James Clapper

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SEC Says Hackers Like NSA Are Biggest Threat to Global Financial System

Reuters reports that, in the wake of criminals hacking the global financial messaging system SWIFT both via the Bangladesh central and an as-yet unnamed second central bank, SEC Commissioner Mary Jo White identified vulnerability to hackers as the top threat to the global financial system.

Cyber security is the biggest risk facing the financial system, the chair of the U.S. Securities and Exchange Commission (SEC) said on Tuesday, in one of the frankest assessments yet of the threat to Wall Street from digital attacks.

Banks around the world have been rattled by a $81 million cyber theft from the Bangladesh central bank that was funneled through SWIFT, a member-owned industry cooperative that handles the bulk of cross-border payment instructions between banks.

The SEC, which regulates securities markets, has found some major exchanges, dark pools and clearing houses did not have cyber policies in place that matched the sort of risks they faced, SEC Chair Mary Jo White told the Reuters Financial Regulation Summit in Washington D.C.

“What we found, as a general matter so far, is a lot of preparedness, a lot of awareness but also their policies and procedures are not tailored to their particular risks,” she said.

“As we go out there now, we are pointing that out.”

Of course, the criminals in Bangladesh were not the first known hackers of SWIFT. The documents leaked by Snowden revealed NSA’s elite hacking group, TAO, had targeted SWIFT as well. Given the timing, it appears they did so to prove to the Europeans and SWIFT that the fairly moderate limitations being demanded by the Europeans should not limit their “front door” access.

Targeting SWIFT (and credit card companies) is probably not the only financial hacking NSA has done. One of the most curious recommendations in the President’s Review Group, after all, was that “governments” (including the one its report addressed, the US?) might hack financial institutions to change the balances in financial accounts.

(2) Governments should not use their offensive cyber capabilities to change the amounts held in financial accounts or otherwise  manipulate the financial systems;

Second, governments should abstain from penetrating the systems of financial institutions and changing the amounts held in accounts there. The policy of avoiding tampering with account balances in financial institutions is part of a broader US policy of abstaining from manipulation of the financial system. These policies support economic growth by allowing all actors to rely on the accuracy of financial statements without the need for costly re-verification of account balances. This sort of attack could cause damaging uncertainty in financial markets, as well as create a risk of escalating counter-attacks against a nation that began such an effort. The US Government should affirm this policy as an international norm, and incorporate the policy into free trade or other international agreements.

After which point, James Clapper started pointing to similar attacks as a major global threat.

I don’t mean to diminish the seriousness of the threat (though I still believe banksters’ own recklessness is a bigger threat to the world financial system). But the NSA should have thought about the norms they were setting and the impact similar attacks done by other actors would have, before they pioneered such hacks in the first place.

James Clapper’s Latest Effort To Fearmonger about Snowden’s Damage

In addition to getting him to admit the US can’t fix the Middle East but we have to stay because our “leadership” is needed there, in this column David Ignatius asked James Clapper, again, about how much damage Edward Snowden has caused.

Clapper said the United States still can’t be certain how much harm was done to intelligence collection by the revelations of disaffected National Security Agency contractor Edward Snowden. “We’ve been very conservative in the damage assessment. Overall, there’s a lot,” Clapper said, noting that the Snowden disclosures made terrorist groups “very security-conscious” and speeded the move to unbreakable encryption of data. And he said the Snowden revelations may not have ended: “The assumption is that there are a lot more documents out there in escrow [to be revealed] at a time of his choosing.”

Let’s unpack this.

Clapper provides two pieces of evidence for damage:

  1. Snowden disclosures have made terrorist groups “very security-conscious”
  2. Snowden disclosures have “speeded the move” [by whom, it’s not entirely clear] to unbreakable encryption

That’s a bit funny, because what we saw from the terrorist cell that ravaged Paris and Belgium was — as The Grugq describes it — “drug dealer tradecraft writ large.” Stuff that they could have learned from watching the Wire a decade ago, with a good deal of sloppiness added in. With almost no hints of the use of encryption.

If the most dangerous terrorists today are using operational security that they could have learned years before Snowden, then his damage is not all that great.

Unless Clapper means, when he discusses the use of unbreakable encryption, us? Terrorists were already using encryption, but journalists and lawyers and US-based activists might not have been (activists in more dangerous places might have been using encryption that the State Department made available).

Neither of those developments should be that horrible. Which may be why Clapper says, “We’ve been very conservative in the damage assessment” even while insisting there’s a lot. Because this is not all that impressive, unless as Chief Spook you think you should have access to the communications of journalists and lawyers and activists.

