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FBI Still Inventing New Ways to Surveil People with No Oversight

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Marisa Taylor has an important update on the OLC exigent letter opinion. Last year, DOJ’s now-retired Inspector General Glenn Fine released a report revealing how the FBI had used exigent letters to get call data information from telecoms with no oversight. Ryan Singel noted a reference to an OLC opinion that basically melted away the problems created by use of these exigent letters (see pages 264-266 of the report).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

Taylor FOIAed the opinion.

And while DOJ refused to release the opinion, they did apparently reveal enough in their letter explaining their refusal to make it clear that the FBI maintains that it does not need any kind of court review to get telephone records of calls made from the US to other countries.

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

[snip]

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

EFF’s Kevin Bankston provides some context.

“This is the answer to a mystery that has puzzled us for more than a year now,” said Kevin Bankston, a senior staff attorney and expert on electronic surveillance and national security laws for the nonprofit Electronic Frontier Foundation.

“Now, 30 years later, the FBI has looked at this provision again and decided that it is an enormous loophole that allows them to ask for, and the phone companies to hand over, records related to international or foreign communications,” he said. “Apparently, they’ve decided that this provision means that your international communications are a privacy-free zone and that they can get records of those communications without any legal process.”

Now, I’m trying to get some clarification as to precisely what language DOJ used (see update below). But the revelation is interesting for two reasons.

As I argued last year, the opinion probably serves to clean up a lot of the illegal stuff done under the Bush Administration. I think it likely that this includes Cheney’s illegal wiretap program. If I’m right, then this claim would be particularly interesting not least because of all the discussions about US to international calls during the debate around FISA Amendments Act.

Then of course there’s the even bigger worry. When Fine released his report, the FBI assured him that it wouldn’t actually use this opinion. “No, Dad, I have no intention of taking the Porsche out for a spin, so don’t worry about leaving the keys here.”

But the fact that DOJ seems to be doubling down on this claim sort of suggests they are relying on the opinion.

Also, I can’t help but note about the timing of this FOIA response: Conveniently for DOJ, they didn’t respond to McClatchy until after Russ Feingold and Glenn Fine, the two people most likely to throw a fit about this, were out of the way.

Update: Via email, Kevin Bankston told me this is the clause the government is using to find its loophole: 18 USC 2511(2)(f).

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Government Continues to Avoid Court Rulings on Domestic Surveillance

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Three significant pieces of news, taken together, show that the Courts continue to chip away at Bush-and-now-Obama’s domestic surveillance programs.

FISA Court Encourages Government to Stop Collecting Some Metadata

First, and potentially most importantly, the FISA Court, after learning more about what the collection of telecom metadata entailed, raised some concerns with the government, leading them to voluntarily stop collecting it.

The Foreign Intelligence Surveillance Court, which grants orders to U.S. spy agencies to monitor U.S. citizens and residents in terrorism and espionage cases, recently “got a little bit more of an understanding” about the NSA’s collection of the data, said one official, who spoke on the condition of anonymity because such matters are classified.

The data under discussion are records associated with various kinds of communication, but not their content. Examples of this “metadata” include the origin, destination and path of an e-mail; the phone numbers called from a particular telephone; and the Internet address of someone making an Internet phone call. It was not clear what kind of data had provoked the court’s concern.

[snip]

The NSA voluntarily stopped gathering the data in December or January rather than wait to be told to do so, the officials said. The agency had been collecting it with court permission for several years, officials said.

Curiously, Adam Schiff is quoted in the story specifically addressing VOIP.

Al-Haramain Agrees to Vaughn Walker’s Judgment

Next, on Friday, al-Haramain responded to Vaughn Walker’s tidy judgment on FISA–which I have argued was crafted to be rather tempting to the government–by basically accepting his judgment and backing off any further constitutional claims associated with the suit. In their proposed judgment, al-Haramain basically:

  • Asks for the $61,200 in damages defined by the statute ($20,400 for each of three plaintiffs, which comes from $100/day for each day of violation)
  • Asks for $550,800 total in punitive damages ($183,600 for each of three plaintiffs)
  • Asks for legal fees (bmaz estimates these might run to around $3,375,000)
  • Dismisses all other constitutional claims and claims against Robert Mueller as an individual
  • Requests a declaration that “the defendants’ warrantless electronic surveillance of plaintiffs was unlawful as a violation of FISA”
  • Requests an order that the government purge all information illegally collected (except that which would be exculpatory)

In short, al-Haramain is basically saying, “gosh what a nifty solution you’ve crafted, Judge Walker. Let’s see what Eric Holder thinks of it.”

