Posts

In Spying, “Things like phone numbers or emails” Turn Out to Be Far More

According to Reuters, the Intelligence Community doesn’t intend to share any details of the Yahoo scan revealed several weeks back with anyone outside of the FISA oversight committees — the House and Senate Intelligence and Judiciary Committees.

Executive branch officials spoke to staff for members of the Senate and House of Representatives committees overseeing intelligence operations and the judiciary, according to people briefed on the events, which followed Reuters’ disclosure of the massive search.

But attempts by other members of Congress and civil society groups to learn more about the Yahoo order are unlikely to meet with success anytime soon, because its details remain a sensitive national security matter, U.S. officials told Reuters. Release of any declassified version of the order is unlikely in the foreseeable future, the officials said.

On its face, it’s a stupid stance, as I think the scan probably fits within existing legal precedents that have already been made public, even if it stretches those precedents from “packet content as content” to “email content as content” (and it may not even do that).

In addition, given that the scan was approved by a judge (albeit one working within the secret FISA court and relying on prior decisions that were issued in secrecy), by releasing more details about the scan the government could at least claim that a judge had determined the scan was necessary and proportionate to obtain details about the (as described to NYT) state-sponsored terrorist group targeted by the scan. This decision presumably relies on a long line of decisions finding warrantless surveillance justified by special needs precedents, which began to be laid out for FISC in In Re Sealed Case in 2002.

Nevertheless, even given the toll the government’s secrecy is having on Yahoo (and presumably on other providers’ willingness to cooperate with the IC), the government thus far has remained intransigent in its secrecy.

Which suggests that the IC believes it would risk more by releasing more data than by its continued, damaging silence.

I’ve already explained one of the risks they might face: that their quick anonymous description of this as a “state-sponsored terrorist group” might (this is admittedly a wildarsed guess) really mean they hacked all of Yahoo’s users to get to Iranian targets, something that wouldn’t have the same scare power as terrorists like ISIS, especially in Europe, which has a markedly different relationship with Iran than the US has.

But I also think ODNI risks losing credibility because it appears to conflict with what ODNI specifically and other spook officials generally have said in the past, both to the US public and to the international community. As I note here, the definition of “facility” has been evolving at FISC since at least 2004. But the privacy community just released a letter and a quote to Reuters that seems unaware of the change. The letter asserts,

According to reports, the order was issued under Title I of FISA, which requires the government to demonstrate probable cause that its target is a foreign power or an agent of a foreign power (such as a spy or a terrorist), and probable cause that the “facility” at which the surveillance is conducted will carry the target’s communications. If reports are true, this authority to conduct a particularized search has apparently been secretly construed to authorize a mass scan.

Traditional FISA orders haven’t been limited to particularized targets since 2007, when an order targeting Al Qaeda was used to temporarily give Stellar Wind legal sanction. If one order requiring a scan of traffic at  telecom switches could target Al Qaeda in 2007, then surely one order can target Iran’s Revolutionary Guard or a similar organization in 2016. The problem is in the execution of the order, requiring Yahoo to scan all its incoming email, but it’s not clear the legal issues are much worse than in the 2007 execution.

A Reuters source goes even further, suggesting that all of Yahoo is the facility, rather than the specific code tied to the targeted group.

The groups say that Title I of the Foreign Intelligence Surveillance Act, under which sources said the order was issued, requires a finding that the target of such a wiretap is probably an agent of a foreign power and that the facility to be tapped is probably going to be used for a transmission. An entire service, such as Yahoo, has never publicly been considered to be a “facility” in such a case: instead, the word usually refers to a phone number or an email account.

Never mind that under the phone dragnet, Verizon was counted as the targeted selector (which was used by terrorists and everyone else), though admittedly that was just for metadata. Had Yahoo been designed the “place” at which a physical search were conducted this usage might be correct (that said, we know very little about how physical searches, including for stored communication, work in practice), but as Semiannual reports have made clear (admittedly in the Section 702 context), facility has come to be synonymous with selector.

[T]argeting is effectuated by tasking communication facilities (also referred to as “selectors”), including but not limited to telephone numbers and electronic communications accounts, to Section 702 electronic communication service providers.

Facilities are selectors, and here FBI got a selector tied to a kind of usage of email — perhaps an encryption signature — approved as a selector/facility.

In spite of the fact that somewhere among 30 NGOs someone should have been able to make this argument (and ACLU’s litigation side surely could do so), there is good reason for them to believe this.

That’s because the IC has very deliberately avoided talking about how what are called “about” scans but really should be termed signature scans really work.

This is most striking in a March 19, 2014 Privacy and Civil Liberties Oversight Board hearing, which was one of the most extensive discussions of how Section 702 work. Shortly after this hearing, I contacted PCLOB to ask whether they were being fully briefed, including on the non-counterterrorism uses of 702, such as cyber, which use (or used) upstream selectors in a  different way.

Several different times in the hearing, IC witnesses described selectors as “selectors such as telephone numbers or email addresses” or “like telephone numbers or email addresses,” obscuring the full extent of what might be included (Snowden tweeted a list that I included here). Bob Litt did so while insisting that Section 702 (he was referring both to PRISM and upstream here) was not a bulk collection program:

I want to make a couple of important overview points about Section 702. First, there is either a misconception or a mischaracterization commonly repeated that Section 702 is a form of bulk collection. It is not bulk collection. It is targeted collection based on selectors such as telephone numbers or email addresses where there’s reason to believe that the selector is relevant to a foreign intelligence purpose.

I just want to repeat that Section 702 is not a bulk collection program.

Then-Deputy Assistant Attorney General Brad Weigmann said selectors were “really phone numbers, email addresses, things like that” when he defined selector.

A selector would typically be an email account or a phone number that you are targeting. So this is the, you get, you know, terrorists at Google.com, you know, whatever. That’s the address that you have information about that if you have reason to believe that that person is a terrorist and you would like to collect foreign intelligence information, I might be focusing on that person’s account.

[snip]

So that’s when we say selector it’s really an arcane term that people wouldn’t understand, but it’s really phone numbers, email addresses, things like that.

And when then-NSA General Counsel Raj De moved from describing Section 702 generally (“selectors are things like”), to discussing upstream, he mistakenly said collection was based on “particularly phone numbers or emails” then immediately corrected himself to say, “things like phone numbers or emails.”

So there’s two types of collection under Section 702. Both are targeted, as Bob was saying, which means they are both selector-based, and I’ll get into some more detail about what that means. Selectors are things like phone numbers and email addresses.

[snip]

It is also however selector-based, i.e. based on particular phone numbers or emails, things like phone numbers or emails. This is collection to, from, or about selectors, the same selectors that are used in PRISM selection. This is not collection based on key words, for example.

 

That language would — and apparently did — create the false impression that about collection really did just use emails and phone numbers (which is why I called PCLOB, because I knew they were or had also targeted cyber signatures).

Here’s how all that evasiveness appeared in the PCLOB 702 report:

Although we cannot discuss the details in an unclassified public report, the moniker “about” collection describes a number of distinct scenarios, which the government has in the past characterized as different “categories” of “about” collection. These categories are not predetermined limits that confine what the government acquires; rather, they are merely ways of describing the different forms of communications that are neither to nor from a tasked selector but nevertheless are collected because they contain the selector somewhere within them.

That certainly goes beyond the linguistic game the IC witnesses were playing, but stops well short of explaining that this really isn’t all about emails and phone numbers.

Plus, there’s one exchange from that March 2014 hearing that might be taken to rule out about collection from a PRISM provider. In reply to specific prodding from Elisabeth Collins Cook, De said about collection cannot be made via PRISM.

