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

This post may make me some enemies in DC.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

What a Difference a Day Makes to the Privileges of a King

As part of his testimony today, Jim Comey revealed he gave some or all of the nine memos he wrote documenting his interactions with President Trump to a friend, since confirmed to be Columbia Professor Dan Richman, who in turn shared one with the press.

COLLINS: Finally, did you show copies of your memos to anyone outside of the department of justice?

COMEY: Yes.

COLLINS: And to whom did you show copies?

COMEY: I asked — the president tweeted on Friday after I got fired that I better hope there’s not tapes. I woke up in the middle of the night on Monday night because it didn’t dawn on me originally, that there might be corroboration for our conversation. There might a tape. My judgement was, I need to get that out into the public square. I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself for a variety of reasons. I asked him to because I thought that might prompt the appointment of a special counsel. I asked a close friend to do it.

COLLINS: Was that Mr. Wittes?

COMEY: No.

COLLINS: Who was it?

COMEY: A close friend who is a professor at Columbia law school.

The fact that Comey released the memo through Richman formed part of Trump lawyer Marc Kasowitz’s pushback after the hearing.

Of course, the Office of the President is entitled to expect loyalty from those who are serving in an administration, and, from before this President took office to this day, it is overwhelmingly clear that there have been and continue to be those in government who are actively attempting to undermine this administration with selective and illegal leaks of classified information and privileged communications. Mr. Comey has now admitted that he is one of the leakers.

Today, Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President. The leaks of this privileged information began no later than March 2017 when friends of Mr. Comey have stated he disclosed to them the conversations he had with the President during their January 27, 2017 dinner and February 14, 2017 White House meeting. Today, Mr. Comey admitted that he leaked to his friends his purported memos of these privileged conversations, one of which he testified was classified. He also testified that immediately after he was terminated he authorized his friends to leak the contents of these memos to the press in order to “prompt the appointment of a special counsel.” Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to [sic] entirely retaliatory.

Kasowitz gets a lot wrong here. Comey said one memo was classified, but that’s the memo that memorialized the January 6 meeting, not the ones described here. And the NYT has already corrected the claim that the shared memos preceded the tweet.

And, as a number of people (including Steve Vladeck) have noted, even if this information were covered by executive privilege, even if that privilege weren’t waived with Trump’s tweet, it’s not a crime to leak privileged information.

Nevertheless, Kasowitz’ focus on purportedly privileged documents is all the more interesting given the pathetic conduct of Director of National Intelligence Dan Coats and NSA Director Mike Rogers at yesterday’s 702 hearing. After a great deal of obfuscation from both men about why they couldn’t answer questions about Trump’s request they intervene in the FBI’s Mike Flynn investigation, Angus King finally got Rogers to admit that he and Coats never got a conclusive answer about whether the White House was invoking privilege.

King: I think you testified, Admiral Rogers, that you did discuss today’s testimony with someone in the White House?

Rogers: I said I asked did the White House intend to invoke executive privilege with respect to interactions between myself and the President of the United States.

King: And what was the answer to that question?

Rogers: To be honest I didn’t get a definitive answer. Both myself and the DNI are still talking–

King: So then I’ll ask both of you the same question. Why are you not answering these questions? Is there an invocation by the President of the United States of executive privilege? Is there or not?

Rogers: Not that I’m aware of.

King: Then why are you not answering the question?

Rogers: Because I feel it is inappropriate, Senator.

King: What you feel isn’t relevant Admiral. What you feel isn’t the answer. The question is why are you not answering the questions. Is it an invocation of executive privilege? If there is, then let’s know about it, and if there isn’t answer the questions.

Rogers: I stand by the comments I’ve made. I’m not interested in repeating myself, Sir. And I don’t mean that in a contentious way.

King: Well I do mean it in a contentious way. I don’t understand why you’re not answering our questions. When you were confirmed before the Armed Services Committee you took an oath, do you solemnly swear to give the committee the truth, the full truth and nothing but the truth. You answered yes to that.

Rogers: I do. And I’ve also answered that those conversations were classified. It is not appropriate in an open forum to discuss those classified conversations.

King: What is classified about a conversation about whether or not you should intervene in the FBI investigation?

Rogers: Sir I stand by my previous comments.

King: Mr. Coats? Same series of questions. What’s the basis for your refusal to answer these questions today?

Coats: The basis is what I’ve previously explained, I do not believe it is appropriate for me to–

King: What’s the basis? I’m not satisfied with I do not believe it is appropriate or I do not feel I should answer. I want to understand a legal basis. You swore that oath to tell us the truth, the whole truth, and nothing but the truth, and today you are refusing to do so. What is the legal basis for your refusal to testify to this committee?

Coats: I’m not sure I have a legal basis.

In other words, these men admit they had no legal basis (they’re not classified, no matter what Rogers claimed) to dodge the Committee’s question. But nevertheless they’re invoking things like their feelings to avoid testifying.

Clearly, the White House is playing a game here, invoking loyalty rather than law to compel silence from its top officials.

