The FBI’s Standards for Ingesting Raw 702 Data

In most Section 702 hearings, there is no FBI witness, which means NSA witnesses can make claims about back door searches that are completely irrelevant to the biggest concern — FBI’s far more frequent back door searches.

Today was different. Carl Ghattas, FBI’s Executive Assistant Director for National Security, testified. And aside from totally dodging a Chuck Grassley question about why, according to Rosemary Collyer, FBI waited 11 months before informing the FISA Court about one violation, he was a very informative witness.

Take, for example, a detail he provided in his written testimony (after 34:50) about what FBI obtains in raw form (this may be public in the DIOG that the Intercept leaked, but I’m not otherwise aware of this detail). The FBI can only get raw data for selectors “relevant to” full investigations, not preliminary investigations or assessments.

It’s important to remember FBI receives a small fraction of the total collection that NSA receives under this program. In fact, the FBI only receives a small percentage of NSA’s downstream collection and none of NSA’s upstream collection. The reason for this is that the FBI can only request and receive Section 702 collection if the selector — that is, an email address or social media handle, for example — is relevant to a pending full investigation. The FBI cannot receive Section 702 collection during either a preliminary inquiry or an assessment. As a result, although the FBI conducts significantly more US person queries than NSA, those queries are running against a small fraction of the total 702 collection that is acquired by the US government. In other words, when the FBI runs a US person identifier through our database, that query is run against only FBI’s 702 collection that’s obtained during FBI full investigations and not the total collection maintained by NSA.

This does limit things, though as the FBI likes to say, it has thousands of investigations going at any time, the most emphasized of which (terrorism and counterintelligence) would likely implicate 702 data. Moreover, it raises questions about the foreign intelligence designations made, especially (prior to this year) regarding the data FBI shared in raw form with NCTC. And of course, we all know that the word “relevant to” has ceased to have real limiting meaning.

Also, the FBI may only obtain this information at the Full Investigation level, but it can query it at the assessment level. And today’s hearing, like all others, failed to discuss that the FBI uses those queries, in part, to find informants, some of whom may be guilty of nothing beyond doing something that FBI can use to coerce their cooperation.

So a full investigation (which may include an enterprise investigation targeted generally at, for example, ISIS or Russian spies) sucks in all relevant tasked selectors (Ghattas did not describe how the FBI nominates selectors), which can then be queried at the assessment level for the US person being queried.

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.

The Willful FBI 702 Violation No One Admitted

In today’s 702 hearing, both Senators and (most) witnesses repeated over and over that while there had been compliance problems, there had been no willful violations.

I think that as of Rosemary Collyer’s recent opinion, that can no longer be said to be true. Among the violations she laid out, she described an “improper disclosure of raw information” to a contractor in a way that violated minimization procedures (starting on page 83).

Apparently, the FBI (possibly in a fusion center or JTTF situation) had provided access to raw data to an entity “largely staffed by private contractors” to obtain analytical assistance. The contractors’ access to raw data “went well beyond what was necessary to respond to the FBI’s requests.” Collyer considered their access under the provision of FBI SMPs that permit sharing of information for technical assistance, but she noted, “their access was not limited to raw information for which the FBI sought assistance and access continued even after they had completed work in response to an FBI request.”

FBI also appears to have delivered data to a non-Federal agency (it appears to be some kind of tech contractor) where employees were not under the direct supervision of FBI employees.

With one of these violations (it appears, though is not certain, to be the second one), the decision to give improper access to contractors “was the result of deliberate decisionmaking” supported by an interagency memorandum of understanding. As Collyer notes, “such a memorandum of understanding could not override the restrictions of Section 702 minimization procedures.”

The Intelligence Committees started requiring copies of all interagency IC related MOUs last year; this may be one reason why. Nevertheless, that doesn’t change the history, that FBI at an institutional level made a decision to provide (apparently small amounts of) data to people outside of the minimization procedures.

I don’t think witnesses and Senators can claim they know of no willful violations anymore.

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.

USA Freedom Act Booster Misses Opportunity to Note FISC Blew off USAF

The Brennan’s Center Liza Goitein is the privacy community’s go-to witness for Section 702 hearings. She’s a decent choice: she’s unflappable, she has worked in Congress (which nevertheless doesn’t prevent members from routinely butchering her name), and she’s superb at invoking case law to support her points. She has a fine understanding of how the program is implemented.

But she did, in my opinion, affirmative damage in today’s hearing on Section 702.

The most ardent supporter for a special advocate in the FISA Court, Richard Blumenthal, asked the panel if the provision could be improved. All witnesses supported a FISA amicus, with both Goitein and CNAS’ Adam Klein supporting some strengthening of the provision.

But Goitein misstated how the current provision for an amicus — passed as law as part of USA Freedom Act — has been implemented. After calling the provision “a really important contribution of the USA Freedom Act,” Goitein claimed “for the most part the Court has” appointed an amicus for a novel or significant legal issue. [my transcription]

Goitein: I think that was a really important contribution of the USA Freedom Act. I think it’s very clear from the act that Congress intended for the FISA Court to make use of amici in really any case in which there was a novel or significant legal issue unless there were some extraordinary circumstances. I think for the most part the Court has done that. There have been a couple of occasions in which the court has found participation inappropriate based on the rationale that the Court just didn’t need help. I don’t think that’s really consistent with what was intended. But that’s been rare. That’s something I think this committee should keep an eye on. I do think it makes sense to have participation in the annual certification process be mandatory, and the one other thing I would suggest is that there’s currently no provision for amici to appeal rulings of the FISA Court if the amici’s arguments were rejected. And sometimes that’s important. I think we saw in the FISA Court’s decision on back door searches — there were a number of, to say the least, very novel legal issues that would have benefitted from review.

Except the Court hasn’t always appointed, much less considered, appointing an amicus.

Just two months ago, Rosemary Collyer permitted the back door searches of collection that she explicitly admitted can include entirely domestic communications. The decision goes well beyond what John Bates authorized in 2011 when he permitted back door searches, because Bates specifically excluded the upstream collection he knew to include entirely domestic communications.

Collyer approved that practice on top of all the other issues she ruled on, such as the sharing of raw data with NCTC (which will permit it to do back door searches for designations without the due process FBI provides) and letting NSA keep reports it developed using legally prohibited queries. Moreover, it came in an opinion where Collyer appeared to be unclear on the technical aspects of the question in front of her, resulting in an opinion that leaves little clarity on whether ending “about” collection (which was never defined in technical terms) will actually end the collection of unrelated American targets.

And not only didn’t Collyer appoint an amicus to deal with this difficult technical and legal issue. She didn’t even consider it, as mandated by USA Freedom Act.

A court established under subsection (a) or (b), consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time–

(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate;

I have asked some people on the Hill whether they consider this decision an significant opinion or not, and had mixed responses (meaning at least some of the privacy focused congressional figures I spoke with would have been okay with Collyer finding that she didn’t need an amicus or even are okay that she didn’t consider it).

But this question was an opportunity for the privacy community to point out to the amicus’ chief booster — and three other witnesses who generally support the amicus provision — how the FISC can and did in a hugely significant ruling sidestep necessary input. At the very least, it was an opportunity to point out that permitting the judges to decide what constitutes a significant legal issue permits too much discretion, because it allows the FISC to avoid justifying not appointing an amicus.

Instead of making those points, Goitein instead answered in a way that suggested she believes the first time approval of back door searches on content that includes entirely domestic collection is not a significant legal issue.

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.

The [Publicly] Unanswered John Bates Question about How You Define an Active User of a Targeted Facility

In this post, I showed how sometime in fall 2010, the government tried to get the FISA Court to let it use Section 702 to spy on Americans. Specifically, it defined one of the terms used in its application (presumably its targeting certification) “to include US persons,” which Bates took to understand as a request to undertake the “intentional acquisition of communications of US persons reasonably believed to be located outside the United States.”

In addition to the big dump of 702 related documents released last week, Charlie Savage liberated some of the documents pertaining to upstream surveillance from 2011. One of the documents included a set of questions John Bates asked on November 7, in advance of approving the new minimization procedures. And one of the questions is one I asked — and for the same reason — in my post on Rosemary Collyer’s recent upstream opinion: how you define an “active user.”

