Remember “the wall” that used to separate intelligence from criminal investigations and was used as an excuse for intelligence agencies not sharing intelligence they were permitted to share before 9/11?
It was demolished in 2001 — when the PATRIOT Act explicitly permitted what had been permitted before, sharing of intelligence information with the FBI — and 2002 — when the FISA Court of Review overruled presiding FISA Judge Royce Lamberth’s efforts to sustain some Fourth Amendment protections in criminal investigations using minimization procedures.
Nevertheless, the specter of a wall that didn’t prevent the Intelligence Committee from discovering 9/11 rising again is one of the things lying behind PCLOB’s weak recommendations on back door searches in its report on Section 702.
Of particular note, that’s what the Center for Democracy and Technology’s James Dempsey cites in his squishy middle ground recommendation on back door searches.
It is imperative not to re-erect the wall limiting discovery and use of information vital to the national security, and nothing in the Board’s recommendations would do so. The constitutionality of the Section 702 program is based on the premise that there are limits on the retention, use and dissemination of the communications of U.S. persons collected under the program. The proper mix of limitations that would keep the program within constitutional bounds and acceptable to the American public may vary from agency to agency and under different circumstances. The discussion of queries and uses at the FBI in this Report is based on our understanding of current practices associated with the FBI’s receipt and use of Section 702 data. The evolution of those practices may merit a different balancing. For now, the use or dissemination of Section 702 data by the FBI for non-national security matters is apparently largely, if not entirely, hypothetical. The possibility, however, should be addressed before the question arises in a moment of perceived urgency. Any number of possible structures would provide heightened protection of U.S. persons consistent with the imperative to discover and use critical national security information already in the hands of the government.546
546 See Presidential Policy Directive — Signals Intelligence Activities, Policy Directive 28, 2014 WL 187435, § 2, (Jan. 17, 2014) (limiting the use of signals intelligence collected in bulk to certain enumerated purposes), available at http://www.whitehouse.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities. [my emphasis]
Dempsey situates his comments in the context of the “wall.” He then suggests there are two possible uses of back door searches: “national security matters,” and non-national security matters, with the latter being entirely hypothetical, according to what the FBI self-reported to PCLOB.
Thus, he’s mostly thinking in terms of “possible structures [that] would provide heightened protection of US. persons,” to stave off future problems. He points to President Obama’s PPD-28 as one possibility as a model.
But PPD-28 is laughably inapt! Not only does the passage in question address “bulk collection,” which according to the definition Obama uses and PCLOB has adopted has nothing to do with Section 702. “[T]he Board does not regard Section 702 as a ‘bulk’ collection program,” PCLOB wrote at multiple points in its report.
More troubling, the passage in PPD-28 Dempsey cites permits bulk collection for the following uses:
(1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests;
(2) threats to the United States and its interests from terrorism;
(3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction;
(4) cybersecurity threats;
(5) threats to U.S. or allied Armed Forces or other U.S or allied personnel;
(6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section;
Ultimately, this represents — or should — an expansion of permissible use of Section 702 data, because its discussion of terrorism and cybersecurity do not distinguish between those with an international nexus and those without. And the discussion of transnational crime might subject any petty drug dealer selling dope from Mexico to foreign intelligence treatment.
That this is what passes for the mushy middle on PCLOB is especially curious given that Dempsey was one of the first PCLOB member to express concern about back door searches. He did so in November’s Section 215 hearing, and even suggested limiting back door searches to foreign intelligence purposes (which is not the standard for FBI, in any case) was inadequate. Nevertheless, in last week’s report, he backed only very weak protections for back door searches, and did so within the context of national security versus non-national security, and not intelligence versus crime.
Now, I don’t mean to pick on Dempsey exclusively — I’ll have a few more posts on this issue. And to be clear, Dempsey does not represent CDT at PCLOB; he’s there in his private capacity.
But I raised his affiliation with CDT because in that capacity, Dempsey was part of an amicus brief, along with representatives from ACLU, Center for National Security Studies, EPIC, and EFF, submitted in the In Re Sealed Case in 2002, in which the FISA Court of Review reversed Lamberth and permitted prosecutor involvement in FISA warrants. That brief strongly rebuts the kind of argument he adopted in last week’s PCLOB report.