Wyden/Udall: If Intelligence Community Is Dumb Rather than Malicious, Why Should We Trust Them?

Ron Wyden and Mark Udall just released a second statement on last week’s Section 215 dragnet document dump, taking the intelligence community’s excuse — that no one really knew what these programs were doing — at face value.

If the IC is dumb rather than malicious, they ask, why should we take their word on the value of the programs?

The intelligence community’s defense was that these violations were occurring because no one had a full grasp of how the bulk collection program actually worked.

If the assertion that ineptitude and not malice was the cause of these ongoing violations is taken at face value, it is perfectly reasonable for Congress and the American people to question whether a program that no one fully understood was an effective defense of American security at all. The fact that this program was allowed to operate this way raises serious concerns about the potential for blind spots in the NSA’s surveillance programs. It also supports our position that bulk collection ought to be ended.

The government’s misrepresentations inevitably led to the Foreign Intelligence Surveillance Court being consistently misinformed as it made binding rulings on the meaning of U.S. surveillance law. This underscores our concern that intelligence agencies’ assessments and descriptions about particular collection programs — even significant ones — are not always accurate. It is up to Congress, the courts and the public to ask the tough questions and require intelligence officials to back their assertions up with actual evidence. It is not enough to simply defer to these officials’ conclusions without challenging them. [my emphasis]

Though I get the feeling that Wyden and Udall aren’t buying this “dumb not malicious” line.

An Illegal Program Sanctioned with a Rubber Stamp Is Still That Same Illegal Program

Consider this anecdote from Barton Gellman’s story on the many violations of the NSA’s spying programs.

In one instance, the NSA decided that it need not report the unintended surveillance of Americans. A notable example in 2008 was the interception of a “large number” of calls placed from Washington when a programming error confused the U.S. area code 202 for 20, the international dialing code for Egypt, according to a “quality assurance” review that was not distributed to the NSA’s oversight staff.


In the case of the collection effort that confused calls placed from Washington with those placed from Egypt, it is unclear what the NSA meant by a “large number” of intercepted calls. A spokesman declined to discuss the matter.

The NSA has different reporting requirements for each branch of government and each of its legal authorities. The “202” collection was deemed irrelevant to any of them. “The issue pertained to Metadata ONLY so there were no defects to report,” according to the author of the secret memo from March 2013.

Viewed against the background of the documents on the 2009 Section 215 dragnet problems, the anecdote tells us several things:

  • The phone metadata for Egypt and for DC were both accessible from the same user interface until at least 2008
  • US phone metadata was accessible by area code, not just by single phone identifier
  • Because it internally reported this incident, NSA was well aware of that fact
  • Among all the violations reported to Reggie Walton in 2009 (see my rough summary), it did not include this one (indeed, it appears NSA has never reported it to FISC, which may be why in response to this story Walton went on the record to complain that the FISA Court relies on the NSA’s self-disclosure)

That is, this violation undermines many of the stories the NSA told Walton during the 10 month period when they were purportedly coming clean on major problems with the dragnet, starting with the claim that these problems were a surprise not identified until after he wrote the first substantive opinion — 31 months after FISC first gave it sanction — authorizing the program. (I consider the 2006 opinion authorizing the dragnet a shockingly thin document, and Walton seems to have felt the need to lay out a more substantive case for the legality of it in 2008.)

But something else undermined that story: the pretense that the entire program arose from virgin birth in 2006.

Indeed, we know (though the government hasn’t actually admitted it, even though Ron Wyden has asked them to) that the Section 215 dragnet is actually just a part of the Dick Cheney’s illegal surveillance program placed under court sanction. Here’s how the NSA’s own draft IG Report (which was completed right smack dab in the middle of the discussions between Walton and the NSA about these violations) describes some aspects of the program, including the alert program that was part of the initial “discovery” of the violations.