The Court’s Memorandum defined “active user” to be “the individual using the electronic communications account/address/identifier to interact with his/her Internet service provider.” See Oct. 3, 2011 Memorandum Opinion at 35 n. 34 (emphasis added). However, the amended minimization procedures state that NSA will identify and segregate through technical means MCTs where “the active user of the transaction (i.e., the electronic communications account/address/identifier used to send or receive the Internet transaction to or from a service provider) is reasonably believed to be located in the United States; or the location of the active user is unknown.” See Section 3(b)(5)(a). Please confirm that NSA’s “technical means” for identification and segregation will focus on the location of the individual using the account.

Taken in the wake of the government’s 2010 effort to target a group that includes Americans, the importance of the answer is obvious. If, for example, the active user of a selector is the targeted group rather than a specific individual, then the Americans that are part of that targeted group would also have their communications collected and those communications wouldn’t get segregated as a result. For example, if the NSA were targeting the encryption keys that ISIS uses, and an American were also using that key to talk to other Americans, that communication would be collected but not segregated. So Bates, a year after backing the government down off its effort to use 702 to spy on Americans only to find that the government had been collecting on Americans for 4 years, seemed to be trying to make sure that the government didn’t achieve the same goal via different means.

Except, nowhere in the public record, did he explicitly force the government to integrate this focus on individual users into the minimization procedures. In his November 30, 2011 opinion approving the new MCT scheme, he cited of the requirement that MCTs including the communications of possible US persons get segregated, he added “the [user of]” to the language he cited from the minimization procedures.

Under the amended NSA minimization procedures, NSA must segregate and restrict access to certain portions of its upstream collection following acquisition.3 Section 3(b)(5)(a) requires NSA to

take reasonable steps post-acquisition to identify and segregate through technical means Internet transactions that cannot be reasonably identified as containing single, discrete communications where: the active user of the transaction (i.e., the [user of] the electronic communications account/address/identifier used to send or receive the Internet transaction to or from a service provider) is reasonably believed to be located in the United States; or the location of the active user is unknown.

But he didn’t specify that that user had to be an individual. In the same passage, he cited what are probably the responses to his November 7 questions, without citing the language used to respond to him.

Then, in restating the requirement to segregate such communications, Bates cited to his earlier opinion, but not the page he cited in his question invoking “individual” users.

Unlike the measures previously proposed by the government for MCTs, the new procedures require NSA, following acquisition, to identify and segregate the two categories of Internet transactions that are most likely to contain discrete wholly domestic communications and non-target communications to or from United States persons or persons located in the United States: (1) those as to which the “active user” is located inside the United States; and (2) those as to which the location of the active user is unknown. See Amended NSA Minimization Procedures at 4 (§ 3(b)(5)(a)); see also Oct. 3 Opinion at 37-41.

And neither the September 2012 opinion authorizing the next year’s certificates and clearing the government of ongoing violation of 1809(a)(2) doesn’t appear to mention active users.

I raised this issue with respect to Collyer’s opinion because, if the government can treat a group as a target and the group’s communication methods as a facility, then upstream surveillance will still collect entirely domestic communications that will newly be available via back door search (though in reality, NSA never fully implemented the scheme laid out in the 2011 opinion). Yet nowhere is this made clear.

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.

In 2010, the Government Tried to Use Section 702 against US Persons

I’m working my way through the FISA related documents released last week. And I wanted to point out something that happened around October 2010: the NSA tried to turn 702 into a domestic surveillance program.

First, some background. Before 2011, it appears the government got 702 certificates approved every six months. Also, because the initial certificates were approved a month apart (in part because the initial PAA certificates were also approved a month apart for some really interesting reasons), the government submitted two sets of documents. That’s what explains the nearly identical pairs of documents released last week (Documents 11 and 5 approve 2009 certs, and Documents 4 and 2 approve 2010 certs).

Sometime in late summer to fall 2010, the government submitted a pretty dramatically altered request (see Document 16). [Update: This targeting certificate from 2010 was submitted on July 16, though that feels like odd timing and none of the targets are described as including US persons.]

As part of that, the government defined one of the targets to include US persons (albeit ones apparently located overseas).

Moreover, the government has defined the term [redacted] to include US persons, which raises the question whether permitting the intentional acquisition of communications of US persons reasonably believed to be located outside the United States is consistent with the requirements of 50 U. S.C. § 1881 a(b)(3).

In addition, the government requested to keep and disseminate any US person or domestic data it found “to the extent reasonably necessary to counter any imminent threat to human life or the national security that is related to the target.”

Another significant change to the minimization procedures relates to the provisions that allow NSA to retain, process, and disseminate any communication acquired while a target of 702 collection was inside the United States or after a target has been determined to be a United States person, “to the extent reasonably necessary to counter any imminent threat to human life or the national security that is related to the target, including obtaining authorization against the target pursuant to another section of the Act.” NSA Minimization Procedures at 7-10.

Whereas later minimization procedures have language about protecting imminent threats (defined broadly to include property), this request included vague “threat to national security” language.

Finally, John Bates implied that the submission implicated some prior court decision(s), including one by the FISCR.

Remarkably, these prior decisions (as well as the name of the target that includes US persons) were redacted with the b(7)E law enforcement technique exemption, not the b(1) or b(3) that covers most of the other redactions in these memos. I can’t recall any other b(7)E redaction in all the FISA orders I’ve read.

Also note, that in 2010, there were only two known FISCR opinions, the one tearing down the wall in 2002, and the one authorizing PRISM in 2008; this may be an as yet unidentified FISCR opinion.

By all appearances, in fall of 2010, the government tried to get approval to use 702 against US persons.

In response to this request, Bates basically said, “submit a legal justification.”

To date, the government has not provided the Court with an adequate legal basis upon which to undertake this review and make the required findings. Therefore, and in accordance with Rule 10(a)(ii) of the Foreign Intelligence Surveillance Court Rules of Procedure, the Court hereby ORDERS the government to file a written memorandum of law that addresses the legal issues identified in this Briefing Order and any others that have not previously been presented to the Court.

Document 4 and Document 2 reveal that the government submitted that memorandum. But after the court saw it and discussed it, the government basically said, “um, nevermind”

The government timely filed its Memorandum of Law on [redacted] 2010.

The Court then discussed the issues presented with representatives of the government on [redacted] 2010, at which time the Court identified certain concerns regarding the government’s submissions. On [redacted], 2010, the Attorney General and the DNI executed two amendments regarding the [redacted] Submission, which were filed with the Court as part of the [redacted] Submission. These amendments have the effect of reverting to the use of targeting and minimization procedures previously approved by the Court in the context of prior certifications.

Just to make sure the government got the message, Bates emphasized that his 2010 approvals were limited to non-US persons outside of the US.

Like the acquisitions approved by the Court in all of the Prior 702 Dockets, acquisitions under are limited to “the targeting of non-United States persons reasonably believed to be located outside the United States.”

This all had to have happened after July 2010 (because the approvals cite Bates July 2010 opinion restarting the PRTT dragnet). But the approvals almost certainly happened in November, because the government submitted its reauthorization applications on April 20 and 22 the following year and they were still doing reauthorizations every six months with applications submitted a month in advance.

So in 2010, the government asked to use 702 to spy on Americans, Bates called them on it, and they backed down.

Sort of. On May 2, the government confessed for the first time that it had been collecting US person data all along.

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.

Wyden to Coats: Admit You Know NSA Is Collecting Domestic Communications under 702

Last week, I noted that Ron Wyden had asked Director of National Intelligence Dan Coats a question akin to the one he once asked James Clapper.

Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

Coats responded much as Clapper did four years ago.

Not to my knowledge. It would be against the law.

But, as I pointed out, Coats signed a certification based off an application that clearly admitted that the government would still collect entirely domestic communications using upstream collection. Rosemary Collyer, citing the application that Coats had certified, stated,

It will still be possible for NSA to acquire [a bundled communication] that contains a domestic communication.

When I asked the Office of Director of National Intelligence about this, they said,

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.

Yesterday, Ron Wyden wrote Dan Coats about this exchange. Noting everything I’ve just laid out, Wyden said,

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

Wyden doesn’t do the work of parsing his question for Coats. But he appears to be making a distinction. The language ODNI’s spox pointed to discusses “intentionally acquir[ing a] communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.” Wyden’s question, however, did not use the term “intentionally” and did not include the language about “knowing at the time of collection” that the communication is domestic.

