The Government Has a Festering EO 12333 Problem In Jewel/First Unitarian

The government claims it does not have a protection order pertaining to the phone dragnet lawsuits because the suits with a protection order pertain only to presidentially-authorized programs.

The declaration made clear, in a number of places, that the plaintiffs challenged activities that occurred under presidential authorization, not under orders of the Foreign Intelligence Surveillance Court (FISC), and that the declaration was therefore limited to describing information collected pursuant to presidential authorization and the retention thereof.

Therefore, the government is challenging the EFF’s effort to get Judge Jeffrey White to reaffirm that the preservation orders in the Multidistrict Litigation and Jewel apply to the phone dragnet.

Fine. I think EFF can and should challenge that claim.

But let’s take the government at its word. Let’s consider what it would obliged to retain under the terms laid out.

The government agrees it was obliged, starting in 2007, to keep the content and metadata dragnets that were carried out exclusively on presidential authorization. Indeed, the declaration from 2007 they submitted describing the material they’ve preserved includes telephone metadata (on tapes) and the queries of metadata, including the identifiers used (see PDF 53). It also claimed it would keep the reports of metadata analysis.

That information is fundamentally at issue in First Unitarian Church, the EFF-litigated challenge to the phone dragnet. That’s true for three reasons.

First, the government makes a big deal of their claim, made in 2007, that the metadata dragnet databases were segregated from other programs. Whether or not that was a credible claim in 2007, we know it was false starting in early 2008, when “for the purposes of analytical efficiency,” a copy of that metadata was moved into the same database with the metadata from all the other programs, including both the Stellar Wind phone dragnet data, and the ongiong phone dragnet information collected under EO 12333.

And given the government’s promise to keep reports of metadata analysis, from that point until sometime several years later, it would be obliged to keep all phone dragnet analysis reports involving Americans. That’s because — as is made clear from this Memorandum of Understanding issued sometime after March 2, 2009 — the analysts had no way of identifying the source of the data they were analyzing. The MOU makes clear that analysts were performing queries on data including “SIGINT” (EO 12333 collected data), [redacted] — which is almost certainly Stellar Wind, BRFISA, and PR/TT. So to the extent that any metadata report didn’t have a clear time delimited way of identifying where the data came from, the NSA could not know whether a query report came from data collected solely pursuant to presidential authorization or FISC order. (The NSA changed this sometime during or before 2011, and now metadata all includes XML tags showing its source; though much of it is redundant and so may have been collected in more than one program, and analysts are coached to re-run queries to produce them under EO 12333 authority, if possible.)

Finally, the real problem for the NSA is that the data “alerted” illegally up until 2009 — including the 3,000 US persons watchlisted without undergoing the legally required First Amendment review — was done so precisely because when NSA merged its the phone dragnet data with the data collected under Presidential authorization — either under Stellar Wind or EO 12333 — it applied the rules applying to the presidentially-authorized data, not the FISC-authorized data. We know that the NSA broke the law up until about 5 years ago. We know the data from that period — the data that is under consideration for being aged off now — broke the law precisely because of the way the NSA mixed EO 12333 and FISC regulations and data.

The NSA’s declarations on document preservation — not to mention the declarations about the dragnets more generally — don’t talk about how the EO 12333 data gets dumped in with and mixed up with the FISC-authorized data. That’s NSA’s own fault (and if I were Judge White it would raise real questions for me about the candor of the declarants).

But since the government agreed to preserve the data collected pursuant to presidential authorization without modification (without, say, limiting it to the Stellar Wind data), that means they agreed to preserve the EO 12333 collected data and its poisonous fruit which would just be aging off now.

I will show in a follow-up post why that data should be utterly critical, specifically as it pertains to the First Unitarian Church suit.

But suffice it to say, for now, that the government’s claim that it is only obliged to retain the US person data collected pursuant to Presidential authorization doesn’t help it much, because it means it has promised to retain all the data on Americans collected under EO 12333 and queries derived from it.

The Clear Precedent for Carrie Cordero’s “Uncharted Territory” of Destruction of Evidence

Shane Harris has a report on the government’s odd behavior in regards to preserving the phone dragnet data in light of the suits challenging its legality.

It’s surprising on three counts. First, because he claims the legal back and forth has not previously been reported.

Now, that database will include phone records that are older than five years — not exactly the outcome that critics of the NSA program were hoping for. A dramatic series of legal maneuvers, which have not been previously reported, led the outcome.

It’s surprising not just because the “legal maneuvers” have in fact been reported before (though not the detail that James Cole got involved, though it’s not yet clear how his involvement affected the actual legal maneuvers rather than the internal DOJ communication issues). But also because Harris neglects to mention key details of those legal maneuvers — notably that EFF reminded DOJ, starting on February 26, that it had preservation orders that should affect the dragnet data, reminders which DOJ stalled and then ignored.

Harris’ piece is also surprising because of the implicit suggestion that NSA hasn’t been aging off data regularly, as it is supposed to be.

A U.S. official familiar with the legal process said the question about what to do with the phone records needn’t have been handled at practically the last minute. “The government was coming up on a five-year deadline to delete the data. Lawsuits were pending. The Justice Department could have approached the FISC months ago to resolve this,” the official said, referring to the Foreign Intelligence Surveillance Court.

