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EO 12333 Threatens Our Democracy

Among the many posts I’ve written about Executive Order 12333 — the order that authorizes all non-domestic spying — includes this post, where I noted that proposed changes to NSA’s phone dragnet won’t affect programs authorized by EO 12333.

Obama was speaking only about NSA’s treatment of Section 215 metadata, not the data — which includes a great amount of US person data — collected under Executive Order 12333.

[snip]

Section 215 metadata has different and significantly higher protections than EO 12333 phone metadata because of specific minimization procedures imposed by the FISC (arguably, the program doesn’t even meet the minimization procedure requirements mandated by the law). We’ve seen the implications of that, for example, when the NSA responded to being caught watch-listing 3,000 US persons without extending First Amendment protection not by stopping that tracking, but simply cutting off the watch-list’s ability to draw on Section 215 data.

Basically, the way NSA treats data collected under FISC-overseen programs (including both Section 215 and FISA Amendments Act) is to throw the data in with data collected under EO 12333, but add query screens tied to the more strict FISC-regulations governing production under it.

[snip]

NSA’s spokeswoman will say over and over that “everyday” or “ordinary” Americans don’t have to worry about their favorite software being sucked up by NSA. But to the extent that collection happens under EO 12333, they have relatively little protection.

That’s precisely the point made in an important op-ed by the State Department’s former Internet freedom chief, John Napier Tye, who had access to data from EO 12333 collection.

Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.

Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders.

[snip]

Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.

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Snowden’s Emailed Question Addresses One Abuse Revealed by His Leaks

In an effort to rebut Edward Snowden’s claims that he raised concerns via proper channels, NSA just released an email Snowden sent to NSA’s Office of General Counsel. The email reveals their own training is not clear about something central to Snowden’s leaks: whether laws passed by Congress take precedence over EO 12333.

In the email, Snowden describes a training program on USSID 18, NSA’s internal guidelines on protecting US person data. Snowden’s email reads, in part,

Hello, I have a question regarding the mandatory USSID 18 training.

The training states the following:

________

(U) The Hierarchy of Governing Authorities and Documents is displayed from the highest authority to the lowest authority as follows:

U.S. Constitution

Federal Statutes/Presidential Executive Orders (EO)

[snip]

________

I’m not entirely certain, but this does not seem correct, as it seems to imply Executive Orders have the same precedence as law. My understanding is that EOs may be superseded by federal statute, but EOs may not override statute.

An NSA lawyer wrote back (in part),

Executive Orders (E.O.s) have the “force and effect of law.” That said, you are correct that E.O.s cannot override a statute.

The NSA has not revealed whether Snowden called the lawyer with further questions, as he invited Snowden to do. Nor have they said this email to Office of General Counsel is the only email Snowden sent (only that it’s the only one he sent to OGC).

Nevertheless, the email is really suggestive, particularly as it took place when Snowden had already started downloading a slew of information.

That’s because Snowden’s documents (and documents released in response to his leaks) reveal NSA has repeatedly used EO 12333 to push the limits of laws passed by Congress, if not to evade the law altogether.

Here are just two of numerous examples:

NSA Avoids Stricter Minimization Procedures Under the Phone Dragnet: The NSA has fairly strict minimization procedures under the Section 215-authorized phone dragnet, but only NSA’s internal rules (USSID 18) for the EO 12333-authorized phone dragnet. Nevertheless, for the first 3 years of the FISA-authorized program, NSA didn’t follow their Section 215 rules, instead applying the less stringent rules of USSID 18 (effectively letting a DOD Directive supersede the PATRIOT Act). In one of their most egregious violations discovered in 2009, they watch listed 3,000 US persons without giving those people the required First Amendment review, as required by minimization procedures written to fulfill the law. But instead of purging those records upon discovery (or even stopping the watchlisting), they just moved them into the EO 12333-only category. They just kept spying on the US persons using only data collected under EO 12333.

And these 2009 violations are not isolated. At least as recently as 2011, the NSA was still engaging in this authority arbitrage; a training program from that year makes it clear NSA trained analysts to re-run queries under EO 12333, if possible, to get around the dissemination requirements of Section 215. (Update: I’m not saying this particular arbitrage is illegal; it’s not. But it does show how NSA games these authorities.)

NSA Collects US Person Content by Getting It Overseas: Because of the structure of the Internet, a great deal of US person data exists overseas. We’ve seen discussion of this US person data overseas including at least email content, address books, videocam images, and location. But because NSA collects this via dragnet, not targeted collection, it claims it is not targeting any American, even though it permits the searching of EO 12333 data for US person content, apparently without even Reasonable Articulable Suspicion. And because it is not targeting Americans under their dragnet and back door loopholes, it does not apply FISA Amendment Act restrictions on collecting US person data overseas under Sections 703, 704, and 705. Effectively, it has the ability to avoid those restrictions entirely by using EO 12333 as a dodge.