The distinction he is making appears to be the one I pointed out in this post. In a 2010 opinion, John Bates distinguished data that NSA had no reason to know was domestic communication (in this case, categories of packet information prohibited by the FISC in 2004, effectively content as metadata, but the precedent holds for all FISA collection), which he treated as legal, from that the NSA had reason to know was domestic.

When it is not known, and there is no reason to know, that a piece of information was acquired through electronic surveillance that was not authorized by the Court’s prior orders, the information is not subject to the criminal prohibition in Section 1809(a)(2). Of course, government officials may not avoid the strictures of Section 1809(a)(2) by cultivating a state of deliberate ignorance when reasonable inquiry would likely establish that information was indeed obtained through unauthorized electronic surveillance.

If NSA knew the data it was collecting was domestic, it was illegal. If NSA didn’t know the data it was collecting was domestic, it was not illegal.

But don’t you dare deliberately cultivate ignorance about whether the data you’re collecting is domestic, John Bates warned sternly!

Here, of course, the government has told the court in its application, “Hey, we’re going to be collecting domestic communications,” but then, in testimony to Congress, said, “nah, we’re not collecting domestic communications.”

Having said in its application that it is still possible to collect domestic communications, it sure seems the government has ceded any claim to be ignorant that it is collecting domestic communications.

Which would make this collection of domestic communications illegal.

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.

Privacy Community Lets Dan Coats Off Easy in Letter Accusing Him of Reneging on His Promise

This post may make me some enemies in DC.

But the privacy community appears to be missing some critical points in this letter accusing Dan Coats of reneging on his promise to provide an estimate of how many Americans have been sucked up in Section 702 surveillance. The letter rehearses what it claims is the history of NSA counting or not counting how many Americans get collected under Section 702, going back to 2011.

This debate began in 2011 when Senator Wyden first asked Director Clapper to provide an estimate.2 In 2012, the Inspector General of the Intelligence Community claimed that such an estimate would not be possible because the process of establishing the estimate would violate the privacy of U.S. persons, and require too many resources.3

Yet in the same letter, it claims that NSA managed to do a count of Americans implicated in upstream surveillance in 2011.

First, the NSA previously undertook an effort to provide the Foreign Intelligence Surveillance Court (FISC) with a similar estimate, and “there is no evidence that this undertaking impeded any NSA operations.”5 There, in order to address the FISC’s concerns about the number of wholly domestic communications that were being collected under Section 702, the NSA “conducted a manual review of a random sample consisting of 50,440 Internet transactions taken from the more than 13.25 million Internet transactions acquired through the NSA’s upstream collection during a six month period.”6

It is absolutely true that NSA “undertook an effort” to provide the number of Americans implicated in upstream surveillance. But it was not “a similar estimate.” On the contrary, NSA only obtained an estimate of entirely domestic communications collected as part of multiple communication transactions, MCTs. It did not — not even after Bates asked — come up with an estimate of how many entirely domestic communications NSA collected via upstream collection as single communication transactions, much less an estimate of all the Americans collected.

Here’s how John Bates described it in the opinion cited in footnote 6.

NSA’s manual review focused on examining the MCTs acquired through NSA’s upstream collection in order to assess whether any contained wholly domestic communications. Sept. 7, 2011 Hearing Tr. at 13-14. As a result, once NSA determined that a transaction contained a single, discrete communication, no further analysis of that transaction was done. See August 16 Submission at 3. After the Court expressed concern that this category of transactions might also contain wholly domestic communications, NSA conducted a further review. See Sept. 9 Submission at 4. NSA ultimately did not provide the Court with an estimate of the number of wholly domestic “about” SCTs that may be acquired through its upstream collection. Instead, NSA has concluded that “the probability of encountering wholly domestic communications in transactions that feature only a single, discrete communication should be smaller — and certainly no greater — than potentially encountering wholly domestic communications within MCTs.” Sept. 13 Submission at 2.

The Court understands this to mean that the percentage of wholly domestic communications within the universe of SCTs acquired through NSA’s upstream collection should not exceed the percentage of MCTs within its statistical sample. Since NSA found 10 MCTs with wholly domestic communications within the 5,081 MCTs reviewed, the relevant percentage is .197% (10/5,081). Aug. 16 Submission at 5.

NSA’s manual review found that approximately 90% of the 50,440 transactions in the same were SCTs. Id. at 3. Ninety percent of the approximately 13.25 million total Internet transactions acquired by NSA through its upstream collection during the six-month period, works out to be approximately 11,925,000 transactions. Those 11,925,000 transactions would constitute the universe of SCTs acquired during the six-month period, and .197% of that universe would be approximately 23,000 wholly domestic SCTs. Thus, NSA may be acquiring as many as 46,000 wholly domestic “about” SCTs each year, in addition to the 2,000-10,000 MCTs referenced above.

Now, ODNI might raise this detail and say that the 2011 review was not as intensive as the one the privacy community wants to conduct. They’d be right, not least because the upstream review should be easier to conduct than the PRISM review, even though there should be less upstream collection under the new rules (under 702, anyway — much of it would have just gone to EO 12333 collection).

But the other critical point is that, having done the sampling, NSA wasn’t even willing to give Bates the information he requested t0 explain the scope of illegal collection under Section 702.

NSA’s refusal to count all the entirely domestic communications collected in their own right is particularly important given another point that would be worth mentioning here.

It’s not so much that this debate started when Ron Wyden made his request. Rather, Ron Wyden, with Mark Udall, made a written request for such a count on the very same day, July 14, 2011, that DOJ obtained an extension to conduct the count for John Bates.

In April 2011, Wyden and Mark Udall asked for the number.

In April of 2011, our former colleague, Senator Mark Udall, and I then asked the Director of National Intelligence, James Clapper, for an estimate.

According to Clapper’s response, they sent a written letter with the request on July 14, 2011. The timing of this request is critically important because it means Wyden and Udall made the request during the period when NSA and FISA Judge John Bates were discussing the upstream violations (see this post for a timeline). As part of that long discussion Bates had NSA do analysis of how often it collected US person communications that were completely unrelated to a targeted one (MCTs). Once Bates understood the scope of the problem, he asked how many US person communications it collected that were a positive hit on the target that were the only communication collected (SCTs).

But the timing demands even closer scrutiny. On July 8, John Bates went to DOJ to express “serious concerns” — basically, warning them he might not be able to reauthorize upstream surveillance. On July 14 — the same day Wyden and Udall asked Clapper for this information — DOJ asked Bates for another extension to respond to his questions, promising more information. Clapper blew off Wyden and Udall’s request in what must be record time — on July 26. On August 16, DOJ provided their promised additional information to Bates. That ended up being a count of how many Americans were affected in MCTs.

So this debate started when Wyden, simultaneously with the FISC, asked for numbers on how many Americans were affected. But the NSA proceeded to do a count that was only partially responsive to Bates’ concerns and barely responsive to Wyden’s.

NSA did a count in 2011. But even though they had requests for a number from both other co-equal branches of government, they refused to do a responsive count, even as they were already committing the resources to doing the count.

The claim about resources made in 2011 rings hollow, because the resources were expended but the scope was narrowly drawn.

Which brings me to the last critical point here: the most likely motive for drawing the scope so narrowly even as both other co-equal branches of government were requesting the number.

In July 2010, John Bates wrote another opinion. On its face, it addressed the NSA’s collection of prohibited categories under the PR/TT Internet dragnet. But in reality, that collection was just upstream collection with some filtering to try to get down to the part of the packets that constituted metadata under rules set in 2004. Effectively, then, it was also an opinion about the deliberate collection of domestic content via upstream collection. And in that opinion, he weighed the government’s request to let it keep data it had collected that might contain entirely domestic content. Ultimately, Bates said that if the government knew it had obtained domestic content, it had to delete the data, but if it didn’t know, it could keep it.

When it is not known, and there is no reason to know, that a piece of information was acquired through electronic surveillance that was not authorized by the Court’s prior orders, the information is not subject to the criminal prohibition in Section 1809(a)(2). Of course, government officials may not avoid the strictures of Section 1809(a)(2) by cultivating a state of deliberate ignorance when reasonable inquiry would likely establish that information was indeed obtained through unauthorized electronic surveillance.

[snip]

In light of the government’s assertions of need, and in heavy reliance on the assurances of the responsible officials, the Court is prepared — albeit reluctantly — to grant the government’s request with respect to information that is not subject to Section 18099a)(2)’s prohibition. Hence, the government may access, use, and disseminate such information subject to the restrictions and procedures described above that will apply to future collection.

