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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.

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

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.

[snip]

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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

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.

[snip]

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.

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Three Kinds of Dragnet Searches NSA Did When Only Doing Contact Chaining

This is going to be a weedy post in which I look at a key detail revealed by 2010 NSA Inspector General reviews of the Section 215 phone dragnet. The document was liberated by Charlie Savage last year.

At issue is the government’s description, in the period after the Snowden leaks, of what kind of searches it did on the Section 215 phone dragnet. The searches the government did on Section 215 dragnet data are critical to understanding a number of things: the reasons the parallel Internet dragnet probably got shut down in 2011, the squeals from people like Marco Rubio about things the government lost in shutting down the dragnet, and the likely scope of collection under USA Freedom Act.

Throughout the discussion of the phone dragnet, the administration claimed it was used for “contact chaining” — that is, exclusively to show who was within 3 (and starting in 2014, 2) degrees of separation, by phone calls [or texts, see update] made, from a suspected terrorist associate.

Here’s how the administration’s white paper on the program described it in 2013.

This telephony metadata is important to the Government because, by analyzing it, the Government can determine whether known or suspected terrorist operatives have been in contact with other persons who may be engaged in terrorist activities, including persons and activities within the United States. The program is carefully limited to this purpose: it is not lawful for anyone to query the bulk telephony metadata for any purpose other than counterterrorism, and Court-imposed rules strictly limit all such queries.

Though some claims to Congress and the press were even more definitive that this was just about contact chaining.

The documents on the 2009 violations released under FOIA made it clear that, historically at least, querying wasn’t limited to contact chaining. Almost every reference in these documents to the scope of the program includes a redaction after “contact chaining” in the description of the allowable queries. Here’s one of many from the government’s first response to Reggie Walton’s questions about the program.

Screen Shot 2016-01-05 at 10.48.44 AM

The redaction is probably something like “pattern analysis.”

Because the NSA was basically treating all Section 215 data according to the rules governing EO 12333 in 2009 (indeed, at the beginning of this period, analysts couldn’t distinguish the source of the two authorizations), it subjected the data to a number of processes that did not fit under the authorization in the FISC orders — things like counts of all contacts and automatic chaining on identifiers believed to be the same user as one deemed to have met the Reasonable Articulable Standard. The End to End report finished in summer 2009 described one after another of these processes being shut down (though making it clear it wanted to resume them once it obtained FISC authorization). But even in these discussions, that redaction after “contact chaining” remained.

Screen Shot 2016-01-05 at 11.00.33 AM

Even in spite of this persistent redaction, the public claims this was about contact chaining gave the impression that the pattern analysis not specifically authorized by the dragnet orders also got shut down.

The IG Reports that Savage liberated gives a better sense of precisely what the NSA was doing after it cleared up all its violations in 2009.

The Reports were ordered up by the FISC and covered an entire year of production (there was a counterpart of the Internet dragnet side, which was largely useless since so much of that dragnet got shut down around October 30, 2009 and remained shut down during this review period).

The show several things:

  • NSA continued to disseminate dragnet results informally, even after Reggie Walton had objected to such untrackable dissemination
  • Data integrity techs could — and did on one occasion, which was the most significant violation in the period — access data directly and in doing so bypass minimization procedures imposed on analysts (this would be particularly useful in bypassing subject matter restrictions)
  • Already by 2010, NSA did at least three different kinds of queries on the database data: in addition to contact chaining, “ident lookups,” and another query still considered Top Secret

It’s the last item of interest here.

The first thing to understand about the phone dragnet data is it could be queried two places: the analyst front-end (the name of which is always redacted), and a “Transaction Database” that got replaced with something else in 2011. (336)

Screen Shot 2015-08-29 at 7.08.12 PM

Basically, when the NSA did intake on data received from the telecoms, it would create a table of each and every record (which is I guess where the “transaction” name came from), while also making sure the telecoms didn’t send illegal data like credit card information.