Now, the government might have some complaint about the particular description of its illegal wiretapping. And I’m betting they’re going to have operational troubles with purging the illegally collected information, particularly if it means purging a lot of poisoned fruit along with it. But I still do think the government will try to find a way to accept Walker’s nifty solution.

Government Backs Down in Request to Access Stored Emails without Warrant

Finally, in another case in Denver, the government backed down a request that Yahoo turn over the stored emails of one of its customers without a warrant. Yahoo, EFF, and a bunch of other privacy advocates had made a stink, and rather than face an adverse judgment, the government backed down.

In the face of stiff resistance from Yahoo! and a coalition of privacy groups, Internet companies and industry coalitions led by EFF, the U.S. government today backed down from its request that a federal magistrate judge in Denver compel Yahoo! to turn over the contents of a Yahoo! email user’s email account without the government first obtaining a search warrant based on probable cause.

The EFF-led coalition filed an amicus brief this Tuesday in support of Yahoo!’s opposition to the government’s motion, agreeing with Yahoo! that the government’s warrantless seizure of an email account would violate both federal privacy law and the Fourth Amendment to the Constitution. In response, the Government today filed a brief claiming that it no longer had an investigative need for the demanded emails and withdrawing the government’s motion.

As EFF points out, the government has repeatedly backed down when challenged on this type of collection and related collection.

This is not the first time the government has evaded court rulings in this area. Most notably, although many federal magistrate judges and district courts have ruled that the government may not conduct real-time cellphone tracking without a warrant, the government has never appealed any of those decisions to a Circuit Court of Appeals, thereby preventing the appeals courts from ruling on the issue. Similarly, a federal magistrate judge in New York, Magistrate Judge Michael H. Dolinger, has twice invited EFF to brief the court on applications by the government to obtain private electronic communications without a warrant, and in each case, the government withdrew its application rather than risk a ruling against it (in one case the government went so far as to file a brief anticipating EFF’s opposition before finally dropping the case).

Which I think illustrates the common theme here. While we don’t yet know what the Obama Administration will do in the case of al-Haramain, in the two other cases, they have backed off of surveillance activities to avoid any adverse ruling from Courts. That’s partly a testament to their discomfort with their own legal position with regards to these activities. But it’s also an indication that they’d rather continue their programs in some lesser form than risk having a Court declare the whole program unconstitutional.

If I’m right about all this, it means the government is balancing facing an Appeals Court on FISA and State Secrets, versus paying less then $4 million to close the chapter on Bush’s most egregious form of domestic surveillance while still protecting executive programs that engage in similar collection.

9th Circuit to Jeffrey White: Get Back to Work on EFF FOIA

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The 9th Circuit wrote a really fascinating opinion in the EFF FOIA. The Circuit was dealing with three questions regarding EFF’s FOIA of the documents pertaining to telecom lobbying leading up to the passage of PAA and FAA. Those three questions are:

  • Whether FOIA Exemption 3 (protection of sources and methods) applies
  • Whether FOIA Exemption 6 (privacy) applies to contractors who lobby
  • Whether FOIA Exemption 5 (intra- and inter-agency communications) applies

While there’s a lot of nuance in this decision (and it’ll take a review of the actual Vaughn Indices to see what will definitely get released), the most exciting part of this ruling is the Circuit Court’s ruling that the government can’t protect the identities of the telecoms that lobbied for a Get Out of Jail Free Card, just because they needed one.

FOIA Exemption 3: Remand because EFF Was Confused

As to the question of whether the names of the telecoms should be protected as sources and methods and/or as a functional part of NSA, the Circuit didn’t decide. Rather, it argued there was confusion regarding whether or not EFF had ceded this issue, and as a result, District Court Judge White had not addressed the issue of whether this should be protected.

Under these statutes and Exemption 3, the government’s summary judgment brief argued, “ODNI and DOJ withheld information that could reveal whether any particular telecommunications carrier has assisted, or may in the future assist, the government with intelligence activities.” The government claimed disclosure “could deter telecommunications companies from assisting the government in the future,” and disclosure “provides our adversaries with valuable information about our intelligence sources, methods, and capabilities.”

[4] The government’s argument was predicated on the following inference: Revealing the identity of carriers and their agents working for a carrier liability shield would allow foreign intelligence agents to determine contours of NSA intelligence operations, sources, and methods. In other words, knowledge of which firms were and were not lobbying for liability protection could lead to inferences regarding the firms that participate in the surveillance program. EFF disputes the propriety of this inference. However, because the district court did not address Exemption 3 due to confusion in the parties’ summary judgment briefing, we remand for the district court to address these claims in the first instance.

