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Wyden and Udall Accuse DOJ of Misleading SCOTUS about Upstream Even as NSA Misleads NDCA about Upstream

As Charlie Savage reported this morning, Senators Ron Wyden and Mark Udall continue their ceaseless efforts to get NSA and DOJ to tell the truth. They (along with Martin Heinrich) wrote a letter to DOJ in November complaining about representations made in the Amnesty v. Clapper case. DOJ responded. And now Wyden and Udall have just written another response.

In addition to complaining about the government’s notice to defendants, Wyden and Udall claim DOJ improperly hid Section 702 upstream collection from SCOTUS by claiming the Amnesty plaintiffs could only be swept up in the dragnet if they communicated with a target.

These statements — if taken at face value — appear to foreclose the possibility of collection under section 702 intercepting any communications that are not to or from particular targets. In other words, the Justice Department indicated that communications that are merely “about” a target would not be collected. But recently declassified court opinions make it clear that legitimate communications about particular targets can also be intercepted under this authority. Since this fact was classified at the time, the plaintiffs did not raise it, but in our view this does not make these misleading statements acceptable.

The Justice Department’s reply also states that the “about” collection “did not bear upon the legal issues in the case.” But in fact, these misleading statements about the limits of section 702 surveillance appear to have informed the Supreme Court’s analysis. In writing for the majority, Justice Alito echoed your statements by the Court by stating that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals — namely their foreign contacts.” This statement, like your statements, appears to foreclose the possibility of “about” collection.

[snip]

[W]hile the Justice Department may claim that the Amnesty plaintiffs’ arguments would have been “equally speculative” if they had referenced the “about” collection, that should be a determination for the courts, and not the Justice Department, to make.

After laying this out, they conclude by accusing the Executive of making “misleading statements to the public, Congress and the courts.”

They don’t name all the Courts, though.

They might want to start collecting a list of all the courts DOJ and NSA have lied to, though. Because even as the Senators and DOJ were having this squabble in DC, NSA was continuing to misinform courts on the other side of the country.

Consider how then Acting NSA Deputy Director Frances Fleisch described upstream collection — and the collection of entirely domestic communications that FISC deemed illegal — in a then-sealed declaration in the EFF Jewel case submitted 4 days before DOJ responded to the Senators.

Once a target has been approved, the NSA uses two means to acquire the target’s electronic communications. First, it acquires such communications directly from compelled U.S.-based providers. This has been publicly referred to as the NSA’s PRISM collection. Second, in addition to collection directly from providers, the NSA collects electronic communications with the compelled assistance of electronic communications service providers as they transit Internet “backbone” facilities within the United States.

[snip]

In an opinion issued on October 3, 2001, the FISC found the NSA’s proposed minimization procedures as applied to the NSA’s upstream collection of Internet transactions containing multiple communications, or “MCTs,” deficient. In response, the NSA modified its proposed procedures and the FISC subsequently determined that the NSA adequately remedied the deficiencies such that the procedures met the applicable statutory and constitutional requirements, and allowed the collection to continue.

That is, Fleisch doesn’t even hint that the problem on which Bates ruled — the MCTs — consisted of entirely domestic communications unrelated to those mentioning the “about” selector. She doesn’t even hint that in addition to those MCTs, upstream collection also includes over 4 times as many completely domestic communications — SCTs — as well. She doesn’t reveal that John Bates threatened NSA with sanctions over distributing illegally collected domestic person content. And all of these issues are central to the Jewel complaint, which has always focused on telecoms collecting US person content at circuits. (I believe earlier declarations to NDCA were even more incomplete or downright dishonest on this issue, though will need to show that in a later post.)

In fact, EFF complained about this omission its response to the government’s declarations, noting that upstream about collection is precisely what whistleblower Mark Klein revealed back in 2006.

Public disclosures over the past six months, however, provide substantially more information about these collection practices than the government’s passing references. In particular, the government has publicly released an opinion of the FISC confirming that “‘upstream collection’ refers to the acquisition of Internet communications as they transit the ‘internal backbone’ facilities” of telecommunications firms, such as AT&T. Mem. Op. at 26, Redacted, No. [Redacted] (FISC Sep. 25, 2012) (emphasis added) (Ex. 1).