From that point forward, it was a precedent in the FISC that the government could obtain entirely domestic communications, provided that they didn’t know they were collecting it. But they couldn’t cultivate deliberate ignorance of what they were doing. (They still violated the precedent, but quickly destroyed all the data before they got caught in 2011.)

If the NSA knows they’re intentionally collecting entirely domestic communications, it is illegal. If the NSA doesn’t know they’re intentionally collecting entirely domestic collections, it’s not illegal.

You can see how, even with Bates’ stern warning not to deliberately cultivate ignorance, this provided a huge incentive to deliberately cultivate ignorance.

Of course, Dan Coats performed just that deliberate ignorance the other day, when Wyden made it clear Coats had signed the reauthorization certification for 702 even though the accompanying memo made it clear that the NSA would still be collection entirely domestic communications. Coats claimed they wouldn’t collect Americans’ communications even in spite of the fact that the memo accompanying his certification said it would do just that.

This is a concept the privacy community really needs to learn, quickly. Because Ron Wyden is laying all the ground work to make it clear that this is about deliberate ignorance, of just the sort that Bates said was improper, not actually a concern about resources.

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.

Dan Coats Just Confirmed He Signed the Section 702 Certificate without Even Reading the Accompanying Memo

Today, the Senate Intelligence Committee had a hearing on Section 702 of FISA. It basically went something like this:

It’s okay that we have a massive dragnet because the men running it are very honorable and diligent.

The men running the dragnet refuse to answer a series of straight questions, and when they do, they’re either wrong or deeply dishonest.

I’ll lay that out in more detail later.

But the most important example is an exchange between Ron Wyden and Dan Coats that will reverberate like Clapper’s now famous answer to Wyden that they don’t “wittingly” collect on millions of Americans. It went like this:

Wyden: Can the government use FISA 702 to collect communications it knows are entirely domestic?

Coats: Not to my knowledge. It would be against the law.

Coats’ knowledge should necessarily extend at least as far as Rosemary Collyer’s opinion reauthorizing the dragnet that Coats oversees, which was, after all, the topic of the hearing. And that opinion makes it quite clear that even under the new more limited regime, the NSA can collect entirely domestic communications.

Indeed, the passage makes clear that that example was presented in the memo tied to the certification about Section 702 that Coats signed (but did not release publicly). Effectively, Dan Coats signed a certificate on March 30 stating that this collection was alright.

I’m not sure what this example refers to. Collyer claims it has to do with MCTs, though like Dan Coats, she didn’t seem to understand the program she approved. There are multiple ways I know of where entirely domestic communications may be collected under 702, which I’ll write about in the near future.

In any case, if Dan Coats was being truthful in response to Wyden’s question, then he, at the same time, admitted that he certified a program without even reading the accompanying memorandum, and certainly without understanding the privacy problems with the program as constituted.

He either lied to Wyden. Or admitted that the current 702 certification was signed by someone who didn’t understand what he was attesting to.

Update: I did a version of this (including comment on Mike Rogers’ testimony) for Motherboard. It includes this explanation for Coats’ comment.

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.

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.

It Is False that Downstream 702 Collection Consists Only of To and From Communications

I was swamped this week when Hoover Institute had this conference on Section 702 of FISA. But I heard so much about this panel, with Jim Baker, Susan Hennessey, Alex Abdo, and Julian Sanchez, I had to watch.

The panel generally and Hennessey especially gave far too much credence to the claim that NSA self-reported the upstream search violations revealed in the April 26 Rosemary Collyer opinion. You cannot claim NSA self-reported a problem they sat on for nine months before initially explaining, and pointedly didn’t mention in the initial reauthorization application, and that’s just one example of egregiously belated reporting described in the opinion. I’ll have far more to say about that — and NSA oversight generally — in the upcoming days.

I’m also frankly shocked that no one on the panel mentioned the approval to share EO 12333 data that was authorized between the time NSA belatedly declared these problems and the time it said it would discontinue an abusive problem. Here’s what the timing looked like:

  • January 2016: Several formal discoveries of the problems in upstream searches
  • September 26, 2016: Initial application (that didn’t disclose the problems) first submitted
  • October 24, 2016: The government first discloses the upstream search problems
  • January 3, 2017: Loretta Lynch signs procedures authorizing the sharing of raw EO 12333 data
  • March 30, 2017: The government submits their fix to upstream problems
  • April 26, 2017: Rosemary Collyer opinion authorizing the reframed upstream collection

The timing is critical because in between the time the government very belatedly revealed the problems with upstream and the time it decided to halt a narrowly defined “about” collection, it got approval to share raw EO 12333 data between agencies. The searches that NSA won’t be able to do under Section 702 are all, by definition, possible (though probably not as easy) to do under EO 12333. So the government can still obtain the very things they’ve told the FISC they won’t collect [under 702], and they can share them more easily with the FBI and CIA (which can do back door searches on them). In other words, even as the FISC was saying that the backdoor searches of upstream collection violated the Fourth Amendment, the government was self-authorizing a way to do the very same searches via means that don’t have any FISC oversight (and for which the existing oversight regime is flimsy).

But one thing that was most striking for me came when Hennessey stated “there are two forms of collection, upstream and downstream. Within downstream there’s only to and from collection.”

This is the kind of claim that seems to be correct. Indeed, much of Rosemary Collyer’s shitty opinion is premised on such an assumption. In all unclassified FISC discussions, back door searches of PRISM content are considered acceptable because (the assumption is) the searches would return only the side of the US person conversing with a foreign intelligence target. The idea is that the US person would be interesting and potentially valid foreign intelligence because they had knowingly communicated with a target.

But it is actually incorrect.

That’s because PRISM (which has been renamed “downstream” for some reason, which distracts from what kind of providers these actually are) is significantly about the collection of stored data. And the data it collects is not just electronic surveillance (that is, data in motion). As the WaPo described years ago, the NSA will collect other things that are in someone’s users account.

No government oversight body, including the Justice Department, the Foreign Intelligence Surveillance Court, intelligence committees in Congress or the president’s Privacy and Civil Liberties Oversight Board, has delved into a comparably large sample of what the NSA actually collects — not only from its targets but also from people who may cross a target’s path.

Among the latter are medical records sent from one family member to another, résumés from job hunters and academic transcripts of schoolchildren. In one photo, a young girl in religious dress beams at a camera outside a mosque.

Scores of pictures show infants and toddlers in bathtubs, on swings, sprawled on their backs and kissed by their mothers. In some photos, men show off their physiques. In others, women model lingerie, leaning suggestively into a webcam or striking risque poses in shorts and bikini tops.

I raise this not to gotcha Hennessey for making a mistake at all; as I said, on its face the statement seems to be, but is not, correct. Rather, I wanted to point to an assumption virtually everyone has been making about PRISM collection and its suitability for back door searches that may not be valid. If you think about the hack-and-leak dumps in recent years, for example, often the most damaging, as well as the most ridiculous infringements on privacy, involve email attachments, such as the list of most Democratic members of Congress’ email many passwords for which were easily obtainable online, or phone conversations about routine housekeeping or illness. And that’s just attachments; most of the PRISM providers are actually cloud storage providers, in addition to being electronic communication providers, and from the very first requests to Yahoo there was mission creep of all the types of things the government might demand.

And while NSA and FBI aren’t supposed to keep stuff that doesn’t count as foreign intelligence or criminal information, it’s clear (from the WaPo report) that NSA, at least, does.

So as we talk about how inappropriate the upstream back door searches were and are because they can search on stuff that’s not foreign intelligence information, we should remember that the very same thing is likely true of back door searches of  the fruits of searches on a person’s cloud storage account.

 

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.

The Problems with Rosemary Collyer’s Shitty Upstream 702 Opinion

This post took a great deal of time, both in this go-around, and over the years to read all of these opinions carefully. Please consider donating to support this work. 

It often surprises people when I tell them this, but in general, I’ve got a much better opinion of the FISA Court than most other civil libertarians. I do so because I’ve actually read the opinions. And while there are some real stinkers in the bunch, I recognize that the court has long been a source of some control over the executive branch, at times even applying more stringent standards than criminal courts.

But Rosemary Collyer’s April 26, 2017 opinion approving new Section 702 certificates undermines all the trust and regard I have for the FISA Court. It embodies everything that can go wrong with the court — which is all the more inexcusable given efforts to improve the court’s transparency and process since the Snowden leaks. I don’t think she understood what she was ruling on. And when faced with evidence of years of abuse (and the government’s attempt to hide it), she did little to rein in or even ensure accountability for those abuses.

