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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 Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

Why Does Richard Burr Think It Will Take Four Times Longer To Set Up a Metadata Compliance System than a Content One?

On November 8, 2007, Yahoo received its first order to comply with the Protect America Act, the original law authorizing PRISM. Yahoo immediately told DOJ it would challenge the order. On May 12, 2008 — even as Yahoo appealed FISC’s order to comply with those PAA orders — Yahoo started complying with its PAA orders.

It took 185 days for Yahoo to set up a content compliance system under PRISM and challenge the underlying orders. And along the way, FBI’s requests expanded, from just a few items to nine, which appear to span the four business units Yahoo had at the time. Yet even in spite of FBI’s moving target and its ongoing legal challenge, Yahoo was able to start complying in about 6 months.

And yet Richard Burr believes — rather, claims to believe — that providers who already have sophisticated compliance systems (either under upstream and daily call records production, in the case of the telecoms, or PRISM production, in the case of other providers, not to mention that AT&T already provides roughly what it will under the new program under a contract with the FBI) will not be able to implement a system that will allow them to turn over phone records within 180 days.

Now, perhaps Burr really believes it will be tougher for providers to set up a metadata compliance system than set up content compliance systems that involve a heavy metadata component.

If so, that ought to raise real questions about what he thinks these providers will be doing, because it won’t just be turning over metadata.

Alternately, he’s wielding his ridiculous concerns about compliance for the same hoped effect as his bill did. He claimed that bill would institute a 2-year transition period for this program, but what it did in fact was to immediately grant the Intelligence Community all the authorities it has wanted, vastly expanding the dragnet. Then, a year after giving the IC everything it wanted, it would conduct a 1-year review (before any transition happened) that would show that it would be cheaper for the government to remain in the dragnet business. Only after 2 years would any “transition” happen, and it would in fact happen, if it did, immediately, with no transition period (though it probably never would happen, given that the IC would have already gotten everything it wanted).

That is, Burr’s claim that providers that have been complying with significant government requests for 7 years would need 2 more years to learn how to do it are probably just a bid to prevent the move to providers in the first place, a bid to have one more chance to argue in 6 months or a year or 2 years that it’s okay for the government to hold onto all our phone and Internet metadata.

But if not — if the new system will require more from providers than it did when they started turning over records under PRISM — than that is itself news.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

Google Applauds USA F-ReDux Because It “Modernizes” Surveillance

Thus far, none of the Internet providers who have issued statements in support of the latest incarnation of USA Freedom Act (which I’m calling USA F-ReDux) have mentioned that they will be getting expansive immunity and compensation for helping the government spy on you.

Google didn’t mention it either.

Along with two other features, Google argues USA F-ReDux would,

[E]nd the bulk collection of communications metadata under various legal authorities. This not only includes telephony metadata collected under Section 215, but also Internet metadata that has been or could be collected under other legal authorities.

I find that an interesting way to describe the bill, particularly given that Google calls this “modernizing” surveillance, not limiting it.

Congress Has Only A Few Weeks Left to Modernize Surveillance Laws

Both the government and some providers used that same language — “modernize” — during the FISA Amendments Act, too. Sure, that was partly because it accommodated the law to growing Internet reliance. USA F-ReDux will do that too, to the extent it allows the government to obtain metadata for things like Google Meet-Ups and other VOIP calls and Internet messaging, which the government needs if it really wants dragnet coverage. FAA also involved deputizing Internet providers so that their data could not longer be collected in bulk by phone companies.

Modernizing surveillance, they called that.

And as I’ve just begun to lay out, this bill will set up a system similar in many respects to PRISM, where the government would go to the provider to get what they wanted on a target. Under PRISM, what the government wanted quickly expanded. Within 6 months of the roll-out of PRISM, the government was already asking for 9 different types of data from providers like Yahoo, apparently spanning Yahoo’s four business functions (meaning email, information services, data storage, and Yahoo internal functions).

Here, as with FAA, the government will go to providers to get what they want. And given that the bill permits the government to ask providers to chain on non-Call Detail Record session identifiers (things like cookies and location data), the government will benefit from, though not directly access, some of the same data that the government started obtaining under PRISM. And while I would hope the FISA Court would exert some oversight, I would also bet the government will make increasingly expansive claims about what constitutes a “session identifier” that can be used to chain (we know that, overseas, they chain on address books and photographs, for example).

