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Working Thread, Internet Dragnet 4: Later 2009 Documents

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The early focus on the dragnet violations was on the phone dragnet. At the end of March, however, DOJ started preparing to look more closely at the PRTT program in late April 2009, which may be why some of the following violations got disclosed to Reggie Walton in conjunction with a May reauthorization application. The CIA, FBI, and NCTC access to the PRTT seems to have been a bigger issue than the BR  FISA data.

All that said, when the NSA completed its End-to-End report sometime in fall 2009, they didn’t report all that much beyond the violations noted in May (though they did note the NSA did not shut down some automatic process when it said it did), mostly by claiming they didn’t realize the original dragnet order meant what it said (in spite of the violation in the first dragnet order).

It was only after that that they noticed FISC NSA had been collecting content from the start of the program (see document O). Once they admitted that, NSA decided not to reapply for a Primary Order, and Reggie Walton issued a supplemental order (document E) ordering them not to collect any more, but also not to access the data they did have. Only after that did DOJ submit the End-to-End report, accompanied by DOJ and Keith Alexander reports that admitted the content violation.

See also Working Thread 1, Working Thread 2, Working Thread 3, and Internet Dragnet Timeline. No one else is doing this tedious work; if you find it useful, please support it.

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Internet Dragnet Materials, Working Thread 1

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I Con the Record just released some ridiculously overclassified Internet dragnet documents it claims shows oversight but which actually shows how they evaded oversight. I’ve added letters to ID each document (I’ll do a post rearranging them into a timeline tomorrow or soon thereafter).

For a timeline I did earlier of the Internet dragnet program see this post.

This will be the first of several working threads, starting with descriptions of what we’ve got.

8/12: Note I will be updating this as I can clarify dates and content.

So-called Judicial oversight

A. FISC Opinion and Order: This is the Kollar-Kotelly order that initially approved the dragnet on July 14, 2004. A searchable version is here.

B. FISC Primary Order: This is an Internet dragnet order signed by Reggie Walton, probably in 2008 or very early 2009. It shows that the Internet dragnet program, which was almost certainly illegal in any case, had less oversight than the phone dragnet program (though at this point also collected fewer records). It was turned over pursuant to FAA requirements on March 13, 2009.

C. FISC Primary Order: This is an Internet dragnet order probably from May 29, 2009 (as identified in document D), signed by Reggie Walton. It shows the beginning of his efforts to work through the Internet violations. It appears to have been provided to Congress on August 31, 2009.

D. FISC Order and Supplemental Order: This is a version of the joint June 22, 2009 order released on several occasions before. It shows Reggie Walton’s efforts to work through the Internet dragnet violations. Here’s one version.

E. FISC Supplemental Order: This appears to be the dragnet order shutting down dragnet production. It would date to fall 2009 (production was likely shut down in October 2009, though this might reflect the initial shut-down).

F. FISC Primary Order: I’m fairly sure this is an order from after Bates turned the Internet dragnet back on in 2010 (and is signed by him), though I will need to verify that. It does require reports on how the NSA will segregate previously violative records, which is consistent with it dating to 2011 sometime (as is the requirement that the data be XML tagged).

G. FISC Memorandum Opinion Granting in Part and Denying in Part Application to Reinitiate, in Expanded Form, Pen Register/Trap and Trace Authorization: This is the order, from sometime between July and October 2010, where John Bates turned back on and expanded the Internet dragnet. Here’s the earlier released version (though I think it is identical).

H. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This was a report Walton required in document C, above, and so would be in the May-June 2009 timeframe. Update: Likely date June 18, 2009.

I. Government’s Response to the FISC’s Supplemental Order: This is the government’s response to an order from Walton, probably in his May 29, 2009 opinion (see this order for background), or even earlier in May.Update: This response dates to June 18, 2009 or slightly before.

J. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This appears to be the declaration submitted in support of Response I and cited in several places. Update: likely date June 18, 2009.

K. Supplemental Declaration of Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This appears to be the declaration that led to document C above.

L. Government’s Response to the FISC’s Supplemental Order Requesting a Corrective Declaration: This is a declaration admitting dissemination outside the rules responding to 5/29 order.

M. Government’s Response to a FISC Order: This is the government’s notice that it was using automatic queries on Internet metadata, just as it also was with the phone dragnet. This notice was provided to Congress in March 2009.

N. Declaration of Lieutenant General Keith B. Alexander, U.S. Army, Director, NSA, Concerning NSA’s Compliance with a FISC Order: After Walton demanded declarations in response to the initial phone dragnet violation, he ordered NSA to tell him whether the Internet dragnet also had the same problems. This is Keith Alexander’s declaration describing the auto scan for that program too. It was provided to Congress in March 2009.

