Edward Snowden

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Brennan Was Probably Talking about the Telegram PRISM Gap as Much as Encryption

I noted the other day that at a pre-scheduled appearance Monday, Josh Rogin cued John Brennan to explain how the Paris attack happened without warning. In my opinion, the comment has been badly misreported as an indictment solely of Edward Snowden (though it is that) and encryption. I’ve put the entire exchange below but the key exchange was this:

And as I mentioned, there are a lot of technological capabilities that are available right now that make it exceptionally difficult, both technically as well as legally, for intelligence and security services to have the insight they need to uncover it. And I do think this is a time for particularly Europe, as well as here in the United States, for us to take a look and see whether or not there have been some inadvertent or intentional gaps that have been created in the ability of intelligence and security services to protect the people that they are asked to serve. And in the past several years because of a number of unauthorized disclosures and a lot of handwringing over the government’s role in the effort to try to uncover these terrorists, there have been some policy and legal and other actions that are taken that make our ability collectively internationally to find these terrorists much more challenging. And I do hope that this is going to be a wake-up call, particularly in areas of Europe where I think there has been a misrepresentation of what the intelligence security services are doing by some quarters that are designed to undercut those capabilities.

Brennan talks about technology that makes it difficult technically and legally to uncover plots. Encryption is a technical problem — one the NSA has proven its ability to overcome — that might be called a legal one if you ignore that NSA has the ability to overcome the lack of a legal requirement to provide back doors. But I agree this passage speaks to encryption, if not other issues.

In the next sentence, though, he talks about inadvertent or intentional gaps created “particularly in Europe.” He talks about plural unauthorized disclosures — as I noted, Josh Rogin’s own disclosure that the US had broken AQAP’s online conferencing technique may have been more directly damaging than most of Snowden’s leaks —  and “handwringing.” Those have led to “policy and legal and other actions” that have made it harder to find terrorists. In the next sentence, Brennan again emphasizes that “particularly in areas of Europe,” there needs to be a “wake-up call” because “there has been a misrepresentation” of what the spooks are doing, which he suggests was deliberately “designed to undercut those capabilities.”

So the paragraph where he speaks of these problems, he twice emphasizes that Europe in particular needs to adjust its approach.

Last I checked, Europe didn’t pass USA Freedom Act (which would not, in any way, have restricted review of Parisian targeters). Some countries in Europe are more vigorously considering limits on encryption, but those would be just as ineffective as eliminating the code that’s already out there.

What Europe has done, however, is make it harder for our PRISM providers to share data back and forth between Europe (and with providers considering moving servers to Europe, it will raise new questions about the applicability of PRISM for that data). And Europe (not just Europe, but definitely including Europe) has created a market need for US tech companies to distance themselves from the government.

And in the case of Germany, politicians have been investigating how much its BND has done for NSA, and especially which impermissible German people and companies were targeted as part of the relationship. I noted that Brennan raised similar issues just days after the BND investigation turned scandalous in March, and recent revelations have raised new pressure on BND.

With that in mind, in particular, consider what one of the more responsible reports on Brennan’s speech, that of Shane Harris, focused on — terrorists’ use of Berlin headquartered social messaging app Telegram. If terrorists were using WhatsApp (which a lot of the fearmongering focused on), the metadata, at least, would be available via Facebook. But since Telegram is not a US company, it cannot be obliged under Section 702 of FISA, and that surely creates just the kind of gap Brennan was talking about.

Since Brennan’s speech, Telegram has started deleting the special channels set up by ISIS to communicate.

I’m sure Brennan is complaining about encryption and if he can get Congress to force domestic back doors, I’m sure he will (though ISIS reportedly shies away from Apple products, so forcing Apple to give up its encrypted iMessage won’t help track down ISIS). But his speech seemed focused much more intently on ways in which, in the aftermath of the Snowden leaks, Europeans have opportunistically localized data and, in the process, made that data far less accessible to the NSA. Brennan, as I made clear in March, definitely would prefer the Europeans rely on Americans for their SIGINT (and in the process agree to some inappropriate spying in their home country), and the gap created by terrorists’ reliance on Telegram is one way to exert pressure on that point.