Doing queries in the Transaction Database bypassed search restrictions. The March 2010 audit discovered a tech had done a query in the Transaction Database using a selector the RAS approval (meaning NSA had determined there was reasonable articulable suspicion that the selector had some tie to designated terrorist groups and/or Iran) of which had expired. The response to that violation, which NSA didn’t agree was a violation, was to move that tech function into a different department at NSA, away from the analyst function, which would do nothing to limit such restriction free queries, but would put a wall between analysts and techs, making it harder for analysts to ask techs to perform queries they would be unable to do.

Because the direct queries done for data integrity purposes were not subject to auditing under the phone dragnet orders, the monthly reports distinguished between those and analyst queries, the latter of which were audited to be sure they were RAS approved. But as the April 2010 report and subsequent audits showed, analysts also would do an “ident lookup.” (83)

Screen Shot 2015-08-29 at 2.16.18 PM

The report provided this classified/Five Eyes description of “ident lookups.”

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The Emphatic Access Restriction was a tool implemented in 2009 to ensure that analysts only did queries on RAS-approved selectors. What this detail reveals is that, rather than consulting a running list somewhere to see whether a selector was RAS approved, analysts would instead try to query, and if the query failed, that’s how they would learn the selector was not RAS approved.

We can’t be sure, but that suggests RAS approval went beyond simple one-to-one matching of identifiers. It’s possible an ident lookup needed to query the database to see if the data showed a given selector (say, a SIM card) matched another selector (say, a phone number) which had been RAS approved. It might go even further, given that NSA had automatically done searches on “correlated” numbers (that is, on a second phone number deemed to belong to the same person as the approved primary number that had been RAS approved). At least, that’s something NSA had done until 2009 and said it wanted to resume.

In other words, the fact that an ident lookup query queried the data and not just a list of approved selectors suggests it did more than just cross-check the RAS approval list: at some level it must tested the multiple selectors associated with one user to see if the underlying selectors were, by dint of the user himself being approved, themselves approved.

Indent lookups appear fairly often in these IG reports. Less frequent is an entirely redacted kind of query such as described but redacted in the September 2010 report. (166)

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The footnote description of that query is classified Top Secret NOFORN and entirely redacted.

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I have no idea what that query would be, but it’s clear it is done on the analyst facing interface, and only on RAS approved selectors.

The timing of this third query is interesting. Such queries appear in the September and October 2010 audits. That was a period when, in the wake of the July 2010 John Bates approval to resume the Internet dragnet, they were aligning the two programs again (or perhaps even more closely than they had been in 2009). It also appears after a new selector tracking tool got introduced in June 2010. That said, I’m unaware of anything in the phone dragnet orders that would have expanded the kinds of queries permitted on the phone dragnet data.

We know they had used the phone dragnet until 2009 to track burner phones (that is, matching calling patterns of selectors unknown to have a connection to determine which was a user’s new phone). We know that in November 2012, FISC approved an automated query process, though NSA never managed to implement it technically before Obama decided to shut down the dragnet. We also know that in 2014 they started admitting they were also doing “connection” chaining (which may be burner phone matching or may be matching of selectors). All are changes that might relate to more extensive non-chain querying.

We also don’t know whether this kind of query persisted from 2010 until last year, when the dragnet got shut down. I think it possible that the reasons they shut down the Internet dragnet in 2011 may have implicated the phone dragnet.

The point, though, is that at least by 2010, NSA was doing non-chain queries of the entire dragnet dataset that it considered to be approved under the phone dragnet orders. That suggests by that point, NSA was using the bulk set as a set already (or, more accurately, again, after the 2009 violations) by September 2010.

Last March James Clapper explained the need to retain records for a period of time, he justified it by saying you needed the historical data to discern patterns.

Q: And just to be clear, with the private providers maintaining that data, do you feel you’ve lost an important tool?

Clapper: Not necessarily. It will depend though, for one, retention period. I think, given the attitude today of the providers, they will probably do all they can to minimize the retention period. Which of course, from our standpoint, lessens the utility of the data, because you do need some — and we can prove this statistically — you do need some historical data in order to, if you’re gonna discern a pattern. And again, 215 to me, is much like my fire insurance policy. You know, my house has never burned down but every year I buy fire insurance just in case.