O. Preliminary Notice of Potential Compliance Incident: This is the first notice of the categorical violations that ultimately led to the temporary shutdown of the dragnet, in advance of order E.

P. Notice of Filing: This is notice of a filing in response to inquiry from Judge Walton. It could be from any time during David Kris’ 2009 to early 2011 tenure.

Q: Government’s Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes: This appears to be the application following Order E, above. I don’t think it’s the 2010 application that led to the reauthorization of the dragnet, because it refers to facilities whereas the 2010 order authorized even broader collection. (Remember Bates’ 2010 order said the government applied, but then withdrew, an application.) Update and correction: this application must post-date December 2009, because that’s when NSA changed retention dates from 4.5 years to 5. Also note reference to change in program and request to access illegally collected data from before 10/09.

R. Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes: This appears to be the memorandum of law accompanying application Q.

S. Declaration of General Keith B. Alexander, U.S. Army, Director, NSA, in Support of Pen Register/Trap and Trace Application: This is Alexander’s declaration accompanying Q.

T. Exhibit D in Support of Pen Register/Trap and Trace Application: This is a cover letter. I’m not sure whether it references prior communications or new ones.

U. First Letter in Response to FISC Questions Concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices: This is the first of several letters in support of reinitiation of the program. The tone has changed dramatically here. For that reason, and because so much of it is redacted, I think this was part of the lead-up to the 2010 reauthorization.

V. Second Letter in Response to FISC Questions concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices: This second letter is entirely redacted except for the sucking up to Bates stuff.

W. Third Letter in Response to FISC Questions Concerning NSA Bulk Metadata Collection Using Pen Register/Trap and Trace Devices: More sucking up. Some language about trying to keep access to the existing illegally collected data. 

X. Application for Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes: This is the first application for the Internet dragnet, from 2004. Very interesting. Note it wasn’t turned over until July 2009, after Congress was already learning of the new problems with it.

Y. Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes: The memorandum of law accompanying X. Also turned over to Congress in 2009.

Z. Declaration of General Michael V. Hayden, U.S Air Force, Director, NSA, in Support of Pen Register/Trap and Trace Application: This goes with the initial application. NSA has left stuff unredacted that suggests they were access less bandwith than they, in the end, were. Also remember NSA violated this from the very beginning.

AA. Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes: This appears to be the application for the second PRTT order. I’ll return to this tomorrow, but I don’t think it reflects the violation notice it should.

BB. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate: This is NSA’s declaration in conjunction with the first reapplication for the dragnet. This should have declared violations. It was turned over to Congress in March 2009. [update: these appear to be early 2009 application]

CC. Declaration Lieutenant General Keith B. Alexander, U.S. Army, Director, NSA, Concerning NSA’s Implementation of Authority to Collect Certain Metadata: This is Alexander’s declaration accompanying the End-to-End report, from sometime in fall 2009.

DD: NSA’s Pen Register Trap and Trace FISA Review Report: The end-to-end report itself. it was provided to Congress in January 2010.

EE: DOJ Report to the FISC NSA’s Program to Collect Metadata: DOJ’s accompaniment to the end-to-end report.

FF: Government’s First Letter to Judge Bates to Confirm Understanding of Issues Relating to the FISC’s Authorization to Collect Metadata: After Bates raauthorized the Internet dragnet, DOJ realized they might not be on the same page as him. Not sure if this was in the 2009 attempt or the 2010 reauthorization.

GG: Government’s Second Letter to Judge Bates to Confirm Understanding of Issues Relating to the FISC’s Authorization to Collect Metadata: A follow-up to FF.

HH: Tab 1 Declaration of NSA Chief, Special Oversight and Processing, Oversight and Compliance, Signals Intelligence: This appears to be the 90-day report referenced in document C. Update: Actually it is referenced in Document A: note the paragraphs describing the chaining that were discontinued before the dragnet approval.

II: Verified Memorandum of Law in Response to FISC Supplemental Order: This is one of the most fascinating documents of all. It’s a 2009-2011 (I think August 17, 2009, though the date stamp is unclear) document pertaining to 3 PRTT targets, relying on criminal PRTT law and a 2006 memo that might be NSA’s RAS memo (though the order itself is FBI, which makes me wonder whether it seeds the FBI program). It may have been what they used to claim that Internet content counted as metadata.

JJ: Memorandum of Law in Response to FISC Order: A September 25, 2006 response to questions from the FISC, apparently regarding whether rules from criminal pen registers apply to PATRIOT PRTT. While I think this addresses the application to Internet, I also think this language may be being used for location.