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Author of Story Based on Leaks about Surveillance Parrots Brennan Condemning Leaks about Surveillance

Josh Rogin is among many journalists who covered John Brennan’s complaints about how “a number of unauthorized disclosures”and hand-wringing about our surveillance capabilities this morning (which was a response to Rogin asking “what went wrong” in Paris in questions).

But Brennan also said that there had been a significant increase in the operational security of terrorists and terrorist networks, who have used new commercially available encryption technologies and also studied leaked intelligence documents to evade detection.

“They have gone to school on what they need to do in order to keep their activities concealed from the authorities,” he said. “I do think this is a time for particularly Europe as well as the U.S. for us to take a look and see whether or not there have been some inadvertent or intentional gaps that have been created in the ability of intelligence services to protect the people that they are asked to serve.”

The FBI has said that Internet “dark spaces” hinder monitoring of terrorism suspects. That fuels the debate over whether the government should have access to commercial applications that facilitate secure communications.

Brennan pointed to “a number of unauthorized disclosures” over the past several years that have made tracking suspected terrorists even more difficult. He said there has been “hand wringing” over the government’s role in tracking suspects, leading to policies and legal action that make finding terrorists more challenging, an indirect reference to the domestic surveillance programs that were restricted after leaks by Edward Snowden revealed their existence.

I find it interesting that Rogin, of all people, is so certain that this is an “indirect reference to the domestic surveillance programs that were restricted after leaks by Edward Snowden revealed their existence.” It’s a non-sensical claim on its face, because no surveillance program has yet been restricted in the US, though FBI has been prevented from using NSLs and Pen Registers to bulk collection communications. The phone dragnet, however, is still going strong for another 2 weeks.

That reference — as I hope to show by end of day — probably refers to tech companies efforts to stop the NSA and GCHQ from hacking them anymore, as well as European governments and the EU trying to distance themselves from the US dragnet. That’s probably true, especially, given that Brennan emphasized international cooperation in his response.

I’m also confused by Rogin’s claim Jim Comey said Tor was thwarting FBI, given that the FBI Director said it wasn’t in September.

Even more curious is that Rogin is certain this is about Snowden and only Snowden. After all, while Snowden’s leaks would give terrorists a general sense of what might not be safe (though not one they tracked very closely, given the Belgian Minister of Home Affair’s claim that they’re using Playstation 4 to communicate, given that one of Snowden’s leaks said NSA and CIA were going after targets use of gaming consoles to communicate at least as early as 2008).

But a different leak would have alerted terrorists that their specific communications techniques had been compromised. The leak behind this story (which was a follow-up on leaks to the NYT, McClatchy, and WaPo).

It wasn’t just any terrorist message that triggered U.S. terror alerts and embassy closures—but a conference call of more than 20 far-flung al Qaeda operatives, Eli Lake and Josh Rogin report.
The crucial intercept that prompted the U.S. government to close embassies in 22 countries was a conference call between al Qaeda’s senior leaders and representatives of several of the group’s affiliates throughout the region.

The intercept provided the U.S. intelligence community with a rare glimpse into how al Qaeda’s leader, Ayman al-Zawahiri, manages a global organization that includes affiliates in Africa, the Middle East, and southwest and southeast Asia.

Several news outlets reported Monday on an intercepted communication last week between Zawahiri and Nasser al-Wuhayshi, the leader of al Qaeda’s affiliate based in Yemen. But The Daily Beast has learned that the discussion between the two al Qaeda leaders happened in a conference call that included the leaders or representatives of the top leadership of al Qaeda and its affiliates calling in from different locations, according to three U.S. officials familiar with the intelligence. All told, said one U.S. intelligence official, more than 20 al Qaeda operatives were on the call.


Al Qaeda leaders had assumed the conference calls, which give Zawahiri the ability to manage his organization from a remote location, were secure. But leaks about the original intercepts have likely exposed the operation that allowed the U.S. intelligence community to listen in on the al Qaeda board meetings.

That story — by Josh Rogin himself! (though again, this was a follow-up on earlier leaks) — gave Al Qaeda, though maybe not ISIS, specific notice that one of their most sensitive communication techniques was compromised.

