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Dianne Feinstein Discovers Its Not “Just” Metadata

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Over the course of years of defending the NSA’s bulk metadata programs, Dianne Feinstein made a series of statements to suggest that massive collection of metadata — including aspiring to collect the phone records of every American — was no big deal because it didn’t include content.

June 6, 2013:

[T]his is just metadata. There is no content involved.

October 20, 2013:

The call-records program is not surveillance. It does not collect the content of any communication,

May 18, 2014:

It’s not a surveillance program, it’s a data-collection program.

But it appears Senator Feinstein no longer believes that the bulk collection of metadata is a minor issue. In response to yesterday’s unsealing of the indictment against 4 Russian hackers for targeting Yahoo, Feinstein had this to say:

Today’s charges against hackers and Russian spies for the theft of more than 500 million Yahoo user accounts is the latest evidence of a troubling trend: Russia’s sustained use of cyber warfare for both intelligence gathering and financial crimes. The indictment shows that Russia used these cyberattacks to target U.S. and Russian government officials, Russian journalists and employees of cybersecurity, financial services and commercial entities.

500 million user accounts didn’t get hacked. Upwards of 6,500 accounts got hacked for content, and the contacts of another 30 million were harvested for spam marketing. The 500 million number refers to the theft of a database of metadata. The indictment made clear that this was non-content data:

21. Beginning no later than 2014, the conspirators stole non-content information regarding more than 500 million Yahoo user accounts as a result of their malicious intrusion. The theft of user data was part of a larger intrusion into Yahoo’s computer network, which continued to and including at least September 2016. As part of this intrusion, malicious files and software tools were downloaded onto Yahoo’s computer network, and used to gain and maintain further unauthorized access to Yahoo’s network and to conceal the extent of such access.

22. The user data referenced in the preceding paragraph was held in Yahoo’s User Database (“UDB”). The UDB was, and contained, proprietary and confidential Yahoo technology and information, including, among other data, subscriber information, such as: account users’ names; recovery email accounts and phone numbers, which users provide to webmail providers, such as Yahoo, as alternative means of communication with the provider; password challenge questions and answers; and certain cryptographic security information associated with the account, i.e. the account’s “nonce”, further described below. Some of the information in the UDB was stored in an encrypted form.

Feinstein has long insisted that so long as content is not collected, it doesn’t amount to surveillance.

Now, I’ll grant you: the Yahoo database included far richer metadata than NSA got under the bulk phone and Internet metadata programs that Feinstein long championed. It includes names, alternate contacts, password hints, and that nonce (which is what the Russians used to break into email accounts themselves).

But we know that NSA’s phone and Internet dragnet programs correlated collected metadata with other information it had to develop this kind of profile of targeted users. We know it has the ability (and so therefore, presumably does) collect such data — as metadata — overseas. The definition of EO 12333 collected metadata that can be shared freely between intelligence agencies remains silent on whether it includes things like names. And even the modified phone dragnet program rolled out under USA Freedom Act correlates data — meaning it will pull from all known instances of the identifier — even before requesting data from providers.

So NSA is still collecting metadata — in quantities greater than what Russia stole from Yahoo — including metadata on US persons.

Perhaps given Feinstein’s newfound discovery of how compromising such information can be, she’ll be a little more attentive to NSA and FBI’s own use of bulk metadata?

Why We Should Remain Skeptical of the Five (!!) Congressional Investigations into the Russian Hack

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I was interviewed (on Thursday) about the Flynn resignation and larger investigation into the Russia hack for Saturday’s On the Media. In what made the edit, I made one error (which I’ll explain later), but a key point I made holds. The leaking about Flynn and other Russian events are hypocritical and out of control. But they may create pressure to fix two problems with the current investigations into the Russian hack: the role of Jeff Sessions overseeing the DOJ-led investigations, and the role of Trump advisory officials Devin Nunes and Richard Burr overseeing the most appropriate congressional investigations.

In this post I’ll look at the latter conflicts. In a follow-up I’ll look at what the FBI seems to be doing.

As I noted in the interview, contrary to what you might think from squawking Democrats, there are five congressional investigations pertaining to Russian hacks, though some will likely end up focusing on prospective review of Russian hacking (for comparison, there were seven congressional Benghazi investigations). They are:

  • Senate Intelligence Committee: After months of Richard Burr — who served on Trump’s campaign national security advisory council — saying an inquiry was not necessary and going so far as insisting any inquiry wouldn’t review the dossier leaked on Trump, SSCI finally agreed to do an inquiry on January 13. Jim Comey briefed that inquiry last Friday, February 17.
  • House Intelligence Committee: In December, James Clapper refused to brief the House Intelligence Committee on the latest intelligence concluding Russian hacked the DNC with the goal of electing Trump, noting that HPSCI had been briefed all along (as was clear from some of the leaks, which clearly came from HPSCI insiders). In January, they started their own investigation of the hack, having already started fighting about documents by late January. While Ranking Democratic Member Adam Schiff has long been among the most vocal people complaining about the treatment of the hack, Devin Nunes was not only a Trump transition official, but made some absolutely ridiculous complaints after Mike Flynn’s side of some conversations got legally collected in a counterintelligence wiretap. Nunes has since promised to investigate the leaks that led to Flynn’s forced resignation.
  • Senate Armed Services Committee: In early January, John McCain announced he’d form a new subcommittee on cybersecurity, with the understanding it would include the Russian hack in its focus. Although he originally said Lindsey Graham would lead that committee, within weeks (and after Richard Burr finally capitulated and agreed to do a SSCI inquiry), McCain instead announced Mike Rounds would lead it.
  • Senate Foreign Relations Committee: In December, Bob Corker announced the SFRC would conduct an inquiry, scheduled to start in January. At a hearing in February, the topic came up multiple times, and both Corker and Ben Cardin reiterated their plans to conduct such an inquiry.
  • Senate Judiciary Subcommittee on Crime and Terrorism: After Graham was denied control of the SASC panel, he and Sheldon Whitehouse announced they’d conduct their own inquiry, including a prospective review of “the American intelligence community’s assessment that Russia did take an active interest and play a role in the recent American elections.”

All the while, some Senators — McCain, Graham, Chuck Schumer, and Jack Reed — have called for a Select Committee to conduct the investigation, though in true McCainesque fashion, the maverick has at times flip-flopped on his support of such an inquiry.

Also, while not an investigation, on February 9, Jerry Nadler issued what I consider (strictly as it relates to the Russian hack, not the other conflicts) an ill-advised resolution of inquiry calling for the Administration to release materials relating to the hack, among other materials. Democrats in both the House and Senate have introduced legislation calling for an independent commission, but have gotten no support even from the mavericky Republicans.

As you can see from these descriptions, it took pressure from other committees, especially Lindsey Graham getting control of one of the inquiries, before Richard Burr let himself be convinced by SSCI Vice Chair Mark Warner to conduct an inquiry. Thus far, Mitch McConnell has staved off any Select Committee. As soon as SSCI did claim to be launching an investigation, a bunch of Republicans tried to shut down the others, claiming it was all simply too confusing.

