The Blob that Passed Telecom Immunity

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Update: Well, this is unexpected. The 9th said no to the government request for a stay, pending hearing what the District Court has to say about the emergency appeal. Now it’s back in the District Court for one more attempt at a stay.

About a million of you have linked this Wired story, with the headline:

Telephone Company is Arm of Government, Feds Admit in Spy Suit

There’s actually stuff in the government’s motion for an emergency stay that I find much more interesting. For example, the language attempting to protect agency discussions with Congress describe Congress as a mere appendage to the executive branch which did not, in 2008, have its own distinct Constitutional interest in legislation concerning matters in which the executive branch had been found to have flouted duly passed laws.

In this case, the communications between the agencies and Congress were part of a collaborative effort to formulate revisions to FISA that would be acceptable both to the President and to Congress, and the communications themselves were relied on to develop the Executive Branch’s positions regarding the appropriate scope and content of the proposed legislation. Given the purpose and role of the communications in the agencies’ own deliberations, the agencies have regarded their communications with Congress as intra-agency documents under the foregoing lines of authority.

[snip]

In Klamath, the Court declined to treat communications between a federal agency and Indian tribes regarding water rights as intra-agency because, unlike outside consultants, the tribes had independent financial interests in the subject matter of the communications, and those interests were adverse to other claimants. See 532 U.S. at 11-15. But the collaborative relationship between Congress and the Executive Branch in the development of new legislation has no resemblance to the relationship between the agency and the tribes in Klamath. In providing the agencies with information and views about legislative options for use in the development of the Executive Branch’s own legislative position, Congress was participating in a common effort with the Executive Branch to advance the public interest. [my emphasis]

While I realize that may, in fact, be an accurate description of how Congress acted during this debate–the intelligence committees, in particular, served and continue to serve as branches of the intelligence agencies they purportedly oversee–it is a fascinating comment on the state of separation of powers that Congress would be described by the executive branch as a mere appendage to the executive branch.

As to the telecoms, the real argument the government is making here is that the Court did not account for the invocation of Exemption 3 (sources and methods) in its ruling. Read more →

PATRIOT Hearing Liveblog

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You can watch here.

Nice. Leahy started by referencing Obama’s statement to NCTC and references the Zazi and other arrests.

Leahy: We can’t go into what was said in a highly classified briefing. Need for prompt action and tools they need. Our bill increases use of congressional and judicial oversight.[repeats for emphasis] We have done so without undermining operational effectiveness of counterterrorism tools. On the last point I don’t think there would be any doubt following the highly classified briefing.

Oversight oversight oversight.

But no Fourth Amendment.

Leahy: On matters currently before Supreme Court we should move carefully.

Leahy’s pretty determined to push this through without Feingold holding things up.

Sessions: What we don’t all agree on is that the PATRIOT Act is not an overreach. Classified briefing. See if we can agree on language. Operation difficulties have been altered. Five amendments to address operational issues. One, on pen registers minimization. Remember, pen registers just pick up numbers, not content. [Uh, and names, and with email, probably subject lines.] Judicial review standards for NSL non-disclosure orders. "Judges should not have discretion" to refuse a non-disclosure order if govt meets the burden.

How nice that the ranking member of SJC wants to gut Article III of the Constitution.

LOL!! Sesssions trying to eliminate library exception with "the Fourth Amendment."

Sessions, on pen registers, claims no content. (Um, except for the subject lines of emails?)

DiFi: NYT wrote article about efforts to come together. Responds to problems found by courts–Doe v Mukasey–having to do with disclosure. On its face, limits to terrorists and spies makes sense. HOwever, for reasons that get classified very quickly, would unacceptably affect terrorism cases. Najibullah (she can’t pronounce) was case in point. I did not describe why. I asked Kris whether anything in this bill would obstruct any ongoing investigation. He said "I cannot say in public session." Briefing from head of NCTC. Both he and Kris said that new language solved trap and trace. Court very engaged. Not just perfunctory review.

