Last week, the Senate Judiciary Committee had a hearing on Electronic Communication Privacy Act reform, the main goal of which is to provide protection for content served on a third party’s server. Because reform is looking more inevitable in Congress (the House version of the bill has more sponsors than any other), government agencies used the hearing as an opportunity to present their wish list for the bill. That includes asking for an expansion of the status quo for civil agencies, with witnesses from SEC, DOJ, and FTC testifying (DOJ also made some other requests that I hope to return to).
Effectively, the civil agencies want to create some kind of court order that will provide them access to stored content. A number of the agencies’ witnesses — especially SEC’s Andrew Ceresney — claimed that a warrant is the same as an order, which culminated in Sheldon Whitehouse arguing (after 45:30) that an order requiring court review is actually less intrusive than a warrant because the latter is conducted ex parte.
It took until CDT policy counsel (and former ACLU lawyer) Chris Calabrese to explain why that’s not true (after 2:08):
We have conflated two really different and very different things in this committee today. One is a court, some kind of court based on a subpoena and one is a probable cause warrant. These are not the same thing. A subpoena gives you access to all information that is relevant. As pursuant, relevant to a civil investigation, a civil infraction. So if you make a mistake on your taxes, that’s a potential civil infraction. Nothing that has been put forward by the SEC would do anything but be a dramatic expansion of their authority to get at ordinary people’s in-boxes. Not just the subjects of investigation, but ordinary folks who may be witnesses. Those people would have the–everything in their in-boxes that was relevant to an investigation, so a dramatic amount of information, as opposed to probable cause of evidence of a crime. That’s a really troubling privacy invasion.
I’m utterly sympathetic with Calabrese’s (and the EFF’s) argument that the bid for some kind of civil investigative order is a power grab designed to bypass probable cause.
But I wonder whether there isn’t another kind of power grab going on as well — a bid to force banks to be investigated in a certain kind of fashion.
It was really hard, to begin with, to have former and (presumably) future Debevoise & Plimpton white collar defense attorney Andrew Ceresney to talk about how seriously SEC takes it job of “the swift and vigorous pursuit of those who have broken the securities laws through the use of all lawful tools available to us,” as he said in his testimony and during the hearing. There’s just been no evidence of it.
Moreover, as Ceresney admitted, SEC hasn’t tried to obtain email records via an order since the US v. Warshak decision required a warrant in the 6th Circuit, even though SEC believes its approach — getting an order but also providing notice to the target — isn’t governed by Warshak. As SEC Chair Mary Jo White (another revolving door Debevoise & Plimpton white collar defense attorney) said earlier this year,
“We’ve not, to date, to my knowledge, proceeded to subpoena the ISPs,” White said. “But that is something that we think is a critical authority to be able to maintain, done in the right way and with sufficient solicitousness.”
For five years, the SEC hasn’t even tried to use this authority, all while insisting they needed it — even while promising they would remain “solicitous,” if there were any worries about that.
Claims that the SEC needed such authority might be more convincing if SEC was actually pursuing crooks, but there’s little evidence of that.
Which is why I’m interested in this passage, from a letter White sent to Pat Leahy in April 2013 and appended to Ceresney’s testimony, explaining why SEC can’t have DOJ obtain orders for this material.
DOJ only has authority to seek search warrants to advance its own investigations, not SEC investigations. Thus, the Commission cannot request that the DOJ apply for a search warrant on the SEC’s behalf. Second, many SEC investigations of potential civil securities law violations do not involve a parallel criminal investigation, and thus there is no practical potential avenue for obtaining a search warrant in those cases. The large category of cases handled by the SEC without criminal involvement, however, have real investor impact, and are vital to our ability to protect- and, where feasible, make whole – harmed investors.
The only times when SEC would need their fancy new order is if the subject of an investigation refuses to turn information voluntarily, and the threat that they could obtain an order anyway is, according to Ceresney, they key reason SEC wants to maintain this authority (though he didn’t argue the apparent absence of authority has been responsible for SEC’s indolence over the last 5 years). But that act, refusing to cooperate, would get companies more closely into criminal action and — especially under DOJ’s purportedly new policy of demanding that companies offer up their criminal employees — into real risk of forgoing any leniency for cooperation. But White is saying (or was, in 2013, when it was clear Eric Holder’s DOJ wasn’t going to prosecute) that SEC can’t ask DOJ to subpoena something because that would entail a potentially criminal investigation.
Well yeah, that’s the point.
Then add in the presumption here. One problem with prosecuting corporations is they hide their crimes behind attorney-client and trade secret privileges. I presume that’s partly what Sally Yates meant in her new “policy” memo, noting that investigations require a “painstaking review of corporate documents … which may be difficult to collect because of legal restrictions.” SEC’s policy would be designed for maximal privilege claims, because it would involve the subject in the process.
If the legislation were so structured, an individual would have the ability to raise with a court any privilege, relevancy, or other concerns before the communications are provided by an ISP, while civil law enforcement would still maintain a limited avenue to access existing electronic communications in appropriate circumstances from ISPs.
Other criminals don’t get this treatment. Perhaps the problems posed by financial crime — as well as the necessity for broader relevancy based evidence requests — are unique, though I’m not sure I buy that.
But that does seem to be a presumption behind this SEC power grab: retention of the special treatment financial criminals get that has thus far resulted in their impunity.
I say bizarre because Vladeck complains that Paul “seize[d] the national spotlight in order to focus everyone’s attention on a hyper-specific question” — that of the Section 215 dragnet — when Vladeck has, at this late date, joined those of us who have long been pushing a focus on broader issues, specifically EO 12333 and Section 702. To support his claim that Paul is singularly focused on Section 215, Vladeck links to a second-hand report of a sentence in Paul’s campaign announcement, rather than to the announcement itself which (while more muddled than in other statements where Paul has named EO 12333 directly) invokes surveillance authorized by Executive Order, not the PATRIOT Act.