(TS//SII/OC/NF) Analysis. NSA used a variety of tools to conduct metadata analysis and view the results. NSA’s primary tool for conducting metadata analysis, for PSP and traditional SIGINT collection, was MAINWAY. MAINWAY was used for storage, contact chaining, and for analyzing large volumes of global communications metadata. At the beginning of the PSP, only the “SIGINT Navigator” tool was available to view MAINWAY output. Over time, new tools and new processes, such as automated chaining alerting, were created to improve analysts’ efficiency. To obtain the most complete results, analysts used data collected under PSP and non-PSP authorities. Typically, they analyzed networks with two degrees of separation (two hops) from the target. Analysts determined if resulting information was reportable.

(TS//SII/OC/NF) In addition, an automated chaining alert process was created to alert analysts of new potentially reportable selectors. Previously approved selectors were compared to incoming MAINWAY data authorized by the PSP, E.O. 12333, or the FISC. Alerts of direct contacts with approved selectors were reported to NSA analysts for further analysis and potential reporting to FBI and CIA.

And here’s where the IG Report admits this all became the Section 215 dragnet.

(TS//SV/NF) According to NSA General Counsel Vito Potenza, the decision to transition telephony metadata to the Business Records Order was driven by a private sector company. After the New York Times article was published in December 2005, Mr. Potenza stated that one of the PSP providers expressed concern about providing telephony metadata to NSA under Presidential Authority without being compelled. Although OLC’s May 2004 opinion states that NSA collection of telephony metadata as business records under the Authorization was legally supportable, the provider preferred to be compelled to do so by a court order. 11

(TS//SII/NF) As with the PR/TT Order, DoJ and NSA collaboratively designed the application, prepared declarations, and responded to questions from court advisers. Their previous experience in drafting the PR/TT Order made this process more efficient.

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The Irony of Booz Vice Chair Mike McConnell’s Timing

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I’m in the process of going really deep in the weeds on this Section 215 stuff, just adjusting my earlier timelines.

Several of us have noted the curious timing of the discovery of the problems with Section 215 dragnet. November 2, 2008 was the stated high number of identifiers which the NSA could contact chain, at 27,090 (though when NSA started cleaning this stuff up they only audited back through November 1, 2008).

On December 10, 2008, two analysts (whom I wildarseguess suspect were actually FBI Agents) start doing searches on unapproved identifiers, doing 280 over the next month and a half.

On December 11 and 12, 2008, Reggie Walton wrote the first systematic opinion on this program and approved a new Primary Order.

On December 15, 2008, the NSA stopped one of its abusive alert system processes.

On January 9, 2009, NSA told folks at DOJ’s National Security Division about them.

By January 15, 2009, NSA had seemingly purged thousands of identifiers from its alert list, because on that day (five days before the inauguration) it had only 17,835, down from 27,090 two days before Obama was elected.

January 20, 2009: Obama took the oath as President, replacing George Bush.

That, of course, led to change at key positions. One which I find remarkably interesting, however was that of Mike McConnell, who had spent two years as Director of National Intelligence (just long enough to get immunity for those who did all this illegally under Cheney’s program). McConnell left on January 27, 2009, leading to a delay on (reported) DNI involvement in this until his replacement Dennis Blair came in on January 29. Blair was briefed on this on his second day in office, January 30, 2009.

I don’t know — because the documents don’t say (see, especially, Keith Alexander’s chart on page 25 of his declaration that is totally non-responsive about anyone in DNI who would have known about these problems)– how much the revolving Intelligence Contractor Exec McConnell knew about NSA’s extension of the illegal Cheney program, illegally, under the FISC sanctioned Section 215 order.

But remember: as Vice Chair of Booz, Mike McConnell was (sort of) Edward Snowden’s boss until the latter absconded with proof of these gross violations under McConnell’s tenure at DNI.

Among other things, this rough outline suggests this wasn’t so much a “discovery” of violations, it was an attempt to hide what at least some people knew were systematic and gross violations of the Section 215 program, just before Obama came in and replaced some of the top players.

But I do find it ironic that McConnell’s company, Booz, played its small part in making all this clear.