And in one way, USA F-ReDux is worse than PRISM. Unlike FAA, USA F-ReDux will feature an added role for a Booz-type contractor compiling all this data, possibly in some cloud somewhere that would be about as safe as all the documents Edward Snowden took, to make it easier to chain across providers.

This is what Google celebrates as “modernization.”

But let’s go back to Google’s representation of this as ending bulk collection of, “Internet metadata that has been or could be collected under other legal authorities.”

We’ve long discussed the Section 215 dragnet as covering just calls made by phone companies (though Verizon’s Counsel, in a hearing last year, noted that the government would have to get VOIP if it wanted full coverage).

But that’s not true. As I reported the other day, at least one of the phone metadata dragnets was collecting VOIP metadata. Google’s VOIP metadata. In fact, the only known use of the DEA dragnet involved a US user subscribing to Google calls.

In other words, the Shantia Hassanshahi case is important not just because it led to us learning about the DEA dragnet, but because it revealed that (in addition to Google’s Internet metadata being collected under PRTT illegally for years), Google’s VOIP data also got sucked up in at least one phone dragnet.

Google doesn’t like other people being able to spy on its customers.

But now that USA F-ReDux will return it to the position of having the monopoly on spying on its customers, it calls this “modernization.”

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

The AP’s Recycled “We Don’t Need a Phone Dragnet” Story Lays the Groundwork for Swapping Section 215 for CISA

The AP has a story that it calls an “Exclusive” and says “has not been reported before” reporting that the NSA considered killing the phone dragnet back before Edward Snowden disclosed it.

The National Security Agency considered abandoning its secret program to collect and store American calling records in the months before leaker Edward Snowden revealed the practice, current and former intelligence officials say, because some officials believed the costs outweighed the meager counterterrorism benefits.

After the leak and the collective surprise around the world, NSA leaders strongly defended the phone records program to Congress and the public, but without disclosing the internal debate.

The proposal to kill the program was circulating among top managers but had not yet reached the desk of Gen. Keith Alexander, then the NSA director, according to current and former intelligence officials who would not be quoted because the details are sensitive. Two former senior NSA officials say they doubt Alexander would have approved it.

Still, the behind-the-scenes NSA concerns, which have not been reported previously, could be relevant as Congress decides whether to renew or modify the phone records collection when the law authorizing it expires in June.

The story looks a lot like (though has mostly different dates) this AP story, published just after USA Freedom Act failed in the Senate in November.

Years before Edward Snowden sparked a public outcry with the disclosure that the National Security Agency had been secretly collecting American telephone records, some NSA executives voiced strong objections to the program, current and former intelligence officials say. The program exceeded the agency’s mandate to focus on foreign spying and would do little to stop terror plots, the executives argued.

The 2009 dissent, led by a senior NSA official and embraced by others at the agency, prompted the Obama administration to consider, but ultimately abandon, a plan to stop gathering the records.

The secret internal debate has not been previously reported. The Senate on Tuesday rejected an administration proposal that would have curbed the program and left the records in the hands of telephone companies rather than the government. That would be an arrangement similar to the one the administration quietly rejected in 2009.

The unquestioned claim that the program doesn’t get cell data — presented even as the Dzhokhar Tsarnaev case makes clear it does* — appears in both (indeed, this most recent version inaccurately references T-Mobile cell phone user Basaaly Moalin’s case — getting the monetary amounts wrong — without realizing that that case, too, disproves the cell claim).

Most importantly, however, both stories report these previous questions about the efficacy of the phone dragnet in the context of questions about whether the program will be reauthorized after June.

Perhaps the most telling detail, however, is that this new story inaccurately describes what happened to the Internet dragnet in 2011.

There was a precedent for ending collection cold turkey. Two years earlier, the NSA cited similar cost-benefit calculations when it stopped another secret program under which it was collecting Americans’ email metadata — information showing who was communicating with whom, but not the content of the messages. That decision was made public via the Snowden leaks.