Let me be clear: as I noted in the OTM interview, the intelligence committees are the appropriate place to conduct this investigation, as it concerns really sensitive counterintelligence matters — people who could be witnesses to it are getting killed! — and an ongoing investigation. The only way to conduct a responsible inquiry is to do so in secret, and unless a select committee with clearance is formed, that means doing so in the dysfunctional intelligence committees.

That’s made worse by Nunes and Burr’s obvious conflicts, having served on Trump’s pre-inauguration advisory teams (at a time when Mike Flynn was chatting about ongoing sanctions with Russia), and their equally obvious disinterest in conducting the investigation. Remember that the intelligence committees successfully bolloxed up the independent investigation into Iran-Contra. While neither Nunes nor Burr is as smart as Dick Cheney, who had a key role in that intentional bolloxing, Democrats should be cognizant of the ways that such bolloxing has happened in the past.

And now that SSCI has finally started its inquiry, Ali Watkins published an uncharacteristically credulous report on Burr’s role in the investigation, slathering on the colorful vocabulary — “brutally yanked;” “underground cohort;” “dark shadow of Langley;” “Wearily, they’re trudging forward on a probe littered with potential political landmines;” — before portraying the allegedly difficult position Burr is in:

That he’s now in charge of the sweeping Russia inquiry puts the North Carolina Republican in between a rock and a hard place. Since taking over the helm of the intelligence committee, Burr has pressed for more active and aggressive oversight, and has kept a rigorous travel schedule to match. But his decisive reelection victory in November came at a cost — throughout the contentious race, Burr towed Trump’s line, and hasn’t yet directly criticized the White House publicly.

But Burr has shown no indication that he’s ever angled for a Trump administration job, and says he’s not running for re-election. How seriously he takes his obligation to carry his president’s water remains to be seen.

Burr has been slammed by colleagues in recent days, who fear he’s slow-rolling an investigation into a fast-moving story. But much of the inquiry’s slow start was due to bureaucratic wrangling — some intelligence agencies insisted products be viewed on site rather than sent to the Hill, and some of the intelligence was so tightly controlled that it was unclear if staffers could even view it.

This is just spin. There is abundant public record that Burr has thwarted oversight generally (he has said things supporting that stance throughout his history on both the Senate and House Intelligence Committee, even ignoring his role in covering up torture, and Watkins’ earlier incorrect claims about Burr’s open hearings remain only partly corrected). There is no mention in this article that Burr was on Trump’s national security advisory committee. Nor that SSCI had reason to do hearings about this hack well before January 2017, back when it might have made a difference — at precisely the time when Burr apparently had time to advise Trump about national security issues as a candidate. Plus, it ignores all the things laid out here, Burr’s continued equivocation about whether there should even be a hearing.

There is no reason to believe Burr or Nunes intend to have a truly rigorous investigation (bizarrely, Warner seems to have had more success pushing the issue than Schiff — or Dianne Feinstein when she was Vice Chair — though that may be because the Ranking position is stronger in the Senate than in the House). And history tells us we should be wary that their investigations will be counterproductive.

As I noted, on Friday — the Friday before a recess — Jim Comey briefed the SSCI on the Russian hack. That briefing was unusual for the date (regular SSCI meetings happen on Tuesday and Thursday, and little business of any kinds happens right before a recess). Reporters have interpreted that, along with the presumed silence about the content of the briefing, as a sign that things are serious. That may be true — or it may be that that was the only time a 3-hour briefing could be scheduled. In the wake of the briefing, it was reported that the SSCI sent broad preservation requests tied to the inquiry (that is, they sent the request long after the inquiry was started). And while the press has assumed no one is talking, the day after the briefing, Reuters reported outlines of at least three parts of the FBI investigation into the Russian hack, attributed to former and current government officials.

Unpacking the New CIA Leak: Don’t Ignore the Aluminum Tube Footnote

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This post will unpack the leak from the CIA published in the WaPo tonight.

Before I start with the substance of the story, consider this background. First, if Trump comes into office on the current trajectory, the US will let Russia help Bashar al-Assad stay in power, thwarting a 4-year effort on the part of the Saudis to remove him from power. It will also restructure the hierarchy of horrible human rights abusing allies the US has, with the Saudis losing out to other human rights abusers, potentially up to and including that other petrostate, Russia. It will also install a ton of people with ties to the US oil industry in the cabinet, meaning the US will effectively subsidize oil production in this country, which will have the perhaps inadvertent result of ensuring the US remains oil-independent even though the market can’t justify fracking right now.

The CIA is institutionally quite close with the Saudis right now, and has been in charge of their covert war against Assad.

This story came 24 days after the White House released an anonymous statement asserting, among other things, “the Federal government did not observe any increased level of malicious cyber activity aimed at disrupting our electoral process on election day,” suggesting that the Russians may have been deterred.

This story was leaked within hours of the time the White House announced it was calling for an all-intelligence community review of the Russia intelligence, offered without much detail. Indeed, this story was leaked and published as an update to that story.

Which is to say, the CIA and/or people in Congress (this story seems primarily to come from Democratic Senators) leaked this, apparently in response to President Obama’s not terribly urgent call to have all intelligence agencies weigh in on the subject of Russian influence, after weeks of Democrats pressuring him to release more information. It was designed to both make the White House-ordered review more urgent and influence the outcome.

So here’s what that story says.

In September, the spooks briefed “congressional leaders” (which for a variety of reasons I wildarseguess is either a Gang of Four briefing including Paul Ryan, Nancy Pelosi, Mitch McConnell, and Harry Reid or a briefing to SSCI plus McConnell, Reid, Jack Reed, and John McCain). Apparently, the substance of the briefing was that Russia’s intent in hacking Democratic entities was not to increase distrust of institutions, but instead to elect Trump.

The CIA has concluded in a secret assessment that Russia intervened in the 2016 election to help Donald Trump win the presidency, rather than just to undermine confidence in the U.S. electoral system, according to officials briefed on the matter.

The difference between this story and other public assessments is that it seems to identify the people — who sound like people with ties to the Russian government but not necessarily part of it — who funneled documents from Russia’s GRU to Wikileaks.

Intelligence agencies have identified individuals with connections to the Russian government who provided WikiLeaks with thousands of hacked emails from the Democratic National Committee and others, including Hillary Clinton’s campaign chairman, according to U.S. officials. Those officials described the individuals as actors known to the intelligence community and part of a wider Russian operation to boost Trump and hurt Clinton’s chances.

[snip]

[I]ntelligence agencies do not have specific intelligence showing officials in the Kremlin “directing” the identified individuals to pass the Democratic emails to WikiLeaks, a second senior U.S. official said. Those actors, according to the official, were “one step” removed from the Russian government, rather than government employees.

This is the part that has always been missing in the past: how the documents got from GRU, which hacked the DNC and John Podesta, to Wikileaks, which released them. It appears that CIA now thinks they know the answer: some people one step removed from the Russian government, funneling the documents from GRU hackers (presumably) to Wikileaks to be leaked, with the intent of electing Trump.

