Reggie Walton

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The Shell Game the Government Played During Yahoo’s Protect America Act Challenge

In his opinion finding Protect America Act constitutional, Judge Reggie Walton let his frustration with the way the government kept secretly changing the program at issue show.

For another, the government filed a classified appendix with the Court in December 2007, which contained the certifications and procedures underlying the directives, but the government then inexplicably modified and added to those certifications and procedures without appropriately informing the Court or supplementing the record in this matter until ordered to do so. These changes and missteps by the government have greatly delayed the resolution of its motion, and, among other things, required this Court to order additional briefing and consider additional statutory issues, such as whether the P AA authorizes the government to amend certifications after they are issued, and whether the government can rely on directives to Yahoo that were issued prior to the amendments.

The unsealed classified appendix released today (the earlier released documents are here) provides a lot more details on the shell game the government played during the Yahoo litigation, even with Walton. (It also shows how the government repeatedly asked the court to unseal documents so it could share them with Congressional Intelligence Committees or other providers it wanted to cooperate with PAA).

I mean, we expected the government to demand that Yahoo litigate blind, as it did in this February 26, 2008 brief arguing Yahoo shouldn’t be able to see any classified information as it tried to represent the interests of its American customers. (PDF 179)

In the approximately thirty years since the adoption of FISA, no court has held that disclosure of such documents is necessary to determine the legality of electronic surveillance and physical search. Similarly, there is of course a long history of ex parte and in camera proceedings before this Court. For almost three decades, this Court has determined, ex parte and in camera, the lawfulness of electronic surveillance and physical search under FISA. See 50 U.S.C. § 1805(a) (“the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance” upon making certain findings); 50 U.S.C. § 1824(a) (same with respect to physical search).

Under the Protect America Act, then, the government has an unqualified right to have the Court review a classified submission ex parte and in camera which, of course, includes the unqualified right to keep that submission from being disclosed to any party in an adversarial proceeding before this Court.

But we shouldn’t expect a FISC judge presiding over a key constitutional challenge to have to beg to learn what he was really reviewing, as Walton had to do here. (PDF 159-160)

The Court is issuing this ex parte order to the Government requiring it to provide clarification concerning the impact on this case of various government filings that have been made to the FISC under separate docket.

[snip]

lt is HEREBY ORDERED that the government shall file a brief no later than February 20. 2008, addressing the following questions: 1. Whether the classified appendix that was provided to the Court in December 2007 constitutes the complete and up-to-date set of certifications and supporting documents (to include affidavits, procedures concerning the location of targets, and minimization procedures) that are applicable to the directives at issue in this proceeding. If the answer to this question is .. yes,'” the government” s brief may be filed ex parte. If the government chooses to serve Yahoo with a copy of the brief~ it shall serve a copy of this Order upon Yahoo as well.

2. If the answer to question number one is “no,” the Government shall state what additional documents it believes are currently in effect and applicable to the directives to Yahoo that are at issue in this proceeding. The government shall file copies of any such documents with the Court concurrent with filing its brief. The government shall serve copies of this Order, its brief, and any additional documents upon Yahoo, unless the government moves this Court for leave to file its submission ex parte, either in whole or in part. If the government files such a motion with the Court, it shall serve a copy of its motion upon Yahoo. The government shall also serve a copy of this Order upon Yahoo, unless the government establishes good cause for not doing so within the submission it seeks to file ex parte.

This is what elicited the government’s indignant brief about actually telling Yahoo what it was arguing about.

As a result of the government’s successful argument Yahoo had to argue blind, it did not learn — among other things — that CIA would get all the data Yahoo was turning over to the government, or that the government had basically totally restructured the program after the original expiration date of the program, additional issues on which Yahoo might have challenged the program.

Perhaps more interesting is that it wasn’t until Walton ruled on March 5 that he would not force the government to share any of these materials with Yahoo that the government finally provided the last relevant document to Judge Walton, the Special Procedures Governing Communications Metadata Analysis. (PDF 219)

On January 3, 2008, the Attorney General signed the “Department of Defense Supplemental Procedures Governing Communications Metadata Analysis,” which purported to supplement the DoD Procedures (“Supplement to DoD Procedures”), a copy of which is attached hereto as Exhibit A. The Supplement to DoD Procedures concerns the analysis of communications metadata that has already been lawfully acquired by DoD components, including the National Security Agency (NSA). Specifically, the Supplement to DoD Procedures clarifies that NSA may analyze communications metadata associated with U.S. persons and persons believed to be in the United States. The Supplement to DoD Procedures does not relate to the findings the Attorney General must make to authorize acquisition against a U.S. person overseas

This is particularly suspect given that one of the changes implemented after the original certification was to share data with CIA, something directly addressed in the memo justifying SPCMA to the Attorney General’s office (and a detail the government is still trying to officially hide).

Now, to be fair, in the original release, it was not clear that the government offered this much explanation for SPCMA, making it clear that the procedural change involved making American metadata visible. But the government very clearly suggested — falsely — that SPCMA had no Fourth Amendment implications because they didn’t make Americans overseas more likely to be targeted (which the government already knew was the key thrust of Yahoo’s challenge).

The opposite is true: by making US person metadata visible, it ensured the government would be more likely to focus on communications of those with whom Americans were communicating. These procedures — which were approved more than two months, one document dump, and one court order agreeing to keep everything secret from Yahoo earlier — were and remain the key to the Fourth Amendment exposure for Americans, as was argued just last year. And they weren’t given to even the judge in this case until he asked nicely a few times.

This was the basis for the dragnet that still exposes tens of thousands of Americans to warrantless surveillance. And it got briefed as an afterthought, well after the government could be sure it’d get no adversarial challenge.

The Government Spoliationing for a Fight with EFF

On November 6, 2007, Judge Vaughn Walker issued a preservation order in EFF’s challenge to what we now know to be Stellar Wind, the Shubert case (which would be applied to the Jewel case after that). Nevertheless, in spite of that order, in 2009 the NSA started destroying evidence that it had collected data outside of the categories Judge Colleen Kollar-Kotelly authorized way back in 2004.

Also in 2009, NSA shifted records showing 3,000 people — which highly likely included CAIR’s staff and clients — had been dragnetted without the First Amendment review mandated by Section 215 (CAIR wasn’t a plaintiff on EFF’s earlier suits but they are on EFF’s phone dragnet suit, First Unitarian United). When they did, the government even appeared to consider the existing protection order in the EFF case; I have FOIAed their deliberations on that issue, but thus far have been stonewalled.

Finally, in 2011, NSA destroyed — on very little notice and without letting their own IG confirm the destruction of data that came in through NSA’s intake process — all of its Internet dragnet data.

In other words, on three known occasions, the NSA destroyed data covered by the protection order in Northern California, one of them even after admitting a protection order might cover the data in question. In two of those cases, we know the data either exceeded FISA’s orders or violated the law.

In fact, it wasn’t until 2014, when the government started asking Judge Reggie Walton for permission to destroy the phone dragnet data and EFF complained mightily, that NSA started complying with the earlier protection order. Later that same year, it finally asked FISC to keep the Protect America Act and FISA Amendments Act data also included under that order in its minimization procedures.

These posts provide more background on this issue: postpost, post, post.

In other words, on three different occasions (even ignoring the content collection), NSA destroyed data covered by the protection order. spoiling the evidence related to EFF’s lawsuits.

Which is why I find this claim — in the January 8 filing I’ve been waiting to read, but which was just posted on March 4 (that is, 5 days after the NSA would have otherwise had to destroy everything on February 29 under USA Freedom Act).

The Government remains concerned that in these cases, absent relief from district courts or explicit agreement from the plaintiffs, the destruction of the BR Metadata, even pursuant to FISC Order, could lead the plaintiffs to accuse the Government of spoliation. In Jewel, the plaintiffs have already moved for spoliation sanctions, including an adverse inference against the Government on the standing issue, based on the destruction of aged-off BR Metadata undertaken in accordance with FISC Orders. See Jewel Pls.’ Brief Re: the Government’s Non-compliance with the Court’s Evidence Preservation Orders, ECF No. 233.

Gosh, after destroying data on at least three different occasions (again, ignoring at least two years of content they destroyed), the government is worried that if it destroyed more it might get in trouble? Please!

Elsewhere, the strategy in this filing seems to be to expand the possible universe they’d have to set aside under the three cases (plus Klayman) for which there is a protection order as to make it virtually impossible to set it aside so as to destroy the rest. In addition, having let the time when they could have set aside such data easily pass because they were still permitted to access the data (say, back in 2014, when they got caught violating their protection order), they now claim that the closure of the dragnet makes such a search virtually impossible now.

It’s a nifty gimmick. They can’t find a way to destroy the data because they already destroyed even legally suspect data. And we learn about it only now, after the data would otherwise be destroyed, but now can’t be because they didn’t find some better resolution 2 years ago.

