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In a Bid to Remain Relevant, PCLOB Will Treat Carter Page as a Suspected Terrorist

It takes until paragraph 19 of this story on the decision by the Privacy and Civil Liberties Oversight Board to examine Title I FISA processes before it explains why the decision is such an obvious political game.

[PCLOB Chair Adam] Klein said the board plans only to examine counterterrorism matters, which would preclude any review of wiretap applications for Page or any investigation by the FBI of the Trump campaign.

PCLOB’s mandate is limited to counterterrorism. There were efforts to expand its mandate to include counterintelligence as part of Section 215 reauthorization that failed, so Congress has expressed an intent in recent days to limit PCLOB’s mandate to counterterrorism. Which means PCLOB has no mandate to investigate the Carter Page investigation.

But in spite of that limit on PCLOB’s mandate, PCLOB’s Republicans have decided to examine what the story calls DOJ IG’s “findings.”

Adam I. Klein, the chairman of the privacy board, said that the issues Horowitz surfaced were precisely those that the board was established to examine.

“This is at the heartland of our jurisdiction,” said Klein, a lawyer and prominent researcher of FISA and other national security laws. “The IG found systemic compliance problems. At a minimum, we have a duty to inform ourselves.”

Let’s review the posture of DOJ IG’s investigations into FISA-related functions. DOJ IG did an investigation into the Carter Page FISA applications, and found significant problems, both Woods Procedure compliance problems and lack of disclosure of material facts to the court. The way in which FBI first validated and then fact-checked an informant — long cited as a problem by defense attorneys representing counterterrorism defendants — was among the most egregious problems in the Page applications.

The Page investigation is the only finished investigation. That investigation is into a counterintelligence case, and therefore well outside of PCLOB’s mandate.

Based on the findings in that report, DOJ IG set out on an investigation into whether the problems evinced in the Page report are more systematic. As originally scoped, however, that review focused on whether the Woods Procedures–failures in which were not the most urgent or egregious aspect of the Carter Page problems–works. After three months, DOJ IG decided to issue a Management Advisor Memorandum to formally reveal its interim results that show that the Woods Procedures, and the National Security Division’s associated Accuracy Reviews, don’t work.

As a result of these findings, in December 2019, my office initiated an audit to examine more broadly the FBI’s execution of, and compliance with, its Woods Procedures relating to U.S. Persons covering the period from October 2014 to September 2019. As an initial step in our audit, over the past 2 months, we visited 8 FBI field offices of varying sizes and reviewed a judgmentally selected sample of 29 applications relating to U.S. Persons and involving both counterintelligence and counterterrorism investigations. This sample was selected from a dataset provided by the FBI that contained more than 700 applications relating to U.S. Persons submitted by those 8 field offices over a 5-year period. The proportion of counterintelligence and counterterrorism applications within our sample roughly models the ratio of the case types within that total of FBI FISA applications. Our initial review of these applications has consisted solely of determining whether the contents of the FBI’s Woods File supported statements of fact in the associated FISA application; our review did not seek to determine whether support existed elsewhere for the factual assertion in the FISA application (such as in the case file), or if relevant information had been omitted from the application. For all of the FISA applications that we have reviewed to date, the period of courtauthorized surveillance had been completed and no such surveillance was active at the time of our review.

[snip]

As a result of our audit work to date and as described below, we do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy.

[snip]

During this initial review, we have not made judgments about whether the errors or concerns we identified were material. Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application. In addition, our review was limited to assessing the FBI’s execution of its Woods Procedures, which are not focused on affirming the completeness of the information in FISA applications.

The statistics provided in the MAM reveal that, with respect to Woods Procedures, Carter Page’s FISA applications were actually far better than all but one of the applications DOJ IG reviewed.

But the MAM is not a finished review and, aside from a passing reference to FBI’s failures to document informant reliability, hasn’t focused on issues known to be problematic in FISA applications targeting counterterrorism suspects.

Meanwhile, PCLOB plans to use its mandate to review counterterrorism programs to demand a list of prominent individuals targeted under FISA for the period of the DOJ IG review, 2015 to 2019.

The board will also request the number of investigations touching on prominent individuals in which the FBI sought an order from the surveillance court between 2015 and 2019. Those investigations, which the bureau defines as sensitive investigative matters, may include public officials or candidates for office, according to Justice Department guidelines.

As far as is public there have been zero prominent individuals known to be targeted under FISA. Carter Page — an unknown advisor with no institutional affiliation in DC — certainly didn’t qualify when he was targeted. (I can think of one person investigated as part of the Russian investigation who is a key influence peddler in DC who might have been targeted, but the person is not nationally known outside of political circles.)

There have, however, been key leaders in the Muslim community — who are virtually unknown outside of the Muslim or civil liberties community — targeted under FISA, per one of the most important reports to come out of the Snowden leaks (though before the period of PCLOB’s review).

• Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;

• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;

• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;

• Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;

• Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

PCLOB probably can’t access this list because its members all have clearance, but this is where you’d start to understand the First Amendment impact of FISA on counterterrorism subjects, not by asking for a list of all the prominent people more likely to be targeted under counterintelligence.

