Sheldon Whitehouse: We Can’t Unilaterally Disarm, Even to Keep America Competitive

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I have to say, the Senate Judiciary Committee hearing on the dragnet was a bust.

Pat Leahy was fired up — and even blew off a Keith Alexander attempt to liken the Internet to a library with stories of the library card he got when he was 4. While generally favoring the dragnet, Chuck Grassley at least asked decent questions. But because of a conflict with a briefing on the Iran deal, Al Franken was the only other Senator to show up for the first panel. And the government witnesses — Keith Alexander, Robert Litt, and James Cole — focused on the phone dragnet disclosed over 6 months ago, rather than newer disclosures like back door searches and the Internet dragnet, which moved overseas. Litt even suggested — in response to a question from Leahy — that they might still be able to conduct the dragnet if they could bamboozle the FISA Court on relevance, again (see Spencer on that). As a result, no one discussed the systemic legal abuses of the Internet dragnet or NSA’s seeming attempt to evade oversight and data sharing limits by moving their dragnet overseas.

Things went downhill when Leahy left for the Iran briefing and Sheldon Whitehouse presided over the second panel, with the Computer & Communications Industry Association’s Edward Black, CATO’s Julian Sanchez, and Georgetown professor (and former DOJ official) Carrie Cordero. Sanchez hit some key points on the why Internet metadata is not actually like phone pen registers. Cordero acknowledged that metadata was very powerful but then asserted that the metadata of the phone-based relationships of every American was not.

And Black tried to make the case that the spying is killing America.

Or, more specifically, his industry’s little but significant corner of America, the Internet. While only some of this was in his opening statement, Black made the case that the Internet plays a critical role in America’s competitiveness.

While these are critical issues, it is important that the Committee also concern itself with the fact that the behavior of the NSA, combined with the global environment in which this summer’s revelations were released, may well pose an existential threat to the Internet as we know it today, and, consequently, to many vital U.S. interests, including the U.S. economy.

[snip]

The U.S. government has even taken notice. A recent comprehensive re- port from the U.S. International Trade Commission (ITC) noted, “digital trade continues to grow both in the U.S. economy and globally” and that a “further increase in digital trade is probable, with the U.S. in the lead.” In fact, the re- port also shows, U.S. digital exports have exceeded imports and that surplus has continually widened since 2007.

[snip]

As a result, the economic security risks posed by NSA surveillance, and the international political reaction to it, should not be subjugated to traditional national security arguments, as our global competitiveness is essential to long-term American security. It is no accident that the official National Security Strategy of the United States includes increasing exports as a major component of our national defense strategy.

Then he laid out all the ways that NSA’s spying has damaged that vital part of the American economy: by damaging trust, especially among non-American users not granted to the protections Americans purportedly get, and by raising suspicion of encryption.

Black then talked about the importance of the Internet to soft power. He spoke about this generally, but also focused on the way that NSA spying was threatening America’s dominant position in Internet governance, which (for better and worse, IMO) has made the Internet the medium of exchange it is.

The U.S. government position of supporting the multi-stakeholder model of Internet governance has been compromised. We have heard increased calls for the ITU or the United Nations in general to seize Internet governance functions from organizations that are perceived to be too closely associated with the U.S. government, such as the Internet Corporation for Assigned Names and Numbers (ICANN).

And he pointed to proposals to alter the architecture of the Internet to minimize the preferential access the US currently has.

Let’s be honest, Black is a lobbyist, and he’s pitching his industry best as he can. I get that. Yet even still, he’s not admitting that these governance and architecture issues really don’t provide neutrality — though US stewardship may be the least-worst option, it provides the US a big advantage.

What Black hinted at (but couldn’t say without freaking out foreign users even more) is that our stewardship of the Internet is not just one of the few bright spots in our economy, but also a keystone to our power internationally. And it gives us huge spying advantages (not everyone trying to erode our control of the Internet’s international governance is being cynical — Edward Snowden has made it clear we have abused our position).

Which is why Whitehouse’s response was so disingenuous. He badgered Black, interrupting him consistently. He asked him to compare our spying with that of totalitarian governments, which Black responded was an unfair comparison. And Whitehouse didn’t let Black point out that American advantages actually do mean we spy more than others, because we can.