It’s really easy for journalists who want to parrot John Brennan and don’t know what the current status of surveillance is to blame Snowden. But those who were involved in the leak exposing the Legion of Doom conference call (which, to be sure, originated in Yemen, as many leaks that blow US counterterrorism efforts there do) might want to think twice before they blame other journalism.

Obama’s Extends Forever War in Afghanistan before MSF Report Comes Out

President Obama, as you’ve likely heard, just announced an extension of the Afghan mission. He insists combat operations in Afghanistan are over. He insists the role of the “train, advise, assist” advisors on the ground won’t change. Our troops just need to stick around in Afghanistan until the training begins to take hold.

I’m most interested in the timing of this announcement. It comes 12 days after Americans — working at the behest of the Afghans we’re “train, advise, assisting” — destroyed a Médecins Sans Frontières hospital in Kunduz. Afghan commander General John Campbell, on a pre-planned trip to testify about how we need to extend our deployment, also answered questions about the attack and promised an investigation; he even suggested a preliminary investigation should be done within a month (so within the next 20 days).

Lucky for Obama, American reporters have short memories, otherwise some might ask him about the combat role these TAA advisors played two weeks ago today, returning fire against Taliban forces, just before the US destroyed a hospital. Because then we might be focusing on how Kunduz underscored that Americans will still be drawn into fighting.

But it’s the MSF bombing that would really undercut Obama’s decision to have us stay. Probably, the DOD investigation is going to show that the Afghans made unjustified claims about the Taliban operating from the hospital, most charitably because of confusion, but possibly because they didn’t like that the hospital treated Taliban members (and likely was treating some from fighting earlier in the week). It will also show Special Operations process on vetting totally violated protocol, which will raise more questions about precisely what role SOF is playing on the ground (and how our counterterrorism operations, such as this was, threaten to drag us back in).

So Obama rolled out his decision in that sweet spot, where most of the big reporting on the MSF attack has passed, but before the report will renew attention on precisely what we’re doing in Afghanistan.

One other point about Obama’s decision. In his announcement today — and in Campbell’s testimony last week — both men raved about what a great partner Ashraf Ghani is (both also made overly optimistic claims about how well power sharing is working). That should make it clear — if this analysis wasn’t already enough — that the shut-down of NSA’s full take on Afghanistan cell phone content that happened after WaPo and Intercept described the MYSTIC/SOMALGET programs has since been reversed. It’s clear Ghani has agreed to do what we have asked in order to get us to stay, and we surely asked for turn the full take back on, for troop protection if not to better spy on the Taliban. Which, of course, would indicate Clapper was lying again.

Finally, MSF has not backed off its demand for an independent investigation. It just launched a Change.org petition calling on President Obama to consent to an independent investigation.

The Lessons NSA Teaches When It Conflates Use of Encryption with Terrorism

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Just a few days after our Egyptian allies sentenced 3 Al Jazeera journalists to 3 years in prison, Turkey joined the club, charging 2 UK Vice employees and their Turkish fixer with terrorism. Today, Al Jazeera explained why the Vice journalists got charged: because the fixer uses an encryption technique that members of ISIS also use.

Three staff members from Vice News were charged with “engaging in terrorist activity” because one of the men was using an encryption system on his personal computer which is often used by the Islamic State of Iraq and the Levant (ISIL), a senior press official in the Turkish government has told Al Jazeera.

Two UK journalists, Jake Hanrahan and Philip Pendlebury, along with their Turkey-based Iraqi fixer and a driver, were arrested on Thursday in Diyarbakir while filming clashes between security forces and youth members of the outlawed and armed Kurdistan Workers’ Party (PKK).

On Monday, the three men were charged by a Turkish judge in Diyarbakir with “engaging in terrorist activity” on behalf of ISIL, the driver was released without charge.

The Turkish official, who spoke on condition of anonymity, told Al Jazeera: “The main issue seems to be that the fixer uses a complex encryption system on his personal computer that a lot of ISIL militants also utilise for strategic communications.”

Note, the Vice journalists were reporting on PKK, not ISIS, but it wouldn’t be the first time Turkey used ISIS as cover for their war against PKK.

A lot of people are treating this as a crazy expression of rising Turkish repression, that it conflates use of encryption — even a certain kind of encryption! — with membership in ISIS.