Don’t get me wrong. If this PCLOB review were credible, I’d welcome it. If PCLOB’s mandate actually matched the scope of FISA, it could be a welcome new check on the authority.

But, as I noted in a post on some of the efforts to reform FISA legislatively, because PCLOB’s mandate does not cover some of the FISA practices of most concern, it is useless as an oversight body.

One would imagine that Carter Page, whom the Republicans think was targeted because he volunteered for the Trump campaign, would be among the people bill drafters had in mind for First Amendment protect activities.

Except he wouldn’t be included, for two reasons.

First, PCLOB’s mandate is limited to counterterrorism programs. That didn’t matter for their very good Section 215 report, because they were examining only the CDR program, which itself was limited to terrorism (and Iran).

But it did matter for the Section 702 report. In fact, PCLOB ignored some of the most problematic practices under Section 702, conducted under the guise of cybersecurity, because that’s outside their mandate! It also didn’t explore the impact of NSA’s too-broad definition of targeting under the Foreign Government certificate.

In this case, unless you expand the scope of PCLOB, then this report would only report on the targets of terrorism FISA activity, not foreign intelligence FISA activity, and so not people like Carter Page.

I was told by a key congressional negotiator that expanding PCLOB’s mandate to match FISA (that is, to include counterintelligence and foreign cyber investigations) would kill the bill. Mind you, the bill died overnight anyway, in part because Trump and his supporters want something that more directly feels like a response to the Carter Page applications.

Particularly given that FISA remains under active legislative debate, then, PCLOB would be much better served by arguing that their mandate needs to be expanded to cover all national security investigations, citing their inability to review what happened to Carter Page without overstepping their mandate.

Instead, they appear intent on overstepping their mandate.

Update: In a response to some questions from PCLOB’s press person, it appears PCLOB may misunderstand the results of DOJ IG’s interim findings. PCLOB appears to believe that DOJ IG has found material problems with the 29 files it reviewed, rather than Woods Procedures violations that it has not yet determined to be material.

As you’re aware, the most recent DoJ IG examination found problems with all 29 FISA applications it examined, many of which were for counterterrorism. Of these 29, the Board has requested only those applications that were related to counterterrorism.

The IG’s findings are troubling and suggest systematic shortcomings, with serious implications for Americans’ privacy and civil liberties.

It also appears to believe the FISA mandate to involve PCLOB would permit PCLOB to meaningfully address First Amendment issues even though it could not address many of the problems disproportionately affecting Americans.

Finally, as you may know, the House draft of the USA FREEDOM Act reauthorization bill includes a provision that directs the Board to examine whether activities protected under the First Amendment have any impact on the FISA process.  Should the bill ultimately pass Congress and be signed into law, the forum would help inform Board members on that project as well.

The Carter Page Clauses in the FISA Reform Bill Wouldn’t Help Carter Page

The House Judiciary Committee has released a mark-up for a bill that would reauthorize Section 215 and make some improvements. It’s not a bad bill. It would:

  • End the Call Detail Record program and prohibit prospective call record collection
  • Include notice for 215 collection
  • End FBI’s exemption for reporting requirements
  • Improve the FISA amicus
  • Impose deadlines for releasing FISA orders

But the bill almost certainly doesn’t accomplish the things it first set out to do, to provide added protections for someone like Carter Page. It does this in two ways.

First, it requires the Privacy and Civil Liberties Oversight Board to complete a report on how much First Amendment activities or race, ethnicity, national origin, religion, or sex are used in targeting decisions under FISA.

SEC. 303. REPORT ON USE OF FISA AUTHORITIES REGARDING PROTECTED ACTIVITIES AND PROTECTED CLASSES.

(a) REPORT.—Not later than one year after the date of the enactment of this Act, the Privacy and Civil Liberties Oversight Board shall make publicly available, to the extent practicable, a report on—

(1) the extent to which the activities and protected classes described in subsection (b) are used to support targeting decisions in the use of authorities pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); and

(2) the impact of the use of such authorities on such activities and protected classes.

(b) ACTIVITIES AND PROTECTED CLASSES DESCRIBED.—The activities and protected classes described in this subsection are the following:

(1) Activities and expression protected by the First Amendment to the Constitution of the United States.

(2) Race, ethnicity, national origin, religious affiliation, sex, and any other protected characteristic determined appropriate by the Board.

(c) FORM.—In addition to the report made publicly available under subsection (a), the Board may submit to the appropriate congressional committees a classified annex.

One would imagine that Carter Page, whom the Republicans think was targeted because he volunteered for the Trump campaign, would be among the people bill drafters had in mind for First Amendment protect activities.

Except he wouldn’t be included, for two reasons.

First, PCLOB’s mandate is limited to counterterrorism programs. That didn’t matter for their very good Section 215 report, because they were examining only the CDR program, which itself was limited to terrorism (and Iran).

But it did matter for the Section 702 report. In fact, PCLOB ignored some of the most problematic practices under Section 702, conducted under the guise of cybersecurity, because that’s outside their mandate! It also didn’t explore the impact of NSA’s too-broad definition of targeting under the Foreign Government certificate.

In this case, unless you expand the scope of PCLOB, then this report would only report on the targets of terrorism FISA activity, not foreign intelligence FISA activity, and so not people like Carter Page.

