Did the Government Change When — and How — It Minimized US Person Collections Since 2008?

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I’ve been digging through the weeds of the government’s response to Basaaly Saeed Moalin’s challenge of the FISA materials used in his trial. As a reminder, this is one of just two examples of a case where the government has admitted to using the Section 215 database to capture a terrorist (they now say they’ve used the database in 13 cases total, presumably since 2006).

In a section starting on page 50, the government argues the collection leading to Moalin’s indictment (and since then, his conviction) was “lawfully conducted.”

[T]he FISA-obtained or -derived information that wil be offered into evidence in this case was acquired, retained, and disseminated by the FBI in accordance with FISA’s minimization requirements, and the implementing standard minimization procedures (“SMPs”) promulgated by the Attorney General and approved by the FISC.

As this document mapping out the structure of the argument, the first and only section of their proof addresses minimization. That may seem kind of weird, but remember that the Intelligence Community sometimes calls this collection “collection carried out pursuant to the Section 702 minimization procedures.” (Though keep in mind that the collection in question took place under the Protect America Act starting in 2007.)

What I’m particularly interested in, however, is that following an initial redacted section and footnote addressing minimization, the government’s motion addresses two sets of standard minimization procedures (see the first sentence of document page 51). At first, I thought the invocation of “both” pertained to one procedure for electronic and another procedure for physical surveillance (the government used both in its case against Moalin). But the full reference refers to the “current”  and the “old” SMPs.

Under FISA and both sets of SMPs, minimization “may occur at any of several stages, including recording, logging, indexing, or dissemination.” lARA, 2009 WL 5169536, at *6 (citing Kevork, 634 F. Supp. at 1017); Senate Report at 40; current SMPs,, Section I.A., pp. 1-2. At the acquisition stage, FISA does not “prohibit the use of automatic tape recording equipment.” Rahman, 861 F. Supp. at 252; Kevork, 634 F. Supp. at 1017. Indeed, the FISC has noted that FISA surveillance devices are normally left on continuously and that consequently minimization occurs (under the old SMPs) during the logging and indexing of the pertinent communications.88 See In re Sealed Case, 310 F.3d at 740.

Remember, the wiretaps used in this case date to December 2007 to April 2008. The motion was written in February 2012. This seems to suggest the “old SMPs” were in place in 2007-08, but they have been replaced since then. And the distinction between the two — and an explanation for why they would both be relevant to the question of legality — must appear in a redacted section, perhaps the one that immediately precedes this passage.

Note, these appear to both be different from the minimization procedures leaked by Edward Snowden, which have a date stamp from July 29, 2009. Those address collections under Section 702 of FISA, whereas the reference to SMPs in In Re Sealed Case cited above describes “Standard Minimization Procedures for U.S. Person Agent of a Foreign Power,” as referred to in this passage of that ruling.

The most critical step in retention is the analysis in which an informed judgment is made as to whether or not the communications or other data seized is foreign intelligence information. To guide FBI personnel in this determination the Standard Minimization Procedures for U.S. Person Agent of a Foreign Power in Section 3(a)(4) Acquisition/Interception/Monitoring and Logging provide that “communications of or concerning United States persons that could not be foreign intelligence information or are not evidence of a crime . . . may not be logged or summarized.” (emphasis added). Minimization is required only if the information “could not be” foreign intelligence. Thus, it is obvious that the standard for retention of FISA-acquired information is weighted heavily in favor of the government.

This seems to suggest the minimization procedures from 2002 (the ones invoked in this ruling) remained roughly the same until the “old SMPs” referred to in this passage.

But it also appears the passage doesn’t treat the “current” SMPs as the Snowden version either. That’s because there is no section I.A. in those — and certainly not one discussing logging and indexing.

I raise all this because the new ones seem to allow minimization (or not) at two more different stages: at the collection phase (which, given the description of the kinds of collection they conduct, might be computerized) or at the dissemination stage. Given the language in the minimization procedures we’ve seen (and the discussion that follows this passage, which talks about the looser minimization in terrorism cases), that seems to allow decisions long after the initial “collection.” (Remember, in this case, the government decided in 2009 not to prosecute but then in 2011, following the prosecution of the hawala involved, did decide to do so.)

