part of the delay had to do with the practice of briefing within the Executive Branch
NSCbefore briefing Congress.
Comey: That’s good feedback, Ms. Stefanik, the challenge for is, sometimes we want to keep it tight within the executive branch, and if we’re going to go brief congressional leaders, the practice has been then we brief inside the executive branch, and so we have to try to figure out how to navigate that in a good way.
Which seems to suggest one reason why the FBI delayed briefing the Gang of Four (presumably, this is the Gang of Eight) is because they couldn’t brief all Executive Branch people
the White House, and so couldn’t brief Congress without first having briefed the White House.
Which would suggest Mike Flynn may be a very central figure in this investigation.
Because the National Security Advisor was suspected of being compromised (and because the Attorney General had at least a conflict), the FBI couldn’t and didn’t proceed normally.
Plus, there’s one other issue about which Obama should have discussed normal procedure with Yates and Comey on January 5. Two days earlier, Loretta Lynch signed an order permitting, for the first time, the sharing of EO 12333 data in bulk. Among the first things I’m sure FBI would have asked for would have been EO 12333 data to support their Russian investigation. Yet doing so would expose Trump’s people. That’s all the more true given that the rules permit the retention of entirely domestic communications if they have significant counterintelligence value.
So one of the first things that would have happened, after signing data sharing rules the government had been working to implement since Stellar Wind, would have been the prospect that the very first Americans directly affected weren’t going to be some powerless Muslims or relatively powerless Chinese-Americans, but instead the President’s closest associates. Given what we’ve seen from the George Papadopoulos case, the FBI likely bent over backwards to insulate Trump aides (indeed, it’s hard to understand how they wouldn’t have known of Ivan Timofeev’s outreach to Papadopoulos before his interviews if they hadn’t).
Just before this meeting, FBI and DOJ had discovered that Trump’s most important national security aide had had surprising conversations with Russia. That clearly raised the prospect of necessary deviations from normal practices with regards to intelligence sharing.
Yet Grassley and Graham are seeing Christopher Steele’s ghost behind every single solitary action. Rather than the real challenges posed when top officials pose real counterintelligence concerns.
Update: Kathryn Ruemmler, representing Rice, pretty much confirms Grassley and Graham have gone on a wild Steele chase.
“There is nothing ‘unusual’ about the National Security Advisor memorializing an important discussion for the record,” Kathryn Ruemmler, a counsel for Rice, said in a statement. “The Obama White House was justifiably concerned about how comprehensive they should be in their briefings regarding Russia to members of the Trump transition team, particularly Lt. General Michael Flynn, given the concerning communications between him and Russian officials.”Ruemmler added: “The discussion that Ambassador Rice documented did not involve the so-called Steele dossier. Any insinuation that Ambassador Rice’s actions in this matter were inappropriate is yet another attempt to distract and deflect from the importance of the ongoing investigations into Russian meddling in America’s democracy.”
In his statement before the House Judiciary Committee last week, FBI Director Christopher Wray raised encryption, as FBI Directors do when they go before Congress.
His comments on encryption have a really bizarre line, complaining that, “The more we as a society rely on electronic devices to communicate and store information, the more likely it is that information that was once found in filing cabinets, letters, and photo albums will now be stored only in electronic form.” The reverse is really the issue: our electronic devices now make it really easy to get and search through what previously might be hidden in a (locked!) filing cabinet. They also encourage us to write in texts what we used to say in phone or direct conversations. So the reality is all this digitalization just makes it easier to engage in one stop evidence shopping with someone’s phone.
The more interesting thing, to me, is the way in which Wray’s rhetoric deviates sharply from that of Jim Comey.
Comey, you’ll remember, always liked to talk about the “balance” between security and privacy. He used that formulation most times he discussed back doors in encryption.
And he gave an entire speech on it last year in the wake of the San Bernardino phone challenge.
In America we’ve always balanced privacy and security. It can be messy, it can be painful, but we’ve always worked through the three branches of government to achieve that balance in a sensible way.
We have to find thoughtful, productive ways to talk about issues of privacy and security, and here’s the thing, by thoughtful I don’t mean that I’m right, and you’re wrong. I could be wrong about the way I assess, the way I perceive, the way I balance, the way I reason, but I think all productive conversations start from a place of humility. I could be wrong.