I’m not the only one concerned about this: at a hearing in February, both Dianne Feinstein and (at more length) Mark Udall raised concerns with National Security Division Assistant Attorney General John Carlin, suggesting some of this EO 12333 data should be treated according to FISA. Carlin — who is supposed to be a key player in overseeing NSA — showed no interest in doing so.

In both these questions, NSA did not allow laws to take precedence over EO 12333. On the contrary, NSA just created ways that it could apply EO 12333 and ignore the law that should have or might have applied.

Not only does Snowden’s question make it clear that the NSA doesn’t make the precedence of law over EO 12333 clear in training, but the lawyer’s response was rather ambiguous on this point as well.

One thing we’ve learned from Snowden’s leaks is that the Executive is (at a minimum) evading the intent of Congress on some of its treatment of US person data. And by releasing this email as part of a pissing contest with Snowden, NSA has made it clear that’s by design, even in their most core training program.

NSA is not telling its analysts that laws passed by Congress — even those offering protection to US person data — must take precedence over the looser protections under EO 12333. Which may be why they’re comfortable collecting so much US person data under EO 12333.

Update: According to Snowden, I’m absolutely right.

Today’s release is incomplete, and does not include my correspondence with the Signals Intelligence Directorate’s Office of Compliance, which believed that a classified executive order could take precedence over an act of Congress, contradicting what was just published. It also did not include concerns about how indefensible collection activities – such as breaking into the back-haul communications of major US internet companies – are sometimes concealed under E.O. 12333 to avoid Congressional reporting requirements and regulations.

EFF to Reggie Walton: Stuart Delery and John Carlin Are Still Materially Misleading FISA Court

In my latest post in DOJ’s apparent effort to destroy evidence pertinent to EFF’s several lawsuits in Northern District of CA, I noted that even after being ordered to explain their earlier material misstatements to the FISA Court, Assistant Attorneys General John Carlin and Stuart Delery left a lot of key details unsaid. Significantly, they did not describe the full extent of the evidence supporting EFF’s claims in the dispute (and therefore showing DOJ’s actions to be unreasonable).

Notwithstanding a past comment about preservation orders in the matters before Judge Walton, the government claims EFF’s suits are unrelated to the phone dragnet.

[T]he Government has always understood [EFF’s suits] to be limited to certain presidentially authorized intelligence collection activities outside FISA, the Government did not identify those lawsuits, nor the preservation order issued therein, in its Motion for the Second Amendment to Primary Order filed in the above-captioned Docket number on February 25, 2014. For the same reasons, the Government did not notify this Court of its receipt of plaintiffs’ counsel’s February 26, 2014, e-mail.

Note, to sustain this claim, the government withheld both the state secrets declarations that clearly invoke the FISC-authorized dragnets as part of the litigation, even though the government’s protection order invokes it repeatedly, as well as Vaughn Walker’s preservation order which is broader than DOJ’s own preservation plan. Thus, they don’t give Walton the things he needs to be able to assess whether DOJ’s actions in this matter were remotely reasonable.

Apparently, EFF agrees. EFF Legal Director Cindy Cohn wrote AAGs Stuart Delery and John Carlin to complain that they hadn’t referenced the evidence submitted by EFF to support its claims.

[W]e were dismayed to see that the government’s response to the FISC on pages 3-5 repeated its own arguments (plus new ones) about the scope of the Jewel complaint without referencing, much less presenting, plaintiffs’ counter-arguments. As you know, especially in our reply papers (doc. 196) in support of the TRO, plaintiffs presented significant argument and evidence that contradicts the government’s statement to the FISC that plaintiffs only “recently-expressed views” (pages 2, 7) regarding the scope of the preservation orders. They also also undermines [sic] the few paragraphs of the Jewel Complaint and some other documents that the government has cherry-picked to support its argument.

In addition, Cohn complains that the government has left the impression this dispute pertains solely to phone records.

[W]e are concerned that the FISC has not been put on notice that the scope of the dispute about the preservation order in Jewel (or at least the scope of the plaintiffs’ view of the preservation order) reaches beyond telephone records into the Internet content and metadata gathered from the fiberoptic cables of AT&T. This is especially concerning because the FISC may have required (or allowed) destruction of some of that evidence without the knowledge that it was doing so despite the existence of a preservation order covering that information issued by the Northern District of California.

Cohn’s invocation of Internet data is particularly important as it raises the second of two known illegal practices (the other being watchlisting US persons in the phone dragnet without the legally required First Amendment review) the data for which would be aging off now or in the near future: the collection of Internet content in the guise of metadata. I believe the Internet dragnet continued until October 30, 2009, so if they were aging off data for the 6 months in advance, might be aged off in the next week or so.

I’m really curious whether this spat is going to be resolved before Reggie Walton finishes his service on FISC on May 19.