MS. COLLINS COOK: I wanted to ask one additional question about abouts. Can you do about collection through PRISM?

MR. DE: No.

MS. COLLINS COOK: So it is limited to upstream collection?

MR. DE: Correct. PRISM is only collection to or from selectors.

Of course, De was referring to warrantless collection under Section 702. He wasn’t talking at all about what is possible under Title I. But it may have left the impression that one couldn’t order a PRISM provider to do an about scan, even though in 2007 FISA ordered telecoms to do about scans.

Ultimately, though, the IC is likely remaining mum about these details because revealing it would make clear what publicly released opinions do, but not in real detail: that these about scans have gotten far beyond a collection of content based off a scan of readily available metadata. These scans likely replicate the problem identified in 2004, in that the initial scan is not of things that count as metadata to the provider doing the scan.

The IC may have FISC approval for that argument. But they also had FISC approval for the Section 215 dragnet. And that didn’t live up to public scrutiny either.

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

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

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

I Con the Record Rolls Out Its 3-Page Intel Collection Efficacy Process

Screen Shot 2016-07-30 at 2.50.04 PMLast year, PCLOB suggested that the intelligence community formalize its process to assess the efficacy of intelligence collection. While it made the recommendation as part of its 702 report, the recommendation itself came against the background of Congress and the IC having decided that the phone dragnet wasn’t really worth the cost and privacy exposure.

I Con the Record just released a report on the processes the IC now uses to conduct such efficacy assessments; the report itself is actually dated February 8. Here’s what the report addressing this complex subject includes:

Page 1: Formal cover

Page 2: [PAGE INTENTIONALLY LEFT BLANK]

Page 3:

  • Introductory paragraph
  • Two paragraphs laying out PCLOB recommendation
  • Two paragraphs discussing “Assessing Efficacy and Value”
    • One paragraph describing that one must make both quantitative and qualitative judgements
    • One paragraph introducing the “comprehensive processes”

Page 4:

  • Four paragraphs on the National Intelligence Priorities Framework (see this document for a summary of what the NIPF looked like in 2013), citing both PPD-28’s mandate to consider privacy implications and ODNI’s updated ICD 204 which includes this paragraph (but no mention of the FBI and military/covert operations exceptions to this mandate):

PPD-28 specifically requires consideration of the value of Signals Intelligence activities and the risks of potential exposure of those activities to U.S. foreign policy, defense, commercial, economic, and financial interests, international agreements, privacy concerns, and the protection of intelligence sources and methods.

  • The first of two paragraphs on the IC’s “Refined Process on SIGINT Targeting” describing how requiring heads of policy departments to sign off on priorities ensures that senior policymakers provide “comprehensive” oversight of “potentially sensitive” SIGINT collection

Page 5:

  • The second paragraph on the IC’s “Refined Process on SIGINT Targeting” describing how, if the senior policymakers decide the risks of collection on a target outweighs its value, they will terminate the collection
  • Four paragraphs on “Assessing IC Reporting,” describing how ODNI performs a quantitative (counting reports, including those that get into important reports like the President’s Daily Briefing) and qualitative review of resources dedicated to priorities and production from those units

Page 6 (a half page):

  • Two paragraphs on other processes
    • One paragraph noting that individual elements conduct their own assessment
    • One paragraph describing the Intelligence Community Inspector General’s own assessments, noting especially that USA Freedom Act required he complete an assessment of the information acquired under FISA’s Business Records provision
  • One paragraph describing a “Path Forward” that might include using prediction markets to identify the most valuable intelligence, but noting such an approach is in a “nascent stage”

Overall, there are just three pages of meat, none of which is terrifically impressive.The reference to the USAF report on assessing the value of intelligence coming from a program underscores that such reporting requirements don’t exist for all other programs. And nowhere in the discussion is any consideration whether the same information might be acquired via less intrusive means (as has happened with the phone dragnet), something that would seem central to balancing trade-offs.

In short, it’s not so much a real process for assessing the value of intelligence against the risks of it, rather than a declaration that policymakers (you know? The people who want to expand their budgets?) will decide.

 

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

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

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

For Second Year in a Row, HPSCI Tries to Gut PCLOB

As I reported, during the passage of Intelligence Authorization last year (which ultimately got put through on the Omnibus bill, making it impossible for people to vote against), Congress implemented Intelligence Community wishes by undercutting PCLOB authority in two ways: prohibiting PCLOB from reviewing covert activities, and stripping an oversight role for PCLOB that had been passed in all versions of CISA.

In the 2017 Intelligence Authorization HPSCI passed on April 29, it continued more of the same. It does so in two ways:

Requires it to get its appropriations approved by Congress

Section 303 changes the authorizing language for PCLOB to state that it can only spend money on things if Congress specifically authorized it.

SEC. 303. AUTHORIZATION OF APPROPRIATIONS FOR PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD.

(a) REQUIREMENT FOR AUTHORIZATIONS.—Sub-section (m) of section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(m)) is amended to read as follows:

(m) FUNDING.—

(1) SPECIFIC AUTHORIZATION REQUIRED.— Appropriated funds available to the Board may be obligated or expended to carry out activities under this section only if such funds were specifically authorized by Congress for use for such activities for such fiscal year.

(2) DEFINITION.—In this subsection, the term ‘specifically authorized by Congress’ has the meaning given that term in section 504(e) of the National Security Act of 1947 (50 U.S.C. 3094(e)).’

(b) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated to the Privacy and Civil Liberties Oversight Board for fiscal year 2017 the sum of $10,081,000 to carry out the activities of the Board under section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(m)).

At one level, this looks like nothing more than bureaucratic dick-waving, a reminder to PCLOB that Congress can cut off funding if it does things like deign to comment on covert spying activities.

But — particularly given the way the Intelligence Communities stripped PCLOB’s involvement in CISA oversight at the last minute — I wonder whether this will restrict what PCLOB can do under presidential orders. Congress set up PCLOB such that its mandate covers only counterterrorism programs. But with EO 13636 (the EO that set up the information sharing system that, with significant changes, became CISA) and PPD 28, President Obama gave PCLOB a cybersecurity role beyond that defined in statute. So I wonder whether this is a way to further PCLOB remove from cybersecurity oversight than those last minute changes already did.

The authorization still granted PCLOB its requested funding (and that request did lay out those cybersecurity activities), so this may just be, for the moment, a shot across the bow.

Requires the Committee to warn the Intelligence Committees and Intelligence Agency heads before they conduct any oversight

The bill also adds new reporting requires on PCLOB, beyond the biennial reports that go to a number of congressional committees. In short, the new language requires PCLOB to warn the Intelligence Committees and the heads of an intelligence agency before they start doing any oversight.

SEC. 307. INFORMATION ON ACTIVITIES OF PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Section 1061(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(d)) is further amended by adding at the end the following new paragraph:

(5) INFORMATION.—

(A) ACTIVITIES.—In addition to the reports submitted to Congress under subsection (e)(1)(B), the Board shall ensure that each official and congressional committee specified in subparagraph (B) is kept fully and currently informed of the activities of the Board, including any significant anticipated activities.

(B) OFFICIALS AND CONGRESSIONAL COMMITTEES SPECIFIED.—The officials and congressional committees specified in this subparagraph are the following:

(i) The Director of National Intelligence.

(ii) The head of any element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)) the activities of which are, or are anticipated to be, the subject of the review or advice of the Board.

(iii) The Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.

Of particular note: if PCLOB warned the spooks, and the spooks prohibited PCLOB oversight (again), it’s not clear how the other committees of jurisdiction — which include the Judiciary, Homeland Security and House Oversight Committee, in addition to the Intelligence Committees — would get notice.