The NSA in no way went “cold turkey” in 2011. Starting in 2009, just before it finally confessed to DOJ it had been violating collection rules for the life of the program, it rolled out the SPCMA program that allowed the government to do precisely the same thing, from precisely the same user interface, with any Internet data accessible through EO 12333. SPCMA was made available to all units within NSA in early 2011, well before NSA “went cold turkey.” And, at the same time, NSA moved some of its Internet dragnet to PRISM production, with the added benefit that it had few of the data sharing limits that the PRTT dragnet did.

That is, rather than going “cold turkey” the NSA moved the production under different authorities, which came with the added benefits of weaker FISC oversight, application for uses beyond counterterrorism, and far, far more permissive dissemination rules.

That AP’s sources claimed — and AP credulously reported — that this is about “cold turkey” is a pretty glaring hint that the NSA and FBI are preparing to do something very similar with the phone dragnet. As with the Internet dragnet, SPCMA permits phone chaining for any EO 12333 phone collection, under far looser rules. And under CISA, anyone who “voluntarily” wants to share this data (which always includes AT&T and likely includes other backbone providers) can share promiscuously and with greater secrecy (because it is protected by both Trade Secret and FOIA exemption). Some of this production, done under PRISM, would permit the government to get “connection” chaining information more easily than under a phone dragnet. And as with the Internet dragnet, any move of Section 215 production to CISA production evades existing FISC oversight.

A year ago, Keith Alexander testified that if they just had a classified data sharing program — like CISA — they could live without the dragnet. A year ago, basically, Alexander said he’d be willing to swap CISA for the phone dragnet.

Remarkably, these inaccurate AP stories always seem to serve that story, all while fostering a laughable myth that “ending the phone dragnet” would in any way end the practice of a phone dragnet.

*Update 3/30: My claim that the Marathon case proves they got cell call data relies only on FBI claims they were able to use the dragnet to good effect. I actually think that FBI used an AT&T specific dragnet — not the complete phone dragnet — to identify the brothers’ phones (while the government has offered conflicting testimony on this account, I’m fairly certain all of Dzhokhar’s phones and Tamerlan’s pre-paid phone discussed at Dzhokhar’s trial were T-Mobile phones). But if that’s the case, then FBI lied outright when making those earlier claims. I’m perfectly willing to believe that, but if that’s the now-operative story I’d love for someone to confirm it.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

Is Google Sharing 9,500 Users’ Data, or 65,000?

Screen Shot 2014-02-03 at 2.20.17 PM

Google just released its shiny new transparency numbers reflecting DOJ’s new transparency rules.

While they tell us some interesting things, the numbers show how many questions the transparency system raises. I’ve raised the questions below, linked to my discussion by bolded number.

[NSA presentation, PRISM collection dates, via Washington Post]

Google is using option 1 (perhaps because they had already reported their NSL numbers), in which they break out NSLs separately from FISA orders, but must report in bands of 1000.

Note that Google starts this timeline in 2009, whereas their criminal process numbers pertaining to user accounts only start in 2011. Either because they had these FISA numbers ready at hand, or because they made the effort to go back and get them (whereas they haven’t done the same for pre-2011 criminal process numbers), they’re giving us more history on their FISA orders than they did on criminal process. They probably did this to show the entire period during which they’ve been involved in PRISM, which started on January 14, 2009.

Google gets relatively few non-content requests, and the number — which could be zero! — has not risen appreciably since they got involved in PRISM.(1) (I suspect we’re going to see fairly high non-content requests from Microsoft, because they pushed to break these two categories out).

Read more

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

6 Years Later, Are the Internet Companies Trying to Expose Telecoms Stealing Their Data, Again?

Update: And now this, too, has been halted because of the shutdown (h/t Mike Scarcella). This motion suggests the government asked the Internet companies for a stay on Friday. This one suggests the Internet companies asked the government for access to the classified information in the government filing, but the government told them they can’t consider that during the shut-down. 

As Time lays out, unlike several of the other NSA-related transparency lawsuits, the fight between the government and some Internet companies (Google, Yahoo, Facebook, Microsoft, and LinkedIn, with Dropbox as amicus) continues even under government shut-down. The government’s brief and declaration opposing the Internet bid for more transparency is now available on the FISA Court docket.

Those documents — along with an evolving understanding of how EO 12333 collection works with FISA collection — raise new questions about the reasons behind the government’s opposition.