But they’re not the only one who does so. As the slide above — and some other documents released by Snowden — makes clear, NSA makes the same conflation. How do you find terrorists without other information, this slide asks? Simple! You find someone using encryption.

While the US might not arrest people based on such evidence (though it did hold Al Jazeera journalist Sami al-Hajj for years without charge), they certainly make the same baseless connection.

Is the US Thwarting China’s Anti-Corruption (and Political Crime) Campaign to Retaliate for the OPM Hack?

Screen Shot 2015-08-17 at 6.13.36 PMTwo weeks after floating a story to the NYT the Obama asked for some creative ways to retaliate against China for the OPM hack, the NYT reported (in both English and a prominently linked Chinese translation) that “in recent weeks” the US told agents trying to chase down Chinese nationals accused of corruption to get out.

The Obama administration has delivered a warning to Beijing about the presence of Chinese government agents operating secretly in the United States to pressure prominent expatriates — some wanted in China on charges of corruption — to return home immediately, according to American officials.

The American officials said that Chinese law enforcement agents covertly in this country are part of Beijing’s global campaign to hunt down and repatriate Chinese fugitives and, in some cases, recover allegedly ill-gotten gains.

The Chinese government has officially named the effort Operation Fox Hunt.

The American warning, which was delivered to Chinese officials in recent weeks and demanded a halt to the activities, reflects escalating anger in Washington about intimidation tactics used by the agents. And it comes at a time of growing tension between Washington and Beijing on a number of issues: from the computer theft of millions of government personnel files that American officials suspect was directed by China, to China’s crackdown on civil liberties, to the devaluation of its currency.

Operation Fox Hunt is not new — or secret. It has been covered before by the US press, including updates on how many people official Chinese sources claim they have gotten to return for prosecution. The NYT follow-up admits — though the original didn’t provide the same level of detail — that DHS agreed in April to prosecute Chinese economic fugitives (which would extend the US habit of asserting jurisdiction where none exists) if provided real evidence of corruption.

But in April, the Department of Homeland Security worked out a new arrangement with China’s Ministry of Public Security, which oversees Operation Fox Hunt, to assist Beijing’s efforts to prosecute economic fugitives according to United States law. American officials, however, say China has so far failed to provide the necessary evidence.

Both NYT articles mention what the WSJ reports in more depth, including details of how these operatives are working: Among the economic fugitives in the US China is aggressively pursuing is Ling Wangcheng, the brother of a former top Hu Jintao aide

Mr. Ling’s brother was a top aide to China’s previous president, Hu Jintao, but was placed under investigation by the Communist Party in December and formally accused in July of bribe-taking, adultery and illegally obtaining state secrets.

For much of 2014, Mr. Ling was living under an alias in a mansion in a gated community in Loomis, Calif., near Sacramento, with Mr. Yuan’s ex-wife, neighbors said. The couple hasn’t been seen there since around October.

Mr. Ling is now the focus of political intrigue that could overshadow a visit to the U.S. in September by China’s leader, Xi Jinping.

Diplomats and analysts said Mr. Ling might have had access through this brother to sensitive information about Chinese leaders. If he sought political asylum, Mr. Ling would be the most significant Chinese defector in decades.

It isn’t clear why Mr. Ling, 55 years old, moved to the U.S. in 2013 or 2014. He lost touch with many friends in China around last fall, a family acquaintance said, but later reassured friends he was safe in the U.S.

The implication from this — and other recent reporting on Ling — is that he did get asylum in October, and has been cooperating with US authorities.

All that is probably only tangentially related to the US leak of its earlier decision — taken precisely as the US tries to find a way to retaliate for the OPM hack — to start cracking down on this Chinese effort.

There are two things I haven’t seen mentioned in coverage of this. First, remember that the US has engaged in a similar effort, using an offer of amnesty for rich tax cheats who had stashed their money in Swiss banks (though there have been what I believe to be similar efforts on the part of the US to expose tax cheats that have mostly focused on non-US citizens).

And don’t forget the lengths to which the US went to get someone who had top secrets to come back to the US, including when it had Austria ground Evo Morales’ plane so it could search for Edward Snowden.