Imagine the Administration Lying to Congress about the Dragnet

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In a piece bemoaning the possibility that the dragnet programs created in secret might be scaled back now that citizens know what they entail, Ben Wittes lets his imagination run wild.

Imagine you were a high-level decision-maker in a clandestine intelligence agency. Imagine that you had played by the rules Congress had laid out for you, worked with oversight mechanisms to fix errors when they happened, and erected strict compliance regimes to minimize mistakes in a mind-bogglingly complex system of signals intelligence collection. Imagine further that when the programs became public, there was a firestorm anyway. Imagine that nearly half of the House of Representatives, pretending it had no idea what you had been doing, voted to end key collection activity. Imagine that in response to the firestorm, the President of the United States—after initially defending the intelligence community—said that what was really needed was more transparency and described the debate as healthy. Imagine that journalists construed every fact they learned in light of the need to keep feeding at the trough of a source who had stolen a huge volume of highly classified materials and taken it to China and Russia. [my emphasis]

Now, Ben sets up a few straw men here: journalists may have gotten some details wrong, but they’re probably doing better on accuracy than the Agencies that have all the information at hand, which continue to tell easily demonstrable lies. He suggests Obama is interested in debate, abundant evidence to the contrary. He excuses the NSA’s compliance problems because of complexity, when they introduced that complexity to make programs do what they legally weren’t supposed to (for example, allowing illegal access via 3 other systems and by 3 other agencies and inventing a pre-archive archive to skirt the rules in the case of the phone dragnet program). He suggests the NSA played by Congress’ rules, when in fact the FISC sets rules, and it says the government has repeatedly violated those rules and “misrepresented” claims about doing so.

But those straw men are nothing compared to the claim that those in the House who voted to defund the phone dragnet were “pretending it had no idea what you had been doing.”

The record shows that the 2011 PATRIOT Act extension was passed with the support of 65 people — enough to make the difference in the vote — who had had no opportunity to learn about the Section 215 dragnet except at hearings that didn’t provide notice of what they would present. Moreover, the record shows that when someone at one of (the only one of?) those hearings asked a question specifically designed to learn about problems with the dragnet, here’s what happened.

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

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

Then FBI Director Robert Mueller and then-General Counsel Valerie Caproni (the Administration waited to release the dragnet materials Monday almost until the second Caproni got confirmed to lifetime tenure as a judge) gave that answer in spite of the fact that Mueller had to submit a declaration to Judge Reggie Walton to explain why the program was important enough to keep in spite of the many abuses. Walton ordered that declaration, in part, because the government’s explanations about their gross violations “strain[] credulity,” according to Walton. And one of the abuses involved FBI getting access to this data directly.

But FBI knows nothing, Colonel Klink.

And even in what notice the government made somewhat available to Congress (but which Mike Rogers did not pass on), it provided just a one paragraph description of the abuses that would take a page to lay out in skeleton bullet form.

In other words, the record shows that many of those who voted against the dragnet in fact had no idea what the government had been doing, both about the dragnet itself, and about the abuses of the dragnet program.

And note, when almost half the House voted to defund the dragnet, they still hadn’t been informed of the full extent of these abuses (because the Administration was withholding the relevant opinions).

Congress is moving to rein in a program that the Executive Branch operated illegally for 5 years, then operated with FISC sanction for 7 years while abusing the terms of that sanction for at least 3 years. In Wittes imagination, that’s a bad thing.

Update: Also note Valerie Caproni got briefed on these abuses January 23, 2009.

Working Thread: Section 215 Dragnet Document Dump, Part II

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This is part of a working thread on yesterday’s Section 215 dragnet. Part I is here. The documents are here.

IG Report

(i) Note that the cover letter was signed by the Acting IG, Brian McAndrew, but the report itself was signed by Joel Brenner.

(3) The IG Report uses a lot of passive voice where it should assign some responsibility for implementing controls.

(4) Note this recommendation is redacted but almost certainly is S 215 or S 332, based on the distribution list.