When the Internet companies originally demanded the government permit them to provide somewhat detailed numbers on how much information they provide the government, I thought some companies — Google and Yahoo, I imagined — aimed to show they were much less helpful to the government than others, like Microsoft. But, Microsoft joined in, and it has become instead a showdown with Internet companies together challenging the government.

Meanwhile, the phone companies are asking for no such transparency, though one Verizon Exec explicitly accused the Internet companies of grandstanding.

In a media briefing in Tokyo, Stratton, the former chief operating officer of Verizon Wireless, said the company is “compelled” to abide by the law in each country that it operates in, and accused companies such as Microsoft, Google, and Yahoo of playing up to their customers’ indignation at the information contained in the continuing Snowden leak saga.

Stratton said that he appreciated that “consumer-centric IT firms” such as Yahoo, Google, Microsoft needed to “grandstand a bit, and wave their arms and protest loudly so as not to offend the sensibility of their customers.”

“This is a more important issue than that which is generated in a press release. This is a matter of national security.”

Stratton said the larger issue that failed to be addressed in the actions of the companies is of keeping security and liberty in balance.

“There is another question that needs to be kept in the balance, which is a question of civil liberty and the rights of the individual citizen in the context of that broader set of protections that the government seeks to create in its society.”

With that in mind, consider these fascinating details from the government filings.

  • The FBI — not the NSA — is named as the classification authority and submits the declaration (from Acting Executive Assistant Director Andrew McCabe) defending the government’s secrecy claims
  • The government seems concerned about breaking out metadata numbers from content (or non-content from non-content and content, as Microsoft describes it), even while suggesting this is about providing our “adversaries” hints about how to avoid surveillance
  • The government suggests some of what the Internet companies might disclose doesn’t fall under FISC’s jurisdiction

All of these details lead me to suspect (and this is a wildarsed guess) that what the government is really trying to hide here is how they use upstream metadata collection under 12333 to develop relatively pinpointed requests for content from Internet companies. If the Internet companies disclosed that, it would not only make their response seem much more circumscribed than what we’ve learned about PRISM, but more importantly, it would reveal how the upstream, unsupervised collection of metadata off telecom switches serves to target this collection.

The FBI as declarant

Begin with the fact that the FBI — and not NSA or ODNI — is the declarant here. I can think of two possible reasons for this.

One, that much of the collection from Internet companies is done via NSL or another statute for which the FBI, not the NSA, would submit the request. There are a number of references to NSLs in the filings that might support this reading. [Correction: FBI is not required to submit NSLs in all cases, but they are in 18 USC 2709, which applies here.]

It’s also possible, though, that the Internet companies only turn over information if it involves US persons, and that the government gets all other content under EO 12333. As with NSLs, the FBI submits applications specifically for US person data, not the NSA. But if that’s the case, then this might point to massive parallel construction, hiding that much of the US person data they collect comes without FISC supervision.

And remember — the FBI seems to have had the authority to search incidentally collected (presumably, via whatever means) US person data before the NSA asked for such authority in 2011.

There may be other possibilities, but whatever it is, it seems that the FBI would only be the classification authority appropriate to respond here if they are the primary interlocutor with the Internet companies — at least within the context of collection achieved under the FISA Court’s authority.

Breaking out metadata from content numbers and revealing “timing”

While the government makes an argument that revealing provider specific information would help “adversaries” to avoid surveillance, two other issues seem to be of more acute concern.

First, it suggests Google and Microsoft’s request to break out requests by FISA provision — and especially Microsoft’s request to “disclose separate categories for ‘non-content’ requests and ‘content and non-content requests” — brought negotiations to a head (see 2-3). This suggests we would see a pretty surprising imbalance there — perhaps (if my theory that the FBI goes to Internet companies only for US person data is correct) primarily specific orders (though that would seem to contradict the PRISM slide that suggested it operated under Section 702). It also suggests that the Internet companies may be providing either primarily content or primarily metadata, not both (as we might expect under PRISM).

The government is also concerned about revealing “the timing of when the Government acquires certain surveillance capabilities.” (see brief 19; the brief references McCabe’s discussion of timing, but the discussion is entirely redacted). That’s interesting because these are to a large extent (though not exclusively) storage companies. It may suggest the government is only asking for data stored in the Internet companies’ servers, not data that is in transit.