There should be no “deadline” here — aside from the daily “deadline” that should automatically age off the five year old data. Now, the WSJ had previously reported that that’s not actually how age-off works.

As the NSA program currently works, the database holds about five years of data, according to officials and some declassified court opinions. About twice a year, any call record more than five years old is purged from the system, officials said.

But even assuming NSA only ages off data twice a year (in which case they should stop claiming they only “keep” data for 5 years because they already keep some of it for 5 1/2 years), most of these suits are well older than 6 months old, predating what might have been an August age-off, which means unless NSA already deviated from its normal pattern, it deleted data relevant to the suits.

By far the most surprising detail in Harris’ story, however, is this response from former DOJ National Security Division Counsel Carrie Cordero to the news that Deputy Attorney General James Cole has gotten involved. This is, Cordero claims, “uncharted territory.”

“This is all uncharted territory,” said Carrie Cordero, a former senior Justice Department official who recently served as the counsel to the head of the National Security Division. “Given the complexity and the novelty of this chain of events, it’s a good thing that the deputy attorney general is personally engaged, and it demonstrates the significant attention that they’re giving to it.”

To be more specific about Cordero’s work history, from 2007 to 2011, she was deeply involved in FISA-related issues, first at ODNI and then at DOJ’s NSD.

In 2009, I served as Counsel to the Assistant Attorney General for National Security at the Unit ed States Department of Justice, where I co – chaired an interagency group created by the Director of National Intelligence (DNI) to improve FISA processes. From 2007 – 2009, I served in a joint duty capacity as a Senior Associate General Counsel at the Office of the Director of National Intelligence, where I worked behind the scenes on matters relating to the legislative efforts that resulted in the FISA Amendments Act of 2008.

Given her position in the thick of FISA-related issues, one would think she was at least aware of the protection order Vaughn Walker issued on November 6, 2007 ordering the preservation of evidence, up to and including “tangible things,” in the multidistrict litigation issues pertaining to the dragnet.

[T]he court reminds all parties of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data and tangible things in the possession, custody and control of the parties to this action,

And Cordero presumably should be aware that Walker renewed the same order on November 13, 2009, extending it to cover the Jewel suit, which had an ongoing focus.

Cordero is presumably aware of two other details. First, there should be absolutely no dispute that the phone dragnet was covered by these suits. That’s because at least as early as May 25, 2007 (and again in a declaration submitted October 2009), Keith Alexander included the phone dragnet among the things he considered related to the EFF and other suits over which he claimed state secrets.

In particular, disclosure of the NSA’s ability to utilize the TSP (or, therefore, the current FISA Court-authorized content collection) in conjunction with contact chaining [redacted–probably relating to data mining] would severely undermine efforts to detect terrorist activities.

[snip]

To the extent that the NSA’s bulk collection and targeted analysis of communication meta data may be at issue in this case, those activities–as described in paragraphs 27 and 28 above–must also be protected from disclosure.

In paragraphs 27 and 28 and the following paragraphs, Alexander named the FISC Pen Register and Telephone Records Orders by name.

Thus, as far back as 2007, the NSA acknowledged that it used its content collection in conjunction with its metadata dragnets, including data obtained pursuant to the FISA dragnet orders.

Read more

John Brennan’s Parallel “Investigative, Protective, or Intelligence Activity”

Yesterday, Jack Goldsmith defended CIA lawyer Robert Eatinger for referring Senate Intelligence Committee staffers for criminal investigation. Eatinger had no choice but to refer his Agency’s overseers, you see, because EO 12333 required it.

I knew Eatinger a bit when I was at OLC a decade ago, and based on that experience I agree with John Rizzo that “[h]e doesn’t have a political bone in his body” and “[i]f he made this referral, it’s because he felt it was the right and necessary thing to do.”

It might be useful to articulate the standard for the “right and necessary thing to do,” because I think that standard is at the bottom of this corner of the controversy.  The standard comes from Section 6.1(b) of E.O. 12,333, which imposes a duty on the CIA Director to:

Report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures;

I believe that the CIA Director delegates this duty to the CIA General Counsel.

Note how low the bar is for the referral—possible violations of federal law.  Think about what that low standard means.  It means that CIA often has a duty to refer a matter to DOJ that it is reasonably confident does not violate federal law, simply because the matter possibly violates federal law.  As John Radsan noted in his study of the CIA General Counsel’s Office, the low standard results in CIA making “several referrals to the Justice Department in a typical month.”  It might seem that these frequent referrals are signs of lawlessness, but in fact they are a mechanism of accountability. The very soft trigger of “possible” as opposed to “likely” or “actual” violations promotes significant over-reporting and allows another Agency, DOJ, to decide the appropriate action in the first instance.” [my emphasis]

Nice try.

But there’s a significant problem with that. In response to Ron Wyden’s question about whether CIA is subject to the Computer Fraud and Abuse Act — a polite way of suggesting CIA hacked the Committee server — John Brennan told Wyden,

The statute does apply. The Act, however, expressly “does not prohibit any lawfully authorized investigative, protective, or intelligence activity … of an intelligence agency of the United States.” 18 U.S.C. § 1030(f).

In other words, Brennan implicitly asserts the CIA snooping on SSCI was legal because CIA was engaged in lawfully authorized “investigative, protective, or intelligence activity.”