There’s More to the SPCMA Document

Long time readers likely know I’ve been obsessed with the decision, which as far as we currently know started in 2007 after Alberto Gonzales and (since returned as FBI General Counsel) James Baker left DOJ, to let DOD chain through US person identifiers on metadata collected under EO 12333, what gets described as Special Procedures Governing Communications Metadata Analysis, or SPCMA. Here’s a post that describes it at more length.

We first learned about SPCMA in June 2013, when the Guardian published a 16-page document pertaining to the approval process that had been leaked by Edward Snowden. That document consisted of:

  • A ten page memo dated November 20, 2007, from Assistant Attorney General for National Security Ken Wainstein and Acting OLC Head Steve Bradbury, analyzing the legality of SPCMA and recommending approval of the change.
  • Appendix A, consisting of a cover sheet and a two-page approval memo signed by Robert Gates on October 19, 2007 and Michael Mukasey on January 3, 2008. As I noted in this post, the signature line had to be altered after the fact to indicate Mukasey was signing it, suggesting that then Acting Attorney General Peter Keisler had refused.
  • Appendix B, a September 28, 2006 memo written to Office of Intelligence and Policy head James Baker (this was the predecessor to the NSD at DOJ) by NSA’s General Counsel Vito Potenza requesting he approve what became SPCMA (Baker did not approve it).

Though it is not included in what Snowden leaked, the memo describes a third Appendix, Appendix C:

On July 20, 2004, the General Counsel of CIA wrote to the General Counsel of NSA and to the Counsel for Intelligence Policy asking that CIA receive from NSA United States communications metadata that NSA does not currently provide to CIA. The letter from CIA is attached at Tab C.

The government has not released an official version of the packet such as it got leaked by Snowden. However, it did release Appendix A, the approval memo, in Fall 2014 as part of the declassification of the Yahoo challenge to the Protect America Act. As I laid out in this post, the government not only got this document approved after the passage of PAA and while Yahoo was challenging orders received under it, but DOJ tried to hide it from FISC Judge Reggie Walton. They only handed it over — though without the context of the approval memo that made it clear it was about contact chaining including Americans — after he had scolded DOJ several times about not handing over all the documentation related to PAA.

DOJ did not submit the procedures to FISC in a February 20, 2008 collection of documents they submitted after being ordered to by Judge Walton after he caught them hiding other materials; they did not submit them until March 14, 2008.

So to sum up: We have 16 pages (the memo and two of three appendices) thanks to Edward Snowden, and we have an official copy of just the 2-page approval memo, released on the context of the Yahoo declassification.

I lay all this out because this entry, in the National Security Division Vaughn Index provided to ACLU last month, is undoubtedly this same memo.

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The date is the same, the description is almost the same. The only difference is that the withheld document has 20 pages, as compared to the 16 pages that Snowden gave us.

From that I conclude that the 2004 CIA memo is four pages long (three, plus a cover sheet). Note the date: squarely during the period when spooks were trying to put discontinued parts of Stellar Wind under some kind of legal authority.

Here’s how the NSA declared Exemptions 1 and 3 over this document.

56. NSD fully withheld Document 4 on its Vaughn index in part because the release of any portion of that document would disclose classified information about functions or activities of NSA. The document is a 20-page document dated 20 November 2007 and is described as NSD Legal Memo on Amending DoD Procedures and Accompanying Documentation.” This document. including its full title, was withheld in full under Exemption 1 and Exemption 3. I have reviewed the information withheld and determined that the information is currently and properly classified at the SECRET level in accordance with EO 13526 because the release of this information could reasonably be expected to cause serious damage to the national security. The information withheld pertains to intelligence activities, intelligence sources or methods, or cryptology. or the vulnerabilities or capabilities of systems or projects relating to the national security and therefore meets the criteria for classification set for in Sections 1.4(c) and 1.4(g) of EO 13526. The harm to national security of releasing any portion of this document and the reasons that no portion of this document can be released without disclosing classified information cannot be fully described on the public record. As a result my ex parte. in camera classified declaration more fully explains why this document was withheld in full.

57. The information withheld in N 0 Document 4 also relates to a “function of the National Security Agency” 50 U.S.C. § 3605. Indeed. this information relates to one of NSA’s primary functions, its SIGINT mission. Any disclosure of the withheld information would reveal NSA ·s capabilities and the tradecraft used to carry out this vital mission. Further. revealing these details would disclose “information with respect to lNSA ‘s] activities” in furtherance of its SIGINT mission. 50 U .. C. § 3605. Therefore. the information withheld is also protected from release by statute and is exempt from release based on FOIA Exemption 3. 5 U.S.C. § 552(b)(3).

The government asserted secrecy over the title of an already (and officially) released document in a recent EFF challenge, so this would not be the first time the government claimed the title of an already released document was secret to prevent nasty civil liberties groups from confirming that a FOIAed document was the same as a previously known one.

In NSD’s declaration, Bradley Weigmann indicated that “the vast majority” of the document pertained to attorney-client privilege.

NSD Document 17, the vast majority of a certain memorandum in NSD Document 4, and an email message in NSD Document 31 are protected by the attorney-client privilege. These documents discuss legal issues pertaining to an NSA program, set forth legal advice prepared by NSD lawyers for other attorneys to assist those other attorneys in representing the Government, and were sought by a decision-maker for the Government to obtain legal advice on questions of law and indeed reflect such advice. As such, NSD Document 17, the vast majority of a certain memorandum in NSD Document 4, and an email message in NSD Document 31 are protected from disclosure under the attorney-client privilege.

More interestingly, by referring to “an NSA program” it seemed to tie this document with this 2003 OIPR memo.

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And this November 12, 2013 email (written during a period in the aftermath of the Snowden releases as the government was trying to decide how to respond to various FOIAs as well as Yahoo’s request to unseal its challenge, not to mention after ACLU submitted this FOIA, which was actually submitted before the first Snowden leaks).

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Note, NSD won’t tell us what date in 2003 someone at OIPR (already headed by James Baker, one of the few people briefed on Stellar Wind) wrote about “an NSA program” that appears to be tied the chaining on US person metadata.

I have long believed one of the known but still as yet undescribed modifications to Stellar Wind (there is still at least one, though I believe there are two) enacted after the hospital confrontation in 2004 has to have been either at CIA or DOD, because it doesn’t appear in the unredacted NSA IG Report Snowden gave us. Here, we see CIA unsuccessfully asking for US person metadata at the time everyone was re-establishing Stellar Wind under more legal cover. Assuming NSA document 4 is this memo, the only thing the government is withholding that we haven’t seen yet is the CIA memo. I have a lot more suspicions about this program, too, that I still need to write up.

But I suspect they’re hiding these documents from us — and just as importantly, from the FISA Court — to prevent us from putting the various details of how US person metadata has been used over time. Or rather, to prevent us from laying out how the point of these foreign-targeted surveillance programs is to spy on Americans.

ACLU has already told the government they’re challenging the withholding of these documents.

After Lying in a Closed Surveillance Briefing in 2011, Intelligence Community Plans Another Closed Briefing

On May 18, 2011, 48 members of the House (mostly Republicans, but also including MI’s Hansen Clarke) attended a closed briefing given by FBI Director Robert Mueller and General Counsel Valerie Caproni on the USA PATRIOT Act authorities up for reauthorization. The hearing would serve as the sole opportunity for newly elected members to learn about the phone and Internet dragnets conducted under the PATRIOT Act, given Mike Rogers’ decision not to distribute the letter provided by DOJ to inform members on the secret dragnets they were about to reauthorize.

During the hearing, someone asked,

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

One of the briefers — the summary released under FOIA does not say who — responded,

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

As a reminder, hearing witness Robert Mueller had to write and sign a declaration for the FISC two years earlier to justify resuming full authorization for the phone dragnet because, as Judge Reggie Walton had discovered, the NSA had conducted “daily violations of the minimization procedures” for over two years. “The minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the FISC have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively,” Walton wrote in March 2009.

Now, I can imagine that whichever FBI witness claimed the FBI didn’t know about any “abuses” rationalized the answer to him or herself using the same claim the government has repeatedly made — that these were not willful abuses. But Walton stated then — and more evidence released since has made clear he was right since — that the government simply chose to subject the vast amount of US person data collected under the PATRIOT Act to EO 12333 standards, not more stringent PATRIOT Act ones. That is, the NSA, operating under FBI authorizations, made a willful choice to ignore the minimization procedures imposed by the 2006 reauthorization of the Act.

Whoever answered that question in 2011 lied, and lied all the more egregiously given that the questioner had no way of phrasing it to get an honest answer about violations of minimization procedures.

Which is why the House Judiciary Committee should pointedly refuse to permit the Intelligence Committee to conduct another such closed briefing, as they plan to do on Section 702 on February 2. Holding a hearing in secret permits the IC to lie to Congress, not to mention disinform some members in a venue where their colleagues can not correct the record (as Feingold might have done in 2011 had he learned what the FBI witnesses said in that briefing).