The FISC may not have jurisdiction over all this

Then there are hints that the FISC may not have jurisdiction over all the collection involving the Internet companies. That shows up in several ways.

First, in one spot (page 17) the government refers to the subject of its brief as “FISA proceedings and foreign intelligence collection.” In other documents, we’ve seen the government distinguish FISC-governed collection from collection conducted under other authorities — at least EO 12333. Naming both may suggest that part of the jurisdictional issue is that the collection takes place under EO 12333.

There’s another interesting reference to the FISC’s jurisdiction, where the government says it wants to reveal information on the programs “overseen by this Court.”

Although the Government has attempted to release as much information as possible about the intelligence collection activities overseen by this Court, the public debate about surveillance does not give the companies the First Amendment right to disclose information that the Government has determined must remain classified.

I’m increasingly convinced that the government is trying to do a limited hangout with the Edward Snowden leaks, revealing only the stuff authorized by FISC, while refusing to talk about the collection authorized under other statutes (this likely also serves to hide the role of GCHQ). If this passage suggests — as I think it might — that the Government is only attempting to release that information overseen by the FISC, then it suggests that part of what the Internet companies would reveal does not fall under FISC.

Then there are the two additional threats the government uses — in addition to gags tied to FISA orders — to ensure the Internet personnel not reveal this information: nondisclosure agreements and the Espionage Act.

I’m not certain whether the government is arguing whether these two issues — even if formulated in conjunction with FISA Orders — are simply outside the mandate of the FISC, or if it is saying that it uses these threats to gag people engaged in intelligence collection not covered by FISA order gags.

The review and construction of nondisclosure agreements and other prohibitions on disclosure unrelated to FISA or the Courts rules and orders fall far outside the powers that “necessarily result to [this Court] from the nature of [the] institution,” and therefore fall outside the Court’s inherent jurisdiction.

Whichever it is (it could be both), the government seems intent on staving off FISC-mandated transparency by insisting that such transparency on these issues is outside the jurisdiction of the Court.

There there’s this odd detail. Note that McCabe’s declaration is not sworn under oath, but is sworn under penalty of perjury under 18 USC 1746 (see the redaction at the very beginning of the declaration) . Is that another way of saying the FISA Court doesn’t have jurisdiction over this matter? [Update: One possibility is that this is shut-down related–that DOJ’s notaries who validate sworn documents aren’t considered essential.]

The PRISM companies and the poisoned upstream fruit

One more thing to remember. Though we don’t know why, the government had to pay the PRISM companies — that is, the same ones suing for more transparency — lots of money to comply with a series of new orders after John Bates imposed new restrictions on the use of upstream data. I’ve suggested that might be because existing orders were based on poisoned fruit, the illegally collected US person data collected at telecom switches.

That, too, may explain why PRISM company disclosure of the orders they receive would reveal unwanted details about the methods the government uses: there seems to be some relation between this upstream collection and the requests the Internet companies that is particularly sensitive.

As I have repeatedly recalled, back in 2007, these very same Internet companies tried to prevent the telecoms from getting retroactive immunity for their actions under Bush’s illegal wiretap program. That may have been because the telecoms were turning over the Internet companies’ data to the government.

They appear to be doing so again. And this push for transparency seems to be an effort to expose that fact.

Update: Microsoft’s Amended Motion — the one asking to break out orders by statute — raises the initial reports on PRISM, reports on XKeyscore, and on the aftermath of the 2011 upstream problems (which I noted above). It doesn’t talk about any story specifically tying Microsoft to Section 215. However, it lists these statutes among those it’d like to break out.

1These authorities could include electronic surveillance orders, see 50 U.S.C. §§ 1801-1812; phyasical search orders, see 50 U.S.C. §§ 1821-1829; pen register and trap and trace orders, see 50 U.S.C. §§ 1841-1846; business records orders, see 50 U.S.C. §§ 1861-1862; and orders and directives targeting certain persons outside the United States, see 50 U.S.C. §§ 1881-1881g. [my emphasis]

If I’m not mistaken, the motion doesn’t reference this article, which described how the government accessed Skype and Outlook, which you’d think would be one of the ones MSFT would most want to refute, if it could. But I’ve also been insisting that they must get Skype info for the phone dragnet, otherwise they couldn’t very well claim to have the whole “phone” haystack.