Basically, Whitehouse suggested that, in the era of Big Data,  if we didn’t do as much spying as we could — and to hell with what it did to our preferential position on the Internet — it would amount to unilaterally disarming in the face of Chinese and Russian challenges.

If we were to pass law that prevented us from operating in Big Data, would be unilaterally disarming.

Whitehouse followed this hubris up with several questions that Sanchez might have gladly answered but Black might have had less leeway to answer, such as whether a court had ever found these programs to be unconstitutional. (The answer is yes, John Bates found upstream collection to be unconstitutional, he found the Internet dragnet as conducted for 5 years to be illegal wiretapping, and in the Yahoo litigation in 2007, Yahoo never learned what the minimization procedures were, and therefore never had the opportunity to make the case.) Black suggested, correctly, I think, that Whitehouse’s position meant we were just in an arms race to be the Biggest Brother.

I get it. Whitehouse is one of those who believe — like Keith Alexander (whose firing Whitehouse has bizarrely not demanded, given his stated concerns about the failure to protect our data during Alexander’s tenure) that the Chinese are plundering the US like a colony.

Not only does this stance seem to evince no awareness of how America used data theft to build itself as a country (and how America’s hardline IP stance will kill people, making America more enemies). But it ignores the role of the Internet in jobs and competition and trade in ideas and goods.

Sheldon Whitehouse, from a state suffering economically almost as much as Michigan, seems anxious to piss away what competitive advantages non-defense America has to conduct spying that hasn’t really produced results (and has made our networks less secure as a result — precisely the problem Whitehouse claims to be so concerned about). That’s an ugly kind of American hubris that doesn’t serve this country, even if you adopt the most jingoistic nationalism imaginable.

He should know better than this. But in today’s hearing, he seemed intent on silencing the Internet industry so he didn’t learn better.

Update: Fixed the Black quotation.

Update: Jack Goldsmith pushes back against the American double standards on spying and stealing here.

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When Susan Rice Is Right, She’s Right!

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gps31From the No Kidding Files, courtesy of Jason Leopold, comes this gem from vaunted National Security Advisor Susan Rice:

“Let’s be honest: at times we do business with govts that do not respect the rights we hold most dear”

Well, hello there Susan, I couldn’t agree more. Especially on days when I see things like this from the Glenn Greenwald and Pierre Omidyar Snowden file monopoly err, Barton Gellman at the Washington Post:

The National Security Agency is gathering nearly 5 billion records a day on the whereabouts of cellphones around the world, according to top-secret documents and interviews with U.S. intelligence officials, enabling the agency to track the movements of individuals — and map their relationships — in ways that would have been previously unimaginable.
….
The number of Americans whose locations are tracked as part of the NSA’s collection of data overseas is impossible to determine from the Snowden documents alone, and senior intelligence officials declined to offer an estimate. “It’s awkward for us to try to provide any specific numbers,” one intelligence official said in a telephone interview. An NSA spokeswoman who took part in the call cut in to say the agency has no way to calculate such a figure.

It is thoroughly loathsome that Americans must do business with a government that does this, and insane that it is their own government.

It is “awkward” to determine how many innocent Americans are rolled up in the latest out of control security state dragnet the United States government is running globally. Actually, that is not awkward, it is damning and telling. Therefore the American citizenry must not know, at any cost.

Susan Rice is quite right, we are forced to “do business” with a government that does “not respect the rights we hold most dear”

[Here is the full text of the Susan Rice speech today that the above quote was taken from. It is a great speech, or would be if the morals of the United States under Barack Obama matched the lofty rhetoric]

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Information Monopoly Defines the Deep State

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Monopoly_rutty-FlickrThe last decade witnessed the rise of deep state — an entity not clearly delineated that ultimately controls the military-industrial complex, establishing its own operational policy and practice outside the view of the public in order to maintain its control.

Citizens believe that the state is what they see, the evidence of their government at work. It’s the physical presence of their elected representatives, the functions of the executive office, the infrastructure that supports both the electoral process and the resulting machinery serving the public at the other end of the sausage factory of democracy. We the people put fodder in, we get altered fodder out — it looks like a democracy.

But deep state is not readily visible; it’s not elected, it persists beyond any elected official’s term of office. While a case could be made for other origins, it appears to be born of intelligence and security efforts organized under the Eisenhower administration in response to new global conditions after World War II. Its function may originally have been to sustain the United States of America through any threat or catastrophe, to insure the country’s continued existence.