I mean, maybe HJC Chair Bob Goodlatte wants to be lied to? Otherwise, there’s no sound explanation for scheduling this entire hearing in closed session.

 

What We Know about the Section 215 Phone Dragnet and Location Data

Last month’s squabble between Marco Rubio and Ted Cruz about USA Freedom Act led a number of USAF boosters to belatedly understand what I’ve been writing for years: that USAF expanded the universe of people whose records would be collected under the program, and would therefore expose more completely innocent people, along with more potential suspects, to the full analytical tradecraft of the NSA, indefinitely.

In an attempt to explain why that might be so, Julian Sanchez wrote this post, focusing on the limits on location data collection that restricted cell phone collection. Sanchez ignores two other likely factors — the probable inclusion of Internet phone calls and the ability to do certain kinds of connection chaining — that mark key new functionalities in the program which would have posed difficulties prior to USAF. But he also misses a lot of the public facts about location collection and cell phones under the Section 215 dragnet.  This post will lay those out.

The short version is this: the FISC appears to have imposed some limits on prospective cell location collection under Section 215 even as the phone dragnet moved over to it, and it was not until August 2011 that NSA started collecting cell phone records — stripped of location — from AT&T under Section 215 collection rules. The NSA was clearly getting “domestic” records from cell phones prior to that point, though it’s possible they weren’t coming from Section 215 data. Indeed, the only known “successes” of the phone dragnet — Basaaly Moalin and Adis Medunjanin — identified cell phones. It’s not clear whether those came from EO 12333, secondary database information that didn’t include location, or something else.

Here’s the more detailed explanation, along with a timeline of key dates:

There is significant circumstantial evidence that by February 17, 2006 — two months before the FISA Court approved the use of Section 215 of the PATRIOT Act to aspire to collect all Americans’ phone records — the FISA Court required briefing on the use of “hybrid” requests to get real-time location data from targets using a FISA Pen Register together with a Section 215 order. The move appears to have been a reaction to a series of magistrates’ rulings against a parallel practice in criminal cases. The briefing order came in advance of the 2006 PATRIOT Act reauthorization going into effect, which newly limited Section 215 requests to things that could be obtained with a grand jury subpoena. Because some courts had required more than a subpoena to obtain location, it appears, FISC reviewed the practice in the FISC — and, given the BR/PR numbers reported in IG Reports, ended, sometime before the end of 2006 though not immediately.

The FISC taking notice of criminal rulings and restricting FISC-authorized collection accordingly would be consistent with information provided in response to a January 2014 Ron Wyden query about what standards the FBI uses for obtaining location data under FISA. To get historic data (at least according to the letter), FBI used a 215 order at that point. But because some district courts (this was written in 2014, before some states and circuits had weighed in on prospective location collection, not to mention the 11th circuit ruling on historical location data under US v. Davis) require a warrant, “the FBI elects to seek prospective CSLI pursuant to a full content FISA order, thus matching the higher standard imposed in some U.S. districts.” In other words, as soon as some criminal courts started requiring a warrant, FISC apparently adopted that standard. If FISC continued to adopt criminal precedents, then at least after the first US v. Davis ruling, it would have and might still require a warrant (that is, an individualized FISA order) even for historical cell location data (though Davis did not apply to Stingrays).

FISC doesn’t always adopt the criminal court standard; at least until 2009 and by all appearances still, for example, FISC permits the collection, then minimization, of Post Cut Through Dialed Digits collected using FISA Pen Registers, whereas in the criminal context FBI does not collect PCTDD. But the FISC does take notice of, and respond to — even imposing a higher national security standard than what exists at some district levels — criminal court decisions. So the developments affecting location collection in magistrate, district, and circuit courts would be one limit on the government’s ability to collect location under FISA.

That wouldn’t necessarily prevent NSA from collecting cell records using a Section 215 order, at least until the Davis decision. After all, does that count as historic (a daily collection of records each day) or prospective (the approval to collect data going forward in 90 day approvals)? Plus, given the PCTDD and some other later FISA decisions, it’s possible FISC would have permitted the government to collect but minimize location data. But the decisions in criminal courts likely gave FISC pause, especially considering the magnitude of the production.

Then there’s the chaos of the program up to 2009.

At least between January 2008 and March 2009, and to some degree for the entire period preceding the 2009 clean-up of the phone and Internet dragnets, the NSA was applying EO 12333 standards to FISC-authorized metadata collection. In January 2008, NSA co-mingled 215 and EO 12333 data in either a repository or interface, and when the shit started hitting the fan the next year, analysts were instructed to distinguish the two authorities by date (which would have been useless to do). Not long after this data was co-mingled in 2008, FISC first approved IMEI and IMSI as identifiers for use in Section 215 chaining. In other words, any restrictions on cell collection in this period may have been meaningless, because NSA wasn’t heeding FISC’s restrictions on PATRIOT authorized collection, nor could it distinguish between the data it got under EO 12333 and Section 215.

Few people seem to get this point, but at least during 2008, and probably during the entire period leading up to 2009, there was no appreciable analytical border between where the EO 12333 phone dragnet ended and the Section 215 one began.

There’s no unredacted evidence (aside from the IMEI/IMSI permission) the NSA was collecting cell phone records under Section 215 before the 2009 process, though in 2009, both Sprint and Verizon (even AT&T, though to a much less significant level) had to separate out their entirely foreign collection from their domestic, meaning they were turning over data subject to EO 12333 and Section 215 together for years. That’s also roughly the point when NSA moved toward XML coding of data on intake, clearly identifying where and under what authority it obtained the data. Thus, it’s only from that point forward where (at least according to what we know) the data collected under Section 215 would clearly have adhered to any restrictions imposed on location.

In 2010, the NSA first started experimenting with smaller collections of records including location data at a time when Verizon Wireless was named on primary orders. And we have two separate documents describing what NSA considered its first collection of cell data under Section 215 on August 29, 2011. But it did so only after AT&T had stripped the location data from the records.

It appears Verizon never did the same (indeed, Verizon objected to any request to do so in testimony leading up to USAF’s passage). The telecoms used different methods of delivering call records under the program. In fact, in August 2, 2012, NSA’s IG described the orders as requiring telecoms to produce “certain call detail records (CDRs) or telephony metadata,” which may differentiate records that (which may just be AT&T) got processed before turning over. Also in 2009, part of Verizon ended its contract with the FBI to provide special compliance with NSLs. Both things may have affected Verizon’s ability or willingness to custom what it was delivering to NSA, as compared to AT&T.

All of which suggests that at least Verizon could not or chose not to do what AT&T did: strip location data from its call records. Section 215, before USAF, could only require providers to turn over records they kept, it could not require, as USAF may, provision of records under the form required by the government. Additionally, under Section 215, providers did not get compensated after the first two dragnet orders.

All that said, the dragnet has identified cell phones! In fact, the only known “successes” under Section 215 — the discovery of Basaaly Moalin’s T-Mobile cell phone and the discovery of Adis Medunjanin’s unknown, but believed to be Verizon, cell phone — did, and they are cell phones from companies that didn’t turn over records. In addition, there’s another case, cited in a 2009 Robert Mueller declaration preceding the Medunjanin discovery, that found a US-based cell phone.

There are several possible explanations for that. The first is that these phones were identified based off calls from landlines and/or off backbone records (so the phone number would be identified, but not the cell information). But note that, in the Moalin case, there are no known land lines involved in the presumed chain from Ayro to Moalin.

Another possibility — a very real possibility with some of these — is that the underlying records weren’t collected under Section 215 at all, but were instead collected under EO 12333 (though Moalin’s phone was identified before Michael Mukasey signed off on procedures permitting the chaining through US person records). That’s all the more likely given that all the known hits were collected before the point in 2009 when the FISC started requiring providers to separate out foreign (EO 12333) collection from domestic and international (Section 215) collection. In other words, the Section 215 phone dragnet may have been working swimmingly up until 2009 because NSA was breaking the rules, but as soon as it started abiding by the rules — and adhering to FISC’s increasingly strict limits on cell location data — it all of a sudden became virtually useless given the likelihood that potential terrorism targets would use exclusively cell and/or Internet calls just as they came to bypass telephony lines. Though as that happened, the permissions on tracking US persons via records collected under EO 12333, including doing location analysis, grew far more permissive.

In any case, at least in recent years, it’s clear that by giving notice and adjusting policy to match districts, the FISC and FBI made it very difficult to collect prospective location records under FISA, and therefore absent some means of forcing telecoms to strip their records before turning them over, to collect cell data.

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The Three Kinds of Dragnet Searches NSA Did When Only Doing Contact Chaining

This is going to be a weedy post in which I look at a key detail revealed by 2010 NSA Inspector General reviews of the Section 215 phone dragnet. The document was liberated by Charlie Savage last year.