So-called Congressional oversight

KK: Government’s Motion to Unseal FISC Documents in Order to Brief Congressional Intelligence and Judiciary Committees: This is a request to unseal an order — I suspect document E — so it could be briefed to Congress.

LL:  Order Granting the Government’s Motion to Unseal FISC Documents in Order to Brief Congressional Intelligence and Judiciary Committees: Walton’s order to unseal KK for briefing purposes. 

MM: April 27, 2005 Testimony of the Attorney General and Director, FBI Before the Senate Select Committee on Intelligence: This is the 2005 testimony in which — I pointed out before — Alberto Gonzales did not brief Congress about the Internet dragnet.

So-called Internal oversight

NN: NSA IG Memo Announcing its Audit of NSA’s Controls to Comply with the FISA Court’s Order Regarding Pen Register/Trap and Trace Devices: This lays out an audit with PRTT compliance, noting that the audit also pertains to BR FISA (phone dragnet). It admits the audit was shut down when the order was not renewed. It’s unclear whether this was the 2009 or the 2011 shutdown, but the implication is it got shut down because it would not pass audit. 

OO: NSA IG Memo Suspending its Audit of NSA after the NSA’s PRTT Metadata Program Expired: the formal announcement they were shutting down the IG report. Again, it’s not clear whether this was the 2009 or the 2011 shutdown.

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Keith Alexander’s Cyber Circle Jerk Gets Worse

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As I noted earlier today, last year Keith Alexander’s CyberCommand forces got their asses handed to them by civilians in a cyber war game.

“They were pretty much obliterated,” said one Capitol Hill staffer who attended the exercise. “The active-duty team didn’t even know how they’d been attacked.”

Nevertheless, here is one of the things he told Ken Dilanian in his second “exclusive” interview attempting to explain why he should get rich in the private sector capitalizing on 9 years of fear-mongering about cyber.

“If I retired from the Army as a brain surgeon, wouldn’t it be OK for me to go into private practice and make money doing brain surgery?” he asked. “I’m a cyber guy. Can’t I go to work and do cyber stuff?”

Alexander’s story has changed a bit since his last attempt  to explain himself, to Shane Harris. The number of patents he’ll get expanded from 9 to 10.

His firm is developing as many as 10 patents, he said, and has secured contracts with three clients he declines to name.

And he claims — after apparently not challenging the underlying $1 million a month claim to Harris — that his rates were always overblown.

Reports of his firm charging $1 million a month for consulting services are not accurate, he said, though he declined to disclose his firm’s fees.

“That number was inflated from the beginning,” he said.

But that’s not the best bit. In addition to revolving door shadow regulator Promontory Financial Group (which goes unmentioned in both stories) and the Chertoff Group, Dilanian reveals who gave Alexander the advise he could get rich off serving the last 9 years in a top national security position: Someone who spent those same years in a top national security position.

Lawyers at NSA and his private lawyers— including former FBI Director Robert Mueller, now with the Wilmer Hale law firm in Washington — have told him he is on firm legal footing, Alexander said.

These exclusives are all well and nice, but both of them ignore the reports about Alexander serving as the lead to set up a public-private partnership between the banksters and the national security state to infringe our privacy in order to keep the banks safe (heck neither mentions his known contract with SIFMA).

Until exclusives actually ask Alexander about the known thrust of this program, they’re going to help his credibility no more than the exclusives with the same journalists explaining NSA spying did.

The President Who Demanded Stanley McChrystal’s Resignation Is Not Sheltering the NatSec Bureaucracy

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As I have repeatedly noted, I think President Obama will protect John Brennan — and the CIA more generally — because of the mutual complicity built in between CIA and the White House over covert ops.

It’s not just that CIA knows the full details of the drone killings Obama authorized on his sole authority. It’s also that the CIA is still protecting the Office of the Presidency’s role in torture by withholding from the Senate documents over which the White House might — but did not formally — claim Executive Privilege. Obama did the same thing when he went to some lengths to prevent a very short phrase making it clear torture was Presidentially-authorized from being released in 2009; it wasn’t just the Finding that still authorized his drone strikes the President was protecting, but the Office that George Bush sullied by approving torture.

I also think Obama will stand by Brennan because they have worked closely so long Brennan is one of Obama’s guys.

Bloomberg View’s Jonathan Bernstein doesn’t agree, however. After dismissing Conor Friedersdorf’s version of the mutual incrimination argument, he suggests Obama is simply demonstrating to the national security bureaucracy he’s on their side.

