Ron Wyden

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BREAKING: OPM and DOD (Claim They) Don’t Think Fingerprint Databases Are All That Useful

In the most negative news dump released behind the cover of Pope Francis’ skirts, Office of Public Management just announced that rather than previous reports that 1.1 million people had had their fingerprints stolen from OPM’s databases, instead 5.6 million have.

Aside from the big numbers involved, there are several interesting aspects of this announcement.

First, it seems OPM had an archive of records on 4.5 million people, including fingerprint data, they hadn’t realized was there at first.

As part of the government’s ongoing work to notify individuals affected by the theft of background investigation records, the Office of Personnel Management and the Department of Defense have been analyzing impacted data to verify its quality and completeness. During that process, OPM and DoD identified archived records containing additional fingerprint data not previously analyzed.

If, as it appears, this means OPM had databases of key counterintelligence lying around it wasn’t aware of (and therefore wasn’t using), it suggests Ron Wyden’s concern that the government is retaining data unnecessarily is absolutely correct.

Rather bizarrely, upon learning that someone found and went through archived databases to obtain more fingerprint data, “federal experts” claim that “as of now, the ability to misuse fingerprint data is limited.”

As EFF just revealed, since February the FBI has been busy adding fingerprint data it gets when it does when it does background checks on job applicants into its Next Generation Identification database.

Being a job seeker isn’t a crime. But the FBI has made a big change in how it deals with fingerprints that might make it seem that way. For the first time, fingerprints and biographical information sent to the FBI for a background check will be stored and searched right along with fingerprints taken for criminal purposes.

The change, which the FBI revealed quietly in a February 2015 Privacy Impact Assessment (PIA), means that if you ever have your fingerprints taken for licensing or for a background check, they will most likely end up living indefinitely in the FBI’s NGI database. They’ll be searched thousands of times a day by law enforcement agencies across the country—even if your prints didn’t match any criminal records when they were first submitted to the system.

This is the first time the FBI has allowed routine criminal searches of its civil fingerprint data. Although employers and certifying agencies have submitted prints to the FBI for decades, the FBI says it rarely retained these non-criminal prints. And even when it did retain prints in the past, they “were not readily accessible or searchable.” Now, not only will these prints—and the biographical data included with them—be available to any law enforcement agent who wants to look for them, they will be searched as a matter of course along with all prints collected for a clearly criminal purpose (like upon arrest or at time of booking).

In its PIA explaining the move, FBI boasts that this will serve as “an ‘ongoing’ background check that permits employers, licensors, and other authorized entities to learn of criminal conduct by a trusted individual.” To suggest that a massive database of fingerprints can provide the FBI real-time updates on certain behaviors, but pretend it wouldn’t serve a similar purpose to the Chinese, defies logic. Heck, why is OPM keeping fingerprint information if it can’t be used? And of course, all that assumes none of the 5.6 million people affected has a fingerprint-authenticating iPhone.

Of course this can be used, otherwise the Chinese wouldn’t have gone out of their way to get it!

But OPM’s claim that the Chinese just went out of their way to get that fingerprint data for no good reason provides the agency with a way to delay notification while FBI, DHS, DOD and “other members of the Intelligence Community” come up with ways to limit the damage of this.

If, in the future, new means are developed to misuse the fingerprint data, the government will provide additional information to individuals whose fingerprints may have been stolen in this breach.

After which OPM spends two paragraphs talking about the identity protection those whose identities have been stolen will get, as if that mitigates a huge counterintelligence problem.

It sure sounds like OPM is stalling on informing the people who’ve been exposed about how badly they’ve been exposed, under the incredible claim that databases of fingerprints aren’t all that useful.

National Counterintelligence Director Evanina about OPM Breach: “Not My Job”

I’ve been tracking Ron Wyden’s efforts to learn whether the National Counterintelligence and Security Center had anticipated how much of a counterintelligence bonanza the Office of Personnel Management’s databases would be. Wyden sent National Counterintelligence Executive William Evanina a set of questions last month.

  1. Did the NCSC identify OPM’s security clearance database as a counterintelligence vulnerability prior to these security incidents?
  2. Did the NCSC provide OPM with any recommendations to secure this information?
  3. At least one official has said that the background investigation information compromised in the second OPM hack included information on individuals as far back as 1985. Has the NCSC evaluated whether the retention requirements for background investigation information should be reduced to mitigate the vulnerability of maintaining personal information for a significant period of time? If not, please explain why existing retention periods are necessary?

Evanina just responded. His answer to the first two questions was basically, “Not my job.”

In response to the first two questions, under the statutory structure established by the Federal Information Security Management Act of 2002 (FISMA), as amended, executive branch oversight of agency information security policies and practices rests with the Office of Management and Budget (OMB) and the Department of Homeland Security (DHS). For agencies with Inspectors General (IG) appointed under the Inspector General Act of 1978 (OPM is one of those agencies), independent annual evaluations of each agency’s adherence to the instructions of OMB and DHS are carried out by the agency’s IG or an independent external auditor chosen by the agency’s IG. These responsibilities are discussed in detail in OMB’s most recent annual report to Congress on FISMA implementation. The statutory authorities of the National Counterintelligence Executive, which is part of the NCSC, do not include either identifying information technology (IT) vulnerabilities to agencies or providing recommendations on how to security their IT systems.