Kasowitz’ claims are, on their face, bogus. But taken in conjunction with the dodges from Coats and Rogers, they’re all the more problematic.

 

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

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

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

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

I’ll lay that out in more detail later.

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

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

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

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

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

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

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

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

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

Section 702(b)(4) plainly states we ‘may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.’ The DNI interpreted Senator Wyden’s question to ask about this provision and answered accordingly.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

The Problems with Rosemary Collyer’s Shitty Upstream 702 Opinion

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

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

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

This post is divided into three sections:

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

Opinion

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

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

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

Describing upstream searches

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

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

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

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

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

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

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

Refusing to count the impact

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

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

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

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

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

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

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

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

Treating the problem as exclusively about MCTs, not SCTs

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

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

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

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

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

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

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

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

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

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

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

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

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

Defining key terms terms

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

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

Failing to appoint (or even consider) amicus

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

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

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

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

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

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

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

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

Approving back door upstream searches

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

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

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

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

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

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

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

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

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

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

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

Imposing no consequences

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Documents

Here’s what I Con the Record released.

January 7, 2016 IG Report

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

September 26, 2016 702 Certification Package 

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

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

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

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

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

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

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

October 26, 2016 Extension

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

March 30, 2017 Submissions

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

April 26, 2017 Opinion

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

April 11, 2017 ACLU Release

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

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

Not included

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

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

Other Relevant Documents

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

Timeline

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

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

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

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

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

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

January 26, 2016: Discovery of error in upstream collection

March 9, 2016: FBI releases raw data

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

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

May 17, 2016: Opinion relating to improper retention

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

August 24, 2016: Pre-tasking review update

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

September 26, 2016: Submission of certifications

October 4, 2016: Hearing on compliance issues

October 24, 2016: Notice of compliance errors

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

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

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

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

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

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

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

January 31, 2007: First extension date for 2015 certificates

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

March 30, 2016: Submission of amended NSA certifications

April 7, 2017: Preliminary notice of more query violations

April 28, 2017: Second extension date for 2015 certificates

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

June 2, 2017: Deadline for report on outstanding issues

Did Pompeo Also Get an Obstruction Call from Trump?

The WaPo reports that Trump called both Admiral Mike Rogers and Dan Coats to ask if they could issue statements denying any collusion between Trump’s campaign and Russia.

Trump made separate appeals to the director of national intelligence, Daniel Coats, and to Adm. Michael S. Rogers, the director of the National Security Agency, urging them to publicly deny the existence of any evidence of collusion during the 2016 election.

Coats and Rogers refused to comply with the requests, which they both deemed to be inappropriate, according to two current and two former officials, who spoke on the condition of anonymity to discuss private communications with the president.

If Trump was calling spooks, he presumably would have called all spooks, including CIA Director Mike Pompeo (with whom he is probably closer than the other two). So why aren’t we hearing about that call? Is Pompeo just better at keeping secrets than his counterparts? Or is he hiding it because he didn’t object as strongly as his counterparts?

I Con the Record’s “Generally” Useful Section 702 Q&A

As the next step in the effort to reauthorize FISA Section 702, I Con the Record has a released a “generally” useful Q&A document on the law. For those who haven’t been following along, it includes links to many (though not all) of the public resources on Section 702. It provides a generally fair overview, with some new almost admissions, which should at least provide Congress with a road map for unanswered questions they should demand answers on.

Downplaying FBI back door searches

My biggest gripe with the report parallels a gripe I’ve had about public testimony on Section 702 since the first confirmations that the NSA, CIA, and FBI can conduct queries on raw data — back door searches. In public hearings, the intelligence community always sends NSA witnesses who can describe, as former NSA lawyer April Doss did in March, a back door search process that is fairly constrained.

I’m most familiar with NSA’s processes: NSA analysts must obtain prior approval to run U.S. person identifier queries in FAA 702 content; there must be a basis to believe the query is reasonably likely to return foreign intelligence information; all queries are logged and reviewed after the fact by NSA; and DoJ and ODNI review every U.S. person query run at NSA and CIA, along with the documented justifications for those queries.

Of course, even though this description is completely true (as far as we know), it is completely useless when it comes to helping Congress understand the problems inherent to back door searches.

Here’s what the Q&A document says about back door searches.

The government’s minimization procedures restrict the ability of analysts to query the databases that hold “raw” Section 702 information (i.e., where information identifying a U.S. person has not yet been minimized for permanent retention) using an identifier, such as a name or telephone number, that is associated with a U.S. person. Generally, queries of raw content are only permitted if they are reasonably designed to identify foreign intelligence information, although the FBI also may conduct such queries to identify evidence of a crime. As part of Section 702’s extensive oversight, DOJ and ODNI review the agencies’ U.S. person queries of content to ensure the query satisfies the legal standard. Any compliance incidents are reported to Congress and the FISC.

12 Queries of Section 702 data using U.S. person identifiers are sometimes mischaracterized in the public discourse as “backdoor searches.”