These changes are being made based on an Intelligence Committee claim that they give PCLOB — one of the very few entities that has proven to effectively oversee the Intelligence Community — more “oversight.” But it’s hard to understand how they’ll do anything more than ensure that the Intelligence Committees return to the status quo position where they’re the only entities permitted to (not) oversee the IC.

In other words, HPSCI — of all entities !!! — claims that that committee, which has serially failed at overseeing just about anything, must give the overseers greater oversight.

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

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

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

With Upcoming David Medine Departure, Will PCLOB Slip Back into Meaninglessness?

The Chair of the Privacy and Civil Liberties Oversight Board, David Medine, has announced he will resign effective  July 1 to work with a development organization “advising on data privacy and consumer protection for lower-income financial consumers.”

The move comes not long after Congress has, in several ways, affirmatively weakened or unexpectedly stopped short of expanding PCLOB’s mandate, by ensuring it could not review any covert programs, and by eliminating a PCLOB oversight role under OmniCISA.

In Medine’s statement, he promised the board would continue to work on their examination of CT activities relating to EO 12333.

I look forward to continuing to work on PCLOB’s current projects until my departure. I am pleased to know that, even after my departure, the Board Members and our dedicated staff remain committed to carrying forward the Board’s critical work, including its ongoing examination of counterterrorism activities under Executive Order 12333.

The EO 12333 approach (and the two CIA programs to examine) was formally approved July 1, a year to the day before Medine’s departure. It was initially scheduled to be done by the end of last year. But in their most recent semi-annual report (released at the end of December), PCLOB noted they were just starting on their public report.

In July, the Board voted to approve two in-depth examinations of CIA activities conducted under E.O. 12333. Board staff has subsequently attended briefings and demonstrations, as well as obtained relevant documents, related to the examinations. The Board also received a series of briefings from the NSA on its E.O. 12333 activities. Board staff held follow-up sessions with NSA personnel on the topics covered and on the agency’s E.O. 12333 implementing procedures. Just after the conclusion of the Reporting Period, the Board voted to approve one in-depth examination of an NSA activity conducted under E.O. 12333. Board staff are currently engaging with NSA staff to gather additional information and documents in support of this examination. Board staff also began work developing the Board’s public report on E.O. 12333, described above.

So while Medine promises PCLOB will continue to work on the EO 12333 stuff, I do worry that it will stall after his departure. I’m concerned, as well, about the makeup of the board. Board member Jim Dempsey’s term officially ended on January 29, though President Obama nominated him for another term on March 17, which means he will serve out 2016 (I believe as a temporary appointment until the end of the congressional term, but am trying to confirm; Update: this stems from PCLOB’s statute, but the appointment would extend through the end of the Congressional term), and longer if and when the Senate confirms him. But Medine’s departure will leave 2 members (counting Dempsey) who have been firmly committed to conducting this review, Rachel Brand, who has been lukewarm but positive, and Elisabeth Collins Cook who was originally opposed. That is, unless Medine is replaced in timely fashion (and given that this is a multiple year appointment, Republicans would have incentive to stall to get a GOP Chair), the board may be split on its commitment to investigating these issues.

There are a few other things happening on the EO 12333 front. Most urgently, the Intelligence Community is as we speak implementing new procedures for the sharing of EO 12333 with law enforcement agencies. PCLOB was involved in a review of those procedures, and had successfully pressed for more controls on the FBI’s back door access to 702 data (which is one reason I find the timing of Medine’s departure of particular concern). Two years after PCLOB first outed Treasury as having no EO 12333 implementing guidelines, they still have none.

That is, particularly after Congress’ successful attempts at undercutting PCLOB’s power, Medine’s departure has me seriously worried about whether the Intelligence Committee is willing to undergo any scrutiny of its EO 12333 activities.

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

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

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

How the Purpose of the Data Sharing Portal Changed Over the OmniCISA Debate

Last year, House Homeland Security Chair Michael McCaul offered up his rear-end to be handed back to him in negotiations leading to the passage of OmniCISA on last year’s omnibus. McCaul was probably the only person who could have objected to such a legislative approach because it deprived him of weighing in as a conferee. While he made noise about doing so, ultimately he capitulated and let the bill go through — and be made less privacy protective — as part of the must-pass budget bill.

Which is why I was so amused by McCaul’s op-ed last week, including passage of OmniCISA among the things he has done to make the country more safe from hacks. Here was a guy, holding his rear-end in his hands, plaintively denying that, by claiming that OmniCISA reinforced his turf.

I was adamant that the recently-enacted Cybersecurity Act include key provisions of my legislation H.R. 1731, the National Cybersecurity Protection Advancement Act. With this law, we now have the ability to be more efficient while protecting both our nation’s public and private networks.

With these new cybersecurity authorities signed into law, the Department of Homeland Security (DHS) will become the sole portal for companies to voluntarily share information with the federal government, while preventing the military and NSA from taking on this role in the future.

With this strengthened information-sharing portal, it is critical that we provide incentives to private companies who voluntarily share known cyber threat indicators with DHS. This is why we included liability protections in the new law to ensure all participants are shielded from the reality of unfounded litigation.

While security is vital, privacy must always be a guiding principle. Before companies can share information with the government, the law requires them to review the information and remove any personally identifiable information (PII) unrelated to cyber threats. Furthermore, the law tasks DHS and the Department of Justice (DOJ) to jointly develop the privacy procedures, which will be informed by the robust existing DHS privacy protocols for information sharing.

[snip]

Given DHS’ clearly defined lead role for cyber information sharing in the Cybersecurity Act of 2015, my Committee and others will hold regular oversight hearings to make certain there is effective implementation of these authorities and to ensure American’s privacy and civil liberties are properly protected.

It is true that under OmniCISA, DHS is currently (that is, on February 1) the sole portal for cyber-sharing. It’s also true that OmniCISA added DHS, along with DOJ, to those in charge of developing privacy protocols. There are also other network defense measures OmniCISA tasked DHS with — though the move of the clearances function, along with the budget OPM had been asking for to do it right but not getting, to DOD earlier in January, the government has apparently adopted a preference for moving its sensitive functions to networks DOD (that is, NSA) will guard rather than DHS. But McCaul’s bold claims really make me wonder about the bureaucratic battles that may well be going on as we speak.

Here’s how I view what actually happened with the passage of OmniCISA. It is heavily influenced by these three Susan Hennessey posts, in which she tried to convince that DHS’ previously existing portal ensured privacy would be protected, but by the end seemed to concede that’s not how it might work out.

  1. CISA in Context: Privacy Protections and the Portal

  2. CISA in Context: The Voluntary Sharing Model and that “Other” Portal
  3. CISA in Context: Government Use and What Really Matters for Civil Liberties

Underlying the entire OmniCISA passage is a question: Why was it necessary? Boosters explained that corporations wouldn’t share willingly without all kinds of immunities, which is surely true, but the same boosters never explained why an info-sharing system was so important when experts were saying it was way down the list of things that could make us safer and similar info-sharing has proven not to be a silver bullet. Similarly, boosters did not explain the value of a system that not only did nothing to require cyber information shared with corporations would be used to protect their networks, but by giving them immunity (in final passage) if they did nothing with information and then got pawned, made it less likely they will use the data. Finally, boosters ignored the ways in which OmniCISA not only creates privacy risks, but also expands new potential vectors of attack or counterintelligence collection for our adversaries.

So why was it necessary, especially given the many obvious ways in which it was not optimally designed to encourage monitoring, sharing, and implementation from network owners? Why was it necessary, aside from the fact that our Congress has become completely unable to demand corporations do anything in the national interest and there was urgency to pass something, anything, no matter how stinky?