BullSHIT!!! If the court can only review the FBI Agent’s theory, then it becomes perfunctory.

DiFi: Dead wrong when it says the bill has excesses that contribute nothing to making Americans safer.

Kyl: Unfortunate that some of our deliberations have to be in classified setting. Regrettable that great newspaper like Times can’t be privy to all those discussions.

(Talk to Lichtblau and Risen!!)

Read more →

Cell Phone Serials

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Scribe sent me this. It sort of makes you wonder who the NYPD is sharing this database with cell phone serial numbers with, doesn’t it?

The NYPD is amassing a database of cell phone users, instructing cops to log serial numbers from suspects’ phones in hopes of connecting them to past or future crimes.

[snip]

A recent internal memo says that when cops make an arrest, they should remove the suspect’s cell phone battery to avoid leakage – then jot down the International Mobile Equipment Identity number.

The IMEI number is registered with the service provider whenever a call is made.

And that data could allow a detective to match, for example, a cell phone used by one suspect to a phone used by another.

[snip]

The cell phone information joins another database of more than 20 million 911 callers that the NYPD has been building. It has paid off.

In one case involving a 911 call, detectives solved a burglary pattern after the suspect left a slip of paper with his cell number on it at a crime scene, Deputy Commissioner Paul Browne said.

Sunsets Give Way to Dawn on Section 215

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In my last post, I showed how Section 215 authority grew over time, potentially in response to legal challenges to other domestic surveillance programs. I’m going to look at what that might mean for the expanded use of 215 authority in 2006 in a later post.

But first, I want to look at one passage in the 2007 IG Report on Section 215 that is relevant to current efforts to reauthorize PATRIOT. The report explains how–faced with a looming reauthorization fight–DOJ scrambled to actually make use of the Section 215 authority.

By early 2005, the Department faced the "sunset provision" of Section 215, pursuant to which the authority would lapse or "sunset" unless Congress affirmatively renewed the provision. In April 2005, FBI officials testified before Congress about the FBI’s use of the authorities provided by the Patriot Act. This generated a renewed emphasis within the FBI’s Office of  General Counsel on the use of the Section 215 provision.

By this point, the FBI was just using tens of Section 215 orders a year. In 2005 that expanded (partly through the use of combo orders designed to get subscriber information for trap and trace orders), and in 2006 it blossomed into at least one entirely new, secret program. 

Meanwhile, remember what else happened. The Senate Judiciary, after a hearing including testimony from Robert Mueller in April 2005, unanimously supported new limits on Section 215, which would have required some specific tie to terrorism or a foreign power before an order could be used to obtain records pertaining to a person. The House, on the other hand, supported small changes which nevertheless still allowed use of Section 215 to access records of people with no tie to terrorism. That fall, the conference process was gamed to make sure the House bill would prevail. 

In other words, at the same time someone was pushing Congress to keep the more permissive standard for Section 215, FBI was scrambling to actually use the authority–perhaps at least partly to justify its continued existence!

And somehow, out of that process, Section 215 came to be used to legally authorize entirely new programs in 2006, after the reauthorization process. 

Bush’s Illegal Domestic Surveillance Program and Section 215

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I wanted to turn to the two IG Reports Glenn Fine did on the PATRIOT Act’s Section 215, the section that allows investigators to get business records and other tangible items. (2007 report covering 2002 to 2005; 2008 report covering 2006) The reports show an expansion of the way DOJ used the authority that parallels the known history of Bush’s illegal domestic surveillance program.

For the first two years after passage of the PATRIOT Act, not one 215 order was issued. Some were applied for, but all either were withdrawn because of legal ambiguities (could they be used to get school records?), legal reviews, and/or inattention. Then in October 2003, someone in DOJ focused effort on pushing some through, and one of the orders submitted in that month was approved in May 2004–though we’re not allowed to know the date (see page 17 of the 2007 report). Now, it appears the May timing may be coincidental; the order came out of efforts in October 2003 to start using this authority, not as a response to the hospital confrontation concerning Bush’s illegal domestic surveillance program in March 2004. But nevertheless, the first 215 order was authorized just as DOJ issued a new opinion authorizing parts of Bush’s domestic surveillance program on May 6, 2004, at a time when the data mining aspect of the illegal program had (reportedly) been halted by Jim Comey and Jack Goldsmith.