[L]itigation is a terrible place to have any discussion about a complicated policy issue, especially one that touches on our values, on the things we care about most, on technology, on trade-offs, and balance.
We are all people trying to do the right thing as we see the right. It is not for the FBI to decide how this country should govern itself.
It’s not for the FBI to decide what the right approach is here. Our job is to investigate. Our job is to tell you, the people who pay for us, when the tools you count on us to use aren’t working so much anymore, so you can figure out what to do about that. It’s also not the job of the technology companies to tell us—to tell you—what to do about this. Their job is to innovate and come up with the next great thing, and they’re spectacular at that, which is to be treasured. How we move forward needs to be resolved by the American people, and especially the young who know technology so well, and who care so deeply about getting the hard things right.
In his statement, Wray seems to be invoking this Comey formulation when he rejects the entire notion.
Some observers have conceived of this challenge as a trade-off between privacy and security. In our view, the demanding requirements to obtain legal authority to access data—such as by applying to a court for a warrant or a wiretap—necessarily already account for both privacy and security. The FBI is actively engaged with relevant stakeholders, including companies providing technological services, to educate them on the corrosive effects of the Going Dark challenge on both public safety and the rule of law, and with the academic community and technologists to work on technical solutions to this problem.
Wray appears to be rejecting Comey’s (usually false) show of seeking the right balanced between access and encryption, and instead saying a warrant is all it needs. That, in spite of the fact that Congress has specifically stopped short of requiring technical access for some of the applications that Wray and Comey were complaining about. Not to mention the fact that FBI doesn’t ever get a warrant to get to US person content via back door searches or the 2014 exception.
Ultimately, of course, the effect is the same: FBI is going to continue demanding back doors into encryption.
But Wray, apparently, doesn’t even feel the need to feign an interest in the debate.
Happy Birthday to me! To us! To the emptywheel community!
On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten this week.
To celebrate, the emptywheel team has been sharing some of our favorite work from the last decade. This is my massive dragnet of surveillance posts.
For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.
If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.
Just days after opening the new digs, I noticed Sheldon Whitehouse entering important details into the Senate record — notably, that John Yoo had pixie dusted EO 12333 to permit George Bush to authorize the Stellar Wind dragnet. In the ten years since, both parties worked to gradually expand spying on Americans under EO 12333, only to have Obama permit the sharing of raw EO 12333 data in its last days in office, completing the years long project of restoring Stellar Wind’s functionalities. This post, from 2016, analyzes a version of the underlying memo permitting the President to change EO 12333 without providing public notice he had done so.
In the wake of the Protect America Act, I started to track surveillance legislation as it was written, rather than figure out after the fact how the intelligence community snookered us. In this post, I examined the veto threats Mike McConnell and Michael Mukasey issued in response to some Russ Feingold amendments to the FISA Amendments Act and showed that the government intended to use that authority to access Americans’ communication via both what we now call back door searches and reverse targeting. “That is, one of the main purposes is to collect communications in the United States.”
9 years later, we’re still litigating this (though, since then FISC has permitted the NSA to collect entirely domestic communications under the 2014 exception).
After the FISCR opinion on what we now know to be the Yahoo challenge to Protect American Act first got declassified, I identified several issues that we now have much more visibility on. First, PAA permitted spying on Americans overseas under EO 12333. And it didn’t achieve particularity through the PAA, but instead through what we know to be targeting procedures, including contact chaining. Since then we’ve learned the role of SPCMA in this.
In addition, to avoid problems with back door searches, the government claimed it didn’t have a database of all our communication — a claim that, narrowly parsed might be true, but as to the intent of the question was deeply misleading. That claim is one of the reasons we’ve never had a real legal review of back door searches.
During the 2009 PATRIOT Act reauthorization, I continued to track what the government hated most as a way of understanding what Congress was really authorizing. I understood that Stellar Wind got replaced not just by PAA and FAA, but also by the PATRIOT authorities.