Not everyone buys this story. Mitch McConnell doesn’t buy the intelligence.

In September, during a secret briefing for congressional leaders, Senate Republican Leader Mitch McConnell (Ky.) voiced doubts about the veracity of the intelligence, according to officials present.

That’s one doubt raised about CIA’s claim — though like you all, I assume Mitch McConnell shouldn’t be trusted on this front.

But McConnell wasn’t the only one. One source for this story — which sounds like someone like Harry Reid or Dianne Feinstein — claimed that this CIA judgment is the “consensus” view of all the intelligence agencies, a term of art.

“It is the assessment of the intelligence community that Russia’s goal here was to favor one candidate over the other, to help Trump get elected,” said a senior U.S. official briefed on an intelligence presentation made to U.S. senators. “That’s the consensus view.”

Except that in a briefing this week (which may have been what impressed John McCain and Lindsey Graham to do their own investigation), that’s not what this represented.

The CIA shared its latest assessment with key senators in a closed-door briefing on Capitol Hill last week, in which agency officials cited a growing body of intelligence from multiple sources. Agency briefers told the senators it was now “quite clear” that electing Trump was Russia’s goal, according to the officials, who spoke on the condition of anonymity to discuss intelligence matters.

The CIA presentation to senators about Russia’s intentions fell short of a formal U.S. assessment produced by all 17 intelligence agencies. A senior U.S. official said there were minor disagreements among intelligence officials about the agency’s assessment, in part because some questions remain unanswered. [my emphasis]

That’s a conflict. Some senior US official (often code for senior member of Congress) says this is the consensus view. Another senior US official (or maybe the very same one) says there are “minor disagreements.”

Remember: we went to war against Iraq, which turned out to have no WMD, in part because no one read the “minor disagreements” from a few agencies about some aluminum tubes. A number of Senators who didn’t read that footnote closely (and at least one that did) are involved in this story. What we’re being told is there are some aluminum tube type disagreements.

Let’s hear about those disagreements this time, shall we?

Here’s the big takeaway. The language “a formal US assessment produced by all 17 intelligence agencies” is, like “a consensus view,” a term of art. It’s an opportunity for agencies which may have differing theories of what happened here to submit their footnotes.

That may be what Obama called for today: the formal assessment from all agencies (though admittedly, the White House purposely left the scope and intent of it vague).

Whatever that review is intended to be, what happened as soon as Obama announced it is that the CIA and/or Democratic Senators started leaking their conclusion. That’s what this story is.

Update: One other really critical detail. When the White House announced the Obama review today, Wikileaks made what was a bizarre statement. Linking to a CNN story on the Obama ordered review that erred on the side of blaming Russia for everything, it said, “CNN: Obama orders report into WikiLeaks timed for release just prior to Trump presidency.” Even though none of the statements on the review focused on what this story does — that is, on the way that the DNC and Podesta emails got to Wikileaks — Wikileaks nevertheless interpreted it as an inquiry targeted at it.

Update: And now David Sanger (whose story on the Obama-ordered review was particularly bad) and Scott Shane reveal the RNC also got hacked, and it is the differential leaking that leads the spooks to believe the Russians wanted Trump to win.

They based that conclusion, in part, on another finding — which they say was also reached with high confidence — that the Russians hacked the Republican National Committee’s computer systems in addition to their attacks on Democratic organizations, but did not release whatever information they gleaned from the Republican networks.

In the months before the election, it was largely documents from Democratic Party systems that were leaked to the public.

This may be a fair assessment. But you would have to account for two things before making it. First, you’d need to know the timing and hacker behind the RNC hack. That’s because two entities are believed to have hacked the DNC: an FSB appearing hacking group, and a GRU one. The FSB is not believed to have leaked. GRU is believed to have. So if the FSB hacked the RNC but didn’t leak it, it would be completely consistent with what FSB did with DNC.

NYT now says the RNC hack was by GRU in the spring, so it is a fair question why the DNC things got leaked but RNC did not.

Also, Sanger and Shane say “largely documents” from Dems were leaked. That’s false. There were two streams of non-Wikileaks releases, Guccifer, which did leak all-Dem stuff, and DC Leaks, which leaked stuff that might be better qualified as Ukrainian related. The most publicized of documents from the latter were from Colin Powell, which didn’t help Trump at all.

Update: It’s clear that Harry Reid (who of course is retiring and so can leak speech and debate protected classified information without worrying he’ll be shut off in the future) is one key driver of this story. Last night he was saying, “”I was right. Comey was wrong. I hope he can look in the mirror and see what he did to this country.” This morning he is on the TV saying he believes Comey had information on this before the election.

Update, 12/10: This follow-up from WaPo is instructive, as it compares what CIA briefed the Senate Intelligence Committee about the current state of evidence with what FBI briefed the House Intelligence Committee about the current state of evidence. While the focus is on different Republican and Democratic understandings of both, the story also makes it clear that FBI definitely doesn’t back what WaPo’s sources from yesterday said was a consensus view.

Seven Democrats Write Obama Asking Him to Declassify More Information on Russian Involvement in the Election

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Ron Wyden, five other Democrats, and Dem caucusing Independent Angus King just wrote Obama a cryptic letter. The entire body of the letter reads:

We believe there is additional information concerning the Russian Government and the U.S. election that should be declassified and released to the public. We are conveying specifics through classified channels.

Thank you for your attention to this important matter.

Aside from the fact that this suggests (as Wyden’s cryptic letters always d0) there is something meaty that we really ought to know, I find the list of signers rather curious. In addition to Wyden, the following Senators signed the letter:

  • Jack Reed
  • Mark Warner
  • Barb Mikulski
  • Martin Heinrich
  • Angus King
  • Mazie Hirono

That is, every Democratic SSCI member except current Chair Dianne Feinstein, plus Senate Armed Services Chair Jack Reed, signed the letter. So every Democrat except DiFi and Majority Leader Harry Reid signed the letter, suggesting it is something that got briefed to the full Senate Intelligence Committee as well as the Ranking Members of SASC (the latter of which suggests NSA or CYBERCOM may be involved).

I’m as interested in the fact that DiFi and Reid didn’t sign as that the others did sign. It can’t be that Reid is retiring and DiFi is heading to SJC (it’s still unclear whether she’ll remain on SSCI or not). After all, Mikulski is retiring as well.

Plus, Harry Reid wrote a far more explicit letter last month to Jim Comey — apparently following up on a non-public letter send months earlier — alluding to direct coordination between Trump and Russia.

In my communications with you and other top officials in the national security community, it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government – a foreign interest openly hostile to the United States, which Trump praises at every opportunity. The public has a right to know this information. I wrote to you months ago calling for this information to be released to the public. There is no danger to American interests from releasing it. And yet, you continue to resist calls to inform the public of this critical information.

Finally, what to make of the fact that not even John McCain signed onto this letter? Reed’s inclusion makes it clear that McCain, too, must have been briefed. He has been outspoken about Trump’s moves to cozy up to Putin. If he has seen — and objects to — such coordination, why not sign onto this letter and give it the patina of bipartisanship?