While it’s true that NSA and CIA minimization procedures impose limits on when an analyst can query raw data for content (but not for metadata at CIA), that’s simply not true at FBI, where the primary rule is that if someone is not cleared for FISA themselves, they ask a buddy to access the information. As a result — and because FBI queries FISA data for any national security assessment and “with some frequency” in the course of criminal investigations. In other words, partly because FBI is a domestic agency and partly because it has broader querying authorities, it conduct a “substantial” number of queries as opposed to the thousands done by CIA. Here’s how PCLOB describes it:

In 2013, the NSA approved 198 U.S. person identifiers to be used as content query terms.

[snip]

In 2013, the CIA conducted approximately 1,900 content queries using U.S. person identifiers. Approximately forty percent of these content queries were at the request of other U.S. intelligence agencies. Some identifiers were queried more than once; the CIA has advised that approximately 1,400 unique identifiers were queried during this period.

[snip]

The CIA does not track how many metadata-only queries using U.S. person identities have been conducted.

[snip]

[T]he FBI’s minimization procedures differ from the NSA and CIA’s procedures insofar as they permit the FBI to conduct reasonably designed queries “to find and extract” both “foreign intelligence information” and “evidence of a crime.”

[snip]

Because they are not identified as such in FBI systems, the FBI does not track the number of queries using U.S. person identifiers. The number of such queries, however, is substantial for two reasons. First, the FBI stores electronic data obtained from traditional FISA electronic surveillance and physical searches, which often target U.S. persons, in the same repositories as the FBI stores Section 702–acquired data, which cannot be acquired through the intentional targeting of U.S. persons. As such, FBI agents and analysts who query data using the identifiers of their U.S. person traditional FISA targets will also simultaneously query Section 702–acquired data. Second, whenever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment. With some frequency, FBI personnel will also query this data, including Section 702– acquired information, in the course of criminal investigations and assessments that are unrelated to national security efforts.

So it’s simply dishonest to say that, “Generally, queries of raw content are only permitted if they are reasonably designed to identify foreign intelligence information,” because the most common queries involve national security and common criminal purposes as well. “Generally,” the queries don’t require such things, unless you’re focusing primarily at CIA and NSA, where the threat to US person privacy at the least.

Then, one thing this Q&A doesn’t say is that Judge Thomas Hogan required the FBI to tell FISC of any positive hits on searches for entirely criminal purposes. Congress should know that, because it’s an easy data point that the IC should be able to share with Congress.

And while the document generally describes giving notice to defendants,

Section 706 governs the use of Title VII-derived information in litigation; as with Traditional FISA, it requires the government to give notice to aggrieved persons when the government intends to use evidence obtained or derived from Title VII collection in legal proceedings.

It doesn’t hint at how apparently inadequate this notice has been. Those are all details that Congress needs to know.

Hiding a cybersecurity certificate in the cheap seats?

I’m also interested in how the Q&A describes the purpose of 702. Here’s the 5 bullet points describing 702 successes (I’ve changed ODNI’s bullets to numbers for ease of reference):

  1. NSA has used collection authorized under FISA Section 702 to acquire extensive insight into the highest level decision-making of a Middle Eastern government. This reporting from Section 702 collection provided U.S. policymakers with the clearest picture of a regional conflict and, in many cases, directly informed U.S. engagement with the country. Section 702 collection provides NSA with sensitive internal policy discussions of foreign intelligence value.
  2. NSA has used collection authorized under FISA Section 702 to develop a body of knowledge regarding the proliferation of military communications equipment and sanctions evasion activity by a sanctions-restricted country. Additionally, Section 702 collection provided foreign intelligence information that was key to interdicting shipments of prohibited goods by the target country.
  3. Based on FISA Section 702 collection, CIA alerted a foreign partner to the presence within its borders of an al-Qaeda sympathizer. Our foreign partner investigated the individual and subsequently recruited him as a source. Since his recruitment, the individual has continued to work with the foreign partner against al-Qaeda and ISIS affiliates within the country.
  4. CIA has used FISA Section 702 collection to uncover details, including a photograph, that enabled an African partner to arrest two ISIS-affiliated militants who had traveled from Turkey and were connected to planning a specific and immediate threat against U.S. personnel and interests. Data recovered from the arrest enabled CIA to learn additional information about ISIS and uncovered actionable intelligence on an ISIS facilitation network and ISIS attack planning.
  5. NSA FISA Section 702 collection against an email address used by an al-Qaeda courier in Pakistan resulted in the acquisition of a communication sent to that address by an unknown individual located in the United States. The message indicated that the United States-based individual was urgently seeking advice regarding how to make explosives. The NSA passed this information to the FBI. Using a National Security Letter (NSL), the FBI was able to quickly identify the individual as Najibullah Zazi. Further investigation revealed that Zazi and a group of confederates had imminent plans to detonate explosives on subway lines in Manhattan. Zazi and his co-conspirators were arrested and pled guilty or were convicted of their roles in the planned attack. As the Privacy and Civil Liberties Oversight Board (PCLOB) found in its report, “[w]ithout the initial tip-off about Zazi and his plans, which came about by monitoring an overseas foreigner under Section 702, the subway bombing plot might have succeeded.”