All of which is a very vague way to say we probably ought to be thinking of four programs–Bush’s illegal domestic surveillance program and the PAA/FAA program that replaced it, NSLs, Section 215 orders, and trap and trace devices–as one whole. As the authorities of one program got shut down by exposure or court rulings or internal dissent, it would migrate to another program. That might explain, for example, why Senators who opposed fishing expeditions in 2005 would come to embrace broadened use of Section 215 orders in 2009.
I guessed, for example, that the government was bulk collecting data and mining it to identify targets for surveillance.
We probably know what this is: the bulk collection and data mining of information to select targets under FISA. Feingold introduced a bajillion amendments that would have made data mining impossible, and each time Mike McConnell and Michael Mukasey would invent reasons why Feingold’s amendments would have dire consequences if they passed. And the legal information Feingold refers to is probably the way in which the Administration used EO 12333 and redacted procedures to authorize the use of data mining to select FISA targets.
Sadly, I allowed myself to get distracted by my parallel attempts to understand how the government used Section 215 to obtain TATP precursors. As more and more people confirmed that, I stopped pursuing the PATRIOT Act ties to 702 as aggressively.
This may be controversial, given everything that has transpired since, but it is often forgotten what measures the US used against Wikileaks in 2010. The funding boycott is one thing (which is what led Wikileaks to embrace Bitcoin, which means it is now in great financial shape). But there’s a lot of reason to believe that the government used PATRIOT authorities to target not just Wikileaks, but its supporters and readers; this was one hint of that in real time.
When the first iteration of the May 2004 Jack Goldsmith OLC memo first got released, I identified that there were multiple changes made and unpacked what some of them were. The observation that Goldsmith newly limited Stellar Wind to terrorist conversations is one another reporter would claim credit for “scooping” years later (and get the change wrong in the process). We’re now seeing the scope of targeting morph again, to include a range of domestic crimes.
Something that is still not widely known about 702 and our other dragnets is how they are used to identify potential informants. This post, in which I note Ted Olson’s 2002 defense of using (traditional) FISA to find rapists whom FBI can then coerce to cooperate in investigations was the beginning of my focus on the topic.
During the 2012 702 reauthorization fight, Ron Wyden and Mark Udall tried to stop back door searches. They didn’t succeed, but their efforts to do so revealed that the government was doing so. Even back in 2012, Dianne Feinstein was using the same strategy the NSA currently uses — repeating the word “target” over and over — to deny the impact on Americans.
As part of the 2012 702 reauthorization, Sheldon Whitehouse said that requiring warrants to access the US person content collected incidentally would “kill the program.” I took that as confirmation of what Wyden was saying: the government was doing what we now call back door searches.
After the Snowden leaks started, I spent a lot of time tracking bogus claims about oversight. After having pointed out that, contrary to Administration claims, Congress did not have the opportunity to be briefed on the phone dragnet before reauthorizing the PATRIOT Act in 2011, I then noted that in one of the only briefings available to non-HPSCI House members, FBI had lied by saying there had been no abuses of 215.
John Bates’ TWO Wiretapping Warnings: Why the Government Took Its Internet Dragnet Collection Overseas
Among the many posts I wrote on released FISA orders, this is among the most important (and least widely understood). It was a first glimpse into what now clearly appears to be 7 years of FISA violation by the PRTT Internet dragnet. It explains why they government moved much of that dragnet to SPCMA collection. And it laid out how John Bates used FISA clause 1809(a)(2) to force the government to destroy improperly collected data.
In neither NSA nor FBI do the authorities work in isolation. That means you can conduct a query on federated databases and obtain redundant results in which the same data point might be obtained via two different authorities. For example, a call between Michigan and Yemen might be collected via bulk collection off a switch in or near Yemen (or any of the switches between there and the US), as well as in upstream collection from a switch entering the US (and all that’s assuming the American is not targeted). The NSA uses such redundancy to apply the optimal authority to a data point. With metadata, for example, it trained analysts to use SPCMA rather than PATRIOT authorities because they could disseminate it more easily and for more purposes. With content, NSA appears to default to PRISM where available, probably to bury the far more creative collection under EO 12333 for the same data, and also because that data comes in structured form.
Also not widely understood: the NSA can query across metadata types, returning both Internet and phone connection in the same query (which is probably all the more important now given how mobile phones collapse the distinction between telephony and Internet).