On Responsible Sourcing for DNC Hack Stories

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For some reason Lawfare thinks it is interesting that the two Democratic members of the Gang of Four — who have apparently not figured out there’s a difference between the hack (allegedly done by Russia) and the dissemination (done by Wikileaks, which has different motivations) are calling for information on the DNC hack to be released.

The recent hack into the servers of the Democratic National Committee (DNC) and the subsequent release via WikiLeaks of a cache of 20,000 internal e-mails, demonstrated yet again the vulnerability of our institutions to cyber intrusion and exploitation.  In its timing, content, and manner of release, the email dissemination was clearly intended to undermine the Democratic Party and the presidential campaign of Secretary Hillary Clinton, and disrupt the Democratic Party’s convention in Philadelphia.

[snip]

Specifically, we ask that the Administration consider declassifying and releasing, subject to redactions to protect sources and methods, any Intelligence Community assessments regarding the incident, including any that might illuminate potential Russian motivations for what would be an unprecedented interference in a U.S. Presidential race, and why President Putin could potentially feel compelled to authorize such an operation, given the high likelihood of eventual attribution.

For some equally bizarre reason, WaPo thinks Devin Nunes’ claim — in the same breath as he claims Donald Trump’s repeated calls on Russia to release Hillary’s email were sarcastic — that there is “no evidence, absolutely no evidence” that Russia hacked the DNC to influence the election is credible.

Rep. Devin Nunes (R-Calif.), the chairman of the House Intelligence Committee, told The Washington Post in an interview Wednesday that speculation about Russian attempts to sway the presidential election is unfounded.

“There is no evidence, absolutely no evidence, that the Russians are trying to influence the U.S. election,” Nunes said, repeatedly swatting away the suggestion made by some Democrats that the Russians may be using their intelligence and hacking capabilities to boost Donald Trump’s chances.

“There is evidence that the Russians are actively trying to hack into the United States — but it’s not only the Russians doing that. The Russians and the Chinese have been all over our networks for many years.”

These are two obvious (because they’re on the record) examples of partisans using their access to classified information to try to boost or refute a narrative that the Hillary Clinton campaign has explicitly adopted: focusing on the alleged Russian source of the hack rather on the content of the things the hack shows.

Kudos to Richard Burr, who is facing a surprisingly tough reelection campaign, for being the one Gang of Four member not to get involved in the partisan bullshit on this.

There are plenty of people with no known interest in either seeing a Trump or a Clinton presidency that have some measure of expertise on this issue (this is the rare moment, for example, when I’m welcoming the fact that FBI agents are sieves for inappropriate leaks). So no outlet should be posting something that obviously primarily serves the narrative one or the other candidate wants to adopt on the DNC hack without a giant sign saying “look at what partisans have been instructed to say by the campaign.” That’s all the more true for positions, like the Gang of Four, that we’d prefer to be as little politicized as possible. Please don’t encourage those people to use their positions to serve a partisan narrative, I beg of you!

For the same reason I’m peeved that Harry Reid suggested the Intelligence Community give Trump fake intelligence briefings. Haven’t we learned our lesson about politicizing intelligence?

More generally, I think journalists should be especially careful at this point to make it clear whether their anonymous sources have a partisan dog in this fight, because zero of those people should be considered to be unbiased when they make claims about the DNC hack.

A very special case of that comes in stories like this, where Neocon ideologue Eliot Cohen, identified as Bush appointee, is quoted attacking Trump for suggesting Russia should leak anymore emails.

But now Republican-aligned foreign policy experts are also weighing in along similar lines.

“It’s appalling,” Dr. Eliot A. Cohen, who was counselor of the State Department during the second term of George W. Bush’s presidency, said to me today. “Calling on a foreign government to go after your opponent in an American election?”

Cohen recently organized an open letter from a range of GOP national security leaders that denounced Trump in harsh terms, arguing that Trump’s “own statements” indicate that “he would use the authority of his office to act in ways that make America less safe, and which would diminish our standing in the world.” The letter said: “As committed and loyal Republicans, we are unable to support a Party ticket with Mr. Trump at its head. We commit ourselves to working energetically to prevent the election of someone so utterly unfitted to the office.”

But this latest from Trump, by pushing the envelope once again, raises the question of whether other prominent Republicans are ever going to join in.

For instance, to my knowledge, top national security advisers to George W. Bush, such as Stephen Hadley and Condoleezza Rice (who was also secretary of state), have yet to comment on anything we’ve heard thus far from Trump. Also, there could theoretically come a point where figures like former Defense Secretary Donald Rumsfeld and possibly even Dubya and George H.W. Bush feel compelled to weigh in.

Meanwhile, senior Republican elected officials who have backed Trump continue to refrain from taking on his comments forcefully or directly. Some Republicans actually defended Trump’s comments today. Paul Ryan’s spokesman issued a statement saying this: “Russia is a global menace led by a devious thug. Putin should stay out of this election.”

I feel differently about Trump’s asinine comment than I do about attribution of the attack. I’m all in favor of Hillary’s campaign attacking Trump for it, and frankly Cohen is a far more credible person to do so than Jake Sullivan and Leon Panetta, who also launched such attacks yesterday, because as far as I know Cohen has not mishandled classified information like the other two have.

But I would prefer if, rather than IDing Cohen as one of the Republicans who signed a letter opposing Trump, Greg Sargent had IDed him as someone who has also spoken affirmatively for Hillary.

On foreign policy, Hillary Clinton is far better: She believes in the old consensus and will take tough lines on China and, increasingly, Russia. She does not hesitate to make the case for human rights as a key part of our foreign policy. True, under pressure from her own left wing, she has backtracked on the Trans-Pacific Partnership, a set of trade deals that supports American interests by creating a counterbalance to China and American values by protecting workers’ rights. But she might edge back toward supporting it, once in.

Admittedly, this was at a time when Cohen and others still hoped some Mike Bloomberg like savior would offer them a third choice; that was before Bloomberg gave a very prominent speech endorsing Hillary last night.

Here’s the thing. The Neocons (led by Robert Kagan, who’s wife got named as a target of Russian aggression in the Feinstein-Schiff letter) are functioning as surrogates for Hillary just like top Democrats are. They are, just like Democrats are, now scrambling to turn their endorsements into both policy and personnel wins. Therefore we should no more trust the independence of a pro-Hillary Neocon — even if he did work for George Bush — than we would trust the many Democrats who have used their power to help Hillary win this election. Progressives should be very wary about the promises Hillary has made to get the growing number of Neocons (and people like Bloomberg) to so aggressively endorse her. Because those endorsements will come with payback, just like union or superdelegate endorsements do.

In any case, it’s hard enough to tease out attribution for two separate hacks and the subsequent publication of the hacked data by Wikileaks. Relying on obviously self-interested people as sources only further obscures the process.

Update: The Grammar Police actually nagged me to fix “whose/who’s” error in the Kagan sentence. Fun!