This post is divided into three sections:

  • My analysis of the aspects of the opinion that deal with the upstream surveillance
    • Describing upstream searches
    • Refusing to count the impact
    • Treating the problem as exclusively about MCTs, not SCTs
    • Defining key terms
    • Failing to appoint (much less consider) appointing an amicus
    • Approving back door upstream searches
    • Imposing no consequences
  • A description of all the documents I Con the Record released — and more importantly, the more important ones it did not release (if you’re in the mood for weeds, start there)
  • A timeline showing how NSA tried to hide these violations from FISC

Opinion

The Collyer opinion deals with a range of issues: an expansion of data sharing with the National Counterterrorism Center, the resolution of past abuses, and the rote approval of 702 certificates for form and content.

But the big news from the opinion is that the NSA discovered it had been violating the terms of upstream FISA collection set in 2011 (after violating the terms of upstream FISA set in 2007-2008, terms which were set after Stellar Wind violated FISA since 2002). After five months of trying and failing to find an adequate solution to fix the problem, NSA proposed and Collyer approved new rules for upstream collection. The collection conducted under FISA Section 702 is narrower than it had been because NSA can no longer do “about” searches (which are basically searching for some signature in the “content” of a communication). But it is broader — and still potentially problematic — because NSA now has permission to do the back door searches of upstream collected data that they had, in reality, been doing all along.

My analysis here will focus on the issue of upstream collection, because that is what matters going forward, though I will note problems with the opinion addressing other topics to the extent they support my larger point.

Describing upstream searches

Upstream collection under Section 702 is the collection of communications identified by packet sniffing for a selector at telecommunication switches. As an example, if the NSA wants to collect the communications of someone who doesn’t use Google or Yahoo, they will search for the email address as it passes across circuits the government has access to (overseas, under EO 12333) or that a US telecommunications company runs (domestically, under 702; note many of the data centers at which this occurs have recently changed hands). Stellar Wind — the illegal warrantless wiretap program done under Bush — was upstream surveillance. The period in 2007 when the government tried to replace Stellar Wind under traditional FISA was upstream surveillance. And the Protect America Act and FISA Amendments Act have always included upstream surveillance as part of the mix, even as they moved more (roughly 90% according to a 2011 estimate) of the collection to US-based providers.

The thing is, there’s no reason to believe NSA has ever fully explained how upstream surveillance works to the FISC, not even in this most recent go-around (and it’s now clear that they always lied about how they were using and processing a form of upstream collection to get Internet metadata from 2004 to 2011). Perhaps ironically, the most detailed discussions of the technology behind it likely occurred in 2004 and 2010 in advance of opinions authorizing collection of metadata, not content, but NSA was definitely not fully forthcoming in those discussions about how it processed upstream data.

In 2011, the NSA explained (for the first time), that it was not just collecting communications by searching for a selector in metadata, but it was also collecting communications that included a selector as content. One reason they might do this is to obtain forwarded emails involving a target, but there are clearly other reasons. As a result of looking for selectors as content, NSA got a lot of entirely domestic communications, both in what NSA called multiple communication transactions (“MCTs,” basically emails and other things sent in bundles) and in single communication transactions (SCTs) that NSA didn’t identify as domestic, perhaps because they used Tor or a VPN or were routed overseas for some other reason. The presiding judge in 2011, John Bates, ruled that the bundled stuff violated the Fourth Amendment and imposed new protections — including the requirement NSA segregate that data — for some of the MCTs. Bizarrely, he did not rule the domestic SCTs problematic, on the logic that those entirely domestic communications might have foreign intelligence value.

In the same order, John Bates for the first time let CIA and NSA do something FBI had already been doing: taking US person selectors (like an email address) and searching through already collected content to see what communications they were involved in (this was partly a response to the 2009 Nidal Hasan attack, which FBI didn’t prevent in part because they were never able to pull up all of Hasan’s communications with Anwar al-Awlaki at once). Following Ron Wyden’s lead, these searches on US person content are often called “back door searches” for the way they let the government read Americans’ communications without a warrant. Because of the newly disclosed risk that upstream collection could pick up domestic communications, however, when Bates approved back door searches in 2011, he explicitly prohibited the back door searching of data collected via upstream searches. He prohibited this for all of it — MCTs (many of which were segregated from general repositories) and SCTs (none of which were segregated).

As I’ve noted, as early as 2013, NSA knew it was conducting “many” back door searches of upstream data. The reasons why it was doing so were stupid: in part, because to avoid upstream searches analysts had to exclude upstream repositories from the search query (basically by writing “NOT upstream” in a Boolean query), which also required them realizing they were searching on a US person selector. For whatever reason, though, no one got alarmed by reports this was going on — not NSA’s overseers, not FISC (which reportedly got notices of these searches), and not Congress (which got notices of them in Semiannual reports, which is how I knew they were going on). So the problem continued; I noted that this was a persistent problem back in August, when NSA and DOJ were still hiding the extent of the problems from FISC.

It became clear the problem was far worse than known, however, when NSA started looking into how it dealt with 704 surveillance. Section 704 is the authority the NSA uses to spy on Americans who are overseas. It basically amounts to getting a FISC order to use EO 12333 spying on an American. An IG Report completed in January 2016 generally found 704 surveillance to be a clusterfuck; as part of that, though, the NSA discovered that there were a whole bunch of 704 backdoor searches that weren’t following the rules, in part because they were collecting US person communications for periods outside of the period when the FISC had authorized surveillance (for 705(b) communication, which is the spying on Americans who are simply traveling overseas, this might mean NSA used EO 12333 to collect on an American when they were in the US). Then NSA’s Compliance people (OCO) did some more checking and found still worse problems.

And then the government — the same government that boasted about properly disclosing this to FISC — tried to bury it, basically not even telling FISC about how bad the problem was until days before Collyer was set to approve new certificates in October 2016. Once they did disclose it, Judge Collyer gave NSA first one and then another extension for them to figure out what went wrong. After 5 months of figuring, they were still having problems nailing it down or even finding where the data and searches had occurred. So, finally, facing a choice of ending “about” collection (only under 702 — they can still accomplish the very same thing under EO 12333) or ending searches of upstream data, they chose the former option, which Collyer approved with almost no accountability for all the problems she saw in the process.

Refusing to count the impact

I believe that (at least given what has been made public) Collyer didn’t really understand the issue placed before her. One thing she does is just operate on assumptions about the impact of certain practices. For example, she uses the 2011 number for the volume of total 702 collection accomplished using upstream collection to claim that it is “a small percentage of NSA’s overall collection of Internet communications under Section 702.” That’s likely still true, but she provides no basis for the claim, and it’s possible changes in communication — such as the increased popularity of Twitter — would change the mix significantly.

Similarly, she assumes that MCTs that involve “a non-U.S. person outside the United States” will be “for that reason [] less likely to contain a large volume of information about U.S. person or domestic communications.” She makes a similar assumption (this time in her treatment of the new NCTC raw take) about 702 data being less intrusive than individual orders targeted at someone in the US, “which often involve targets who are United States persons and typically are directed at persons in the United States.” In both of these, she repeats an assumption John Bates made in 2011 when he first approved back door searches using the same logic — that it was okay to provide raw access to this data, collected without a warrant, because it wouldn’t be as impactful as the data collected with an individual order. And the assumption may be true in both cases. But in an age of increasingly global data flows, that remains unproven. Certainly, with ISIS recruiters located in Syria attempting to recruit Americans, that would not be true at all.

Collyer makes the same move when she makes a critical move in the opinion, when she asserts that “NSA’s elimination of ‘abouts’ collection should reduce the number of communications acquired under Section 702 to which a U.S. person or a person in the United States is a party.” Again, that’s probably true, but it is not clear she has investigated all the possible ways Americans will still be sucked up (which she acknowledges will happen).

And she does this even as NSA was providing her unreliable numbers.

The government later reported that it had inadvertently misstated the percentage of NSA’s overall upstream Internet collection during the relevant period that could have been affected by this [misidentification of MCTs] error (the government first reported the percentage as roughly 1.3% when it was roughly 3.7%.