The list has two advantages over the lists the IC was releasing in 2013. First, it’s more modest about its claims, not, this time, listing every quasi-thwarted terrorist funding opportunity as a big success. In addition, it describes all three confirmed certificates (from the Snowden documents): counterterrorism (bullets 3 through 5), counterproliferation (2), and foreign government (1, though if this is Iran, it might also be counterproliferation). It also admits that one point of all this spying is to find informants (bullet 3), even if not as explicitly as some court filings and IG reports do. That purpose — and the associated sensitivities (including whether and how it is used by FBI) is one thing all members of Congress should be briefed on.

That said, the description of the foreign government certificate doesn’t come close to describing the kinds of people who might be swept up in it, and as such provides what I believe to be a misleading understanding of who might be targeted under 702.

Note, too, the silence about the use of certificates for counterintelligence purposes, which the government surely does. Again, that would present different threats to Americans’ privacy.

Then there’s the last sentence of the document, in the upstream collection section.

Furthermore, this collection has allowed the IC to acquire unique intelligence that informs cybersecurity efforts.

Oh, huh, what’s that doing there in the last line of the document rather than in the successes section?

From the very first public discussions of 702 after Edward Snowden, ODNI included cybersecurity among the successes, even before it had a certificate. In fact, the document released June 8, 2013, just three days after the first Snowden release, echoed some of the same language:

Communications collected under Section 702 have provided significant and unique intelligence regarding potential cyber threats to the United States including specific potential computer network attacks. This insight has led to successful efforts to mitigate these threats.

This is a problem! Whether or not upstream 702 could be used for cyber purposes has been an undercurrent since the first USA Freedom Act. There are conflicting reports on whether NSA did obtain a cyber certificate in 2012, as they hoped to, or whether that was denied or so limited that it didn’t serve the function the NSA needed. I’ve even been told that CISA is supposed to serve the same purpose.That said, FBI’s minimization procedures (but not, by my read, NSA’s) include some language directed at cybersecurity.

Congress deserves to have a better sense of whether and how the government is using upstream 702 for cybersecurity, because there are unique issues associated with it. It’s clearly a great application of upstream searches, but not one without some risks. So the government should be more clear about this, at least in classified briefings available to all members.

Admitting NSA uses Section 704 not Section 703

Finally, this language is as close as the IC has come to admitting that it uses Section 704, not Section 703, to target Americans overseas.

In contrast to Section 702, which focuses on foreign targets, Section 704 provides additional protection for collection activities directed against U.S. persons located outside of the United States. Section 2.5 of Executive Order 12333 requires the AG to approve the use of “any technique for which a warrant would be required if undertaken for law enforcement purposes” against U.S. persons abroad for intelligence purposes. The AG’s approval must be based on a determination that probable cause exists to believe the U.S. person is a foreign power or an agent of a foreign power. Section 704 builds upon these pre-FAA requirements and provides that, in addition to the AG’s approval, the government must obtain an order from the FISC in situations where the U.S. person target has “a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes.” The FISC order must be based upon a finding that there is probable cause to believe that the target is a foreign power, an agent of a foreign power, or an officer or employee of a foreign power and that the target is reasonably believed to be located outside the United States. By requiring the approval of the FISC in addition to the approval of the AG, Section 704 provides an additional layer of civil liberties and privacy protection for U.S. persons located abroad.

In addition to Sections 702 and 704, the FAA added several other provisions to FISA. Section 701 provides definitions for Title VII. Section 703 allows the FISC to authorize an application targeting a U.S. person located outside the U.S. when the collection is conducted inside the United States. Like Section 704, Section 703 requires a finding by the FISC that there is probable cause to believe that the target is a foreign power, an agent of a foreign power, or an officer or employee of a foreign power and is reasonably believed to be located outside the United States.

I’ve written about the distinction here.

Now, in theory, the authority used may not make a difference. Moreover, it’s possible that the NSA simply uses 705b for Americans overseas, meaning they can rely on domestic providers for stored Internet data, while using their more powerful spying for overseas content (in which case Congress should know that too).

But I also think the methods used may have an impact on US persons’ privacy, both the target and others. I’ll try to lay this out in a post in the coming days.

All of which is to say, this document is useful. But there are a few areas — particularly with FBI back door searches, which is the most important area — where the document gets noticeably silent.

 

Ron Wyden’s History of Bogus Excuses for Not Counting 702 US Person Collection

The other day, Ron Wyden gave a long speech on FISA Section 702, purportedly explaining why he was voting against Dan Coats to be Director of National Intelligence. Wyden voted against Coats because his former colleague would not commit to providing a number of the number of Americans swept up under Section 702. Given that it’s always a good idea to read Wyden closely, I wanted to summarize what he said. I’ll look at his complaints in a separate post, but for now I wanted to focus on Wyden’s description of the bogus explanations James Clapper and others gave Wyden in his past efforts to get the number of Americans sucked up in 702. I summarized the known exchanges that occurred on this issue before Clapper’s famous “not wittingly” lie here.