Obama is concerned -– in my view, overly so -– with demonstrating to the intelligence bureaucracy, the broader national security bureaucracy, and the bureaucracy in general, that he is on their side. The basic impulse to stand up for the people he appointed isn’t a bad one; nor is the impulse to demonstrate to the intelligence community that he is no wild-eyed peacenik softie who opposes the work they do. For one thing, he’s more likely to effect change in national security areas if experts in the government believe he’s at least sympathetic to them as individuals and to their basic goals, even if he questions some of the George W.Bush-era (or earlier) methods. For another, the ability of bureaucrats to hurt the president with leaks doesn’t depend on the existence of deep dark secrets. Every president is vulnerable to selective leaks and a drumbeat of steady negative interpretations from the bureaucracy.

And yet, overdoing support for the bureaucracy can have severe costs. On torture, for example, emphasizing the good intentions of those faced with difficult choices during the last decade makes sense. But failing to take action, and leaving bureaucrats with serious liabilities because the status of their past actions is unresolved, only may have made reassuring them of presidential support increasingly necessary. That’s not a healthy situation.

Again: some of the incentive to (at least at first) stand up for presidential appointees is inherent in the presidency, and a healthy thing to do even when the president believes people have misbehaved and should go. But throughout his presidency, Obama has been overly skittish when it comes to potentially crossing his national security bureaucracy, and I strongly suspect that torture and other Bush-era abuses are both part of the original cause and will cause more of that timidity down the road.

Obama has been overly skittish when it comes to crossing his NatSec bureaucracy?

First, as I have already noted, Obama was perfectly happy demanding David Petraeus’ resignation for fucking his biographer. While I have my doubts whether that was really the reason — and while by firing him, Obama undercut a potential 2012 rival — he didn’t shy away from firing a man with some of the best PR in DC.

You might also ask the 19 top Generals and Admirals Obama has fired (most with the help of Bob Gates; also note the 20th on this list is Petraeus) — so many that conservatives accuse him of “purging” — whether he’s squeamish about crossing the NatSec bureaucracy. And while Micah Zenko’s comment on Twitter is correct that intelligence officials have largely escaped this treatment, Obama seemed happy to use  Michael Leiter’s National Counterterrorism Center’s failure to stop the UndieBomb attack to fire then Director of National Intelligence Dennis Blair.

President Obama is not a man afraid to fire members of the national security bureaucracy.

The starkest contrast with Brennan’s treatment comes from the case of Stanley McChrystal.

Obama demanded McChrystal’s resignation not because his night raids were exacerbating extremism in Afghanistan. Not because many service members felt he had left them exposed. Not because, even then, it was clear the surge in Afghanistan was going to fail.

Obama demanded McChrystal’s resignation because Michael Hastings exposed McChrystal and his top aides (including Michael Flynn, who quit in April because of differences on policy) being insubordinate. Obama demanded McChrystal’s resignation because doing so was necessary to maintain the primacy of civilian control — like separation of powers, one of the bedrocks ensuring national security doesn’t trump democracy.

That, to me, is the important takeaway from comparing McChrystal’s fate with Brennan’s.

When a top member of the national security bureaucracy challenged the control of the civilian executive, he got canned, appropriately, in my opinion.

But when the Director of the CIA permitted his Agency to strike at the core of the separation of powers by investigating its overseers, Obama offered his support. Obama may have fired a top general for threatening Executive authority, but he has supported a top aide after he threatened Legislative authority.

You can come up with any number of explanations why Obama did that. But being afraid of taking on his National Security bureaucracy — as distinct from taking on the intelligence agencies, as Obama chose not to do when Clapper lied or when Keith Alexander oversaw the leaking of the family jewels even while getting pwned in his core cyberdefense capacity — is not the explanation.

Obama has proven to have no qualms about upsetting his national security bureaucracy. Just that part of it run covertly.

If CyberCom Can’t Beat Reservists, Why Not Split NSA?

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ArmyTimes has a story about how CyberCommand service members took on a team of civilian reservists in a cyber war game last year, the civilians handed the active duty team their ass.

When the military’s top cyberwarriors gathered last year inside a secretive compound at Fort Meade, Maryland, for a classified war game exercise, a team of active-duty troops faced off against several teams of reservists.

And the active-duty team apparently took a beating.

“They were pretty much obliterated,” said one Capitol Hill staffer who attended the exercise. “The active-duty team didn’t even know how they’d been attacked.”

ArmyTimes uses the shellacking to raise questions about the mix between active duty and reservists CyberCommand should be using.

But it seems the exercise ought to also undermine one justification for keeping NSA’s Information Assurance Division, its spying, and CyberCommand unified.