Collyer’s reliance on assumptions rather than real numbers is all the more unforgivable given one of the changes she approved with this order: basically, permitting the the agencies to conduct otherwise impermissible searches to be able to count how many Americans get sucked up under 702.  In other words, she was told, at length, that Congress wants this number (the government’s application even cites the April 22, 2106 letter from members of the House Judiciary Committee asking for such a number). Moreover, she was told that NSA had already started trying to do such counts.

The government has since [that is, sometime between September 26 and April 26] orally notified the Court that, in order to respond to these requests and in reliance on this provision of its minimization procedures, NSA has made some otherwise-noncompliant queries of data acquired under Section 702 by means other than upstream Internet collection.

And yet she doesn’t then demand real numbers herself (again, in 2011, Bates got NSA to do at least a limited count of the impact of the upstream problems).

Treating the problem as exclusively about MCTs, not SCTs

But the bigger problem with Collyer’s discussion is that she treats all of the problem of upstream collection as being about MCTs, not SCTs. This is true in general — the term single communication transaction or SCT doesn’t appear at all in the opinion. But she also, at times, makes claims about MCTs that are more generally true for SCTs. For example, she cites one aspect of NSA’s minimization procedures that applies generally to all upstream collection, but describes it as only applying to MCTs.

A shorter retention period was also put into place, whereby an MCT of any type could not be retained longer than two years after the expiration of the certificate pursuant to which it was acquired, unless applicable criteria were met. And, of greatest relevance to the present discussion, those procedures categorically prohibited NSA analysts from using known U.S.-person identifiers to query the results of upstream Internet collection. (17-18)

Here’s the section of the minimization procedures that imposed the two year retention deadline, which is an entirely different section than that describing the special handling for MCTs.

Similarly, Collyer cites a passage from the 2015 Hogan opinion stating that upstream “is more likely than other forms of section 702 collection to contain information of or concerning United States person with no foreign intelligence value” (see page 17). But that passage cites to a passage of the 2011 Bates opinion that includes SCTs in its discussion, as in this sentence.

In addition to these MCTs, NSA likely acquires tens of thousands more wholly domestic communications every year, given that NSA’s upstream collection devices will acquire a wholly domestic “about” SCT if it is routed internationally. (33)

Collyer’s failure to address SCTs is problematic because — as I explain here — the bulk of the searches implicating US persons almost certainly searched SCTs, not MCTs. That’s true for two reasons. First, because (at least according to Bates’ 2011 guesstimate) NSA collects (or collected) far more entirely domestic communications via SCTs than via MCTs. Here’s how Bates made that calculation in 2011 (see footnote 32).

NSA ultimately did not provide the Court with an estimate of the number of wholly domestic “about” SCTs that may be acquired through its upstream collection. Instead, NSA has concluded that “the probability of encountering wholly domestic communications in transactions that feature only a single, discrete communication should be smaller — and certainly no greater — than potentially encountering wholly domestic communications within MCTs.” Sept. 13 Submission at 2.

The Court understands this to mean that the percentage of wholly domestic communications within the universe of SCTs acquired through NSA’s upstream collection should not exceed the percentage of MCTs within its statistical sample. Since NSA found 10 MCTs with wholly domestic communications within the 5,081 MCTs reviewed, the relevant percentage is .197% (10/5,081). Aug. 16 Submission at 5.

NSA’s manual review found that approximately 90% of the 50,440 transactions in the same were SCTs. Id. at 3. Ninety percent of the approximately 13.25 million total Internet transactions acquired by NSA through its upstream collection during the six-month period, works out to be approximately 11,925,000 transactions. Those 11,925,000 transactions would constitute the universe of SCTs acquired during the six-month period, and .197% of that universe would be approximately 23,000 wholly domestic SCTs. Thus, NSA may be acquiring as many as 46,000 wholly domestic “about” SCTs each year, in addition to the 2,000-10,000 MCTs referenced above.

Assuming some of this happens because people use VPNs or Tor, then the amount of entirely domestic communications collected via upstream would presumably have increased significantly in the interim period. Indeed, the redaction in this passage likely hides a reference to technologies that obscure location.

If so, it would seem to acknowledge NSA collects entirely domestic communications using upstream that obscure their location.

The other reason the problem is likely worse with SCTs is because — as I noted above — no SCTs were segregated from NSA’s general repositories, whereas some MCTs were supposed to be (and in any case, in 2011 the SCTs constituted by far the bulk of upstream collection).

Now, Collyer’s failure to deal with SCTs may or may not matter for her ultimate analysis that upstream collection without “about” collection solves the problem. Collyer limits the collection of abouts by limiting upstream collection to communications where “the active user is the target of acquisition.” She describes “active user” as “the user of a communication service to or from whom the MCT is in transit when it is acquired (e.g., the user of an e-mail account [half line redacted].” If upstream signatures are limited to emails and texts, that would seem to fix the problem. But upstream wouldn’t necessarily be limited to emails and texts — upstream collection would be particularly valuable for searching on other kinds of selectors, such as an encryption key, and there may be more than one person who would use those other kinds of selectors. And when Collyer says, “NSA may target for acquisition a particular ‘selector,’ which is typically a facility such as a telephone number or e-mail address,” I worry she’s unaware or simply not ensuring that NSA won’t use upstream to search for non-typical signatures that might function as abouts even if they’re not “content.” The problem is treating this as a content/metadata distinction, when “metadata” (however far down in the packet you go) could include stuff that functions like an about selector.

Defining key terms terms

Collyer did define “active user,” however inadequately. But there are a number of other terms that go undefined in this opinion. By far the funniest is when Collyer notes that the government’s March 30 submission promises to sequester upstream data that is stored in “institutionally managed repositories.” In a footnote, she notes they don’t define the term. Then she pretty much drops the issue. This comes in an opinion that shows FBI data has been wandering around in repositories it didn’t belong and indicating that NSA can’t identify where all its 704 data is. Yet she’s told there is some other kind of repository and she doesn’t make a point to figure out what the hell that means.

Later, in a discussion of other violations, Collyer introduces the term “data object,” which she always uses in quotation marks, without explaining what that is.

Failing to appoint (or even consider) amicus

In any case, this opinion makes clear that what should have happened, years ago, is a careful discussion of how packet sniffing works, and where a packet collected by a backbone provider stops being metadata and starts being content, and all the kinds of data NSA might want to and does collect via domestic packet sniffing. (They collect far more under EO 12333.) As mentioned, some of that discussion may have taken place in advance of the 2004 and 2010 opinions approving upstream collection of Internet metadata (though, again, I’m now convinced NSA was always lying about what it would take to process that data). But there’s no evidence the discussion has ever happened when discussing the collection of upstream content. As a result, judges are still using made up terms like MCTs, rather than adopting terms that have real technical meaning.

For that reason, it’s particularly troubling Collyer didn’t use — didn’t even consider using, according to the available documentation — an amicus. As Collyer herself notes, upstream surveillance “has represented more than its share of the challenges in implementing Section 702” (and, I’d add, Internet metadata collection).

At a minimum, when NSA was pitching fixes to this, she should have stopped and said, “this sounds like a significant decision” and brought in amicus Amy Jeffress or Marc Zwillinger to help her think through whether this solution really fixes the problem. Even better, she should have brought in a technical expert who, at a minimum, could have explained to her that SCTs pose as big a problem as MCTs; Steve Bellovin — one of the authors of this paper that explores the content versus metadata issue in depth — was already cleared to serve as the Privacy and Civil Liberties Oversight Board’s technical expert, so presumably could easily have been brought into consult here.

That didn’t happen. And while the decision whether or not to appoint an amicus is at the court’s discretion, Collyer is obligated to explain why she didn’t choose to appoint one for anything that presents a significant interpretation of the law.

A court established under subsection (a) or (b), consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time–

(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate;

For what it’s worth, my guess is that Collyer didn’t want to extend the 2015 certificates (as it was, she didn’t extend them as long as NSA had asked in January), so figured there wasn’t time. There are other aspects of this opinion that make it seem like she just gave up at the end. But that still doesn’t excuse her from explaining why she didn’t appoint one.

Instead, she wrote a shitty opinion that doesn’t appear to fully understand the issue and that defers, once again, the issue of what counts as content in a packet.

Approving back door upstream searches

Collyer’s failure to appoint an amicus is most problematic when it comes to her decision to reverse John Bates’ restriction on doing back door searches on upstream data.