Of course, this doesn’t really answer the question, which is whether Evanina — or the NCSC generally — had identified OPM’s database full of clearance information as a critical CI asset. Steven Aftergood has argued it should have been, according to the Office of Director of National Intelligence’s definition if not bureaucratic limits. Did the multiple IG reports showing OPM was vulnerable, going back to 2009 and continuing until this year, register on NCSC’s radar?

I’m guessing, given Evanina’s silence on that issue, the answer is no.

No, the folks in charge of CI didn’t notice that this database of millions of clearance holders’ records might be a juicy intelligence target. Not his job to notice.

Evanina’s response to the third question — whether the government really had to keep records going back to Reagan’s second term — was no more satisfying.

[T]he timelines for retention of personnel security files were established by the National Archives General Records Schedule 18, Item 22 (September 2014). While it is possible that we may incur certain vulnerabilities with the retention of background investigation information over a significant period of time, its retention has value for personnel security purposes. The ability to assess the “whole person” over a long period of time enables security clearance adjudicators to identify and address any issues (personnel security or counterintelligence-related) that may exist or may arise.

In other words, just one paragraph after having said it’s not his job to worry about the CI implications of keeping 21 million clearance holders’ records in a poorly secured database, the Counterintelligence Executive said the government needed to keep those records (because the government passed a policy deciding they’d keep those just a year ago) for counterintelligence purposes.

In a statement on the response, Wyden, like me, reads it as Evanina insisting this key CI role is not his job. To which Wyden adds, putting more data in the hands of these insecure agencies under CISA would only exacerbate this problem.

The OPM breach had a huge counterintelligence impact and the only response by the nation’s top counterintelligence officials is to say that it wasn’t their job. This is a bureaucratic response to a massive counter-intelligence failure and unworthy of individuals who are being trusted to defend America. While the National Counterintelligence and Security Center shouldn’t need to advise agencies on how to improve their IT security, it must identify vulnerabilities so that the relevant agencies can take the necessary steps to secure their data.

The Senate is now trying to respond to the OPM hack by passing a bill that would lead to more personal information being shared with these agencies. The way to improve cybersecurity is to ensure that network owners take responsibility for plugging security holes, not encourage the sharing of personal information with agencies that can’t protect it adequately.

Somehow, the government kept a database full of some of its most important secrets on an insecure server, and the guy in charge of counterintelligence can only respond that we had to do that to serve counterintelligence purposes.

Admiral Mike Rogers Virtually Confirms OPM Was Not on Counterintelligence Radar

For some time, those following the OPM hack have been asking where the intelligence community’s counterintelligence folks were. Were they aware of what a CI bonanza the database would present for foreign governments?

Lawfare’s Ben Wittes has been asking it for a while. Ron Wyden got more specific in a letter to the head of the National Counterintelligence and Security Center last month.

  1. Did the NCSC identify OPM’s security clearance database as a counterintelligence vulnerability prior to these security incidents?
  2. Did the NCSC provide OPM with any recommendations to secure this information?
  3. At least one official has said that the background investigation information compromised in the second OPM hack included information on individuals as far back as 1985. Has the NCSC evaluated whether the retention requirements for background investigation information should be reduced to mitigate the vulnerability of maintaining personal information for a significant period of time? If not, please explain why existing retention periods are necessary?

And Steven Aftergood, analyzing a 2013 Intelligence Community Directive released recently, noted that the OPM database should have been considered a critical counterintelligence asset.

A critical asset is “Any asset (person, group, relationship, instrument, installation, process, or supply at the disposition of an organization for use in an operational or support role) whose loss or compromise would have a negative impact on the capability of a department or agency to carry out its mission; or may have a negative impact on the ability of another U.S. Government department or agency to conduct its mission; or could result in substantial economic loss; or which may have a negative impact on the national security of the U.S.”

By any reasonable definition, the Office of Personnel Management database of security clearance background investigations for federal employees and contractors that was recently compromised by a foreign adversary would appear to qualify as a “critical asset.” But since OPM is not a member or an element of the Intelligence Community, it appears to fall outside the scope of this directive.

But in a private event at the Wilson Center last night, NSA Director Mike Rogers described NSA being brought in to help OPM — but only after OPM had identified the hack.

After the intrusion, “as we started more broadly to realize the implications of OPM, to be quite honest, we were starting to work with OPM about how could we apply DOD capability, if that is what you require,” Rogers said at an invitation-only Wilson Center event, referring to his role leading CYBERCOM.

NSA, meanwhile, provided “a significant amount of people and expertise to OPM to try to help them identify what had happened, how it happened and how we should structure the network for the future,” Rogers added.

That “as we started more broadly to realize the implications of OPM” is the real tell, though. It sure sounds like the Chinese were better able to understand the value of a database containing the security clearance portfolios on many government personnel then our own counterintelligence people.


The Questions the NCSC Doesn’t Want to Answer

A few days ago the WaPo published a story on the OPM hack, focusing (as some earlier commentary already has) on the possibility China will alter intelligence records as part of a way to infiltrate agents or increase distrust.

It’s notable because it relies on the Director of the National Counterintelligence and Security Center, Bill Evanina. The article first presents his comments about that nightmare scenario — altered records.

“The breach itself is issue A,” said William “Bill” Evanina, director of the federal National Counterintelligence and Security Center. But what the thieves do with the information is another question.