At issue is the government’s description, in the period after the Snowden leaks, of what kind of searches it did on the Section 215 phone dragnet. The searches the government did on Section 215 dragnet data are critical to understanding a number of things: the reasons the parallel Internet dragnet probably got shut down in 2011, the squeals from people like Marco Rubio about things the government lost in shutting down the dragnet, and the likely scope of collection under USA Freedom Act.

Throughout the discussion of the phone dragnet, the administration claimed it was used for “contact chaining” — that is, exclusively to show who was within 3 (and starting in 2014, 2) degrees of separation, by phone calls [or texts, see update] made, from a suspected terrorist associate.

Here’s how the administration’s white paper on the program described it in 2013.

This telephony metadata is important to the Government because, by analyzing it, the Government can determine whether known or suspected terrorist operatives have been in contact with other persons who may be engaged in terrorist activities, including persons and activities within the United States. The program is carefully limited to this purpose: it is not lawful for anyone to query the bulk telephony metadata for any purpose other than counterterrorism, and Court-imposed rules strictly limit all such queries.

Though some claims to Congress and the press were even more definitive that this was just about contact chaining.

The documents on the 2009 violations released under FOIA made it clear that, historically at least, querying wasn’t limited to contact chaining. Almost every reference in these documents to the scope of the program includes a redaction after “contact chaining” in the description of the allowable queries. Here’s one of many from the government’s first response to Reggie Walton’s questions about the program.

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The redaction is probably something like “pattern analysis.”

Because the NSA was basically treating all Section 215 data according to the rules governing EO 12333 in 2009 (indeed, at the beginning of this period, analysts couldn’t distinguish the source of the two authorizations), it subjected the data to a number of processes that did not fit under the authorization in the FISC orders — things like counts of all contacts and automatic chaining on identifiers believed to be the same user as one deemed to have met the Reasonable Articulable Standard. The End to End report finished in summer 2009 described one after another of these processes being shut down (though making it clear it wanted to resume them once it obtained FISC authorization). But even in these discussions, that redaction after “contact chaining” remained.

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Even in spite of this persistent redaction, the public claims this was about contact chaining gave the impression that the pattern analysis not specifically authorized by the dragnet orders also got shut down.

The IG Reports that Savage liberated gives a better sense of precisely what the NSA was doing after it cleared up all its violations in 2009.

The Reports were ordered up by the FISC and covered an entire year of production (there was a counterpart of the Internet dragnet side, which was largely useless since so much of that dragnet got shut down around October 30, 2009 and remained shut down during this review period).

The show several things:

  • NSA continued to disseminate dragnet results informally, even after Reggie Walton had objected to such untrackable dissemination
  • Data integrity techs could — and did on one occasion, which was the most significant violation in the period — access data directly and in doing so bypass minimization procedures imposed on analysts (this would be particularly useful in bypassing subject matter restrictions)
  • Already by 2010, NSA did at least three different kinds of queries on the database data: in addition to contact chaining, “ident lookups,” and another query still considered Top Secret

It’s the last item of interest here.

The first thing to understand about the phone dragnet data is it could be queried two places: the analyst front-end (the name of which is always redacted), and a “Transaction Database” that got replaced with something else in 2011. (336)

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Basically, when the NSA did intake on data received from the telecoms, it would create a table of each and every record (which is I guess where the “transaction” name came from), while also making sure the telecoms didn’t send illegal data like credit card information.

Doing queries in the Transaction Database bypassed search restrictions. The March 2010 audit discovered a tech had done a query in the Transaction Database using a selector the RAS approval (meaning NSA had determined there was reasonable articulable suspicion that the selector had some tie to designated terrorist groups and/or Iran) of which had expired. The response to that violation, which NSA didn’t agree was a violation, was to move that tech function into a different department at NSA, away from the analyst function, which would do nothing to limit such restriction free queries, but would put a wall between analysts and techs, making it harder for analysts to ask techs to perform queries they would be unable to do.

Because the direct queries done for data integrity purposes were not subject to auditing under the phone dragnet orders, the monthly reports distinguished between those and analyst queries, the latter of which were audited to be sure they were RAS approved. But as the April 2010 report and subsequent audits showed, analysts also would do an “ident lookup.” (83)

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The report provided this classified/Five Eyes description of “ident lookups.”

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The Emphatic Access Restriction was a tool implemented in 2009 to ensure that analysts only did queries on RAS-approved selectors. What this detail reveals is that, rather than consulting a running list somewhere to see whether a selector was RAS approved, analysts would instead try to query, and if the query failed, that’s how they would learn the selector was not RAS approved.

We can’t be sure, but that suggests RAS approval went beyond simple one-to-one matching of identifiers. It’s possible an ident lookup needed to query the database to see if the data showed a given selector (say, a SIM card) matched another selector (say, a phone number) which had been RAS approved. It might go even further, given that NSA had automatically done searches on “correlated” numbers (that is, on a second phone number deemed to belong to the same person as the approved primary number that had been RAS approved). At least, that’s something NSA had done until 2009 and said it wanted to resume.

In other words, the fact that an ident lookup query queried the data and not just a list of approved selectors suggests it did more than just cross-check the RAS approval list: at some level it must tested the multiple selectors associated with one user to see if the underlying selectors were, by dint of the user himself being approved, themselves approved.

Indent lookups appear fairly often in these IG reports. Less frequent is an entirely redacted kind of query such as described but redacted in the September 2010 report. (166)

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The footnote description of that query is classified Top Secret NOFORN and entirely redacted.

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I have no idea what that query would be, but it’s clear it is done on the analyst facing interface, and only on RAS approved selectors.

The timing of this third query is interesting. Such queries appear in the September and October 2010 audits. That was a period when, in the wake of the July 2010 John Bates approval to resume the Internet dragnet, they were aligning the two programs again (or perhaps even more closely than they had been in 2009). It also appears after a new selector tracking tool got introduced in June 2010. That said, I’m unaware of anything in the phone dragnet orders that would have expanded the kinds of queries permitted on the phone dragnet data.

We know they had used the phone dragnet until 2009 to track burner phones (that is, matching calling patterns of selectors unknown to have a connection to determine which was a user’s new phone). We know that in November 2012, FISC approved an automated query process, though NSA never managed to implement it technically before Obama decided to shut down the dragnet. We also know that in 2014 they started admitting they were also doing “connection” chaining (which may be burner phone matching or may be matching of selectors). All are changes that might relate to more extensive non-chain querying.

We also don’t know whether this kind of query persisted from 2010 until last year, when the dragnet got shut down. I think it possible that the reasons they shut down the Internet dragnet in 2011 may have implicated the phone dragnet.

The point, though, is that at least by 2010, NSA was doing non-chain queries of the entire dragnet dataset that it considered to be approved under the phone dragnet orders. That suggests by that point, NSA was using the bulk set as a set already (or, more accurately, again, after the 2009 violations) by September 2010.

Last March James Clapper explained the need to retain records for a period of time, he justified it by saying you needed the historical data to discern patterns.

Q: And just to be clear, with the private providers maintaining that data, do you feel you’ve lost an important tool?

Clapper: Not necessarily. It will depend though, for one, retention period. I think, given the attitude today of the providers, they will probably do all they can to minimize the retention period. Which of course, from our standpoint, lessens the utility of the data, because you do need some — and we can prove this statistically — you do need some historical data in order to, if you’re gonna discern a pattern. And again, 215 to me, is much like my fire insurance policy. You know, my house has never burned down but every year I buy fire insurance just in case.

This would be consistent with the efforts to use the bulk dataset to find burner identities, at a minimum. It would also be consistent with Marco Rubio et al’s squeals about needing the historical data. And it would be consistent with the invocation of the National Academy of Sciences report on bulk data (though not on the phone dragnet), which NSA’s General Counsel raised in a Lawfare post today.

In other words, contrary to public suggestions, it appears NSA was using the phone dragnet to conduct pattern analysis that required the bulk dataset. That’s not surprising, though it is something the NSA suggested they weren’t doing.

They surely are still doing that on the larger EO 12333 dataset, along with a lot more complex kinds of analysis. But it seems some, like Rubio, either think we need to return to such bulk pattern analysis, or has used the San Bernardino attack to call to resume more intrusive spying.

Update: One of the other things the IG Reports make clear is that NSA was (unsurprisingly) collecting records of non-simultaneous telephone transactions. That became an issue when, in 2011, NSA started to age-off 5 year old data, because they would have some communication chains that reflected communications that were more than 5 years old but which were obtained less than 5 years before.

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My guess is this reflects texting chains that continued across days or weeks.

How FISC Amicus Preston Burton Helped Michael Mosman Shore up FISC’s Authority

On November 24, Judge Michael Mosman approved the government’s request to hold onto the Section 215 phone dragnet data for technical assurance purposes for three months, as well as to hold the data to comply with a preservation order in EFF’s challenge to the phone dragnet (though as with one earlier order in this series, Thomas Hogan signed the order for Mosman, who lives in Oregon). While the outcome of the decision is not a surprise, the process bears some attention, as it’s the first time a truly neutral amicus has been involved in the FISC process (though corporations, litigants, and civil rights groups have weighed in various decisions as amici).