(4) Note the definition of processing.

(8) Note the finding the info assurance was adequate turned out to be wrong, as people were just wandering into this database.

(9) The audits OIG was supposed to conduct didn’t happen, per the description on page 31 of the Alexander declaration. This is sort of a big deal. Was OIG excluded (as they had been under the illegal program)? Or did they just not do their job?

(13) Note the review started immediately after the program started and by its own admission “did not conduct a full range of compliance and/or substantive testing.”

(18) Curious whether NSA introduced the word “archive” in the table.

(19) The language on metadata retention is another tell: they describe not “keeping” the data but “keeping it online” while avoiding mention of archive.

Compliance Incidents, Feb 26, 2009 & Supplemental Alexader

(4) Three different analysts querying databases. Again the timing on this is interesting, from day after election to day after transferring power. Note there’s still no discussion of where all those other identifiers went.

(SAlexander 2) Note the reference to telecoms remains unredacted.

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Keith Alexander’s Ignorance By Design

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One of the most publicized lines from yesterday’s FOIA disclosures comes from Keith Alexander’s declaration to Reggie Walton on how the Section 215 dragnet went so horribly awry. He claims — without explaining the basis for his knowledge — that no one knew how all this worked.

Furthermore, from a technical standpoint, there was no single person who had a complete technical understanding of the BR FISA system architecture. (Alexander 19)

The comment comes amidst a section that discusses not system architecture, but simple legal compliance, in which Alexander describes how,

  • NSA’s lawyers consistently gave incorrect data to FISC over 3 years time
  • NSA’s lawyers exempted a whole class of data — that not yet “archived” — from the plain meaning of the law

At the beginning of this particular section, he says his knowledge comes from,

Reviews of NSA records and discussions with relevant NSA personnel (Alexander 16)

But at the beginning of Alexander’s declaration, he states his statements,

are based on my personal knowledge, information provided to me by my subordinates in the course of my official duties, advice of counsel, and conclusions reached in accordance therewith. (Alexander 2)

That is, for the declaration overall, Alexander says he only spoke to “counsel” and other NSA people in “the course of [his] official duties,” and there only with subordinates. Admittedly, all NSA personnel should be his subordinates, but it is curious he doesn’t describe the NSA personnel he spoke with as such.

That’s important, because throughout this section, Alexander’s statements are caveated with “it appears” introductions.

… the inaccurate description of the BR FISA alert list initially appears to have occurred to a mistaken belief …(Alexander 17)

… Therefore, it appears there was never a complete understanding among the key personnel who reviewed the report … (Alexander 18)

… Nevertheless, it appears clear in hindsight from discussions with the relevant personnel as well as reviews of NSA’s internal records that the focus was almost always on whether analysts were contact chaining the Agency’s repository of BR FISA data in compliance … (Alexander 18)

Now perhaps Alexander spoke to the people who actually knew what went on. It turns out they would, in significant part, be lawyers. Counsel.

Though that’s rarely reflected in his descriptions. In perhaps just one sentence, he makes an assertion about what the SIGINT Directorate and the OGC [counsel] “realized,” though note he doesn’t specify a single human subject for that realization.

Or perhaps he spoke only to “relevant personnel” who provided him information in the course of his normal duties.

But one thing is clear: he either doesn’t claim actual knowledge about the subject he is addressing beyond what actually got documented, the most important topic in his declaration. Or he does, but for some reason he was, in this matter alone, uncomfortable asserting that as a clear fact.

Yet somehow, having spoken to remarkably few people, he somehow feels confident claiming no one knew about the entire architecture (an irrelevant issue to the legal and management problem at hand)?

I would suggest Alexander’s lawyers [counsel!] — the very people who provided false information to the court and false advice to NSA personnel — might have a good deal more certainty about what happened than Alexander. But somehow they managed to avoid making sworn declarations to the court about those subjects.