“Certainly we are concerned about the destruction of data versus the theft of data,” he said. “It’s a different type of bad situation.” Destroyed or altered records would make a security clearance hard to keep or get.

And only then relays Evanina’s concerns about the more general counterintelligence concerns raised by the heist, that China will use the data to target people for recruitment. Evanina explains he’s more worried about those without extensive operational security training than those overseas who have that experience.

While dangers from the breach for intelligence community workers posted abroad have “the highest risk equation,” Evanina said “they also have the best training to prevent nefarious activity against them. It’s the individuals who don’t have that solid background and training that we’re most concerned with, initially, to provide them with awareness training of what can happen from a foreign intelligence service to them and what to look out for.”

Using stolen personal information to compromise intelligence community members is always a worry.

“That’s a concern we take seriously,” he said.

Curiously, given his concern about those individuals without a solid CI background, Evanina provides no hint of an answer to the questions posed to him in a Ron Wyden letter last week.

  1. Did the NCSC identify OPM’s security clearance database as a counterintelligence vulnerability prior to these security incidents?
  2. Did the NCSC provide OPM with any recommendations to secure this information?
  3. At least one official has said that the background investigation information compromised in the second OPM hack included information on individuals as far back as 1985. Has the NCSC evaluated whether the retention requirements for background investigation information should be reduced to mitigate the vulnerability of maintaining personal information for a significant period of time? If not, please explain why existing retention periods are necessary?

Evanina has asserted he’s particularly worried about the kind of people who would have clearance but not be in one of the better protected (CIA) databases. But was he particularly worried about those people — and therefore OPM’s databases — before the hack?

John Brennan Admits to Lying about Working with Human Rights Abusers

Back in May, I noted that in addition to an unclassified request that John Brennan correct his lies about CIA hacking the Senate Intelligence Committee torture investigators, Ron Wyden, Martin Heinrich, and Mazie Hirono also asked Brennan to correct a lie he told in March.

Additionally, we are attaching a separate classified letter regarding inaccurate public statements that you made on another topic in March 2015. We ask that you correct the public record regarding these statements immediately.

I suggested that Brennan probably lied in response to a request about working with human rights violators at a public speech at the Council on Foreign Relations.

QUESTION: I’m going to try to stand up. Sarah Leah Whitson, Human Rights Watch. Two days ago, ABC News ran some video and images of psychopathic murderers, thugs in the Iraqi security forces, carrying out beheadings, executions of children, executions of civilians. Human Rights Watch has documented Iraqi militias carrying out ISIS-like atrocities, executions of hundreds of captives and so forth.

And some of the allies in the anti-ISIS coalition are themselves carrying out ISIS-like atrocities, like beheadings in Saudi Arabia, violent attacks on journalists in Saudi Arabia—how do you think Iraqi Sunni civilians should distinguish between the good guys and the bad guys in this circumstance?

BRENNAN: It’s tough sorting out good guys and bad guys in a lot of these areas, it is. And human rights abuses, whether they take place on the part of ISIL or of militias or individuals who are working as part of formal security services, needs to be exposed, needs to be stopped.

And in an area like Iraq and Syria, there has been some horrific, horrific human rights abuses. And this is something that I think we need to be able to address. And when we see it, we do bring it to the attention of authorities. And we will not work with entities that are engaged in such activities.

(I even noted in real time he was refusing to respond to the part of the question about the Saudis.)

Brennan has now responded (Ali Watkins first reported on the letter on Friday). As part of his response, he admits that, contrary to his claim at CFR that “we will not work with entities that are engaged” in human rights abuses, in fact the CIA does — “because of critical intelligence those services provide.”

I understand your concerns about my brief, extemporaneous remarks. While we neither condone nor participate in activities that violate human rights standards, we do maintain corporative liaison relationships with a variety of intelligence and security services around the world, some of whose constituent entities have engaged in human rights abuses. We strive to identify and, where possible, avoid working with individuals whom we believe to be responsible for such abuses. In some cases, we have decided to continue those relationships, despite unacceptable behavior, because of the critical intelligence those services provide, including information that allows us to disrupt terrorist plotting against the United States.

Mind you, his letter implies that his response pertains only to “Iraqi security forces,” and not — as was part of the original question, but not one Brennan even acknowledged in his response — our allies the head-chopping Saudis.

I would suggest, however, that the Saudis are far better described as a service that provides us critical intelligence, “including information that allows us to disrupt terrorist plotting against the US.” I’d frankly be shocked if Iraqi security forces even have that capability, not to mention that the terrorists in Iraq are pretty focused on setting up their caliphate in Iraq right now, not attacking the US.

So kudos to John Brennan for owning up to the general lie, that “we will not work with entities that are engaged in” human rights abuses, even if in owning up to it, the old Riyadh Station Chief is still protecting his buddies the Sauds.

Baby steps, I guess.

Feinstein Wants to Introduce Reporting Mandate Jim Comey Says We Don’t Need

I’ll have a piece in Salon shortly about the two hearings on whether FBI should be able to mandate back doors (they call them front doors because that fools some Senators about the security problems with that) in software.

One thing not in there, however, has to do with a bill the Senate Intelligence Committee is considering that would require Facebook and Twitter and other social media to report terrorist content to authorities. ABC News, quoting Richard Clarke (who hasn’t had an official role in government for some years but is on ABC’s payroll) reported that the social media companies were not now reporting terrorist content.