In addition to Mosman’s opinion, the FISC released amicus Preston Burton’s memo and the government’s response on December 2; I suspect there may be a Burton reply they have not released.

Minimization procedures

As I noted in September when Mosman first appointed Burton, it wasn’t entirely clear what the FISC was asking him to review. In his order, Mosman explains that he “directed him to address whether the government’s above-described requests to retain and use BR metadata after November 28, 2015, are precluded by section 103 of the USA FREEDOM Act or any other provision of that Act.”

Burton took this to be largely a question about minimization procedures.

Instead, the Act provides that the Court shall decide issues concerning the use, retention, dissemination, and eventual destruction of the tangible things collected under the FISA business records statute as part of its oversight of the statutorily mandated minimization procedures.

He then pointed to a number of the FISC’s more assertive oversight moments over the NSA to argue that the FISC has fairly broad authorities to review minimization procedures.

Although the government is required to enumerate minimization procedures addressing the use, retention, dissemination, and (now) ultimate destruction of the metadata in its applications to the Court, the Court’s review of those procedures is not simply ministerial. And, indeed, Judge Walton’s 2009 orders, cited above, addressing deficiencies in the administration of the call detail record program made clear that the FISA Court may impose more robust minimization procedures. See also Kris, Bulk Collection at 15-17 (discussing FISA Court’s imposition of new restrictions to the telephony program). Likewise, the Court may decline to endorse procedures sought by the government See Opinion at 11-2, In re Application of the FBI for an Order Requiring the Production of Tangible Things, Docket No. BR 14-01 (March 7, 2014) (denying the government’s motion to modify the minimization procedures), amended, Opinion at S, Jn re Application of the FBI/or an Order Requiring the Production a/Tangible Things, Docket No. BR 14-01(March12, 2014). Similarly, Judge Bates found substantial deficiencies in the NSA’ s minimization procedures in Jn Re [Redacted}, 2011 WL l 0945618, at *9 (FISA Ct. Oct. 3, 2011) (Bates J.) (fmding NSA minimization procedures insufficient and inconsistent with the Fourth Amendment). As a result, the NSA amended its procedures, including reducing the data retention in issue in that case (under a differentFISA statute) from five to two years. See In Re [Redacted], 2011WL10947772, at •s (FISA Ct. Nov. 30, 2011) (Bates J.).

Particularly in the case of the two PRTT orders, the government has actually challenged FISC’s roles in imposing minimization procedures (though admittedly FISC’s role under that authority is less clear cut than under Section 215).

Burton argued that USA Freedom Act (which he abbreviated USFA) made that role even stronger.

But the USFA augmented this minimization review authority even more and dispels any suggestion that the Court may not modify the minimization procedures articulated in the government’s application. The statute’s fortification of Judicial Review provisions makes clear that Congress intended for the FISA Court to oversee these issues in the context of imposing minimization procedures that balance the government’s national security interests with privacy interests, including specifically providing for the prompt destruction of tangible things produced under the business records provisions.10 Significantly, USF A § 104 empowers the Court to assess and supplement the government’s proposed minimization procedures:

Nothing in this subsection shall limit the authority of the court established under section 103(a) to impose additional, particularized minimization procedures with regard to the production, retention, or dissemination of nonpublicly available information concerning unconsenting United States persons, including additional particularized procedures related to the destruction of information within a reasonable time period. USFA § 104 (a)(3) (now codified at 50 U.S.C. §1861(g)(3)(emphasis supplied).

That provision applies to all information the government obtains under the business records procedure, not just call detail records. u Moreover, that amendment, set forth in USFA § 104, went into effect immediately, unlike the 180-day transition period for the revisions to the business records sections. See USFA § 109 (amendments made by §§ 101-103 take effect 180 days after enactment).12

As I said, that’s the kind of argument the government has been arguing against for 11 years, most notably in the two big Internet dragnet reauthorizations (admittedly, FISC’s role in minimization procedures there is less clear, but there is similar language about not limiting the authority of the court).

Burton sneaks in some real privacy questions

Having laid out the (as he sees it) expansive authority to review minimization procedures, Burton then does something delightful.

He poses a lot of questions that should have been asked 9 years ago.

Because of the significant privacy concerns that motivated Congress to amend the bulk collection provisions of the statute, however, the undersigned respectfully submits that, the Court should consider requiring the government to answer more fully fundamental questions regarding:

  • The current conditions, location, and security for the data archive.
  • The persons and entities to whom the NSA has given access to information provided under this program and whether that shared information will also be destroyed under the NSA destruction plan (and, if not, why not?).
  • What oversight is in place to ensure that access to the database is not “analytical” and what the government means by “non-analytical.”
  • Why testing of the adequacy of new procedures was not completed by the NSA (and whether it was even initiated) during the 180-day transition period.
  • How the government intends to destroy such information after February 29, 2016, (its proposed extinction date for the database) independent of the resolution of any litigation holds.
  • Whether the contemplated destruction will include only data that the government has collected or will include all data that it has analyzed in some fashion.

Remember, by the time Burton wrote this, he had read at least the application for the final dragnet order, and the answers to these questions were not clear from that (which is where the government lays out its more detailed minimization procedures). Public releases have made me really concerned about some of them, such as how to protect non-analytical queries from being used for analytical purposes. NSA has had tech people do analytical queries in the past, and it doesn’t audit tech activities. Similarly, when the NSA destroyed the Internet dragnet data in 2011, NSA’s IG wasn’t entirely convinced it all got destroyed, because he couldn’t see the intake side of things. So these are real issues of concern.

Burton also asked questions about the necessity behind keeping data for the EFF challenges rather than just according the plaintiffs standing.

If this Court chooses to follow Judge Walton’s approach and defer to the preservation orders issued by the other courts, the Court nonetheless should address a number of questions before deciding whether to grant the government’s preservation request:

  • Why has the government been unable to reach some stipulation with the plaintiffs to preserve only the evidence necessary for plaintiffs to meet their standing burden? Consider whether it is appropriate for the government to retain billions of irrelevant call detail records involving millions of people based on, what undersigned understands from counsel involved in that litigation, the government’s stubborn procedural challenges to standing — a situation that the government has fostered by declining to identify the particular telecommunications provider in question and/or stipulate that the plaintiff is a customer of a relevant provided.
  • As Judge Walton identified when he first denied the modification of the minimization procedures to extend the duration of preservation, the continued retention of the data at issue subjects it to risk of misuse and improper dissemination. The government should have to satisfy the Court of the security of this information in plain and meaningful terms.

(Notice how he assumes the plaintiffs might have standing which, especially for First Unitarian Church plaintiff CAIR, they should.)

Finally, perhaps channeling the justified complaint of all the tech people who review these kinds of policy questions, Burton suggested the FISC really ought to be consulting with a tech person.

This case, due to the relatively limited period of time sought by the government to accomplish its stated narrow purpose, likely does not require a difficult assessment of the reasonableness of the government’s technical retention request. To evaluate even such a limited request, however, the Court may wish to consider availing itself of technical expertise from national security experts or computer technology experts. Technical expertise is an amicus category contemplated by Congress in its reform of the FISA statutes. 50 U.S.C. § 1803 (i)(2)(B), as amended by USF A Section 401. That section alone suggests congressional expectation of greater judicial oversight of the government’s surveillance program and requests. See USF A § 401; see also Kris, Bulk Collection at 3 7 (contemplating theoretical procedures for cross-examining NSA engineers as one example of the challenges in implementing a more adversarial system for the FISA Court).

Burton ended his memo reiterating his recommendation that FISC get more information.

In light of the significant privacy interests affected by the creation and retention of the database, the undersigned urges the Court as part of its statutory oversight of the minimization procedures to demand full and meaningful information concerning the condition of the data at issue, the data’s security, and its contemplated destruction as a condition of any retention beyond November 28, 2015.

The government is not amused

Predictably, the government balked at Burton’s invitation to use his expansive reading of the authority of the FISC to review minimization procedures to bolster the current ones.

Amicus curiae’ s analysis of Section 104 of the USA FREEDOM Act could be interpreted as suggesting an opportunity for the Court to re-examine the minimization procedures applicable for other business records productions in this proceeding. Consistent with the Court’s order appointing amicus curiae, the Government has limited its response to the issue identified in that order.

Frankly, I’m not sure what the government distinguishes between Burton’s proposal to reexamine existing minimization procedures and what is covered by the order in question, because they do respond to a number of the questions he raised in his brief.

For example, they provide these details about where the dragnet lives (which, as it turns out, is at Fort Meade, not the UT data center).