Yet the deep state and its aims may no longer be in sync with the United States as the people believe their country to be — a democratic society. The democratically elected government does not appear to have control over its security apparatus. This machinery answers instead to the unseen deep state and serves its goals.

As citizens we believe the Department of State and the Department of Defense along with all their subset functions exist to conduct peaceful relations with other nation-states while protecting our own nation-state in the process. Activities like espionage for discrete intelligence gathering are as important as diplomatic negotiations to these ends. The legitimate use of military force is in the monopolistic control of both Departments of State and Defense, defining the existence of a state according to philosopher Max Weber.

The existing security apparatus, though, does not appear to function in this fashion. It refuses to answer questions put to it by our elected representatives when it doesn’t lie to them outright. It manages and manipulates the conditions under which it operates through implicit threats. The legitimacy of the military force it yields is questionable because it cannot be restrained by the country’s democratic processes and may subvert control over military functions.

Further, it appears to answer to some other entity altogether. Why does the security apparatus pursue the collection of all information, in spite of such activities disrupting the ability of both State and Defense Departments to operate effectively? Why does it take both individuals’ and businesses’ communications while breaching their systems, in direct contravention to the Constitution’s Fourth Amendment prohibition against illegal search and seizure? Read more →

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Stuxnet and the Poisons that Open Your Eyes

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Poison_EUstdimage-Wikipedia_200px_mod2Playwright August Strindberg wrote, “…There are poisons that blind you, and poisons that open your eyes.”

We’ve been blinded for decades by complacency and stupidity, as well as our trust. Most Americans still naively believe that our government acts responsibly and effectively as a whole (though not necessarily its individual parts).

By effectively, I mean Americans believed their government would not deliberately launch a military attack that could affect civilians — including Americans — as collateral damage. Such a toll would be minimized substantively. Yesterday’s celebration related to the P5+1 interim agreement regarding Iran’s nuclear development program will lull most Americans into deeper complacency. The existing system worked, right?

But U.S. cyber warfare to date proves otherwise. The government has chosen to deliberately poison the digital waters so that all are contaminated, far beyond the intended initial target.

There’s very little chance of escaping the poison, either. The ubiquity of U.S. standards in hardware and software technology has ensured this. The entire framework — the stack of computing and communications from network to user applications — has been affected.

• Network: Communications pathways have been tapped, either to obtain specific content, or obtain a mirror copy of all content traveling through it. It matters not whether telecom network, or internal enterprise networks.

• Security Layer: Gatekeeping encryption has been undermined by backdoors and weakened standards, as well as security certificates offering handshake validation
between systems.

• Operating Systems: Backdoors have been obtained, knowingly or unknowingly on the part of OS developers, using vulnerabilities and design flaws. Not even Linux can be trusted at this point (Linux progenitor Linus Torvalds has not been smart enough to offer a dead man’s switch notification.)

• User Applications: Malware has embedded itself in applications, knowingly or unknowingly on the part of app developers.

End-to-end, top-to-bottom and back again, everything digital has been touched in one layer of the framework or another, under the guise of defending us against terrorism and cyber warfare.

Further, the government watchdogs entrusted to prevent or repair damage have become part and parcel of the problem, in such a way that they cannot effectively be seen to defend the public’s interests, whether those of individual citizens or corporations. The National Institute of Standards and Technology has overseen the establishment and implementation of weak encryption standards for example; it has also taken testimony [PDF] from computing and communications framework hardware and software providers, in essence hearing where the continued weak spots will be for future compromise.

The fox is watching the hen house, in other words, asking for testimony pointing out the weakest patches installed on the hen house door.

The dispersion of cyber poison was restricted only in the most cursory fashion.

• Stuxnet’s key target appears to have been Iran’s Natanz nuclear facility, aiming at its SCADA equipment, but it spread far beyond and into the private sector as disclosed by Chevron. The only protection against it is the specificity of its end target, rendering the rest of the malware injected but inert. It’s still out there.

• Duqu, a “sibling” cyber weapon, was intended for widespread distribution, its aims two-fold. It delivered attack payload capability, but it also delivered espionage capability.