One argument behind doing so is that’s the only way to make the appropriate measure of which vulnerabilities the government should sit on and exploit for their own spying and offensive capabilities, and which they should disclose and patch. The unified CyberCommander — first Keith Alexander and now Admiral Mike Rogers — are the only ones who can appropriately measure the trade-offs.

If the military hierarchy — and the article suggests the hierarchy is part of the problem — doesn’t serve the understanding of cyberwar very well, then how is the guy at the top of the hierarchy going to be best able to understand the trade-offs? If his subordinates don’t “even know they’d been attacked,” then how are they able to judge what exploits might be attackable?

Everything about this article, particularly the complementarity of the civilian and military skills it describes, suggests we’d be better served by having some who recognizes an attack as an attack in charge of keeping our networks safe.

How Much Does Keith Alexander’s Patented Solution for Creating Fear Depend on CISA?

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Keith Alexander has attempted to explain his million dollar salary demands for cyber consulting to Shane Harris. This story doesn’t necessary hang together any better than his claims about NSA’s spying.

Alexander is worth a million a month, he says (though he already dropped his price to $600K) because he has a unique approach to detecting persistent threats that he plans to patent.

The answer, Alexander said in an interview Monday, is a new technology, based on a patented and “unique” approach to detecting malicious hackers and cyber-intruders that the retired Army general said he has invented, along with his business partners at IronNet Cybersecurity Inc., the company he co-founded after leaving the government and retiring from military service in March.

Alexander developed the technologies behind these patents — which Alexander says would address precisely the kind of attacks he facetiously argues have carried out the greatest transfer of wealth in history, the ones attacking the US — in his spare time.

A source familiarly [sic] with Alexander’s situation, who asked not to be identified, said that the former director developed this new technology on his private time, and that he addressed any potential infractions before deciding to seek his patents.

To which Harris asked the obvious question: if this solution is so great, then why not implement it while he was still in government? Why not save America from that greatest transfer of wealth in history?

Alexander then added that his solution relies on behavioral analysis one of his partners contributed.

Alexander said that his new approach is different than anything that’s been done before because it uses “behavioral models” to help predict what a hacker is likely to do.

[snip]

Alexander said the key insight about using behavior models came from one of his business partners, whom he also declined to name, and that it takes an approach that the government hadn’t considered. It’s these methods that Alexander said he will seek to patent.

Perhaps the best (anonymous) quote Harris includes in his story is a “former national security official with decades of experience in security technology” who says such behavioral models are highly speculative and have never before worked. 

So it’s possible that Keith Alexander is simply going to sell his new approach to a bunch of chumps who have gotten rich trading off of algorithms — proof behavioral models “work” even if they don’t work! — and therefore believe they will work to find persistent threats.

The guy who couldn’t find Edward Snowden absconding with thousands of files and his friends the big banks are going to start policing their networks by using algos to find suspicious behavior.

Harris sort of alludes to one problem with this scheme. Alexander used his perch at DIRNSA to create this market. As Harris points out, that’s in part because Wiper — a variant of the StuxNet attack developed under Alexander’s tenure — is what the banks are so afraid of.

That will come as a supreme irony to many computer security experts, who say that Wiper is a cousin of the notorious Stuxnet virus, which was built by the NSA — while Alexander was in charge — in cooperation with Israeli intelligence.

That is, Alexander will get rich helping banks defeat the weapons he released in the first place.

More generally, too, this fear exists because Alexander sowed it. The banks are responding to the intelligence claims Alexander has been making for years, whether or not a real threat exists behind it (and whether not resilience would be a better defense than Alexander’s algos).

One more thing: as far as we know, in addition to inventing this purportedly new technology in his free time, Alexander was consulting with his partners — which as far as we know include Promontory Financial Group and Chertoff — while he was DIRNSA. So it’s not just the underlying technology, but the discussions of partnership, that likely derive from Alexander’s time at DIRNSA.

And that seems to be the fourth part of Alexander’s magic sauce (in addition to the tech developed on the government dime, his ability to sow fear, and partnerships laid out while still in the private sector). After all, with Alexander out of his NSA, where will he and his profitable partners get the data they need to model threats? How much of this model will depend on the Cyber Information sharing plan that Alexander has demanded for years? How much will Alexander’s privatized solutions to the problem he couldn’t solve at NSA depend on access to all the information the government has, along with immunity?

To what degree is CISA about making Keith Alexander rich?

 

Fact-Checking 9/11 Anniversary Report on Info and Dragnets with 9/11 Report

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In Salon, I point out something funny about the report released on Tuesday to mark the 10 year anniversary of the release of the 9/11 Commission report. The report says we must fight the “creeping tide of complacency.” But then it says the government has done almost everything the 9/11 Commission said it should do.