Later, for a year and a half, 215 orders started to serve a function with pen register/trap and trace orders. This was necessary for a period until the PATRIOT revision in 2006 because FISA pen registers didn’t give investigators all the information they wanted.

A "combo" application is a term used by OIPR to refer to a Section 215 request that was added to or combined with a FISA application for pen register/trap and trace orders. The use of the combination request evolved from OIPR’s determination that FISA pen register/trap and trace orders did not require providers to turn over subscriber information associated with telephone numbers obtained through the orders. Unlike criminal investigation pen register/trap and trace orders, which routinely included a clause requiring the provision of subscriber information, FISA pen register/trap and trace orders did not contain such provisions. Thus, while the FBI could obtain the numbers dialed to and from the target number through FISA orders, FBIA agents had to employ other investigative tools, such as national security letters, to obtain the subscriber information. (2007 report, 16)

Here’s what I understand this to mean (the lawyers in the crowd should feel free to correct this). The report explains there was a difference between trap and trace orders on phone numbers (and email accounts, presumably) in the criminal and FISA setting. In the criminal setting, you automatically got the names, as well as the numbers, that the target had contacted. You got to know right away that Rudy the street dealer had contact with Carlos the big time dealer. But with FISA, you just got numbers. Read more →

More Zazi Justifications for PATRIOT

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For the second time today, the WaPo has a very obedient regurgitation of DOJ’s efforts to use the Zazi investigation to push for reauthorization of the PATRIOT Act. There’s the proclamation that the plot was very serious (which I am not challenging).

Attorney General Eric H. Holder Jr. said Tuesday that an alleged hydrogen peroxide bomb threat was "very serious" and "could have resulted in the loss of American lives."

[snip]

Holder declined comment on the next phase of the investigation, including the timing on possible arrests. He nonetheless expressed confidence that authorities had defused the alleged al-Qaeda-inspired threat, which may have been intended to kill "scores" of Americans. 

Tied to the call for Congress to "swiftly" reapprove PATRIOT provisions.

Holder used the occasion to call on Congress to swiftly reauthorize provisions of the USA Patriot Act, including tools that allow the FBI to conduct roving wiretaps of suspects, that have helped the bureau and its law enforcement partners in multiple cases. He nodded to the concerns of civil liberties advocates by acknowledging, "There’s certainly a conversation that can be had about, do they need to be reexamined," but Holder went on to assert that "the tools as they exist are valuable and not in a theoretical sense."

And, as with the WaPo article this morning, this article accepts the Administration’s focus on roving wiretaps, when that’s not really the focus of any challenge to PATRIOT reauthorization.

Say, Justice press corps … any chance you might point out that the real questions pertain to Section 215, NSLs, and data mining aspects of the domestic surveillance program?

Update: Oh!! Ask and you shall receive! Apparently a few members of the Justice press corps did ask these questions, though Holder didn’t answer them. From Josh Gerstein:

Holder said Foreign Intelligence Surveillance Act orders produced "much of the information" in the case, but he did not offer details on how Patriot Act provisions were used in the case. He also rebuffed questions about why those tools are superior to conventional authorities and why the Justice Department is vigorously opposing attempts in Congress to raise the threshold of proof needed to issue demands for information in connection with terrorism investigations.

"The existence of these tools is of great assistance to us," Holder said.