This would be consistent with the efforts to use the bulk dataset to find burner identities, at a minimum. It would also be consistent with Marco Rubio et al’s squeals about needing the historical data. And it would be consistent with the invocation of the National Academy of Sciences report on bulk data (though not on the phone dragnet), which NSA’s General Counsel raised in a Lawfare post today.

In other words, contrary to public suggestions, it appears NSA was using the phone dragnet to conduct pattern analysis that required the bulk dataset. That’s not surprising, though it is something the NSA suggested they weren’t doing.

They surely are still doing that on the larger EO 12333 dataset, along with a lot more complex kinds of analysis. But it seems some, like Rubio, either think we need to return to such bulk pattern analysis, or has used the San Bernardino attack to call to resume more intrusive spying.

Update: One of the other things the IG Reports make clear is that NSA was (unsurprisingly) collecting records of non-simultaneous telephone transactions. That became an issue when, in 2011, NSA started to age-off 5 year old data, because they would have some communication chains that reflected communications that were more than 5 years old but which were obtained less than 5 years before.

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My guess is this reflects texting chains that continued across days or weeks.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

James Clapper’s Twisted Definition of an Insider Threat

Back when I reviewed the goodies the House Intelligence Committee had given James Clapper in this year’s Intelligence Authorization, I noted the bill eliminated this report on potential conflicts in outside employment (see clause u).

The Director of National Intelligence shall annually submit to the congressional intelligence committees a report describing all outside employment for officers and employees of elements of the intelligence community that was authorized by the head of an element of the intelligence community during the preceding calendar year.

That change — which will make it harder for people to track the kinds of conflicts of interest a number of top NSA officials recently got caught with — survived in the Omnibus into which the Intelligence Authorization got integrated. Which probably means we’ll be seeing more spooks getting paid by contractors on the side.

Yesterday, WaPo described a reporting requirement that had been in the Senate Intelligence Authorization, but got watered down in the Omnibus: a report on promotions revealing whether those being promoted were “unfit or unqualified.”

Under a provision drafted by the Senate Intelligence Committee this year, intelligence agencies would have been required to regularly provide names of those being promoted to top positions and disclose any “significant and credible information to suggest that the individual is unfit or unqualified.”

As WaPo explained, the measure was an effort by Dianne Feinstein to prevent the kinds of things reported in the SSCI Torture Report, where people with a history of abuse were put in charge of interrogation programs, or the example of Alfreda Bikowsky (whom WaPo describes but doesn’t name), whose series of failures qualified her for increasingly senior positions at CIA. WaPo makes clear this kind of failing upwards continues at CIA.
More recently, a top CIA manager who had been removed from his job for abusive treatment of subordinates was reinstated this year as deputy chief for counterintelligence at the Counterterrorism Center.
In short, the measure was meant to ensure that CIA (and other agencies) weren’t led by a bunch of abusive incompetents. But James Clapper couldn’t allow that apparently, because abusive incompetents would apparently decline promotion if they would be revealed to oversight committees as abusive incompetents.

U.S. officials offered multiple explanations for Clapper’s objections. Several said that his main concern was the bureaucratic workload that would be generated by legislation requiring so much detail about potentially hundreds of senior employees across the U.S. intelligence community.

But others said that U.S. spy chiefs chafed at the idea of subjecting their top officials to such congressional scrutiny and went so far as to warn that candidates for certain jobs would probably withdraw.

Lawmakers were told that “some intelligence personnel would be reluctant to seek promotions out of concern that information about them would be presented to the Hill,” said a U.S. official involved in the discussions.

So he balked and Congress watered down the requirement. Here’s what remains of the measure:

(a) DIRECTIVE REQUIRED.—The Director of National Intelligence shall issue a directive containing a written policy for the timely notification to the congressional intelligence committees of the identities of individuals occupying senior level positions within the intelligence community.

The fine print on the requirement probably provides ways for Clapper to squish out of it in many cases by invoking covert status (which, in turn, likely means CIA will expand its current practice of pretending top managers are covert to protect them from scrutiny) or otherwise claiming senior people are not sufficiently senior to require notice.

So rather than preventing the CIA and other agencies from promoting abusive incompetents, the measure will likely lead to them being hidden further behind CIA’s secrecy.