This post described how this worked with the metadata dragnets.
The government likes to pretend it uses its dragnet only to find terrorists. But it does far more, as this analysis of some court filings lays out.
There’s something poorly understood about the metadata dragnets NSA conducts. The contact-chaining isn’t the point. Rather, the contact-chaining serves as a kind of nomination process that puts individuals’ selectors, indefinitely, into the “corporate store,” where your identity can start attracting other related datapoints like a magnet. The contact-chaining is just a way of identifying which people are sufficiently interesting to submit them to that constant, ongoing data collection.
I’ve done a lot of work on SPCMA — the authorization that, starting in 2008, permitted the NSA to contact chain on and through Americans with EO 12333 data, which was one key building block to restoring access to EO 12333 analysis on Americans that had been partly ended by the hospital confrontation, and which is where much of the metadata analysis affecting Americans has long happened. This was my first comprehensive post on it.
A big part of both FBI and NSA’s surveillance involves correlating identities — basically, tracking all the known identities a person uses on telephony and the Internet (and financially, though we see fewer details of that), so as to be able to pull up all activities in one profile (what Bill Binney once called “dossiers”). It turns out the FISC opinion authorizing such correlations is among the documents the government still refuses to release under FOIA. Even as I was writing the post Snowden was explaining how it works with XKeyscore.
This is another post I refer back to constantly. It shows that, between the time Yahoo first discussed the kinds of information they’d have to hand over under PRISM in August 2007 and the time they got directives during their challenge, the kinds of information they were asked for expanded into all four of its business areas. This is concrete proof that it’s not just emails that Yahoo and other PRISM providers turn over — it’s also things like searches, location data, stored documents, photos, and cookies.
Confession: I have an entire chapter of the start of a book on the Yahoo challenge to PRISM. That’s because so much about it embodied the kind of dodgy practices the government has, at the most important times, used with the FISA Court. In this post, I showed that the documents that the government provided the FISCR hid the fact that the then-current versions of the documents had recently been modified. Using the active documents would have shown that Yahoo’s key argument — that the government could change the rules protecting Americans anytime, in secret — was correct.
Among the posts I wrote on CISA, I noted that because the main upstream 702 providers have a lot of federal business, they’ll “voluntarily” scan on any known cybersecurity signatures as part of protecting the federal government. Effectively, it gives the government the certificate it wanted, but without any of the FISA oversight or sharing restrictions. The government has repeatedly moved collection to new authorities when FISC proved too watchful of its practices.
Many civil libertarians are very critical of the FISC. Not me. In this post I point out that it has policed minimization procedures, conducted real First Amendment reviews, taken notice of magistrate decisions and, in some cases, adopted the highest common denominator, and limited dissemination.
Following up on a Ron Wyden breadcrumb, I figured out that the government — under both FISA and criminal law — obtain location data from mobile apps. While the government still has to adhere to the collection standard in any given jurisdiction, obtaining the data gives the government enhanced location data tied to social media, which can implicate associates of targets as well as the target himself.
The NSA (Said It) Ate Its Illegal Domestic Content Homework before Having to Turn It in to John Bates
I’m close to being able to show that even after John Bates reauthorized the Internet metadata dragnet in 2010, it remained out of compliance (meaning NSA was always violating FISA in obtaining Internet metadata from 2002 to 2011, with a brief lapse). That case was significantly bolstered when it became clear NSA hastily replaced the Internet dragnet with obtaining metadata from upstream collection after the October 2011 upstream opinion. NSA hid the evidence of problems on intake from its IG.
As part of my ongoing effort to catalog the collection and impact of correlations, I showed that the NSL Nick Merrill started fighting in 2004 asked for eight different kinds of correlations before even asking for location data. Ultimately, it’s these correlations as much as any specific call records that the government appears to be obtaining with NSLs.
During the lead-up to the USA Freedom Debate, the government leaked stories about receiving a fraction of US phone records, reportedly because of location concerns. The leaks were ridiculously misleading, in part because they ignored that the US got redundant collection of many of exactly the same calls they were looking for from EO 12333 collection. Yet in spite of these leaks, the few figured out that the need to be able to force Verizon and other cell carriers to strip location data was a far bigger reason to pass USAF than anything Snowden had done. This post laid out what was known about location data and the phone dragnet.