The president created this vast dragnet by executive order. And as president on day one, I will immediately end this unconstitutional surveillance.
Contrary to Vladeck’s miscitation, in this and other comments, Paul seized the national spotlight, in significant part, to talk about the broader issues, specifically EO 12333 and Section 702, that those pushing USA F-ReDux had set aside for future fights. Indeed, big parts of Paul’s filibuster speech — including his 10 and Ron Wyden’s 2 references to EO 12333 and his 18 and Wyden’s 3 references to 702 — sounds a lot like Vladeck’s series of posts worrying that this will be the only shot at reform and therefore regretting that we didn’t talk about the bigger issues as part of it.
Another deficiency of the USA FREEDOM Act is that it does not address bulk collection under Executive Order 12333. The bill also fails to address bulk collection under section 702 of the FISA Amendments Act.
One could say: What are you complaining about? You are getting some improvement. You still have problems, but you are getting some improvement.
I guess my point is that we are having this debate, and we don’t have it very often. We are having the debate every 3 years, and some people have tried to make this permanent, where we would never have any debate. Even though we are only having it every3 years, it is still uncertain whether I will be granted any amendments to this bill.
So, yes, I would like to address everything while we can. I think we ought to address section 702. I think we ought to–for goodness’ sake, why won’t we have some hearings on Executive Order 12333? I think they may be having them in secret, but I go back to what Senator Wyden said earlier. I think the principles of the law could be discussed in public. We don’t have to reveal how we do stuff. Do we think anybody in the world thinks we are not looking at their stuff? Why don’t we
explore the legality and the law of how we are doing it as opposed to leaving it unsaid and unknown in secret?
In other words, unlike the drone filibuster Vladeck points to as proof of “libertarian hijacking” — where Paul definitely defined his terms narrowly (but in a later iteration did succeed in getting more response from Jim Comey than Ron Wyden making demands) — Paul was arguing for precisely what Vladeck said we should be arguing about. He just has cooties, I guess is the substance of Vladeck’s argument, so Vladeck doesn’t want him as an ally.
Equally bizarre is Vladeck’s claim that, “it was the very same Senator Paul who all-but-singlehandedly torpedoed the Leahy bill back in November, helping to force the entirely unnecessary political and legal brinkmanship of the past week.” That’s bizarre because, as a matter of fact, Paul did not “singlehandedly” torpedo the bill; Bill Nelson played an equal role (and that’s even assuming the bill had enough votes to pass, which given that I know of 1 pro-cloture vote who was a no vote on passage and a significant number who weren’t committed to vote for it without improving amendment, was never a foregone conclusion). It’s easy to blame Paul because it absolves whoever it was that whipped a bill but didn’t even count all the Democratic votes on it, but Paul was in no way singlehandedly responsible.
But the view all the more bizarre, coming from Vladeck, because if Paul singlehandedly torpedoed the bill (he didn’t) he also singlehandedly made the 2nd Circuit ruling for ACLU possible (he didn’t, but that is Vladeck’s logic). And unlike most USA F-ReDux champions, Vladeck has been very attentive– if, at times, arguably mistaken in his understanding of it — to the interaction of USA F-ReDux legislation and the courts. While USA F-ReDux is — important additional Congressional reporting requirements on PRTT and bulky 215 collection notwithstanding — definitely a worse bill than its predecessor, that’s not the measure. So long as the 2nd Circuit decision ruling against “relevant to” and finding a Fourth Amendment interest at the moment of collection rather than review stands (the government still has a few weeks to challenge it), the measure is USA F-ReDux plusthe 2nd Circuit decision as compared to USAF without the additional leverage of an appellate court ruling. There are very important things the 2nd Circuit decision may add to USA F-ReDux. Every commenter is entitled to weigh that measure themselves, but if you’re going to hold Paul responsible for torpedoing the legislation last fall you also have to credit him with buying time so the 2nd Circuit could weigh in.
Which brings me to leverage.
I was not a fan of any version of USAF because all left every key provision save the CDR function (and even some of that was left dangerously open to interpretation until HJC wrote its final bill report) subject to the whim of the Executive and/or the FISC, and the bill itself jettisoned necessary leverage over the Executive (Vladeck has written about the gutting of the FISC advocate, and a parallel gutting has happened on transparency provisions from the start). That is, rather than exercise some kind of authority over the Executive, Congress basically wrote down what the Executive wanted and passed it in a way that the Executive still had a lot of leeway to decide what it wanted to do.
I get why that happened and I don’t mean to diminish the work of those who pushed for more: the votes and leadership buy-in simply isn’t there yet to actually start limiting what Article II will do in secret.
But that means none of the other things Vladeck wants will be possible until we get more leverage. And while the outcome of the bill may be the same and/or worse, what is different about the passage of USA F-ReDux is that leadership in both house of Congress barely kept it together.
And Rand Paul, whether he has cooties or not, was key to that process.
That’s true, in large part, because Mitch McConnell was aiming to set up an urgent crisis as a way to scare people into making the bill worse. He succeeded in doing so by delaying consideration of the bill until the last minute, but when Paul — and Ron Wyden and Martin Heinrich — prevented him from getting a short-term extension to do so without lapsing the dragnet, that changed the calculus of the crisis. It meant those who had bought into the idea you need a dragnet to keep the country safe could be pressured to vote against McConnell’s efforts to weaken USA F-ReDux. (Note, there are some who have claimed that Paul objected to immediately considering USA F-ReDux Sunday night, giving McConnell his opportunity to amend the bill, but the congressional record doesn’t support that; McConnell didn’t call for immediate consideration of the bill itself until he had already filled the tree with amendments.)
And while I don’t want to minimize the utterly crucial efforts of Mike Lee to actually whip the vote, that effort was made easier by the very real threat that if the bill had to go back to the House it would die, resulting in a more permanent lapse to Section 215 and the other expired authorities. Leahy and others used that threat repeatedly, in fact, to argue that surveillance hawks needed to support an amended bill. And the threat was heightened because John Boehner had real worries that if he tried something funny, his own leadership would be at risk.