Carter Page would also not be covered under this and a clause attempting to ensure the FISA amicus reviews applications with any First Amendment component.

(a) EXPANSION OF APPOINTMENT AUTHORITY.— Subparagraph (A) of section 103(i)(2) (50 U.S.C. 1803(i)(2)) is amended to read as follows:

‘‘(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court—

‘‘(i) presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is 16 not appropriate; or

‘‘(ii) presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution, unless the court issues a finding that such appointment is not appropriate; and’’.

Here, the problem has to do with the investigation into Carter Page, and the way I understand FISA was written originally.

As I note in this post, DOJ IG didn’t figure out until 11 days after it published the Carter Page IG Report that the FBI used (and may still use) the same investigative code for both FARA — which by definition has a political component — and 18 USC 951 — which doesn’t need to have. The report as a whole had a long discussion of the standard to get beyond First Amendment considerations, as if all four Trump flunkies targeted under Crossfire Hurricane would qualify.

FISA provides that a U.S. person may not be found to be a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment. 129 Congress added this language to reinforce that lawful political activities may not serve as the only basis for a probable cause finding, recognizing that “there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of the [F]irst [A]mendment rights,” particularly between legitimate political activity and “other clandestine intelligence activities. “130 The Report by SSCI accompanying the passage of FISA states that there must be “willful” deception about the origin or intent of political activity to support a finding that it constitutes “other clandestine intelligence activities”:

If…foreign intelligence services hide behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative and such deception is willfully maintained in violation of the Foreign Agents Registration Act, then electronic surveillance might be justified under [“other clandestine intelligence activities”] if all the other criteria of [FISA] were met. 131

129 See 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

130 H. Rep. 95-1283 at 41, 79-80; FISA guidance at 7-8; see also Rosen, 447 F. Supp. 2d at 547-48 (probable cause finding may be based partly on First Amendment protected activity).

131 See S. Rep. 95-701 at 24-25. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq., is a disclosure statute that requires persons acting as agents of foreign principals such as a foreign government or foreign political party in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.

Except it miscited the reference to the Senate Report. The citation, as written, goes to a passage of the Senate Report that says that if a potential target is acting under the direction of an intelligence service of a foreign power, they can be targeted even for their political activities.

It is the intent of this requirement that even if there is some substantial contact between domestic groups or individual citizens and a foreign power, as defined in this bill, no electronic surveillance wider this subparagraph may be authorized unless the American is acting under the direction of an intelligence service of a foreign power.

The investigation into Carter Page started because he kept sharing non-public economic information with people he knew to be Russian intelligence officers (it was probably started as some kind of economic espionage case).

That is, even before he joined the campaign, FBI had gotten beyond the bar that would treat Page’s targeting as a First Amendment concern, because the entire suspicion stemmed from Page’s explicit willingness to act at the direction of Russia’s intelligence service.

Don’t get me wrong. These are both improvements, with the amicus review for First Amendment activities especially (indeed, I suspect that’s what some of the applications that FBI withdrew in recent years pertained to).

But to do what this bill wants to do on the PCLOB report, you’d have to expand the mandate of PCLOB to cover hacking and spying — something that should happen in any case. That’s especially crucial in this case, given that one of the ethnicities most affected by FISA are Chinese Americans, but as suspected spies, not as suspected terrorists.

And if you want Carter Page to get these enhanced protections, you’d need to change how working for a foreign country affects the First Amendment calculation on FISA.

Why I Left The Intercept: The Surveillance Story They Let Go Untold for 15 Months

The Intercept has a long, must-read story from James Risen about the government’s targeting of him for his reporting on the war on terror. It’s self-serving in many ways — there are parts of his telling of the Wen Ho Lee, the Valerie Plame, and the Jeffrey Sterling stories he leaves out, which I may return to. But it provides a critical narrative of DOJ’s pursuit of him. He describes how DOJ tracked even his financial transactions with his kids (which I wrote about here).

The government eventually disclosed that they had not subpoenaed my phone records, but had subpoenaed the records of people with whom I was in contact. The government obtained my credit reports, along with my credit card and bank records, and hotel and flight records from my travel. They also monitored my financial transactions with my children, including cash I wired to one of my sons while he was studying in Europe.

He also reveals that DOJ sent him a letter suggesting he might be a subject of the investigation into Stellar Wind.

But in August 2007, I found out that the government hadn’t forgotten about me. Penny called to tell me that a FedEx envelope had arrived from the Justice Department. It was a letter saying the DOJ was conducting a criminal investigation into “the unauthorized disclosure of classified information” in “State of War.” The letter was apparently sent to satisfy the requirements of the Justice Department’s internal guidelines that lay out how prosecutors should proceed before issuing subpoenas to journalists to testify in criminal cases.

[snip]

When my lawyers called the Justice Department about the letter I had received, prosecutors refused to assure them that I was not a “subject” of their investigation. That was bad news. If I were considered a “subject,” rather than simply a witness, it meant the government hadn’t ruled out prosecuting me for publishing classified information or other alleged offenses.