Key Area of Dispute on Drone Numbers: Number of Strikes

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Dianne Feinstein is out with a statement applauding that I Con the Record has released drone kill numbers that — she suggests — proves the spooks know something we don’t and that the number of civilian casualties hasn’t been that high.

“I want to commend the administration for taking this important step toward transparency by releasing information on the number of civilian deaths as a result of U.S. drone strikes. I believe more can be done, but this release of data is a good start.

“I’ve been calling on the administration to release drone strike data for years. Varying numbers have been tallied by outside organizations but as today’s report makes clear, the government has access to unique information to help determine the number of civilian deaths. The American people should be able to weigh the necessity of counterterrorism programs with as much information as possible.

“I do believe that great care is taken to avoid noncombatant casualties during drone strike operations. Since 2009, the Senate Intelligence Committee has devoted significant time and attention to targeted strikes by drones, with a specific focus on civilian casualties.

“While a single civilian death is one too many, I believe this program is more precise than many alternatives such as strikes with cruise missiles, where far more civilians would be at risk.”

A fair response to Feinstein, I think, is to point to this piece from the Human Rights Watch researcher who tallied their count of civilian deaths in Yemen. As she notes, counting just the cases she has investigated on the ground would say there were only 7 other civilian casualties later in Yemen and in other theaters.

The US strikes on Al-Majalah in December 2009 killed 14 fighters with Al-Qaeda in the Arabian Peninsula—but they also killed 41 Bedouin civilians, more than two-thirds of them women and children, according to a Yemeni government probe. In an investigation for Human Rights Watch, I tallied the same toll. Yet the US government has never publicly acknowledged the Al-Majalah killings. Instead, two classified diplomatic cables released by Wikileaks revealed, the Obama administration made a concerted effort to conceal its role in the attack.

The White House release on July 1 of casualty figures for airstrikes outside conventional war zones since 2009 should have shed light on how many civilians were killed in attacks such as the one in Al-Majalah. Instead, its data dump, at the start of a holiday weekend, continues President Barack Obama’s obfuscation of its lethal strike program against armed groups such as Islamic State and Al-Qaeda. Even if the government’s definition of a “combatant” were fully consistent with international law, which only applies to armed conflict situations, the release raises more questions than it answers.

[snip]

Did the US kill only 7 civilians in 466 strikes? In 2012-13, I led Human Rights Watch investigations into seven of the US counterterrorism strikes in Yemen from 2009 to 2013 that were alleged to have killed civilians. We visited strike sites when possible, examined the remnants of ordnance, and interviewed a range of witnesses, relatives, tribal leaders and Yemeni officials—corroborating our findings in ways that the DNI cannot simply dismiss. We found that at least 57 of those killed were civilians, along with possibly 14 others, 12 of them in a strike on a wedding convoy. Subtracting our numbers from the DNI’s minimum estimates leaves only seven civilian deaths in the 466 strikes that we did not investigate. That would be a remarkably low toll. But based on the obscure data the Obama administration revealed last week, we cannot know if it is accurate.

Viewed this way, it’s easy to see how ODNI’s numbers cannot add up. There must be some more basic reason their numbers are so different from every other outlet, having to do with methodology or scope. I’ve pointed to some potential explanations: CIA didn’t hand over all their numbers to ODNI, they didn’t include everything we’d include in terms of areas outside active hostilities, some strikes (and the al-Majalah one would be a likely candidate) were attributed to either the home country or some other ally (cough, KSA), even if the US conducted the strike; remember the US did a lot of “side payment” strikes in Pakistan to win the right to do our own strikes.

In other words, if “side payment” strikes — in Pakistan and Yemen (some of the latter of which may have been done for Saudi Arabia) — were the ones that killed a bunch of civilians, they might not show up in I Con the Record’s numbers.

But here’s how it would seem we could move forward: try to come to some agreement as to how many actual strikes are.

As Micah Zenko pointed out, there is a very big discrepancy between the numbers of total strikes counted by NGOs and the government. Effectively, the Administration doesn’t count 18% of the known air strikes as their own (based off the NGO average).

It’s easy to see where a disagreement about individual casualties, and of what type, would come from, but not of airstrikes themselves. Unless airstrikes generally assumed to be US airstrikes are being counted as someone else’s.

Update: Fixed that Yemen would be the recipient of side payment strikes, not Saudi Arabia.

Some Legislative Responses to Clinton’s Email Scandal

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The Republicans have reverted to their natural “Benghazi witchhunt” form in the wake of Jim Comey’s announcement Tuesday that Hillary Clinton and her aides should not be charged, with Comey scheduled to testify before the House Oversight Committee at 10 AM.

Paul Ryan wrote a letter asking James Clapper to withhold classified briefings from Hillary. And the House Intelligence Committee is even considering a bill to prevent people who have mishandled classified information from getting clearances.

In light of the FBI’s findings, a congressional staffer told The Daily Beast that the House Intelligence Committee is considering legislation that could block security clearances for people who have been found to have mishandled classified information in the past.

It’s not clear how many of Clinton’s aides still have their government security clearances, but such a measure could make it more difficult for them to be renewed, should they come back to serve in a Clinton administration.

“The idea would be to make sure that these rules apply to a very wide range of people in the executive branch,” the staffer said. (Clinton herself would not need a clearance were she to become president.)

It’s nice to see the same Republicans who didn’t make a peep when David Petraeus kept — and still has — his clearance for doing worse than Hillary has finally getting religion on security clearances.

But this circus isn’t really going to make us better governed or safer.

So here are some fixes Congress should consider:

Add some teeth to the Federal/Presidential Records Acts

As I noted on Pacifica, Hillary’s real crime was trying to retain maximal control over her records as Secretary of State — probably best understood as an understandable effort to withhold anything potentially personal combined with a disinterest in full transparency. That effort backfired spectacularly, though, because as a result all of her emails have been released.

Still, every single Administration has had at least a minor email scandal going back to Poppy Bush destroying PROFS notes pertaining to Iran-Contra.

And yet none of those email scandals has ever amounted to anything, and many of them have led to the loss of records that would otherwise be subject to archiving and (for agency employees) FOIA.

So let’s add some teeth to these laws — and lets mandate and fund more rational archiving of covered records. And while we’re at it, let’s ensure that encrypted smart phone apps, like Signal, which diplomats in the field should be using to solve some of the communication problems identified in this Clinton scandal, will actually get archived.

Fix the Espionage Act (and the Computer Fraud and Abuse Act)

Steve Vladeck makes the case for this:

Congress has only amended the Espionage Act in detail on a handful of occasions and not significantly since 1950. All the while, critics have emerged from all corners—the academy, the courts, and within the government—urging Congress to clarify the myriad questions raised by the statute’s vague and overlapping terms, or to simply scrap it and start over. As the CIA’s general counsel told Congress in 1979, the uncertainty surrounding the Espionage Act presented “the worst of both worlds”:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

In other words, the Espionage Act is at once too broad and not broad enough—and gives the government too much and too little discretion in cases in which individuals mishandle national security secrets, maliciously or otherwise.