Update: The list of people who knew about this stuff on Alexander 25-26 is of particular interest. Two OGC lawyers and 3 program managers had access to both what was allowed to analysts and what was reported to the court (though Alexander helpfully notes, “[t]his does not mean that an individual who was on distribution for the reports was actually familiar with the contents of the reports.”

Alexander also says he had conversations with the people on distribution of the original email drafting language for the court.

Alexander goes on to note there were a lot of people that knew of how the alerts worked but, “[b]ased on information available to me, I conclude it is unlikely that this category of personnel knew how the Agency had described the alert process to the Court.”


How Many People Are Included in Contact Chaining with 27,090 Numbers?

I’ve decided that if I could have a nickel for every time I’ve said “I told the apologists so” as I’ve read these documents, I’d be Warren Buffet. But I don’t get a nickel for predicting the NSA is as bad as it is. So I could use your help to keep doing what I do. 

One of the most stunning revelations from ODNI’s conference call with Officials Who Can’t Be Quoted Because They Might Be Lying is that only 11% of the numbers the NSA was comparing daily business record collections against should have been included.

Those numbers are presented in the government’s first response to Reggie Walton’s order for more information.

In short, the system was designed to compare both SIGINT and BR metadata against the identifiers on the alert list but only to permit alerts generated from RAS-approved identifiers to be used to conduct contact chaining [redacted] of the BR metadata. As a result, the majority of telephone identifiers compared against the incoming BR metadata in the rebuilt alert list were not RAS-approved. See id. at 4, 7-8. For example, as of January 15, 2009, the date of NSD’s first notice to the Court regarding this issue, only 1,935 of the 17,835 identifiers on the alert list were RAS-approved. (10-11)

This means that every day, the NSA was comparing names they thought maybe might could be terrorist numbers, as well as numbers they actually had reason to believe actually were, with all the phone records in the US to see if Americans were talking to these people. [Update: And to clarify, the 89% on the list who were “compared” to the daily business record take weren’t contact chained — NSA just checked to see if they should look further.]

As I said, per the Officials Who Can’t Be Quoted Because They Might Be Lying who gave today’s conference call, that’s as bad as it gets.

But it appears to get worse.

You see, as NSA was confessing all this to DOJ’s National Security Division, they were also cleaning up their lists (the January 15 numbers come from a week after NSD first got involved). And it appears that before they started their confessional process (in the days before Obama took over from George Bush), they had far more people on their list. And they were contact-chaining those numbers.

At the meeting on January 9, 2009, NSA and NSA also identified that the reports filed with the Court have incorrectly stated the number of identifiers on the alert list. Each report included the number of telephone identifiers purported on the alert list. See, e.g., NSA 120-Day Report to the FISC (Dec. 11, 2008), docket number BR 08-08 (Ex. B to the Government’s application in docket number BR 08-13), at 11 (“As of November 2, 2008, the last day of the reporting period herein, NSA had included a total of 27,090 telephone identifiers on the alert list . . . .”). In fact, NSA reports that these numbers did not reflect the total number of identifiers on the alert list; they actually represented the total number of identifiers included on the “station table” (NSA’s historical record of RAS determinations) as currently RAS-approved) (i.e., approved for contact chaining [redacted]

This appears to mean the NSA could (they don’t say whether they did) conduct chaining two or three degrees deep on all these potential maybe might could be terrorists.

If those 27,090 talked to 10 people in the US, and those 270,090 people in the US regularly talked to 40 people in the US, and those people talked to 40, then it would potentially incorporate 433 millio–oh wait! That’s more people than live in the US!

That is, there’s a potential that, by contact chaining that many people, this actually represented a comprehensive dragnet of all the networked relationships in the US until the days before Obama became President.

And they lied to Reggie Walton about it as they got their first real legal review of the program.

But honest, all this was really just unintentional.

Update: Later in the filing, the government admits they were doing more than 3 hops until early 2009.

Second, NSA is implementing software changes to its system that will limit to three the number of “hops” permitted from a RAS-approved seed identifier.