Which is interesting, especially given another Intel Authorization measure that survived in the Omnibus, that I earlier described as an effort to make sure spooks and those in sensitive positions aren’t joining EFF or similar organizations.

The committee description of this section explains it will require DNI to do more checks on spooks (actually spooks and “sensitive” positions, which isn’t full clearance).

Section 306 directs the Director of National Intelligence (DNI) to develop and implement a plan for eliminating the backlog of overdue periodic investigations, and further requires the DNI to direct each agency to implement a program to provide enhanced security review to individuals determined eligible for access to classified information or eligible to hold a sensitive position.

These enhanced personnel security programs will integrate information relevant and appropriate for determining an individual’s suitability for access to classified information; be conducted at least 2 times every 5 years; and commence not later than 5 years after the date of enactment of the Fiscal Year 2016 Intelligence Authorization Act, or the elimination of the backlog of overdue periodic investigations, whichever occurs first.

Among the things ODNI will use to investigate its spooks are social media, commercial data sources, and credit reports. Among the things it is supposed to track is “change in ideology.” I’m guessing they’ll do special checks for EFF stickers and hoodies, which Snowden is known to have worn without much notice from NSA.

Remember, one complaint Clapper had about the gutted requirement he identify the abusive incompetents being promoted at intelligence agencies is the added bureaucracy of tracking just those being promoted in management ranks. But he apparently had no problem with a requirement that ODNI track the social media of everyone at all agencies to make sure they’re going to keep secrets and don’t harbor any “ideology” changes like support for the Bill of Rights.

That is, 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.

Apparently, to James Clapper, people who might leak about those unfit for management are more dangerous insider threats than having entire centers run by people unfit for management.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Marco Rubio Leaks that the Phone Dragnet Has Expanded to “A Large Number of Companies”

Last night, Marco Rubio went on Fox News to try to fear-monger over the phone dragnet again.

He repeated the claim that the AP also idiotically parroted uncritically — that the government can only get three years of records for the culprits in the San Bernardino attack.

In the case of these individuals that conducted this attack, we cannot see any phone records for the first three years in which — you can only see them up to three years. You’ll not be able to see the full five-year picture.

Again, he’s ignoring the AT&T backbone records that cover virtually all of Syed Rizwan Farook’s 28-year life that are available, that 215 phone dragnet could never have covered Tashfeen Malik’s time in Pakistan and Saudi Arabia, and that EO 12333 collection not only would cover Malik’s time before she came to the US, but would also include Farook’s international calls going back well over 5 years.

So he’s either an idiot or he’s lying on that point.

I’m more interested in what he said before that, because he appears to have leaked a classified detail about the ongoing USA Freedom dragnet: that they’ve been issuing orders to a “large and significant number of companies” under the new dragnet.

There are large and significant number of companies that either said, we are not going to collect records at all, we’re not going to have any records if you come asking for them, or we’re only going to keep them on average of 18 months. When the intelligence community or law enforcement comes knocking and subpoenas those records, in many cases there won’t be any records because some of these companies already said they’re not going to hold these records. And the result is that we will not be able in many cases to put together the full puzzle, the full picture of some of these individuals.

Let me clear: I’m certain this fact, that the IC has been asking for records from “a large number of companies,” is classified. For a guy trying to run for President as an uber-hawk, leaking such details (especially in appearance where he calls cleared people who leak like Edward Snowden “traitors”) ought to be entirely disqualifying.

But that detail is not news to emptywheel readers. As I noted in my analysis of the Intelligence Authorization the House just passed, James Clapper would be required to do a report 30 days after the authorization passes telling Congress which “telecoms” aren’t holding your call records for 18 months.

Section 307: Requires DNI to report if telecoms aren’t hoarding your call records

This adds language doing what some versions of USA Freedom tried to requiring DNI to report on which “electronic communications service providers” aren’t hoarding your call records for at least 18 months. He will have to do a report after 30 days listing all that don’t (bizarrely, the bill doesn’t specify what size company this covers, which given the extent of ECSPs in this country could be daunting), and also report to Congress within 15 days if any of them stop hoarding your records.