When Congress passed FISA Amendments Act, it made a show of providing protections to Americans overseas. One authority, Section 703, was for spying on people overseas with help of US providers, and another was for spying on Americans overseas without that help. By May 2016, I had spent some time laying out that only the second, which has less FISC oversight, was used. And I was seeing problems with its use in reporting. So I suggested maybe Congress should look into that?
It turns out that at precisely that moment, NSA was wildly scrambling to get a hold on its 704 collection, having had an IG report earlier in the year showing they couldn’t audit it, find it all, or keep it within legal boundaries. This would be the source of the delay in the 702 reauthorization in 2016, which led to the prohibition on about searches.
The discussion last year of a scan the government asked Yahoo to do of all of its users was muddled because so few people, even within the privacy community, understand how broadly the NSA has interpreted the term “selector” or “facility” that it can target for collection. The confusion remains to this day, as some in the privacy community claim HPSCI’s use of facility based language in its 702 reauthorization bill reflects new practice. This post attempts to explain what we knew about the terms in 2016 (though the various 702 reauthorization bills have offered some new clarity about the distinctions between the language the government uses).
Ron Wyden has been asking for a count of how many Americans get swept up under 702 for years. The IC has been inventing bogus explanations for why they can’t do that for years. This post chronicles that process and explains why the debate is so important.
When DOJ used its new Rule 41 hacking warrant against the Kelihos botnet this year, most of the attention focused on that first-known usage. But I was at least as interested in the accompanying Pen Register order, which I believe may serve to codify an expansion of the dialing, routing, addressing, and signaling information the government can obtain with a PRTT. A similar codification of an expansion exists in the HJC and Lee-Leahy bills reauthorizing 702.
The title speaks for itself. I don’t even consider Rosemary Collyer’s 2017 approval of 702 certificates her worst FISA opinion ever. But it is part of the reason why I consider her the worst FISC judge.
I pointed out a number of things not raised in a panel on 702, not least that the authorization of EO 12333 sharing this year probably replaces some of the “about” collection function. Most of all, though, I reminded that in spite of what often gets claimed, PRISM is far more than just communications to and from a target.
A document leaked by Shadow Brokers reveals a bit about how NSA uses hacking on FISA targets. Perhaps most alarmingly, the same tools that conduct such hacks can be used to impersonate a user. While that might be very useful for collection purposes, it also invites very serious abuse that might create a really nasty poisonous tree.
In response to Glenn Gerstell’s claims that Article III courts have exercised oversight by approving FISA practices (though the reality on back door searches is not so cut and dry), I point to the case of Reaz Qadir Khan where, as Michael Mosman (who happens to serve on FISC) moved towards providing a CIPA review for surveillance techniques, Khan got a plea deal.
In 2010, John Bates redefined metadata. That five page entirely redacted definition became codified in 2011. Yet even as Congress moves to reauthorize 702, we don’t know what’s included in that definition (note: location would be included).
This post talks about how NSA uses its various authorities to get around geographical and time restrictions on its spying.
This is one of the most important posts on FISA I’ve ever written. It explains how in 2014, to close an intelligence gap, the NSA got an exception to the rule it has to detask from a facility as soon as it identifies Americans using the facility. The government uses it to collect on Tor and, probably VPN, data. Because the government can keep entirely domestic communications that the DIRNSA has deemed evidence of a crime, the exception means that 702 has become a domestic spying authority for use with a broad range of crimes, not to mention anything the Attorney General deems a threat to national security.
In a response to a rare good faith defense of FBI’s back door searches, I pointed out that the FBI is obliged to consider the least intrusive means of investigation. Yet, even while it admits that accessing content like that obtained via 702 is extremely intrusive, it nevertheless uses the technique routinely at the assessment level.
Other Key Posts Threads
Happy Birthday to me! To us! To the emptywheel community!
On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.
To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing 4 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.
Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.
For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.
If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.