Last year, the privacy community was mostly fighting with carrots against an Executive branch that was dictating what it was willing to give up. Now, it’s fighting with carrots and sticks. We haven’t gotten the Executive branch to give up anything it didn’t already want to give up yet. But having dealt McConnell a big defeat and having the threat to do so with Boehner might make that possible going forward.
Having someone like Rand Paul, who is not afraid to be accused of having cooties, to make that possible is a critical part of that process. That doesn’t negate the efforts of anyone else (again, I’m really encouraged by Mike Lee’s role in all this). But it does mean people holding carrots but demanding things that will only be obtained with some sticks, too, ought not to dismiss the efforts to make the threat of a stick real.
Now that the Section 215 Sunset draws nearer, the debate over what reformers should do has shifted away from whether USA Freedom Act is adequate reform to whether it is wise to push for Section 215 to sunset.
That debate, repeatedly, has focused almost entirely on the phone dragnet that Section 215 authorizes. It seems most of the people engaging in this debate or reporting on it are unaware or uninterested in what the other roughly 175 Section 215 orders authorized last year did (just 5 orders authorized the phone dragnet).
But if Section 215 sunsets in June, those other 175 orders will be affected too (though thus far it looks like FISC is approving fewer 215 orders than they did last year). Yet the government won’t tell us what those 175 orders do.
We know — or suspect — some of what these other orders do. NYT and WSJ reported on a Western Union dragnet that would probably amount to 4-5 orders a year (and would have been unaffected and hidden in transparency reporting under USA Freedom Act).
The FBI has previously confirmed that it used Section 215 to collect records of explosives precursors — things like large quantities of acetone, hydrogen peroxide, fertilizer, and (probably now) pressure cookers; given that the Presidential Review Group consulted with ATF on its review of Section 215, it’s likely these are programmatic collection. (If the government told us it was, we might then be able to ask why these materials couldn’t be handled the same way Sudafed is handled, too, which might force the government to tie it more closely to actual threats.) This too would have been unaffected by USAF.
The government also probably uses Section 215 to collect hotel records (which is what it was originally designed for, though not in the bulk it is probably accomplished). This use of Section 215 will likely be reinforced if and when SCOTUS affirms the collection of hotel records in Los Angeles v. Patel.
But the majority of those 175 Section 215 orders, we now know, are for some kind of Internet records that may or may not relate to cyber investigations, depending on whether you think FBI talks out of its arse when trying to keep authorities, but which they almost certainly collect in sufficient bulk that FISC imposed minimization procedures on FBI.
Which brings me to my argument that reauthorizing Section 215 will forestall any ECPA reform.
We know most Section 215 orders are for Internet records because someone reliable — DOJ’s Inspector General in last year’s report on National Security Letters — told us that a collection of Internet companies successfully challenged FBI’s use of NSLs to collect this stuff after DOJ published an opinion on ECPA in 2008.
The decision of these [redacted] Internet companies to discontinue producing electronic communication transactional records in response to NSLs followed public release of a legal opinion issued by the Department’s Office of Legal Counsel (OLC) regarding the application of ECPA Section 2709 to various types of information. The FBI General Counsel sought guidance from the OLC on, among other things, whether the four types of information listed in subsection (b) of Section 2709 — the subscriber’s name, address, length of service, and local and long distance toll billing records — are exhaustive or merely illustrative of the information that the FBI may request in an NSL. In a November 2008 opinion, the OLC concluded that the records identified in Section 2709(b) constitute the exclusive list of records that may be obtained through an ECPA NSL.
Although the OLC opinion did not focus on electronic communication transaction records specifically, according to the FBI, [redacted] took a legal position based on the opinion that if the records identified in Section 2709(b) constitute the exclusive list of records that may be obtained through an ECPA NSL, then the FBI does not have the authority to compel the production of electronic communication transactional records because that term does not appear in subsection (b).
That report went on to explain that FBI considered fixing this problem by amending the definition for toll records in Section 2709, but then bagged that plan and just moved all this collection to Section 215, which takes longer.
In the absence of a legislative amendment to Section 2709, [2.5 lines redacted]. [Deputy General Counsel of FBI’s National Security Law Branch] Siegel told us that the process of generating and approving a Section 215 application is similar to the NSL process for the agents and supervisors in the field, but then the applications undergo a review process in NSLB and the Department’s National Security Division, which submits the application to the Foreign Intelligence Surveillance Court (FISA Court). According to Siegel, a request that at one time could be accomplished with an NSL in a matter of hours if necessary, now takes about 30-40 days to accomplish with a standard Section 215 application.
In addition to increasing the time it takes to obtain transactional records, Section 215 requests, unlike NSL requests, require the involvement of FBI Headquarters, NSD, and the FISA Court. Supervisors in the Operations Section of NSD, which submits Section 215 applications to the FISA Court, told us that the majority of Section 215 applications submitted to the FISA Court [redacted] in 2010 and [redacted] in 2011 — concerned requests for electronic communication transaction records.
The NSD supervisors told us that at first they intended the [3.5 lines redacted] They told us that when a legislative change no longer appeared imminent and [3 lines redacted] and by taking steps to better streamline the application process.
The government is, according to the report, going through all sorts of hoop-jumping on these records rather than working with Congress to pass ECPA reform.
That’s not all the Report told us. Even earlier than that problem, in 2007, the IG identified other uncertainties about what the FBI should be obtaining with an NSL, and FBI actually put together a proposal to Congress. The proposed definition included both financial information and what could be construed as location data in toll records. That bill has never been passed.
But while Internet companies have shown reluctance to let the FBI secretly expand the meaning of toll record, two telecoms have not (a third, which I suspect is Verizon, backed out of closer cooperation on NSLs in 2009, and presumably a fourth, which probably is T-Mobile, was never a part of it).