Side note: what are the chances that Brennan, who likes to remind that he’s not a lawyer when he gets legally dangerous questions, consulted with CIA’s Acting General Counsel Robert Eatinger in crafting this response to Wyden?

But let’s look at when and how Brennan chose to engage in what he claims is either “investigative, protective, or intelligence activity” and when and how Eatinger found SSCI’s oversight of CIA reached the “low bar” that merited referral.

Read more

In Nomination Hearing, DIRNSA Nominee Mike Rogers Continues James Clapper and Keith Alexander’s Obfuscation about Back Door Searches

Yesterday, the Senate Armed Services Committee held a hearing for Vice Admiral Mike Rogers to serve as head of Cyber Command (see this story from Spencer about how Rogers’ confirmation as Cyber Command chief serves as proxy for his role as Director of National Security Agency because the latter does not require Senate approval).

Many of the questions were about Cyber Command (which was, after all, the topic of the hearing), but a few Senators asked questions about the dragnet that affects us all.

In one of those exchanges — with Mark Udall — Rogers made it clear that he intends to continue to hide the answers to very basic questions about how NSA conducts warrantless surveillance of Americans, such as whether the NSA conducts back door searches on American people.

Udall: If I might, in looking ahead, I want to turn to the 702 program and ask a policy question about the authorities under Section 702 that’s written into the FISA Amendments Act. The Committee asked your understanding of the legal rationale for NASA [sic] to search through data acquired under Section 702 using US person identifiers without probable cause. You replied the NASA–the NSA’s court approved procedures only permit searches of this lawfully acquired data using US person identifiers for valid foreign intelligence purposes and under the oversight of the Justice Department and the DNI. The statute’s written to anticipate the incidental collection of Americans’ communications in the course of collecting the communications of foreigners reasonably believed to be located overseas. But the focus of that collection is clearly intended to be foreigners’ communications, not Americans. But declassified court documents show that in 2011 the NSA sought and obtained the authority to go through communications collected under Section 702 and conduct warrantless searches for the communications of specific Americans. Now, my question is simple. Have any of those searches been conducted?

Rogers: I apologize Sir, I’m not in a position to answer that as the nominee.

Udall: You–yes.

Rogers: But if you would like me to come back to you in the future if confirmed to be able to specifically address that question I will be glad to do so, Sir.

Udall: Let me follow up on that. You may recall that Director Clapper was asked this question in a hearing earlier this year and he didn’t believe that an open forum was the appropriate setting in which to discuss these issues. The problem that I have, Senator Wyden’s had, and others is that we’ve tried in various ways to get an unclassified answer — simple answer, yes or no — to the question. We want to have an answer because it relates — the answer does — to Americans’ privacy. Can you commit to answering the question before the Committee votes on your nomination?

Rogers: Sir, I believe that one of my challenges as the Director, if confirmed, is how do we engage the American people — and by extension their representatives — in a dialogue in which they have a level of comfort as to what we are doing and why. That is no insignificant challenge for those of us with an intelligence background, to be honest. But I believe that one of the takeaways from the situation over the last few months has been as an intelligence professional, as a senior intelligence leader, I have to be capable of communicating in a way that we are doing and why to the greatest extent possible. That perhaps the compromise is, if it comes to the how we do things, and the specifics, those are perhaps best addressed in classified sessions, but that one of my challenges is I have to be able to speak in broad terms in a way that most people can understand. And I look forward to that challenge.

Udall: I’m going to continue asking that question and I look forward to working with you to rebuild the confidence. [my emphasis]

The answer to the question Rogers refused to answer is clearly yes. We know that’s true because the answer is always yes when Wyden, and now Udall, ask such questions.

But we also know the answer is yes because declassified parts of last August’s Semiannual Section 702 Compliance Report state clearly that oversight teams have reviewed the use of this provision, which means there’s something to review.

As reported in the last semiannual assessment, NSA minimization procedures now permit NSA to query its databases containing telephony and non-upstream electronic communications using United States person identifiers in a manner designed to find foreign intelligence information. Similarly, CIA’s minimization procedures have been modified to make explicit that CIA may also query its databases using United States person identifiers to yield foreign intelligence information. As discussed above in the descriptions of the joint oversight team’s efforts at each agency, the joint oversight team conducts reviews of each agency’s use of its ability to query using United States person identifiers. To date, this review has not identified any incidents of noncompliance with respect to the use of United States person identifiers; as discussed in Section 4, the agencies’ internal oversight programs have, however, identified isolated instances in which Section 702 queries were inadvertently conducted using United States person identifiers. [my emphasis]

It even obliquely suggests there have been “inadvertent” violations, though this seems to entail back door searches on US person identifiers without realizing they were US person identifiers, not violations of the procedures for using back door searches on identifiers known to be US person identifiers.

Still, it is an unclassified fact that NSA uses these back door searches.

Yet the nominee to head the NSA refuses to answer a question on whether or not NSA uses these back door searches.

And it’s not just in response to this very basic question that Rogers channeled the dishonest approach of James Clapper and Keith Alexander.