In the middle of the SSCI hearing on this topic, Dianne Feinstein asked Jim Comey whether social media companies were reporting such content. Comey said they are (he did say they’ve gotten far better of late). Feinstein asked whether there ought to be a law anyway, to mandate behavior the companies are already doing. Comey suggested it wasn’t necessary. Feinstein said maybe they should mandate it anyway, like they do for child porn.

All of which made it clear that such a law is unnecessary, even before you get into the severe problems with the law (such as defining who is a terrorist and what counts as terrorist content).

SSCI will probably pass it anyway, because that’s how they respond to threats of late: by passing legislation that won’t address it.

Note, Feinstein also got visibly and audibly and persistently pissed at Ron Wyden for accurately describing what Deputy Attorney General Sally Yates had said she wanted in an earlier hearing: for providers to have keys that the FBI could use. Feinstein seems to believe good PR will eliminate all the technical problems with a back door plan, perhaps because then she won’t be held responsible for making us less secure as a result.

Update: The measures is here, in the Intelligence Authorization.

Update: Title changed for accuracy.

The Timing of the Contemplated Upstream Cyber-Grab

There’s an aspect missing thus far from the discussion of NSA’s possible bid for a cyber certification under Section 702 for primary use in the collection of attack signatures that could not be attributed to a foreign government.

The timing.

The discussion of creating a new Section 702 certificate came in the aftermath of the 6-month back and forth between DOJ and the FISA Court over NSA having collected US person data as part of its upstream collection (for more detail than appears in the timeline below, see this post). During that process, John Bates ruled parts of the program — what he deemed the intentional collection of US person data within the US — to be unconstitutional. That part of his opinion is worth citing at length, because of the way Bates argues that the inability to detach entirely domestic communications that are part of a transaction does not mean that those domestic communications were “incidentally” collected. Rather, they were “intentionally” collected.

Specifically, the government argues that NSA is not “intentionally” acquiring wholly domestic communications because the government does not intend to acquire transactions containing communications that are wholly domestic and has implemented technical means to prevent the acquisition of such transactions. See June 28 Submission at 12. This argument fails for several reasons.

NSA targets a person under Section 702 certifications by acquiring communications to, from, or about a selector used by that person. Therefore, to the extent NSA’s upstream collection devices acquire an Internet transaction containing a single, discrete communication that is to, from, or about a tasked selector, it can hardly be said that NSA’s acquisition is “unintentional.” In fact, the government has argued, that the Court has accepted, that the government intentionally acquires communications to and from a target, even when NSA reasonably — albeit mistakenly — believes that the target is located outside the United States. See Docket No. [redacted]


The fact that NSA’s technical measures cannot prevent NSA from acquiring transactions containing wholly domestic communications under certain circumstances does not render NSA’s acquisition of those transactions “unintentional.”


[T]here is nothing in the record to suggest that NSA’s technical means are malfunctioning or otherwise failing to operate as designed. Indeed, the government readily concedes that NSA will acquire a wholly domestic “about” communication if the transaction containing the communication is routed through an international Internet link being monitored by NSA or is routed through a foreign server.


By expanding its Section 702 acquisitions to include the acquisition of Internet transactions through its upstream collection, NSA has, as a practical matter, circumvented the spirit of Section 1881a(b)(4) and (d)(1) with regard to that collection. (44-45, 48)

There are a number of ways to imagine that victim-related data and communications obtained with an attack signature might be considered “intentional” rather than “incidental,” especially given the Snowden document acknowledging that so much victim data gets collected it should be segregated from regular collection. Add to that the far greater likelihood that the NSA will unknowingly target domestic hackers — because so much of hacking involves obscuring attribution — and the likelihood upstream collection targeting hackers would “intentionally” collect domestic data is quite high.

Plus, there’s nothing in the 2011 documents released indicating the FISC knew upstream collection included cyber signatures — and related victim data — in spite of the fact that “current Certifications already allow for the tasking of these cyber signatures.” No unredacted section discussed the collection of US person data tied to the pursuit of cyberattackers that appears to have been ongoing by that point.

Similarly, the white paper officially informing Congress about 702 didn’t mention cyber signatures either. There’s nothing public to suggest it did so after the Senate rejected a Cybersecurity bill in August, 2012, either. That bill would have authorized less involvement of NSA in cybersecurity than appears to have already been going on.

With all that in mind, consider the discussions reflected in the documents released last week. The entire discussion to use FBI’s stated needs to apply as backup to apply for a cyber certificate came at the same time as NSA is trying to decide what to do with the data it illegally collected. Before getting that certificate, DOJ approved the collection of cyber signatures under other certificates. It seems likely that this collection would violate the spirit of the ruling from just the prior year.

And NSA’s assistance to FBI may have violated the prior year’s orders in another way. SSO contemplated delivering all this data directly to FBI.

Screen Shot 2015-06-11 at 9.42.56 AM

Yet one of the restrictions imposed on upstream collection — voluntarily offered up by DOJ — was that no raw data from NSA’s upstream collection go to FBI (or CIA). If there was uncertainty where FBI’s targeting ended and NSA’s began, this would create a violation of prior orders.