And here’s what happened to the kinds of records FBI has been obtaining (almost certainly from AT&T) in the interim:
FBI is collecting 7 kinds of things from (probably) AT&T that the Inspector General doesn’t think fits under ECPA.
Now, I’m not sure precisely why ECPA reform has gone nowhere in the last 8 years, but all this redaction suggests one reason is the government doesn’t want to be bound by a traditional definition of toll record, so much so it’s willing to put up with the aggravation of getting Section 215 orders for (what may be the same kind of) information from Internet companies in order to not be bound by limits on its telecom (or at least AT&T) NSLs.
Don’t get me wrong. I’d rather have the Internet stuff be under Section 215 orders, where it will be treated with some kind of minimization (the FBI is still completely ignoring the 2006 language in Section 215 requiring it to adopt minimization procedures for that section, but FISC has stepped into the void and imposed some itself).
But ultimately what’s going on — in addition to the adoption of a dragnet approach for phone records (that might have been deemed a violation of 18 USC 2302-3 if litigated with an adversary) and financial records (that might have been deemed a violation of 12 USC 3401-3422 if litigated with an adversary), is that the government is also, apparently, far exceeding the common understanding of NSLs without going back to Congress to get them to amend the law (and this goes well beyond communities of interest — two or maybe three hop collection under an NSL — which isn’t entirely redacted in this report).
It may be moot anyway. I actually wonder whether Internet companies will use the immunity of CISA, if and when it passes, to turn whatever they’re turning over without a Section 215 order.
And it’s not like Pat Leahy and Mike Lee have been successful in their efforts to get ECPA reform that protects electronic communications passed. ECPA isn’t happening anyway.
But maybe it might, if Section 215 were to lapse and the government were forced to stop kluging all the programs that have never really been approved by Congress in the first place into Section 215.
There has been a lot of belated attention to the impact that Mark Udall’s loss yesterday will have on the Senate Intelligence Committee. I’ve been pointing to the possibility of a Udall loss and a Richard Burr Chairmanship since March. I warned you all of this when there was still time to do something about it!
Yesterday’s election will have huge impact on intelligence matters. It’s crystal clear, for example, that Burr has zero intention of exercising any oversight into the intelligence community, as we know he has been uninterested in their law-breaking in the past. I actually think Burr may be more interested in their competence than Feinstein has been, but that may be just a pipe-dream.
Burr might even be the very very rare Gang of Four member who doesn’t use the position to leak what the intelligence community wants to make public to the press. I say that because Burr was a key player in requiring the White House to provide the committees a list of sanctioned leaks, which I actually think was a badly needed reform (though I have no idea whether the White House has complied).
There’s also the matter of the 3 or 4 new Republicans that will gain seats on the Intelligence Committee (adding at least one for the majority, along with replacing Saxby Chambliss and Tom Coburn, both of whom retired). It’d be nice to see a libertarian among these — perhaps someone like Mike Lee, given that Utah has a lot of intelligence equities. But I highly doubt Mitch McConnell would put anyone with an interest in civil liberties on the Committee.
But there is one area where yesterday’s shellacking might harbor good news for civil liberties: Thad Cochran.
With Republicans in the majority, Barb Mikulski (D-NSA) will lose her Chairmanship of the Appropriations Committee; Cochran is expected to get that Chair. Mikulski has always been — even more than Dianne Feinstein — the impediment to any real civil liberties change in the Senate, because she is far more powerful. Importantly, she served as a guarantee that smart policies put through on appropriations bills — like Alan Grayson’s elimination of a requirement that NIST consult with the NSA on encryption standards, and the Massie-Lofgren amendment to defund back door searches — would not make it into any final bill.
Losing the majority, even losing Mikulski on Appropriations on all other matters, is a huge loss, don’t get me wrong.
But it does mean that Thad Cochran might, just maybe, allow good things to move through the Senate on appropriations. With Barb Mikulski there was no chance in hell of doing something on an appropriations bill. Without her, there’s at least a possibility. (Remember that Ted Stevens permitted a Ron Wyden amendment defunding TIA to go through appropriations in 2003, so such things are not unheard of.)
There’s no reason to believe that Cochran, in general, is any friendlier to civil liberties than Mikulski. But he’s not the NSA’s own personal senator. And that may be a tiny bright spot.
Now that I’ve finally got around to reading the so-called transparency provisions in Patrick Leahy’s USA Freedom Act, I understand that one purpose of the bill, from James Clapper’s perspective, is to get Congress to ratify some kind of financial dragnet conducted under Section 215.
As I’ve laid out in detail before, there’s absolutely no reason to believe USA Freedom Act does anything to affect non-communications collection programs.
That’s because the definition of “specific selection term” permits (corporate) persons to be used as a selector, so long as they aren’t communications companies. So Visa, Western Union, and Bank of America could all be used as the selector; Amazon could be for anything not cloud or communications-related. Even if the government obtained all the records from these companies — as reports say it does with Western Union, at least — that would not be considered “bulk” because the government defines “bulk” as collection without a selector. Here, the selector would be the company.
And as I just figured out yesterday, the bill requires absolutely no individualized reporting on traditional Section 215 orders that don’t obtain communications. Here’s what the bill requires DNI to report on traditional 215 collection.
(D) the total number of orders issued pursuant to applications made under section 501(b)(2)(B) and a good faith estimate of—
(i) the number of targets of such orders;
(ii) the number of individuals whose communications were collected pursuant to such orders; and
(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;
(3) INDIVIDUAL WHOSE COMMUNICATIONS WERE COLLECTED.—The term ‘individual whose communications were collected’ means any individual—
(A) who was a party to an electronic communication or a wire communication the contents or noncontents of which was collected; or
(B)(i) who was a subscriber or customer of an electronic communication service or remote computing service; and
(ii) whose records, as described in subparagraph (A), (B), (D), (E), or (F) of section 2703(c)(2) of title 18, United States Code, were collected.