As Udall alluded, at the end of a long series of questions about Cyber Command, the committee asked a series of questions about back door searches and other dragnet issues. They asked (see pages 42-43):

  • Whether NSA can conduct back door searches on data acquired under EO 12333 and if so under what legal rationale
  • Whether NSA can conduct back door searches on data acquired pursuant to traditional FISA and if so under what legal rationale
  • What the legal rationale is for back door searches on data acquired under FISA Amendments Act
  • What the legal rationale is for searches on the Section 215 query results in the “corporate store”

I believe every single one of Rogers’ answers — save perhaps the question on traditional FISA — involves some level of obfuscation. (See this post for further background on what NSA’s Raj De and ODNI’s Robert Litt have admitted about back door searches.)

Consider his answer on searches of the “corporate store” as one example.

What is your understanding of the legal rationale for searching through the “Corporate Store” of metadata acquired under section 215 using U.S. Persons identifiers for foreign intelligence purposes?

The section 215 program is specifically authorized by orders issued by the Foreign Intelligence Surveillance Court pursuant to relevant statutory requirements. (Note: the legality of the program has been reviewed and approved by more than a dozen FISC judges on over 35 occasions since 2006.) As further required by statute, the program is also governed by minimization procedures adopted by the Attorney General an d approved by the FISC. Those orders, and the accompanying minimization procedures, require that searches of data under the program may only be performed when there is a Reasonable Articulable Suspicion that the identifier to be queried is associated with a terrorist organization specified in the Court’s order.

Remember, not only do declassified Primary Orders make it clear NSA doesn’t need Reasonable Articulable Suspicion to search the corporate store, but PCLOB has explained the possible breadth of “corporate store” searches plainly.

According to the FISA court’s orders, records that have been moved into the corporate store may be searched by authorized personnel “for valid foreign intelligence purposes, without the requirement that those searches use only RAS-approved selection terms.”71 Analysts therefore can query the records in the corporate store with terms that are not reasonably suspected of association with terrorism. They also are permitted to analyze records in the corporate store through means other than individual contact-chaining queries that begin with a single selection term: because the records in the corporate store all stem from RAS-approved queries, the agency is allowed to apply other analytic methods and techniques to the query results.72 For instance, such calling records may be integrated with data acquired under other authorities for further analysis. The FISA court’s orders expressly state that the NSA may apply “the full range” of signals intelligence analytic tradecraft to the calling records that are responsive to a query, which includes every record in the corporate store.73

There is no debate over whether NSA can conduct back door searches in the “corporate store” because both FISC and PCLOB say they can.

Which is probably why SASC did not ask whether this was possible — it is an unclassified fact that it is — but rather what the legal rationale for doing so is.

And Rogers chose to answer this way:

  1. By asserting that the phone dragnet must comply with statutory requirements
  2. By repeating tired boilerplate about how many judges have approved this program (ignoring that almost all of these approvals came before FISC wrote its first legal opinion on the program)
  3. By pointing to AG-approved minimization procedures (note–it’s not actually clear that NSA’s — as distinct from FBI’s — dragnet specific procedures are AG-approved, though the more general USSID 18 ones are)
  4. By claiming FISA orders and minimization procedures “require that searches of data under the program may only be performed when there is a Reasonable Articulable Suspicion that the identifier to be queried is associated with a terrorist organization”

The last part of this answer is either downright ignorant (though I find that unlikely given how closely nominee responses get vetted) or plainly non-responsive. The question was not about queries of the dragnet itself — the “collection store” of all the data. The question was about the “corporate store” — the database of query results based off those RAS approved identifiers. And, as I said, there is no dispute that searches of the corporate store do not require RAS approval. In fact, the FISC orders Rogers points to say as much explicitly.

And yet the man Obama has picked to replace Keith Alexander, who has so badly discredited the Agency with his parade of lies, refused to answer that question directly. Much less explain the legal rationale used to conduct RAS-free searches on phone query results showing 3rd degree connections to someone who might have ties to terrorist groups, which is what the question was.

Which, I suppose, tells us all we need to know about whether anyone plans to improve the credibility or transparency of the NSA.

2008’s New and Improved EO 12333: Sharing SIGINT

As part of my ongoing focus on Executive Order 12333, I’ve been reviewing how the Bush Administration changed the EO when, shortly after the passage of the FISA Amendments Act, on July 30, 2008, they rolled out a new version of the order, with little consultation with Congress. Here’s the original version Ronald Reagan issued in 1981, here’s the EO making the changes, here’s how the new and improved version from 2008 reads with the changes.

While the most significant changes in the EO were — and were billed to be — the elaboration of the increased role for the Director of National Intelligence (who was then revolving door Booz executive Mike McConnell), there are actually several changes that affected NSA.

Perhaps the most striking of those is that, even while the White House claimed “there were very, very few changes to Part 2 of the order” — the part that provides protections for US persons and imposes prohibitions on activities like assassinations — the EO actually replaced what had been a prohibition on the dissemination of SIGINT pertaining to US persons with permission to disseminate it with Attorney General approval.

The last paragraph of 2.3 — which describes what data on US persons may be collected — reads in the original,

In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.

The 2008 version requires AG and DNI approval for such dissemination, but it affirmatively permits it.

In addition, elements of the Intelligence Community may disseminate information to each appropriate element within the Intelligence Community for purposes of allowing the recipient element to determine whether the information is relevant to its responsibilities and can be retained by it, except that information derived from signals intelligence may only be disseminated or made available to Intelligence Community elements in accordance with procedures established by the Director in coordination with the Secretary of Defense and approved by the Attorney General.