Amid now-abandoned discussions about using the FISA court to review targeted killing, I pointed out that a targeted killing in the US would look just like the October 28, 2009 killing of Imam Luqman Abdullah.
When the second memo (as opposed to the first 7-page version) used to authorize the killing of Anwar al-Awlaki, it became clear that OLC never really decided whether the killing was done under Article II or the AUMF. That’s important because if it’s the latter, it suggests the President can order anyone killed.
I know in the Trump era we’re supposed to forget that John Brennan sponsored a whole lot of drone killing and surveillance. But I spent a good deal of the Obama Administration pointing that out. Including by pointing out that the Constitution he swore to protect and defend didn’t have the First, Fourth, Fifth, and Sixth amendment in it.
The Day After Government Catalogs Data NSA Collected on Tsarnaevs, DOJ Refuses to Give Dzhokhar Notice
I actually think it’s unreasonable to expect the government’s dragnets to prevent all attacks. But over and over (including with 9/11), NSA gets a pass when we do reviews of why an attack was missed. This post lays out how that happened in the Boston Marathon case. A follow-up continued that analysis.
Former CIA General Counsel John Rizzo lies, a lot. But that doesn’t seem to lead journalists to treat his claims skeptically, nor did it prevent them from taking his memoir as a statement of fact. In this post I summarized all the lies he told in the first 10 pages of it.
Over the year and a half when one after another member of Congress asked for the OLC memos that authorized the drone execution of Anwar al-Awlaki, I tracked all those requests. This was the last post, summarizing all of them.
With the rise of Trump and the success of Russia intervening in US and European politics, I’ve been talking about how the failures of US neoliberal ideology created a vacuum to allow those things to happen. But I’ve been talking about the failures of our ideology for longer than that, here in a post on ISIS.
There weren’t a huge number of huge surprises in the SSCI Torture Report for me (indeed, its scope left out some details about the involvement of the White House I had previously covered). But it did include a lot of details that really illustrate the stupidity of the torture program. None was more pathetic than the revelation that KSM had the CIA convinced that he was recruiting black Muslim converts to use arson in Montana.
A big part of the Jeffrey Sterling trial was CIA theater, with far more rigorous protection for 10 year old sources and methods than given to 4 year old Presidential Daily Briefs in the Scooter Libby trial. Both sides seemed aware that the theater was part of an attempt, in part, to help the CIA gets its reputation back after the Iraq War debacle. Except that the actual evidence presented at trial showed CIA was up to the same old tricks. That didn’t help Sterling at all. But neither did it help CIA as much as government prosecutors claimed.
I’ve written a lot about the first indictment of nation-state hackers — People’s Liberation Army hackers who compromised some mostly Pittsburgh located entities, including the US Steel Workers. Contrary to virtually all the reporting on the indictment, the indictment pertained to things we nation-state hack for too: predominantly, spying on negotiations. The sole exception involves the theft of some nuclear technology from Westinghouse that might have otherwise been dealt to China as part of a technology transfer arrangement.
In response to a horrible Obama speech capitulating to Republican demands he treat the San Bernardino attack specially, as Islamic terrorism, I compared the speech to Jimmy Carter’s malaise speech. Along the way, I noted that Carter signed the finding to train the mujahadeen at almost the exactly moment he gave the malaise speech. The trajectory of America has never been the same since.
Other Key Posts Threads
Shortly thereafter he went on to backtrack a bit, calling Feinberg’s work “very impressive,” but then pitching his privacy concern as pertaining to Comey’s adult-aged son.
Later in the day he defended against claims he was “being mean” to her by pointing to the time she used his name to get Comey to click on a test phish.
Then Matt Tait weighed in, reaffirming that tracking Comey down through his adult-aged son was very stalkery.
Let’s review, shall we? We’re talking about whether it is acceptable for a journalist to use public means (facilitated by a loophole in Instagram), hopping through a public figure’s 22-year old son, to find the public figure’s Twitter account, which he revealed in a televised appearance.
And not just any public figure. This is Jim Comey, the man who, in 2004, declined to reauthorize a bulk Internet metadata dragnet (Comey showed no such compunction about reauthorizing a phone metadata dragnet), only to run to the FISA Court and tell Colleen Collar-Kotelly that she had no discretion but to approve it.