Indeed, why was legislation doing anything except creating some but not all these immunities necessary if, as former NSA lawyer Hennessey claimed, the portal laid out in OmniCISA in fact got up and running on October 31, between the time CISA passed the Senate and the time it got weakened significantly and rammed through Congress on December 18?

At long last DHS has publically unveiled its new CISA-sanctioned, civil-liberties-intruding, all-your-personal-data-grabbing, information-sharing uber vacuum. Well, actually, it did so three months ago, right around the time these commentators were speculating about what the system would look like. Yet even as the cleverly-labeled OmniCISA passed into law last month, virtually none of the subsequent commentary took account of the small but important fact that the DHS information sharing portal has been up and running for months.

Hennessey appeared to think this argument was very clever, to suggest that “virtually no” privacy advocates (throughout her series she ignored that opposition came from privacy and security advocates) had talked about DHS’ existing portal. She must not have Googled that claim, because if she had, it would have become clear that privacy (and security) people had discussed DHS’ portal back in August, before the Senate finalized CISA.

Back in July, Al Franken took the comedic step of sending a letter to DHS basically asking, “Say, you’re already running the portal that is being legislated in CISA. What do you think of the legislation in its current form?” And DHS wrote back and noted that the portal being laid out in CISA (and the other sharing permitted under the bill) was different in several key ways from what it was already implementing.

Its concerns included:

  • Because companies could share with other agencies, the bill permitted sharing content with law enforcement. “The authorization to share cyber threat indicators and defensive measures with ‘any other entity or the Federal Government,’ ‘notwithstanding any other provision of law’ could sweep away important privacy protections, particularly the provisions in the Stored Communications Act limiting the disclosure of the content of electronic communications to the government by certain providers.”
  • The bill permitted companies to share more information than that permitted under the existing portal. “Unlike the President’s proposal, the Senate bill includes ‘any other attribute of a cybersecurity threat’ within its definition of cyber threat indicator.”
  • Because the bill required sharing in real time rather than in near-real time, it would mean DHS could not do all the privacy scrubs it was currently doing. “If DHS distributes information that is not scrubbed for privacy concerns, DHS would fail to mitigate and in fact would contribute to the compromise of personally identifiable information by spreading it further.”
  • Sharing in real rather than near-real time also means participants might get overloaded with extraneous information (something that has made existing info-sharing regimes ineffective). “If there is no layer of screening for accuracy, DHS’ customers may receive large amounts of information with dubious value, and may not have the capability to meaningfully digest that information.”
  • The bill put the Attorney General, not DHS, in charge of setting the rules for the portal. “Since sharing cyber threat information with the private sector is primarily within DHS’s mission space, DHS should author the section 3 procedures, in coordination with other entities.”
  • The 90-day implementation timeline was too ambitious; according to DHS, the bill should provide for an 180-day implementation. “The 90-day timeline for DHS’s deployment of a process and capability to receive cyber threat indicators is too ambitious, in light of the need to fully evaluate the requirements pertaining to that capability once legislation passes and build and deploy the technology.”

As noted, that exchange took place in July (most responses to it appeared in August). While a number of amendments addressing DHS’ concerns were proposed in the Senate, I’m aware of only two that got integrated into the bill that passed: an Einstein (that is, federal network monitoring) related request, and DHS got added — along with the Attorney General — in the rules-making function. McCaul mentioned both of those things, along with hailing the “more efficient” sharing that may refer to the real-time versus almost real-time sharing, in his op-ed.

Not only didn’t the Senate respond to most of the concerns DHS raised, as I noted in another post on the portal, the Senate also gave other agencies veto power over DHS’ scrub (this was sort of the quid pro quo of including DHS in the rule-making process, and it was how Ranking Member on the Senate Homeland Security Committee, Tom Carper, got co-opted on the bill), which exacerbated the real versus almost real-time sharing problem.

All that happened by October 27, days before the portal based on Obama’s executive order got fully rolled out. The Senate literally passed changes to the portal as DHS was running it days before it went into full operation.

Meanwhile, one more thing happened: as mandated by the Executive Order underlying the DHS portal, the Privacy and Civil Liberties Oversight Board helped DHS set up its privacy measures. This is, as I understand it, the report Hennessey points to in pointing to all the privacy protections that will make OmniCISA’s elimination of warrant requirements safe.

Helpfully, DHS has released its Privacy Impact Assessment of the AIS portal which provides important technical and structural context. To summarize, the AIS portal ingests and disseminates indicators using—acronym alert!—the Structured Threat Information eXchange (STIX) and Trusted Automated eXchange of Indicator Information (TAXII). Generally speaking, STIX is a standardized language for reporting threat information and TAXII is a standardized method of communicating that information. The technology has many interesting elements worth exploring, but the critical point for legal and privacy analysis is that by setting the STIX TAXII fields in the portal, DHS controls exactly which information can be submitted to the government. If an entity attempts to share information not within the designated portal fields, the data is automatically deleted before reaching DHS.

In other words, the scenario is precisely the reverse of what Hennessey describes: DHS set up a portal, and then the Senate tried to change it in many ways that DHS said, before passage, would weaken the privacy protections in place.

Now, Hennessey does acknowledge some of the ways OmniCISA weakened privacy provisions that were in DHS’ portal. She notes, for example, that the Senate added a veto on DHS’ privacy scrubs, but suggests that, because DHS controls the technical parameters, it will be able to overcome this veto.

At first read, this language would appear to give other federal agencies, including DOD and ODNI, veto power over any privacy protections DHS is unable to automate in real-time. That may be true, but under the statute and in practice DHS controls AIS; specifically, it sets the STIX TAXXI fields. Therefore, DHS holds the ultimate trump card because if that agency believes additional privacy protections that delay real-time receipt are required and is unable to convince fellow federal entities, then DHS is empowered to simply refuse to take in the information in the first place. This operates as a rather elegant check and balance system. DHS cannot arbitrarily impose delays, because it must obtain the consent of other agencies, if other agencies are not reasonable DHS can cut off the information, but DHS must be judicious in exercising that option because it also loses the value of the data in question.

This seems to flip Youngstown on its head, suggesting the characteristics of the portal laid out in an executive order and changed in legislation take precedence over the legislation.

Moreover, while Hennessey does discuss the threat of the other portal — one of the features added in the OmniCISA round with no debate — she puts it in a different post from her discussion of DHS’ purported control over technical intake data (and somehow portrays it as having “emerged from conference with the new possibility of an alternative portal” even though no actual conference took place, which is why McCaul is stuck writing plaintive op-eds while holding his rear-end). This means that, after writing a post talking about how DHS would have the final say on protecting privacy by controlling intake, Hennessey wrote another post that suggested DHS would have to “get it right” or the President would order up a second portal without all the privacy protections that DHS’ portal had in the first place (and which it had already said would be weakened by CISA).

Such a portal would, of course, be subject to all statutory limitations and obligations, including codified privacy protections. But the devil is in the details here; specifically, the details coded into the sharing portal itself. CISA does not obligate that the technical specifications for a future portal be as protective as AIS. This means that it is not just the federal government and private companies who have a stake in DHS getting it right, but privacy advocates as well. The balance of CISA is indeed delicate.

Elsewhere, Hennessey admits that many in government think DHS is a basket-case agency (an opinion I’m not necessarily in disagreement with). So it’s unclear how DHS would retain any leverage over the veto given that exercising such leverage would result in DHS losing this portfolio altogether. There was a portal designed with privacy protections, CISA undermined those protections, and then OmniCISA created yet more bureaucratic leverage that would force DHS to eliminate its privacy protections to keep the overall portfolio.