Update: Josh has put up a post with the explicit detail from today’s presser on Section 215. Here’s an excerpt, but go read the complete Read more →

How Republicans (and a Few Democrats) Avoided Limits on Section 215

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In the markup of the PATRIOT reauthorization last week, Dick Durbin and Russ Feingold repeatedly pointed out that in 2005, the Senate Judiciary Committee had unanimously approved language to require Section 215 only be used with people who had some known tie to terrorism or a foreign power. Back then, everyone on the Committee supported the change Durbin and Feingold have been proposing as an improvement on Section 215. 

Now, Durbin and Feingold did so to point out the indefensible position of those who–like DiFi–said in 2005 that the current and proposed law amounts to an invitation for a fishing expedition, but are nonetheless insisting on issuing just such an invitation now.

But that doesn’t explain how it happened that, sometime between the Committee markup and the final bill in 2005-6, real limits on the use of Section 215 were eliminated over the apparent objections of the entire Committee. And while I’m just beginning to piece together that story, the history seems to support my suspicions that Section 215 and NSLs became the new vehicles for Bush’s illegal data mining program just as it was being exposed.

The primary bill that became the Patriot Improvement and Reauthorization Act of 2005 was HR 3199, introduced by Jim Sensenbrenner, then-Chair of the House Judiciary Committee, on July 11, 2005; in addition, then-Chair of the Senate Judiciary Committee Arlen Specter introduced S 1389 on July 22, 2005.

Sensenbrenner’s bill introduced the following language into Section 215, requiring that,

the information likely to be obtained from the tangible things is reasonably expected to be (A) foreign intelligence information not concerning a United States person, or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.

That is, when this was introduced in the House, it basically allowed Section 215 to be used for anything, provided it pertained to international terrorism. That language remained in the bill through the House Judiciary and House Intelligence Committee markups of the bill and was adopted by the House as a whole.

But the Senate substituted its own bill, including the language limiting Section 215 orders to those with a definitive tie to terrorism or foreign intelligence, specifically requiring the judge to make sure there was some kind of tie.

Read more →

DiFi and Pat Leahy, Silencing the Librarians

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librarian-shh.thumbnail.jpgThere’s a cynical passage in the new PATRIOT language that DiFi put forward the other night. It basically creates an exception in the worsened Section 215 language just for libraries.

‘‘(B) if the records sought pertain to libraries (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), including library records or patron lists, a statement of facts showing that there are reasonable grounds to believe that the records sought—‘‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against inter-national terrorism or clandestine intelligence activities; and ‘‘(ii)(I) pertain to a foreign power or an agent of a foreign power; ‘‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ‘‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

This language requires that before investigators demand libraries turn over records, they must first prove that the person to whom the records pertain is either an intelligence investigation suspect, or is in contact with one. So for library records, and library records only, the new language requires some showing of reasonable cause first before the investigators can request the information.

During the hearing, Ben Cardin asked why there was a special standard for libraries (at about 108:30 in the hearing). Kyl offered this explanation for the exception (one he disagrees with):

Kyl: There was such a–I would say–unwarranted and irrational, and I certainly don’t apply that word to anyone here but from some folks out in the country–concern about library records as the result of blogs and so on, it was simply easier to say, okay, cut it loose, it’s important but not that important to hold up the rest of the legislation.

[snip]

In order to get rid of the political argument that was, essentially, irrelevant in almost all investigations, it was simply easier to cut that lose and have a different standard for it.

Durbin then calls Leahy and Kyl on their cynicism, arguing that the exception just for libraries proves that the underlying principle of Section 215, as written, is unsound.

Durbin: Senator Kyl raised an interesting question. Why aren’t more people complaining about this if it is such a problem? Read more →

The Evidence Against Zazi

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As I reported earlier, during the hearing on the reauthorization of the PATRIOT Act today, DiFi said that the investigation against Najibullah Zazi is the biggest investigation since 9/11. She connected changes she had made in the proposed bill’s language about Section 215 Orders (which allow investigators to get any tangible thing from a third party, but which is generally used for business records) with that investigation. I will review the language she’s advocating tomorrow–it is actually worse than the existing language (here’s a good post on DiFi’s changes that’ll give you an idea of where I’m going). But the main point is she’s insisting that investigators be able to use Section 215 even to get information on people with no known tie to terrorism.