There is a “creeping tide of complacency,” the members of the 9/11 Commission warned in a report released on Tuesday, the 10-year anniversary of the release of their original report. That complacency extends not just to terrorism. “On issue after issue — the resurgence and transformation of al Qaeda, Syria, the cyber threat — public awareness lags behind official Washington’s.” To combat that “creeping tide of complacency,” the report argues, the government must explain “the evil that [is] stalking us.”

Meanwhile, the commissioners appear unconcerned about complacency with climate change or economic decline.

All that fear-mongering is odd, given the report’s general assessment of counterterrorism efforts made in the last decade. “The government’s record in counterterrorism is good,” the report judged, and “our capabilities are much improved.”

If the government has done a good job of implementing the 9/11 Commission recommendations but the terror threat is an order of magnitude worse now, as the report claims, then those recommendations were not sufficient to addressing the problem. Or perhaps the 13 top security officials whom the Commission interviewed did a slew of other things — like destabilizing Syria and Libya — that have undermined the apparatus of counterterrorism recommended by the original 9/11 Commission?

Which is a polite way of saying the 10-year report is unsatisfying on many fronts, opting for fear-mongering than another measured assessment about what we need to do to protect against terrorism.

Perhaps that’s because, rather than conduct the public hearings with middle-level experts, as it boasted it had done in the original report, it instead privately interviewed just the people who’ve been in charge for the last 10 years, all of whom have a stake in fear and budgets and several of whom now have a stake in profiting off fear-mongering?

Suffice it to say I’m unimpressed with the report.

Which brings me to this really odd detail about it.

The report takes a squishy approach to Edward Snowden’s leaks. It condemns his and Chelsea Manning’s leaks and suggests they may hinder information sharing. It also suggests Snowden’s leaks may be impeding recruiting for cybersecurity positions.

But it also acknowledges that Snowden’s leaks have been important to raising concerns about civil liberties — resulting in President Obama’s decision to impose limits on the Section 215 phone dragnet.

Since 2004, when we issued the report, the public has become markedly more engaged in the debate over the balance between civil liberties and national security. In the mid-2000s, news reports about the National Security Agency’s surveillance programs caused only a slight public stir. That changed with last year’s leaks by Edward Snowden, an NSA contractor who stole 1.7 million pages of classified material. Documents taken by Snowden and given to the media revealed NSA data collection far more widespread than had been popularly understood. Some reports exaggerated the scale of the programs. While the government explained that the NSA’s programs were overseen by Congress and the courts, the scale of the data collection has alarmed the public.

[snip]

[I]n March, the President announced plans to replace the NSA telephone metadata program with a more limited program of specific court-approved searches of call records held by private carriers. This remains a matter of contention with some intelligence professionals, who expressed to us a fear that these restrictions might hinder U.S. counterterrorism efforts in urgent situations where speedy investigation is critical.

Having just raised the phone dragnet changes, the report goes on to argue “these programs” — which in context would include the phone dragnet — should be preserved.

We believe these programs are worth preserving, albeit with additional oversight. Every current or former senior official with whom we spoke told us that the terrorist and cyber threats to the United States are more dangerous today than they were a few years ago. And senior officials explained to us, in clear terms, what authorities they would need to address those threats. Their case is persuasive, and we encountered general agreement about what needs to be done.

Senior leaders must now make this case to the public. The President must lead the government in an ongoing effort to explain to the American people—in specific terms, not generalities—why these programs are critical to the nation’s security. If the American people hear what we have heard in recent months, about the urgent threat and the ways in which data collection is used to counter it, we believe that they will be supportive. If these programs are as important as we believe they are, it is worth making the effort to build a more solid foundation in public opinion to ensure their preservation.

This discussion directly introduces a bizarre rewriting of the original 9/11 Report.

Given how often the government has falsely claimed that we need the phone dragnet because it closes a gap that let Khalid al-Midhar escape you’d think the 9/11 Commission might use this moment to reiterate the record, which shows that the government had the information it needed to discover the hijacker was in the US.

Nope.

It does, however, raise a very closely related issue: the FBI’s failure to discover Nawaf al Hazmi’s identity. Read more →

CISA: The Banks Want Immunity and a Public-Private War Council

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A group of privacy and security organizations have just sent President Obama a letter asking him to issue a veto threat over the Cybersecurity Information Sharing Act passed out of the Senate Intelligence Committee last week. It’s a great explanation of why this bill sucks and doesn’t do what it needs to to make us safer from cyberattacks. It argues that CISA’s exclusive focus on information sharing — and not on communications security more generally — isn’t going to keep us safe.