But the mention of Section 215 suggests they may be included in that order.

Also, we keep seeing physical search orders included in a communication arena. I wonder if that’s a storage issue.

Update: One more note about the MSFT Amended Motion. It lists where the people involved got their TS security clearances. MSFT’s General Counsels is tied to DOD; the lawyers on the brief all are tied to FBI.

One final detail on MSFT. Though the government brief doesn’t say this, MSFT is also looking to release the number of accounts affected by various orders, not just the number of targets (which is what the government wants to release). That’s a huge difference.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

NSA’s PRISM and the Oddity of PalTalk

[graphic: GuardianUK (mod)]

[graphic: GuardianUK]

Remember this presentation slide on PRISM from last month’s blockbuster report by the Guardian-UK?

Remember the one outlier right smack in the middle of the slide — the company name most folks don’t recognize?

PalTalk.

Very few news outlets tackled PalTalk, explaining what the business is and asking why it was included in the program. There was little more than cursory digging; Foreign Policy looked into PalTalk’s background, while PCMag merely asked in a snarky piece why PalTalk instead of a myriad of other larger alternative social media platforms.

It’s still a good question, but the answer might be right in front of us with a little more analysis.

PalTalk is an “online video chat community,” according to its own description. This means it is in the same competitive space as AOL and Skype, as well as Microsoft’s Hotmail IM and Yahoo Messenger.

The slide we’ve seen doesn’t tell us if access to AOL, Microsoft, and Yahoo was limited to email only, however. We can’t be certain PRISM and the other programs referenced in this particular NSA presentation weren’t also permitted access to live chat environments hosted by these companies. Foreign Policy sidled up to the issue, mentioning Yahoo as well as PalTalk, but didn’t follow through. It’s been relatively easy to see how interest veered away from this question; many news outlets focused on email metadata, not chat.

Squirrel away the unasked, unanswered question(s) about chat someplace for future reference.

With regard to PalTalk, Foreign Policy noted the organization was singular among the companies cited in the NSA slide as it was not a Silicon Valley firm. PalTalk is based in New York. The line of inquiry here went no further.

Hello, New York? This small business is co-located in an AT&T facility in Manhattan, and in New Jersey according the firm’s CEO and founder Jeffrey Katz in a Forbes article dd. 2003 to which FP linked:

“…He rents space in two AT&T data centers, one in Manhattan, another in Secaucus, N.J., with $700,000 worth of computer equipment, including 80 lower-end servers from Dell Computer and five IBM Unix servers. …”

This should raise numerous questions at this point. Manhattan must be an extremely expensive place to run a data center, cheek-and-jowl with financial traffic demanding extremely high uptime. Because of the frequency with which New York was mentioned in published content about PalTalk, the New Jersey location is likely a redundant facility for the purposes of business continuity if the main facility is disrupted.

You’ll recall the last major disruptions to data traffic out of New York were due to Hurricane Sandy and 9/11.

Why would a tiny online video chat community need a data center likely to have world-class uptime and redundancy of a nature a company might need only twice a decade? Read more

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

The Shell Game: What is Microsoft Doing?

[graphic: Google Finance]

[graphic: Google Finance]

What is this so-called tech company doing?

Microsoft sees itself as going head-to-head with Apple and Google. The 10-year chart above comparing Microsoft, Apple, and Google stock tells us this has been a delusional perception.

It also sees itself in competition with IBM. Yet IBM surpassed it in market value two years ago, even after nearly a decade of ubiquity across personal computers in the U.S. and in much of the world. (IBM is included in that chart above, too.)

One might expect a sea change to improve performance, but is the shell game shuffling of Microsoft executives really designed to deliver results to the bottom line?

Tech and business sector folks are asking as well what is going on in Redmond; even the executive assignments seemed off-kilter. One keen analysis by former Microsoft employee Ben Thompson picked apart the company’s reorganization announcement last Thursday — coincidentally the same day the Guardian published a report that Microsoft had “collaborated closely” with the National Security Agency — noting that the restructuring doesn’t make sense.