Plus, OmniCISA did two more things. First, as noted, back in July DHS said it would need 180 days to fully tweak its existing portal to match the one ordered up in CISA. CISA and OmniCISA didn’t care: the bill and the law retained the 90 day turnaround. But in addition, OmniCISA required DHS and the Attorney General develop their interim set of guidelines within 60 days (which as it happened included the Christmas holiday). That 60 deadline is around February 16. The President can’t declare the need for a second portal until after the DHS one gets certified, which has a 90 day deadline (so March 18). But he can give a 30 day notice that’s going to happen beforehand. In other words, the President can determine, after seeing what DHS and AG Lynch come up with in a few weeks, that that’s going to be too privacy restrictive and tell Congress FBI needs to have its own portal, something that did not and would not have passed under regular legislative order.

Finally, as I noted, PCLOB had been involved in setting up the privacy parameters for DHS’ portal, including the report that Hennessey points to as the basis for comfort about OmniCISA’s privacy risk. In final passage of OmniCISA, a PCLOB review of the privacy impact of OmniCISA, which had been included in every single version of the bill, got eliminated.

Hennssey’s seeming admission that’s the eventual likelihood appears over the course of her posts as well. In her first post, she claims,

From a practical standpoint, the government does not want any information—PII or otherwise—that is not necessary to describe or identify a threat. Such information is operationally useless and costly to store and properly handle.

But in explaining the reason for a second portal, she notes that there is (at least) one agency included in OmniCISA sharing that does want more information: FBI.

[T]here are those who fear that awarding liability protection exclusively to sharing through DHS might result in the FBI not getting information critical to the investigation of computer crimes. The merits of the argument are contested but the overall intention of CISA is certainly not to result in the FBI getting less cyber threat information. Hence, the fix.

[snip]

AIS is not configured to receive the full scope of cyber threat information that might be necessary to the investigation of a crime. And while CISA expressly permits sharing with law enforcement – consistent with all applicable laws – for the purposes of opening an investigation, the worry here is that companies that are the victims of hacks will share those threat indicators accepted by AIS, but not undertake additional efforts to lawfully share threat information with an FBI field office in order to actually investigate the crime.

That is, having decided that the existing portal wasn’t good enough because it didn’t offer enough immunities (and because it was too privacy protective), the handful of mostly Republican leaders negotiating OmniCISA outside of normal debate then created the possibility of extending those protections to a completely different kind of information sharing, that of content shared for law enforcement.

In her final post, Hennessey suggests some commentators (hi!!) who might be concerned about FBI’s ability to offer immunity for those who share domestically collected content willingly are “conspiracy-minded” even while she reverts to offering solace in the DHS portal protections that, her series demonstrates, are at great risk of bureaucratic bypass.

But these laws encompass a broad range of computer crimes, fraud, and economic espionage – most controversially the Computer Fraud and Abuse Act (CFAA). Here the technical constraints of the AIS system cut both ways. On one hand, the scope of cyber threat indicators shared through the portal significantly undercuts claims CISA is a mass surveillance bill. Bluntly stated, the information at issue is not of all that much use for the purposes certain privacy-minded – and conspiracy-minded, for that matter – critics allege. Still, the government presumably anticipates using this information in at least some investigations and prosecutions. And not only does CISA seek to move more information to the government – a specific and limited type of information, but more nonetheless – but it also authorizes at least some amount of new sharing.

[snip]

That question ultimately resolves to which STIX TAXII fields DHS decides to open or shut in the portal. So as CISA moves towards implementation, the portal fields – and the privacy interests at stake in the actual information being shared – are where civil liberties talk should start.

To some degree, Hennessey’s ultimate conclusion is one area where privacy (and security) advocates might weigh in. When the government provides Congress the interim guidelines sometime this month, privacy (and security) advocates might have an opportunity to weigh in, if they get a copy of the guidelines. But only the final guidelines are required to be made public.

And by then, it would be too late. Through a series of legislative tactics, some involving actual debate but some of the most important simply slapped onto a must-pass legislation, Congress has authorized the President to let the FBI, effectively, obtain US person content pertaining to Internet-based crimes without a warrant. Even if President Obama chooses not to use that authorization (or obtains enough concessions from DHS not to have to directly), President Trump may not exercise that discretion.

Maybe I am being conspiratorial in watching the legislative changes made to a bill (and to an existing portal) and, absent any other logical explanation for them, concluding those changes are designed to do what they look like they’re designed to do. But it turns out privacy (and security) advocates weren’t conspiratorial enough to prevent this from happening before it was too late.

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

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

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

Why Is Congress Undercutting PCLOB?

As I noted last month, the Omnibus budget bill undercut the Privacy and Civil Liberties Oversight Board in two ways.

First, it affirmatively limited PCLOB’s ability to review covert actions. That effort dates to June, when Republicans responded to PCLOB Chair David Medine’s public op-ed about drone oversight by ensuring PCLOB couldn’t review the drone or any other covert program.

More immediately troublesome, last minute changes to OmniCISA eliminated a PCLOB review of the implementation of that new domestic cyber surveillance program, even though some form of that review had been included in all three bills that passed Congress. That measure may have always been planned, but given that it wasn’t in any underlying version of the bill, more likely dates to something that happened after CISA passed the Senate in October.

PCLOB just released its semi-annual report to Congress, which I wanted to consider in light of Congress’ efforts to rein in what already was a pretty tightly constrained mandate.

The report reveals several interesting details.

First, while the plan laid out in April had been to review one CIA and one NSA EO 12333 program, what happened instead is that PCLOB completed a review on two CIA EO 12333 programs, and in October turned towards one NSA EO 12333 program (the reporting period for this report extended from April 1 to September 30).

In July, the Board voted to approve two in-depth examinations of CIA activities conducted under E.O. 12333. Board staff has subsequently attended briefings and demonstrations, as well as obtained relevant documents, related to the examinations.

The Board also received a series of briefings from the NSA on its E.O. 12333 activities. Board staff held follow-up sessions with NSA personnel on the topics covered and on the agency’s E.O. 12333 implementing procedures. Just after the conclusion of the Reporting Period, the Board voted to approve one in-depth examination of an NSA activity conducted under E.O. 12333. Board staff are currently engaging with NSA staff to gather additional information and documents in support of this examination.

That’s interesting for two reasons. First, it means there are two EO 12333 programs that have a significant impact on US persons, which is pretty alarming since CIA is not supposed to focus on Americans. It also means that the PCLOB could have conducted this study on covert operations between the time Congress first moved to prohibit it and the time that bill was signed into law. There’s no evidence that’s what happened, but the status report, while noting it had been prohibited from accessing information on covert actions, didn’t seem all that concerned about it.

Section 305 is a narrow exception to the Board’s statutory right of access to information limited to a specific category of matters, covert actions.

Certainly, it seems like PCLOB got cooperation from CIA, which would have been unlikely if CIA knew it could stall any review until the Intelligence Authorization passed.

But unless PCLOB was excessively critical of CIA’s EO 12333 programs, that’s probably not why Congress eliminated its oversight role in OmniCISA.

Mind you, it’s possible it was. Around the time the CIA review should have been wrapping up though also in response to the San Bernardino attack, PCLOB commissioner Rachel Brand (who was the lone opponent to review of EO 12333 programs in any case) wrote an op-ed suggesting public criticism and increased restrictions on intelligence agencies risked making the intelligence bureaucracy less effective (than it already is, I would add but she didn’t).