But a key part of the story lays out the NYT’s refusals to report Risen’s Merlin story and its reluctance — until Risen threatened to scoop him with his book — to publish the Stellar Wind one.

Glenn Greenwald is rightly touting the piece, suggesting that the NYT was corrupt for acceding to the government’s wishes to hold the Stellar Wind story. But in doing so he suggests The Intercept would never do the same.

That’s not correct.

One of two reasons I left The Intercept is because John Cook did not want to publish a story I had written — it was drafted in the content management system — about how the government uses Section 702 to track cyberattacks. Given that The Intercept thinks such stories are newsworthy, I’m breaking my silence now to explain why I left The Intercept.

I was recruited to work with First Look before it was publicly announced. The initial discussions pertained to a full time job, with a generous salary. But along the way — after Glenn and Jeremy Scahill had already gotten a number of other people hired and as Pierre Omidyar started hearing from friends that the effort was out of control — the outlet decided that they were going to go in a different direction. They’d have journalists — Glenn and Jeremy counted as that. And they’d have bloggers, who would get paid less.

At that point, the discussion of hiring me turned into a discussion of a temporary part time hire. I should have balked at that point. What distinguishes my reporting from other journalists — that I’m document rather than source-focused (though by no means exclusively), to say nothing of the fact that I was the only journalist who had read both the released Snowden documents and the official government releases — should have been an asset to The Intercept. But I wanted to work on the Snowden documents, and so I agreed to those terms.

There were a lot of other reasons why, at that chaotic time, working at The Intercept was a pain in the ass. But nevertheless I set out to write stories I knew the Snowden documents would support. The most important one, I believed, was to document how the government was using upstream Section 702 for cybersecurity — something it had admitted in its very first releases, but something that it tried to hide as time went on. With Ryan Gallagher’s help, I soon had the proof of that.

The initial hook I wanted to use for the story was how, in testimony to PCLOB, government officials misleadingly suggested it only used upstream to collect on things like email addresses.

Bob Litt:

We then target selectors such as telephone numbers or email addresses that will produce foreign intelligence falling within the scope of the certifications.

[snip]

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.

[snip]

It is also however selector-based, i.e. based on particular phone numbers or emails, things like phone numbers or emails.

Raj De:

Selectors are things like phone numbers and email addresses.

[snip]

A term like selector is just an operational term to refer to something like an email or phone number, directive being the legal process by which that’s effectuated, and tasking being the sort of internal government term for how you start the collection on a particular selector.

[snip]

So all collection under 702 is based on specific selectors, things like phone numbers or email addresses.

Brad Wiegmann:

A selector would typically be an email account or a phone number that you are targeting.

[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.

[snip]

So putting those cases aside, in cases where we just kind of get it wrong, we think the email account or the phone is located overseas but it turns out that that’s wrong, or it turns out that we think it’s a non-U.S. person but it is a  U.S. person, we do review every single one to see if that’s the case.

That PCLOB’s witnesses so carefully obscured the fact that 702 is used to collect cybersecurity and other IP-based or other code collection is important for several reasons. First, because collection on a chat room or an encryption key, rather than an email thread, has very different First Amendment implications than collecting on the email of a target. But particularly within the cybersecurity function, identifying foreignness is going to be far more difficult to do because cyberattacks virtually by definition obscure their location, and you risk collecting on victims (whether they are hijacked websites or emails, or actual theft victims) as well as the perpetrator.

Moreover, the distinction was particularly critical because most of the privacy community did not know — many still don’t — how NSA interpreted the word “facility,” and therefore was missing this entire privacy-impacting aspect of the program (though Jameel Jaffer did raise the collection on IP addresses in the hearing).

I had, before writing up the piece, done the same kind of iterative work (one, two, three) I always do; the last of these would have been a worthy story for The Intercept, and did get covered elsewhere. That meant I had put in close to 25 hours working on the hearing before I did other work tied to the story at The Intercept.

I wrote up the story and started talking to John Cook, who had only recently been brought in, about publishing it. He told me that the use of 702 with cyber sounded like a good application (it is!), so why would we want to expose it. I laid out why it would be questionably legal under the 2011 John Bates opinion, but in any case would have very different privacy implications than the terrorism function that the government liked to harp on.

In the end, Cook softened his stance against spiking the story. He told me to keep reporting on it. But in the same conversation, I told him I was no longer willing to work in a part time capacity for the outlet, because it meant The Intercept benefitted from the iterative work that was as much a part of my method as meetings with sources that reveal no big scoop. I told him I was no longer willing to work for The Intercept for free.

Cook’s response to that was to exclude me from the first meeting at which all Intercept reporters would be meeting. The two things together — the refusal to pay me for work and expertise that would be critical to Intercept stories, as well as the reluctance to report what was an important surveillance story, not to mention Cook’s apparent opinion I was not a worthy journalist — are why I left.

And so, in addition to losing the person who could report on both the substance and the policy of the spying that was so central to the Snowden archives, the story didn’t get told until 15 months later, by two journalists with whom I had previously discussed 702’s cybersecurity function specifically with regards to the Snowden archive. In the interim period, the government got approval for the Tor exception (which I remain the only reporter to have covered), an application that might have been scrutinized more closely had the privacy community been discussing the privacy implications of collecting location-obscured data in the interim.