• Ditto for Flame, yet another “sibling” cyber weapon, likewise intended for widespread distribution, with attack payload and espionage capability.

There could be more than these, waiting yet to be discovered.

In the case of both Duqu and Flame, there is a command-and-control network of servers still in operation, still communicating with instances of these two malware cyber weapons. The servers’ locations are global — yet another indicator of the planners’/developers’ intention that these weapons be dispersed widely.

Poison everything, everywhere.

But our eyes are open now. We can see the poisoners fingerprints on the work they’ve done, and the work they intend to do. Read more →

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NSA Denies Their Existing Domestic Cyberdefensive Efforts, Again

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James Risen and Laura Poitras have teamed up to analyze a 4-year plan the NSA wrote in 2012, in the wake of being told its collection of some US person content in the US was illegal. I’ll discuss the document itself in more depth later. But for the moment I want to look at the denials anonymous senior intelligence officials (SIOs) gave Risen and Poitras about their domestic cyberdefensive efforts.

As a reminder, since before 2008, the government has been collecting bulk Internet data from switches located in the US by searching on selectors in the content. Some of that collection searches on identifiers of people (for example, searching for people sharing Anwar al-Awlaki’s email in the body of a message). But the collection also searches on other identifiers not tied to people. This collection almost certainly includes code, in an effort to find malware and other signs of cyberattacks.

We know that’s true, in part, because the Leahy-Sensenbrenner bill not only restricts that bulk domestic collection to actually targeted people, but also because it limits such collection only to terrorism and counterproliferation, thereby silently prohibiting its use for cybersecurity. The bill gives NSA 6 months to stop doing these two things — collecting non-person selectors and doing so for cybersecurity — so it’s clear such collection is currently going on.

So in 2012, just months after John Bates told NSA that when it collected domestic communications using such searches, it was violating the Constitution (the NSA contemplated appealing that decision), the NSA said (among other things),

The interpretation and guidelines for applying our authorities, and in some cases the authorities themselves, have not kept pace with the complexity of the technology and target environments, or the operational expectations levied on NSA’s mission.

The document then laid out a plan to expand its involvement in cybersecurity, citing such goals as,

Integrate the SIGINT system into a national network of sensors which interactively sense, respond, and alert one another at machine speed

Cyberdefense and offense are not the only goals mapped out in this document. Much of it is geared towards cryptanalysis, which is crucial for many targets. But it only mentions “non-state actors” once (and does not mention terrorists specifically at all) amid a much heavier focus on cyberattacks and after a description of power moving from West to East (that is, to China).

Which is why the SIO denials to Risen and Poitras ring so hollow.

Read more →

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Lavabit and The Definition of US Government Hubris

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Graphic by Darth

Graphic by Darth

Well, you know, if you do not WANT the United States Government sniffing in your and your family’s underwear, it is YOUR fault. Silly American citizens with your outdated stupid piece of paper you call the Constitution.

Really, get out if you are a citizen, or an American communication provider, that actually respects American citizen’s rights. These trivialities the American ethos was founded on are “no longer operative” in the minds of the surveillance officers who claim to live to protect us.

Do not even think about trying to protect your private communications with something so anti-American as privacy enabling encryption like Lavabit which only weakly, at best, even deigned to supply.

Any encryption that is capable of protecting an American citizen’s private communication (or even participating in the TOR network) is essentially inherently criminal and cause for potentially being designated a “selector“, if not target, of any number of searches, whether domestically controlled by the one sided ex-parte FISA Court, or hidden under Executive Order 12333, or done under foreign collection status and deemed “incidental”. Lavabit’s Ladar Levinson knows.

Which brings us to where we are today. Let Josh Gerstein set the stage:

A former e-mail provider for National Security Agency leaker Edward Snowden, Lavabit LLC, filed a legal brief Thursday detailing the firm’s offers to provide information about what appear to have been Snowden’s communications as part of a last-ditch offer that prosecutors rejected as inadequate.

The disagreement detailed in a brief filed Thursday with the U.S. Court of Appeals for the Fourth Circuit resulted in Lavabit turning over its encryption keys to the federal government and then shutting down the firm’s secure e-mail service altogether after viewing it as unacceptably tainted by the FBI’s possession of the keys.