In any case, I suspect the US used Operation Fox Hunt as an opportunity to let China know it knew of these admitted agents. Sort of a way for the US to tell China we know where its operatives in the US are, just as it knows where our operatives are in China, thanks to the OPM hack.

For its part, China’s Xinhua paper has scolded the US for harboring crooks (and provided slightly different details of the agreement pertaining to Fox Hunt).

Corruption is not only a serious problem in China, but also in the rest of the world. And in a world which is more and more connected, countries should take coordinated efforts in fighting corruption.

Although there is no extradition agreement between the United States and China, the two countries actually have already agreed on anti-corruption cooperation.

In April 2015, U.S. Homeland Security Secretary Jeh Johnson met Chinese Public Security Minister Guo Shengkun in Beijing, and they agreed to strengthen cooperation in law enforcement.

They agreed not to provide shelter for the other side’s fugitives and would try to repatriate them in accordance with law. Specifically, Johnson also promised to actively support China’s “Sky Net” and “Fox Hunt” operations, which aim to bring back corrupt officials.

So the U.S. government’s decision to force China’s law enforcement stuff to leave the country obviously reveals that Washington lacks sincerity and has failed to translate its words into action.

Some analysts even say that the United States is reluctant to repatriate those corrupt officials for the sake of their money of course.

Therefore, the United States, as a country that often stresses the rule of law, should clarify the issue and by no means become a safe haven for Chinese criminal suspects.

The US may have decided this would be an easy way to push back on China, but that won’t prevent China from scoring points from it.

Department of Energy: CyberSprinting Backwards

Earlier this week, I noted that of the seven agencies that would automatically get cybersecurity data shared under the Cyber Information Sharing Act, several had similar or even worse cyberpreparedness than the Office of Personnel Management, from which China stole entire databases of information on our cleared personnel.

To make that argument, I used data from the FISMA report released in February. Since then — or rather, since the revelation of the OPM hack — the Administration has been pushing a “30 day sprint” to try to close the gaping holes in our security.

Yesterday, the government’s Chief Information Officer, Tony Scott, released a blog post and the actual results, bragging about significant improvement.

And there have been significant results (though note, the 30 day sprint turned into a 60 day middle distance run), particularly from OPM, Interior (which hosted OPM’s databases), and — two of those CISA data sharing agencies — DHS and Treasury.

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Whoa! Check out that spike! Congratulations to those who worked hard to make this improvement.

But when you look at the underlying data, things aren’t so rosy.

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We are apparently supposed to be thrilled that DOD now requires strong authentication for 58% of its privileged users (people like Edward Snowden), up 20% from the earlier 38%. Far more of DOD’s unprivileged users (people like Chelsea Manning?) — 83% — are required to use strong authentication, but that number declined from a previous 88%.

More remarkable, however, is that during a 30 day 60 day sprint to plug major holes, the Department of Energy also backslid, with strong authentication going from 34% to 11%. Admittedly, more of DoE’s privileged users must use strong authentication, but only 13% total.

DOJ (at least FBI and probably through them other parts of DOJ will receive this CISA information), too, backslid overall, though with a huge improvement for privileged users. And Commerce (another CISA recipient agency) also had a small regression for privileged users.

There may be explanations for this, such as that someone is being moved from a less effective two-factor program to a better one.

But it does trouble me that an agency as central to our national security as Department of Energy is regressing even during a period of concerted focus.

DOJ IG Report Confirms Government Flouted Statutory Requirements of Section 215 for 7 Years

For over a year, Congress has been working on a “reform” to Section 215 that it claims will rein in abusive government spying.

Also for about a year, DOJ’s Inspector General has been trying to release a Report on Section 215 use up to 2009. That investigation first began 1,800 days ago.

DOJ has finally managed to release the report.

It confirms a number of things I have been reporting for years: that the government uses the provision to collect records that have nothing to do with phone records in bulk, the majority of which are now Internet records, definitely including URLs and probably including subject lines.

But the takeaway report is something else I’ve been reporting on for some time.