This means those 27,090 identifiers that were in use on November 1, 2008 (at which point it became clear Obama would win the election) could have been contact chained far deeper into American contacts. This makes it very likely that that “contact chaining” actually did include everyone in the US.

Shorter NSA: That We Discovered We Had No Fucking Clue How We Use Our Spying Is Proof Oversight Works

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James Clapper’s office just released a bunch of documents pertaining to the Section 215 dragnet. It reveals a whole slew of violations which it attributes to this:

The compliance incidents discussed in these documents stemmed in large part from the complexity of the technology employed in connection with the bulk telephony metadata collection program, interaction of that technology with other NSA systems, and a lack of a shared understanding among various NSA components about how certain aspects of the complex architecture supporting the program functioned.  These gaps in understanding led, in turn, to unintentional misrepresentations in the way the collection was described to the FISC.  As discussed in the documents, there was no single cause of the incidents and, in fact, a number of successful oversight, management, and technology processes in place operated as designed and uncovered these matters.

More candidly it admits that no one at NSA understood how everything works. It appears they’re still not sure, as one Senior Official Who Refused to Back His Words admitted,

“I guess they have 300 people doing compliance at NSA.”

“I guess” is how they make us comfortable about their new compliance program.

Ultimately, this resulted them in running daily Section 215 collection on a bunch of numbers that–by their own admission–they did not have reasonable articulable suspicion had some time to terrorism. When they got caught, that number consisted of roughly 10 out of 11 of the numbers they were searching on.

The rest of this post will be a working thread.

Update: Here is the Wyden/Udall statement. It strongly suggests that the other thing the government lied about — as referenced in John Bates’ October 3, 2011 opinion — was the Internet dragnet.

With the documents declassified and released this afternoon by the Director of National Intelligence, the public now has new information about the size and shape of that iceberg. Additional information about these violations was contained in other recently-released court opinions, though some significant information – particularly about violations pertaining to the bulk email records collection program – remains classified.


In addition to providing further information about how bulk phone records collection came under great FISA Court scrutiny due to serious and on-going compliance violations, these documents show that the court actually limited the NSA’s access to its bulk phone records database for much of 2009. The court required the NSA to seek case-by-case approval to access bulk phone records until these compliance violations were addressed. In our judgment, the fact that the FISA Court was able to handle these requests on an individual basis is further evidence that intelligence agencies can get all of the information they genuinely need without engaging in the dragnet surveillance of huge numbers of law-abiding Americans.

The original order required NSA to keep the dragnet on “a secure private network that NSA exclusively will operate.” Yet on the conference call, the Secret-Officials-Whose-Word-Can’t-Be-Trusted admitted that some of the violations involved people wandering into the data without knowing where they were. And an earlier violation made it clear in 2012 they found a chunk of this data that tech people had put on their own server.

The order also requires an interface with security limitations. Again, we know tech personnel access the data outside of this structure.

That order also only approves 7 people to approve queries. That number is now 22.

(9) We need to see a copy of the first couple of reports NSA gave to FISC with its reapplications to see how things got so out of control.

(10) This approval was signed by Malcom Howard. Among other things he was in the White House during the Nixon-Ford transition period.

The original authorization for 215 was a hash. Reggie Walton got involved in 2008 and cleaned it up (though not convincingly) in this supplemental order. He relies, significantly, on the “any tangible thing” language passed in 2006. (2-3)

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More Contractor Problems — And FISC Disclosure Problems?

In the updated minimization procedures approved in 2011, the NSA added language making clear that the procedures applied to everyone doing analysis for NSA.

For the purposes of these procedures, the terms “National Security Agency” and “NSA personnel” refer to any employees of the National Security Agency/Central Security Service (“NSA/CSS” or “NSA”) and any other personnel engaged in Signals Intelligence (SIGINT) operations authorized pursuant to section 702 of the Act if such operations are executed under the direction, authority, or control of the Director, NSA/Chief, CSS (DIRNSA).

It told the FISA Court it needed this language to make it clear that militarily-deployed NSA personnel also had to abide by them.