I have a different take on the key language from Lavabit’s argument in their appellate brief though, here is mine:

First, the government is bereft of any statutory authority to command the production of Lavabit’s private keys. The Pen Register Statute requires only that a company provide the government with technical assistance in the installation of a pen- trap device; providing encryption keys does not aid in the device’s installation at all, but rather in its use. Moreover, providing private keys is not “unobtrusive,” as the statute requires, and results in interference with Lavabit’s services, which the statute forbids. Nor does the Stored Communications Act authorize the government to seize a company’s private keys. It permits seizure of the contents of an electronic communication (which private keys are not), or information pertaining to a subscriber (which private keys are also, by definition, not). And at any rate it does not authorize the government to impose undue burdens on the innocent target business, which the government’s course of conduct here surely did.

Second, the Fourth Amendment independently prohibited what the government did here. The Fourth Amendment requires a warrant to be founded on probable cause that a search will uncover fruits, instrumentalities, or evidence of a crime. But Lavabit’s private keys are none of those things: they are lawful to possess and use, they were known only to Lavabit and never used by the company to commit a crime, and they do not prove that any crime occurred. In addition, the government’s proposal to examine the correspondence of all of Lavabit’s customers as it searched for information about its target was both beyond the scope of the probable cause it demonstrated and inconsistent with the Fourth Amendment’s particularity requirement, and it completely undermines Lavabit’s lawful business model. General rummaging through all of an innocent business’ communications with all of its customers is at the very core of what the Fourth Amendment prohibits.

The legal niceties of Lavabit’s arguments are thus:

The Pen Register Statute does not come close. An anodyne mandate to provide information needed merely for the “unobtrusive installation” of a device will not do. If there is any doubt, this Court should construe the statute in light of the serious constitutional concerns discussed below, to give effect to the “principle of constitutional avoidance” that requires this Court to avoid constructions of statutes that raise colorable constitutional difficulties. Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 156–57 (4th Cir. 2010).

And, later in the pleading:

By those lights, this is a very easy case. Lavabit’s private keys are not connected with criminal activity in the slightest—the government has never accused Lavabit of being a co-conspirator, for example. The target of the government’s investigation never had access to those private keys. Nor did anyone, in fact, other than Lavabit. Given that Lavabit is not suspected or accused of any crime, it is quite impossible for information known only to Lavabit to be evidence that a crime has occurred. The government will not introduce Lavabit’s private keys in its case against its target, and it will not use Lavabit’s private keys to impeach its target at trial. Lavabit’s private keys are not the fruit of any crime, and no one has ever used them to commit any crime. Under those circumstances, absent any connection between the private keys and a crime, the “conclusion[] necessary to the issuance of the warrant” was totally absent. Zurcher, 436 U.S., at 557 n.6 (quoting, with approval, Comment, 28 U. Chi. L. Rev. 664, 687 (1961)).

What this boils down to is, essentially, the government thinks the keys to Lavabit’s encryption for their customers belong not just to Lavabit, and their respective customers, but to the United States government itself.

Your private information cannot be private in the face of the United States Government. Not just Edward Snowden, but anybody, and everybody, is theirs if they want it. That is the definition of bullshit.

[Okay, big thanks to Darth, who generously agreed to let us use the killer Strangelovian graphic above. Please follow Darth on Twitter]

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You Were Warned: Cybersecurity Expert Edition — Now with Space Stations

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Over the last handful of days breathless reports may have crossed your media streams about Stuxnet infecting the International Space Station.

The reports were conflations or misinterpretations of cybersecurity expert Eugene Kaspersky’s recent comments before the Australian Press Club in Canberra. Here’s an excerpt from his remarks, which you can enjoy in full in the video embedded above:

[26:03] “…[government] departments which are responsible for the national security for national defense, they’re scared to death. They don’t know what to do. They do understand the scenarios. They do understand it is possible to shut down power plants, power grids, space stations. They don’t know what to do. Uh, departments which are responsible for offense, they see it as an opportunity. They don’t understand that in cyberspace, everything you do is [a] boomerang. It will get back to you.

[26:39] Stuxnet, which was, I don’t know, if you believe American media, it was written, it was developed by American and Israel secret services, Stuxnet, against Iran to damage Iranian nuclear program. How many computers, how many enterprises were hit by Stuxnet in the United States, do you know? I don’t know, but many.