In the Section 702 context, there appears to be little logging and indexing (which is why the government can claim it can’t say how many Americans get sucked up as “incidental” collection). I wonder if part of this change reflects a de-emphasis of logging and indexing for specific warrants as well?

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Did the FISA Court Approve the “Relevant To” Dragnet Collection before Congress Passed the PATRIOT Reauthorization?

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I want to point to a passage of the 2008 DOJ IG Report on use of Section 215. I think it adds new details about how the government came to use Section 215 to spy on all of us.

On page 20, the report describes what it calls “combination Section 215 Applications and Orders in 2006.” It reveals that for a period, when FBI got pen register/trap and trace orders, it would also use Section 215 to get subscriber information.

A combination application is a term used by OIPR to refer to a Section 215 request that was added to or combined with a FISA application for a pen register/trap and trace. The use of the combination request evolved from OIPR’s determination that FISA pen register/trap and trace orders did not require providers to turn over subscriber information associated with telephone numbers obtained through those orders. As a result, Section 215 requests were added to pen register/trap and trace orders to seek subscriber information.

That’s all for regular FBI use of the program.

But then it includes one of those heavily redacted passages that, we now know, refer to the bulk metadata collection program(s).

OIPR also used combination orders in 2005 and 2006 to obtain [two lines redacted]23

After passage of the Reauthorization Act on March 9, 2006, combination orders became unnecessary for subscriber information and [one line redacted]. Section 128 of the Reauthorization Act amended the FISA statute to authorize subscriber information to be provided in response to a pen register/trap and trace order. Therefore, combination orders for subscriber information were no longer necessary. In addition, OIPR determined that substantive amendments to the statute undermined the legal basis for which OIPR had received authorization [half line redacted] from the FISA Court. Therefore, OIPR decided not to request [several words redacted] pursuant to Section 215 until it re-briefed the issue for the FISA Court. 24

23 [One line footnote redacted]

24 OIPR first briefed the issue to the FISA Court in February 2006, prior to the Reauthorization Act. [two lines redacted]

This may actually pertain solely to the phone metadata collection (as far as we know, they never used 215 for Internet metadata because (James Cole implied yesterday) Internet companies don’t keep records of their customers’ metadata.

And the reference to 2005-2006 may simply refer to the period, after the initial NYT reports, when phone companies asked to be required to turn over their customers’ metadata.

If so, then this is nothing new … except for one detail. It suggests the government used PR/TT for the initial period of this collection, until such time as Congress passed the “relevant to” language in Section 215.

But that would also suggest that DOJ had developed and briefed this new use of Section 215 orders even before Congress approved the bill.

Only, it doesn’t appear to have told those pushing the bill through Congress.

Perhaps that’s why Jim Sensenbrenner — who was one of the bill managers — is so pissed.

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NSA: The “Half-Bacon Agency”

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My mom’s in town, so I’ll be doing light posting over the next several days.

But I did want to emphasize the rather startling news that came out of yesterday’s House Judiciary Committee on the NSA spying programs.

NSA Director John Inglis revealed that the FISA Court permits the government to do three jumps from an initial number tied to a phone number reasonably believed to be tied to terrorism (or relevant to Iran, though that search criteria didn’t get mentioned at all in the parts of the hearing I watched).

Three degrees of separation!

Remember, some years ago, every single person in the US could be connected via six degrees — the old Kevin Bacon game. There’s some evidence that that number has become smaller — perhaps as small as 3 (I’ve seen more scientific numbers that say it is 4.5 or thereabouts).

In any case, if the US is using the excuse of terror to get three jumps deep into US person associations, then this program is even more intrusive then they’ve let on.

One thing I didn’t see disclosed yesterday? To what extent the government claims these 3- (or 2, which — IIRC — Deputy Attorney General James Cole said was their most productive layer) degrees of separation from someone claimed in an articulation not closely reviewed has ties to terrorism. Is talking to someone who talks to someone who talks to someone who is a terrorist used, in secret, to claim people are agents of a foreign power?

In any case, this means the NSA has been spending its time playing 3 degrees of separation from Kevin Bacon in secret.