As recently as November, The Intercept asked me questions about how 702 is actually implemented because I am, after all, the expert.

So by all means, read The Intercept’s story about how the NYT refused to report on certain stories. But know that The Intercept has not always been above such things itself. In 2014 it was reluctant to publish a story the NYT thought was newsworthy by the time they got around to publishing it 15 months later.

USA Freedom Act Scofflaw Rosemary Collyer Claims She Can’t Find a Tech Expert

I say this a lot: for a privacy person, I’m actually pretty willing to defend the work of the so-called rubber stamp FISA Court. I’ve reported on some areas — such as location data — where FISC does or at least use to — require a higher standard of legal process than criminal courts. And I’ve described the diligent efforts various judges — Reggie Walton, especially, but also Colleen Kollar-Kotelly, Thomas Hogan and John Bates — have made to get NSA to follow the law. That doesn’t mean the court is the way the US should oversee programmatic spying, but it does a better job than usually given credit for.

Not so Rosemary Collyer, whom I predicted would be an awful presiding judge before she got the position. That prediction was proven right in this year’s shitty 702 reauthorization. I laid out at more length here how in that opinion, Collyer failed to use the levers Bates had created for the court to ensure the NSA follows the law.

But on top of failing to use the tools her predecessors put in place to ensure that FISA (and her court) remains the exclusive means to conduct domestic foreign intelligence surveillance, Collyer did something even more trouble. She failed to consult an amicus — or explain why she didn’t need to — in the process of approving back door searches to be used with collection she knew to include domestic communications. By failing to do that, I have argued, she broke the law, failing to fulfill the requirements of amicus review or explanation mandated by the USA Freedom Act.

I laid all that out here, too, in a post reporting on the request from a bunch of Senators that FISC appoint a technical amicus. As I noted, if Collyer isn’t going to consult amici, then having a tech amicus available isn’t going to help (and had she consulted the most obvious amicus earlier this year, Marc Zwillinger, he likely would have raised the import of the technical questions she seemed not to understand).

I didn’t realize it but Collyer responded late last month. (h/t Cryptome) She made a remarkably lame excuse for not appointing any tech amici.

We are now actively seeking technical experts who can also act as amici curiae. However, it has not proved to be a simple matter to find appropriate technical expertise. In considering technical advisors we must assess their abilities and qualifications, including their eligibility for security clearances and willingness to abide by attendant obligations regarding reporting of foreign contacts and pre-publication review (which is concerning to some potential candidates). As a result, we expect the process of finding a pool of appropriate technical amici to take some time to complete. Nonetheless, please be assured that this matter is very much on our minds and the court is engaged in continuing outreach.

As I pointed out in my first post on this, Steve Bellovin — who had been selected (and I believe cleared) to serve as technical advisor to PCLOB would be available given the effective demise of that body. Bellovin co-authored an important paper on precisely the issue Collyer dodged in her upstream opinion: where metadata ends and content begins in a packet.

So I’m pretty unsympathetic with Collyer’s claims the FISC simply can’t find appropriate technical experts, or couldn’t here.

Of course, had she not broken the law — had she at least appointed an amicus for April’s opinion — one of them might have offered up Bellovin’s name or a number of other cleared experts.

So it’s nice she’s paying lip service to the kind of technical expertise that might have helped her avoid the problems in this year’s 702 reauthorization.

But given her other actions, it’s hard to believe it is anything but lip service.

I Con the Record Transparency Bingo (4): How 151 Million Call Events Can Look Reasonable But Is Besides the Point

Other entries in I Con the Record Transparency Bingo:

(1) Only One Positive Hit on a Criminal Search

(2): The Inexplicable Drop in PRTT Numbers

(3): CIA Continues to Hide Its US Person Network Analysis

If your understanding of the phone dragnet replacing the old USA Freedom dragnet came from the the public claims of USA Freedom Act boosters or from this NYT article on the I Con the Record report, you might believe 42 terrorist suspects and their 3,150 friends made 48,000 phone calls last year, which would work out to 130 calls a day … or maybe 24,000 perfectly duplicative calls, which works out to about 65 calls a day.

That’s the math suggested by these two entries in the I Con the Record Transparency Report — showing that the 42 targets of the new phone dragnet generated over 151 million “call detail records.” But as I’ll show, the impact of the 151 million [corrected] records collected last year is in some ways far lower than collecting 65 calls a day, which is a good thing! But it supports a claim that USAF has an entirely different function than boosters understood.

 

Here’s the math for assuming these are just phone calls. There were 42 targets approved for use in the new phone dragnet for some part of last year. Given the data showing just 40 orders, they might only be approved for six months of the year (each order lasts for 180 days), but we’ll just assume the NSA gets multiple targets approved with each order and that all 42 targets were tasked for the entirety of last year (for example, you could have just two orders getting 42 targets approved to cover all these people for a year).