Meanwhile, the reauthorization process had already started, and as part of that (though curiously timed to coincide with the release of DOJ’s white paper on 702 collection) Ron Wyden and Mark Udall were trying to force NSA to figure out how much US person data they were collecting. Not only did the various Inspectors General refuse to count that data (which would have, under the logic of Bates’ opinions finding that illegally collected data was only illegal if the government knew it was US person data, made the data illegal), but the Senate Intelligence Committee refused to consider reconstituting their Technical Advisory Committee which might be better able to assess whether NSA claims were correct.

Sometime in that period, just as Wyden was trying to call attention to the fact that NSA was collecting US person data via its upstream collection, NSA alerted the Intelligence Committees to further “overcollection” under upstream collection.

2012 Upstream Notice

As I suggested here, the length of the redaction and mention of “other authorities” may reflect the involvement of another agency like FBI. One possibility, given the description of FBI collecting on cyber signatures using both PRTT and (presumably) traditional FISA in the discussions of SSO helping the FBI conduct this surveillance (note, I find it interesting though not conclusive that there is no mention of Section 215 to collect cybersecurity data), is that the initial efforts to go after these signatures in some way resulted in overcollection. If FISC interpreted victim-related data to be overcollection — as would be unsurprising under Bates’ 2011 upstream opinion — then it would explain the notice to Congress.

One more point. In this post, I noted that USA F-ReDux authorized FISC to let the government use data it had illegally collected but which FISC had authorized by imposing additional minimization procedures. It’s just a wildarseguess, but I find it plausible that this 2012 overcollection involved cyber signatures (because we know NSA was collecting it and there is reason to believe it violated Bates’ 2011 opinion), and that any victim data now gets treated under minimization procedures and therefore that any illegal data from 2012 may now, as of last week, be used.

All of which is to say that the revelation of NSA and FBI’s use of upstream collection to target hackers involves far more legal issues than commentary on the issue has made out. And these legal issues may well have been more appropriate for the government to reveal before passage of USA F-ReDux. Continue reading

On Carrots, Sticks, and Rand Paul

Now that USA F-ReDux has become USA FreeDone, I wanted to look at Steve Vladeck’s two bizarre posts attacking Rand Paul’s opposition to USA F-ReDux as a way of doing a post-mortem on the process.

I say bizarre because Vladeck complains that Paul “seize[d] the national spotlight in order to focus everyone’s attention on a hyper-specific question” — that of the Section 215 dragnet — when Vladeck has, at this late date, joined those of us who have long been pushing a focus on broader issues, specifically EO 12333 and Section 702. To support his claim that Paul is singularly focused on Section 215, Vladeck links to a second-hand report of a sentence in Paul’s campaign announcement, rather than to the announcement itself which (while more muddled than in other statements where Paul has named EO 12333 directly) invokes surveillance authorized by Executive Order, not the PATRIOT Act.

The president created this vast dragnet by executive order. And as president on day one, I will immediately end this unconstitutional surveillance.

Contrary to Vladeck’s miscitation, in this and other comments, Paul seized the national spotlight, in significant part, to talk about the broader issues, specifically EO 12333 and Section 702, that those pushing USA F-ReDux had set aside for future fights. Indeed, big parts of Paul’s filibuster speech — including his 10 and Ron Wyden’s 2 references to EO 12333 and his 18 and Wyden’s 3 references to 702 — sounds a lot like Vladeck’s series of posts worrying that this will be the only shot at reform and therefore regretting that we didn’t talk about the bigger issues as part of it.

Another deficiency of the USA FREEDOM Act is that it does not address bulk collection under Executive Order 12333. The bill also fails to address bulk collection under section 702 of the FISA Amendments Act.

One could say: What are you complaining about? You are getting some improvement. You still have problems, but you are getting some improvement.

I guess my point is that we are having this debate, and we don’t have it very often. We are having the debate every 3 years, and some people have tried to make this permanent, where we would never have any debate. Even though we are only having it every3 years, it is still uncertain whether I will be granted any amendments to this bill.

So, yes, I would like to address everything while we can. I think we ought to address section 702. I think we ought to–for goodness’ sake, why won’t we have some hearings on Executive Order 12333? I think they may be having them in secret, but I go back to what Senator Wyden said earlier. I think the principles of the law could be discussed in public. We don’t have to reveal how we do stuff. Do we think anybody in the world thinks we are not looking at their stuff? Why don’t we
explore the legality and the law of how we are doing it as opposed to leaving it unsaid and unknown in secret?

In other words, unlike the drone filibuster Vladeck points to as proof of “libertarian hijacking” — where Paul definitely defined his terms narrowly (but in a later iteration did succeed in getting more response from Jim Comey than Ron Wyden making demands) — Paul was arguing for precisely what Vladeck said we should be arguing about. He just has cooties, I guess is the substance of Vladeck’s argument, so Vladeck doesn’t want him as an ally.

Equally bizarre is Vladeck’s claim that, “it was the very same Senator Paul who all-but-singlehandedly torpedoed the Leahy bill back in November, helping to force the entirely unnecessary political and legal brinkmanship of the past week.” That’s bizarre because, as a matter of fact, Paul did not “singlehandedly” torpedo the bill; Bill Nelson played an equal role (and that’s even assuming the bill had enough votes to pass, which given that I know of 1 pro-cloture vote who was a no vote on passage and a significant number who weren’t committed to vote for it without improving amendment, was never a foregone conclusion). It’s easy to blame Paul because it absolves whoever it was that whipped a bill but didn’t even count all the Democratic votes on it, but Paul was in no way singlehandedly responsible.