I’m most interested, however, in this escrow idea.

“The assumption is that there are a lot more documents out there in escrow [to be revealed] at a time of his choosing.”

Snowden and Glenn Greenwald and Laura Poitras and Bart Gellman have said about a zillion times that Snowden handed everything off before he went to Russia. And everyone who knows anything about Russia would assume if he brought documents there, Putin has had them for almost 3 years.

Sure, there are surely documents that reporters have that, reviewed in the future by other people, may result in new disclosures. But the suggestion that Snowden himself is asking the journalists to hold back some of the documents “in escrow” is rather curious. Why would Snowden withhold documents until such time that the technology behind disclosures would be out of date.

I mean, it’s useful as a basis to claim that Snowden will continue to damage the IC when there’s actually not that much evidence he already has. But it doesn’t make much sense to me.

Ah well. In the article Clapper says he’ll be around for 265 days, which means around February 9 of next year, someone else will take up fearmongering about Edward Snowden.

The Easy Section 702 Surveillance Number James Clapper Can Share

Last week, a bunch of House Judiciary Committee members set James Clapper a letter stating that before the Committee deals with Section 702 reauthorization next year, they’d like:

  • The number of telephone communications in which one caller is located in the United States
  • The number of Internet communications acquired through upstream collection that originate or terminate in the United States
  • The number of communications of or concerning U.S. persons that the NSA positively identifies as such in the routine course of its work

They asked for those numbers by May 6.

In response, Clapper is humming and hawing about “several options” for disclosing how many Americans get spied on under Section 702.

Clapper said that “any methodology we come up with will not be completely satisfactory to all parties.”

“If we could have made such an estimate and if such an estimate were easy to do — explainable without compromise — we would’ve done it a long time ago,” he said.

We just learned there is, however, one number that should be easy-peasy to make public (and one I’m frankly alarmed the HJC members didn’t mention, as they should have known about it for some time): the number of back door searches FBI conducts on Section 702 data for reasons other than national security.

As I noted the other day, in response to FISC amicus (and former Eric Holder counsel) Amy Jeffress’ argument that FBI’s back door searches of Section 702 are unconstitutional, Thomas Hogan required FBI “submit in writing a report concerning each instance … in which FBI personnel receive and review Section 702-acquired information that the FBI identifies as concerning a United States person in response to a query that is not designed to find and extract foreign intelligence information.” As I noted, that’s an easily gamed number — I’m sure FBI treats a lot of criminal matters as national security ones, and FBI has the ability to see if there is 702 data without looking at it, permitting it to see if the same data is available under another authority.

Nevertheless, DOJ must have an exact number of reports they’ve submitted in response to this reporting requirement, which has been in place for over four months.

That’s not to say HJC shouldn’t insist on getting estimates for all the other numbers they’re seeking. But they should also demand that this number — the number of times FBI is using a foreign intelligence exception for criminal prosecutions that should be subject to a probable cause standard — be made public.

FBI’s Back Door Searches: Explicit Permission … and Before That

I have written numerous times about the timing of authorization for FBI to do back door searches. There’s a passage of the November 6, 2015 FISC opinion finding those searches to be constitutional that some have taken to clearly date the authority. But I believe the (unredacted sections of the) passage are being misread.

As Judge Thomas Hogan describes, “Queries by FBI personnel of Section 702-acquired data…

Screen Shot 2016-04-20 at 8.53.44 PM

As the unredacted parts of the section make clear, queries for both foreign intelligence information or evidence of a crime “have been explicitly permitted by the FBI Minimization Procedures since 2009.” [my emphasis] The footnote goes onto describe how Minimization Procedures approved by Attorney General Mukasey on October 22, 2008 and submitted on some redacted date were approved by an opinion issued on April 7, 2009.

Already, that’s a curious set of details. If the minimization procedures were approved in October 2008, normally they’d be submitted close to right away, though it’s not clear that that happened. But why bother, given that FISC had just approved FAA certifications on September 4 (this timing resembles what had happened earlier that year, when the government significantly changed the program within days of getting certificates approved)?  In any case, James Clapper’s censors want to hide what those dates were. One likely reason they might have done so would be to hide the dates from defendants, including a few of the ones challenging 702. Another would be to obscure how the approval process went after passage of FISA Amendments Act, specifically given that the FISA Court of Review finalized its Yahoo opinion in August of that year, in which it relied on DOJ’s promise that “there is no database” of incidentally collected US person information.