As described in the Application in docket number BR 15-99 and prior docket numbers, NSA stores and processes the bulk call detail records in repositories within secure networks under NSA’ s control. Those repositories (servers, networked storage devices, and backup tapes in locked containers) are located in NSA’s secure, access-controlled facilities at Fort George G. Meade, Maryland. As further described in those applications, NSA restricts access to the records to authorized personnel who have received appropriate and adequate training. Electronic access to the call detail records requires a user authentication credential. Physical access to the location where NSA stores and processes the call detail records requires an approval by NSA management and must be conducted in teams of no less than two persons.

Also note that there is currently a requirement that techs access the raw data in two person teams. That is likely a change that post-dates Snowden.

Curiously, the NSA says they can destroy all the phone dragnet data in a month.

NSA anticipates it can complete destruction of the bulk call detail records and related chain summaries within one month of being relieved of its litigation preservation obligations.

They appear to have taken far less time to destroy the Internet dragnet data, further supporting the appearance they did it very hastily to avoid having to report back to John Bates on the status of their dragnet.

Finally, they make clear what had already been clear to me: the existing query results will remain at NSA.

Information obtained or derived from call detail records which has been previously disseminated in accordance with approved minimization procedures will not be recalled or destroyed.2 Also, select query results generated by pre-November 29, 2015, queries of the bulk records that formed the basis of a dissemination in accordance with approved minimization procedures will not be destroyed.

2 This practice does not differ from similar circumstances where, for example Court-authorized electronic surveillance and/or physical search authorities under Title I or III expire. While raw (unminimized) information is handled and destroyed in accordance with applicable minimization procedures, prior authorized disseminations and the material underpinning those disseminations are not recalled or otherwise destroyed.

This means that everyone within two or three degrees of a target that the NSA has found interesting — potentially over the last decade — will remain available and subject to NSA’s analytical toys from here on out.

Let’s hope CAIR gets standing to challenge what has happened to their IDs then.

Which may be why the government gets snippiest in response to Burton’s question about why they’re going to keep billions of phone records rather than just reach some accommodation with EFF.

The suggestions by amicus curiae that this Court address (or perhaps even resolve) significant substantive questions at issue in underlying civil litigation,, see Amicus Mem. of Law at 27, are exactly the kinds of inquiries the Court previously recognized were inappropriate for it to resolve. Opinion and Order, docket number BR 14-01at5 (“it is appropriate for [the district court for the Northern District of California], rather than the FISC, to determine what BR metadata is relevant to that litigation”). This Court should adopt the same view. In particular, the suggestion that the Government disclose national security information concerning the identity of providers, information subject to a pending state secrets privilege assertion, is inappropriate, and the suggestion by amicus that the government stipulate to Article III standing in those cases is unfounded as a matter of law. Finally, the suggestion that preservation of bulk call detail records can be limited solely to the plaintiffs in multiple pending putative class actions is entirely unworkable. For the reasons more particularly set out above, until the Government is relieved of its preservation obligations, the data is secure.

Which leads me to the detail that makes me suspect there’s a second Burton filing the government hasn’t released (I’ve asked NSD but gotten no answer, and in his opinion Mosman says only “Mr. Burton and the government submitted briefs addressing this question,” leaving open the possibility Burton submitted two): After finding no reason to hold a hearing on the issue of restarting the dragnet during the summer, Mosman did hold a hearing here (though it’s not clear whether Burton attended or not). At the hearing, Mosman ordered the government to try to come up with a way to destroy the dragnets, which it will do by January 8.

During the hearing held on November 20, 2015, the Court directed the government to submit its assessment of whether the cessation of bulk collection on November 28, 2015, will moot the claims of the plaintiffs in the Northern District of California litigation relating to the BR Metadata program and thus provide a basis for moving to lift the preservation orders. The Court further directed the government to address whether, even if the California plaintiffs’ claims are not moot, there might be a basis for seeking to lift the preservation orders with respect to the BR Metadata that is not associated with the plaintiffs. The government intends to make its submission on these issues by January 8, 2016.

And, as Mosman’s opinion makes clear, he ordered them to write up a free-standing copy of the minimization procedures that will govern the dragnet data retained from here on out.

The minimization procedures that the government proposes using after the production ceases on November 28, 2015 are in important respects substantially more restrictive than those currently in effect. The procedures that will apply after November 28, which were initially included as part of the broader set of procedures set forth in the application, were resubmitted by the government in a standalone document on November 24, 2015 (“November 24, 2015 Minimization Procedures”).

They would have submitted them on the day Mosman (via Hogan’s signature) approved the request to keep the data. In other words, Mosman made the government generate a document to make it crystal clear the more restrictive rules apply to the dragnet going forward.

The value of the amicus

Whether it was Mosman’s intent when he appointed Burton or not (remember, for better and worse, under USAF the amicus has to do what the FISC asks), his appointment served several purposes.

First, it set Mosman up to make it very clear that the FISC sees the minimization procedures required under USAF do give the FISC expanded authority.

The USA FREEDOM Act made several minimization-related changes to Section 1861. For instance, Section 1861 now provides that, before granting a business records application, the Court must expressly find that the minimization procedures put forth by the government “meet the definition ofminimiz.ation procedures under subsection (g).” See Pub. L. No. 114-23, § 104(a)(l), 129 Stat. at 272. This change is not substantive, however, as such a finding was previously implicit in the broader finding required by Section 1861 ( c )(1) – i.e, “that the application meets the requirements of subsection (a) and (b).” Among the requirements of subsection (b) was – and still is – the requirement that the application include an enumeration of Attorney General-approved minimization procedures that meet the definition set forth in subsection (g). Another change is the addition of a “rule of construction” confirming the Court’s authority “to impose additional, particularized minimization procedures with regard to the production, retention, or dissemination” of certain information regarding United States persons, including “procedures related to the destruction of information within a reasonable time period.” See id. § 104(a)(2), 129 Stat. at 272. A third new provision that takes effect on November 29, 2015, states that orders compelling the ongoing, targeted production of “call detail records” must direct the government to adopt minimization procedures containing certain requirements relating to the destruction of such records. See id Pub. L. No. 114-23, § 10l(b)(3)(F)(vii), 129 Stat. at 270-71.

Remember, it took 7 years — including 4 years of FISC-imposed minimization requirements and reviews — before the government met the requirements of the law as passed in 2006. Significantly, Burton got a classified version of the IG report laying out that delay to read, so he surely knows more about that delay than we do.

In addition, Burton set up the FISC to demand more assurances from the government and — potentially — to push it to come to some more reasonable accommodation with EFF than they otherwise might. Remember, when presiding over the criminal case of Raez Qadir Khan, Mosman was going to grant CIPA discovery on the surveillance used to catch Khan, some of which almost certainly included one (Stellar Wind) or another (the PRTT Internet dragnet) of the illegal dragnets, which led almost immediately to a plea deal.

I’m, frankly, pleasantly surprised. Whether it was Mosman’s intent or not, even picking someone without an obvious brief for privacy, Burton helped Mosman shore up the authority of the FISC to ride herd over government spying (and given Judge Hogan’s involvement along the way, he presumably did so with the assent of the presiding FISC judge).

In any case, Mosman was happy with how it all worked out, as he included this footnote in his opinion.

The Court wishes to thank Mr. Burton for his work in this matter. His written and oral presentations were extremely informative to the Court’s consideration of the issues addressed herein. The Court is grateful for his willingness to serve in this capacity.

John Bates, speaking inappropriately on behalf of the FISA Court during USAF debates, squealed mightily about the role an amicus had. Admittedly, the current form is closer to what Bates (who I’ve always suspected was speaking on behalf of John Roberts more than the court) wanted than what reformers wanted.

But at least in this instance, the amicus helped the FISC shore up its authority vis a vis the government.

Update: Richard Posey notes the reference to Burton’s “oral” presentations in the thank you footnote, which suggests he was at the November 20 hearing.  Continue reading

Another Probable Reason to Shut Down the Internet Dragnet: Dissemination Restrictions

Screen Shot 2015-11-27 at 10.27.12 PMI noted the other day that an NSA IG document liberated by Charlie Savage shows the agency had 4 reasons to shut down the domestic Internet (PRTT) dragnet, only one of which is the publicly admitted reason — that NSA could accomplish what it needed to using SPCMA and FAA collection.

I’m fairly sure another of the reasons NSA shut down the dragnet is because of dissemination restrictions that probably got newly reinvigorated in mid-2011.

I laid out a timeline of events leading up to the shutdown of the Internet dragnet here. I’ve added one date: that of the draft training program, several modules of which are dated October 17, 2011, released under FOIA (given other dates in the storyboard, the program had clearly been in development as early as November 2010). How odd is that? The NSA was just finalizing a training program on the Internet (and phone) dragnet as late as 6 weeks before NSA hastily shut it down starting in late November 2011. The training program — which clearly had significant Office of General Counsel involvement — provides a sense of what compliance issues OGC was emphasizing just as NSA decided to shut down the Internet dragnet.