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The 3 Hop Scotch of Civil Liberties and Privacy

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I was in court, so I didn’t see it, but apparently there was a little hearing over at House Judiciary Committee this morning on “Oversight of the Administration’s Use of FISA Authorities“. There was an august roll of Administration authorities and private experts: Mr. James Cole, United States Department of Justice; Mr. John C. Inglis, National Security Agency; Mr. Robert S. Litt, ODNI; Ms. Stephanie Douglas, FBI National Security Branch; Mr. Stewart Baker; Mr. Steven G. Bradbury; Mr. Jameel Jaffer; and Ms. Kate Martin.

Hmmm, let’s take a look and see if anything interesting occurred (as reported by Pete Yost of AP). Uh, well, there was THIS:

For the first time, NSA deputy director John C. Inglis disclosed Wednesday that the agency sometimes conducts what’s known as three-hop analysis. That means the government can look at the phone data of a suspect terrorist, plus the data of all of his contacts, then all of those people’s contacts, and finally, all of those people’s contacts.

If the average person calls 40 unique people, three-hop analysis could allow the government to mine the records of 2.5 million Americans when investigating one suspected terrorist.
….
The government says it stores everybody’s phone records for five years. Cole explained that because the phone companies don’t keep records that long, the NSA had to build its own database.

Go read all of Yost’s report, there is quite a bit in there that is stunning in the blithe attitude the Administration takes on this hoovering of data and personal information. Also clear: Congress has no real grasp or control of the government’s actions. The Article I brakes are out and the Article II car is accelerating and careening down the road.

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What Does the Government Consider “Protected” First Amendment Activities?

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The other day, AP’s Matt Lee called out State Department spokesperson Jen Psaki’s suggestion that Edward Snowden is not entitled to free speech.

QUESTION: Okay. Then I just don’t understand. I think this is an incredibly slippery slope that you’re going down here, that the U.S. Government is going down here, if you are coming up and saying to us that you’re trying to prevent an American citizen – albeit one who has been accused of serious crimes – from exercising his right to free speech. You don’t agree with that?

MS. PSAKI: I believe that what I’ve conveyed most proactively here is our concern about those who helped facilitate this event —

QUESTION: Yes.

MS. PSAKI: — and make it into a propaganda platform.

QUESTION: Right. And —

QUESTION: Or a public asylum —

QUESTION: — the propaganda platform aside, free speech covers propaganda. Last time I checked, it covers a lot of things. And I don’t see, unless he’s somehow violated U.S. law by speaking at this – at the Russian – the transit line at the Russian airport, I don’t see why you would be disappointed in the Russians for, one, facilitating it, but also, apparently from what it sounds like, tried to discourage them from – tried to discourage this – them from allowing this event to take place in the – to take place at all.

MS. PSAKI: Well, Matt, this isn’t happening, clearly, because we wouldn’t be talking about it, in a vacuum. And this is an individual, as we all know, who has been accused of felony crimes in the United States. We have expressed strongly our desire to have him returned —

QUESTION: I understand.

MS. PSAKI: — to face those charges. This is all applicable context to these circumstances.

QUESTION: But as you have also said, he is a U.S. citizen.

MS. PSAKI: He is, yes.

QUESTION: He remains a U.S. citizen, and he enjoys certain rights as a U.S. citizen. One of those rights, from your point of view, is that he has the right to come back and face trial for the crimes he’s committed. But the rights that you’re not talking about are his right to free speech, his right to talk with whoever he wants to, freedom to assemble. I don’t understand why those rights are – why you ignore those and simply say that he has – that he’s welcome to come back to the United States to exercise his right to be tried by a jury of his peers. Why is that the only right that he gets, according to this Administration? [my emphasis]

As it happens, I read it about the same time i read this passage, from the government’s opposition to Basaaly Saeed Moalin’s challenge to the FISA-derived evidence against him (see this post for more background).

Moalin claims he was fargeted for FISC-authorized surveillance in violation of FISA’s stipulation that no United States person may be considered a foreign power or an agent of a foreign power solely on the basis of activities protected by the First Amendment. Docket No 92 at 18-19 (citing 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A)). Although protected First Amendment activities canot form the sole basis for FISC-authorized electronic surveillance or physical search, not all speech-related activities fall within the protection of the First Amendment. See infra at 70.

That is, when faced with limitations on surveillance based on First Amendment activities, the government claimed that not all speech is protected.