In response to the public outcry following the leaks, Congress enacted several provisions restricting intelligence programs. The president unilaterally imposed several more restrictions. Many of these may protect privacy. Some of them, if considered in isolation, might not seem a major imposition on intelligence gathering. But in fact none of them operate in isolation. Layering all of these restrictions on top of the myriad existing rules will at some point create an encrusted intelligence bureaucracy that is too slow, too cautious, and less effective. Some would say we have already reached that point. There is a fine line between enacting beneficial reforms and subjecting our intelligence agencies to death by a thousand cuts.

Still, that should have been separate from efforts focusing on cybersecurity.

There was, however, one thing PCLOB did this year that might more directly have led to Congress’ elimination of what would have been a legislatively mandated role in cybersecurity related privacy: its actions under EO 13636, which one of the EOs that set up a framework that OmniCISA partly fulfills. Under the EO, DHS and other departments working on information sharing to protect critical infrastructure were required to produce a yearly report on how such shared affected privacy and civil liberties.

The Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties of the Department of Homeland Security (DHS) shall assess the privacy and civil liberties risks of the functions and programs undertaken by DHS as called for in this order and shall recommend to the Secretary ways to minimize or mitigate such risks, in a publicly available report, to be released within 1 year of the date of this order. Senior agency privacy and civil liberties officials for other agencies engaged in activities under this order shall conduct assessments of their agency activities and provide those assessments to DHS for consideration and inclusion in the report. The report shall be reviewed on an annual basis and revised as necessary. The report may contain a classified annex if necessary. Assessments shall include evaluation of activities against the Fair Information Practice Principles and other applicable privacy and civil liberties policies, principles, and frameworks. Agencies shall consider the assessments and recommendations of the report in implementing privacy and civil liberties protections for agency activities.

As PCLOB described in its report, “toward the end of the reporting period” (that is, around September), it was involved in interagency meetings discussing privacy.

The Board’s principal work on cybersecurity has centered on its role under E.O. 13636. The Order directs DHS to consult with the Board in developing a report assessing the privacy and civil liberties implications of cybersecurity information sharing and recommending ways to mitigate threats to privacy and civil liberties. At the beginning of the Reporting Period, DHS issued its second E.O. 13636 report. In response to the report, the Board wrote a letter to DHS commending DHS and the other reporting agencies for their early engagement, standardized report format, and improved reporting. Toward the end of the Reporting Period, the Board commenced its participation in its third annual consultation with DHS and other agencies reporting under the Order regarding privacy and civil liberties policies and practices through interagency meetings.

That would have come in the wake of the problems DHS identified, in a letter to Al Franken, with the current (and now codified into law) plan for information sharing under OmniCISA.

Since that time, Congress has moved first to let other agencies veto DHS’ privacy scrubs under OmniCISA and, in final execution, provided a way to create an entire bypass of DHS in the final bill before even allowing DHS as much time as it said it needed to set up the new sharing portal.

That is, it seems that the move to take PCLOB out of cybersecurity oversight accompanied increasingly urgent moves to take DHS out of privacy protection.

All this is just tea leaf reading, of course. But it sure seems that, in addition to the effort to ensure that PCLOB didn’t look too closely at CIA’s efforts to spy on — or drone kill — Americans, Congress has also decided to thwart PCLOB and DHS’ efforts to put some limits on how much cybersecurity efforts impinge on US person privacy.

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

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

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

Interesting Tidbits from the House Intelligence Authorization

The House version of next year’s Intelligence Authorization just passed with big numbers, 364-58.

Among the interesting details included in the unclassified version of the bill, are the following:

Section 303, 411: Permits the ICIG and the CIA IG to obtain information from state and local governments

The bill changes language permitting the Intelligence Community Inspector General and the CIA IG to obtain information from any federal agency to obtain it from federal, state, or local governments.

Which sort of suggests the ICIG and CIA IG is reviewing — and therefore the IC is sharing information with — state and local governments.

I have no big problem with this for ICIG. But doesn’t this suggest the CIA — a foreign intelligence agency — is doing things at the state level? That I do have a problem with.

Update: Note No One Special’s plausible explanation: that the IGs would be investigating misconduct like DWIs. That makes sense, especially given the heightened focus on Insider Threat Detection.

Section 305: Tells PCLOB to stay the fuck out of covert operations

This adds language to the Privacy and Civil Liberties Oversight Board authorization stating that, “Nothing in [it] shall be construed to authorize the Board, or any agent thereof, to gain access to information regarding an activity covered by” the covert operation section of the National Security Act.

OK then! I guess Congress has put PCLOB in its place!

Remember, PCLOB currently has a mandate that extends only to counterterrorism (though it will probably expand to cyber once the CISA-type bill is passed). It is currently investigating a couple of EO 12333 authorized activities that take place in some loopholed areas of concern. I’m guessing it bumped up against something Congress doesn’t want it to know about, and they’ve gone to the trouble of making that clear in the Intelligence Authorization.

As it happens, Ron Wyden is none too impressed with this section and has threatened to object to unanimous consent of the bill in the Senate over it. Here are his concerns.

Section 305 would limit the authority of the watchdog body known as the Privacy and Civil Liberties Oversight Board.  In my judgment, curtailing the authority of an independent oversight body like this Board would be a clearly unwise decision.  Most Americans who I talk to want intelligence agencies to work to protect them from foreign threats, and they also want those agencies to be subject to strong, independent oversight.  And this provision would undermine some of that oversight.

Section 305 states that the Privacy and Civil Liberties Board shall not have the authority to investigate any covert action program.  This is problematic for two reasons.  First, while this Board’s oversight activities to date have not focused on covert action, it is reasonably easy to envision a covert action program that could have a significant impact on Americans’ privacy and civil liberties – for example, if it included a significant surveillance component.

An even bigger concern is that the CIA in particular could attempt to take advantage of this language, and could refuse to cooperate with investigations of its surveillance activities by arguing that those activities were somehow connected to a covert action program.  I recognize that this may not be the intent of this provision, but in my fifteen years on the Intelligence Committee I have repeatedly seen senior CIA officials go to striking lengths to resist external oversight of their activities.  In my judgment Congress should be making it harder, not easier, for intelligence officials to stymie independent oversight.

Section 306: Requires ODNI to check for spooks sporting EFF stickers

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

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

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

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

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

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

Section 313: Requires NIST to develop a measure of cyberdamage

For years, Keith Alexander has been permitted to run around claiming that cyber attacks have represented the greatest transfer of wealth ever (apparently he hasn’t heard of slavery or colonialism). This bill would require NIST to work with FBI and others to come up with a way to quantify the damage from cyberattacks.

Section 401: Requires congressional confirmation of the National Counterintelligence Executive

The National Counterintelligence Executive was pretty negligent in scoping out places like the OPM database that might be prime targets for China. I’m hoping that by requiring congressional appointment, this position becomes more accountable and potentially more independent.

Section 701: Eliminates reporting that probably shouldn’t be eliminated

James Clapper hates reporting requirements, and with this bill he’d get rid of some more of them, some of which are innocuous.

But I am concerned that the bill would eliminate this report on what outside entities spooks are also working for.

(2) The Director of National Intelligence shall annually submit to the congressional intelligence committees a report describing all outside employment for officers and employees of elements of the intelligence community that was authorized by the head of an element of the intelligence community during the preceding calendar year. Such report shall be submitted each year on the date provided in section 3106 of this title.

We’ve just seen several conflict situations at NSA, and eliminating this report would make it less like to ID those conflicts.

The bill would also eliminate these reports.

REPORTS ON NUCLEAR ASPIRATIONS OF NON-STATE ENTITIES.—Section 1055 of the National Defense Authorization Act for Fiscal Year 2010 (50 U.S.C. 2371) is repealed.