There Is No Database

But two other things suggest that’s not the end of the story. First, the use of “explicitly” suggests there may have been a period before FISC approved the minimization procedures when such a practice was approved but perhaps not explicitly. Perhaps that simply refers to that lag period, between the time Mukasey approved those minimization procedures and the time FISC approved them.

But then there’s that redacted paragraph (the next footnote, 25, starts after it). Hogan adds something to his discussion beyond his description of the explicit approval of those minimization procedures.

As I have pointed out, Mukasey (writing with then Director of National Intelligence Mike McConnell, who would also have to approve any PRISM minimization procedures) made it clear in response to a Russ Feingold amendment of FISA Amendments Act in February of 2008 that they intended to spy in Americans under PRISM.

So it sure seems likely the Administration at the very least had FBI back door searches planned, if not already in the works, well before FISC approved the minimization procedures in 2009. That’s probably what Hogan explained in that paragraph, but James Clapper apparently believes it would be legally inconvenient to mention that.

On the Coming Showdown over Promiscuous Sharing of EO 12333 Data

A number of outlets are reporting that Ted Lieu and Blake Farenthold have written a letter to NSA Director Mike Rogers urging him not to implement the new data sharing effort reported by Charlie Savage back in February. While I’m happy they wrote the letter, they use a dubious strategy in it: they suggest their authority to intervene comes from Congress having “granted” NSA authority to conduct warrantless collection of data.

Congress granted the NSA extraordinary authority to conduct warrantless collection of communications and other data.2

2 See Foreign Intelligence Surveillance Act and the Patriot Act.

As an initial matter, they’ve sent this letter to a guy who’s not in the chain of approval for the change. Defense Secretary Ash Carter and Attorney General Loretta Lynch will have to sign off on the procedures developed by Director of National Intelligence James Clapper; they might consult with Rogers (if he isn’t the one driving the change), but he’s out of the loop in terms of implementing the decision.

Furthermore, the Congressionally granted authority to conduct warrantless surveillance under FISA has nothing to do with the authority under which NSA collects this data, EO 12333. In his story, Savage makes clear that the change relies on the [what he called “little-noticed,” which is how he often describes stuff reported here years earlier] changes Bush implemented in the wake of passage of FISA Amendments Act. As I noted in 2014,

Perhaps the most striking of those is that, even while the White House claimed “there were very, very few changes to Part 2 of the order” — the part that provides protections for US persons and imposes prohibitions on activities like assassinations — the EO actually replaced what had been a prohibition on the dissemination of SIGINT pertaining to US persons with permission to disseminate it with Attorney General approval.

The last paragraph of 2.3 — which describes what data on US persons may be collected — reads in the original,

In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.

The 2008 version requires AG and DNI approval for such dissemination, but it affirmatively permits it.

In addition, elements of the Intelligence Community may disseminate information to each appropriate element within the Intelligence Community for purposes of allowing the recipient element to determine whether the information is relevant to its responsibilities and can be retained by it, except that information derived from signals intelligence may only be disseminated or made available to Intelligence Community elements in accordance with procedures established by the Director in coordination with the Secretary of Defense and approved by the Attorney General.

Given that the DNI and AG certified the minimization procedures used with FAA, their approval for any dissemination under that program would be built in here; they have already approved it! The same is true of the SPCMA — the EO 12333 US person metadata analysis that had been approved by both Attorney General Mukasey and Defense Secretary Robert Gates earlier that year. Also included in FISA-specific dissemination, the FBI had either just been granted, or would be in the following months, permission — in minimization procedures approved by both the DNI and AG — to conduct back door searches on incidentally collected US person data.

In other words, at precisely the time when at least 3 different programs expanded the DNI and AG approved SIGINT collection and analysis of US person data, EO 12333 newly permitted the dissemination of that information.

What Bush did just as he finished moving most of Stellar Wind over to FISA authorities, was to make it permissible to share EO 12333 data with other intelligence agencies under the same kind of DNI/AG/DOD approval process already in place for surveillance. They’ve already been using this change (though as I note, in some ways the new version of EO 12333 made FAA sharing even more permissive than EO 12333 sharing). And Savage’s article describes that they’ve intended to roll out this further expansion since Obama’s first term.

Obama administration has been quietly developing a framework for how to carry it out since taking office in 2009.


Intelligence officials began working in 2009 on how the technical system and rules would work, Mr. Litt said, eventually consulting the Defense and Justice Departments. This month, the administration briefed the Privacy and Civil Liberties Oversight Board, an independent five-member watchdog panel, seeking input. Before they go into effect, they must be approved by James R. Clapper, the intelligence director; Loretta E. Lynch, the attorney general; and Ashton B. Carter, the defense secretary.