Which is why it really pays to look at the role of SIFMA — the Securities Industry and Financial Markets Association — in all this.

As I’ve noted, they’re the banksters whom Keith Alexander is charging big bucks to keep safe. As Bloomberg recently reported, Alexander has convinced SIFMA to demand a public-private cyber war council, involving all the stars of revolving door fearmongering for profit.

Wall Street’s biggest trade group has proposed a government-industry cyber war council to stave off terrorist attacks that could trigger financial panic by temporarily wiping out account balances, according to an internal document.

The proposal by the Securities Industry and Financial Markets Association, known as Sifma, calls for a committee of executives and deputy-level representatives from at least eight U.S. agencies including the Treasury Department, the National Security Agency and the Department of Homeland Security, all led by a senior White House official.

The trade association also reveals in the document that Sifma has retained former NSA director Keith Alexander to “facilitate” the joint effort with the government. Alexander, in turn, has brought in Michael Chertoff, the former U.S. Secretary of Homeland Security, and his firm, Chertoff Group.

Public reporting positions SIFMA as the opposition to the larger community of people who know better, embracing this public-private war council approach.

Kenneth Bentsen, chief executive at the Securities Industry and Financial Markets Association, said in a statement that leaders of the Senate Intelligence panel who wrote the bill have “taken a balanced and considered approach which will help the financial services industry to better protect our customers from cyber terrorists and criminals, as well as their privacy.”

According to the same banksters who crashed our economy 6 years ago, this bill is about protecting them at the expense of our privacy and rule of law.

And in their reply to Alan Grayson’s questions about WTF they’re paying Keith Alexander so handsomely for, SIFMA repeats this line (definitely click through to read about Quantum Dawn 2).

Cyber attacks are increasingly a major threat to our financial system. As such, enhancing cyber security is a top priority for the financial services industry. SIFMA believes we have an obligation to do everything possible to protect the integrity of our markets and the millions of Americans who use financial services every day.

[snip]

However, the threat increases every day. SIFMA and its members have undertaken additional efforts to develop cyber defense standards for the securities industry sector as a follow on to the recently published NIST standards. And we are developing enhanced recovery protocols for market participants and regulators in the event of an attack that results in closure of the equity and fixed income markets. We are undertaking this work in close collaboration with our regulators and recently held a meeting to brief them on our progress. And, we plan to increase our efforts even further as the risks are too great for current efforts alone.

We know that a strong partnership between the private sector and the government is the most efficient way to address this growing threat. Industry and investors benefit when the private sector and government agencies can work together to share relevant threat information. We would like to see more done in Congress to eliminate the barriers to legitimate information sharing, which will enable this partnership to grow stronger, while protecting the privacy of our customers.

This is not — contrary to what people like Dianne Feinstein are pretending — protecting the millions who had their credit card data stolen because Target was not using the cyberdefenses it put into place.

Rather, this is about doing the banksters’ bidding, setting up a public-private war council, without first requiring them to do basic things — like limiting High Frequency Trading — to make their industry more resilient to all kinds of attacks, from even themselves.

Meanwhile, if that’s not enough indication this is about the bankstsers, check out what Treasury Secretary Jack Lew is doing this afternoon.

In the afternoon, the Secretary will visit Verizon’s facilities in Ashburn, Virginia to discuss cybersecurity and highlight the important role of telecommunications companies in supporting the financial system. 

Just what we need: our phone provider serving the interests of the financial system first.

DiFi wants to make it easier to spy on Americans domestically to help private companies that have already done untold damage to Main Street America. We ought to be protecting ourselves from them, not degrading privacy to subsidize their insecure practices.

The Unaudited Tech Analyst Access to US Person Data

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In addition to its exposure of the sheer senselessness of much of the spying NSA engages in, yesterday’s WaPo story also shows that the government’s assurances that Edward Snowden could not access raw data have been misplaced.

For close to a year, NSA and other government officials have appeared to deny, in congressional testimony and public statements, that Snowden had any access to the material.

As recently as May, shortly after he retired as NSA director, Gen. Keith Alexander denied that Snowden could have passed FISA content to journalists.

“He didn’t get this data,” Alexander told a New Yorker reporter. “They didn’t touch —”

“The operational data?” the reporter asked.

“They didn’t touch the FISA data,” Alexander replied. He added, “That database, he didn’t have access to.”

Robert S. Litt, the general counsel for the Office of the Director of National Intelligence, said in a prepared statement that Alexander and other officials were speaking only about “raw” intelligence, the term for intercepted content that has not yet been evaluated, stamped with classification markings or minimized to mask U.S. identities.