But one thing is certain: it’s a lot more fun to watch the FISC docket when ex parte status starts to break down.

Turns Out the NSA “May” Destroy Evidence of Crimes before 5 Years Elapse

The metadata collected under this order may be kept online (that is, accessible for queries by cleared analysts) for five years, at which point it shall be destroyed. — Phone dragnet order, December 12, 2008

The Government “takes its preservation obligations with the utmost seriousness,” said a filing signed by Assistant Attorneys General John Carlin and Stuart Delery submitted Thursday in response to Presiding FISA Court Judge Reggie Walton’s accusation they had made material misstatements to him regarding the question of destroying phone dragnet data.

Recognizing that data collected pursuant to the Section 215 program could be potentially relevant to, and subject to preservation obligations in, a number of cases challenging the legality of the program, including First Unitarian Church of Los Angeles  v. NSA,

… Signals Intelligence Division Director Theresa Shea wrote in her March 17 declaration (starting at page 81) explaining what the government has actually done to protect data under those suits.

At which point Shea proceeded to admit that the government hadn’t been preserving the data they recognized was potentially relevant to the suits at hand.

… since the inception of the FISC-authorized bulk telephony metadata program in 2006, the FISC’s orders authorizing the bulk collection of telephony metadata under FISA Section 501 (known also as the Section 215 program) require that metadata obtained by the NSA under this authority be destroyed no later than five years after their collection. In 2011, the NSA began compliance with this requirement (when the first metadata collected under the FISC authority was ready to be aged off) and continued to comply with it until this Court’s March 10 order and the subsequent March 12, 2014 order of the FISC.

Thursday’s filing added to that clarity, not only saying so in a footnote, but then submitting another filing to make sure the footnote was crystal clear.

Footnote 6 on page 5 was intended to convey that “[c]onsistent with the Government’s understanding of these orders in Jewel and Shubert, prior to the filing of the Government’s Motion for Second Amendment to Primary Order, the Government complied with this Court’s requirements that metadata obtained by the NSA under Section 215 authority be destroyed no later than five years after their collection.”

The significance seems clear. The Government admits it could potentially have a preservation obligation from the filing of the first Section 215 suit, Klayman v. Obama, on June 6, 2013. But nevertheless, it destroyed data for 9 months during which it recognized it could potentially have a preservation obligation.  That means data through at least March 9, 2009 and perhaps as late as September 10, 2009 may already be destroyed, assuming reports of biannual purging is correct. Which would perhaps not coincidentally cover almost all of the phone dragnet violations discovered over the course of 2009. It would also cover all, or almost all, of the period (probably)  NSA did not have adequate means of identifying the source of its data (meaning that Section 215 data may have gotten treated with the lesser protections of EO 12333 data).

And the amount of data may be greater, given that NSA now describes in its 5 year age-off requirement no affirmative  obligation to keep data five years.

This all means the government apparently has already destroyed data that might be implicated in the scenario Judge Jeffrey White (hypothetically) raised in a hearing on March 19, in which he imagined practices of graver Constitutional concern than the program as it currently operates five years ago.

THE COURT: Well, what if the NSA was doing something, say, five years ago that was broader in scope, and more problematical from the constitutional perspective, and those documents are now aged out? And — because now under the FISC or the orders of the FISC Court, the activities of the NSA have — I mean, again, this is all hypothetical — have narrowed. And wouldn’t the Government — wouldn’t the plaintiffs then be deprived of that evidence, if it existed, of a broader, maybe more constitutionally problematic evidence, if you will?

MR. GILLIGAN: There — we submit a twofold answer to that, Your Honor.

We submit that there are documents that — and this goes to Your Honor’s Question 5B, perhaps. There are documents that could shed light on the Plaintiffs’ standing, whether we’ve actually collected information about their communications, even in the absence of those data.

As far as — as Your Honor’s hypothetical goes, it’s a question that I am very hesitant to discuss on the public record; but I can say if this is something that the Court wishes to explore, we could we could make a further classified ex parte submission to Your Honor on that point.

According to the NSA’s own admissions, until just over 5 years ago, the NSA was watchlisting as many as 3,000 Americans without doing the requisite First Amendment review required by law. And that evidence — and potentially the derivative queries that arose from it — is apparently now gone.

Which puts a new spin on the narratives offered in the press about DOJ’s delay in deciding what to do with this evidence. WSJ described the semiannual age-off and suggested the issue with destroying evidence might pertain to standing.

As the NSA program currently works, the database holds about five years of data, according to officials and some declassified court opinions. About twice a year, any call record more than five years old is purged from the system, officials said.

A particular concern, according to one official, is that the older records may give certain parties legal standing to pursue their cases, and that deleting the data could erase evidence that the phone records of those individuals or groups were swept up in the data dragnet.

FP’s sources suggested DOJ was running up against that semiannual deadline.