“We would like it to be completed sooner rather than later,” Mr. Litt said. “Our expectation is months rather than weeks or years.”

All of which is to say that if Lieu and Farenthold want to stop this, they’re going to have to buckle down and prepare for a fight over separation of powers, because Congress has had limited success (the most notable successes being imposition of FAA 703-705 and Section 309 of last year’s intelligence authorization) in imposing limits on EO 12333 collection. Indeed, Section 309 is the weak protection Dianne Feinstein and Mark Udall were able to get for activities they thought should be covered under FAA.

Two more points. First, I suspect such expanded sharing is already going on between NSA and DEA. I’ve heard RUMINT that DEA has actually been getting far more data since shutting down their own dragnets in 2013. The sharing of “international” narcotics trade data has been baked into EO 12333 from the very start. So it would be unsurprising to have DEA replicate its dragnet using SPCMA. There’s no sign, yet, that DEA has been included under FAA certifications (and there’s not, as far as we know, an FAA narcotics certificate). But EO 12333 sharing with DEA would be easier to implement on the sly than FAA sharing. And once you’ve shared with DEA, you might as well share with everyone else.

Finally, this imminent change is why I was so insistent that SPCMA should have been in the Brennan Center’s report on privacy implications of EO 12333 collection. What the government was doing, explicitly, in 2007 when they rolled that out was making the US person participants in internationally collected data visible. We’ve seen inklings of how NSA coaches analysts to target foreigners to get at that US person content. The implications of basing targeting off of SPCMA enabled analysis under PRISM (which we know they do because DOJ turned over the SPCMA document, but not the backup, to FISC during the Yahoo challenge), currently, are that US person data can get selected because US persons are involved and then handed over to FBI with no limits on its access. Doing so under EO 12333 will only expand the amount of data available — and because of the structure of the Internet, a great deal of it is available.

Probably, the best way to combat this change is to vastly expand the language of FAA 703-705 to over US person data collected incidentally overseas during next year’s FAA reauthorization. But it will take language like that, because simply pointing to FISA will not change the Executive’s ability to change EO 12333 — even secretly! — at will.

Wednesday Morning: Ashes to Ashes

It’s your second morning-after this week, this one launching the countdown on Christian calendars to Easter. I’m a lapsed Catholic, but we do observe Lent in my household. My agnostic son resists, but I’ve explained this is an opportunity to be mindful about others’ experience of going without. We are privileged to choose to give up, and we consciously recognize it by Lenten observation. Some choices we make, like giving up meat and sugar, are beneficial for us, but it’s still the luxury of choice when others are forced to simply suffer without recourse.

This year we will be mindful of water. We take it for granted every time we turn on the faucet. Yet our brethren go without in nearby Flint, in spite of water’s essential nature to life. I’ll donate the money I would have spent on 46 days of meat-based meals to Flint’s United Way Water Fund and the Food Bank of Eastern Michigan, as both organizations are helping distribute water and filters to Flint residents. Last night’s Boil Water order issued because of a water main break only underlines the difficulties Flint’s residents will face until the entire water system is replaced.

Dept of Duh: Director of National Intelligence says Internet of Things can be used to spy
NO! Say it isn’t so! Like it never occurred to us that any device attached to the internet, including the growing number of WiFi-enabled household appliances, might be used to spy on us.

Volkswagen recalls cars — and not because of emissions
VW didn’t need more trouble; this time, it’s not the German car makers’ fault. 680,000 VW-branded vehicles are being recalled because of Takata-made airbags which may be defective. TAKE NOTE: Mercedes-Benz models were also recalled yesterday.

Toyota, Honda, Acura, BMW, Nissan, Subaru, GM, Ford, Chrysler, and Daimler also issued recalls over the last two years for the very same reason — defective Takata-made airbags. See this article for a running timeline of events related to the recalls as well as a list of affected vehicles (to date).

Attacking the grid? Try a squirrel first – hacking is much harder
A honeypot mimicking an energy management system demonstrated the challenge to hackers trying to crash a power grid. Dewan Chowdhury, MalCrawler’s founder, spoke at Kaspersky Lab security Analyst Summit about the knowledge set needed to attack energy systems:

“It’s extremely difficult. You’ can’t just be a NSA or FSB hacker; you need an electrical engineer on board to weaponize attacks and figure out what’s going on … When it comes to weaponization, you need a power substation engineering who knows what needs to be done and tested.”

