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In 2017, the Government Withdrew Three FISA Collection Requests Rather than Face an Amicus Review

Last year’s Section 702 Reauthorization law included a bunch of technical fix language describing how appeals of FISA Court of Review decisions should work.

In this post on that technical language, I speculated that Congress may have added the language in response to a denial of a request by the FISCR, about the only thing that would have identified the need for such language.

As one piece of evidence to support that hypothesis, I noted that one of the times the FISC consulted with an amicus (probably Amy Jeffress), it did not make the topic or the result public.

There’s one other reason to think there must have been a significant denial: The report, in the 2015 FISC report, that an amicus curiae had been appointed four times.

During the reporting period, on four occasions individuals were appointed to serve as amicus curiae under 50 U.S.C. § 1803(i). The names of the three individuals appointed to serve as amicus curiae are as follows:  Preston Burton, Kenneth T. Cuccinelli II  (with Freedom Works), and Amy Jeffress. All four appointments in 2015 were made pursuant to § 1803(i)(2)(B). Five findings were made that an amicus curiae appointment was not appropriate under 50 U.S.C. § 1803(i)(2)(A) (however, in three of those five instances, the court appointed an amicus curiae under 50 U.S.C. § 1803(i)(2)(B) in the same matter).

We know of three of those in 2015: Ken Cuccinelli serving as amicus for FreedomWorks’ challenge to the restarted dragnet in June 2015, Preston Burton serving as amicus for the determination of what to do with existing Section 215 data, and Amy Jeffress for the review of the Section 702 certifications in 2015. (We also know of the consultation with Mark Zwillinger in 2016 and Rosemary Collyer’s refusal to abide by USA Freedom Act’s intent on amici on this year’s reauthorization.) I’m not aware of another, fourth consultation that has been made public, but according to this there was one more. I say Jeffress was almost certainly the amicus used in that case because she was one of the people chosen to be a formal amicus in November 2015, meaning she would have been called on twice. If it was Jeffress, then it likely happened in the last months of the year.

I raise that background because of a detail in the FISC report released yesterday, showing its approvals for 2017. It revealed that FISC told the government on three occasions it might appoint an amicus. On all three occasions, the government withdrew the request rather than undergo a FISC review with even a limited adversary.

During the reporting period, no individual was appointed to serve as amicus curiae by the FISA courts. No findings were made in 2017, pursuant to 50 U.S.C. § 1803(i)(2)(A), that an amicus curiae appointment was not appropriate. There were three matters in which the Court advised the government that it was considering appointment of an amicus curiae to address a novel or significant question of law raised in proposed applications, but the government ultimately did not proceed with the proposed applications at issue, or modified the final applications such that they did not present a novel or significant question of law, thereby obviating a requirement for consideration as to the appropriateness of appointment of amicus. These matters are reflected in the table above as, respectively, a modification to a proposed order, an application denied in full, and an application denied in part. This is the first report including information about such occurrences. A similarly small number of such events occurred during prior reporting periods but were not discussed in the reports for those years.

In one case, the government withdrew an entire application after learning the FISC might appoint an amicus to review the proposed technique. In two others, the final order in one or another way did not include the requested practice.

These three instances are not the first time the government has withdrawn a request after learning FISC would invite adversarial review. While the court doesn’t reveal how many or in what years, it does say that a “similarly small number of such events occurred during prior reporting periods.” Given that there have been just two other reporting periods (the report for part of 2015 and the report covering all of 2016), the language seems to suggest it happened in both years.

That the government has been withdrawing requests rather than submitting them to the scrutiny of an amicus suggests several things.

First, it may be withdrawing such applications out of reluctance to share details of such techniques even with a cleared amicus, not even one of the three who served as very senior DOJ officials in the past. If that’s right, that would reflect some pretty exotic requests, because some of the available amici (most notably former Assistant Attorney General David Kris) have seen all that DOJ was approving with NatSec collection.

Second, remember that for at least one practice (the collection of location information), the government has admitted to opting to using criminal process rather than FISA where more lenient precedents exist in particular jurisdictions. That might happen, for example, if a target could be targeted in a state that didn’t require a warrant for some kinds of location data whereas FISC does.

Starting in 2017, the government would have the ability to share raw EO 12333 with the FBI, which might provide another alternative means to collect the desired data.

All of which is to say these withdrawals don’t necessarily mean the government gave up. Rather, past history has shown that the government often finds another way to get information denied by the FISC, and that may have happened with these three requests.

Finally, remember that as part of 702 reauthorization last year, Ron Wyden warned that reauthorization should include language preventing the government from demanding that companies provide technical assistance (which obviously includes, but is probably not limited to, bypassing or weakening encryption) as part of 702 directives. The threat the government might do so under 702 is particularly acute, because unlike with individual orders (which is what the withdrawn requests here are), the FISC doesn’t review the directives submitted under 702. Some of these withdrawn requests — which may number as many as nine — may reflect such onerous technical requests.