The training program was done in the wake of two things: a series of audits mandated by the FISA Court (see PDF 36) that lasted from May 2010 until early 2011, and the resumption of the PRTT Internet dragnet between July and October 2010.

The series of audits revealed several things. First, as I have long argued was likely, the technical personnel who monitor the data for integrity may also use their access to make inappropriate queries, as happened in an incident during this period (see PDF 95 and following); I plan to return to this issue. In addition, at the beginning of the period — before a new selector tracking tool got introduced in June 2010 — NSA couldn’t track whether some US person selectors had gotten First Amendment review. And, throughout the audit period, the IG simply didn’t review whether less formalized disseminations of dragnet results followed the rules, because it was too hard to audit. The final report summarizing the series of audits from May 2011 (as well as the counterpart one covering the Internet dragnet) identified this as one of the weaknesses of the program, but NSA wanted to manage it by just asking FISC to eliminate the tracking requirements for foreign selectors (see PDF 209).

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I found this blasé attitude about dissemination remarkable given that in June 2009, Reggie Walton had gotten furious with NSA for not following dissemination restrictions, after which NSA did it again in September 2009, and didn’t tell Walton about it, which made him furious all over again. Dissemination restrictions were something Walton had made clear he cared about, and NSA IG’s response was simply to say auditing for precisely the kind of thing he was worried about — informal dissemination — was too hard, so they weren’t going to do it, not even for the audits FISC (probably Walton himself) ordered NSA to do to make sure they had cleaned up all the violations discovered in 2009.

Meanwhile, when NSA got John Bates to authorize the resumption of the dragnet (he signed the order in July 2010, but it appears it didn’t resume in earnest until October 2010), they got him to approve the dissemination of PRTT data broadly within NSA. This was a response to a Keith Alexander claim, made the year before, that all product lines within NSA might have a role in protecting against terrorism (see PDF 89).

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In other words, even as NSA’s IG was deciding it couldn’t audit for informal dissemination because it was too hard to do (even while acknowledging that was one of the control weaknesses of the program), NSA asked for and got FISC to expand dissemination, at least for the Internet dragnet, to basically everyone. (The two dragnets appear to have been synched again in October 2010, as they had been for much of 2009, and when that happened the NSA asked for all the expansions approved for the Internet dragnet to be applied to the phone dragnet.)

Which brings us to the training program.

There are elements of the training program that reflect the violations of the previous years, from an emphasis on reviewing for access restrictions to a warning that tech personnel should only use their sysadmin access to raw data for technical purposes, and not analytical ones.

But the overwhelming emphasis in the training was on dissemination — which is a big part of the reason the NSA used the program to train analysts to rerun PATRIOT-authorized queries under EO 12333 so as to bypass dissemination restrictions. As noted in the screen capture above, the training program gave a detailed list of the things that amounted to dissemination, including oral confirmation that two identifiers — even by name (which of course confirms that these phone numbers are identifiable to analysts) — were in contact.

In addition, any summary of that information would also be a BR or PR/TT query result. So, if you knew that identifier A belonged to Joe and identifier B belonged to Sam, and the fact of that contact was derived from BR or PR/TT metadata, if you communicate orally or in writing that Joe talked to Sam, even if you don’t include the actual e-mail account or telephone numbers that were used to communicate, this is still a BR or PR/TT query result.

The program reminded that NSA has to report every dissemination, no matter how informal.

This refers to information disseminated in a formal report as well as information disseminated informally such as written or oral collaboration with the FBI. We need to count every instance in which we take a piece of information derived from either of these two authorities and disseminate it outside of NSA.

Normally an NSA product report is the record of a formal dissemination. In the context of the BR and PR/TT Programs, an official RFI response or Analyst Collaboration Record will also be viewed as dissemination. Because this FISC requirement goes beyond the more standard NSA procedures, additional diligence must be given to this requirement. NSA is required to report disseminations formal or informal to the FISC every 30 days.

I’m most interested in two other aspects of the training. First, it notes that not all queries obtained via the dragnet will be terrorism related.

It might seem as though the information would most certainly be counterterrorism-related since, due to the RAS approval process, you wouldn’t have this U.S. person information from a query of BR or PR/TT if it weren’t related to counterterrorism. In the majority of cases, it will be counterterrorism-related; however, the nature of the counterterrorism target is that it often overlaps with several other areas that include counternarcotics, counterintelligence, money laundering, document forging, people and weapons trafficking, and other topics that are not CT-centric. Thus, due to the fact that these authorities provide NSA access to a high volume of U.S. person information for counterterrorism purposes, the Court Order requires an explicit finding that the information is in fact related to counterterrorism prior to dissemination. Therefore, one of the approved decision makers must document the finding using the proper terminology. It must state that the information is related to counterterrorism and that it is necessary to understand the counterterrorism information.

Remember, this training was drafted in the wake of NSA’s insistence that all these functional areas needed to be able to receive Internet dragnet data, which, of course, was just inviting the dissemination of information for reasons other than terrorism, especially given FISC’s permission to use the dragnet to track Iranian “terrorism.” Indeed, I still think think it overwhelmingly likely Shantia Hassanshahi got busted for proliferation charges using the phone dragnet (during a period when FISC was again not monitoring NSA very closely). And one of the things NSA felt the need to emphasize a year or so after NSA started being able to share this “counterterrorism” information outside of its counterterrorism unit was that they couldn’t share information about money laundering or drug dealing or … counterproliferation unless there was a counterterrorism aspect to it. Almost as if it had proven to be a problem.

The training program warns that results may not be put into queriable tools that untrained analysts have access to.

Screen Shot 2015-11-29 at 1.54.44 PM\

Note the absolutely hysterical review comment that said there’s no list of which tools analysts couldn’t use with 215 and PRTT dragnet results. Elsewhere, the training module instructs analysts to ask their manager, which from a process standpoint is a virtual guarantee there will be process violations.

This is interesting for two reasons. First, it suggests NSA was still getting in trouble running tools they hadn’t cleared with FISC (the 215 IG Reports also make it clear they were querying the full database using more than just the contact-chaining they claim to have been limited to). Remember there were things like a correlations tool they had to shut down in 2009.

But it’s also interesting given the approval, a year after this point, of an automatic alert system for use with the phone dragnet (which presumably was meant to replace the illegal alert system identified in 2009).

In 2012, the FISA court approved a new and automated method of performing queries, one that is associated with a new infrastructure implemented by the NSA to process its calling records.68 The essence of this new process is that, instead of waiting for individual analysts to perform manual queries of particular selection terms that have been RAS approved, the NSA’s database periodically performs queries on all RAS-approved seed terms, up to three hops away from the approved seeds. The database places the results of these queries together in a repository called the “corporate store.”

The ultimate result of the automated query process is a repository, the corporate store, containing the records of all telephone calls that are within three “hops” of every currently approved selection term.69 Authorized analysts looking to conduct intelligence analysis may then use the records in the corporate store, instead of searching the full repository of records.70

That is, in 2011, NSA was moving towards such an automated system, which would constitute a kind of dissemination by itself. But it wasn’t there yet for the PATRIOT authorized collection. Presumably it was for EO 12333 collection.

As it happened, NSA never did fulfill whatever requirements FISC imposed for using that automatic system with phone dragnet information, and they gave up trying in February 2014 when Obama decided to outsource the dragnet to the telecoms. But it would seem limits on the permission to use other fancy tools because they would amount to dissemination would likely limit the efficacy of these dragnets.

Clearly, in the weeks before NSA decided to shut down the PRTT dragnet, its lawyers were working hard to keep the agency in compliance with rules on dissemination. Then, they stopped trying and shut it down.

Both the replacement of PRTT with SPCMA and 702, and the replacement of the 215 dragnet with USAF, permit the government to disseminate metadata with far looser restrictions (and almost none, in the case of 702 and USAF metadata). It’s highly likely this was one reason the NSA was willing to shut them down.

2011 Internet Dragnet Audit Didn’t Find Significant Violation Reported to IOB

This will be the second of three posts on the NSA IG’s failures to correct problems with the Internet (PRTT) dragnet. In the first, I showed how quickly NSA nuked the PRTT (or at least claimed to) after John Bates ruled, a second time, that NSA could not illegally wiretap the content of Americans’ communications. Here, I’ll examine another IG Report, completed earlier in 2011 and also liberated by Charlie Savage, that appears to show the PRTT dragnet was hunky dory just weeks before it became clear again that it was not.

The report (see PDF 4-23) must date to between March 15 and May 25, 2011. It was related to a series of reports on the phone dragnet (these reports appear to have been solicited by or encouraged by Reggie Walton in the wake of the 2009 dragnet problems) that Savage liberated earlier this year. It lists all those reports on pages A-2 to A-3. But it lists the final, summary report in that series, (ST-10-0004L), as a draft, dated March 15, 2011. The copy provided to Savage is the final, dated May 25, 2011 (see PDF 203).