After reading about Chowdhury’s presentation, I have two caveats. The first is the notion that an “electrical engineer” or a “power substation engineer” is required. Many non-degreed workers like electricians and technicians are familiar with computers, networks, and SCADA equipment. The second is this bit:

The groups had access to the HMI, which would allow them to manipulate the grid, but Chinese, U.S., and Russian groups, he said, stick to a gentlemen’s agreement and leave the grid alone. Middle Eastern actors, however, will try to perform control actions to sabotage the grid.

A “gentlemen’s agreement”? When do the gloves come off? When one of these actors align with a Middle Eastern actor?

Global disaster — how would you respond?
In case a mess of squirrels are deployed to take down the world’s power grids, one might need to know how to deal with the inevitable meltdown of services. Johns Hopkins Center for Civilian Biodefense Strategies modeled a global disaster in 2013 by way of a simulation game. The results were predictable:

What they discovered was that the country was ill prepared to cope. Within two weeks there would be enormous civilian casualties, a catastrophic breakdown in essential institutions, and mass civil unrest. Food supplies, electricity and transport infrastructures would all collapse.

International security scholar Dr. Nafeez Ahmed was asked how people should respond; he offered a nifty guide, outlined in six points.

But disaster isn’t always global, and current cases show our gross inability to respond to limited disasters. Flint, for example, already struggles with running water, item number three on Dr. Ahmed’s list. Conveniently, Flint doesn’t necessarily rely on government or law enforcement (item number four) because neither responded appropriately to the ongoing water crisis. What remains to be seen is whether Flint will muster long-term self-sufficiency (item number six) as government and law enforcement continue to let them down.

Speaking of Flint, I wonder how today’s Democratic Steering and Policy Committee hearing on Flint’s water crisis will go, as Michigan’s Governor Rick Snyder declined to appear.

“Don’t necessarily trust the government or law enforcement” in global disaster, indeed.

The Unnamed Network Provider Exposing our Infrastructure

Today was Global Threat day, when James Clapper testifies before various committees in Congress and Ron Wyden asks uncomfortable questions (today, directed exclusively at John Brennan). I’ll have a few posts about the hearings (in Senate Armed Services and Senate Intelligence Committees) and Clapper’s testimony, the SASC version of which is here.

One interesting detail in Clapper’s testimony comes in the several paragraph section on Infrastructure within a larger section on “Protecting Information Resources.” Here’s how the testimony describes the Juniper hack.

A major US network equipment manufacturer acknowledged last December that someone repeatedly gained access to its network to change source code in order to make its products’ default encryption breakable. The intruders also introduced a default password to enable undetected access to some target networks worldwide.

There’s no discussion of how many Federal agencies use Juniper’s VPN, nor of how this must have exposed US businesses (unless the NSA clued them into the problem). And definitely no discussion of the assumption that NSA initially asked for the back door that someone else subsequently exploited.

More importantly, there’s no discussion of the cost of this hack, which I find interesting given that it may be an own goal.

DOJ’s Double Standard on Osama Bin Laden Trophy Photos

Two and a half years ago, I first started pointing to the evidence that several of the guys on the Osama bin Laden operation took trophy photos.

[O]n February 15, 2013, DOJ informed Judicial Watch that CIA had found 7 more photos responsive to their FOIA. That happened just 4 days after Esquire published a splashy story about the guy who claimed to have been the SEAL who actually killed OBL. The current version includes this line.

In the compound, I thought about getting my camera, and I knew we needed to take pictures and ID him.

I had made the connection at the time, and I have a distinct suspicion the language was slightly different in the original (Esquire was making factual corrections along the way but the original is not on Internet Archive), making it clear that the Shooter and possibly others did take pictures, though perhaps not for operational purposes.

What kind of amped up warrior who had just helped kill the bogeyman could resist taking souvenir pictures? Could you blame them, if so?

In any case, I suspected at the time that the reason CIA “located” new photos was because they read about another set of photos in the possession in one of the guys who participated in the op, if not shot the lethal bullet. The ambiguity in the description of McRaven’s order seems to support that.

That is, what SOCOM and CIA appear to be protecting are — in significant part — the personal photos taken by the guys who did the operation.

The Intercept has a story describing how Matt Bissonnette — the guy who wrote No Easy Day — is under continued investigation as a result of having done just that.

It appears the government went after Bissonnette after he published his book, and demanded a cut of his profits and that he turn over a hard drive that had an “unauthorized” picture of OBL.