A U.S. official familiar with the legal process said the question about what to do with the phone records needn’t have been handled at practically the last minute. “The government was coming up on a five-year deadline to delete the data. Lawsuits were pending. The Justice Department could have approached the FISC months ago to resolve this,” the official said, referring to the Foreign Intelligence Surveillance Court.

There should be no February to March deadline. Assuming the semiannual age-off were timed to March 1, there should have already been a September 1 deadline, at which point NSA presumably would have destroyed everything moving forward to March 1, 2009.

Which may mean NSA and DOJ put it off to permit some interim age-off, all the out of control violations from 2009.

We shall see. EFF and DOJ will still litigate this going forward. But as I look more closely at the timing of all this, DOJ’s very belated effort to attempt to preserve data in February seems to have served, instead, to put off dealing with preservation orders until the most potentially damning data got destroyed.

All of this is separate from the dispute over whether DOJ violated the preservation order in Jewel, and that case may be coming up on the 5 year destruction of the last violative Internet metadata, which might be aged off by April 30 (based on the assumption the Internet dragnet got shut down on October 30, 2009).

But even for he more narrow question of the phone dragnet, for which the government admits it may have data retention obligations, the government seems to have already violated those obligations and, in the process, destroyed some of the most damning data about the program. 

Why Did 3 Top DOJ Officials Feed Their Dog DOJ’s Homework?

DOJ has submitted what it claims is an explanation for why it materially misstated facts to Reggie Walton in discussions about destroying phone dragnet data. (See this post and this post for background.)

As you recall, Walton had read EFF’s emails closely enough to realize that EFF had asked Civil Division lawyers why they had claimed there was no protection order when they believed they had one.

A review of the E-mail Correspondence indicates that as early as February 26, 2014, the day after the government filed its February 25 Motion, the plaintiffs in Jewel and First Unitarian indeed sought to clarify why the preservation orders in Jewel and Shubert were not referenced in that motion. E-mail Correspondence at 6-7. The Court’s review of the E-mail Correspondence suggests that the DOJ attorneys may have perceived the preservation orders in Jewel and Shubert to be immaterial to the February 25 Motion because the metadata at issue in those cases was collected under what DOJ referred to as the “President’s Surveillance Program” (i.e., collection pursuant to executive authority), as opposed to having been collected under Section 215 pursuant to FISC orders — a proposition with which plaintiffs’ counsel disagreed. Id at 4. As this Court noted in the March 12 Order and Opinion, it is ultimately up to the Northern District of California, rather than the FISC, to determine what BR metadata is relevant to the litigation pending before the court.

As the government is well aware, it has a heightened duty of candor to the Court in ex parte procedings. See MODEL RULES OF PROF’L CONDUCT R. 3.3(d) (2013). Regardless of the government’s perception of the materiality of the preservation orders in Jewel andShubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northern District of California required the preservation of the FISA telephony metadata at issue in the government’s February 25 Motion. E-mail Correspondence at 6-7. The fact that the plaintiffs had this understanding of the preservation orders–even if the government had a contrary understanding–was material to the FISC’s consideration of the February 25 Motion. The materiality of that fact is evidenced by the Court’s statement, based on the information provided by the government in the February 25 Motion, that “there is no indication that nay of the plaintiffs have sought discovery of this information or made any effort to have it preserved.” March 7 Opinion and Order at 8-9.

The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs’ understanding of their scopre, regardless of whether the plaintiffs had made a “specific request” that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs’ counsel from immediately raising this issue with the FISC or the Northern District of California. E-mail Correspondence at 5.

DOJ’s excuse for not telling Walton EFF believed they had a protection order is roughly as follows:

1. Notwithstanding a past comment about preservation orders in the matters before Judge Walton, the government claims EFF’s suits are unrelated to the phone dragnet.

[T]he Government has always understood [EFF’s suits] to be limited to certain presidentially authorized intelligence collection activities outside FISA, the Government did not identify those lawsuits, nor the preservation order issued therein, in its Motion for the Second Amendment to Primary Order filed in the above-captioned Docket number on February 25, 2014. For the same reasons, the Government did not notify this Court of its receipt of plaintiffs’ counsel’s February 26, 2014, e-mail.

Note, to sustain this claim, the government withheld both the state secrets declarations that clearly invoke the FISC-authorized dragnets as part of the litigation, even though the government’s protection order invokes it repeatedly, as well as Vaughn Walker’s preservation order which is broader than DOJ’s own preservation plan. Thus, they don’t give Walton the things he needs to be able to assess whether DOJ’s actions in this matter were remotely reasonable.

2. It explains that it never provided EFF with its own 2007 preservation plan (which did not meet the terms of Walker’s order) until March 17, 2014 because Stellar Wind — but not the FISC-authorized programs that the preservation plan excluded — was classified until December 2013.

A classified submission was necessary at that time [in 2007] because the existence of the presidentially-authorized program was classified and remained so until December 2013.