The reason for doing this, the PRTT report, is curious. The report notes “we began this review in [redacted, would be some time in summer 2009] but suspended it when NSA allowed the PR/TT Order to expire.” That is, this was the report that got started, but then halted, when someone discovered that every single record the NSA had collected under the program included categories of information violating the rules set by FISC in 2004.

But then NSA started a review of the phone dragnet covering all the activity in 2010 (reflected in monthly reports in Savage’s earlier release). So the NSA decided to do a review of PRTT at the same time. But remember: the Internet dragnet was shut down until at least July 2010, when John Bates authorized its resumption, and it took some time to turn the dragnet back on. That means NSA conducted a review of a dragnet that was largely on hiatus or just resuming. During the review period, both the phone and Internet dragnet reflect few finalized reports based on either dragnet. Indeed, it appears likely that there were no phone dragnet disseminations in August 2010 (see 155). There are probably two explanations for that. It suggests that after Reggie Walton told NSA they had to start following the rules, the amount of intelligence they got from the dragnet appears to have gone down from both the phone and Internet dragnet. But there may be a reason for that: we know that in 2011 NSA was training analysts to re-run queries that came up in both FISA and EO 12333 searches using EO 12333, so the results could be disseminated more broadly. So it’s likely that a lot of what had been reports reporting FISA authorized data before 2009 (which didn’t always follow FISC’s rules) started getting disseminated as EO 12333 authorized reports afterward. Still, in the case of the Internet dragnet reviewed for this report, “the dissemination did not contain PR/TT-derived USP information” so they “did not formally test dissemination objectives” (see footnote 1). None of the reports on the US Internet dragnet reviewed in some period in 2010 included US person data.

So much for collecting all of Americans’ email records to catch Americans, I guess.

All that said, both the Internet and phone dragnet found that the dragnets had adequate controls to fulfill the requirements of the FISC orders, but did say (this is laid out in unredacted form more explicitly in the phone dragnet report) that the manual monitoring of dissemination would become unworkable if analysts started using the dragnet more. The phone dragnet reports also suggest they weren’t good at monitoring less formal disseminations (via email or conversation), and by the time of these summary reports, NSA was preparing ask FISC to change the rules on reporting of non-US person dissemination. Overall in spring 2011, NSA’s IG found, the process worked according to the rules, but in part only because it was so little used.

That’s the assessment of the PRTT dragnet as of sometime between March and May 2011, less than 9 months before they’d nuke the dragnet really quickly, based mostly off a review of what NSA was doing during a period when the dragnet was largely inactive.

Which is all very interesting, because sometime before June 30, 2011 there was a PRTT violation that got reported — in a far more extensive description than the actual shut down of the dragnet in 2009 — to Intelligence Oversight Board. (see PDF 10)

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There’s no mention of reporting to Congress on this, which is interesting because PATRIOT Act was being reauthorized again during precisely this period, based off notice, dated February 2, 2011, that the compliance problems were largely solved.

So here’s what happened: After having had its IG investigation shut down in fall 2009 because NSA had never been in compliance with limits on the PRTT dragnet, NSA’s IG tried again during a period when the NSA wasn’t using it all that much. It gave NSA a clean bill of health no earlier than March 15, 2011. But by June 30, 2011, something significant enough to get reported in two full paragraphs to IOB happened.

It turns out things weren’t quote so hunky dory after all.

The FISA Court’s Uncelebrated Good Points

I’m working on a post responding to this post from Chelsea Manning calling to abolish the FISA Court. Spoiler alert: I largely agree with her, but I think the question is not that simple.

As background to that post, I wanted to shift the focus from a common perception of the FISC — that it is a rubber stamp that approves all requests — to a better measure of the FISC — the multiple ways it has tried to rein in the Executive. I think the FISC has, at times, been better at doing so than often given credit for. But as I’ll show in my larger post, those efforts have had limited success.

Minimization procedures

The primary tool the FISC uses is in policing the Executive is minimization procedures approved by the court. Royce Lamberth unsuccessfully tried to use minimization procedures to limit the use of FISA-collected data in prosecutions (and also, tools for investigation, such as informants). Reggie Walton was far more successful at using and expanding very detailed limits on the phone — and later, the Internet — dragnet to force the government to stop treating domestically collected dragnet data under its own EO 12333 rules and start treating it under the more stringent FISC-imposed rules. He even shut down the Internet dragnet in fall (probably October 30) 2009 because it did not abide by limits imposed 5 years earlier by Colleen Kollar-Kotelly.

There was also a long-running discussion (that involved several briefs in 2006 and 2009, and a change in FISC procedure in 2010) about what to do with Post Cut Through Dialed Digits (those things you type in after a call or Internet session has been connected) collected under pen registers. It appears that FISC permitted (and probably still permits) the collection of that data under FISA (that was not permitted under Title III pen registers), but required the data get minimized afterwards, and for a period over collected data got sequestered.

Perhaps the most important use of minimization procedures, however, came when Internet companies stopped complying with NSLs requiring data in 2009, forcing the government to use Section 215 orders to obtain the data. By all appearances, the FISC imposed and reviewed compliance of minimization procedures until FBI, more than 7 years after being required to, finally adopted minimization procedures for Section 215. This surely resulted in a lot less innocent person data being collected and retained than under NSL collection. Note that this probably imposed a higher standard of review on this bulky collection of data than what existed at magistrate courts, though some magistrates started trying to impose what are probably similar requirements in 2014.

Such oversight provides one place where USA Freedom Act is a clear regression from what is (today, anyway) in place. Under current rules, when the government submits an application retroactively for an emergency search of the dragnet, the court can require the government to destroy any data that should not have been collected. Under USAF, the Attorney General will police such things under a scheme that does not envision destroying improperly collected data at all, and even invites the parallel construction of it.

First Amendment review

The FISC has also had some amount — perhaps significant — success in making the Executive use a more restrictive First Amendment review than it otherwise would have. Kollar-Kotelly independently imposed a First Amendment review on the Internet dragnet in 2004. First Amendment reviews were implicated in the phone dragnet changes Walton pushed in 2009. And it appears that in the government’s first uses of the emergency provision for the phone dragnet, it may have bypassed First Amendment review — at least, that’s the most logical explanation for why FISC explicitly added a First Amendment review to the emergency provision last year. While I can’t prove this with available data, I strongly suspect more stringent First Amendment reviews explain the drop in dragnet searches every time the FISC increased its scrutiny of selectors.

In most FISA surveillance, there is supposed to be a prohibition on targeting someone for their First Amendment protected activities. Yet given the number of times FISC has had to police that, it seems that the Executive uses a much weaker standard of First Amendment review than the FISC. Which should be a particularly big concern for National Security Letters, as they ordinarily get no court review (one of the NSL challenges that has been dismissed seemed to raise First Amendment concerns).

Notice of magistrate decisions

On at least two occasions, the FISC has taken notice of and required briefing after magistrate judges found a practice also used under FISA to require a higher standard of evidence. One was the 2009 PCTDD discussion mentioned above. The other was the use of combined orders to get phone records and location data. And while the latter probably resulted in other ways the Executive could use FISA to obtain location data, it suggests the FISC has paid close attention to issues being debated in magistrate courts (though that may have more to do with the integrity of then National Security Assistant Attorney General David Kris than the FISC itself; I don’t have high confidence it is still happening). To the extent this occurs, it is more likely that FISA practices will all adjust to new standards of technology than traditional courts, given that other magistrates will continue to approve questionable orders and warrants long after a few individually object, and given that an individual objection isn’t always made public.

Dissemination limits

Finally, the FISC has limited Executive action by limiting the use and dissemination of certain kinds of information. During Stellar Wind, Lamberth and Kollar-Kotelly attempted to limit or at least know which data came from Stellar Wind, thereby limiting its use for further FISA warrants (though it’s not clear how successful that was). The known details of dragnet minimization procedures included limits on dissemination (which were routinely violated until the FISC expanded them).

More recently John Bates twice pointed to FISA Section 1809(a)(2) to limit the government’s use of data collected outside of legal guidelines. He did so first in 2010 when he limited the government’s use of illegally collected Internet metadata. He used it again in 2011 when he used it to limit the government’s access to illegally collected upstream content. However, I think it likely that after both instances, the NSA took its toys and went elsewhere for part of the relevant collection, in the first case to SPCMA analysis on EO 12333 collected Internet metadata, and in the second to CISA (though just for cyber applications). So long as the FISC unquestioningly accepts EO 12333 evidence to support individual warrants and programmatic certificates, the government can always move collection away from FISC review.

Moreover, with USAF, Congress partly eliminated this tool as a retroactive control on upstream collection; it authorized the use of data collected improperly if the FISC subsequently approved retention of it under new minimization procedures.

These tools have been of varying degrees of usefulness. But FISC has tried to wield them, often in places where all but a few Title III courts were not making similar efforts. Indeed, there are a few collection practices where the FISC probably imposed a higher standard than TIII courts, and probably many more where FISC review reined in collection that didn’t have such review.

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