This decision says nothing about whether White will rule in EFF’s favor or not. But heck, I’ll take that second bite at this apple.

FOIA Exemption 6: The Public has a Compelling Interest

This decision is, by far, the most interesting part of the opinion to me. Mind you, the Circuit was not determining whether or not contractors’ identities could be protected. Rather, it was determining whether lobbyists’ identities could be protected, even if it would be easy to assume those lobbyists were in fact contractors.

And the Circuit Court said that, whatever privacy protection the lobbyist-contractors might have, the public’s interest in knowing who was lobbying for legislation was more important.

We next consider “whether release of the information would constitute a clearly unwarranted invasion of that person’s privacy.” Wash. Post Co., 456 U.S. at 602. “[T]o determine whether a record is properly withheld, we must balance the privacy interest protected by the exemptions against the public interest in government openness that would be served by disclosure.” Lahr, 569 F.3d at 973.

The district court concluded “that there is some, although not a substantial, privacy interest in the withheld documents indicating the identities of the private individuals and entities who communicated with the ODNI and DOJ in connection with the FISA amendments.” It found, however, “that the public interest in an informed citizenry weighs in favor of disclosure” because “there is a strong public interest in disclosure of the identity of the individuals who contacted the government . . . to protect telecommunications companies from legal liability for their role in government surveillance activities.” We agree.

[snip]

[10] There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence. As the Supreme Court has explained, “[o]fficial information that sheds light on an agency’s performance of its statutory duties” merits disclosure. Reporters Comm., 489 U.S. at 773.

[11] With knowledge of the lobbyists’ identities, the public will be able to determine how the Executive Branch used advice from particular individuals and corporations in reaching its own policy decisions. Such information will allow the public to draw inferences comparing the various agents’ influence in relation to each other and compared to the agents’ or their corporate sponsors’ political activity and contributions to either the President or key members of Congress. In short, we find the public interest in “government openness that would be served by disclosure” of how the government makes decisions potentially shielding firms lobbying (and donating to campaigns) from nine-figure liabilities to be plainly important.

As a sop to the government–which was trying to hide all this information–the Circuit Court ruled that the government did not have to make the email addresses for the individuals involved public.

Big whoop. We won’t be able to email the executives who got their Get Out of Jail Free Card. I plan on emailing Ed Whitacre–former CEO of AT&T when they were doing this lobbying and currently CEO of GM–at his new GM email, anyway.

FOIA Exemption 5: The Government Cheated

In general, the Court found that White had too broadly claimed that the documents in question did not qualify for Exemption 5, agreeing that the government had shown that much of this was intra- or inter-agency communication. For those materials, the Court said the government would then have to go back and claim some privilege (such as deliberative privilege) to keep the documents hidden.

But the Court’s more general ruling was that White hadn’t looked closely enough at the Vaughn Index (and that he might have to look at the documents themselves). To justify that point, the Court cites this very amusing example.

Examining the Vaughn indices themselves shows the importance of engaging in the admittedly time-consuming analysis not performed here. Nearly all of the characterizations in the government-offered declarations comport with the descriptions in the Vaughn indices of inter-branch or intrabranch communications. Thus, for these emails, the district court should have more closely examined the documents to determine whether they were in fact inter-agency or intraagency memorandums or letters. Including them in a broad disclosure order was error under any standard.

In addition, in at least two instances (OLC Vaughn Index numbers 46 & 74), the plain language of the declaration seems to imply an intra-Executive Branch email when, in fact, the Vaughn Index makes clear the communications at issue were between the Executive Branch and telecommunications company representatives. This highlights the need for a fact specific inquiry under Exemption 5.

That is, to justify its ruling that Judge White needs to go back and look more closely at the Vaughn index and individual documents, the Court agrees that most of the documents are claimed to be intra- or inter-agency documents. But then points to an example where the government claimed emails between the Executive Branch and telecoms was intra- or inter-agency.

Busted.

Now, before any of these get released, I think the District Court will need to sort which exemptions were claimed for which documents. But the big takeaway, to me, is that the Circuit Court has ruled that the government can’t keep the identities of lobbyists hidden, even if those lobbyists were lobbying for telecoms that had helped the government break the law.

DOJ Set To Shuck And Jive Judge White In EFF FOIA Case

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Just two days ago we were discussing the status of EFF v. ODNI, the FOIA case in NDCA where disclosure is being sought of documents evidencing the telecom lobbying on immunity for corporate participation in Bush’s surveillance program. As you will recall, Judge White had denied the various stay attempts put forth by the government (and one they had not even made yet) and ordered disclosure on or before 4 pm PST today, October 16.