But the view all the more bizarre, coming from Vladeck, because if Paul singlehandedly torpedoed the bill (he didn’t) he also singlehandedly made the 2nd Circuit ruling for ACLU possible (he didn’t, but that is Vladeck’s logic). And unlike most USA F-ReDux champions, Vladeck has been very attentive– if, at times, arguably mistaken in his understanding of it — to the interaction of USA F-ReDux legislation and the courts. While USA F-ReDux is — important additional Congressional reporting requirements on PRTT and bulky 215 collection notwithstanding — definitely a worse bill than its predecessor, that’s not the measure. So long as the 2nd Circuit decision ruling against “relevant to” and finding a Fourth Amendment interest at the moment of collection rather than review stands (the government still has a few weeks to challenge it), the measure is USA F-ReDux plusthe 2nd Circuit decision as compared to USAF without the additional leverage of an appellate court ruling. There are very important things the 2nd Circuit decision may add to USA F-ReDux. Every commenter is entitled to weigh that measure themselves, but if you’re going to hold Paul responsible for torpedoing the legislation last fall you also have to credit him with buying time so the 2nd Circuit could weigh in.

Which brings me to leverage.

I was not a fan of any version of USAF because all left every key provision save the CDR function (and even some of that was left dangerously open to interpretation until HJC wrote its final bill report) subject to the whim of the Executive and/or the FISC, and the bill itself jettisoned necessary leverage over the Executive (Vladeck has written about the gutting of the FISC advocate, and a parallel gutting has happened on transparency provisions from the start). That is, rather than exercise some kind of authority over the Executive, Congress basically wrote down what the Executive wanted and passed it in a way that the Executive still had a lot of leeway to decide what it wanted to do.

I get why that happened and I don’t mean to diminish the work of those who pushed for more: the votes and leadership buy-in simply isn’t there yet to actually start limiting what Article II will do in secret.

But that means none of the other things Vladeck wants will be possible until we get more leverage. And while the outcome of the bill may be the same and/or worse, what is different about the passage of USA F-ReDux is that leadership in both house of Congress barely kept it together.

And Rand Paul, whether he has cooties or not, was key to that process.

That’s true, in large part, because Mitch McConnell was aiming to set up an urgent crisis as a way to scare people into making the bill worse. He succeeded in doing so by delaying consideration of the bill until the last minute, but when Paul — and Ron Wyden and Martin Heinrich — prevented him from getting a short-term extension to do so without lapsing the dragnet, that changed the calculus of the crisis. It meant those who had bought into the idea you need a dragnet to keep the country safe could be pressured to vote against McConnell’s efforts to weaken USA F-ReDux. (Note, there are some who have claimed that Paul objected to immediately considering USA F-ReDux Sunday night, giving McConnell his opportunity to amend the bill, but the congressional record doesn’t support that; McConnell didn’t call for immediate consideration of the bill itself until he had already filled the tree with amendments.)

And while I don’t want to minimize the utterly crucial efforts of Mike Lee to actually whip the vote, that effort was made easier by the very real threat that if the bill had to go back to the House it would die, resulting in a more permanent lapse to Section 215 and the other expired authorities. Leahy and others used that threat repeatedly, in fact, to argue that surveillance hawks needed to support an amended bill. And the threat was heightened because John Boehner had real worries that if he tried something funny, his own leadership would be at risk.

Last year, the privacy community was mostly fighting with carrots against an Executive branch that was dictating what it was willing to give up. Now, it’s fighting with carrots and sticks. We haven’t gotten the Executive branch to give up anything it didn’t already want to give up yet. But having dealt McConnell a big defeat and having the threat to do so with Boehner might make that possible going forward.

Having someone like Rand Paul, who is not afraid to be accused of having cooties, to make that possible is a critical part of that process. That doesn’t negate the efforts of anyone else (again, I’m really encouraged by Mike Lee’s role in all this). But it does mean people holding carrots but demanding things that will only be obtained with some sticks, too, ought not to dismiss the efforts to make the threat of a stick real.


Mitch McConnell and Richard Burr’s Authoritarian Power Grab Fails

Last night, Mitch McConnell dealt himself a humiliating defeat. As I correctly predicted a month before events played out, McConnell tried to create a panic that would permit him and Richard Burr to demand changes — including iMessage retention, among other things — to USA F-ReDux. That is, in fact, what Mitch attempted to do, as is evident from the authoritarian power grab Burr released around 8:30 last night (that is, technically after the Administration had already missed the FISA Court deadline to renew the dragnet).

Contrary to a lot of absolutely horrible reporting on Burr’s bill, it does not actually resemble USA F-ReDux.

As I laid out here, it would start by gutting ECPA, such that the FBI could resume using NSLs to do the bulky Internet collection that moved to Section 215 production in 2009.

It also vastly expanded the application of the call record function (which it very explicitly applied to electronic communications providers, meaning it would include all Internet production, though that is probably what USA F-ReDux does implicitly), such that it could be used against Americans for any counterterrorism or counterintelligence (which includes leaks and cybersecurity) function, and for foreigners (which would chain onto Americans) for any foreign intelligence purpose. The chaining function includes the same vague language from USA F-ReDux which, in the absence of the limiting language in the House Judiciary Committee bill report, probably lets the government chain on session identifying information (like location and cookies, but possibly even things like address books) to do pattern analysis on providers’ data. Plus, the bill might even permit the government to do this chaining in provider data, because it doesn’t define a key “permit access” term.