In 2011, both Wyden and John Bates were asking for numbers at the same time — NSA refused both

The first request for a count is temporally significant(update: I think I just missed this one in the past). In April 2011, Wyden and Mark Udall asked for the number.

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

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

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

That means Clapper claimed he couldn’t offer a number even as NSA was doing precisely the kind of count that Wyden and Udall wanted, albeit for just one kind of 702 collection. And, as Wyden suggested in his speech, Clapper’s answer was non-responsive, answering how many US persons had their communications reviewed, rather than how many had their communications collected.

In July of that year, the director wrote back and said, and I quote, it was not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the Foreign Intelligence Surveillance Act. He suggested reviewing the classified number of disseminated intelligence reports containing a reference to a U.S. Person, but that is very different than the number of Americans whose communications have been collected in the first place. And that’s what this is all about.

Then, after the government presented the information on how many US persons were collected via MCTs to Bates in August, Bates asked them to go back and count SCTs.

NSA refused.

Both FISC and members of SSCI were asking for this information in the same time period, and NSA refused to provide the count.

Since NSA wouldn’t help him, Bates invented an estimate himself, calculating that some 46,000 entirely domestic communications were collected under upstream collection each year.

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

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

NSA’s manual review found that approximately 90% of the 50,440 transactions in the same were SCTs. Id. at 3. Ninety percent of the approximately 13, 25 million total Internet transactions acquired by NSA through its upstream collection during the six-month period, works out to be approximately 11,925,000 transactions. Those 11,925,000 transactions would constitute the universe of SCTs acquired during the six-month period, and .197% of that universe would be approximately 23,000 wholly domestic SCTs. Thus, NSA may be acquiring as many as 46,000 wholly domestic “about” SCTs each year, in addition to the 2,000-10,000 MCTs referenced above.

Presumably, Wyden learned that NSA had been doing such a count in October, well after Clapper had given his first non-responsive answer.

The 2012 privacy violation claim

Wyden skips the next request he made, when on May 4, 2012, he and Udall asked the Intelligence Community Inspector General Charles McCullough for a number (I laid out the timing of the request in this post). When they also tried to include language in the FAA reauthorization requiring the IGs to come up with a number, SSCI refused, citing their outstanding request to McCullough. Of course, McCullough did not get back to the Senators with his refusal to do such a count until after the bill had passed out of committee. He responded by saying NSA IG George Ellard didn’t have the capacity for such a review, and besides, it would violate the privacy of Americans to find out how much NSA was violating their privacy.

I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.

Clapper blows off 12 Senators

In response, Wyden rounded up some privacy minded Senators to sign onto a letter asking for an estimate of the number. In this week’s speech, Wyden noted that he said he’d be willing to take an estimate. He didn’t remind his listeners that he and his friends also asked whether such an estimate had been done.

  • Have any entities made any estimates — even imprecise estimates — about how many US communications have been collected under section 702 authorities?

The answer to that question — at least with regards to upstream collection — was yes. NSA had estimated the MCTs and Bates, using their estimate, had made an even rougher estimate of the SCTs. But as I noted here, members of Congress relying on the purported disclosure to Congress about the upstream violations wouldn’t know that — or that the upstream violations involved entirely US person collection. As Wyden noted in his speech, Congress didn’t get this information before the reauthorized FAA.

We still got no answer. And section 702 was reauthorized without this necessary information.

Clapper’s least untruthful answer

Wyden also doesn’t address Clapper’s famous March 2013 lie. Since the exposure of the phone dragnet, most discussions have assumed Wyden was probing only about that program. But the question, as asked, absolutely applied to incidental collection.

Wyden: Does the NSA collect any type of data, at all, on millions, or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not?

Clapper: There are cases where they could inadvertently, perhaps, uh, collect, but not wittingly.

Indeed, several of Clapper’s many excuses claim he was thinking of content when he responded. Even if he were, his first answer would still be yes: the NSA collects on so many millions of Americans incidentally that it refuses to count it. But Clapper’s “not wittingly” response is almost certainly not a goof, since he gave it after Wyden had provided a day’s warning the question would be asked and after two different John Bates’ opinions that made it clear that he would forgive the collection of content so long as NSA didn’t know about it, but once they knew about it, then it would become illegal. The not wittingly response reinforces my firm belief that the reason the government refuses to count this is because then a great deal of their Section 702 collection would be deemed illegal under those two FISC precedents.

Clapper’s blow-off becomes Dan Coats’ blow-off

Which is where Wyden brings us up to date, with both house of Congress asking for such a number and — after promises it would be forthcoming — not getting it.

So last year looking at the prospect of the law coming up, there was a renewed effort to find out how many law-abiding Americans are getting swept up in these searches of foreigners. In April 2016 a bipartisan letter from members of the House Judiciary Committee asked the Director of National Intelligence for a public estimate of the number of communications or transactions involving United States persons are collected under section 702 on an annual basis. This letter coming from the House Democrats and Republicans, again asked for a rough estimate. This bipartisan group suggested working with director clapper to determine the methodology to get this estimate.