Given that the DNI and AG certified the minimization procedures used with FAA, their approval for any dissemination under that program would be built in here; they have already approved it! The same is true of the SPCMA — the EO 12333 US person metadata analysis that had been approved by both Attorney General Mukasey and Defense Secretary Robert Gates earlier that year. Also included in FISA-specific dissemination, the FBI had either just been granted, or would be in the following months, permission — in minimization procedures approved by both the DNI and AG — to conduct back door searches on incidentally collected US person data.

In other words, at precisely the time when at least 3 different programs expanded the DNI and AG approved SIGINT collection and analysis of US person data, EO 12333 newly permitted the dissemination of that information.

And a more subtle change goes even further. Section 2.5 of the EO delegates authority to the AG to “approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes.” In both the original and the revised EO, that delegation must be done within the scope of FISA (or FISA as amended, in the revision). But in 1981, FISA surveillance had to be “conducted in accordance with that Act [FISA], as well as this Order,” meaning that the limits on US person collection and dissemination from the EO applied, on top of any limits imposed by FISA. The 2008 EO dropped the last clause, meaning that such surveillance only has to comply with FISA, and not with other limits in the EO.

That’s significant because there are at least three things built into known FISA minimization procedures — the retention of US person data to protect property as well as life and body, the indefinite retention of encrypted communications, and the broader retention of “technical data base information” — that does not appear to be permitted under the EO’s more general guidelines but, with this provision, would be permitted (and, absent Edward Snowden, would also be hidden from public view in minimization procedures no one would ever get to see).

Read more

NSA May Not Voyeuristically Pore Through Email But GCHQ Voyeuristically Pores Through WebCam Pictures

Back in James Clapper’s very first attempt to dismiss his lies to Ron Wyden, he said,

“What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that,” Clapper told National Journal in a telephone interview.

Apparently, however, NSA’s partner goes one step beyond that, with NSA”s assistance: GCHQ pores through bulk collected webcam photos, including those of US persons, of Yahoo’s users.

Britain’s surveillance agency GCHQ, with aid from the National Security Agency, intercepted and stored the webcam images of millions of internet users not suspected of wrongdoing, secret documents reveal.

GCHQ files dating between 2008 and 2010 explicitly state that a surveillance program codenamed Optic Nerve collected still images of Yahoo webcam chats in bulk and saved them to agency databases, regardless of whether individual users were an intelligence target or not.

This includes the 3 to 11% of images that show nudity.

Sexually explicit webcam material proved to be a particular problem for GCHQ, as one document delicately put it: “Unfortunately … it would appear that a surprising number of people use webcam conversations to show intimate parts of their body to the other person. Also, the fact that the Yahoo software allows more than one person to view a webcam stream without necessarily sending a reciprocal stream means that it appears sometimes to be used for broadcasting pornography.”

The document estimates that between 3% and 11% of the Yahoo webcam imagery harvested by GCHQ contains “undesirable nudity”.

Given past discussions of circumcision in regards to terrorist suspects, it’s only a matter of time before GCHQ defends its nudity stash because such evidence can be proof of radicalization (heh). Plus, we already know that NSA and GCHQ like to use targets’ online porn habits to discredit them.

Coming soon to an “oversight” hearing near you: James Clapper refuses to talk about this invasion of an American company’s customers’ privacy because it occurs under EO 12333 and liaison partnerships, and therefore is not subject to Congressional oversight.

Jack Goldsmith’s Still Active Presidential Dragnet Authorization

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.

Of course, just yesterday both Dianne Feinstein and Mark Udall made it clear that no one at DOJ is paying close attention to EO 12333 — that is, Presidentially — authorized activities. So how would she know?

One way or another, the Executive Branch still has OLC sanction to conduct a phone dragnet off the books, using only Presidential authorization.

The question is whether, in addition to pointing to this authorization, Wyden is also suggesting that the Executive is currently using it.

(h/t to KH for alerting me that the QFRs had been posted)

Does Acting National Security Division Head John Carlin Know about FISA Sections 703 and 704?

There were several curious exchanges in today’s hearing for Acting National Security Division AAG John Carlin to become the official AAG.

I’ll start with this exchange. (After 1:01, my transcription)

Udall: I want to talk about Executive Order 12333, with which you’re familiar. I understand that the collection, retention, or dissemination of information about US persons is prohibited under Executive Order 12333 except under certain procedures approved by the Attorney General. But this doesn’t mean that US person information isn’t mistakenly collected or obtained and then disseminated outside these procedures, so take this example. Let’s say the NSA’s conducting what it believes to be foreign to foreign collection under EO 12333 but discovers in the course of this collection that it also incidentally collected a vast trove of US person information. That US person collection should now have FISA protections. What role does the NSD have in overseeing any collection, retention, or dissemination of US person information that might occur under that executive order?

Carlin: Senator, so, generally the intelligence activities that NSA would conduct under its authorities pursuant to EO 12333 would be done pursuant to a series of guidelines that were approved by the Attorney General and then ultimately implemented through additional policies and procedures by NSA. But the collection activities that occur pursuant to 12333, if there was incidental collection, would be handled through a different set of oversight mechanisms than the Departments–by the Office of Compliance, the Inspector General there, the General Counsel there, and the Inspector General and General Counsel’s office for the Intelligence Community writ large, as well as reporting to these committees as appropriate.