The government completely blew off a requirement imposed with the 2006 PATRIOT Act Reauthorization that the FBI (which is the only agency that’s supposed to use Section 215) adopt minimization procedures specifically for Section 215. Even after FBI missed its September 2006 deadline by claiming it had Interim Procedures, FISC kept approving Section 215 orders, even including paragraphs that appear in every phone dragnet order claiming the government has met that statutory requirement. A year after DOJ’s Inspector General pointed out FBI was violating the statute, FISC started imposing its own minimization procedures and reporting requirements (though not — as a court operating with more transparency might have done — denying orders). Finally, in March 2013, DOJ adopted minimization procedures (though it did not start actually complying with them until more than four months after Edward Snowden’s leaks focused more attention on bulk 215 orders).

In other words, Congress imposed a mandate designed to protect innocent Americans’ privacy in 2006. And DOJ blew that statutory mandate off for years. And FISC let it do so for years, approving order after order requiring FBI to have fulfilled that mandate. And only after 7 years (and some unexpected transparency) did DOJ start following the law.

These are the people Congress is rushing headlong to provide new authorities (including an Emergency provision that is designed to invite abuse): government agencies who simply refuse to follow Congressional mandates.

Edward Snowden Richard Burr Exposes IP Address Dragnet on Senate Floor

Update: As I show in this post, the transcription of Burr’s speech in the Congressional record removed the reference to IP addresses. 

Update: While Burr’s office did not respond to my request for comment, they did respond to Buzzfeed (which sadly didn’t ask the obvious follow-up questions). His office claims he misspoke, though apparently didn’t explain why he would confuse Section 215 and PRTT, why he would tie the Internet dragnet to phone calls, or why, if the current dragnet doesn’t collect Internet data but USA F-ReDux would, why that would not then be a welcome return for the Senator given his stated desire to track such collection. I have asked for comment again from Burr’s office on those questions. 

Since last summer, I have been emphasizing that the bulk of Section 215 orders collect Internet data, not phone records under the phone dragnet. I pointed to evidence that that production included data flows and noted FBI claims they use it to conduct hacking investigations.   But I have assumed that was primarily bulky collection, not bulk collection.

Not so. Earlier today, noted whistleblower Edward Snowden Senate Intelligence Chair Richard Burr revealed that there is also an IP address bulk collection program. (h/t Andrew Blake, after 2:15)

Now what’s bulk data? Bulk data is storing telephone numbers and IP addresses — we have no idea who they belong to — that are domestic. And the whole basis behind this program is that as a cell phone is picked up in Syria, and you look at the phone numbers that phone talked to, if there’s some in the United States we’d like to know that — at least law enforcement would like to know it — so that we can understand if there’s a threat against us here in the homeland [sic] or somewhere else in the world. So Section 215 allows the NSA to collect in bulk telephone numbers and IP addresses with no identifier on it. We couldn’t tell you who that American might be.

I thought when you leaked details like this it helped our enemies? I thought if you did such things you were a traitor, deserving of an orange jumpsuit at Gitmo?

Apparently not.

So it appears it’s the IP dragnet, and not the phone dragnet, that the Republicans are trying to save?

It’s a little late for that, though, given that the Second Circuit just ruled such dragnets illegal.

Yes, Section 215 Might Be Used to Get Dick Pics — or Porn Searches and Dick Uploads

John Oliver did an interview with Edward Snowden that aired on his show last night. After showing Snowden that most random people stopped in Times Square didn’t know or care what Snowden had done (starting at 22:30), Oliver then showed that they would care if this were all about the government collecting dick pics.

So Snowden goes through and describes (after 28:00) what authorities the government might use to collect dick pics, focusing largely on different aspects of Section 702 and EO 12333. But (at 30:00), Snowden says the NSA (Oliver should have been asking about the government, not NSA) couldn’t use Section 215 to get dick pics, though they could use the phone dragnet to find out if you’ve been calling a penis enlargement center.

Not so fast, Ed!

It is, hypothetically, possible that the government (more likely FBI than NSA) could use Section 215 to get dick pics, provided there were some entity that had a collection of dick pics it was interested in. It would only 1) need to find that entity that had these dick pics as records, 2) come up with some reason why they needed the dick pics for either a counterterrorism or counterintelligence purpose, and 3) convince the rubber stamp FISA Court that these dick pics were “relevant to” a counterterrorism or counterintelligence FBI investigation (which we know FISC interprets unbelievably broadly) but that FBI wasn’t seeking the dick pics solely on the basis of the target’s First Amendment protected, um, speech. Hypothetically possible, at least, if unlikely. A dick pic is a tangible thing.