The retired SEAL voluntarily provided investigators with a copy of his hard drive as part of an agreement not to prosecute him for unlawfully possessing classified material, according to the two people familiar with the deal.


Luskin said that he had negotiated a deal in 2014 with the Pentagon and the Justice Department to hand over to the government some of the millions of dollars in book profits Bissonnette had received.

He would not confirm Bissonnette’s possession of the bin Laden photo or whether any investigation still remains open.

But once DOJ got Bissonnette’s hard drive — which according to the Intercept was technically turned over voluntarily (meaning there’d be no warrant to limit the scope of what the government could do with it), they found evidence he may have had side deals associated with his procurement role for the team.

During their search of his hard drive, investigators subsequently found emails and records dealing with Bissonnette’s work as a consultant while he was on active duty at SEAL Team 6. Those records, which were not part of the non-prosecution agreement, led to the widening probe. Federal investigators then became interested in whether Bissonnette’s business ventures with companies that supply military equipment — including companies whose products were used by SEAL Team 6 — were helped by his role in the elite unit’s procurement process, according to one of the people familiar with the case.

Element Group, a company Bissonnette helped set up in Virginia Beach about five years ago, is among the companies NCIS is said to be investigating. According to a former SEAL Team 6 operator familiar with Element Group’s business arrangements, the firm, which has since been shut down, designed prototypes for, and advised, private companies that make sporting and tactical equipment.

According to several former SEAL Team operators familiar with the company, Element Group also did business with at least one Defense Department contractor that sold equipment to SEAL Team 6. The defense contractor, Atlantic Diving Supply, or ADS, has military supply and equipment contracts with SEAL Team 6, according to several former SEAL Team 6 operators, as well as other parts of the departments of Defense and Homeland Security. Federal investigators have been looking into the business relationship between Element Group and ADS.

I don’t defend Bissonnette if his side deals were corrupt. But this is bullshit on several levels.

Of course, many people, including me, have noted that Bissonnette’s book was an attempt to push back on the information asymmetry — and with it, propaganda — that the government uses classification to pull off.

Prosecuting Bissonnette would require admitting that the government used its unilateral authority over the nation’s secrets to tell a fiction–not an egregious one, but still one that served a significant political objective.

Now there are probably legal ways around that problem (they could prosecute Bissonnette for revealing obscure details that no one really cares about, for example). But probably not political ways around it, because at best, it would seem like retaliation for exposing the Administration’s fluffing of the facts.

It appears that Bissonnette has shown that the Administration used its control over secrecy as a political tool, not just an operational one, and to prosecute him, they’d have to make that point even more clear.

In addition, as I noted in a series of posts, DOD did a lot of things that arguably violate classification laws to hide those trophy photos by retroactively classifying them and sending them over to CIA where they’d be further hidden from Judicial Watch and other FOIAs that had already been filed.

[I]f the photos were classified after their FOIA, they would have had to have been classified on a photo by photo basis by the Director of CIA, Deputy Director, or a Senior Agency Official in charge of classifications, the CIA responded by saying that, after the CIA got the photos (which by all appearances happened after the FOIA), they were derivatively classified in accordance with the SAO’s guidance.

CIA doesn’t say whether that official reviewed the photos individually or not. Nor does it explain who wrote “TOP SECRET” on them, without adding all the other required classification markers.

And note how the CIA claims these photos “were always considered to be classified” by them — but not necessarily by SOCOM, which originally had the photos. But they don’t even claim they were always considered to be Top Secret.

If I’m right about the DOD’s efforts to avoid its obligation under FOIA, then it basically went after Bissonnette for improperly handling classified information while it was doing the same thing (albeit to withhold previously unclassified information). Plus, if these photos were unauthorized, classifying them to hide them would amount to classification to hide misconduct.

Finally, whatever the ethical conflicts with Bissonnette’s side deals (they remain under investigation and it’s not clear there was a conflict, in which case this feels like DOJ’s pursuit of NSA whistleblowers Bill Binney et al for their effort to start a business), they’re being investigated at a time when the Intelligence Community has just eliminated some measures designed to facilitate oversight of precisely this kind of conflict. I sure take from that that the powers that be in our IC want to continue to engage in the kind of conflicted business deals that Bissonnette is being investigated for.

Here’s the irony though: I noted James Clapper had pushed that conflict change through, in part because it is so much work to ride herd on conflicts, even while accepting a requirement that his office increase its surveillance of line personnel. I concluded that Clapper has some really funny ideas about insider threats, finding abusive incompetents trading on their position to be less of a problem than leakers.