The new organization pulls everything related to Windows 8 under a single leader, from desktop to mobile devices using the same operating system, migrating to a functional structure from a divisional structure. There are several flaws in this strategy Thompson notes, but a key problem is accountability.

To tech industry analysts, the new functional structure makes it difficult to follow a trail of failure in design and implementation for any single product under this functional umbrella.

To business analysts, the lack of accountability means outcomes of successful products hide failed products under the functional umbrella, diluting overall traceability of financial performance.

But something altogether different might be happening beneath the umbrella of Windows 8.

There’s only one product now, regardless of device — one ring to rule them all. It’s reasonable to expect that every single desktop, netbook, tablet, cellphone running on Windows 8 will now substantially be the same software.

Which means going forward there’s only one application they need to allow the NSA to access for a multitude of devices.

We’ve already learned from a Microsoft spokesman that the company informs the NSA about bugs or holes in its applications BEFORE it notifies the public.

It’s been reported for years about numerous backdoors and holes built intentionally and unintentionally into Microsoft’s operating systems, from Windows 98 forward, used by the NSA and other law enforcement entities.

Now Skype has likewise been compromised after Microsoft’s acquisition of the communications application and infrastructure for the purposes of gathering content and eavesdropping by the NSA, included in the PRISM program.

Given these backdoors, holes, and bugs, Microsoft’s Patch Tuesday — in addition to its product registration methodology requiring online validation of equipment — certainly look very different when one considers each opportunity Microsoft uses to reach out and touch business and private computers for security enhancements and product key validations.

Why shouldn’t anyone believe that the true purpose of Microsoft’s reorganization is to serve the NSA’s needs?

Tech magazine The Verge noted with the promotion of Terry Myerson to lead Windows — it’s said Myerson “crumples under the spotlight and is ungenerous with the press” — Microsoft doesn’t appear eager to answer questions about Windows.

As ComputerworldUK’s Glyn Moody asked with regard to collaboration with the NSA, “How can any company ever trust Microsoft again?”

If a company can’t trust them, why should the public?

The capper, existing outside Microsoft’s Windows 8 product: Xbox One’s Kinect feature is always on, in order to sense possible commands in the area where Kinect is installed.

ACLU’s senior policy analyst Chris Sogohian tweeted last Thursday, “… who in their right mind would trust an always-on Microsoft-controlled Xbox camera in their living room?”

One might wonder how often the question of trust will be raised before serious change is made with regard to Microsoft’s relationship with the NSA. With political strategist Mark Penn handling marketing for the corporation and Steve Ballmer still at the helm as CEO, don’t hold your breath.

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

Spying on Americans: A “Team Sport” Since 2004

Screen shot 2013-07-11 at 6.25.06 PMOne of the more colorful revelations in today’s Guardian scoop is the newsletter piece that describes increased sharing of PRISM (Section 702) data with FBI and CIA.

The information the NSA collects from Prism is routinely shared with both the FBI and CIA. A 3 August 2012 newsletter describes how the NSA has recently expanded sharing with the other two agencies.

The NSA, the entry reveals, has even automated the sharing of aspects of Prism, using software that “enables our partners to see which selectors [search terms] the National Security Agency has tasked to Prism”.

The document continues: “The FBI and CIA then can request a copy ofPrism collection of any selector…” As a result, the author notes: “these two activities underscore the point that Prism is a team sport!”

But that’s something that has actually been built into the program for years. While the Joint IG Report on the illegal wiretap program claimed,

NSA also was responsible for conducting the actual collection of information under the PSP and disseminating intelligence reports to other agencies such as the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), and the Office of the Director of National Intelligence (ODNI) National Counterterrorism Center (NCTC) for analysis and possible investigation.

The Draft NSA IG Report explained,

Coordination with FBI and CIA. By 2004, four FBI integrees and two CIA integrees, operating under SIGINT authorities in accordance with written agreements, were co-located with NSA PSP-cleared analysts. The purpose of co-locating these individuals was to improve collaborative analytic efforts.

And the minimization procedures released by the Guardian (which date to 2009), make it clear NSA can provided unminimized content to CIA and FBI on whatever selectors they request.