And thus was born the legal codification of the definition of “relevant to” that holds that the metadata of all Americans can be considered “relevant to” FBI’s standing terrorism investigations, the definition that, two years later, would be used to justify collection aspiring to obtain the metadata of all phone calls placed in this country. Not just those who talk to terrorists, but those who talk to the people who talk to them and the people who talk to those who talk to those who talk to them. Including their children.
The Internet dragnet (and the upstream collection that replaced it) collects things like what people get tagged or favorited in Instagram and Twitter accounts — precisely the kind of metadata that led Feinberg to identify Comey’s account.
But that’s not all that’s “relevant to” whether there is any news value to using publicly available metadata to identify a Twitter account that Comey himself revealed.
In 2014, when Jim Comey headed the FBI, DOJ’s Inspector General argued for at least the second time (with the first including practices that occurred while Comey was DAG) that FBI should not be obtaining all records associated with the Friends and Family account of a target.
[T]he significance of the FBI’s request for “associated” records is that the FBI has sought and in some cases received not only the toll billing records and subscriber information of the specific telephone number identified in the NSL, but also the toll billing numbers that belong to the same account — such as numbers in a group or family plan account — without a separate determination and certification by the FBI that the additional records are relevant to an authorized international terrorism investigation. Yet before the FBI may specifically request in an NSL the records of a subject’s family member or partner, Section 2709 would require an authorized official to certify that such records are relevant to a national security investigation. (158)
That is, DOJ’s IG had to tell the FBI for the second time, when Comey was running it, that they shouldn’t be collecting the phone records of a target’s mom or (dependent aged) child or girlfriend because they were associated with accounts relevant to an investigation.
The FBI accepted DOJ IG’s recommendation to ensure that records “associated to” those “relevant to” investigations not be collected, but had only implemented it thus far on the non-automated side of NSL submissions by the time of the report.
Now that we’ve reviewed Jim Comey’s great tolerance for using three hop metadata records as an investigative technique (if not the more targeted collection of records “associated to” those “relevant to” investigations) as well as the mind-numbing definition of what constitutes “relevant to,” let’s return to the context of his discussions about social media. While the Twitter revelation served as evidence for a story that he’s non-partisan, the Instagram one he likes to tell serves to support his claim to care about privacy. Here’s the quote Feinberg included in her piece, but Comey has made this speechlet numerous times over the years.
I care deeply about privacy, treasure it. I have an Instagram account with nine followers. Nobody is getting in. They’re all immediate relatives and one daughter’s serious boyfriend. I let them in because they’re serious enough. I don’t want anybody looking at my photos. I treasure my privacy and security on the internet.
Nobody is getting into his Instagram account (with its loophole permitting people like Feinberg or FBI agents to get to his metadata), Comey said. With respect to content, that seems to be true.
Presumably, he also believed nobody was getting into his Twitter account that at that point just one person — the weak link, Ben Wittes — had followed.
He was wrong.
Jim Comey’s understanding of his own well guarded privacy was overblown, in part because of the inherent insecurity of the platforms he uses and in part because of the OpSec practices of his friend and his son’s friend. I don’t think Comey much cares — in his business, the likelihood that a dumb associate might thwart otherwise admirable operational security (especially on the part of a 22-year old) of a target is a blessing, not a curse.
But it is an awesome illustration of the power and danger of this metadata soup that, under Comey, the government got far more access to.
Now, in threads where I’ve made this argument, people have rightly pointed out that the power of the FBI (which gets far more metadata) and a reporter is somewhat different, as might be the necessity for avoiding any chains involving children. Though the frequency with which Trump and his associates’ own (admittedly older) spawn get included in stories of his corruption demonstrates how important such connections are, even for journalists.
But the contention that FBI’s contact chaining and a journalist’s contact chaining are that different is belied by Comey’s own reaction, his first tweet ever.
Not only did he say he wasn’t mad and compliment her work, but he posted the link to FBI jobs.
I’d say Jim Comey sees a similarity in what Feinberg did.