Clapper’s perfectly willing to expand his bureaucracy to look for leakers, but not to weed out the dangerously incompetent people ordering potential leakers around.

Bissonnette’s problem, I guess, is he was allegedly both, someone who shared information that undercut official propaganda, and someone who traded on his position.

Had he just done the latter everything would have been fine, I guess.

The Intelligence Community Continues to Pretend Ignorance of Its Deliberate 702 Spying

As I noted in an update to this post, over the last several months, the Brennan Center has led an effort among privacy organizations to get the Intelligence Community to provide the transparency over its Section 702 surveillance that it dodged under the USA Freedom Act. On October 29, 2015, it send James Clapper a letter asking for:

  • A public estimate of the number of communications or transactions involving American citizens and residents subject to Section 702 surveillance on a yearly basis.
  • The number of times each year that the FBI uses a U.S. person identifier to query databases that include Section 702 data, and the number of times the queries return such data.
  • Policies governing agencies’ notification of individuals that they intend to use information “derived from” Section 702 surveillance in judicial or administrative proceedings.

On December 23, Privacy Officer Alex Joel responded on behalf of Clapper, largely dodging the requests but offering to have a meeting at which he could further dodge the request. Then yesterday, Brennan replied, calling out some of those dodges and posing new questions in advance of any meeting.

While the reply asks some worthwhile new questions, I wanted to look at some underlying background to the response Joel and ODNI gave.

The number of communications or transactions involving American citizens and residents subject to Section 702 surveillance on a yearly basis

In response to Brennan’s request for the number of US persons sucked up in 702, Joel points back to the PCLOB 702 report (which was far more cautious than the earlier 215 report) and its report on the status of recommendations from January 2015 and basically says, “we’re still working on that.” Brennan deemed the response non-responsive and noted that the IC is still working on 4 of PCLOB’s 5 recommendations 18 months after they issued it.

I would add one important caveat to that: PCLOB’s fifth recommendation was that the government provide,

the number of instances in which the NSA disseminates non-public information about U.S. persons, specifically distinguishing disseminations that includes names, titles, or other identifiers potentially associated with individuals.

We’ve just learned — through curiously timed ODNI declassification — that the numbers FBI gives to Congress on 702 dissemination are dodgy, or at least were dodgy in 2012, in part because they had been interpreting what constituted US person information very narrowly. For whatever reason, PCLOB didn’t include FBI in this recommendation, but they should be included, especially given the issues of notice to defendants dealt with below.

More importantly, there’s something to remember, as the IC dawdles in its response to this recommendation. In 2010, John Bates issued a ruling stating that knowingly collecting US person content constituted an illegal wiretap under 50 USC 1809(a). Importantly, he said that if the government didn’t know it was conducting electronic surveillance, that was okay, but it shouldn’t go out of its way to remain ignorant that it was doing so.

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

The following year, Bates held that when it collected entirely domestic communications via upstream Section 702 collection, that collection was intentional (and therefore electronic surveillance), not incidental, though Clapper’s lawyer Bob Litt likes to obfuscate on this point. The important takeaway, though, is that the IC can illegally collect US person data so long as it avoids getting affirmative knowledge it is doing so, but it can’t be too obvious in its efforts to remain deliberately ignorant.

I’d say 18 months begins to look like willful ignorance.

The number of times each year that the FBI uses a U.S. person identifier to query databases that include Section 702 data, and the number of times the queries return such data

Brennan asked for solid numbers on back door searches, and Joel pointed to PCLOB’s recommendations that pertain to updated minimization procedures, a totally different topic.

And even there Joel was disingenuous in a way that the Brennan letter did not note.

Joel asserts that “with the recent reauthorization of the 702 Certification … this recommendation 2 [has] been implemented.” The recommendation included both additional clarity in FBI’s minimization procedures as well as further limits on what non-national security crimes FBI can use 702 data for.

Back in February 2015, Bob Litt revealed the latter information, what FBI could use 702 data for:

crimes involving death, kidnapping, substantial bodily harm, conduct that is a specified offense against a minor as defined in a particular statute, incapacitation or destruction of critical infrastructure, cyber security, transnational crimes, or human trafficking.

But after Litt made that disclosure, and either after or during the process of negotiating new 702 certificates, the ODNI released updated minimization procedures. But they where the MPs for 2014, not 2015! (See this post for a discussion of new disclosures in those documents.) Joel’s answer makes clear that FBI’s minimization procedures were updated significantly in the 2015 application beyond what they had been in 2014 (because that’s the only way they could have not fulfilled that recommendation last January but have since done so).