Note, it doesn’t mention that 19 days passed between the time EFF formally raised concerns about the protection order and the date DOJ actually provided the declassified protection plan to them, during which time, it appears, NSA destroyed one of the most damning half year’s worth of data in the program’s history (which I’ll return to in a later post).

3. In spite of EFF telling DOJ their earlier suits were relevant (and not having received the preservation plan which could have been declassified in December), DOJ claims they didn’t think they were relevant so it didn’t tell FISC about EFF’s beliefs.

Because the Government’s Motion for Second Amendment already had sought relief from this Court based on a list of BR metadata pursuant to FISC authorization, see Motion for Second Amendment at 3-5, counsel did not appreciate — even after receiving the email from plaintiffs’ counsel in Jewel — that it would be be important to notify this Court about Jewel and Shubert or the email from counsel for the Jewel plaintiffs about those cases with which the Government disagreed. Rather, counsel viewed any potential dispute about the scope of Jewel and Shubert preservation orders as a mater to be resolved, if possible, by the parties to those cases (though a potential unclassified explanation to plaintiffs’ counsel) or, failing that, by the district court.

Note what DOJ is not mentioning here? That EFF has a Section 215 lawsuit too, and that its understanding of the impact on that suit may have been influenced by the Shubert and Jewel protection orders.

4. DOJ’s Civil Division lawyers did not forward EFF’s email to DOJ’s National Security Division lawyers, they claim, because the Civil Division lawyers did not agree with EFF’s interpretation of the protection order.

For these reasons, counsel did not think to forward the email from Jewel Plaintiffs’ counsel to the attorneys with primary responsibility for interaction with this Court before the Court ruled on the Motion for Second Amendment. The Department wishes to assure the Court that it has always endeavored to maintain close coordination within the Department regarding civil litigation matters that involve proceedings before this Court, and will take even greater care to do so in the future.

5. DOJ told EFF to hold off formally alerting any Court in the belief that it could tell EFF about the preservation plan which could have been declassified in December but did not get declassified until 10 days after FISC issued its initial order requiring DOJ to destroy data, and that would solve everything.

In particular, the request in its February 28 email that counsel for the Jewel plaintiffs “forbear from filing anything with the FISC, or [the district court], until we have further opportunity to confer” was a good faith attempt to avoid unnecessary motions practice in the event that the issue could be worked out among the parties through the Government’s provision of an unclassified explanation concerning its preservation in Jewel and Shubert.

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Judge Reggie Walton Is Pissed that Government Is Making Material Misstatements to FISC, Again

FISA Court Chief Judge Reggie Walton just issued a rather unhappy order requiring the government to explain why it materially misstated the facts about whether any plaintiffs had protection orders that governed the phone dragnet.

Generally, he wants to know why the government didn’t tell him that EFF had protection orders in the Jewel and Shubert cases. More specifically, he wants to know why they didn’t tell him that — as I reported here — the EFF had asked the government how they could claim there was no protection order when they had one in their suits of the larger dragnet.

A review of the E-mail Correspondence indicates that as early as February 26, 2014, the day after the government filed its February 25 Motion, the plaintiffs in Jewel and First Unitarian indeed sought to clarify why the preservation orders in Jewel and Shubert were not referenced in that motion. E-mail Correspondence at 6-7. The Court’s review of the E-mail Correspondence suggests that the DOJ attorneys may have perceived the preservation orders in Jewel and Shubert to be immaterial to the February 25 Motion because the metadata at issue in those cases was collected under what DOJ referred to as the “President’s Surveillance Program” (i.e., collection pursuant to executive authority), as opposed to having been collected under Section 215 pursuant to FISC orders — a proposition with which plaintiffs’ counsel disagreed. Id at 4. As this Court noted in the March 12 Order and Opinion, it is ultimately up to the Northern District of California, rather than the FISC, to determine what BR metadata is relevant to the litigation pending before the court.

As the government is well aware, it has a heightened duty of candor to the Court in ex parte procedings. See MODEL RULES OF PROF’L CONDUCT R. 3.3(d) (2013). Regardless of the government’s perception of the materiality of the preservation orders in Jewel and Shubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northern District of California required the preservation of the FISA telephony metadata at issue in the government’s February 25 Motion. E-mail Correspondence at 6-7. The fact that the plaintiffs had this understanding of the preservation orders–even if the government had a contrary understanding–was material to the FISC’s consideration of the February 25 Motion. The materiality of that fact is evidenced by the Court’s statement, based on the information provided by the government in the February 25 Motion, that “there is no indication that nay of the plaintiffs have sought discovery of this information or made any effort to have it preserved.” March 7 Opinion and Order at 8-9.

The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs’ understanding of their scopre, regardless of whether the plaintiffs had made a “specific request” that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs’ counsel from immediately raising this issue with the FISC or the Northern District of California. E-mail Correspondence at 5.