To underscore this point, the provision that the government has used to go after those who shared classified information with individuals not entitled to receive it (including Petraeus, Drake, and Manning), codified at 18 U.S.C. § 793(d), makes it a crime if:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it …

This provision is stunningly broad, and it’s easy to see how, at least as a matter of statutory interpretation, it covers leaking—when government employees (“lawfully having possession” of classified information) share that information with “any person not entitled to receive it.” But note how this doesn’t easily apply to Clinton’s case, as her communications, however unsecured, were generally with staffers who were“entitled to receive” classified information.

Instead, the provision folks have pointed to in her case is the even more strangely worded § 793(f), which makes it a crime for:

Whoever, being entrusted with or having lawful possession or control of [any of the items mentioned in § 793(d)], (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed … fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer …

Obviously, it’s easy to equate Clinton’s “extreme carelessness” with the statute’s “gross negligence.” But look closer: Did Clinton’s carelessness, however extreme, “[permit] … [classified information] to be removed from its proper place of custody or delivered to anyone in violation of [her] trust”? What does that even mean in the context of intangible information discussed over email? The short answer is nobody knows: This provision has virtually never been used at least partly because no one is really sure what it prohibits. It certainly appears to be focused on government employees who dispossess the government of classified material (like a courier who leaves a satchel full of secret documents in a public place). But how much further does it go?

There’s an easy answer here, and it’s to not use Clinton as a test case for an unprecedented prosecution pursuant to an underutilized criminal provision, even if some of us think what she did was a greater sin than the conduct of some who have been charged under the statute. The better way forward is for Congress to do something it’s refused to do for more than 60 years: carefully and comprehensively modernize the Espionage Act, and clarify exactly when it is, and is not, a crime to mishandle classified national security secrets.

Sadly, if Congress were to legislate the Espionage Act now, they might codify the attacks on whistleblowers. But they should not. They should distinguish between selling information to our adversaries and making information public. They should also make it clear that intent matters — because in the key circuit, covering the CIA, the Pentagon, and many contractors, intent hasn’t mattered since the John Kiriakou case.

Eliminate the arbitrariness of the clearance system

But part of that should also involve eliminating the arbitrary nature of the classification system.

I’ve often pointed to how, in the Jeffrey Sterling case, the only evidence he would mishandle classified information was his retention of 30-year old instructions on how to dial a rotary phone, something far less dangerous than what Hillary did.

Equally outrageous, though, is that four of the witnesses who may have testified against Sterling, probably including Bob S who was the key witness, have also mishandled classified information in the past. Those people not only didn’t get prosecuted, but they were permitted to serve as witnesses against Sterling without their own indiscretions being submitted as evidence. As far as we know, none lost their security clearance. Similarly, David Petraeus hasn’t lost his security clearance. But Ashkan Soltani was denied one and therefore can’t work at the White House countering cyberattacks.

Look, the classification system is broken, both because information is over-classified and because maintaining the boundaries between classified and unclassified is too unwieldy. That broken system is then magnified as people’s access to high-paying jobs are subjected to arbitrary review of security clearances. That’s only getting worse as the Intelligence Community ratchets up the Insider Threat program (rather than, say, technical means) to forestall another Manning or Snowden.

The IC has made some progress in recent years in shrinking the universe of people who have security clearances, and the IC is even making moves toward fixing classification. But the clearance system needs to be more transparent to those within it and more just.

Limit the President’s arbitrary authority over classification

Finally, Congress should try to put bounds to the currently arbitrary and unlimited authority Presidents claim over classified information.

As a reminder, the Executive Branch routinely cites the Navy v. Egan precedent to claim unlimited authority over the classified system. They did so when someone (it’s still unclear whether it was Bush or Cheney) authorized Scooter Libby to leak classified information — probably including Valerie Plame’s identity — to Judy Miller. And they did so when telling Vaughn Walker could not require the government to give al Haramain’s lawyers clearance to review the illegal wiretap log they had already seen before handing it over to the court.

And these claims affect Congress’ ability to do their job. The White House used CIA as cover to withhold a great deal of documents implicating the Bush White House in authorizing torture. Then, the White House backed CIA’s efforts to hide unclassified information, like the already-published identities of its torture-approving lawyers, with the release of the Torture Report summary. In his very last congressional speech, Carl Levin complained that he was never able to declassify a document on the Iraq War claims that Mohammed Atta met with a top Iraqi intelligence official in Prague.

This issue will resurface when Hillary, who I presume will still win this election, nominates some of the people involved in this scandal to serve in her White House. While she can nominate implicated aides — Jake Sullivan, Huma Abedin, and Cheryl Mills — for White House positions that require no confirmation (which is what Obama did with John Brennan, who was at that point still tainted by his role in torture), as soon as she names Sullivan to be National Security Advisor, as expected, Congress will complain that he should not have clearance.

She can do so — George Bush did the equivalent (remember he appointed John Poindexter, whose prosecution in relation to the Iran-Contra scandal was overturned on a technicality, to run the Total Information Awareness program).

There’s a very good question whether she should be permitted to do so. Even ignoring the question of whether Sullivan would appropriately treat classified information, it sets a horrible example for clearance holders who would lose their clearances.

But as far as things stand, she could. And that’s a problem.

To be fair, legislating on this issue is dicey, precisely because it will set off a constitutional challenge. But it should happen, if only because the Executive’s claims about Navy v. Egan go beyond what SCOTUS actually said.

Mandate and fund improved communication system

Update, after I posted MK reminded me I meant to include this.

If Congress is serious about this, then they will mandate and fund State to fix their decades-long communications problems.

But they won’t do that. Even 4 years after the Benghazi attack they’ve done little to improve security at State facilities.

Update: One thing that came up in today’s Comey hearing is that the FBI does not routinely tape non-custodial interviews (and fudges even with custodial interviews, even though DOJ passed a policy requiring it). That’s one more thing Congress could legislate! They could pass a simple law requiring FBI to start taping interviews.

Why Doesn’t Dianne Feinstein Want to Prevent Murders Like those Robert Dear Committed?

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In response to Chris Murphy’s 15 hour filibuster, Democrats will get a vote on several gun amendments to an appropriations bill, one mandating background checks for all gun purchases, another doing some kind of check to ensure the purchaser is not a known or suspected terrorist.

The latter amendment is Dianne Feinstein’s (see Greg Sargent’s piece on it here). It started as a straight check against the No Fly list (which would not have stopped Omar Mateen from obtaining a gun), but now has evolved. It now says the Attorney General,

may deny the transfer of a firearm if [she] determines, based on the totality of the circumstances, that the transferee represents a threat to public safety based on a reasonable suspicion that the transferee is engaged, or has been engaged, in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources therefor.

[snip]

The Attorney General shall establish, within the amounts appropriated, procedures to ensure that, if an individual who is, or within the previous 5 years has been, under investigation for conduct related to a Federal crime of terrorism, as defined in section 2332b(g)(5) of title 18, United States Code, attempts to purchase a firearm, the Attorney General or a designee of the Attorney General shall be promptly notified of the attempted purchase.