In its report on the phone dragnet, PCLOB estimated that each target might have 75 total contacts. So a first round would collect on 42 targets, but with a second round you would be collecting on 3,192 people. That would mean each of those 3,192 people would be responsible for roughly 48,000 calls a year, every single one of which might represent a new totally innocent American sucked into NSA’s maw for the short term [update: that would be up to a total of 239,400 2nd-degree interlocutors]. The I Con the Record report says that, “the metric provided is over‐inclusive because the government counts each record separately even if the government receives the same record multiple times (whether from one provider or multiple providers).” If these were phone calls between just two people, then if our terrorist buddies only spoke to each other, each would be responsible for 24,000 calls a year, or 65 a day, which is certainly doable, but would mean our terrorist suspects and their friends all spent a lot of time calling each other.

The number becomes less surprising when you remember that even with traditional telephony call records can capture calls and texts. All of a sudden 65 becomes a lot more doable, and a lot more likely to have lots of perfectly duplicative records as terrorists and their buddies spend afternoons texting back and forth with each other.

Still, it may mean that 65 totally innocent people a day get sucked up by NSA.

All that said, there’s no reason to believe we’re dealing just with texts and calls.

As the report reminds us, we’re actually talking about session identifying information, which in the report I Con the Record pretends are “commonly referred to” as “call events.”

Call Detail Records (CDR) – commonly referred to as “call event metadata” – may be obtained from telecommunications providers pursuant to 50 U.S.C. §1861(b)(2)(C). A CDR is defined as session identifying information (including an originating or terminating telephone number, an International Mobile Subscriber Identity (IMSI) number, or an International Mobile Station Equipment Identity (IMEI) number), a telephone calling card number, or the time or duration of a call. See 50 U.S.C. §1861(k)(3)(A). CDRs do not include the content of any communication, the name, address, or financial information of a subscriber or customer, or cell site location or global positioning system information. See 50 U.S.C. §1861(k)(3)(B). CDRs are stored and queried by the service providers. See 50 U.S.C. §1861(c)(2).

Significantly, this parenthesis — “(including an originating or terminating telephone number, an International Mobile Subscriber Identity (IMSI) number, or an International Mobile Station Equipment Identity (IMEI) number)” — suggests that so long as something returns a phone number, a SIM card number, or a handset number, that can be a “call event.” That is, a terrorist using his cell phone to access a site, generating a cookie, would have the requisite identifiers for his phone as well as a time associated with it. And I Con the Record’s transparency report says it is collecting these “call event” records from “telecommunications” firms, not phone companies, meaning a lot more kinds of things might be included — certainly iMessage and WhatsApp, possibly Signal. Indeed, that’s necessarily true given repeated efforts in Congress to get a list of all electronic communications service providers company that don’t keep their “call records” 18 months and to track any changes in retention policies. It’s also necessarily true given Marco Rubio’s claim that we’re sending requests out to a “large and significant number of companies” under the new phone dragnet.

The fine print provides further elements that suggest both that the 151 million events collected last year are not that high. First, it suggests a significant number of CDRs fail validation at some point in the process.

This metric represents the number of records received from the provider(s) and stored in NSA repositories (records that fail at any of a variety of validation steps are not included in this number).

At one level, this means NSA’s results resulted in well more than 151 million events collected. But it also means they may be getting junk. One thing that in the past might have represented a failed validation is if the target no longer uses the selector, though the apparent failure at multiple levels suggests there may be far more interesting reasons for failed validation, some probably technically more interesting.

In addition, the fine print notes that the 151 million call events include both historical events collected with the first order as well as the prospective events collected each day.

CDRs covered by § 501(b)(2)(C) include call detail records created before, on, or after the date of the application relating to an authorized investigation.

So these events weren’t all generated last year — if they’re from AT&T they could have been generated decades ago. Remember that Verizon and T-Mobile agreed to a handshake agreement to keep their call records two years as part of USAF, so for major providers providing just traditional telephony, a request will include at least two years of data, plus the prospective collection. That means our 3,192 targets and friends might only have had 48 calls or texts a day, without any duplication.

Finally, there’s one more thing that suggests this huge number isn’t that huge, but that also it may be a totally irrelevant measure of the privacy impact. In NSA’s document on implementing the program from last year, it described first querying the NSA Enterprise Architecture to find query results, and then sending out selectors for more data.

Once the one-hop results are retrieved from the NSA’s internal holdings, the list of FISC-approved specific selection terms, along with NSA’s internal one-hop results, are submitted to the provider(s).

In other words — and this is a point that was clear about the old phone dragnet but which most people simply refused to understand — this program is not only designed to interact seamlessly with EO 12333 collected data (NSA’s report says so explicitly, as did the USAF report), but many of the selectors involved are already in NSA’s maw.

Under the old phone dragnet, a great proportion of the phone records in question came from EO 12333. NSA preferred then — and I’m sure still prefers now — to rely on queries run on EO 12333 because they came with fewer limits on dissemination.

Which means we need to understand the 65 additional texts — or anything else available only in the US from a large number of electronic communications service providers that might be deemed a session identifier — a day from 42 terrorists and their 3150 buddies on top of the vast store of EO 12333 records that form the primary basis here.

Because (particularly as the rest of the report shows continually expanding metadata analysis and collection) this is literally just the tip of an enormous iceberg, 151 million edge cases to a vast sea of data.