I’m all in favor of protecting the accounts of children from such contact chaining — and am really not a big fan of contact chaining, generally. But those who, like Comey and Wittes and Hennessey and Tait, have championed a system that endorses at least two hop chaining irrespective of who gets hopped, not to mention those who’ve tolerated the collection on family members in even more targeted surveillance, I’m not all that interested in complaints about the privacy of a 22-year old son.
Or rather, I point to it as yet another example of surveillance boosters not understanding what the policies they embrace actually look like in practice.
Which is precisely why this “doxing” was so newsworthy.
Update: For the benefit of Al, I’m including this link to Comey introducing his children (Brian was 19 at the time, his youngest was 13) at his FBI Director confirmation hearing in 2013; a screencap is above. It sounds like he did the same at his DAG hearing 10 years earlier.
So if you’ve got a concern about their safety you might want to talk to the Senate about the practice of featuring families during confirmation hearings.
Update: Here we are Monday and Gates and Manafort still haven’t found anything liquid to put up as bail. Not only that, but in a filing raising a potential conflict with one of Gates’ money laundering expert lawyers, prosecutors reveal Gates is trying to have his partner from a movie-related firm’s brother serve as surety while also doing so for the partner.
Marc Brown, the brother of defendant Steven Brown, was proposed by Gates as a potential surety despite the facts that they seemingly do not have a significant relationship, they have not had regular contact over the past ten years, and Marc Brown currently serves as a surety for his brother Steven in his ongoing criminal prosecution in New York. In an interview with the Special Counsel’s Office on November 16, Marc Brown listed as a reason for seeking to support Gates that they belonged to the same fraternity (although they did not attend the same college) and that, as such, he felt duty bound to help Gates. Of note, Marc Brown’s financial assets were significantly lower, almost by half, than previously represented by Gates.
For years, I’ve been noting that the Treasury Department, virtually alone among intelligence agencies, does not have procedures to comply with EO 12333’s restrictions on spying on American citizens. Today, BuzzFeed explains why: Treasury’s foreign intelligence wing, OIA, has been engaging in domestic spying. Effectively, they’ve been piggy-backing on FinCen’s access through the Bank Secrecy Act to get information on Americans.
The story describes two big violations. First, when OIA gets masked reports, they call banks to learn the identities of the Americans masked in the reports.
Some sources have also charged that OIA analysts have, in a further legal breach, been calling up financial institutions to make inquiries about individual bank accounts and transactions involving US citizens. Sources said the banks have complied with the requests because they are under the impression they are giving the information to FinCEN, which they are required to do.
One source recalled an instance from 2016 in which OIA personnel, inserting themselves into a domestic money-laundering case, sought information from a Delaware financial institution. In other cases, according to a second source, FinCEN gave OIA reports with the names of US citizens and companies blacked out. OIA obtained those names by calling the banks, then used those names to search the banking database for more information on those American citizens and firms
OIA has also been permitting other agencies — it names CIA and DIA — to put temporary duty officers to access classified banking networks.
Sources also claimed that OIA has opened a back door to officers from other intelligence agencies throughout the government, including the the CIA and the Defense Intelligence Agency. Officials from those agencies have been coming to work at OIA for short periods of time, sometimes for as little as a week, and thereby getting unrestricted access to information on US citizens that they otherwise could not collect without strict oversight.
Dean Boyd has a pretty funny non-denial denial of this charge in the article.
The Defense Intelligence Agency did not respond to a request for comment. CIA spokesman Dean Boyd said, “Suggestions that the Agency may be improperly collecting and retaining US persons data through the mechanisms you described are completely inaccurate.”
I suspect the source of this problem is that Treasury is split into two, with one group doing foreign intelligence and another doing domestic intelligence.
Under a seminal Reagan-era executive order, a line runs through the Treasury Department and all other federal agencies separating law enforcement, which targets domestic crimes, from intelligence agencies, which focus on foreign threats and can surveil US citizens only in limited ways and by following stringent guidelines.
Compare that with FBI, which hasn’t been split in two since the PATRIOT Act, and so can access vast swaths of intelligence on Americans by pretending to be looking at foreigners. I also suspect the reason this hasn’t been changed at Treasury is because it would piss off the banks, making it clear that the mandated spying assistance under the Bank Secrecy Act implicates their customers too.