Josh Gerstein at Politico, who has done an excellent job following this case, has some news of what the government plans to do:

The Obama administration may be on the verge of a major concession in a long-running legal battle over records about so-called telecom immunity.

An email obtained by POLITICO shows that the Obama Administration is preparing for the possible release of some details of the Bush Administration’s lobbying for legislation giving telecommunications companies immunity from lawsuits over their involvement in warrantless domestic wiretapping.

But even if they do release those details, the administration may press on with a legal battle to keep secret the identities of the companies involved in the program.

And what will the government be oh so graciously disclosing? A lot of stuff that, while responsive to the FOIA request, is certainly not responsive to the core of the request.

“The Executive Branch will be providing to the Electronic Frontier Foundation in its FOIA suit a large number of e-mail communications between House staffers and Executive branch employees regarding the legislation involving immunity to telecommunications companies enacted as part of the [revised Foreign Intelligence Surveillance Act] legislation last year,” Nathan wrote.

In short, they are not going to disclose the identities of the telecom companies and their employees which sought immunity. And, predictably, the government relies on the well worn claptrap that:

Disclosure of such information would assist our adversaries in drawing inferences about whether certain telecommunications companies may or may not have assisted the government in intelligence-gathering activities,

But the court has already expressed its position on this argument: Read more →

Judge White Thumps The DOJ On EFF FOIA Case

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Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!

This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.

The EFF describes what transpired next in their press release:

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.

Judge White’s five page Order has some really sweet passages:

There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.

White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.

Then White sets the table for dissection of the DOJ specimen: Read more →

The Blob that Passed Telecom Immunity

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Update: Well, this is unexpected. The 9th said no to the government request for a stay, pending hearing what the District Court has to say about the emergency appeal. Now it’s back in the District Court for one more attempt at a stay.

About a million of you have linked this Wired story, with the headline:

Telephone Company is Arm of Government, Feds Admit in Spy Suit

There’s actually stuff in the government’s motion for an emergency stay that I find much more interesting. For example, the language attempting to protect agency discussions with Congress describe Congress as a mere appendage to the executive branch which did not, in 2008, have its own distinct Constitutional interest in legislation concerning matters in which the executive branch had been found to have flouted duly passed laws.

In this case, the communications between the agencies and Congress were part of a collaborative effort to formulate revisions to FISA that would be acceptable both to the President and to Congress, and the communications themselves were relied on to develop the Executive Branch’s positions regarding the appropriate scope and content of the proposed legislation. Given the purpose and role of the communications in the agencies’ own deliberations, the agencies have regarded their communications with Congress as intra-agency documents under the foregoing lines of authority.

[snip]

In Klamath, the Court declined to treat communications between a federal agency and Indian tribes regarding water rights as intra-agency because, unlike outside consultants, the tribes had independent financial interests in the subject matter of the communications, and those interests were adverse to other claimants. See 532 U.S. at 11-15. But the collaborative relationship between Congress and the Executive Branch in the development of new legislation has no resemblance to the relationship between the agency and the tribes in Klamath. In providing the agencies with information and views about legislative options for use in the development of the Executive Branch’s own legislative position, Congress was participating in a common effort with the Executive Branch to advance the public interest. [my emphasis]

While I realize that may, in fact, be an accurate description of how Congress acted during this debate–the intelligence committees, in particular, served and continue to serve as branches of the intelligence agencies they purportedly oversee–it is a fascinating comment on the state of separation of powers that Congress would be described by the executive branch as a mere appendage to the executive branch.

As to the telecoms, the real argument the government is making here is that the Court did not account for the invocation of Exemption 3 (sources and methods) in its ruling. Read more →

Phone Slip

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MadDog points out that the documents released through FOIA to EFF are available. These are documents, remember, relating to communications about the FISA amendment between DNI McConnell and Congress or representatives of telecom companies.

Declaration of what’s included

Document dump one

Document dump two

I’m reading through things now. But one thing is immediately apparent. There is almost no trace of any conversations between telecom companies and ODNI employees–there’s just one phone slip.

ODNI located one document that is potentially responsive to request number one. This document is a telephone message slip that contains the handwritten personal notes and mental impressions of an ODNI employee. This document is being withheld because it is not an agency record under FOIA. In addition, the documents qualifies to be withheld pursuant to FOIA exemptions 1,3,5 and 6.

Boy, those phone companies, they’re pretty careful, huh? Read more →