(Note, I’m not certain because the page numbers listed in this unclassified motion are to the pagination of the classified motion, but I believe that reference to speech that is not protected is redacted.)

That’s important because of the narrative the government presented in this motion (which is different from what Sean Joyce presented to the House Intelligence Committee — I believe both narratives are in fact badly misleading).

In the materials presented in this case, the government suggests FISA-authorized surveillance on Moalin’s calls with al-Shabaab warlord Aden Ayrow started, out of the blue, in December 2007, several months before al-Shabaab was listed as a Foreign Terrorist Organization. I’m not aware of any evidence it presents that precedes these calls. Yet these early calls show no evidence of criminal behavior.

Thus, the evidence suggests that merely calling someone considered a terrorist but whose group was not yet officially designated as such by the government makes one an agent of a foreign power.

Read more →

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The 8-FISA Judge 11-Docket Spying Authorization to Identify Less than $10,000 to Al-Shabaab

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In a hearing last month, FBI Deputy Director Sean Joyce described a case in which the phone metadata database helped catch terrorists. (after 1:07)

Lastly, the FBI had opened an investigation shortly after 9/11. We did not have enough information, nor did we find links to terrorism, so we shortly thereafter closed the investigation. However, the NSA, using the business record FISA, tipped us off that this individual had indirect contacts with a known terrorist overseas. We were able to reopen this investigation, identify additional individuals through legal process, and were able to disrupt this terrorist activity.

While he didn’t name it, subsequent discussions of the case made it clear he meant Basaaly Saeed Moalin, a Somali-American convicted with three others in February for sending less than $10,000 to al-Shabaab (altogether Moalin was charged with sending $17,000 to Somalia, the balance of it to non-Shabaab figures the government claims are also terrorists).

Moalin’s lawyer Joshua Dratel unsuccessfully challenged the government’s use of material derived from FISA (the judge’s opinion rejecting the challenge has never been released). Yet even with that challenge, Dratel was never informed of the use of Section 215 in the case.

All that said, the government’s opposition to his challenge is utterly fascinating, even with huge chunks redacted. I’m going to do a weedy post on it shortly. But for now, I want to point to three indicia that reveal how much more complex this surveillance was than Joyce described to the House Intelligence Committee.

First, as part of the introduction, the government provided an (entirely redacted) Overview of the FISA Collection at Issue. While we have no idea how long that passage is, the government needed 9 footnotes to explain the collection (they are also entirely redacted). Similarly, a section arguing “The FISA Applications Established Probable Cause” has the following structure and footnotes (the content is entirely redacted):

[footnote to general material]

1.

a.

2.

a. [6 footnotes]

b.

i. [2 footnotes]

ii.

iii. [1 footnote]

iv. [2 footnotes]

v. [3 footnotes]

Now it may be that section 1 here pertains to physical collection, and section 2 pertains to electronic collection (both were used, though I suspect the physical collection was metaphorical in some way). But even there, there seem to be at least 6 and possibly far more orders involved, with two types of collection — perhaps one pertaining to bulk 702-style collection (most of the intercepts happened under Protect America Act) and the other to the use of Section 215.

Then, as part of a discussion about the minimization requirements tied to the application(s) involved, the government revealed 8 different FISC judges signed off on orders pertaining to the collection.

In order to fulfill the statutory requirements discussed above, the Attorney General has adopted standard minimization procedures for FISC-authorized electronic surveilance and physical search that are on file with the FISC and that are incorporated by reference into every relevant FISA application that is submitted to the FISC. As a result, the eight FISC judges who issued the orders authorizing the FISA collections at issue in this case found that the applicable standard minimization procedures met FISA’s statutory requirements. The FISC orders in the dockets at issue directed the Governent to follow the approved minimization procedures in conducting the FISA collection. [my emphasis]

But it appears this surveillance involved even more than 8 orders. In a section claiming that this surveillance is not complex, the government cited 11 sealed exhibits that include the dockets at issue.