Burr’s bill applies EO 12333 minimization procedures (and notice), not the stronger Section 215 ones Congress mandated in 2006; while USA F-ReDux data will already be shared far more widely than it is now, this would ensure that no defendant ever gets to challenge this collection. It imposes a 3-year data retention mandate (which would be a significant new burden on both Verizon and Apple). It appears to flip the amicus provision on its head, such that if Verizon or Apple challenged retention or any other part of the program, the FISC could provide a lawyer for the tech companies and tell that lawyer to fight for retention. And in the piece de la resistance, the bill creates its very own Espionage Act imposing 10 year prison terms for anyone who reveals precisely what’s happening in this expanded querying function at providers.

It is, in short, the forced-deputization of the nation’s communications providers to conduct EO 12333 spying on Americans within America.

Had Mitch had his way, after both USA F-ReDux and his 2-month straight reauthorization failed to get cloture, he would have asked for a week extension, during which the House would have been forced to come back to work and accept — under threat of “going dark” — some of the things demanded in Burr’s bill.

It didn’t work out.

Sure, both USA F-ReDux (57-42) and the short-term reauthorization (45-54) failed cloture votes.

But as it was, USA F-ReDux had far more support than the short-term reauthorization. Both McConnell and Rand Paul voted against both, for very different reasons. The difference in the vote results, however, was that Joe Donnelly (D), Jeff Flake (R), Ron Johnson (R), James Lankford (R), Bill Nelson (D), Tim Scott (R), and Dan Sullivan (R) voted yes to both. McConnell’s preferred option didn’t even get a majority of the vote, because he lost a chunk of his members.

Then McConnell played the hand he believed would give himself and Burr leverage. The plan — as I stated — was to get a very short term reauthorization passed and in that period force through changes with the House (never mind that permitting that to happen might have cost Boehner his Speakership, that’s what McConnell and Burr had in mind).

First, McConnell asked for unanimous consent to pass an extension to June 8. (h/t joanneleon for making the clip) But Paul, reminding that this country’s founders opposed General Warrants and demanding 2 majority vote amendments, objected. McConnell then asked for a June 5 extension, to which Ron Wyden objected. McConnell asked for an extension to June 3. Martin Heinrich objected. McConnell asked for an extension to June 2. Paul objected.

McConnell’s bid failed. And he ultimately scheduled the Senate to return on Sunday afternoon, May 31.

By far the most likely outcome at this point is that enough Senators — likely candidates are Mark Kirk, Angus King, John McCain, Joni Ernst, or Susan Collins — flip their vote on USA F-ReDux, which will then be rushed to President Obama just hours before Section 215 (and with it, Lone Wolf and Roving Wiretaps) expires on June 1. But even that (because of when McConnell scheduled it) probably requires Paul to agree to an immediate vote.

But if not, it won’t be the immediate end of the world.

On this issue, too, the reporting has been horrible, even to almost universal misrepresentation of what Jim Comey said about the importance of expiring provisions — I’ve laid out what he really said and what it means here. Comey cares first and foremost about the other Section 215 uses, almost surely the bulky Internet collection that moved there in 2009. But those orders, because they’re tied to existing investigations (of presumably more focused subject than the standing counterterrorism investigation to justify the phone dragnet), they will be grand-fathered at least until whatever expiration date they have hits, if not longer. So FBI will be anxious to restore that authority (or move it back to NSLs as Burr’s bill would do), especially since unlike the phone dragnet, there aren’t other ways to get the data. But there’s some time left to do that.

Comey also said the Roving Wiretap is critical. I’m guessing that’s because they use it to target things like Tor relays. But if that’s the primary secretly redefined function, they likely have learned enough about the Tor relays they’re parked on to get individual warrants. And here, too, the FBI likely won’t have to detask until expiration days on these FISA orders come due.

As for the phone dragnet and the Lone Wolf? Those are less urgent, according to Comey.

Now, that might help the Republicans who want to jam through some of Burr’s demands, since most moderate reformers assume the phone dragnet is the most important function that expires. Except that McConnell and others have spent so long pretending that this is about a phone dragnet that in truth doesn’t really work, that skittish Republicans are likely to want to appear to do all they can to keep the phone dragnet afloat.

As I said, the most likely outcome is that a number of people flip their vote and help pass USA F-ReDux.

But as with last night’s “debate,” no one really knows for sure.

Wyden et al: Spot the Lie in Brennan’s CFR Speech Contest!

As the Daily Dot reported, Senators Wyden, Heinrich, and Hirono wrote John Brennan a letter trying to get him to admit that he lied about hacking the Senate Intelligence Committee.

But, as often happens with Wyden-authored letters, they also included this oblique paragraph at the end:

Additionally, we are attaching a separate classified letter regarding inaccurate public statements that you made on another topic in March 2015. We ask that you correct the public record regarding these statements immediately.

A game!!! Find the lies Brennan told in March!!!

The most likely place to look for Brennan lies comes in this appearance at the Council on Foreign Relations, where Brennan took questions from the audience.