That there would be so many companies included Clapper would need a list surprised me, a bit. When I analyzed the House Report on the bill, I predicted USAF would pull in anything that might be described as a “call.”

We have every reason to believe the CDR function covers all “calls,” whether telephony or Internet, unlike the existing dragnet. Thus, for better and worse, far more people will be exposed to chaining than under the existing dragnet. It will catch more potential terrorists, but also more innocent people. As a result, far more people will be sucked into the NSA’s maw, indefinitely, for exploitation under all its analytical functions. This raises the chances that an innocent person will get targeted as a false positive.

At the same time, I thought that the report’s usage of “phone company” might limit collection to the providers that had been included — AT&T, Verizon, and Sprint — plus whatever providers cell companies aren’t already using their backbone, as well as the big tech companies that by dint of being handset manufacturers, that is, “phone” companies, could be obligated to turn over messaging records — things like iMessage and Skype metadata.

Nope. According to uber-hawk who believes leakers are traitors Marco Rubio, a “large number” of companies are getting requests.

From that I assume that the IC is sending requests to the entire universe of providers laid out by Verizon Associate General Counsel Michael Woods in his testimony to SSCI in 2014:

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Woods describes Skype (as the application that carried 34% of international minutes in 2012), as well as applications like iMessage and smaller outlets of particular interest like Signal as well as conferencing apps.

So it appears the intelligence committees, because they’re morons who don’t understand technology (and ignored Woods) got themselves in a pickle, because they didn’t realize that if you want full coverage from all “phone” communication, you’re going to have to go well beyond even AT&T, Verizon, Sprint, Apple, Microsoft, and Google (all of which have compliance departments and the infrastructure to keep such records). They are going to try to obtain all the call records, from every little provider, whether or not they actually have the means with which to keep and comply with such requests. Some — Signal might be among them — simply aren’t going to keep records, which is what Rubio is complaining about.

That’s a daunting task — and I can see why Rubio, if he believes that’s what needs to happen, is flustered by it. But, of course, it has nothing to do with the end of the old gap-filled dragnet. Indeed, that daunting problem arises because the new program aspires to be more comprehensive.

In any case, I’m grateful Rubio has done us the favor of laying out precisely what gaps the IC is currently trying to fill, but hawks like Rubio will likely call him a traitor for doing so.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Did the OPM Hack Fix Jack Goldsmith’s Anonymity Problem?

In a piece claiming “the most pressing problem the United States sees in its cyber relations with China [is] the widespread espionage and theft by China in U.S. public and private digital networks,” Jack Goldsmith argues any cyber agreement with China won’t be all that useful because we would never be able to verify it.

I still adhere what I once wrote in response to this: “in the absence of decent verification, we cannot be confident that transparency measures are in fact transparent, or that revealed doctrine is actual doctrine.  Nor can norms get much purchase in a world without serious attribution and verification; anonymity is a norm destroyer.”

Goldsmith says this in a piece that claims to adopt Sanger’s expressed concerns about the proposed deal and what it won’t cover. Here’s Sanger:

But it seems unlikely that any deal coming out of the talks would directly address the most urgent problems with cyberattacks of Chinese origin, according to officials who spoke on the condition of anonymity to describe continuing negotiations.

Most of those attacks have focused on espionage and theft of intellectual property. The rules under discussion would have done nothing to stop the theft of 22 million personal security files from the Office of Personnel Management, which the director of national intelligence, James R. Clapper Jr., recently told Congress did not constitute an “attack” because it was intelligence collection — something the United States does, too.

The agreement being negotiated would also not appear to cover the use of tools to steal intellectual property, as the Chinese military does often to bolster state-owned industries, according to an indictment of five officers of the People’s Liberation Army last year. And it is not clear that the rules would prohibit the kind of attack carried out last year against Sony Pictures Entertainment, for which the United States blamed North Korea. That attack melted down about 70 percent of Sony’s computer systems.

So Sanger quotes James Clapper saying he doesn’t consider OPM an attack (for good reason), but says that’s one of the most urgent concerns about Chinese hacking. Clapper’s response doesn’t seem to substantiate Sanger’s claim about the centrality of that as a concern, though I think it is a huge concern. I’ll come back to this.