There is nothing extraordinary about this case that would prompt the Court to be the first to order the disclosure of highly sensitive and classified FISA materials. Disclosure is not necessar for the Court to determine the legality of the collection. Here, the FISA dockets – at Sealed Exhibits 16-26 – are well-organized and easily reviewable by the Court in camera and ex parte. The Index of Materials in the Government’s Sealed Exhibit and this memorandum serve as a road map through the issues presented for the Court’s in camera and ex parte determination. The FISA materials contain ample information from which the Court can make an accurate determination of the legality of the FISA collection; indeed, they are “relatively straightforward and not complex.” [my emphasis]

15 footnotes addressing probable cause approved by 8 judges over 11 different dockets.

This is not a simple check of the phone database. (I’ll explain what I think actually happened with the surveillance we know about in a future post.)

Now, some of this clearly invokes the iterative approval of programmatic orders as described by Eric Lichtblau and the WSJ. The May 2006 opinion authorizing the use of Section 215 to collect phone records for every American surely is one of the authorizations cited. That opinion may rely on the 2004 one that authorized the use of Pen Register/Trap and Trace to collect all the Internet metadata in the country. I suspect there may be several orders authorizing collection on al-Shabaab and/or Somalia generally — one that precedes Protect America Act, one that collects under PAA, and probably one that collects under FISA Amendments Act (the key conversations took place in late 2007 through much of 2008). I suspect, too, there’s an order governing collection of all signals off some switch. Then there may be traditional FISA warrants to collect on Moalin and his co-conspirator Mohamud Abdi Yusuf (the other co-conspirators appear not to have been targets of collection).

Still, that only gets you to 8 dockets, even assuming they used a new one for Somalia each time.

“Relatively straightforward … not complex,” the government said, in arguing the defendant shouldn’t get a look at this jerry-rigged system of surveillance. And we still can’t see the logic Judge Jeffrey Miller used to agree with them.

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Carl Levin’s Double Standard for Banksters and Spooks

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Carl Levin is one of the few people in DC who has tried to hold banks accountable — in his case, via investigations conducted at the Permanent Subcommittee on Investigations. Never mind that DOJ has serially taken his investigations and, seemingly, wiped their ass with them for all the banksters who have been held accountable as a result.

One particularly noteworthy ass-wiping came after Levin referred Goldman Sachs CEO Lloyd Blankfein to DOJ for lying to his customers and, more importantly, to Congress. To him.

The chairman of the U.S. Senate’s investigative subcommittee said he believes Goldman Sachs officials made misleading statements about their trading during the financial crisis and should be investigated criminally.

Sen. Carl Levin (D-Mich.) said on Wednesday that he plans to refer Goldman officials, and potentially officials from other organizations, to the Justice Department for possible prosecution and to the Securities and Exchange Commission for possible civil proceedings.

“In my judgment, Goldman clearly misled their clients and they misled the Congress,” said Levin, the chairman of the Senate Permanent Subcommittee on Investigations.

[snip]

“We will be referring this matter to the Justice Department and the SEC,” Levin said.

DOJ did what it does — which apparently includes chatting up CEOs — while it is pretending to investigate when it is actually wiping its ass. Then after a year it decided it wasn’t going to prosecute Blankfein.

Still. Just over 2 years ago, Carl Levin believed that when people, even very powerful people, lie to Congress, DOJ should at least consider prosecuting them.

How times change.

Levin also said he was still “troubled” by Director of National Intelligence James Clapper’s testimony to the Senate Intelligence Committee that the NSA did not collect data on millions of Americans.

“I’m troubled by that testimony, obviously. I don’t know how he’s tried to wiggle out from it, but I’m troubled by it,” Levin said. “How you hold him accountable, I guess the only way to do that would be for the president to somehow or other fire him.”

But, Levin added, “I think he’s made it clear that he regrets saying what he said, and I don’t want to call on the president to fire him although I am troubled by it.”

Golly! Clapper regrets what he said (or rather, that he got caught saying it?). So rather than suggesting we hold Clapper accountable the way Levin tried to do with Blankfein, he instead thinks maybe if the President feels like it on his own because Levin himself isn’t going to call on him to do this, Obama should “somehow or other fire” Clapper.

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“People in the Gulf” Talking on Skype

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The NatSec twittersphere is abuzz about the fact that the CIA indirectly warned Hezbollah that some al Qaeda operatives were preparing an attack on a location in southern Lebanon.

I’m actually less interested that we felt the need to warn a political entity that we consider a terrorist organization than the other details of the story — and that it is a story Lebanese sources felt free to share with the press.