Update: Charlie Savage, who has a really thin skin, wrote me an email trying to dispute this post. In the past, his emails have almost universally devolved into him being really defensive while insisting over and over that stuff I’ve written doesn’t count as reporting (he likes to do this, especially, with stuff he claims a scoop for three years after I’ve written about it). So I told him I would only engage publicly, which he does here.

Fundamentally, Charlie disputes whether Section 215 is getting anything that’s not traditional telephony (he says my texts point is “likely right,” apparently unaware that a document he obtained in FOIA shows an issue that almost certainly shows they were getting texts years ago). Fair enough: the law is written to define CDRs as session identifiers, not telephony calls; we’ll see whether the government is obtaining things that are session identifiers. The I Con the Record report is obviously misleading on other points, but Charlie relies on language from it rather than the actual law. Charlie ignores the larger point, that any discussion of this needs to engage with how Section 215 requests interact with EO 12333, which was always a problem with the reporting on the topic and remains a problem now.

So, perhaps I’m wrong that it is “necessarily” the case that they’re getting non-telephony calls. The law is written such that they can do so (though the bill report limits it to “phone companies,” which would make WhatsApp but not iMessage a stretch).

What’s remarkable about Charlie’s piece, though, is that he utterly and completely misreads this post, “About half” of which, he says, “is devoted to showing how the math to generate 151 million call events within a year is implausible.”

The title of this post says, “151 Million Call Events Can Look Reasonable.” I then say, “But as I’ll show, the impact of the 131 [sic, now corrected] million records collected last year is in some ways far lower than collecting 65 calls a day, which is a good thing!” I then say, “The number becomes less surprising when you remember that even with traditional telephony call records can capture calls and texts. All of a sudden 65 becomes a lot more doable, and a lot more likely to have lots of perfectly duplicative records as terrorists and their buddies spend afternoons texting back and forth with each other.” I go on to say, “The fine print provides further elements that suggest both that the 151 million events collected last year are not that high.” I then go on to say, “So these events weren’t all generated last year — if they’re from AT&T they could have been generated decades ago.”

That is, in the title, and at least four times after that, I point out that 151 million is not that high. Yet he claims that my post aims to show that the math is implausible, not totally plausible.  (He also seems to think I’ve not accounted for the duplicative nature of this, which is curious, since I quote that and incorporate it into my math.)

In his email, I noted that this post replied not just to him, but to others who were alarmed by the number. I said specifically with regards the number, “yes, you were among the people I subtweeted there. But not the only one and some people did take this as just live calls. It’s not all about you, Charlie.”

Yet having been told that that part of the post was not a response to him, Charlie nevertheless persisted in completely misunderstanding the post.

I guess he still believed it was all about him.

Maybe Charlie should spend his time reading the documents he gets in FOIA more attentively rather than writing thin-skinned emails assuming everything is about him?

Update: Once I pointed out that Charlie totally misread this post he told me to go back on my meds.

Since he’s being such a douche, I’ll give you two more pieces of background. First, after I said that I knew CIA wasn’t tracking metadata (because it’s all over public records), Charlie suggested he knew better.

Here’s me twice pointing out that the number of call events was not (just) calls (as he had claimed in his story), a point he mostly concedes in his response.

Here’s the lead of his story:

Robert Eatinger Brags that CIA Complies with Law Passed 2 Years Ago — But Will It Really Limit CIA?

Robert Eatinger — the former CIA lawyer deeply implicated in torture who referred the authors of the Senate Intelligence Committee report on torture to DOJ for criminal investigation — has a curious column in The Cipher Brief. Eatinger purports to rebut commentators who have described “Executive Order 12333 as a sort of mysterious, open-ended authorization for U.S. intelligence agencies to engage in secret, questionable activities.” But mostly he addresses the Agency’s new Attorney General Guidelines under EO 12333 approved by Loretta Lynch on January 17.

Eatinger doesn’t explain what led to the adoption of new procedures. He does at least admit that the CIA had been operating on procedures written in 1982, a year after EO 12333 mandated such procedures. He also admits that those procedures did not reflect, “advances in collection methods due to changes in technology and privacy interests unforeseen in 1982, which did not contemplate the ubiquitous use of mobile phones, computers, and other digital media devices or evolving views of privacy and thus did not seek to address ‘big data’ or ‘bulk’ collection.” But readers who didn’t know better might conclude from Eatinger’s piece that the CIA just decided out of the blue to start protecting Americans’ privacy.

The proximate change to the procedures was likely a desire to finally expand data sharing under Obama’s new EO 12333 sharing rules, a final step before accessing a firehose of data from the NSA (curiously, Eatinger doesn’t mention that these new procedures will probably enable the expanded intake of vast amounts of bulk data including US person information). It also (as I’ll explain) belatedly responds to a mandate from Congress.

But in reality, the change comes in response to over three years of nagging from the Privacy and Civil Liberties Oversight Board, which asked James Clapper and Eric Holder to make agencies update these procedures back in August 2013, pointing out how much technology had changed in the interim. Which is another way of saying that, for the entire time when Eatinger was a top CIA lawyer, CIA was perfectly happy to operate on 35-year old procedures not reflecting current technology.

Among the procedures limiting CIA’s (newly expanded) access to bulk data, Eatinger highlights the five year restriction on retention of information including US person data.