Last year for example, Chevron, they agreed that they were badly infected by Stuxnet. A friend of mine, work in Russian nuclear power plant, once during this Stuxnet time, sent a message that their nuclear plant network, which is disconnected from the internet, in Russia there’s all that this [cutting gestures, garbled], so the man sent the message that their internal network is badly infected with Stuxnet.

[27:50] Unfortunately these people who are responsible for offensive technologies, they recognize cyber weapons as an opportunity. And a third category of the politicians of the government, they don’t care. So there are three types of people: scared to death, opportunity, don’t care.”

He didn’t actually say the ISS was infected with Stuxnet; he only suggested it’s possible Stuxnet could infect devices on board. Malware infection has happened before when a Russian astronaut brought an infected device used on WinXP machines with her to the station.

But the Chevron example is accurate, and we’ll have to take the anecdote about a Russian nuclear power plant as fact. We don’t know how many facilities here in the U.S. or abroad have been infected and negatively impacted as only Chevron to date has openly admitted exposure. It’s not a stretch to assume Stuxnet could exist in every manner of facility using SCADA equipment combined with Windows PCs; even the air-gapped Russian nuclear plant, cut off from the internet as Kaspersky indicates, was infected.

The only thing that may have kept Stuxnet from inflicting damage upon infection is the specificity of the encrypted payload contained in the versions released in order to take out Iran’s Natanz nuclear facility. Were the payload(s) injected with modified code to adapt to their host environs, there surely would have been more obvious enterprise disruptions.

In other words, Stuxnet remains a ticking time bomb threatening energy and manufacturing production at a minimum, and other systems like those of the ISS at worst case. Read more →

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Tapping the Oil Industry

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Remember when it was outrageous that the Iranians had (allegedly) hacked Aramco? In addition to wiping hard drives (though in ways that left the computers recoverable), they also took and threatened to release documents.

In news that I earlier predicted, NSA and GCHQ have hacked OPEC, including Saudi Arabia’s OPEC Minister (though NSA managed to detask him when he came to the US).

Spiegel doesn’t provide much detail of what they’ve gotten — just a tantalizing overview, particularly given the likelihood that the speculation claim pertains to the skyrocketing prices in 2008, which (among other things) the Saudis used to get us into a new security cooperation agreement.

None of this is surprising. But as we try to fearmonger new wars based on one party hacking another, it’s probably safe to assume we got there first.

It stated that OPEC officials were trying to cast the blame for high oil prices on speculators. A look at files in the OPEC legal department revealed how the organization was preparing itself for an antitrust suit in the United States. And a review of the section reserved for the OPEC secretary general documented that the Saudis were using underhanded tactics, even within the organization. According to the NSA analysts, Riyadh had tried to keep an increase in oil production a secret for as long as possible.

Our TCA with Saudi Arabia (and the fact that we (Booz, in fact!) are now providing it with cybersecurity) may well be one reason it is no longer a top NSA target.

OPEC appears in the “National Intelligence Priorities Framework,” which the White House issues to the US intelligence community. Although the organization is still listed as an intelligence target in the April 2013 list, it is no longer a high-priority target.

Who needs to hack when you’re in charge of cybersecurity?

And guess which company has a lot of that business? Edward Snowden’s former employer, Booz.

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The Intelligence Community’s Wide Open, Unprotected Back Door to All Your Content

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PCLOB has posted the transcript from the first part of its hearing on Monday. So I want to return to the issue I raised here: both Director of National Intelligence General Counsel Robert Litt and NSA General Counsel Raj De admit that there are almost no limits on Intelligence Community searches of incidentally collection US person data (we know that FBI, NSA, and CIA have this authority, and I suspect National Counterterrorism Center does as well).

This discussion starts when PCLOB Chair David Medine asks whether the IC would consider getting a warrant before searching on incidentally collected data.

MR. MEDINE: And so turning to the protections for U.S. persons, as I understand it under the 702 program when you may target a non-U.S. person overseas you may capture communications where a U.S. person in the United States is on the other end of the communication. Would you be open to a warrant requirement for searching that data when your focus is on the U.S. person on the theory that they would be entitled to Fourth Amendment rights for the search of information about that U.S. person?

MR. DE: Do you want me to take this?