Importantly, one reason the government might withdraw such requests is to avoid any denials that would serve as FISC precedent for individualized  and 702 requests. That is, if the government believed the court might deny an individual request, it might withdraw it and preserve its ability to make the very same demand in a 702 context, where the FISC doesn’t get to review the techniques use.

Whatever the case, the government has clearly been bumping up against the limits of what it believes FISC will approve in individualized requests. But that doesn’t mean it hasn’t been surpassing those limits via one or another technical or legal means.

Rosemary Collyer Moves to Lock Down the FISA Court

These two filings at the FISA Court — letters from Rosemary Collyer to Republican members of Congress trying to liberate documents related to Carter Page’s FISA application — have generated a good deal of attention. But they’re not all that exciting. All they consist of is Collyer (the worst presiding judge ever, if not the worst FISC judge outright) telling Bob Goodlatte and Devin Nunes that DOJ and FBI have most of the documents they want and she’s not going to budge until she learns what they’ll do.

Thank you for the courtesy of copying me on your February 1, 2018, letter to the Department of Justice and the FBI in which you made requests for information similar to those in your letter to us. Those agencies possess most, if not all, of the responsive materials the Court might possess, and we have previously made clear to the Department, both formally and informally, that we do not object to any decision by the Executive Branch to release any such FISA materials to Congress. I expect that their handling of your requests will inform the Court as to how the Executive Branch perceives its interests and will assist us in our consideration of the full range of issues; therefore we have asked the Department of Justice to keep us informed regarding its response to your February 1 letter.

It’s a punt. And not a very bold one.

The context, though, is interesting. The move comes after three related events:

  • After Collyer blew off a previous FISC precedent in ruling against an ACLU effort to liberate some FISA documents, the FISC apparently revolted, leading the entire court to consider the issue which was narrowly decided for ACLU. FISC then punted that decision up to the FISCR. FISCR named Laura Donahue as amicus on that challenge (both giving the proceeding a patina of process but also ensuring she doesn’t give up on the amicus process like John Cline did in December). I hope I’m wrong, but I expect FISCR to rule against ACLU, thereby tamping down any First Amendment right to access decisions of the court.
  • NYT’s Adam Goldman and Charlie Savage asked for the Carter Page application. This is a serious legal effort, with attentive follow-up. If ACLU loses at FISCR, however, it’ll make it very easy for FISC to deny their request.
  • Lawfare’s Susan Hennessey and Ben Wittes asked for the FISC to release a statement about whether DOJ conducted any misconduct in the Page application. This is less serious than the NYT effort, both for the utter lack of self-awareness of two people who just four months ago were applauding FISC law-breaking, deeming themselves “true friends” of the court, claiming that FISC telling us it is cool with DOJ’s application will restore faith in the process. As if that would be sufficient. Plus, the motion isn’t necessary: Reggie Walton has made public statements on his own. If Collyer did so in this case, it would be more credible if she did so on her own than if she did so because a former NSA lawyer and a surveillance booster invited her too.

I don’t support the full Page application coming out in this case. But a sharply redacted version would do more to silence the skeptics than anything else.

But by all appearances, Collyer wants the Executive to tell her what to do here, ceding the “inherent authority” Hennessey and Wittes proclaim in their motion.

Collyer’s continued subservience to the Executive is, in my opinion, a far graver challenge to FISA Court legitimacy than the Carter Page approvals are. Particularly at this moment, I wish Judge Collyer would act like the independent court most other FISC judges treat it as.

Asha Rangappa Demands Progressive Left Drop Bad Faith Beliefs in Op-Ed Riddled with Errors Demonstrating [FBI’s] Bad Faith

It’s my fault, apparently, that surveillance booster Devin Nunes attacked the FBI this week as part of a ploy to help Donald Trump quash the investigation into Russian involvement in his election victory. That, at least, is the claim offered by the normally rigorous Asha Rangappa in a NYT op-ed.

It’s progressive left privacy defenders like me who are to blame for Nunes’ hoax, according to Rangappa, because — she claims — “the progressive narrative” assumes the people who participate in the FISA process, people like her and her former colleagues at the FBI and the FISA judges, operate in bad faith.

But those on the left denouncing its release should realize that it was progressive and privacy advocates over the past several decades who laid the groundwork for the Nunes memo — not Republicans. That’s because the progressive narrative has focused on an assumption of bad faith on the part of the people who participate in the FISA process, not the process itself.

And then, Ragappa proceeds to roll out a bad faith “narrative” chock full of egregious errors that might lead informed readers to suspect FBI Agents operate in bad faith, drawing conclusions without doing even the most basic investigation to test her pre-conceived narrative.