For example, the report says we intercepted calls between the al Qaeda operatives and “people in the Gulf.”

“They had transcripts of calls made from known al Qaida people in Lebanon to people in the Gulf that included detailed information about the attacks, including the amounts of explosives that had been smuggled into Lebanon,” said one Lebanese intelligence official who is barred from speaking openly to reporters.

McClatchy suggests these al Qaeda figures were calling other al Qaeda figures in this unnamed Gulf country. But why should we assume that? Qatar has been funding al Qaeda linked militants in Syria. Is it possible this story is public because the US wants it known that we’re so tired of Qatar’s support for terrorists we’ll even tip Hezbollah to plans Qatari backed terrorists have made?

Indeed, a comment from a Hezbollah member quoted in the story seems to suggest this warning (and, I would suggest, the publicity surrounding it) is an effort to put the genie we’ve created back in the bottle.

The Hezbollah commander said he thought the warning was more pragmatic.

“The Americans are starting to realize how bad their friends in Syria are, so they’re trying to get out of this mistake,” he said. “They also think that if a bomb goes off in Dahiya, we will blame America and target Americans in Lebanon. That will never happen, but they’re scared of this monster they created.”’

That monster was created with the funding of one of our close allies.

I’m also intrigued by the suggestion that the US managed to collect these calls whereas the Lebanese could not because it was VOIP.

A security contractor familiar with the capabilities of the Lebanese intelligence services said it was likely that the targets had used voice-over-Internet software that the Lebanese services lack the equipment and expertise to decrypt but that poses few problems for the Americans.

“Lebanon lacks the expertise and the technology for that,” said the contractor, who asked not to be further identified because of the sensitivity of his work. “But once the call left Lebanon for the Gulf, the NSA would have automatically been tracking it.”

We’ve just learned the extent to which Microsoft has helped the government access Skype. And the government claims such disclosures have led terrorists to stop using Skype.

Were these terrorists and their friends in the gulf?

Update: Via Twitter, McClatchy reporter and Middle East expert Jonathan Landay says I’m reading way too much into this, and that there is a backstory he cannot share.

So take these musings as off-base ones.

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Hiding the 215 Index from Defendants, Too

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Adam Liptak reviews one of the issues I laid out in this post and the ACLU first laid out here. The government is reneging on multiple promises made over the course of the Amnesty v. Clapper case — including to SCOTUS itself — to make sure defendants could challenge evidence collected under “the program” (then defined as Section 702 of the FISA Amendments Act).

But I’m particularly interested in Liptak’s focus on the government’s use of “derived from” here.

If the government wants to use information gathered under the surveillance program in a criminal prosecution, [Solicitor General Don Verrilli] said, the source of the information would have to be disclosed. The subjects of such surveillance, he continued, would have standing to challenge the program.

Mr. Verrilli said this pretty plainly at the argument and even more carefully in his briefs in the case.

In one brief, for example, he sought to refute the argument that a ruling in the government’s favor would immunize the surveillance program from constitutional challenges.

“That contention is misplaced,” he wrote. “Others may be able to establish standing even if respondents cannot. As respondents recognize, the government must provide advance notice of its intent to use information obtained or derived from” the surveillance authorized by the 2008 law “against a person in judicial or administrative proceedings and that person may challenge the underlying surveillance.” (Note the phrase “derived from.”)

In February, in a 5-to-4 decision that split along ideological lines, the Supreme Court accepted Mr. Verrilli’s assurances and ruled in his favor. Justice Samuel A. Alito Jr., writing for the majority in the case, Clapper v. Amnesty International, all but recited Mr. Verrilli’s representation.

“If the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.” (Again, note the phrase “derived from.”)

What has happened since then in actual criminal prosecutions? The opposite of what Mr. Verrilli told the Supreme Court. [my emphasis]

It’s time to broaden the focus of this discussion, finally. It’s time to include both Section Section 215 collection (metadata) and 702 collection (content) in this discussion together.

As I have noted, the government has claimed these are “distinct issues” and that 215 metadata collection is not part of the 702 content creation.

But in an interview, Edward Snowden claims the metadata is used to identify and pull content.

In most cases, content isn’t as valuable as metadata because you can either re-fetch content based on the metadata or, if not, simply task all future communications of interest for permanent collection since the metadata tells you what out of their data stream you actually want.