In a number of places, Walton provides an out for the government, suggesting they might just be stupid and not obstructing (those are my words, obviously). He even goes so far as to suggest that DOJ might have an internal communication problem between the Civil Division, which is litigating the EFF suits, and the National Security Division, which works with FISC.

But then he notes that both Civil AAG Stuart Delery and Acting NSD AAG John Carlin submitted the filings to him.

The government’s failure to inform the FISC of the plaintiffs’ understanding that the prior preservation orders require retention of Section 591 telephony metadata may have resulted from imperfect communication or coordination within the Department of Justice rather than from deliberate decision-making.4 Nonetheless, the Court expects the government to be far more attentive to its obligations in its practice before this Court.

4 Attorneys from the Civil Division of the Department of Justice participated in the E-Mail Correspondence with plaintiffs’ counsel. As a general matter, attorneys from the National Security Division represent the government before the FISC. The February 25 Motion, as well as the March 13 Response, were submitted by the Assistant Attorney General for the Civil Division and the Acting Attorney General for the National Security Division.

Frankly, I hope Walton ultimately tries to learn why he wasn’t told about these protection orders in more detail years ago, when the government was deciding whether or not to destroy evidence of lawbreaking that Walton first identified in 2009. I also hope he gets to the bottom of why Deputy Attorney General James Cole had to intervene in this issue. But for now, I’m happy to see DOJ taken to the woodshed for misinforming the Court.

Update: Meanwhile, on the other coast, Judge Jeffrey White issued a protection order that is far broader than the government would prefer it to be. The government had implied that the First Unitarian Church suit only covered Section 215; earlier this week (I’ve got a post half written on it), EFF argued they’re challenging the dragnet, irrespective of what authorization the government used to collect it. Nothing in White’s order limits the protection order to Section 215 and this passage seems to encompass the larger dragnet.

Defendants’ searching of the telephone communications information of Plaintiffs is done without lawful authorization, probable cause, and/or individualized suspicion. It is done in violation of statutory and constitutional limitations and in excess of statutory and constitutional authority. Any judicial, administrative, or executive authorization (including any business records order issued pursuant to 50 U.S.C. § 1861) of the Associational Tracking Program or of the searching of the communications information of Plaintiffs is unlawful and invalid.

Update: fixed a typo in which I inadvertently said Walton caused rather than found the lawbreaking in 2009.

NSA’s Newfound Concern about Defendants’ Rights under FISA

As WSJ reported it was going to do, NSA has requested that the FISA Court permit it to retain call data beyond the 5 year age-off date because of all the lawsuits it faces.

[T]he Government requests that Section (3)E of the Court’s Primary Order be amended to authorize the preservation and/or storage of certain call detail records or “telephony metadata” (hereinafter “BR metadata”) beyond five years (60 months) after its initial collection under strict conditions and for the limited purpose of allowing the Government to comply with its preservation obligations, described below, arising as a result of the filing of several civil lawsuits challenging the legality of the National Security Agency (NSA) Section 215 bulk telephony metadata collection program.

It provides this introduction to a list of the suits in question.

The following matters, currently pending either before a United States District Court, or United States Court of Appeals, are among those in which a challenge to the lawfulness of the Section 215 program have been raised:

And lists:

  • ACLU v. Clapper
  • Klayman v. Obama
  • Smith v. Obama, an Idaho case
  • First Unitarian Church of LA, the EFF related case
  • Paul v. Obama
  • Perez v. Clapper, a Bivens suit out of West Texas I hadn’t known about before

It goes on to say,

The duty to preserve typically arises from the common-law duty to avoid spoilation of relevant evidence for use at trial;

[snip]

A party may be exposed to a range of sanctions not only for violating a preservation order,3 but also for failing to produce relevant evidence when ordered to do so because it destroyed information that it had a duty to preserve.

3 To date, no District Court or Court of Appeals has entered a specific preservation order in any of the civil lawsuits referenced in paragraph 4 but a party’s duty to preserve arises apart from any specific court order.

[snip]

When preservation of information is required, the duty to preserve supersedes statutory or regulatory requirements or records-management policies that would otherwise result in the destruction of the information.

[snip]

Based upon the claims raised and the relief sought, a more limited retention of the BR metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only that BR metadata specifically relevant to the identified lawsuits.

[snip]

Congress did not intend FISA or the minimization procedures adopted pursuant to section 1801(h) to abrogate the rights afforded to defendants in criminal proceedings.4 For example, in discussing section 1806, Congress stated,

[a]t the outset, the committee recognizes that nothing in these subsections abrogates the rights afforded a criminal defendant under Brady v. Maryland, and the Jencks Act. These legal principles inhere in any such proceeding and are wholly consistent with the procedures detailed here.

[snip]

Although the legislative history discussed above focuses on the use of evidence against a person in criminal proceedings, the Government respectfully submits that the preservation of evidence in civil proceedings is likewise consistent with FISA.