REPORTS ON ESPIONAGE BY PEOPLE’S REPUBLIC OF CHINA.—Section 3151 of the National Defense Authorization Act for Fiscal Year 2000 (42 U.S.C. 7383e) is repealed.

Given that both of these issues are of grave concern right now, I do wonder why Clapper doesn’t want to report to Congress on them.

And, then there’s the elimination of this report.

§2659. Report on security vulnerabilities of national security laboratory computers

(a) Report required

Not later than March 1 of each year, the National Counterintelligence Policy Board shall prepare a report on the security vulnerabilities of the computers of the national security laboratories.

(b) Preparation of report

In preparing the report, the National Counterintelligence Policy Board shall establish a so-called “red team” of individuals to perform an operational evaluation of the security vulnerabilities of the computers of one or more national security laboratories, including by direct experimentation. Such individuals shall be selected by the National Counterintelligence Policy Board from among employees of the Department of Defense, the National Security Agency, the Central Intelligence Agency, the Federal Bureau of Investigation, and of other agencies, and may be detailed to the National Counterintelligence Policy Board from such agencies without reimbursement and without interruption or loss of civil service status or privilege.

Clapper’s been gunning to get rid of this one for at least 3 years, with the hysteria about hacking growing in each of those years. Department of Energy, as a whole, at least, is a weak spot in cybersecurity. Nevertheless, Congress is going to eliminate reporting on this.

Maybe the hacking threat isn’t as bad as Clapper says?

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

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

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

Section 702 Used for Cybersecurity: You Read It Here First

I have been reporting for years that the government uses Section 702 for cybersecurity purposes, including its upstream application.

ProPublica and NYT have now confirmed and finally liberated related Snowden documents on the practice. They show that DOJ tried to formalize the process in 2012 (though I have reasons to doubt that the NSA documents released tell all of the story, as I hope to show in upcoming posts).

Without public notice or debate, the Obama administration has expanded the National Security Agency’s warrantless surveillance of Americans’ international Internet traffic to search for evidence of malicious computer hacking, according to classified NSA documents.

In mid-2012, Justice Department lawyers wrote two secret memos permitting the spy agency to begin hunting on Internet cables, without a warrant and on American soil, for data linked to computer intrusions originating abroad — including traffic that flows to suspicious Internet addresses or contains malware, the documents show.

The Justice Department allowed the agency to monitor only addresses and “cybersignatures” — patterns associated with computer intrusions — that it could tie to foreign governments. But the documents also note that the NSA sought to target hackers even when it could not establish any links to foreign powers.

The disclosures, based on documents provided by Edward J. Snowden, the former NSA contractor, and shared with the New York Times and ProPublica, come at a time of unprecedented cyberattacks on American financial institutions, businesses and government agencies, but also of greater scrutiny of secret legal justifications for broader government surveillance.

Jonathan Mayer, whom ProPublica and NYT cite in the article, has his own worthwhile take on what the documents say.

Stay tuned!

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

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

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

Intelligence Committees Still Trying to Force Agencies to Follow Reagan’s Rules

34 years ago Ronald Reagan issued the Executive Order that still governs most of our country’s intelligence activities, EO 12333.

As part of it, the EO required any agency using information concerning US persons to have a set of procedures laying out how it obtains, handles, and disseminates information (see the language of 2.3 below).

Only — as the Privacy and Civil Liberties Oversight Board started pointing out in August 2013 — some agencies have never complied. In February, PCLOB revealed the 4 agencies that are still flouting Reagan’s rules, along with what they have been using:

The Department of Homeland Security’s notoriously shoddy Office of Intelligence and Analysis: Pending issuance of final procedures, I&A is operating pursuant to Interim Intelligence Oversight Procedures, issued jointly by the Under Secretary for Intelligence and Analysis and the Associate General Counsel for Intelligence (April 3, 2008).

United States Coast Guard (USCG)- Intelligence and counterintelligence elements: Pending issuance of final procedures, operating pursuant to Commandant Instruction – COMDINST 3820.12, Coast Guard Intelligence Activities (August 28, 2003).

Department of Treasury Office of Intelligence and Analysis (OIA): Pending issuance of final procedures. While draft guidelines are being reviewed in the interagency approval process, the Office of Intelligence and Analysis conducts intelligence operations pursuant to EO 12333 and statutory responsibilities of the IC element, as advised by supporting legal counsel.

Drug Enforcement Administration, Office of National Security Intelligence (ONSI): Pending issuance of final procedures, operates pursuant to guidance of the Office of Chief Counsel, other guidance, and: Attorney General approved “Guidelines for Disclosure of Grand Jury and Electronic, Wire, and Oral Interception Information Identifying United States Persons” (September 23, 2002); Attorney General approved “Guidelines Regarding Disclosure to the Director of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in the Course of a Criminal Investigation” (September 23, 2002).

Last year’s House Intelligence Committee version of NSA reform (the one I called RuppRoge) would have included language requiring agencies to finish these procedures — mandated 34 years ago — within 6 months. And now, over a year later, Dianne Feinstein’s latest attempt at reform echoed that language.

Which strongly suggests these agencies are still deadbeats.

As I said in February, I’m most concerned about DEA (because DEA is out of control) and, especially, Treasury (because Treasury’s intelligence activities are a black box with little court review). Treasury is making judgements that can blacklist someone financially, but it has thus far refused to institute procedures to protect Americans’ privacy while it does so.

And no one seems to be rushing to require them to do so.


2.3 Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention and dissemination of the following types of information:
(a) Information that is publicly available or collected with the consent of the person concerned;
(b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the FBI or, when significant foreign intelligence is sought, by other authorized agencies of the Intelligence Community, provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons;
(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation;
(d) Information needed to protect the safety of any persons or organizations, including those who are targets, victims or hostages of international terrorist organizations;
(e) Information needed to protect foreign intelligence or counterintelligence sources or methods from unauthorized disclosure. Collection within the United States shall be undertaken by the FBI except that other agencies of the Intelligence Community may also collect such information concerning present or former employees, present or former intelligence agency contractors or their present or former employees, or applicants for any such employment or contracting;
(f) Information concerning persons who are reasonably believed to be potential sources or contacts for the purpose of determining their suitability or credibility;
(g) Information arising out of a lawful personnel, physical or communications security investigation;
(h) Information acquired by overhead reconnaissance not directed at specific United States persons;
(i) Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws; and
(j) Information necessary for administrative purposes.
In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.

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

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

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

The Section 215 Rap Sheet

Marco Rubio, who is running for President as an authoritarian, claims that “There is not a single documented case of abuse of this program.”

He’s not alone. One after another defender of the dragnet make such claims. FBI witnesses who were asked specifically about abuses in 2011 claimed FBI did not know of any abuses (even though FBI Director Robert Mueller had had to justify FBI’s use of the program to get it turned back on after abuses discovered in 2009).

Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?

A — To the FBI’s knowledge, those authorities have not been abused.

Though Section 215 boosters tend to get sort of squishy on their vocabulary, changing language about whether this was illegal, unconstitutional, or abusive.

Here’s what we actually know about the abuses, illegality, and unconstitutionality of Section 215, both the phone dragnet program and Section 215 more generally.

Judges

First, here’s what judges have said about the program:

1) The phone dragnet has been reapproved around 41 times by at least 17 different FISC judges

The government points to this detail as justification for the program. It’s worth noting, however, that FISC didn’t get around to writing an opinion assessing the program legally until 10 judges and 34 orders in.  Since Snowden exposed the program, the FISC appears to have made a concerted effort to have new judges sign off on each new opinion.