And James Clapper described metadata as a kind of Dewey Decimal system that allows the government to pull selected conversations from its giant library of all conversations.

ANDREA MITCHELL: At the same time, when Americans woke up and learned because of these leaks that every single telephone call in this United States, as well as elsewhere, but every call made by these telephone companies that they collect is archived, the numbers, just the numbers, and the duration of these calls. People were astounded by that. They had no idea. They felt invaded.

JAMES CLAPPER: I understand that. But first let me say that I and everyone in the intelligence community all– who are also citizens, who also care very deeply about our– our privacy and civil liberties, I certainly do. So let me say that at the outset. I think a lot of what people are– are reading and seeing in the media is a lot of hyper– hyperbole.

A metaphor I think might be helpful for people to understand this is to think of a huge library with literally millions of volumes of books in it, an electronic library. Seventy percent of those books are on bookcases in the United States, meaning that the bulk of the of the world’s infrastructure, communications infrastructure is in the United States.

There are no limitations on the customers who can use this library. Many and millions of innocent people doing min– millions of innocent things use this library, but there are also nefarious people who use it. Terrorists, drug cartels, human traffickers, criminals also take advantage of the same technology. So the task for us in the interest of preserving security and preserving civil liberties and privacy is to be as precise as we possibly can be when we go in that library and look for the books that we need to open up and actually read.

You think of the li– and by the way, all these books are arranged randomly. They’re not arranged by subject or topic matter. And they’re constantly changing. And so when we go into this library, first we have to have a library card, the people that actually do this work.

Which connotes their training and certification and recertification. So when we pull out a book, based on its essentially is– electronic Dewey Decimal System, which is zeroes and ones, we have to be very precise about which book we’re picking out. And if it’s one that belongs to the– was put in there by an American citizen or a U.S. person.

We ha– we are under strict court supervision and have to get stricter– and have to get permission to actually– actually look at that. So the notion that we’re trolling through everyone’s emails and voyeuristically reading them, or listening to everyone’s phone calls is on its face absurd. We couldn’t do it even if we wanted to. And I assure you, we don’t want to.

ANDREA MITCHELL: Why do you need every telephone number? Why is it such a broad vacuum cleaner approach?

JAMES CLAPPER: Well, you have to start someplace. If– and over the years that this program has operated, we have refined it and tried to– to make it ever more precise and more disciplined as to which– which things we take out of the library. But you have to be in the– in the– in the chamber in order to be able to pick and choose those things that we need in the interest of protecting the country and gleaning information on terrorists who are plotting to kill Americans, to destroy our economy, and destroy our way of life.

And according to William Arkin, the 215 metadata database, called MAINWAY, is considered a “signals navigation database.”

In other words, the 215 database is at least sometimes used as a roadmap to all the other collections the NSA gathers.

As I’ll show in a follow-up post, how that roadmap is used may go to the heart of the legitimacy of investigations into American.

I’m not entirely sure what discovery obligations the government thinks it has with this tool. But given that it’s a moment where the government claims to be exercising reasonable cause analysis (in secret) it sure ought to be disclosed.

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GOP Not Anxious to End John Roberts’ Unilateral Reign Appointing FISA Judges

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FWIW, Roger “Broccoli” Vinson aside, John Roberts has been appointing some solidly conservative, but nevertheless not lockstep Republicans to the FISA Court in recent years. But especially given the degree to which the FISC is now playing what former FISC judge James Robertson called a policy role, it is all the more inappropriate to have the Chief Justice, of whatever party, unilaterally pick FISC judges.

And some members of Congress — Adam Schiff in the House and Richard Blumenthal in the Senate — are trying to change that.

Curiously, however, while Republicans are happy to cosponsor legislation to force FISC to publish their opinions, Schiff, at least, has had no success finding a Republican cosponsor to support moves to take the FISC appointments out of John Roberts’ hands.

Schiff’s having a tougher time finding GOP co-sponsors for a second measure that would require Presidential nomination and Senate confirmation of FISA judges. Currently they are appointed by U.S. Supreme Court Chief Justice John Roberts.

I guess whatever claims GOP Representatives make about wanting to impose some controls on this dragnet take a back seat to maximizing party influence?

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