In December there were hints in the news media that something might be forthcoming, but now we’re here with a new administration considering the nomination of the next head of the intelligence community who has said that reauthorizing section 702 is his top legislative priority and that there is no answer in sight to the question Democrats and Republicans have been asking for over six years. How many innocent law-abiding Americans are getting swept up in these searches under a law that targets foreigners overseas?

There’s one tiny tidbit he doesn’t mention here. Coats never answered that he wouldn’t provide an answer. Rather, he said he didn’t understand the technical difficulties behind providing one (not even after participating in the 2012 vote where this was discussed). In his confirmation hearing, Coats explained one reason why he couldn’t learn what the technical difficulties were before he was confirmed. When he resigned the Senate, his clearance had lapsed, and during his confirmation process, his new clearance was being processed. That meant that for this — and any other classified question that Coats might want to consider anew — he was unable to get information.

The Senate doesn’t seem to care about this serial obstruction, however. Coats was confirmed with an 85-12 vote, with the following Senators voting against confirmation.

Baldwin (D-WI)
Booker (D-NJ)
Duckworth (D-IL)
Gillibrand (D-NY)
Harris (D-CA)
Markey (D-MA)
Merkley (D-OR)
Paul (R-KY)
Sanders (I-VT)
Udall (D-NM)
Warren (D-MA)
Wyden (D-OR)

Given how hard the IC is trying to hide this, the actual exposure of US persons must be fairly significant. We’ll see whether Congress finds another way to force this information out of the IC.

Updated with more granular timing on the 2011 exchange.

The Ironies of the EO 12333 Sharing Expansion for Obama and Trump

In one of his first acts as leader of the Democratic party in 2008, Barack Obama flipped his position on telecom immunity under FISA Amendments Act, which cleared the way for its passage. That was a key step in the legalization of the Stellar Wind dragnet illegally launched by George Bush in 2001, the normalization of turnkey surveillance of the rest of the world, surveillance that has also exposed countless Americans to warrantless surveillance.

Bookends of the Constitutional law president’s tenure: codifying and expanding Stellar Wind

So it is ironic that, with one of his final acts as President, Obama completed the process of normalizing and expanding Stellar Wind with the expansion of EO 12333 information sharing.

As I laid out some weeks ago, on January 3, Loretta Lynch signed procedures that permit the NSA to share its data with any of America’s other 16 intelligence agencies. This gives CIA direct access to NSA data, including on Americans. It gives all agencies who jump through some hoops that ability to access US person metadata available overseas for the kind of analysis allegedly shut down under USA Freedom Act, with far fewer limits in place than existed under the old Section 215 dragnet exposed by Edward Snowden.

And it did so just as an obvious authoritarian took over the White House.

I’ve was at a privacy conference in Europe this week (which is my partial explanation for being AWOL all week), and no one there, American or European, could understand why the Obama Administration would give Trump such powerful tools.

About the only one who has tried to explain it is former NSA lawyer Susan Hennessey in this Atlantic interview.

12333 is not constrained by statute; it’s constrained by executive order. In theory, a president could change an executive order—that’s within his constitutional power. It’s not as easy as just a pen stroke, but it’s theoretically possible.

[snip]

When they were in rewrites, they were sort of vulnerable. There was the possibility that an incoming administration would say, “Hey! While you’re in the process of rewriting, let’s go ahead and adjust some of the domestic protections.” And I think a reasonable observer might assume that while the protections the Obama administration was interested in putting into place increased privacy protections—or at the very least did not reduce them—that the incoming administration has indicated that they are less inclined to be less protective of privacy and civil liberties. So I think it is a good sign that these procedures have been finalized, in part because it’s so hard to change procedures once they’re finalized.

[snip]

I think the bottom line is that it’s comforting to a large national-security community that these are procedures that are signed off by Director of National Intelligence James Clapper and Attorney General Loretta Lynch, and not by the DNI and attorney general that will ultimately be confirmed under the Trump Administration.

Hennessey’s assurances ring hollow. That’s true, first of all, because it is actually easier to change an EO — and EO 12333 specifically — than “a pen stroke.” We know that because John Yoo did just that, in authorizing Stellar Wind, when he eliminated restrictions on SIGINT sharing without amending EO 12333 at all. “An executive order cannot limit a President,” Yoo wrote in the 2001 memo authorizing Stellar Wind. “There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.” And so it was that the NSA shared Stellar Wind data with CIA, in violation of the plain language of EO 12333 Section 2.3, until that sharing was constrained in 2004.

Yes, in 2008, the Bush Administration finally changed the language of 2.3 to reflect the SIGINT sharing it had started to resume in 2007-2008. Yes, this year the Obama Administration finally made public these guidelines that govern that sharing. But recent history shows that no one should take comfort that EOs can bind a president. They cannot. The Executive has never formally retracted that part of the 2001 opinion, which in any case relies on a 1986 OLC opinion on Iran-Contra arguing largely the same thing.