To restate what I suggested above, by all appearances, NSA largely blew off the Bates’ restriction. Indeed, Collyer notes in passing that, “In practice, however, no analysts received the requisite training to work with the segregated MCTs.” Given the persistent problems with back door searches on upstream data, it’s hard to believe NSA took that restriction seriously at all (particularly since it refused to consider a technical fix to the requirement to exclude upstream from searches). So Collyer’s approval of back door searches of upstream data is, for all intents and purposes, the sanctioning of behavior that NSA refused to stop, even when told to.

And the way in which she sanctions it is very problematic.

First, in spite of her judgment that ending about searches would fix the problems in (as she described it) MCT collection, she nevertheless laid out a scenario (see page 27) where an MCT would acquire an entirely domestic communication.

Having laid out that there will still be some entirely domestic comms in the collection, Collyer then goes on to say this:

The Court agrees that the removal of “abouts” communications eliminates the types of communications presenting the Court the greatest level of constitutional and statutory concern. As discussed above, the October 3, 2011 Memorandum Opinion (finding the then-proposed NSA Minimization Procedures deficient in their handling of some types of MCTs) noted that MCTs in which the target was the active user, and therefore a party to all of the discrete communications within the MCT, did not present the same statutory and constitutional concerns as other MCTs. The Court is therefore satisfied that queries using U.S.-person identifiers may now be permitted to run against information obtained by the above-described, more limited form of upstream Internet collection, subject to the same restrictions as apply to querying other forms of Section

This is absurd! She has just laid out that there will be some exclusively domestic comms in the collection. Not as much as there was before NSA stopped collecting abouts, but it’ll still be there. So she’s basically permitting domestic communications to be back door searched, which, if they’re found (as she notes), might be kept based on some claim of foreign intelligence value.

And this is where her misunderstanding of the MCT/SCT distinction is her undoing. Bates prohibited back door searching of all upstream data, both that supposedly segregated because it was most likely to have unrelated domestic communications in it, and that not segregated because even the domestic communications would have intelligence value. Bates’ specific concerns about MCTs are irrelevant to his analysis about back door searches, but that’s precisely what Collyer cites to justify her own decision.

She then applies the 2015 opinion, with its input from amicus Amy Jeffress stating that NSA back door searches that excluded upstream collection were constitutional, to claim that back door searches that include upstream collection would meet Fourth Amendment standards.

The revised procedures subject NSA’s use of U.S. person identifiers to query the results of its newly-limited upstream Internet collection to the same limitations and requirements that apply to its use of such identifiers to query information acquired by other forms of Section 702 collection. See NSA Minimization Procedures § 3(b)(5). For that reason, the analysis in the November 6, 2015 Opinion remains valid regarding why NSA’s procedures comport with Fourth Amendment standards of reasonableness with regard to such U.S. person queries, even as applied to queries of upstream Internet collection. (63)

As with her invocation of Bates’ 2011 opinion, she applies analysis that may not fully apply to the question — because it’s not actually clear that the active user restriction really equates newly limited upstream collection to PRISM collection — before her as if it does.

Imposing no consequences

The other area where Collyer’s opinion fails to meet the standards of prior ones is in resolution of the problem. In 2009, when Reggie Walton was dealing with first phone and then Internet dragnet problems, he required the NSA to do complete end-to-end reviews of the programs. In the case of the Internet dragnet, the report was ridiculous (because it failed to identify that the entire program had always been violating category restrictions). He demanded IG reports, which seems to be what led the NSA to finally admit the Internet dragnet program was broken. He shut down production twice, first of foreign call records, from July to September 2009, then of the entire Internet dragnet sometime in fall 2009. Significantly, he required the NSA to track down and withdraw all the reports based on violative production.

In 2010 and 2011, dealing with the Internet dragnet and upstream problems, John Bates similarly required written details (and, as noted, actual volume of the upstream problem). Then, when the NSA wanted to retain the fruits of its violative collection, Bates threatened to find NSA in violation of 50 USC 1809(a) — basically, threatened to declare them to be conducting illegal wiretapping — to make them actually fix their prior violations. Ultimately, NSA destroyed (or said they destroyed) their violative collection and the fruits of it.

Even Thomas Hogan threatened NSA with 50 USC 1809(a) to make them clean up willful flouting of FISC orders.

Not Collyer. She went from issuing stern complaints (John Bates was admittedly also good at this) back in October…

At the October 26, 2016 hearing, the Court ascribed the government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing to an institutional “lack of candor” on NSA’s part and emphasized that “this is a very serious Fourth Amendment issue.”

… to basically reauthorizing 702 before using the reauthorization process as leverage over NSA.

Of course, NSA still needs to take all reasonable and necessary steps to investigate and close out the compliance incidents described in the October 26, 2016 Notice and subsequent submissions relating to the improper use of U.S.-person identifiers to query terms in NSA upstream data. The Court is approving on a going-foward basis, subject to the above-mentioned requirements, use of U.S.-person identifiers to query the results of a narrower form of Internet upstream collection. That approval, and the reasoning that supports it, by no means suggest that the Court approves or excuses violations that occurred under the prior procedures.

That is particularly troubling given that there is no indication, even six months after NSA first (belatedly) disclosed the back door search problems to FISC, that it had finally gotten ahold of the problem.

As Collyer noted, weeks before it submitted its new application, NSA still didn’t know where all the upstream data lived. “On March 17, 2017, the government reported that NSA was still attempting to identify all systems that store upstream data and all tools used to query such data.” She revealed that  some of the queries of US persons do not interact with “NSA’s query audit system,” meaning they may have escaped notice forever (I’ve had former NSA people tell me even they don’t believe this claim, as seemingly nothing should be this far beyond auditability). Which is presumably why, “The government still had not ascertained the full range of systems that might have been used to conduct improper U.S.-person queries.” There’s the data that might be in repositories that weren’t run by NSA, alluded to above. There’s the fact that on April 7, even after NSA submitted its new plan, it was discovering that someone had mislabeled upstream data as PRISM, allowing it to be queried.

Here’s the thing. There seems to be no way to have that bad an idea of where the data is and what functions access the data and to be able to claim — as Mike Rogers, Dan Coats, and Jeff Sessions apparently did in the certificates submitted in March that didn’t get publicly released — to be able to fulfill the promises they made FISC. How can the NSA promise to destroy upstream data at an accelerated pace if it admits it doesn’t know where it is? How can NSA promise to implement new limits on upstream collection if that data doesn’t get audited?

And Collyer excuses John Bates’ past decision (and, by association, her continued reliance on his logic to approve back door searches) by saying the decision wasn’t so much the problem, but the implementation of it was.

When the Court approved the prior, broader form of upstream collection in 2011, it did so partly in reliance on the government’s assertion that, due to some communications of foreign intelligence interest could only be acquired by such means. $ee October 3, 2011 Memorandum Opinion at 31 & n. 27, 43, 57-58. This Opinion and Order does not question the propriety of acquiring “abouts” communications and MCTs as approved by the Court since 2011, subject to the rigorous safeguards imposed on such acquisitions. The concerns raised in the current matters stem from NSA’s failure to adhere fully to those safeguards.

If problems arise because NSA has failed, over 6 years, to adhere to safeguards imposed because NSA hadn’t adhered to the rules for the 3 years before that, which came after NSA had just blown off the law itself for the 6 years before that, what basis is there to believe they’ll adhere to the safeguards she herself imposed, particularly given that unlike her predecessors in similar moments, she gave up any leverage she had over the agency?

The other thing Collyer does differently from her predecessors is that she lets NSA keep data that arose from violations.

Certain records derived from upstream Internet communications (many of which have been evaluated and found to meet retention standards) will be retained by NSA, even though the underlying raw Internet transactions from which they are derived might be subject to destruction. These records include serialized intelligence reports and evaluated and minimized traffic disseminations, completed transcripts and transcriptions of Internet transactions, [redacted] information used to support Section 702 taskings and FISA applications to this Court, and [redacted].

If “many” of these communications have been found to meet retention standards, it suggests that “some” have not. Meaning they should never have been retained in the first place. Yet Collyer lets an entire stream of reporting — and the Section 702 taskings that arise from that stream of reporting — remain unrecalled. Effectively, even while issuing stern warning after stern warning, by letting NSA keep this stuff, she is letting the agency commit violations for years without any disincentive.

Now, perhaps Collyer is availing herself of the exception offered in Section 301 of the USA Freedom Act, which permits the government to retain illegally obtained material if it is corrected by subsequent minimization procedures.