Thus, the 215 reporting only requires the DNI to provide individualized reporting on communications related orders. It requires no individualized reporting at all on actual tangible things (in the tangible things provision!). A dragnet order collecting every American’s Visa bill would be reported as 1 order targeting the 4 or so terrorist groups specifically named in the primary order. It would not show that the order produced the records of 310 million Americans.
I’m guessing this is not a mistake, which is why I’m so certain there’s a financial dragnet the government is trying to hide.
Under the bill, of course, Visa and Western Union could decide they wanted to issue a privacy report. But I’m guessing if it would show 310 million to 310,000,500 of its customers’ privacy was being compromised, they would be unlikely to do that.
So the bill would permit the collection of all of Visa’s records (assuming the government could or has convinced the FISC to rubber stamp that, of course), and it would hide the extent of that collection because DNI is not required to report individualized collection numbers.
But it’s not just the language in the bill that amounts to ratification of such a dragnet.
As the government has argued over and over and over, every time Congress passes Section 215’s “relevant to” language unchanged, it serves as a ratification of the FISA Court’s crazy interpretation of it to mean “all.” That argument was pretty dodgy for reauthorizations that happened before Edward Snowden came along (though its dodginess did not prevent Clare Eagan, Mary McLaughlin, and William Pauley from buying it). But it is not dodgy now: Senators need to know that after they pass this bill, the government will argue to courts that it ratifies the legal interpretations publicly known about the program.
While the bill changes a great deal of language in Section 215, it still includes the “relevant to” language that now means “all.” So every Senator who votes for USAF will make it clear to judges that it is the intent of Congress for “relevant to” to mean “all.”
And it’s not just that! In voting for USAF, Senators would be ratifying all the other legal interpretations about dragnets that have been publicly released since Snowden’s leaks started.
That includes the horrible John Bates opinion from February 19, 2013 that authorized the government to use Section 215 to investigate Americans for their First Amendment protected activities so long as the larger investigation is targeted at people whose activities aren’t protected under the First Amendment. So Senators would be making it clear to judges their intent is to allow the government to conduct investigations into Americans for their speech or politics or religion in some cases (which cases those are is not entirely clear).
That also includes the John Bates opinion from November 23, 2010 that concluded that, “the Right to Financial Privacy Act, … does not preclude the issuance of an order requiring the production of financial records to the Federal Bureau of Investigation (FBI) pursuant to the FISA business records provision.” Given that Senators know (or should — and certainly have the ability to — know) about this before they support USAF, judges would be correct in concluding that it was the intent of Congress to permit the government to collect financial records under Section 215.
So Senators supporting this bill must realize that supporting the bill means they are supporting the following:
That is, Senators supporting this bill are not only supporting a possible financial dragnet, but they are helping the government hide the existence of it.
I can’t tell you what the dragnet entails. Perhaps it’s “only” the Western Union tracking reported by both the NYT and WSJ. Perhaps James Cole’s two discussions of being able to collect credit card records under this provision means they are. Though when Leahy asked him if they could collect credit card records to track fertilizer purchases, Cole suggested they might not need everyone’s credit cards to do that.
Leahy: But if our phone records are relevant, why wouldn’t our credit card records? Wouldn’t you like to know if somebody’s buying, um, what is the fertilizer used in bombs?
Cole: I may not need to collect everybody’s credit card records in order to do that.
If somebody’s buying things that could be used to make bombs of course we would like to know that but we may not need to do it in this fashion.
We don’t know what the financial dragnet is. But we know that it is permitted — and deliberately hidden — under this bill.
Below the rule I’ve put the names of the 18 Senators who have thus far co-sponsored this bill. If one happens to be your Senator, it might be a good time to urge them to reconsider that support.
Patrick Leahy (202) 224-4242
Mike Lee (202) 224-5444
Dick Durbin (202) 224-2152
Dean Heller (202) 224-6244
Al Franken (202) 224-5641
Ted Cruz (202) 224-5922
Richard Blumenthal (202) 224-2823
Tom Udall (202) 224-6621
Chris Coons (202) 224-5042
Martin Heinrich (202) 224-5521
Ed Markey (202) 224-2742
Mazie Hirono (202) 224-6361
Amy Klobuchar (202) 224-3244
Sheldon Whitehouse (202) 224-2921
Chuck Schumer (202) 224-6542
Bernie Sanders (202) 224-5141
Cory Booker (202) 224-3224
Bob Menendez (202) 224-4744
Sherrod Brown (202) 224-2315
Don’t look for this important bit of news in the New York Times or Washington Post. At least at the time I started writing this, they hadn’t noticed that Senators Jeff Merkley, (D-OR), Mike Lee (R-UT), Joe Manchin (D-WV), and Rand Paul (R-KY) put out a press release yesterday calling for a Congressional vote on whether to authorize keeping US troops in Afghanistan beyond 2014. President Barack Obama and the Pentagon have been bargaining with Afghan President Hamid Karzai for over a year now to get a Bilateral Security Agreement that will authorize keeping US troops there after the current NATO mission officially ends at the end of this year, but we have heard almost nothing at all from Congress. Well, we did have some hypocrisy tourists calling for Karzai to sign the agreement immediately or suffer the financial consequences, but they didn’t call for using their Constitutional role in authorizing use of troops.
This bipartisan group had some pretty strong language about the push to exclude Congress from the decision-making on keeping troops in Afghanistan:
Today, Senators Jeff Merkley (D-OR), Mike Lee (R-UT), Joe Manchin (D-WV), and Rand Paul (R-KY) announced the introduction of a bipartisan resolution calling for Congress to have a role in approving any further United States military involvement in Afghanistan after the current mission ends on December 31, 2014. The Administration is reportedly negotiating an agreement that could keep 10,000 American troops or more in Afghanistan for another ten years.