No statutorily independent oversight over vastly expanded information sharing

Which brings us to whether the EO sharing procedures, as released, might bind Trump anymore than EO 12333 bound Bush in 2001.

In general, the sharing procedures are not even as stringent as other surveillance documents from the Obama Administration. The utter lack of any reasonable oversight is best embodied, in my opinion, by the oversight built into the procedures. A key cog in that oversight is the Department of National Intelligence’s Privacy and Civil Liberties Officer — long inhabited by a guy, Alex Joel, who had no problem with Stellar Wind. That role will lead reviews of the implementation of this data sharing. In addition to DNI’s PCLO, NSA’s PCLO will have a review role, along with the General Counsels of the agencies in question, and in some limited areas (such as Attorney Client communications), so will DOJ’s National Security Division head.

What the oversight of these new sharing procedures does not include is any statutorily independent position, someone independently confirmed by the Senate who can decide what to investigate on her own. Notably, there is not a single reference to Inspectors General in these procedures, even where other surveillance programs rely heavily on IGs for oversight.

There is abundant reason to believe that the PATRIOT Act phone and Internet dragnets violated the restrictions imposed by the FISA Court for years in part because NSA’s IG’s suggestions were ignored, and it wasn’t until, in 2009, the FISC mandated NSA’s IG review the Internet dragnet that NSA’s GC “discovered” that every single record ingested under the program violated FISC’s rules after having not discovered that fact in 25 previous spot checks. In the past, then, internal oversight of surveillance has primarily come when IGs had the independence to actually review the programs.

Of course, there won’t be any FISC review here, so it’s not even clear whether explicit IG oversight of the sharing would be enough, but it would be far more than what the procedures require.

I’d add that the Privacy and Civil Liberties Oversight Board, which provided key insight into the Section 215 and 702 programs, also has no role — except that PCLOB is for all intents and purposes defunct at this point, and there’s no reason to believe it’ll become operational under Trump.

Obama vastly expanded information sharing with these procedures without implementing the most obvious and necessary oversight over that sharing, statutorily independent oversight.

Limits on using the dragnet to affect political processes

There is just one limit in the new procedures that I think will have any effect whatsoever — but I think Trump may have already moved to undercut it.

The procedures explicitly prohibit what everyone should be terrified about under Trump — that he’ll use this dragnet to persecute his political enemies. Here’s that that prohibition looks like.

Any IC element that obtains access to raw SIGINT under these Procedures will:

[snip]

Political process in the United States. Not engage in any intelligence activity authorized by these Procedures, including disseminations to the White House, for the purpose of affecting the political process in the United States. The IC element will comply with the guidance applicable to NSA regarding the application of this prohibition. Questions about whether a particular activity falls within this prohibition will be resolved in consultation with the element’s legal counsel and the General Counsel of the Office of the Director of National Intelligence (ODNI) (and the DoD’s Office of the General Counsel in the case of a DoD IC element).

If you need to say the IC should not share data with the White House for purposes of affecting the political process, maybe your info sharing procedures are too dangerous?

Anyway, among the long list of things the IC is not supposed to do, this is the only one that I think is so clear that it would likely elicit leaks if it were violated (though obviously that sharing would have to be discovered by someone inclined to leak).

All that said, note who is in charge of determining whether something constitutes affecting political processes? The IC agency’s and ODNI’s General Counsel (the latter position is vacant right now). Given that the Director of National Intelligence is one of the positions that just got excluded from de facto participation in Trump’s National Security Council (in any case, Republican Senator Dan Coats has been picked for that position, which isn’t exactly someone you can trust to protect Democratic or even democratic interests), it would be fairly easy to hide even more significant persecution of political opponents.

FBI and CIA’s expanded access to Russian counterintelligence information

There is, however, one aspect of these sharing guidelines that may have work to limit Trump’s power.

In the procedures, the conditions on page 7 and 8 under which an American can be spied on under EO 12333 are partially redacted. But the language on page 11 (and in some other parallel regulations) make it clear one purpose under which such surveillance would be acceptable, as in this passage.

Communications solely between U.S. persons inadvertently retrieved during the selection of foreign communications will be destroyed upon recognition, except:

When the communication contains significant foreign intelligence or counterintelligence, the head of the recipient IC element may waive the destruction requirement and subsequently notify the DIRNSA and NSA’s OGC;

Under these procedures generally, communications between an American and a foreigner can be read. But communications between Americans must be destroyed except if there is significant foreign intelligence or counterintelligence focus. This EO 12333 sharing will be used not just to spy on foreigners, but also to identify counterintelligence threats (which would presumably include leaks but especially would focus on Americans serving as spies for foreign governments) within the US.

Understand: On January 3, 2017, amid heated discussions of the Russian hack of the DNC and public reporting that at least four of Trump’s close associates may have had inappropriate conversations with Russia, conversations that may be inaccessible under FISA’s probable cause standard, Loretta Lynch signed an order permitting the bulk sharing of data to (in part) find counterintelligence threats in the US.