Udall: So you don’t see a role for NSD in ensuring that that data is protected under FISA?

Carlin: Under FISA, no, under FISA we would have a direct role, so if it was under, if it was collection that was pursuant to the FISA statutes, so collection targeted at US persons, for example, or collection targeted at certain non-US persons overseas that was collected domestically such as pursuant to the 702 collection program. That would fall within the scope of the National Security Division. That’s information that — and oversight that we conduct through our oversight section in conjunction with the agencies. We would have the responsibility in terms of informing, of working with them to inform the court if there were any compliance incidents and making sure those compliance incidents were addressed.

Udall: My time’s obviously expired, but I think you don’t understand where I’m coming from here. One is to make sure the DOJ and you in your capacity have the most accurate information so you can represent United States of America and our citizens in the best possible way, and secondly that you have an additional role to play in providing additional oversight. Those are all tied to having information that’s factual, that’s based on what happened, and I’m going to continue to look for ways possible to make sure that’s what does happen, whether it’s under the auspices of the IC or the DOJ. You all have a responsibility to protect the Bill of Rights.

Udall asks Carlin about a “vast trove” of US person data collected under the guise of EO 12333, and asks whether NSD would have a role in protecting it under FISA.

Carlin responds by saying NSD wouldn’t have any role; only NSA and ODNI have oversight over EO 12333 compliance with the Attorney General approved guidelines.

At first, I thought Udall didn’t get Carlin’s point — that this data would get no FISA protection. (Earlier in the hearing, Dianne Feinstein had even pointed out EO 12333 collection gets less oversight, and suggested maybe NSD should play a role in EO 12333 compliance.)

But upon review, Udall may have been suggesting something else (I have a question in with his office seeking clarity on this point).

By all appearances, this was content, not metadata (under SPCMA, metadata collection is considered fair game).

US person content cannot be collected overseas — not intentionally at least — outside the purview of FISA sections 703 and 704.

And while admittedly I have yet to meet a lawyer who has been able to explain precisely how those statutes work, and while the White House has given particularly crazy answers on this point, it seemed that Carlin couldn’t even conceive of a way that US person content collected overseas would be protected under FISA.

He may simply be reflecting NSA policy that if they collect US person content overseas under EO 12333, they call it incidental and therefore never have to consider the FISA implications. And that may well be what the letter of the law provides (in which case I’m sure NSA never ever exploits that loophole, nosirree bob).

But he seemed completely unfamiliar with the concept that, under FISA Amendments Act, US persons do get FISA protection overseas.

Really?

Update: According to Udall’s spokesperson, he wasn’t specifically thinking of 703 and 704, but asking whether this data “should” fall under FISA and therefore under NSD’s oversight.

 

Between Two Ends of the WikiLeaks Investigation: Parallel Constructing the FBI’s Secret Authorities

Two pieces of news on the government’s investigation of WikIleaks came out yesterday.

At the Intercept, Glenn Greenwald reported:

  • In 2010, a “Manhunting Timeline” described efforts to get another country to prosecute what it called the “rogue” website
  • In a targeting scenario dating to July 25, 2011, the US’ Targeting and General Counsel personnel responded to a question about targeting WikiLeaks’ or Pirate Bay’s server by saying they’d have to get back to the questioner
  • In 2012, GCHQ monitored WikiLeaks — including its US readers — to demonstrate the power of its ANTICRISIS GIRL initiative

Screen Shot 2014-02-19 at 9.42.54 AM
Also yesterday, Alexa O’Brien reported (and contextualized with links back to her earlier extensive reporting):

  • The grand jury investigation of WikiLeaks started at least as early as September 23, 2010
  • On January 4, 2011 (21 days after the December 14, 201 administrative subpoena for Twitter records on Appelbaum and others), DOJ requested Jacob Appelbaum’s Gmail records
  • On April 15, 2011, DOJ requested Jacob Appelbaum’s Sonic records

Now, as O’Brien lays out in her post, at various times during the investigation of WikiLeaks, it has been called a Computer Fraud and Abuse investigation, an Espionage investigation, and a terrorism investigation.

Which raises the question why, long after DOJ had deemed the WikiLeaks case a national security case that under either the terrorism or Espionage designation would grant them authority to use tools like National Security Letters, they were still using subpoenas that were getting challenged and noticed to Appelbaum? Why, if they were conducting an investigation that afforded them all the gagged orders they might want, were they issuing subpoenas that ultimately got challenged and exposed?

Before you answer “parallel construction,” lets reconsider something I’ve been mulling since the very first Edward Snowden disclosure: the secret authority DOJ and FBI (and potentially other agencies) used to investigate not just WikiLeaks, but also WikiLeaks’ supporters.

Back in June 2011, EPIC FOIAed DOJ and FBI (but not NSA) for records relating to the government’s investigation of WikiLeaks supporters.

EPIC’s FOIA asked for information designed to expose whether innocent readers and supporters of WikiLeaks had been swept up in the investigation. It asked for:

  1. All records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks;
  2. All records regarding lists of names of individuals who have demonstrated support for or interest in WikiLeaks;
  3. All records of any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and
  4. All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks. [my emphasis]

In their motion for summary judgment last February, DOJ said a lot of interesting things about the records-but-not-lists they might or might not have and generally subsumed the entire request under an ongoing investigation FOIA exemption.