2) Three Article III courts have upheld the program:

Judges William Pauley and Lynn Winmill upheld the constitutionality of the program (but did not asses the legality of it); though Pauley was reversed on statutory, not constitutional grounds. Judge Jeffrey Miller upheld the use of Section 215 evidence against Basaaly Moalin on constitutional grounds.

3) One Article III court — Judge Richard Leon in Klayman v. Obama — found the program unconstitutional.

4) The Second Circuit (along with PCLOB, including retired Circuit Court judge Patricia Wald, though they’re not a court), found the program not authorized by statute.

The latter decision, of course, is thus far the binding one. And the 2nd Circuit has suggested that if it has to consider the program on constitution grounds, it might well find it unconstitutional as well.

Statutory abuses

1) As DOJ’s IG confirmed yesterday, for most of the life of the phone dragnet (September 2006 through November 2013), the FBI flouted a mandate imposed by Congress in 2006 to adopt Section 215-specific minimization procedures that would give Americans additional protections under the provision (note–this affects all Section 215 programs, not just the phone dragnet). While, after a few years, FISC started imposing its own minimization procedures and reporting requirements (and rejected proposed minimization procedures in 2010), it nevertheless kept approving Section 215 orders.

In other words, in addition to being illegal (per the 2nd Circuit), the program also violated this part of the law for 7 years.

2) Along with all the violations of minimization procedures imposed by FISC discovered in 2009, the NSA admitted that it had been tracking roughly 3,000 presumed US persons against data collected under Section 215 without first certifying that they weren’t targeted on the basis of First Amendment protected activities, as required by the statute.

Between 24 May 2006 and 2 February 2009, NSA Homeland Mission Coordinators (HMCs) or their predecessors concluded that approximately 3,000 domestic telephone identifiers reported to Intelligence Community agencies satisfied the RAS standard and could be used as seed identifiers. However, at the time these domestic telephone identifiers were designated as RAS-approved, NSA’s OGC had not reviewed and approved their use as “seeds” as required by the Court’s Orders. NSA remedied this compliance incident by re-designating all such telephone identifiers as non RAS-approved for use as seed identifiers in early February 2009. NSA verified that although some of the 3,000 domestic identifiers generated alerts as a result of the Telephony Activity Detection Process discussed above, none of those alerts resulted in reports to Intelligence Community agencies.

NSA did not fix this problem by reviewing the basis for their targeting; instead, it simply moved these US person identifiers back onto the EO 12333 only list.

While we don’t have the background explanation, in the last year, FISC reiterated that the government must give First Amendment review before targeting people under Emergency Provisions. If so, that would reflect the second time where close FISC review led the government to admit it wasn’t doing proper First Amendment reviews, which may reflect a more systematic problem. That would not be surprising, since the government has already been chipping away at that First Amendment review via specific orders.

Minimization procedure abuses

1) The best known abuses of minimization procedures imposed by the FISC were disclosed to the FISC in 2009. The main item disclosed involved the fact that NSA had been abusing the term “archive” to create a pre-archive search against identifiers not approved for search. While NSA claimed this problem arose because no one person knew what the requirements were, in point of fact, NSA’s Inspector General warned that this alert function should be disclosed to FISC, and it was a function from the Stellar Wind program that NSA simply did not turn off when FISC set new requirements when it rubber-stamped the program.

But there were a slew of other violations of FISC-imposed minimization procedures disclosed at that time, almost all arising because NSA treated 215 data just like it treats EO 12333, in spite of FISC’s clear requirements that such data be treated with additional protections. That includes making query results available to CIA and FBI, the use of automatic search functions, and including querying on any “correlated” identifiers. These violations, in sum, are very instructive for the USA F-ReDux debate because NSA has never managed to turn these automated processes back on since, and one thing they presumably hope to gain out of moving data to the providers is to better automate the process.

2) A potentially far more egregious abuse of minimization procedures was discovered (and disclosed) in 2012, when NSA discovered that raw data NSA’s techs were using over 3,000 files of phone dragnet data on their technical server past the destruction date.

As of 16 February 2012, NSA determined that approximately 3,032 files containing call detail records potentially collected pursuant to prior BR Orders were retained on a server and been collected more than five years ago in violation of the 5-year retention period established for BR collection. Specifically, these files were retained on a server used by technical personnel working with the Business Records metadata to maintain documentation of provider feed data formats and performed background analysis to document why certain contact chaining rules were created. In addition to the BR work, this server also contains information related to the STELLARWIND program and files which do not appear to be related to either of these programs. NSA bases its determination that these files may be in violation of BR 11-191 because of the type of information contained in the files (i.e., call detail records), the access to the server by technical personnel who worked with the BR metadata, and the listed “creation date” for the files. It is possible that these files contain STELLARWIND data, despite the creation date. The STELLARWIND data could have been copied to this server, and that process could have changed the creation date to a timeframe that appears to indicate that they may contain BR metadata.

But rather than investigate this violation — rather than clarify how much data this entailed, whether it had been mingled with Stellar Wind data, whether any other violations had occurred — NSA destroyed the data.

In one incident, NSA technical personnel discovered a technical server with nearly 3,000 files containing call detail records that were more than five years old, but that had not been destroyed in accordance with the applicable retention rules. These files were among those used in connection with a migration of call detail records to a new system. Because a single file may contain more than one call detail record, and because the files were promptly destroyed by agency technical personnel, the NSA could not provide an estimate regarding the volume of calling records that were retained beyond the five-year limit. The technical server in question was not available to intelligence analysts.

From everything we’ve seen the tech and research functions are not audited, not even when they’re playing with raw data (which is, I guess, why SysAdmin Edward Snowden could walk away with so many records). So not only does this violation show that tech access to raw data falls outside of the compliance mechanisms laid out in minimization procedures (in part, with explicit permission), but that NSA doesn’t try very hard to track down very significant violations that happen.

Overall sloppiness

Finally, while sloppiness on applications is not a legal violation, it does raise concerns about production under the statute. The IG Report reviewed just six case files which used Section 215 orders. Although the section is heavily redacted, there are reasons to be significantly concerned about four of those.

  • An application made using expedited approval that made a material misstatement about where FBI obtained a tip about the content of a phone call. The FBI agent involved “is no longer with the FBI.” The target was prosecuted for unlawful disclosure of nuke information, but the Section 215 evidence was not introduced into trial and therefore he did not have an opportunity to challenge any illegal investigative methods.
  • A 2009 application involving significant minimization concerns and for which FBI rolled out a “investigative value” exception for access limits on Section 215 databases. This also may involve FBI’s secret definition of US person, which I suspect pertains to treating IP addresses as non-US persons until they know it is a US person (this is akin to what they do under 702 MPs). DOJ’s minimization report to FISC included inaccuracies not fixed until June 13, 2013.
  • A 2009 application for a preliminary investigation that obtained medical and education records from the target’s employer. FBI ultimately determined the target “had no nexus to terrorism,” though it appears FBI kept all information on the target (meaning he will have records at FBI for 30 years). The FBI’s minimization report included an error not fixed until June 13, 2013, after the IG pointed it out.
  • A cyber-investigation for which the case agent could not locate the original production, which he claims was never placed in the case file.

And that’s just what can be discerned from the unredacted bits.

Remember, too: the inaccuracies (as opposed to the material misstatement) were on minimization procedures. Which suggests FBI was either deceitful — or inattentive — to how it was complying with FISC-mandated minimization procedures designed to protect innocent Americans’ privacy.

And remember — all this is just Section 215. The legal violations under PRTT were far more egregious, and there are other known violations and misstatements to FISC on other programs.

This is a troubling program, one that several judges have found either unconstitutional or illegal.

 

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

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

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