Furthermore, it is almost certain that the FBI (again, not the NSA, but if the FBI does it, it is more likely targeted at an American) is using Section 215 to get URL searches and data flows — along with fairly comprehensive online profiles — on users. So in addition to Snowden’s explanation of using the phone dragnet to see if you’ve called a penis enlargement center, the FBI may be using Section 215 to track a user’s porn watching habits and even if they’ve been uploading their own dick pics to some server. There likely are dick pics in this collection (though the FISC almost certainly requires minimization if the collection, so may limit the FBI’s ability to retain dick pics unless it can claim it needs them for an investigative purpose). (Though note, a recent Shane Harris story reveals NSA needs its own porn room because its analysts spend so much time analyzing what they collect.)

Again, Section 215 is far more than the phone dragnet, it is designed to support fairly creative collection of “tangible things” so long as there is an attenuated national security purpose to do so, and we know it supports a great deal of collection on users’ Internet use.

And while dick pics might be just a hypothetical case, far easier to imagine would be FBI using Section 215 to obtain DNA — perhaps from hospitals, perhaps from hotels where targets had stayed, obviously from cops (though they could get that through info sharing). DNA is, after all, a tangible thing. And we know that the government has a DNA database of Gitmo detainees, so they have been amassing DNA to positively ID both the targets but also family members of targets.

One more note. Several of the ways the NSA has gotten dick pics — via Yahoo video chats, stealing from Google servers overseas — may have become less accessible to the government overseas as companies move to encrypt more of their traffic. I assume they’ll find some new way to get these. But for the moment, the government may be ingesting fewer dick pics than they were in 2013.

The AP’s Recycled “We Don’t Need a Phone Dragnet” Story Lays the Groundwork for Swapping Section 215 for CISA

The AP has a story that it calls an “Exclusive” and says “has not been reported before” reporting that the NSA considered killing the phone dragnet back before Edward Snowden disclosed it.

The National Security Agency considered abandoning its secret program to collect and store American calling records in the months before leaker Edward Snowden revealed the practice, current and former intelligence officials say, because some officials believed the costs outweighed the meager counterterrorism benefits.

After the leak and the collective surprise around the world, NSA leaders strongly defended the phone records program to Congress and the public, but without disclosing the internal debate.

The proposal to kill the program was circulating among top managers but had not yet reached the desk of Gen. Keith Alexander, then the NSA director, according to current and former intelligence officials who would not be quoted because the details are sensitive. Two former senior NSA officials say they doubt Alexander would have approved it.

Still, the behind-the-scenes NSA concerns, which have not been reported previously, could be relevant as Congress decides whether to renew or modify the phone records collection when the law authorizing it expires in June.

The story looks a lot like (though has mostly different dates) this AP story, published just after USA Freedom Act failed in the Senate in November.

Years before Edward Snowden sparked a public outcry with the disclosure that the National Security Agency had been secretly collecting American telephone records, some NSA executives voiced strong objections to the program, current and former intelligence officials say. The program exceeded the agency’s mandate to focus on foreign spying and would do little to stop terror plots, the executives argued.

The 2009 dissent, led by a senior NSA official and embraced by others at the agency, prompted the Obama administration to consider, but ultimately abandon, a plan to stop gathering the records.

The secret internal debate has not been previously reported. The Senate on Tuesday rejected an administration proposal that would have curbed the program and left the records in the hands of telephone companies rather than the government. That would be an arrangement similar to the one the administration quietly rejected in 2009.

The unquestioned claim that the program doesn’t get cell data — presented even as the Dzhokhar Tsarnaev case makes clear it does* — appears in both (indeed, this most recent version inaccurately references T-Mobile cell phone user Basaaly Moalin’s case — getting the monetary amounts wrong — without realizing that that case, too, disproves the cell claim).

Most importantly, however, both stories report these previous questions about the efficacy of the phone dragnet in the context of questions about whether the program will be reauthorized after June.