This makes at least five years of information collected on Russian targets available, with few limits, to both the CIA and FBI. So long as the CIA or FBI were to tell DIRNSA or NSA’s OGC they were doing so, they could even keep conversations between Americans identified “incidentally” in this data.

I still don’t think giving the CIA and FBI (and 14 other agencies) access to NSA’s bulk SIGINT data with so little oversight is prudent.

But one of the only beneficial aspects of such sharing might be if, before Trump inevitably uses bulk SIGINT data to persecute his political enemies, CIA and FBI use such bulk data to chase down any Russian spies that may have had a role in defeating Hillary Clinton.

“Is Our Congressmens Learning?

George Bush once famously asked whether “our children is learning,” demonstrating that those setting policy for education might be least suited for measuring the efficacy of education.

Two different members of Congress in the last day suggest the same is true of counterterrorism policy.

First there was IN Senator Dan Coats, who apparently attributed his understanding of terrorism tactics to 24 and Homeland yesterday. As Mia Bloom pointed out, they’re fiction (though probably supported by intelligence agencies). Experts have attacked the realism of both shows.

The worst part of Coats admitting he takes 24 and Homeland as true, though, is that he’s on the Senate Intelligence Committee. He has — or should have — a way of getting factual details about terrorist tactics. He appears to turn to fiction instead.

Who knows what source CA Congresswoman (and Senate candidate) Loretta Sanchez relied on for her claim that 5 to 20% of Muslims want a Caliphate.

“There is a small group, and we don’t know how big that is—it can be anywhere between 5 and 20 percent, from the people that I speak to—that Islam is their religion and who have a desire for a caliphate and to institute that in anyway possible, and in particular go after what they consider Western norms—our way of life,” she said.

But she, like Coats, is privy to intelligence briefings on both the Armed Services and — especially, in this context — Homeland Security Committees. Did some whackdoodle from Homeland Security tell Sanchez a significant chunk of Muslims are itching to set up an all-Muslim empire?

Something’s wrong with our congressional briefing process. Either these people aren’t attending, they’re not useful, or they’re being fed junk.

And it’s making America less safe.

Update: Dan Coats’ state corrected thanks to “mitch daniels.”

Your Obligatory Fran Fragos Townsend Leak

Remember how the detail that UndieBomb 2.0 involved a Saudi infiltrator got out? John Brennan had a private teleconference with Richard Clarke and Fran Fragos Townsend and implied as much, which led to Clarke reporting it (and not long after, ABC confirming it with foreign sources).

At about 5:45 p.m. EDT on Monday, May 7, just before the evening newscasts, John Brennan, President Barack Obama’s top White House adviser on counter-terrorism, held a small, private teleconference to brief former counter-terrorism advisers who have become frequent commentators on TV news shows.

According to five people familiar with the call, Brennan stressed that the plot was never a threat to the U.S. public or air safety because Washington had “inside control” over it.

Brennan’s comment appears unintentionally to have helped lead to disclosure of the secret at the heart of a joint U.S.-British-Saudi undercover counter-terrorism operation.

A few minutes after Brennan’s teleconference, on ABC’s World News Tonight, Richard Clarke, former chief of counter-terrorism in the Clinton White House and a participant on the Brennan call, said the underwear bomb plot “never came close because they had insider information, insider control.”

Now, National Security Council Spokesperson Tommy Vietor, who aggressively but rather unconvincingly tried to claim that the Administration had never intended to publicly announce UndieBomb 2.0, is claiming that the Administration is obligated to hold such teleconferences because the Administration is obligated to be “transparent” about potential threats.

The Yemen plot had many intelligence and national security officials flummoxed and angered by its public airing.  Despite that, a senior administration official then briefed network counterterrorism analysts, including CNN’s Frances Townsend, about parts of the operation.

But such briefings are an “obligation” for the administration once a story like the Yemen plot is publicized, insisted National Security Council spokesman Tommy Vietor.

“The reason that we brief former counterterrorism officials is because they are extremely conscientious about working with us about what can and cannot be said or disclosed,” Vietor told Security Clearance.  “They understand that there is an obligation for the U.S. to be transparent with American people about potential threats but will work with us to protect operational equities because they’ve walked in our shoes.”

This is the Administration that appears to have just fired a guy for revealing that the bankster threat is growing while the terrorist threat is diminishing, claiming they had to hold a teleconference with TV commentators just before prime time to make sure Americans regarded a Saudi-managed plot as a real threat.

Vietor’s in trouble. Presumably on his advice, the White House was prepping a big roll out of UndieBomb 2.0 the day after this call with Townsend and Clarke. Clearly, by going ahead with the teleconference, he was trying to get maximum spin value out of the plot, after the AP had broken it. Indeed, the detail that led Clarke to learn the “plot” was really a sting–that we (or our buddies the Saudis) were in control the whole time–is precisely the same spin that Brennan’s sanctioned leaks have pushed in the Kill List and StuxNet stories.

But for a variety of reasons, it has become politically costly to admit the White House had planned to spin this. And so, Tommy Vietor keeps trying to tell new stories, hoping one will hold together.

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