In other words, Joel answers Brennan’s question by boasting about fulfilling PCLOB’s recommendations, but not Brennan’s answer. But even there, if ODNI had just released the current FBI MPs, rather than year-old ones, part of Brennan’s questions would be answered — that is, what the current practice is.

I think the recent new disclosures about the limits on FBI’s very limited disclosure reporting (at least until 2012) provide some additional explanation for why FBI doesn’t count its back door searches. We know:

  • At least until 2012, it appears FBI did not consider reports based off the content of a message (“about”) not including the US person mentioned, certain kinds of identifiers (probably including phone numbers and Internet identifiers), or metadata to be sharing non-public US person information.
  • At least until the most recent certification, FBI was permitted to use metadata to analyze communications and transfer “all such metadata to other FBI electronic and data storage systems for authorized and foreign intelligence purposes” (page 11) without marking it as disseminated Section 702 data (footnote 2). This likely increases the chance that FBI does not treat metadata derived from Section 702 — and analysis integrating it and other data — to be 702 derived (especially given its apparent belief that such metadata does not equate to person identifying information).
  • FBI’s databases surely include redundant information for people whose communications are collected — either as target or incidentally — under both Section 702 and traditional FISA (and possibly even under Title III warrants). If, as Charlie Savage reported last year, FBI is now acquiring raw EO 12333 data, it may be in the same databases as well. This is undoubtedly even more true with respect to metadata. Given known practice on the NSA side, FBI likely uses the multiple designations to avoid disclosure rules.

In other words, there is a great deal of room to launder where data comes from, particularly if it has been used for metadata link analysis as an interim step. To try to count the specifically Section 702 queries, even just of content, though all the more so of metadata, would require revealing these overlaps, which FBI surely doesn’t want to do.

Policies governing agencies’ notification of individuals that they intend to use information “derived from” Section 702 surveillance in judicial or administrative proceedings

All that’s also background to Brennan’s request for information about notice to defendants. Joel pretty much repeated DOJ’s unhelpful line, though he did direct Brennan to this OLC memo on notice to those who lose clearance. Not only does that memo reserve the right to deem something otherwise subject to FISA’s notice requirements privileged, it also cites from a 1978 House report excluding those mentioned in, but not a party to, electronic surveillance from notice.

[A]s explained in a FISA House Report, “[t]he term specifically does not include persons, not parties to a communication, who may be mentioned or talked about by others.”

That, of course, coincides with one of the categories of people that it appears FBI was not counting in FISA dissemination reports until at least 2012 (and, of course, metadata does not count as electronic surveillance).

All of which is to say this appears to hint at the scope of how FBI has collected and identified people using 702 derived data that nevertheless don’t get 702 notice.

None of that excuses ODNI for refusing to respond to these obvious questions. But it does seem to indicate that the heart of FBI’s silence about its own 702 practices has a lot to do with its ability to arbitrage the multiple authorities it uses to spy.

Will James Clapper Be the First Known Victim of OmniCISA’s Regulatory Immunity?

According to Medium, Crackas With Attitude just hacked James Clapper and his wife.

One of the group’s hackers, who’s known as “Cracka,” contacted me on Monday, claiming to have broken into a series of accounts connected to Clapper, including his home telephone and internet, his personal email, and his wife’s Yahoo email. While in control of Clapper’s Verizon FiOS account, Cracka claimed to have changed the settings so that every call to his house number would get forwarded to the Free Palestine Movement.


The hacker also sent me a list of call logs to Clapper’s home number. In the log, there was a number listed as belonging to Vonna Heaton, an executive at Ball Aerospace and a former senior executive at the National Geospatial-Intelligence Agency. When I called that number, the woman who picked up identified as Vonna Heaton. When I told her who I was, she declined to answer any questions.

Viscerally, I’m laughing my ass off that Verizon (among others) has shared Clapper’s metadata without his authority. “Not wittingly,” they might say if he asks them about that. But I recognize that it’s actually not a good thing for someone in such a sensitive position to have his metadata exposed (I mean, to the extent that it wasn’t already exposed in the OPM hack).

I would also find some amusement if Clapper ends up being the first public victim of OmniCISA’s regulatory immunity for corporations.

Yahoo and Verizon can self-report this cyber intrusion to DHS, and if they do then the government can’t initiate regulatory action against them for giving inadequate protection from hacking for the Director of National Intelligence’s data.

And whether or not Clapper is the first victim of OmniCISA’s regulatory immunity, he is among the first Americans that the passage of OmniCISA failed to protect from hacking.


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