The way it would work is a background check would trigger a review of FBI files; if those files showed any “investigation” into terrorism, the muckety mucks would be notified, and they could discretionarily refuse to approve the gun purchase, which they would almost always do for fear of being responsible if something happened.

The purchaser could appeal through the normal appeals process (which goes first to the AG and then to a District Court), but,

such remedial procedures and judicial review shall be subject to procedures that may be developed by the Attorney General to prevent the unauthorized disclosure of information that reasonably could be expected to result in damage to national security or ongoing law enforcement operations, including but not limited to procedures for submission of information to the court ex parte as appropriate, consistent of due process.

Given that an AG recently deemed secret review of Anwar al-Awlaki’s operational activities to constitute enough due process to execute him, the amendment really should be far more specific about this (including requiring the government to use CIPA). When you give the Executive prerogative to withhold information, they tend to do so, well beyond what is adequate to due process.

But there are two other problems with this amendment, one fairly minor, one very significant.

First, minor, but embarrassing, given that Feinstein is on the Senate Judiciary Committee and Ranking Member Pat Leahy is a cosponsor. This amendment doesn’t define what “investigate” means, which is a term of art for the FBI (which triggers each investigative method to which level of investigation you’re at). Given that it is intended to reach someone like Omar Mateen, it must intend to extend to “Preliminary Investigations,” which “may be opened on the basis of any ‘allegation or information’ indicative of possible criminal activity or threats to national security.” Obviously, the Mateen killing shows that someone can exhibit a whole bunch of troubling behaviors and violence yet not proceed beyond the preliminary stage (though I suspect we’ll find the FBI missed a lot of what they should have found, had they not had a preconceived notion of what terrorism looks like and an over-reliance on informants rather than traditional investigation). But in reality, a preliminary investigation is a very very low level of evidence. Yet it would take a very brave AG to approve a gun purchase for someone who had hit a preliminary stage, because if that person were to go onto kill, she would be held responsible.

Also note, though, that I don’t think Syed Rizwan Farook had been preliminarily investigated before his attack last year, though he had been shown to have communicated with someone of interest (which might trigger an assessment). So probably, someone would try to extend it to “assessment” or “lead” stages, which would be an even crazier level of evidence. By not carefully defining what “investigate” means, then, the amendment invites a slippery slope in the future to include those who communicate with people of interest (which is partly what the Terrorist Watch — not No-Fly — list consists of now).

Here’s the bigger problem. As I’ve noted repeatedly, our definition of terrorism (which is the one used in this amendment) includes a whole bunch of biases, which not only disproportionately affect Muslims, but also leave out some of our most lethal kinds of violence. For example, the law treats bombings as terrorist activities, but not mass shootings (so effectively, this law would seem to force actual terrorists into pursuing bombings, because they’d still be able to get those precursors). It is written such that animal rights activists and some environmentalists get treated as terrorists, but not most right wing hate groups. So for those reasons, the law would not reach a lot of scary people with guns who might pose as big a threat as Mateen or Farook.

Worse, the amendment reaches to material support for terrorism, which in practice (because it is almost always applied only for Muslim terrorist groups) has a significantly disproportionate affect on Muslims. In Holder v Humanitarian Law Project, SCOTUS extended material support to include speech, and Muslims have been prosecuted for translating violent videos and even RTing an ISIS tweet. Speech (and travel) related “material support” don’t even have to extend to formal terrorist organizations, meaning certain kinds of anti-American speech or Middle East travel may get you deemed a terrorist.

In other words, this amendment would deprive Muslims simply investigated (possibly even just off a hostile allegation) for possibly engaging in too much anti-American speech of guns, but would not keep guns away from anti-government or anti-choice activists advocating violence.

Consider the case of anti-choice Robert Dear, the Colorado Springs Planned Parenthood killer. After a long delay (in part because his mass killing in the name of a political cause was not treated as terrorism), we learned that Dear had previously engaged in sabotage of abortion clinics (which might be a violation of FACE but which is not treated as terrorism), and had long admired clinic killer Paul Hill and the Army of God. Not even Army of God’s ties to Eric Rudolph, the 1996 Olympics bomber, gets them treated as a terrorist group that Dear could then have been deemed materially supporting. Indeed, it was current Deputy Attorney General Sally Yates who chose not to add any terrorism enhancement to Rudolph’s prosecution. Dear is a terrorist, but because his terrorism doesn’t get treated as such, he’d still have been able to obtain guns legally under this amendment.

For a whole lot of political reasons, Muslims engaging in anti-American rants can be treated as terrorists but clinic assassins are not, and because of that, bills like this would not even keep guns out of the hands of some of the most dangerous, organizationally networked hate groups.

Now, I actually have no doubt that Feinstein would like to keep guns out of the hands of people like Robert Dear and — especially given her personal tie to Harvey Milk’s assassination — out of the hands of violent homophobes. But this amendment doesn’t do that. Rather, it predominantly targets just one group of known or suspected “terrorists.” And while the instances of Islamic extremists using guns have increased in recent years (as more men attempt ISIS-inspired killings of soft targets), they are still just a minority of the mass killings in this country.

The SSCI Contemplates Splitting CyberCommand from DIRNSA

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The Intercept’s Jenna McLaughlin liberated a copy of the Senate Intelligence Committee’s Intelligence Authorization for 2017 which was passed out of committee a few weeks back. There are two really shitty things — a move to enable FBI to get Electronic Communications Transaction Records with NSLs again (which I’ll return to) and a move to further muck up attempts to close Gitmo.

But there are a remarkable number of non-stupid things in the bill.

I’m particularly interested in this language.

Screen Shot 2016-06-10 at 9.01.03 AM

Unless I’m completely misreading it, this section would require the Director of NSA to be a separate person from the head of CyberCommand. It would require Admiral Mike Rogers’ current dual hat to be split.

Correction: DIRNSA and CyberCom would only need to be split if CyberCom gets elevated to be a full combatant command.

That’s a recommendation the President’s own Review Group made back in 2013, only to have the President pre-empt PRG’s recommendation before they could publicize it. It would also likely have some impact on NSA’s decision, earlier this year, to combine the Information Assurance Directorate — NSA’s defensive organization — in with its offensive mission.

Frankly, I think our entire cybersecurity approach deserves a more open debate. The IC has done a pretty crummy job at defending us from attacks, and it’s not clear what purpose their secrecy about that serves.

But I am intrigued that SSCI seems to think NSA should retain its defensive capability, independent of all its offensive ones.

Why Is the Government Poison-Pilling ECPA Reform?

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Back in 2009, the Obama Administration had Jeff Sessions gut an effort by Dianne Feinstein to gut an effort by Patrick Leahy to gut an effort by Russ Feingold to halt the phone and Internet dragnet programs (as well as, probably, some Post Cut Through Dialed Digit collections we don’t yet know about).

See what Jeff Sesssions–I mean Barack Obama–did in complete secrecy and behind the cover of Jeff Sessions’ skirts the other night?