These sections also satisfy the requirements to create procedures that limit to five years the retention of any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication except in defined circumstances (Section 309).

[snip]

Section 6 creates two different types of handling requirements for unevaluated information; one for “routine” handling and one for “exceptional” handling.  Exceptional handling requirements apply to intelligence collections either of nonpublic communications that were acquired without the consent of a party to the communication, or that are anticipated to contain U.S. person identifying information that is significant in volume, proportion, or sensitivity.  The exceptional requirements include segregating the unevaluated information, limiting access to CIA employees who receive special training, creating an auditable record of activity, and importantly, requiring such information to be destroyed no later than five years after collection, permitting extensions in limited circumstances.

The five-year limit in Section 6 is but one example of how specifics in the new procedures attempt to find the right balance of intelligence and privacy interests.  Each procedure involves an effort to find the right tradeoffs to allow lawful intelligence collection and protect privacy and civil liberty rights and interests. The tradeoff was between the risk to a loss in intelligence capabilities by destroying information at five years against the risk to compromising privacy interests by keeping the information longer.

It’s not until nine paragraphs after Eatinger introduces this requirement, which he notes arises from “Section 309” in paragraph 8, that he explains where it comes from in paragraph 17, from Congress.

The five-year retention period in Section 6 was not set by the CIA, DNI, or Attorney General, however, it was set by Congress through Section 309.

Eatinger doesn’t describe when Congress passed that law, but I will. It was in the Intelligence Authorization for FY 2015. It became law on December 19, 2014.

Which is another way of saying that for over two years after Congress passed this law mandating the destruction of bulk data including US person data after five years, CIA hadn’t updated its EO 12333 procedures to reflect that requirement (this was after Eatinger left CIA, so we can’t blame him for the tardiness).

Now, Eatinger helpfully confirms something I’ve long believed but hadn’t confirmed: rather than sorting through and deleting the US person data in the collection, which would be all the law requires, the CIA instead destroys the entire data set at the five year interval, effectively extending the privacy protections passed to cover US persons to foreigners as well (you’re welcome, Europe). Eatinger does so in a passage laying out the trade-offs to deleting data after five years.

Deleting all unevaluated information specifically concerning U.S. persons has little to no intelligence downside because intelligence agencies will never want or have reason to search their intelligence holdings.  The five-year period to destroy all unevaluated information, however, will remove not only information concerning U.S. persons but also any information potentially concerning valid intelligence targets, such as international terrorists, from the intelligence agencies holdings.  In this latter case, however, intelligence agencies will want and may have a reason to search its holdings for information on these targets.  The deletion of that information could thus have an adverse intelligence impact, particularly on counterterrorism and counterproliferation intelligence reporting, as well as on the conduct of human intelligence operations, all of which are important activities of the CIA.

The CIA could be expected to search all of its holdings upon receiving intelligence identifying a previous unknown person as a suspected terrorist or proliferator.  Under the five-year retention period, when the CIA conducts the search, any unevaluated information on that person that may have been acquired during a bulk collection activity over five years ago will have been deleted; CIA’s search will not retrieve that information.  Thus, CIA might gain an incomplete or misleading understanding of the individual, his place in a terrorist network, and his contacts.  Or, CIA may send intelligence officers to conduct dangerous human intelligence operations to collect information it once had.  The loss of five-year old information could also adversely impact the spotting, assessing, recruiting, and running of human sources. [my emphasis]

This is how Eatinger introduces Congress’ role in requiring CIA to destroy data after five years: to blame them for limiting the CIA’s ability to sit on bulk data on Americans and foreigners for 25 years. To his credit, Eatinger does describe Congress as “the right body” to “impose” a “single retention period … on the entire intelligence community.” Given his direct attacks on Congressional oversight of the torture program, though, I wonder precisely in what spirit he intended this comment.

In any case, Eatinger also emphasizes that CIA doesn’t have to abide by this “single retention period …  imposed on the entire intelligence community.” After suggesting that some agencies might be able to abide by the Congressional mandate, he asserts unnamed other agencies may not be able to.

Some intelligence entities likely could accomplish their mission and destroy unevaluated information in less than five years.  Others may need to retain information longer than five years.

He then notes that Congress has given agencies an out.

Congress has provided that intelligence agency heads may retain information longer than five years if the head determines a longer retention “is necessary to protect the national security of the United States” and certifies in writing to the intelligence committees the reasons for that determination, the new retention period, the particular information to be retained; and the measures that will be taken to protect the privacy interests of U.S. persons and persons located inside the United States.

That out is laid out in CIA’s procedures at 6.2.2.2, but rather than stating the intelligence committees must get notice, the section says only that, “Upon such extension, the [CIA Director] shall complete any notifications required by statute, Executive Order, or other Presidential decree” which, given the way the Bush Administration ignored FISA based on Presidential decree, doesn’t inspire confidence that Congress would get the notice mandated under Section 309.

In any case, we have reason to believe the CIA is just one month into receiving an expanded firehose of data, including a great deal of data on Americans. And Eatinger sure seems to suggest the CIA may never give the data obtained via that firehose up.

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.

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.

 

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.

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.