Exception.–If the Government corrects any deficiency identified by the order of the Court under subparagraph (B), the Court may permit the use or disclosure of information obtained before the date of the correction under such minimization procedures as the Court may approve for purposes of this clause.

Except that she doesn’t cite that provision, nor is there any evidence deficiencies have been corrected.

Which should mean, especially given the way Collyer depends on the prior opinions of Bates and Hogan, she should likewise rely on their practice of treating this as a potential violation of 50 USC 1809(a) to ensure the harm to Americans doesn’t persist. She did no such thing, basically sanctioning the illegal use of back door searches to spy on Americans.

Up until this opinion, I was generally willing to argue for the efficacy of the FISC (even while arguing the job could and should be devolved to district courts for more rigorous testing of the law). But not now. This opinion discredits the entire court.

Last April when Collyer became presiding FISC judge, I pointed to what I considered Rosemary Collyer’s worst FISC decision, which was actually a District Court opinion that permitted the NSA to keep aspects of its upstream problems secret from EFF, which is suing over those same issues. I predicted then that, “I fear she will be a crummy presiding judge, making the FISC worse than it already is.”

In my opinion — as a civil libertarian who has been willing to defend the FISC in the past — with this opinion she has done real damage to any credibility or legitimacy the FISC has.

Update: Latter for former fixed in which choice the Administration picked, h/t CS.

The Documents

Here’s what I Con the Record released.

January 7, 2016 IG Report

This heavily redacted report describes a review of NSA’s compliance with 704/705b of Title VII of FISA, the authority NSA uses to spy on Americans who are located overseas (see my report on the 704 problems here). It was conducted from March through August 2015 and reviewed data from January through March 2015. It basically showed there were no compliance mechanisms in place for 704/705b, and NSA couldn’t even reliably identify the queries that had been conducted under the authority. This report is relevant to the reauthorization, because Americans targeted in individual FISA orders are approved (and almost certainly tasked) by default for 702 back door searches. Though the report was obviously done well before the 702 certifications were submitted on September 26, was not noticed to FISC until days before the court would otherwise have approved the certifications in conjunction with the upstream problems.

September 26, 2016 702 Certification Package 

ICTR released much if not all of the materials submitted for 702 reauthorization on September 2016. The package includes:

Certification cover filing: This is basically the application, which the metadata reveals is actually two parts merged. It describes the changes to the certificates from the past year, most notably a request to share raw 702 data directly from NSA or FBI to NCTC, some tweaks to the FBI targeting and minimization procedures, and permission for NSA, FBI, and CIA to deviate from minimization procedures to develop a count of how many US persons get collected under 702.

The report also describes how the government has fulfilled reporting requirements imposed in 2015. Several of the reports pertain to destroying data it should not have had. The most interesting one is the report on how many criminal queries of 702 data FBI does that result in the retrieval and review of US person data; as I note in this post, the FBI really didn’t (and couldn’t, and can’t, given the oversight regime currently in place) comply with the intent of the reporting requirement.

Very importantly: this application did not include any changes to upstream collection, in large part because NSA did not tell FISC (more specifically, Chief Judge Rosemary Collyer) about the problems they had always had preventing queries of upstream data in its initial application. In NSA’s April statement on ending upstream about collection, it boasts, “Although the incidents were not willful, NSA was required to, and did, report them to both Congress and the FISC.” But that’s a load of horse manure: in fact, NSA and DOJ sat on this information for months. And even with this disclosure, because the government didn’t release the later application that did describe those changes, we don’t actually get to see the government’s description of the problems; we only get to see Collyer’s (I believe mis-) understanding of them.

Procedures and certifications accepted: The September 26 materials also include the targeting and minimization procedures that were accepted in the form in which they were submitted on that date. These include:

Procedures and certificates not accepted: The materials include the documents that the government would have to change before approval on April 26. These include,

Note, I include the latter two items because I believe they would have had to be resubmitted on March 30, 2017 with the updated NSA documents and the opinion makes clear a new DIRNSA affidavit was submitted (see footnote 10), but the release doesn’t give us those. I have mild interest in that, not least because the AG/DNI one would be the first big certification to FISC signed by Jeff Sessions and Dan Coats.

October 26, 2016 Extension

The October 26 extension of 2015’s 702 certificates is interesting primarily for its revelation that the government waited until October 24, 2016 to disclose problems that had been simmering since 2013.

March 30, 2017 Submissions

The release includes two of what I suspect are at least four items submitted on March 30, which are:

April 26, 2017 Opinion

This is the opinion that reauthorized 702, with the now-restricted upstream search component. My comments below largely lay out the problems with it.

April 11, 2017 ACLU Release

I Con the Record also released the FOIAed documents released earlier in April to ACLU, which are on their website in searchable form here. I still have to finish my analysis of that (which includes new details about how the NSA was breaking the law in 2011), but these posts cover some of those files and are relevant to these 702 changes:

Importantly, the ACLU documents as a whole reveal what kinds of US persons are approved for back door searches at NSA (largely, but not exclusively, Americans for whom an individual FISA order has already been approved, importantly including 704 targets, as well as more urgent terrorist targets), and reveal that one reason NSA was able to shut down the PRTT metadata dragnet in 2011 was because John Bates had permitted them to query the metadata from upstream collection.

Not included

Given the point I noted above — that the application submitted on September 26 did not address the problem with upstream surveillance and that we only get to see Collyer’s understanding of it — I wanted to capture the documents that should or do exist that we haven’t seen.

  • October 26, 2016 Preliminary and Supplemental Notice of Compliance Incidents Regarding the Querying of Section 702-Acquired Data
  • January 3, 2017: Supplemental Notice of Compliance Incidents Regarding the Querying of Section 702-Acquired Data
  • NSA Compliance Officer (OCO) review covering April through December 2015
  • OCO review covering April though July of 2016
  • IG Review covering first quarter of 2016 (22)
  • January 27, 2017: Letter In re: DNI/AG 702(g) Certifications asking for another extension
  • January 27, 2017: Order extending 2015 certifications (and noting concern with “important safeguards for interests protected by the Fourth Amendment”)
  • March 30, 2017: Amendment to [Certificates]; includes (or is) second explanatory memo, referred to as “March 30, 2017 Memorandum” in Collyer’s opinion; this would include a description of the decision to shut down about searches
  • March 30, 2017 AG/DNI Certification (?)
  • March 30, 2017 DIRNSA Certification
  • April 7, 2017 preliminary notice

Other Relevant Documents

Because they’re important to this analysis and get cited extensively in Collyer’s opinion, I’m including:

Timeline

November 30, 2013: Latest possible date at which upstream search problems identified

October 2014: Semiannual Report shows problems with upstream searches during period from June 1, 2013 – November 30, 2013

October 2014: SIGINT Compliance (SV) begins helping NSD review 704/705b compliance

June 2015: Semiannual Report shows problems with upstream searches during period from December 1, 2013 – May 31, 2014

December 18, 2015: Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA

January 7, 2016: IG Report on controls over §§704/705b released

January 26, 2016: Discovery of error in upstream collection

March 9, 2016: FBI releases raw data

March 18, 2016: Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA

May and June, 2016: Discovery of querying problem dating back to 2012

May 17, 2016: Opinion relating to improper retention

June 17, 2016: Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA

August 24, 2016: Pre-tasking review update

September 16, 2016: Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA

September 26, 2016: Submission of certifications

October 4, 2016: Hearing on compliance issues

October 24, 2016: Notice of compliance errors

October 26, 2016: Formal notice, with hearing; FISC extends the 2015 certifications to January 31, 2017

November 5, 2016: Date on which 2015 certificates would have expired without extension

December 15, 2016: James Clapper approves EO 12333 Sharing Procedures

December 16, 2016: Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA

December 29, 2016: Government plans to deal with indefinite retention of data on FBI systems

January 3, 2017: DOJ provides supplemental report on compliance programs; Loretta Lynch approves new EO 12333 Sharing Procedures

January 27, 2017: DOJ informs FISC they won’t be able to fully clarify before January 31 expiration, ask for extension to May 26; FISC extends to April 28

January 31, 2007: First extension date for 2015 certificates

March 17, 2017:Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA; Probable halt of upstream “about” collection

March 30, 2016: Submission of amended NSA certifications

April 7, 2017: Preliminary notice of more query violations

April 28, 2017: Second extension date for 2015 certificates

May 26, 2017: Requested second extension date for 2015 certificates

June 2, 2017: Deadline for report on outstanding issues

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.