They absolutely gutted the minimization procedures tied to pen registers! Pen registers are almost certainly the means by which the government is conducting the data mining of American people (using the meta-data from their calls and emails to decide whether to tap them fully). And Jeff Sesssions–I mean Barack Obama–simply gutted any requirement that the government get rid of all this meta-data when they’re done with it. They gutted any prohibitions against sharing this information widely. In fact, they’ve specified that judges should only require minimization procedures in extraordinary circumstances. Otherwise, there is very little limiting what they can do with your data and mine once they’ve collected it. [no idea why I was spelling Sessions with 3 ses]

At each stage of this gutting process, Feingold’s effort to end bulk collection got watered down until, with Sessons’ amendments, the Internet dragnet was permitted to operate as it had been. Almost the very same time this happened, NSA’s General Counsel finally admitted that every single record the agency had collected under the dragnet program had violated the category restrictions set back in 2004. Probably 20 days later, Reggie Walton would shut down the dragnet until at least July 2010.

But before that happened, the Administration made what appears to be — now knowing all that we know now — an effort to legalize the illegal Internet dragnet that had replaced the prior illegal Internet dragnet.

I think that past history provides an instructive lens with which to review what may happen to ECPA reform on Thursday. A version of the bill, which would require the government to obtain a warrant for any data held on the cloud, passed the House unanimously. But several amendments have been added to the bill in the Senate Judiciary Committee that I think are designed to serve as poison pills to kill the bill.

The first is language that would let the FBI resume obtaining Electronic Communication Transaction Records with just a National Security Letter (similar language got added to the Intelligence Authorization; I’ll return to this issue, which I think has been curiously reported).

The second is language that would provide a vast emergency exception to the new warrant requirement, as described by Jennifer Daskal in this post.

[T]here has been relatively little attention to an equally, if not more, troubling emergency authorization provision being offered by Sen. Jeff Sessions. (An excellent post by Al Gidari and op-ed by a retired DC homicide detective are two examples to the contrary.)

The amendment would allow the government to bypass the warrant requirement in times of claimed emergency. Specifically, it would mandate that providers turn over sought-after data in response to a claimed emergency from federal, state, or local law enforcement officials. Under current law, companies are permitted, but not required, to comply with such emergency — and warrantless — requests for data.

There are two huge problems with this proposal. First, it appears to be responding to a problem that doesn’t exist. Companies already have discretion to make emergency disclosures to governmental officials, and proponents of the legislation have failed to identify a single instance in which providers failed to disclose sought-after information in response to an actual, life-threatening emergency. To the contrary, the data suggest that providers do in fact regularly cooperate in response to emergency requests. (See the discussion here.)

Second, and of particular concern, the emergency disclosure mandate operates with no judicial backstop. None. Whatsoever. This is in direct contrast with the provisions in both the Wiretap Act and Foreign Intelligence Surveillance Act (FISA) that require companies to comply with emergency disclosure orders, but then also require subsequent post-hoc review by a court. Under the Wiretap Act, an emergency order has to be followed up with an application for a court authorization within 48 hours (see 18 U.S.C. § 2518(7)). And under FISA, an emergency order has to be followed with an application to the court within 7 days (see 50 U.S.C. § 1805(5)). If the order isn’t filed or the court application denied, the collection has to cease.

The proposed Sessions amendment, by contrast, allows the government to claim emergency and compel production of emails, without any back-end review.

Albert Gidari notes that providers are already getting a ton of emergency requests, and a good number of them turn out to be unfounded.

For the last 15 years, providers have routinely assisted law enforcement in emergency cases by voluntarily disclosing stored content and transactional information as permitted by section 2702 (b)(8) and (c)(4) of Title 18. Providers recently began including data about emergency disclosures in their transparency reports and the data is illuminating. For example, for the period January to June 2015, Google reports that it received 236 requests affecting 351 user accounts and that it produced data in 69% of the cases. For July to December 2015, Microsoft reports that it received 146 requests affecting 226 users and that it produced content in 8% of the cases, transactional information in 54% of the cases and that it rejected about 20% of the requests. For the same period, Facebook reports that it received 855 requests affecting 1223 users and that it produced some data in response in 74% of the cases. Traditional residential and wireless phone companies receive orders of magnitude more emergency requests. AT&T, for example, reports receiving 56,359 requests affecting 62,829 users. Verizon reports getting approximately 50,000 requests from law enforcement each year.

[snip]

Remember, in an emergency, there is no court oversight or legal process in advance of the disclosure. For over 15 years, Congress correctly has relied on providers to make a good faith determination that there is an emergency that requires disclosure before legal process can be obtained. Providers have procedures and trained personnel to winnow out the non-emergency cases and to deal with some law enforcement agencies for whom the term “emergency” is an elastic concept and its definition expansive.

Part of the problem, and the temptation, is that there is no nunc pro tunc court order or oversight for emergency requests or disclosures. Law enforcement does not have to show a court after the fact that the disclosure was warranted at the time; indeed, no one may ever know about the request or disclosure at all if it doesn’t result in a criminal proceeding where the evidence is introduced at trial. In wiretaps and pen register emergencies, the law requires providers to cut off continued disclosure if law enforcement hasn’t applied for an order within 48 hours.  But if disclosure were mandatory for stored content, all of a user’s content would be out the door and no court would ever be the wiser. At least today, under the voluntary disclosure rules, providers stand in the way of excessive or non-emergency disclosures.

[snip]

A very common experience among providers when the factual basis of an emergency request is questioned is that the requesting agency simply withdraws the request, never to be heard from again. This suggests that to some, emergency requests are viewed as shortcuts or pretexts for expediting an investigation. In other cases when questioned, agents withdraw the emergency request and return with proper legal process in hand shortly thereafter, which suggests it was no emergency at all but rather an inconvenience to procure process. In still other cases, some agents refuse to reveal the circumstances giving rise to the putative emergency. This is why some providers require written certification of an emergency and a short statement of the facts so as to create a record of events — putting it in writing goes a long way to ensuring an emergency exists that requires disclosure. But when all is in place, providers respond promptly, often within an hour because most have a professional, well-trained team available 7×24.

In other words, what seems to happen now, is law enforcement use emergency requests to go on fishing expeditions, some of which are thwarted by provider gatekeeping. Jeff Sessions — the guy who 7 years ago helped the Obama Administration preserve the dragnets — now wants to make it so these fishing expeditions will have no oversight at all, a move that would make ECPA reform meaningless.

The effort to lard up ECPA reform with things that make surveillance worse (not to mention the government’s disinterest in reforming ECPA since 2007, when it first started identifying language it wanted to reform) has my spidey sense tingling. The FBI has claimed, repeatedly, in sworn testimony, that since the 2010 Warshak decision in the Sixth Circuit, it has adopted that ruling everywhere (meaning that it has obtained a warrant for stored email). If that’s true, it should have no objection to ECPA reform. And yet … it does.

I’m guessing these emergency requests are why. I suspect, too, that there are some providers that we haven’t even thought of that are even more permissive when turning over “emergency” content than the telecoms.