4 By extension, this should also apply to section 1861(g) which, with respect to retention is entirely consistent with section 1801(h).

Now, if you’re not already peeing your pants in laughter, consider the following.

First, as EFF’s Cindy Cohn pointed out to the WSJ, Judge Vaughn Walker issued a retention order in EFF’s 2008 suit against the dragnet.

Ms. Cohn also questioned why the government was only now considering this move, even though the EFF filed a lawsuit over NSA data collection in 2008.

In that case, a judge ordered evidence preserved related to claims brought by AT&T customers. What the government is considering now is far broader.

So, at least in her interpretation, it should already be retaining it.

Then, consider DOJ’s very serious citation of Congress’ intention that FISA not impair any defendant’s criminal rights. It basically says that that principle, laid out during debates about traditional FISA in 1978, should apply to other parts of FISA like the phone dragnet.

Of course, it was only 24 hours ago when DOJ was last caught violating that principle in Section 702, abrogating a defendant’s right to know where the evidence against him came from. And there are a whole slew of criminal defendants — most now imprisoned — whose 702 notice DOJ is still sitting on, whose rights DOJ felt perfectly entitled to similarly abrogate (we know this because back in June FBI was bragging about how many of them there were). So I am … surprised to hear DOJ suggest it gives a goddamn about criminal defendants’ rights, because for at least the last 7 years it has been shirking precisely that duty as it pertains to FISA.

Also, did you notice what pending case pertaining to the legality of the phone dragnet DOJ didn’t mention? Basaaly Moalin’s appeal of his conviction based off evidence collected pursuant to Section 215. What do you want to bet that NSA hasn’t retained the original phone records that busted him, which would have aged off NSA’s servers back in October 2012, well before DOJ told Moalin it had used Section 215 to nab him. That’s relevant because, according to recent reporting, NSA should not have been able to find Moalin’s call records given claims about limits on collection; if they did, they probably only did because AT&T was turning over other providers phone records. Moreover, we know that NSA was in violation of the dragnet minimization requirements in a slew of different ways at the time. Notably, that includes queries using selectors that had not been RAS-approved, as required, and dissemination using EO 12333’s weaker dissemination rules. Now that we know of these problems, a court might need that original data to determine whether the search that netted Moalin was proper (I presume NSA has the original query results and finished intelligence reports on it, but it’s not clear that would explain precisely how NSA obtained that data). Significantly, it was not until after 2009 that NSA even marked incoming data to show where it had been obtained.

So show us (or rather, Moalin’s lawyers) the data, NSA.

Ah well. If nothing else, this laughable motion should prove useful for defendants challenging their conviction because DOJ abrogated their rights!

Confirmed: DOJ Uses Section 702 to Get Title I FISA Warrants

In addition to the apparent miscommunication between Mark Udall and Acting (and presumably soon to be confirmed) DOJ National Security Division Head John Carlin, there was an even more telling exchange in today’s hearing.

In it, Martin Heinrich asked whether DOJ had yet written down its radical new policy of giving notice to defendants caught using Section 702.

Heinrich: As you know in October 2013, after months and months of discussion and debate in which you and the NSD were involved, DOJ adopted a new policy by which Federal prosecutors would inform defendants when they intended to offer evidence informed, obtained, or derived from intelligence collected under Section 702 of FISA. And when you and I met in December you informed me that that policy had not yet been reduced to a formal written policy, and so, Mr. Carlin, I wanted to ask, is that process done yet and has that policy been finalized and if so has it been disseminated in written form?

Carlin: Thank you Senator, and thank you for having taken the time to meet prior to this uh, hearing, in terms of the question, it is my understanding that it was the practice of the, uh, or policy of the Department, to inform a defendant in a criminal case, to give notice, if there was 702 information that was going to be used against them prior to, uh, prior to this change in practice. The change in practice had to do with a particular set of circumstances when there was an instance where information obtained from one prong of the FISA statute, 702, was used and led to information that led to another prong of FISA, Title I FISA, being used, and that when the notice was given to the defendant that that notice was referring to one type of FISA but not both types of FISA. And that is the practice that we uh reviewed and changed, so that now defendants are receiving notice in those instances of both types of uh, FISA, the review of cases affected like that, uh, affected by that continues, but we have filed such notice now, I believe in three uh criminal matters, including the case of Mohamed Mohamud, the individual convicted by a jury of attempting to uh use an explosive device in a Christmas tree lighting ceremony. In reference to that case we’ve now filed, um, there’s a filing in that case we should provide to your staff where we lay out what our practice is and I will ensure that that filing is distributed to US Attorneys offices across the country so they know exactly what our position is in that issue.

Heinrich: That’s helpful. And so you’ll share that with the committee as well?

Carlin: Yes sir.

Heinrich: Great.