Most interesting, however, is in also claiming that some statute prevented them from turning these records over to EPIC, they refused to identify the statute they might have been using to investigate WikiLeaks’ supporters.

All three units at DOJ — as reflected in declarations from FBI’s David Hardy, National Security Division’s Mark Bradley, and Criminal Division’s John Cunningham – claimed the files at issue were protected by statute.

None named the statute in question. All three included some version of this statement, explaining they could only name the statute in their classified declarations.

The FBI has determined that an Exemption 3 statute applies and protects responsive information from the pending investigative files from disclosure. However, to disclose which statute or further discuss its application publicly would undermine interests protected by Exemption 7(A), as well as by the withholding statute. I have further discussed this exemption in my in camera, ex parte declaration, which is being submitted to the Court simultaneously with this declaration

In fact, it appears the only reason that Cunningham submitted a sealed declaration was to explain his Exemption 3 invocation.

And then, as if DOJ didn’t trust the Court to keep sealed declarations secret, it added this plaintive request in the motion itself.

Defendants respectfully request that the Court not identify the Exemption 3 statute(s) at issue, or reveal any of the other information provided in Defendants’ ex parte and in camera submissions.

DOJ refuses to reveal precisely what EPIC seems to be seeking: what kind of secret laws it is using to investigate innocent supporters of WikiLeaks.

Invoking a statutory exemption but refusing to identify the statute was, as far as I’ve been able to learn, unprecedented in FOIA litigation.

The case is still languishing at the DC District.

I suggested at the time that the statute in question was likely Section 215; I suspected at the time they refused to identify Section 215 because they didn’t want to reveal what Edward Snowden revealed for them four months later: that the government uses Section 215 for bulk collection.

While they may well have used Section 215 (particularly to collect records, if they did collect them, from Visa, MasterCard, and PayPal — but note FBI, not NSA, would have wielded the Section 215 orders in that case), they couldn’t have used the NSA phone dragnet to identify supporters unless they got the FISC to approve WikiLeaks as an associate of al Qaeda (update: Or got someone at NSA’s OGC to claim there were reasons to believe WikiLeaks was associated with al Qaeda). They could, however, have used Section 215 to create their own little mini WikiLeaks dragnet.

Read more

SPCMA: The Other NSA Dragnet Sucking In Americans

Screen Shot 2014-02-16 at 10.42.09 PMIn December, I wrote a post noting that NSA personnel performing analysis on PATRIOT-authorized metadata (both phone or Internet) can choose to contact chain on just that US-collected data, or — in what’s call a “federated query” — on foreign collected data, collected under Executive Order 12333, as well. It also appears (though I’m less certain of this) that analysts can do contact chains that mix phone and Internet data, which presumably is made easier by the rise of smart phones.

Section 215 is just a small part of the dragnet

This is one reason I keep complaining that journalists reporting the claim that NSA only collects 20-30% of US phone data need to specify they’re talking about just Section 215 collection. Because we know, in part because Richard Clarke said this explicitly at a Senate Judiciary Committee hearing last month, that Section “215 produces a small percentage of the overall data that’s collected.” At the very least, the EO 12333 data will include the domestic end of any foreign-to-domestic calls it collects, whether made via land line or cell. And that doesn’t account for any metadata acquired from GCHQ, which might include far more US person data.

The Section 215 phone dragnet is just a small part of a larger largely-integrated global dragnet, and even the records of US person calls and emails in that dragnet may derive from multiple different authorities, in addition to the PATRIOT Act ones.

SPCMA provided NSA a second way to contact chain on US person identifiers

With that background, I want to look at one part of that dragnet: “SPCMA,” which stands for “Special Procedures Governing Communications Metadata Analysis,” and which (the screen capture above shows) is one way to access the dragnet of US-collected (“1st person”) data. SPCMA provides a way for NSA to include US person data in its analysis of foreign-collected intelligence.

According to what is currently in the public record, SPCMA dates to Ken Wainstein and Steven Bradbury’s efforts in 2007 to end some limits on NSA’s non-PATRIOT authority metadata analysis involving US persons. (They don’t call it SPCMA, but the name of their special procedures match the name used in later years; the word, “governing,” is for some reason not included in the acronym)

Wainstein and Bradbury were effectively adding a second way to contact chain on US person data.

They were proposing this change 3 years after Collen Kollar-Kotelly permitted the collection and analysis of domestic Internet metadata and 1 year after Malcolm Howard permitted the collection and analysis of domestic phone metadata under PATRIOT authorities, both with some restrictions, By that point, the NSA’s FISC-authorized Internet metadata program had already violated — indeed, was still in violation — of Kollar-Kotelly’s category restrictions on Internet metadata collection; in fact, the program never came into compliance until it was restarted in 2010.

By treating data as already-collected, SPCMA got around legal problems with Internet metadata

Against that background, Wainstein and Bradbury requested newly confirmed Attorney General Michael Mukasey to approve a change in how NSA treated metadata collected under a range of other authorities (Defense Secretary Bob Gates had already approved the change). They argued the change would serve to make available foreign intelligence information that had been unavailable because of what they described as an “over-identification” of US persons in the data set.