In an effort to understand what authorities the FBI is using for this investigation–particularly how it is using Section 215–I thought I’d list all the evidence included in Zazi’s detention motion, along with any comments made about how that evidence was collected. As you can see from the list below, a lot of this investigation relied on information that could be collected via a Section 215 order–particularly the purchase information on Triacetone Triperoxide (TATP) ingredients, but also the hotel records. Perhaps most interesting is the discussion of the three people "associated with Zazi" who bought TATP ingredients bolded in the list below; the source of this evidence is not disclosed.

Details on a August 28, 2008 flight from Newark Airport to Peshawar, Pakistan on Qatar Airlines, evidence collected from Custom and Border Protection

Email account 1, Email account 2, Email account 3

A jpeg of 9 pages of handwritten notes containing instructions on making explosives, including TATP, mailed in December 2008, collected via a "consent search"

Details on a January 15, 2009 flight from Peshawar to JFK on Qatar Airlines

Evidence Zazi transferred and/or accessed the notes on the instructions to make TATP on his laptop in June and July 2009, collected via a "lawfully-authorized search" of the laptop (apparently conducted in September in NY)

Evidence of internet searches for hydrochloric acid in summer 2009 and bookmarks (in two browsers) for a site on "Lab Safety for Hydrochloric Acid," collected via that "lawfully-authorized search" of the laptop 

Evidence Zazi searched "a beauty salon website" for hydrocide and peroxide (the source of this is not specified but it appears in the same paragraph as the discussion of the "lawfully authorized search")

Read more →

Liveblog of SJC Reauthorization of PATRIOT Act

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You can watch the hearing here.

Durbin joins Feingold in complaining that the substitute bill took out the Section 215 oversight.

Durbin: I’m especially concerned that the substitute removes one of the most important reforms from bill–the requirement that govt show some connection to terrorism. Real reason why that has been taken out has been cloaked in secrecy.   I believe that each member of this committee seek a classified briefing to understand why this has been taken out.

Kyl asking for more time, and a classified briefing. 

Kyl: Every time you include a sunset with a bill it provides bargaining leverage for those trying to cut back on authorities in the bill.

[Gee, you think?]

Kyl: Rowley warned of lone wolf problem with Moussaoui.

[Ignoring that they could have gotten a criminal warrant.]

Kyl: Why would we sunset the NSLs? Abuses that occurred are not continuing. 

Franken: Yield for clarification. You said passed on recommendations of the 9/11 Commission?

Kyl: Yes, DiFi and I had a series of recommendations from terrorism subcommittee. For the most part acted on right after 9/11, but not in entirety. 9/11 Commission made series of recommendations, three different laws. My point was that in trying to respond to recommendations.

Cardin: If this gets delayed until December because of differing views, we’ll do a disservice. Compliment you and DiFi. SJC and SSCI both have goal of protecting security and rights of people. Judicary focused on rule of law. 

Whitehouse: Compliments to Leahy and DiFi, and staffs of SSCI and SJC. With adoption of Leahy/DiFI substitute, I be added to cosponsor bill.

DiFi: Respond to two things. Roving wiretap. Has been suggested that roving wiretaps can be used against anyone. In fact roving wiretap can only be used after court order, probable cause that agent of foreign power. W/o that power, terrorist can thwart surveillance by switching phone. That has increasingly happened. Court must also find that target trying to avoid surveillance. NSLs: carefully targeted to make sure can’t be used for highly sensitive information. Subscriber information. Name when phone number is known.

Feingold: As to issue of whether this bill will have to be passed by end of year. Record is when difficulty, extend sunset of bill. No one trying to have PATRIOT die. Never opposed having this in place. No rush to this. As to NSL issue. I am not seeking to have scenario where NSL authority dies. We proposed NSLs that does not have sunset. Notion Read more →

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