Perhaps the most telling detail, however, is that this new story inaccurately describes what happened to the Internet dragnet in 2011.

There was a precedent for ending collection cold turkey. Two years earlier, the NSA cited similar cost-benefit calculations when it stopped another secret program under which it was collecting Americans’ email metadata — information showing who was communicating with whom, but not the content of the messages. That decision was made public via the Snowden leaks.

The NSA in no way went “cold turkey” in 2011. Starting in 2009, just before it finally confessed to DOJ it had been violating collection rules for the life of the program, it rolled out the SPCMA program that allowed the government to do precisely the same thing, from precisely the same user interface, with any Internet data accessible through EO 12333. SPCMA was made available to all units within NSA in early 2011, well before NSA “went cold turkey.” And, at the same time, NSA moved some of its Internet dragnet to PRISM production, with the added benefit that it had few of the data sharing limits that the PRTT dragnet did.

That is, rather than going “cold turkey” the NSA moved the production under different authorities, which came with the added benefits of weaker FISC oversight, application for uses beyond counterterrorism, and far, far more permissive dissemination rules.

That AP’s sources claimed — and AP credulously reported — that this is about “cold turkey” is a pretty glaring hint that the NSA and FBI are preparing to do something very similar with the phone dragnet. As with the Internet dragnet, SPCMA permits phone chaining for any EO 12333 phone collection, under far looser rules. And under CISA, anyone who “voluntarily” wants to share this data (which always includes AT&T and likely includes other backbone providers) can share promiscuously and with greater secrecy (because it is protected by both Trade Secret and FOIA exemption). Some of this production, done under PRISM, would permit the government to get “connection” chaining information more easily than under a phone dragnet. And as with the Internet dragnet, any move of Section 215 production to CISA production evades existing FISC oversight.

A year ago, Keith Alexander testified that if they just had a classified data sharing program — like CISA — they could live without the dragnet. A year ago, basically, Alexander said he’d be willing to swap CISA for the phone dragnet.

Remarkably, these inaccurate AP stories always seem to serve that story, all while fostering a laughable myth that “ending the phone dragnet” would in any way end the practice of a phone dragnet.

*Update 3/30: My claim that the Marathon case proves they got cell call data relies only on FBI claims they were able to use the dragnet to good effect. I actually think that FBI used an AT&T specific dragnet — not the complete phone dragnet — to identify the brothers’ phones (while the government has offered conflicting testimony on this account, I’m fairly certain all of Dzhokhar’s phones and Tamerlan’s pre-paid phone discussed at Dzhokhar’s trial were T-Mobile phones). But if that’s the case, then FBI lied outright when making those earlier claims. I’m perfectly willing to believe that, but if that’s the now-operative story I’d love for someone to confirm it.

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Emptywheel Twitterverse
emptywheel @phillipanderson I've just been eating pumpkin pie for breakfast. But it has whole wheat crust so practically oatmeal @pefrase @sarahljaffe
emptywheel Most international phone calls were being collected twice: once domestically, once under EO 12333. The latter will still continue.
emptywheel NSA will stop collecting USP phone data UNDER FISA in bulk today. But it still collects it under EO 12333. https://t.co/Nftgwa6VPC
JimWhiteGNV A safe zone large enough for precisely one person. https://t.co/DcKceyICpc
emptywheel @phillipanderson I was embarrassed to discover I ate more pie for breakfast thas Mr. EW yesterday. Then I served up more pie for breakfast
emptywheel Once again, contrary to what you read in most "news" outlets, NSA will NOT stop collecting USP phone data in bulk. https://t.co/Nftgwa6VPC
JimWhiteGNV Spent yesterday unplugged and missed another attack by a jihadist in the US. A Christian jihadist, as most US attacks are.
emptywheel @thegrugq You can't ask NSA to use a third party app when they should be able to ask directly like they do for all the PRISM providers.
emptywheel @Dymaxion Imma write a REALLY good book and bring it out while everyone is eating Christmas dinner.
emptywheel @Dymaxion Yes, but let's pretend you don't, as most book buyers don't. Shouldn't you be skeptical of year end lists in November?
emptywheel @Dymaxion Right, but what these lists really mean are "here's the books that publishers have nudged us to review that we like."
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