[snip]

These descriptions of upstream Internet surveillance are functionally identical to the surveillance configuration described by the [Mark] Klein evidence: a system designed to acquire Internet communications as they flow between AT&T’s Common Backbone Internet network to the networks of other providers.

The FISA Court ruled that NSA had been breaking the law and violating the Constitution for at least 3 years leading up to the 2011 decision. And neither DOJ nor NSA have bothered telling courts ruling on the legality of the program about that fact.

It’s pretty impressive that the Executive can mislead courts about the same subject in so many places at once.

But I guess that’s just the flip side of an omnipresent spying agency, that it can also serve as an omnipresent lying agency.

James Clapper Claims Publicly Acknowledged Details Are State Secrets While Boasting of Transparency

Between documents leaked by Edward Snowden, official court submissions, and official public statements, we know at least the following about the surveillance system set up after 9/11 and maintained virtually intact to this day:

  • Around of 8-14% of the content collected under Bush’s illegal program was domestic content (page 15 of the NSA IG Report says this constituted 8% of all the illegal wiretap targets but the percentage works out to be higher)
  • Some of the content collected via ongoing upstream collection currently includes intentionally-collected domestic content (NSA refuses to count this, even for the FISA Court)
  • Bush’s illegal wiretap program targeted Iraqi Intelligence Service targets, as well as targets affiliated with al Qaeda and its associates (see page 8)
  • NSA uses the phone metadata program with Iranian targets, as well as targets affiliated with al Qaeda and its associates
  • Both the illegal wiretap program and the Internet dragnet authorized under Pen Register/Trap and Trace in 2004 collected information that (because of the way TCP/IP works) would be legally content if treated as electronic surveillance
  • The NSA still conducts an Internet dragnet via collection overseas, which not only would permit the metadata-as-content collection, but would permit far more collection on US persons; that collection is seamlessly linked to the domestic dragnet collection
  • NSA uses the dragnets to decide which of content the telecoms have briefly indiscriminately collected to read

That is, the surveillance system is not so much discrete metadata programs and content programs directed overseas, directed exclusively against al Qaeda or even terrorists. Rather, it is a system in which network analysis plays a central role in selecting which collected content to read. That content includes entirely domestic communication. And targets of the system have not always been — and were not as recently as June — limited to terrorists.

These details of the surveillance system — along with the fact that AT&T and Verizon played the crucial role of collecting content and “metadata” off domestic switches — are among the details James “Least Untruthful” Clapper, with backup from acting Deputy Director of NSA Frances Fleisch, declared to still be state secrets on Friday, in spite of their public (and in many cases, official) acknowledgement.

In doing so, they are attempting to end the last remaining lawsuits for illegal wiretapping dating to 2006 by prohibiting discussion of the central issue at hand: the government has repeatedly and fairly consistently collected the content of US persons from within the US, at times without even the justification of terrorism. (For more background on Jewel v. AT&T, see here.)

Here’s how Clapper, with a nod to Fleisch, lays out the rebuttal of the Jewel plaintiffs.

the NSA’s collection of the content of communications under the TSP was directed at international communications in which a participant was reasonably believed to be associated with al-Qa’ida or an affiliated organization. Thus, as the U.S. Government has previously stated, plaintiff’s allegation that the NSA has indiscriminately collected the content of millions of communications sent or received by people inside the United States after September 11, 2001, under the TSP is false.

There are several weasel parts of this claim.

The “Terrorist Surveillance Program” and the “Other Target Surveillance Program”

First, to make this claim, Clapper (and Fleisch) revert to use of “Terrorist Surveillance Program,” a term invented to segment off the part of the larger illegal wiretap program that George Bush was willing to confess to in December 2005, that involving international communications with a suspected al Qaeda figure. But as Fleisch admits — but doesn’t explain — at ¶20, the TSP is just a subset of the larger Presidential Surveillance Program.  Read more