“The American people should weigh in and Congress should vote before we decide to commit massive resources and thousands of troops to another decade in Afghanistan,” Merkley said. “After over 12 years of war, the public deserves a say. Congress owes it to the men and women in uniform to engage in vigorous oversight on decisions of war and peace.”
“After over a decade of war, Congress, and more importantly the American people, must be afforded a voice in this debate,” Lee said. “The decision to continue to sacrifice our blood and treasure in this conflict should not be made by the White House and Pentagon alone.
“After 13 years, more than 2,300 American lives lost and more than $600 billion, it is time to bring our brave warriors home to the hero’s welcome they deserve and begin rebuilding America, not Afghanistan,” Manchin said. “We do not have an ally in President Karzai and his corrupt regime. His statements and actions have proven that again and again. Most West Virginians believe like I do money or military might won’t make a difference in Afghanistan. It’s time to bring our troops home.”
“The power to declare war resides in the hands of Congress,” Paul said. “If this President or any future President has the desire to continue to deploy U.S. troops to this region, it should be done so only with the support of Congress and the citizens of the United States.”
After 12 years and hundreds of billions of dollars spent, the Administration has declared that the war in Afghanistan will be wound down by December 31, 2014. However, the Administration is also negotiating an agreement with the Government of Afghanistan that would set guidelines for U.S. troops to remain in training, support, and counter-terrorism roles through at least 2024.
In November, the Senators introduced this bill as an amendment to the Defense Authorization bill, but it wasn’t allowed a vote. In June, the House of Representatives approved a similar amendment to the NDAA stating that it is the Sense of Congress that if the President determines that it is necessary to maintain U.S. troops in Afghanistan after 2014, any such presence and missions should be authorized by Congress. The House amendment passed by a robust, bipartisan 305-121 margin.
But Merkley added yet another zinger. From the AFP story on the move, as carried in Dawn (emphasis added):
“We are introducing a bipartisan resolution to say before any American soldier, sailor, airman or Marine is committed to stay in Afghanistan after 2014, Congress should vote,” Democratic Senator Jeff Merkley told reporters.
“Automatic renewal is fine for Netflix and gym memberships, but it isn’t the right approach when it comes to war.”
Wow. What a concept. Continue reading
One of my friends, who works in a strategic role at American Federation of Teachers, is Iranian-American. I asked him a few weeks ago whom he called in Iran; if I remember correctly (I’ve been asking a lot of Iranian-Americans whom they call in Iran) he said it was mostly his grandmother, who’s not a member of the Republican Guard or even close. Still, according to the statement that Dianne Feinstein had confirmed by NSA Director Keith Alexander, calls “related to Iran” are fair game for queries of the dragnet database of all Americans’ phone metadata.
Chances are slim that my friend’s calls to his grandmother are among the 300 identifiers the NSA queried last year, unless (as is possible) they monitored all calls to Iran. But nothing in the program seems to prohibit it, particularly given the government’s absurdly broad definitions of “related to” for issues of surveillance and its bizarre adoption of a terrorist program to surveil another nation-state. And if someone chose to query on my friend’s calls to his grandmother, using the two-degrees-of-separation query they have used in the past would give the government — not always the best friend of teachers unions — a pretty interesting picture of whom the AFT was partnering with and what it had planned.
In other words, nothing in the law or the known minimization rules of the Business Records provision would seem to protect some of the AFT’s organizational secrets just because they happen to employ someone whose grandmother is in Iran. That’s not the only obvious way labor discussions might come under scrutiny; Colombian human rights organizers with tangential ties to FARC is just one other one.
When I read labor organizer Louis Nayman’s “defense of PRISM,” it became clear he’s not aware of many details of the programs he defended. Just as an example, Nayman misstated this claim:
According to NSA officials, the surveillance in question has prevented at least 50 planned terror attacks against Americans, including bombings of the New York City subway system and the New York Stock Exchange. While such assertions from government officials are difficult to verify independently, the lack of attacks during the long stretch between 9/11 and the Boston Marathon bombings speaks for itself.
Keith Alexander didn’t say NSA’s use of Section 702 and Section 215 have thwarted 50 planned attacks against Americans; those 50 were in the US and overseas. He said only around 10 of those plots were in the United States. That works out to be less than 20% of the attacks thwarted in the US just between January 2009 and October 2012 (though these programs have existed for a much longer period of time, so the percentage must be even lower). And there are problems with three of the four cases publicly claimed by the government — from false positives and more important tips in the Najibullah Zazi case, missing details of the belated arrest of David Headley, to bogus claims that Khalid Ouazzan ever planned to attack NYSE. The sole story that has stood up to scrutiny is some guys who tried to send less than $10,000 to al-Shabaab.
While that doesn’t mean the NSA surveillance programs played no role, it does mean that the government’s assertions of efficacy (at least as it pertains to terrorism) have proven to be overblown.
Yet from that, Nayman concludes these programs have “been effective in keeping us safe” (given Nayman’s conflation of US and overseas, I wonder how families of the 166 Indians Headley had a hand in killing feel about that) and defends giving the government legal access (whether they’ve used it or not) to — among other things — metadata identifying the strategic partners of labor unions with little question.
And details about the success of the program are not the only statements made by top National Security officials that have proven inaccurate or overblown. That’s why Nayman would be far better off relying on Mark Udall and Ron Wyden as sources for whether or not the government can read US person emails without probable cause than misstating what HBO Director David Simon has said (Simon said that entirely domestic communications require probable cause, which is generally but not always true). And not just because the Senators are actually read into these programs. After the Senators noted that Keith Alexander had “portray[ed] protections for Americans’ privacy as being significantly stronger than they actually are” — specifically as it relates to what the government can do with US person communications collected “incidentally” to a target — Alexander withdrew his claims.
Nayman says, “As people who believe in government, we cannot simply assume that officials are abusing their lawfully granted responsibility and authority to defend our people from violence and harm.” I would respond that neither should we simply assume they’re not abusing their authority, particularly given evidence those officials have repeatedly misled us in the past.