6(c)

(1) NSA may provide to the Central Intelligence Agency (CIA) unminimized communications acquired pursuant to section 702 of the Act. CIA will identify to NSA targets for which NSA may provide unminimized communications to CIA. CIA will process any such unminimized communications received from NSA in accordance with CIA minimization procedures adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.

(2) NSA may provide to the FBI unminimized communications acquired pursuant to section 702 of the Act. FBI will identify to NSA targets for which NSA may provide unminimized communications to the FBI. FBI will process any such unminimized communications received from NSA in accordance with FBI minimization procedures  adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.

And none of that should be surprising, given the tasking slide — above — that was first published by the WaPo. FBI, at least, is solidly in the midst of this collection, for a program deemed to be foreign intelligence collection.

There have been a variety of claims about all this team sport participation. But I’m not convinced any of them explain how all this works.

And in perhaps related news, the Fifth Circuit today said that Nidal Hasan could not have access to the FISA material on him, in spite of the fact that William Webster published a 150 page report on it last year. Legally, that material should be utterly distinct from PRISM, since a wiretap on Anwar al-Awlaki would require a specific FISA warrant (and the latest Guardian scoop refers to expanded cooperation since 2012). But I suspect the reason Hasan, the FISA evidence against whom has already been extensively discussed, can’t see it is because we would see what this actually looks like from the FBI side.

DOJ has to protect its team, you know.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

The Evil Empire

Screen shot 2013-07-11 at 2.39.09 PM
The Guardian has its latest scoop on NSA spying, describing the extent to which Microsoft helps the government spy on its customers. This bullet list is just some of what the article reveals.

  • Microsoft helped the NSA to circumvent its encryption to address concerns that the agency would be unable to intercept web chats on the new Outlook.com portal;
  • The agency already had pre-encryption stage access to email on Outlook.com, including Hotmail;
  • The company worked with the FBI this year to allow the NSA easier access via Prism to its cloud storage service SkyDrive, which now has more than 250 million users worldwide;
  • Microsoft also worked with the FBI’s Data Intercept Unit to “understand” potential issues with a feature in Outlook.com that allows users to create email aliases;
  • Skype, which was bought by Microsoft in October 2011, worked with intelligence agencies last year to allow Prism to collect video of conversations as well as audio;
  • Material collected through Prism is routinely shared with the FBI and CIA, with one NSA document describing the program as a “team sport”.

But I’m as interested in some of the details about the cooperation as the impact of that cooperation.

For example, the story describes that this cooperation takes place through the Special Source Operations unit.

The latest documents come from the NSA’s Special Source Operations (SSO) division, described by Snowden as the “crown jewel” of the agency. It is responsible for all programs aimed at US communications systems through corporate partnerships such as Prism.

But we saw that when NSA approached (presumably) Microsoft in 2002, it did not approach via SSO; it used a more formal approach through counsel.

In addition, note how Skype increased cooperation in the months before Microsoft purchased it for what was then considered a hugely inflated price, and what is now being called (in other legal jurisdictions) so dominant that it doesn’t have to cooperate with others.

One document boasts that Prism monitoring of Skype video production has roughly tripled since a new capability was added on 14 July 2012. “The audio portions of these sessions have been processed correctly all along, but without the accompanying video. Now, analysts will have the complete ‘picture’,” it says.

Eight months before being bought by Microsoft, Skype joined the Prism program in February 2011.

According to the NSA documents, work had begun on smoothly integrating Skype into Prism in November 2010, but it was not until 4 February 2011 that the company was served with a directive to comply signed by the attorney general.

The NSA was able to start tasking Skype communications the following day, and collection began on 6 February. “Feedback indicated that a collected Skype call was very clear and the metadata looked complete,” the document stated, praising the co-operation between NSA teams and the FBI. “Collaborative teamwork was the key to the successful addition of another provider to the Prism system.”

While this isn’t as obvious as Verizon’s MCI purchase — which for the first time led that carrier to hand over Internet data — it does seem that those companies that cooperate with the NSA end up taking over their rivals.

 

Remember, the Department of Commerce plays some kind of role in ensuring that companies cooperate in protecting our critical infrastructure.

As of 2:30, Microsoft stock is at a high on the day.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.