While you might think Brennan lied about outsourcing torture to our allies, his answer on CIA involvement with interrogations conducted by our partners was largely truthful, even if he left out the part of detainees being tortured in custody.

But on a related issue, Brennan surely lied. He claimed — in response to a questions from an HRW staffer — not to partner with those who commit atrocities.

QUESTION: I’m going to try to stand up. Sarah Leah Whitson, Human Rights Watch. Two days ago, ABC News ran some video and images of psychopathic murderers, thugs in the Iraqi security forces, carrying out beheadings, executions of children, executions of civilians. Human Rights Watch has documented Iraqi militias carrying out ISIS-like atrocities, executions of hundreds of captives and so forth.

And some of the allies in the anti-ISIS coalition are themselves carrying out ISIS-like atrocities, like beheadings in Saudi Arabia, violent attacks on journalists in Saudi Arabia—how do you think Iraqi Sunni civilians should distinguish between the good guys and the bad guys in this circumstance?

BRENNAN: It’s tough sorting out good guys and bad guys in a lot of these areas, it is. And human rights abuses, whether they take place on the part of ISIL or of militias or individuals who are working as part of formal security services, needs to be exposed, needs to be stopped.

And in an area like Iraq and Syria, there has been some horrific, horrific human rights abuses. And this is something that I think we need to be able to address. And when we see it, we do bring it to the attention of authorities. And when we see it, we do bring it to the attention of authorities. And we will not work with entities that are engaged in such activities.

As I noted at the time, Brennan totally dodged the question about Saudi atrocities. But it is also the case that many of the “moderates” we’ve partnered with in both Syria and Iraq have themselves engaged in atrocities.

So I suspect his claim that “we will not work with entities that are engaged in such activities” is one of the statements Wyden et al were pointing to.

A potentially related alternative candidate (the letter did say Brennan had made false statements, plural) is this exchange. When Brennan claimed, at the time, he has no ties to Qasim Soleimani, I assumed he was lying, not just because we’re actually fighting a way in IRGC’s vicinity but also because Brennan seemed to exhibit some of the “tells” he does when he lies.

QUESTION: James Sitrick, Baker & McKenzie. You spent a considerable amount of your opening remarks talking about the importance of liaison relationships. Charlie alluded to this in one of his references to you, on the adage—the old adage has it that the enemy of your enemy is your friend. Are we in any way quietly, diplomatically, indirectly, liaisoning with Mr. Soleimani and his group and his people in Iraq?

BRENNAN: I am not engaging with Mr. Qasem Soleimani, who is the head of the Quds Force of Iran. So no, I am not.

I am engaged, though, with a lot of different partners, some of close, allied countries as well as some that would be considered adversaries, engaged with the Russians on issues related to terrorism.

We did a great job working with the Russians on Sochi. They were very supportive on Boston Marathon. We’re also looking at the threat that ISIL poses both to the United States as well as to Russia.

So I try to take advantage of all the different partners that are out there, because there is a strong alignment on some issues—on proliferation as well as on terrorism and others as well.

I happen to think it an exaggeration that the Russians “were very supportive on Boston Marathon,” but maybe that’s because FSB was rolling up CIA spies who were investigating potentially related groups in Russia.

Finally, while less likely, I think this might be a candidate.

QUESTION: Thank you. Paula DiPerna, NTR Foundation. This is probably an unpopular suggestion, but is it feasible or how feasible would it be to do a little selective Internet disruption in the areas concerned, a la a blockade, digital blockade, and then an international fund to indemnify business loss?

BRENNAN: OK. First of all, as we all know, the worldwide web, the Internet, is a very large enterprise. And trying to stop things from coming out, there are political issues, there are legal issues here in the United States as far as freedom of speech is concerned. But even given that consideration, doing it technically and preventing some things from surfacing is really quite challenging.

And we see that a number of these organizations have been able to immediately post what they’re doing in Twitter. And the ability to stop some things from getting out is really quite challenging.

As far as, you know, indemnification of various companies on some of these issues, there has been unfortunately a very, very long, multi-year effort on the part of the Congress to try to pass some cybersecurity legislation that addressed some of these issues. There has been passage in the Senate.

I think it’s overdue. We need to update our legal structures as well as our policy structures to deal with the cyber threats we face.

Remember, Ron Wyden has been pointing to an OLC opinion on Common Commercial Services (which, however, CIA’s now General Counsel Carolyn Krass said publicly she wouldn’t rely on) for years. I suspect indemnity is one of the things it might cover.

Plus, I do think it likely that we’ve disrupted the Internet in various circumstances.

Who knows? Maybe Brennan just told a lot of lies.

It wouldn’t be the first time.

Update: NatSec sources are already dismissing this Sy Hersh piece on the real story behind the bin Laden killing. But if there’s truth to this detail, then it would suggest I was overly optimistic when I suggested Brennan was truthful about outsourcing our interrogation to allies.

The retired official told me that the CIA leadership had become experts in derailing serious threats from Congress: ‘They create something that is horrible but not that bad. Give them something that sounds terrible. “Oh my God, we were shoving food up a prisoner’s ass!” Meanwhile, they’re not telling the committee about murders, other war crimes, and secret prisons like we still have in Diego Garcia. The goal also was to stall it as long as possible, which they did.’

If we do still have a secret prison in Diego Garcia, then the claim that we outsource everything to allies would be the key lie here.

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