Then Sanger — in a piece that once again repeats the shitty reporting that last year’s indictment showed the theft of IP to bolster state-owned industries (see this post, but I’m working on a follow-up) — says the agreement won’t cover IP theft. Finally, Sanger says that the agreement might not cover a Sony pictures hack, which the Chinese haven’t been accused of doing, so why would that be important in an agreement with the Chinese?

That last bit is where Goldsmith actually doesn’t adopt what Sanger has laid out. Indeed, he seems to say the agreement is about Sony type hacks.

[T]he ostensible “agreement” won’t have anything to do with the most pressing problem the United States sees in its cyber relations with China – the widespread espionage and theft by China in U.S. public and private digital networks.  The negotiation is mainly about cyberattacks (cyber operations that disrupt, destroy, degrade, or manipulate information on adversary networks) and not about cyberexpoitation (cyber operations involving theft, intelligence-gathering, and the like on digital networks).

The Sony hack certainly disrupted and destroyed the film studio’s networks, even while exposing a bunch of embarrassing intelligence. But thus far, we’re proceeding as if China hasn’t done that to “us” (to the extent a Japanese owned film studio counts as the US), North Korea has. We don’t even ever talk about whether China, in addition to robbing the F-35 program blind, also sabotaged it;  I remain agnostic about whether the US defense industry needed China’s help to sabotage the program, but China definitely had the persistence in networks to sabotage key parts that have since proven faulty. Plus, we’re taking it on faith that claims that the NYSE/United outages that happened on the same day are really unrelated, and curiously we’re not talking about the serial air travel outages we’ve experienced of late (after United, the FAA and then American went down because of “software problems”). I would suggest that the IC may have reason to have urgent concern about China’s ability and willingness to sabotage us, above and beyond its IP theft and intelligence theft, but if it does it’s not telling us.

But let’s take a step back. Since when did we conflate IP theft and the OPM hack? Those are different problems, and I’d really love to have a discussion — which surely wouldn’t happen with any government officials in any unclassified forum — whether the OPM hack is now considered a more urgent threat than serial Chinese IP theft, or whether Clapper is being honest in consistently dismissing it as similar behavior to what we do. Sure, IP theft used to be the most urgent issue, but did that change when China absconded with a database of much of our clearance data? The relative urgency of the two seems an utterly critical thing to understand, given that China pwned us in the OPM hack, and now 3 months after discovering that, we’re signing a cyber agreement.

All the more so given that the OPM hack goes right to the issue of anonymity though not, perhaps, verifiability.

In his piece, Goldsmith is a bit more trusting of the Clapper claim — which I laid out here — that we lost technical accesses in the wake of the Snowden leaks. I think that may well be the case, but it’s just as likely that’s disinformation, either for Congress in advance of the Xi Jinping visit, or for the Chinese. Goldsmith presents that as one more reason why we can’t verify any agreement, and therefore it will be largely worthless.

But does it matter that the OPM hack created symmetry in transparency of personnel (which is different from technical accesses) between China and the US? Does it matter that, with the OPM hack, the Chinese largely replicated our ability to create fingerprints using XKS, and through that figure out who in China was doing what?

That is, we may not have full attribution ability right now — in Clapper’s description it sounded like we could consistently ID tools and persona, but not necessarily tie that persona back to the Chinese state, though, again, that my have been disinformation. But both the US (through XKS) and China (through OPM) have achieved a kind of transparency in personnel.

Which brings me to my central question, in response to Goldsmith’s claim this agreement is pretty meaningless because of the attribution and verification problems. He may well be right it will be a mostly symbolic agreement (though if we move towards norms that may be a positive step).

But until we tease out the real interaction of the old problem — the IP theft — with the new one — that China has our intelligence community by the balls, and until we develop more certainty that some other acts of sabotage aren’t, in fact, cyberattacks, I’m not sure we’re really understanding the dynamics behind the agreement.

Just as importantly, it seems, we need to understand what a new kind of personnel transparency affects our expectations about verification or trust in cyberspace. I don’t know the answer to whether this kind of symmetry chances the considerations on verification or not, but it does seem a relevant question.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.