MR. LITT: Thanks, Raj. Raj is always easy, he raises his hands for all the easy ones.

MR. DE: I can speak for NSA but this obviously has implications beyond just NSA as well.

MR. LITT: I think that’s really an unusual and extraordinary step to take with respect to information that has been lawfully required.

I mean I started out as a prosecutor. There were all sorts of circumstances in which information is lawfully acquired that relates to persons who are not the subject of investigations. You can be overheard on a Title III wiretap, you can overheard on a Title I FISA wiretap. Somebody’s computer can be seized and there may be information about you on it.

The general rule and premise has been that information that’s lawfully acquired can be used by the government in the proper exercise of authorities.

Now we do have rules that limit our ability to collect, retain and disseminate information about U.S. persons. Those rules, as know, are fairly detailed. But generally speaking, we can’t do that except for foreign intelligence purposes, or when there’s evidence of a crime, or so on and so forth. But what we can’t do under Section 702 is go out and affirmatively use the collection authority for the purpose of getting information about U.S. persons. Once we have that information I don’t think it makes sense to say, you know, a year later if something comes up we need to go back and get a warrant to search that information. [my emphasis]

Litt compares finding incidental information on a laptop, presumably seized using a warrant, with searching for incidental information on a digital collection that includes very few limits on specificity. Remember, NSA can and has claimed a targeted “facility” may mean all the Internet traffic from a particular country or at least a region of a country. This is petabytes of data obtained with a directive, not gigabytes obtained with a specific warrant.

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Leahy-Sensenbrenner Would Shut the Section 702 Cybersecurity Loophole

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Section 702 Reporting HighlightI’m going to have a few posts on the Leahy-Sensenbrenner bill, which is the most likely way we’ll be able to rein in NSA spying. In addition to several sections stopping bulk collection, it has a section on collection of US person data under FISA Amendments Act (I’ll return to the back-door loophole later).

But I’m particularly interested in what it does with upstream collection. It basically adds a paragraph to section d of Section 702 that limits upstream collection to two uses: international terrorism or WMD proliferation.

(C) limit the acquisition of the contents of any communication to those communications—

(i) to which any party is a target of  the acquisition; or

(ii) that contain an account identifier of a target of an acquisition, only if such communications are acquired to protect against international terrorism or the international proliferation of weapons of mass destruction.;

And adds a definition for “account identifier” limiting it to identifiers of people.

(1) ACCOUNT IDENTIFIER.—The term ‘account identifier’ means a telephone or instrument number, other subscriber number, email address, or  username used to uniquely identify an account.

I believe the effect of this is to prevent NSA from using Section 702 to conduct cyberdefense in the US.

As I have noted, there are reasons to believe that NSA uses Section 702 for just 3 kinds of targets:

  • International terrorism
  • WMD proliferation
  • Cybersecurity

There are many reasons to believe one primary use of Section 702 for cybersecurity involves upstream collection targeted on actual pieces of code (that is, the identifier for a cyberattack, rather than the identifier of a user). As an example, the slide above, which I discuss in more detail here, explains that one of the biggest Section 702 successes involves preventing an attacker from exfiltrating 150 Gigs of data from a defense contractor. The success involved both PRISM and STORMBREW, the latter of which is upstream collection in the US.

In other words, the government has been conducting upstream collection within the US to search for malicious code (I’m not sure how they determine whether the code originated in a foreign country though given that they refuse to count domestic communications collected via upstream collection, I doubt they care).

So what these two sections of Leahy-Sensenbrenner would do is 1) limit the use of upstream collection to terrorists and proliferators, thereby prohibiting its use for cybersecurity, and 2) define “account identifier” to exclude something like malicious code.

There’s one more interesting aspect of this fix. Unlike many other sections of the bill, it doesn’t go into effect right away.

EFFECTIVE DATE.—The amendments made by subsections (a) and (b) shall take effect on the date that is 180 days after the date of the enactment of this Act.

The bill gives the Executive 6 months to find an alternative to this use of Section 702 — presumably, to pass a cybersecurity bill explicitly labeled as such.

Keith Alexander and others have long talked about the need to scan domestic traffic to protect against cyberattacks. But it appears — especially given the 6 month effective date on these changes — they’re already doing that, all in the name of foreign intelligence.

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