NSA’s present practice is to “stop” when a chain hits a telephone number or address believed to be used by a United States person. NSA believes that it is over-identifying numbers and addresses that belong to United States persons and that modifying its practice to chain through all telephone numbers and addresses, including those reasonably believed to be used by a United States person, will yield valuable foreign intelligence information primarily concerning non-United States persons outside the United States. It is not clear, however, whether NSA’s current procedures permit chaining through a United States telephone number, IP address or e-mail address.

They also argued making the change would pave the way for sharing more metadata analysis with CIA and other parts of DOD.

The proposal appears to have aimed to do two things. First, to permit the same kind of contact chaining — including US person data — authorized under the phone and Internet dragnets, but using data collected under other authorities (in 2007, Wainstein and Bradbury said some of the data would be collected under traditional FISA). But also to do so without the dissemination restrictions imposed by FISC on those PATRIOT-authorized dragnets.

In addition (whether this was one of the goals or not), SPCMA defined metadata in a way that almost certainly permitted contact chaining on metadata not permitted under Kollar-Kotelly’s order.

“Metadata” also means (1) information about the Internet-protocol (IP) address of the computer from which an e-mail or other electronic communication was sent and, depending on the circumstances, the IP address of routers and servers on the Internet that have handled the communication during transmission; (2) the exchange of an IP address and e-mail address that occurs when a user logs into a web-based e-mail service; and (3) for certain logins to web-based e-mail accounts, inbox metadata that is transmitted to the user upon accessing the account.

Some of this information — such as the web-based email exchange — almost certainly would have been excluded from Kollar-Kotelly’s permitted categories because it would constitute content, not metadata, to the telecoms collecting it under PATRIOT Authorities.

Wainstein and Bradbury appear to have gotten around that legal problem — which was almost certainly the legal problem behind the 2004 hospital confrontation — by just assuming the data was already collected, giving it a sort of legal virgin birth.

Doing so allowed them to distinguish this data from Pen Register data (ironically, precisely the authority Kollar-Kotelly relied on to authorize PATRIOT-authorized Internet metadata collection) because it was no longer in motion.

First, for the purpose of these provisions, “pen register” is defined as “a device or process which records or decodes dialing, routing, addressing or signaling information.” 18 U.S.C. § 3127(3); 50 U.S.C. § 1841 (2). When NSA will conduct the analysis it proposes, however, the dialing and other information will have been already recorded and decoded. Second, a “trap and trace device” is defined as “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing and signaling information.” 18 U.S.C. § 3127(4); 50 U.S.C. § 1841(2). Again, those impulses will already have been captured at the point that NSA conducts chaining. Thus, NSA’s communications metadata analysis falls outside the coverage of these provisions.

And it allowed them to distinguish it from “electronic surveillance.”

The fourth definition of electronic surveillance involves “the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication …. ” 50 U.S.C. § 1802(f)(2). “Wire communication” is, in turn, defined as “any communication while it is being carried by a wire, cable, or other like com1ection furnished or operated by any person engaged as a common carrier …. ” !d. § 1801 (1). The data that the NSA wishes to analyze already resides in its databases. The proposed analysis thus does not involve the acquisition of a communication “while it is being carried” by a connection furnished or operated by a common carrier.

This legal argument, it seems, provided them a way to carve out metadata analysis under DOD’s secret rules on electronic surveillance, distinguishing the treatment of this data from “interception” and “selection.”

For purposes of Procedure 5 of DoD Regulation 5240.1-R and the Classified Annex thereto, contact chaining and other metadata analysis don’t qualify as the “interception” or “selection” of communications, nor do they qualify as “us[ing] a selection term,” including using a selection term “intended to intercept a communication on the basis of … [some] aspect of the content of the communication.”

This approach reversed an earlier interpretation made by then Counsel of DOJ’s Office of Intelligence and Policy Review James A Baker.

Baker may play an interesting role in the timing of SPCMA. He had just left in 2007 when Bradbury and Wainstein proposed the change. After a stint in academics, Baker served as Verizon’s Assistant General Counsel for National Security (!) until 2009, when he returned to DOJ as an Associate Deputy Attorney General. Baker, incidentally, got named FBI General Counsel last month.

NSA implemented SPCMA as a pilot in 2009 and more broadly in 2011

It wasn’t until 2009, amid NSA’s long investigation into NSA’s phone and Internet dragnet violations that NSA first started rolling out this new contact chaining approach. I’ve noted that the rollout of this new contact-chaining approach occurred in that time frame.

Comparing the name …

SIGINT Management Directive 424 (“SIGINT Development-Communications Metadata Analysis”) provides guidance on the NSA/ CSS implementation of the “Department of Defense Supplemental Procedures Governing Communications Metadata Analysis” (SPCMA), as approved by the U.S. Attorney General and the Secretary of Defense. [my emphasis]

And the description of the change …

Specifically, these new procedures permit contact chaining, and other analysis, from and through any selector, irrespective of nationality or location, in order to follow or discover valid foreign intelligence targets. (Formerly analysts were required to determine whether or not selectors were associated with US communicants.) [emphasis origina]

,,, Make it clear it is the same program.

NSA appears to have made a few changes in the interim. Read more

image_print