Nayman then admits, “We should do all we can to assure proper oversight any time a surveillance program of any size and scope is launched.” But a big part of the problem with these programs is that the government has either not implemented or refused such oversight. Some holes in the oversight of the program are:
Update: Alexander’s office has conceded Udall and Wyden’s point about the classified inaccuracy. It also notes:
With respect to the second point raised in your 24 June 2013 letter, the fact sheet did not imply nor was it intended to imply “that the NSA has the ability to determine how many American communications it has collected under section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans.”
He then cites two letters from James Clapper’s office which I don’t believe have been published.
Out of courtesy to him, I’m going to rewrite this post to help him understand it. The issue is not whether the US can “target” a US person without a warrant. They can’t. The issue is what the US does with US person data they collect incidentally off a legal target (which must be a foreigner overseas collected for a legitimate intelligence purpose).
At issue is this sentence in the Mark Udall/Ron Wyden letter to Keith Alexander.
Separately, this same fact sheet states that under Section 702, “Any inadvertently acquired communication of or concerning a US person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime.” We believe that this statement is somewhat misleading, in that it implies that the NSA has the ability to determine how many American communications it has collected under section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans.
The passage says that the claim, “any inadvertently acquired communication of or concerning a US person must be promptly destroyed” is “somewhat misleading,” for two reasons:
Now, before I get into bullet point 2, which is the one in question, note that this entire passage is talking about “inadvertently acquired communication of or concerning a US person.” This is not information on someone who has been targeted. It discusses what happens to information collected along with the communications of those who’ve been targeted (say, by emailing the target). Therefore, this entire passage is irrelevant to the issue of what happens with the targeted person’s communication. The Udall/Wyden claim is not about targeting in the least; it is about incidental collection.
Okay, bullet point 2: Udall and Wyden claim that Alexander’s fact sheet is misleading because it implies the law does not allow the NSA to deliberately search for the records of particular Americans. They could be wrong, but their claim is that it is misleading for Alexander to suggest that the law does not allow the NSA to deliberately search for the records of particular Americans. That means they believe the law does allow the NSA to deliberately search for the records of particular Americans, otherwise they wouldn’t think his statement was misleading.
Now, if it were just Udall and Wyden making this claim, it’d be a he-said/he-said. But pointed out that this claim is not new at all. It’s not even one limited to Udall and Wyden. In the FAA report released by Dianne Feinstein last year, it said,
Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession.
First, the report describes a debate the committee had:
The Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained.
The committee debated two things:
Bullet point 1 makes it clear they were debating whether they should prohibit this activity. If they had to consider that, it means that it is not prohibited (which is precisely what Udall and Wyden say–that the law allows it). Bullet point 2 says they also considered whether they should “more robustly constrain” it, which suggests (though does not prove) that it is going on now, otherwise there’d be nothing to constrain.
The IC IGs won’t tell us how much of this goes on–they claim they have no way of counting it, which ought to alarm you, because it says they’re not actually tracking it via some kind of auditing function.
I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.
Now, as I already laid out, what we’re talking about is not targeting a US person–focusing collection on that person. What we’re talking about is what you can do with the US person data collected “incidentally” with the communications collected of that targeted person. That information–as the minimization guidelines describe–is lawfully collected. The big question is what you can do with it once you have collected it, and in many but not all cases there are restrictions against circulating that information before you’ve hidden the identity of the US person in question.
The last part of the passage from the SSCI says,
With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession.
Again, some amount of US person data is collected under Section 702 along with the data of the targeted person (if it weren’t, they wouldn’t need minimization procedures). It is lawfully collected. The question is what you’re allowed to do with it. And as part of the debate the committee had about whether they were going to “prohibit” or “more robustly constrain” the querying of US person data that was lawfully collected as incidental data, SSCI describes the Intelligence Community (which includes, in part, the NSA, the CIA, and the FBI) providing several reasons why it might need to conduct queries of this data. And the committee agreed that these reasons were “legitimate foreign intelligence needs.”
The minimization procedures from 2009, at least, require destruction of US person data if it is “clearly not relevant to the authorized purpose of the acquisition (e.g., the communication does not contain foreign intelligence information).” (3(b)(1)) What is not immediately destroyed may be kept for up to 5 years. But it only destroys the stuff that is “clearly not relevant,” not data that might be relevant to the purpose of the investigation.
Now, while the language is not exact, the SSCI report’s description of data that has a “legitimate foreign intelligence” surely includes “foreign intelligence information.” This is kind of backwards (which may be part of complaint from Udall and Wyden), but unless the information is clearly not relevant — and the intelligence community says some of this data has legitimate intelligence purposes — then it is retained. This is probably why Udall and Wyden think Alexander’s “must be promptly destroyed” is misleading, because if the IC thinks they might need to query it because it would serve a legitimate foreign intelligence purpose, then it is not.
So who makes this decision whether to keep the data? “NSA analyst(s) will determine whether it … is reasonably believed to contain foreign intelligence information.” (3(b)(4)) The NSA, not FBI or CIA.
And this data cannot just be retained. It can also be “forwarded to analytic personnel responsible for producing intelligence information from the collected data.” (3(b)(2))
Now, in most cases, that information must be anonymized (which is what Kurt Eichenwald discusses here, which Foust cites). But it has always been the case there are exceptions to that rule. Some exceptions are if:
There are actually a slew more exceptions but these two should suffice. Again, these rules on distribution (except as they affect technical data base information, which might be relevant here, but not necessary) are not new with FAA. They’ve long been in place.
Again, this is all about what happens to incidentally collected data, not the data of the person actually targeted. Which is why these two passages are irrelevant to the entire point (the second of which Foust thought I was leaving out because it hurt my point).
As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause.
The Department of Justice and Intelligence Community reaffirmed that any queries made of Section 702 data will be conducted in strict compliance with applicable guidelines and procedures and do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.