The government has added language to Section 1 to make explicit that the procedures apply not only to NSA employees, but also to any other persons engaged in Section 702-related activities that are conducted under the direction, authority or control of the Director of the NSA. NSA Minimization Procedures at 1. According to the government, this new language is intended to clarify that Central Security Service personnel conducting signals intelligence operations authorized by Section 702 are bound by the procedures, even when they are deployed with a military unit and subject to the military chain of command.

But to me both these passages rang alarms about contractors. Did they have to include this language, I wondered, because contractors in the past had claimed not to be bound by the same rules NSA’s direct employees were?

Lo and behold the Bloomberg piece reporting that NSA’s IG undercounts deliberate violations by roughly 299 a year includes this:

The actions, said a second U.S. official briefed on them, were the work of overzealous NSA employees or contractors eager to prevent any encore to the Sept. 11, 2001, terrorist attacks.

It sure seems that at least some of the worst violations — the ones even NSA’s IG will call intentional — were committed by contractors. Which suggests I may be right about the inclusion of that language to make it clear it applies to contractors.

If that’s the case, then why did NSA tell the FISA Court this new language was about militarily-deployed NSA employees, and not about contractors?


Have There Been Significant Phone Dragnet Violations Since 2009?

As I laid out in more obscure fashion here, there are slight — but interesting — differences between how the 2009 Congressional notice, the 2011 Congressional notice, and the 2013 White Paper on the PATRIOT Act dragnet(s) describe the compliance problems. I’ve laid out all three below.

I’ll have more to say about the differences in a follow-up. But for the moment, note that the White Paper released 11 days ago doesn’t date the compliance issues.

Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight.

The 2009 one doesn’t either — though it does reveal that the government was only just briefing the FISC that September on its compliance fixes when Silvestre Reyes first asked for this notice (they stalled almost 3 months in responding to him), at least suggesting the recentness of the discovery. The 2011 notice limits the compliance issues to 2009, though.

In 2009, a number of technical compliance problems and human implementation errors in these two bulk collection programs were discovered

Note, too, the different descriptions of the FISC response. Both the 2009 and 2011 assure Congress that the FISC, along with the Executive, found no evidence of bad-faith or intentional violations.

However, neither the Department, NSA nor the FISA Court has found any intentional or bad-faith violations.

The 2011 also reveals that the FISC imposed restrictions on the program — restrictions that surely were in place in March 2009, when Dianne Feinstein and Kit Bond tried to start the PATRIOT Reauthorization program  and may still have been in place in September 2009 (there were notices to Congress about the program on February 25, April 10, May 7, June 29, September 3, and September 10, 2009, and briefing materials sent to FISC on the program on September 1, September 18, and sometime in October).

Nice of DOJ to tell Congress that two years after the fact.

The White Paper, however, describes the FISC response — at times — quite differently. It makes no claim about whether FISC found intentional violations. And it reveals the FISC has, on occasion, “been critical” of both the compliance problems and the government’s court filings.

The FISC has on occasion been critical of the Executive Branch’s compliance problems as well as the Government’s court filings. However, the NSA and DOJ have corrected the problems identified to the Court, and the Court has continued to authorize the program with appropriate remedial measures.

Not only is there no claim that the FISC found no bad-faith problems, but it now reveals that “on occasion” the FISC has been critical — critical about both the problems and the the government’s claims about the problems.

There are several possible explanations for the difference in language.

Perhaps, for example, the government revealed FISC’s critical stance because it knew the FISC would read this White Paper, along with the rest of us, whereas the Congressional notifications would originally have never been seen by the FISC. Thus, the Administration would have reason to be far more frank about the FISC’s response than it did in the past.

But in conjunction with the silence about the date of these compliance problems, I do wonder whether FISC has grown more critical since 2011. After all, if there have been violations since this apparently extended effort in 2009 to fix compliance issues, wouldn’t it make the Court crankier?

One more thing to keep in mind. Read more