“We have talked about the very strict controls on raw traffic, the training that people have to have, the technological lockdowns on access,” Litt said. “Nothing that you have given us indicates that Snowden was able to circumvent that in any way.”

In the interview, Snowden said he did not need to circumvent those controls, because his final position as a contractor for Booz Allen at the NSA’s Hawaii operations center gave him “unusually broad, unescorted access to raw SIGINT [signals intelligence] under a special ‘Dual Authorities’ role,” a reference to Section 702 for domestic collection and Executive Order 12333 for collection overseas. Those credentials, he said, allowed him to search stored content — and “task” new collection — without prior approval of his search terms.

No one should ever have believed those assurances.

That’s because the documentation on the Section 215 program makes it clear how little oversight there is over tech people just like Snowden. The current phone dragnet order, for example, makes it clear that:

  • Tech personnel may access the phone dragnet data to tweak it in preparation for contact-chaining
  • Unlike intelligence analysts, tech personnel may query the phone dragnet data with selectors that have not been RAS-approved
  • Tech personnel may also conduct regular queries using RAS-approved selectors
  • Tech personnel may access the dragnet data to search for high volume numbers — this may require access to raw data
  • Some of the tech personnel (those in charge of infrastructure and receiving data from the telecoms) are exempt from special training on the phone dragnet data

The audit language in the dragnet order applies only to “foreign intelligence analysis purposes or using foreign intelligence analysis tools,” suggesting the tech analysis role access to the dragnet data is not audited.

Language in the order defining “NSA” suggests contractors may access the data (though it’s unclear whether they do so in a technical or intelligence analysis function); something made explicit in Dianne Feinstein’s bill.

That is, it is at least possible that Booz analysts are currently conducting audit-free tech massaging of the raw phone dragnet data.

And NSA knew this access was a vulnerability. As recently as 2012, tech analysts were found to have 3,000 files worth of phone dragnet data (it’s unclear how much data each file included) on an improper server past its required destruction date. NSA destroyed that data before definitively researching what it was doing there.

Thus, the risk of tech analyst breach is very real, and no one — not NSA, and not Congress, which has only codified this arrangement — seems to be addressing it.

Indeed, it is likely that some kind of Booz-type contractors will continue to have direct access to this data after it gets outsourced to the telecoms, otherwise USA Freedumber would not extend immunity to such second-level contractors.

For months, intelligence officials claimed not only that Snowden had not accessed raw data, but could not. That was always a dubious claim; even if Snowden couldn’t have accessed that data, other contractors just like him could and still can, with less oversight than NSA’s intelligence analysts get.

But it turns out Snowden could and did. And thanks to that, we now know many of the other claims made by government witnesses are also false.

Alan Grayson: Is Keith Alexander Selling Classified Information to the Banks?

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I’ve been tracking Keith Alexander’s utterly predictable new gig, getting rich off of having drummed up cybersecurity concerns for the last several years, while at the same time shacking up with the most dubious of shadow bank regulators, Promontory Financial Group.

Apparently, I’m not the only one. Alan Grayson just sent some of the entities that Alexander has been drumming up business with — the Security Industries and Financial Markets Association, Consumer Bankers Association, and Financial Services Roundtable — a letter asking how the former NSA Director can be making a reported $600,000 a month. He cites Bruce Schneier wondering whether part of the deal is that Alexander will share classified information he learned while at NSA.

Security expert Bruce Schneier noted that this fee for Alexander’s services is on its face unreasonable. “Think of how much actual security they could buy with that $600K a month.Unless he’s giving them classified information.” Schneier also quoted Recode.net, which headlined this news as: “For another million, I’ll show you the back door we put in your router.”

[snip]

Disclosing or misusing classified information for profit is, as Mr. Alexander well knows, a felony. I question how Mr. Alexander can provide any of the services he is offering unless he discloses or misuses classified information, including extremely sensitive sources and methods. Without the classified information that he acquired in his former position, he literally would have nothing to offer to you.

Please send me all information related to your negotiations with Mr. Alexander, so that Congress can verify whether or not he is selling military and cybersecurity secrets to the financial services industry for personal gain.

Alexander is just the latest of a long line of people who profit directly off driving up the cybersecurity threat. But — as Recode.net notes — he’s also got the kind of inside information that could be particularly valuable.

As the Intelligence Industrial Complex and the Banking industry hop into bed together, there ought to be some transparency about just what kind of deals are being made. There’s simply too much immunity handed out to this community to let boondoggles like Alexander’s slide.

The intelligence community is subjecting every low level clearance holder to intense scrutiny right now. But thus far, there has not been a peep from those quarters that the former DIRNSA could command these fees for the expertise gained while overseeing the nation’s secrets.