What they say is that the government is prohibited from targeting a US person without a warrant and that any other things done with incidentally collected data must be conducted in strict compliance with applicable guidelines, which are the minimization procedures I just reviewed (though again, those are from 2009 so they may have changed somewhat). The passage very clearly envisions making queries of the data and very clearly considers such queries to be distinct from the targeting of a US person.
And the minimization procedures make it clear that if data is not “clearly not foreign intelligence,” (that is, if it might be foreign intelligence, as this queried data is, according to the IC) then it is retained, at least through the initial (NSA-conducted) review. Where it can be queried, so long as the other minimization procedures are met.
One final thing. Foust is actually wrong when he suggests the IC asked for new authority (in any case, the only conclusion would be that they got it). Rather, in both the SSCI and the Senate Judiciary Committee, Senators tried to limit this authority. In SJC, Mike Lee, Dick Durbin, and Chris Coons submitted an amendment to (among other things) prohibit,
the searching of the contents of communications acquired under this section  in an effort to find communications of a particular United States person…
…Except with an emergency authorization.
Dianne Feinstein fought the amendment by arguing such a prohibition would have made it harder to find Nidal Hasan (whom we didn’t find anyway, and whose communications with Anwar al-Awlaki may well have been traditional FISA collection). But at one level that makes sense.
Sheldon Whitehouse said that such a restriction would “kill this program.”
I may not like what Whitehouse stated. But I do trust his judgement about how central to this program is access to US person communications.
That doesn’t say how much of this stuff goes on (though it does seem to suggest it does). But it does say we ought to at least track it.
Since the Edward Snowden leaks first started, many have called him and Glenn Greenwald narcissists (as if that changed the dragnet surveillance they exposed).
If that’s right, I can think of nothing more narcissistic than ACLU, which is a Verizon customer, suing the government for collecting their call records and chilling their ability to engage in activism.
The American Civil Liberties Union and the New York Civil Liberties Union today filed a constitutional challenge to a surveillance program under which the National Security Agency vacuums up information about every phone call placed within, from, or to the United States. The lawsuit argues that the program violates the First Amendment rights of free speech and association as well as the right of privacy protected by the Fourth Amendment. The complaint also charges that the dragnet program exceeds the authority that Congress provided through the Patriot Act.
“This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens,” said Jameel Jaffer, ACLU deputy legal director. “It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy.”
Here’s the complaint.
In addition to this suit, Jeff Merkley and others are submitting a bill to force the government to release its secret law.
When we last heard from General Joseph (We Are Winning in Afghanistan, We Really Are!) Dunford, he was showing total incompetence in terms of budget awareness in front of the Senate Armed Services Committee. Defense Secretary Chuck Hagel had announced on March 28 that DoD was $7 billion over budget in Afghanistan. By the time Dunford was asked about the over-budget situation during the hearing on April 16, Mike Lee stated that the overage had grown to $10 billion. Despite being in charge of US and NATO troops in Afghanistan, Dunford professed complete ignorance of the over-budget situation. That is a stunning lack of situational awareness for someone who is supposed to be in charge. After bumbling on a bit, Dunford did promise to eventually get back to Lee on the budget issue.
It would appear that even if he has gone back and looked over his own money management failures, Dunford has looked no further than the DoD budget. The New York Times posted a story yesterday based on an interview with him, and Dunford made another statement that is mind-boggling in terms of its lack of awareness of budget realities for the region. Recall that back in February, NATO defense ministers proposed that instead of allowing Afghan National Security Forces to drop by about a third after the end of 2014, the full force size of “352,000” (that’s in quotes because I think the SIGAR audit is going to finally destroy the 352,000 force size myth) should be maintained through at least 2018. My response to this suggestion was that it appeared to be a $22 billion bribe being offered to Afghan authorities in return for their agreeing to a Status of Forces Agreement that would grant criminal immunity to US forces remaining after the end of the official NATO mission at the end of 2014.
In the interview with the Times, Dunford continued his previous agreement with the concept of extending the time frame for the larger ANSF force size, but then made a suggestion that is stunningly stupid regarding how the extended force size should be funded:
He has concluded as well that plans to reduce the number of Afghan security forces — the army and police combined — to 228,000 after 2015 from the current target level of 352,000 are not realistic, given the threats in the country. “The consensus now both from the Afghans and certainly from us is that we ought to sustain that for some period time to come,” said General Dunford, referring to the 352,000 head count.
What is less clear is how such a force could be paid for. The international community, led by the United States, has agreed to pay roughly $4.1 billion in aid per year for the Afghan security forces after 2014, based on estimates of what a smaller Afghan security contingent would cost. If the Afghans want to keep a larger force, they will either have to field a cheaper army and police force or come up with more money themselves to pay for it. General Dunford suggested that the Afghans could economize, although he did not give examples of where they might find the savings.
That’s right. A totally dysfunctional, stunningly corrupt government should just somehow “economize” and find an additional $22 billion to fund a mythically large defense force.
Oh, and just like his own war effort in Afghanistan that has been mis-managed into a huge budget deficit, if Dunford only read the New York Times, he would be aware that the IMF has found Afghanistan’s government to be facing a serious budget shortfall:
The Afghan government is supposed to cover less than half its own bills this year, yet achieving even that modest goal is proving an unexpected challenge, Afghan and Western officials said.
A confidential assessment of Afghan finances by the International Monetary Fund said the potentially severe cash crunch was caused by widespread tax evasion abetted by government officials, the increasing theft of customs revenues by provincial governors and softening economic growth.
The I.M.F. assessment, which has not been publicly released but was described by American and European diplomats who were recently briefed on its findings, estimated that Afghan revenue in the first quarter of the year was roughly 20 percent to 30 percent short of an informal target the fund had set for the government.
Yeah, sure. With revenues already 20 to 30 percent short of projections, that’s a government that can just poke around a bit and find another $22 billion in the SOFA.