Now, Carlin might be forgiven for all the uming and ahing here. After all, the filing he appears to be referring to is sort of an extended effort to pretend that “derived from” doesn’t mean “derived from,” all in an effort to pretend DOJ hasn’t been deliberately hiding this (in Mohamud’s case) for over 3 years.

But kudos to Carlin for not using that verb — derived — in his answer, choosing instead to use “was used and led to information that led to.”

All that said, Carlin did admit what has been clear for some time: that DOJ has been hiding Section 702 collected information by getting Title I warrants they provide to defendants. Which is another way of saying all the reassurances people have given about the protections given to people collected incidentally in Section 702 fall flat, because what has actually been happening is the government uses that incidental collection to justify Title I warrants.

Um.

I’m glad that’s all cleared up.

Does Acting National Security Division Head John Carlin Know about FISA Sections 703 and 704?

There were several curious exchanges in today’s hearing for Acting National Security Division AAG John Carlin to become the official AAG.

I’ll start with this exchange. (After 1:01, my transcription)

Udall: I want to talk about Executive Order 12333, with which you’re familiar. I understand that the collection, retention, or dissemination of information about US persons is prohibited under Executive Order 12333 except under certain procedures approved by the Attorney General. But this doesn’t mean that US person information isn’t mistakenly collected or obtained and then disseminated outside these procedures, so take this example. Let’s say the NSA’s conducting what it believes to be foreign to foreign collection under EO 12333 but discovers in the course of this collection that it also incidentally collected a vast trove of US person information. That US person collection should now have FISA protections. What role does the NSD have in overseeing any collection, retention, or dissemination of US person information that might occur under that executive order?

Carlin: Senator, so, generally the intelligence activities that NSA would conduct under its authorities pursuant to EO 12333 would be done pursuant to a series of guidelines that were approved by the Attorney General and then ultimately implemented through additional policies and procedures by NSA. But the collection activities that occur pursuant to 12333, if there was incidental collection, would be handled through a different set of oversight mechanisms than the Departments–by the Office of Compliance, the Inspector General there, the General Counsel there, and the Inspector General and General Counsel’s office for the Intelligence Community writ large, as well as reporting to these committees as appropriate.

Udall: So you don’t see a role for NSD in ensuring that that data is protected under FISA?

Carlin: Under FISA, no, under FISA we would have a direct role, so if it was under, if it was collection that was pursuant to the FISA statutes, so collection targeted at US persons, for example, or collection targeted at certain non-US persons overseas that was collected domestically such as pursuant to the 702 collection program. That would fall within the scope of the National Security Division. That’s information that — and oversight that we conduct through our oversight section in conjunction with the agencies. We would have the responsibility in terms of informing, of working with them to inform the court if there were any compliance incidents and making sure those compliance incidents were addressed.

Udall: My time’s obviously expired, but I think you don’t understand where I’m coming from here. One is to make sure the DOJ and you in your capacity have the most accurate information so you can represent United States of America and our citizens in the best possible way, and secondly that you have an additional role to play in providing additional oversight. Those are all tied to having information that’s factual, that’s based on what happened, and I’m going to continue to look for ways possible to make sure that’s what does happen, whether it’s under the auspices of the IC or the DOJ. You all have a responsibility to protect the Bill of Rights.

Udall asks Carlin about a “vast trove” of US person data collected under the guise of EO 12333, and asks whether NSD would have a role in protecting it under FISA.

Carlin responds by saying NSD wouldn’t have any role; only NSA and ODNI have oversight over EO 12333 compliance with the Attorney General approved guidelines.

At first, I thought Udall didn’t get Carlin’s point — that this data would get no FISA protection. (Earlier in the hearing, Dianne Feinstein had even pointed out EO 12333 collection gets less oversight, and suggested maybe NSD should play a role in EO 12333 compliance.)

But upon review, Udall may have been suggesting something else (I have a question in with his office seeking clarity on this point).

By all appearances, this was content, not metadata (under SPCMA, metadata collection is considered fair game).

US person content cannot be collected overseas — not intentionally at least — outside the purview of FISA sections 703 and 704.

And while admittedly I have yet to meet a lawyer who has been able to explain precisely how those statutes work, and while the White House has given particularly crazy answers on this point, it seemed that Carlin couldn’t even conceive of a way that US person content collected overseas would be protected under FISA.

He may simply be reflecting NSA policy that if they collect US person content overseas under EO 12333, they call it incidental and therefore never have to consider the FISA implications. And that may well be what the letter of the law provides (in which case I’m sure NSA never ever exploits that loophole, nosirree bob).

But he seemed completely unfamiliar with the concept that, under FISA Amendments Act, US persons do get FISA protection overseas.

Really?

Update: According to Udall’s spokesperson, he wasn’t specifically thinking of 703 and 704, but asking whether this data “should” fall under FISA and therefore under NSD’s oversight.