Rangappa betrays from the very start that she doesn’t know the least bit about what she’s talking about. Throughout, for example, she assumes there’s a partisan split on surveillance skepticism: the progressive left fighting excessive surveillance, and a monolithic Republican party that, up until Devin Nunes’ stunt, “has never meaningfully objected” to FISA until now. As others noted to Rangappa on Twitter, the authoritarian right has objected to FISA from the start, even in the period Rangappa used what she claims was a well-ordered FISA process. That’s when Republican lawyer David Addington was boasting about using terrorist attacks as an excuse to end or bypass the regime. “We’re one bomb away from getting rid of that obnoxious [FISA] court.”

I’m more peeved, however, that Rangappa is utterly unaware that for over a decade, the libertarian right and the progressive left she demonizes have worked together to try to rein in the most dangerous kinds of surveillance. There’s even a Congressional caucus, the Fourth Amendment Caucus, where Republicans like Ted Poe, Justin Amash, and Tom Massie work with Rangappa’s loathed progressive left on reform. Amash, Mike Lee, and Rand Paul, among others, even have their name on legislative attempts to reform surveillance, partnering up with progressives like Zoe Lofgren, John Conyers, Patrick Leahy, and Ron Wyden. This has become an institutionalized coalition that someone with the most basic investigative skills ought to be able to discover.

Since Rangappa has not discovered that coalition, however, it is perhaps unsurprising she has absolutely no clue what the coalition has been doing.

In criticizing the FISA process, the left has not focused so much on fixing procedural loopholes that officials in the executive branch might exploit to maximize their legal authority. Progressives are not asking courts to raise the probable cause standard, or petitioning Congress to add more reporting requirements for the F.B.I.

Again, there are easily discoverable bills and even some laws that show the fruits of progressive left and libertarian right efforts to do just these things. In 2008, the Democrats mandated a multi-agency Inspector General on Addington’s attempt to blow up FISA, the Stellar Wind program. Progressive Pat Leahy has repeatedly mandated other Inspector General reports, which forced the disclosure of FBI’s abusive exigent letter program and that FBI flouted legal mandates regarding Section 215 for seven years (among other things). In 2011, Ron Wyden started his thus far unsuccessful attempt to require the government to disclose how many Americans are affected by Section 702. In 2013, progressive left and libertarian right Senators on the Senate Judiciary Committee tried to get the Intelligence Community Inspector General to review how the multiple parts of the government’s surveillance fit together, to no avail.

Rangappa’s apparent ignorance of this legislative history is all the more remarkable regarding the last several surveillance fights in Congress, USA Freedom Act and this year’s FISA Amendments Act reauthorization (the latter of which she has written repeatedly on). In both fights, the bipartisan privacy coalition fought for — but failed — to force the FBI to comply with the same kind of reporting requirements that the bill imposed on the NSA and CIA, the kind of reporting requirements Rangappa wishes the progressive left would demand. When a left-right coalition in the House Judiciary Committee tried again this year, the FBI stopped negotiating with HJC’s staffers, and instead negotiated exclusively with Devin Nunes and staffers from HPSCI.

With USAF, however, the privacy coalition did succeed in a few reforms (including those reporting requirements for NSA and CIA). Significantly, USAF included language requiring the FISA Court to either include an amicus for issues that present “a novel or significant interpretation of the law,” or explain why it did not. That’s a provision that attempts to fix the “procedural loophole” of having no adversary in the secret court, though it’s a provision of law the current presiding FISC judge, Rosemary Collyer, blew off in last year’s 702 reauthorization. (Note, as I’ve said repeatedly, I don’t think Collyer’s scofflaw behavior is representative of what FISC judges normally do, and so would not argue her disdain for the law feeds a “progressive narrative” that all people involved in the FISA process operated in bad faith.)

Another thing the progressive left and libertarian right won in USAF is new reporting requirements on FISA-related approvals for FISC, to parallel those DOJ must provide. Which brings me to Rangappa’s most hilarious error in an error-ridden piece (it’s an error made by multiple civil libertarians earlier in the week, which I corrected on Twitter, but Rangappa appears to mute me so wouldn’t have seen it).

To defend her claim that the FISC judge who approved the surveillance of Carter Page was operating, if anything, with more rigor than in past years, Rangappa points to EPIC’s tracker of FISA approvals and declares that the 2016 court rejected the highest number of applications in history.

We don’t know whether the memo’s allegations of abuse can be verified. It’s worth noting, however, that Barack Obama’s final year in office saw the highest number of rejected and modified FISA applications in history. This suggests that FISA applications in 2016 received more scrutiny than ever before.

Here’s why this is a belly-laughing error. As noted, USAF required the FISA Court, for the first time, to release its own record of approving applications. It released a partial report (for the period following passage of USAF) covering 2015, and its first full report for 2016. The FISC uses a dramatically different (and more useful) counting method than DOJ, because it counts what happens to any application submitted in preliminary form, whereas DOJ only counts applications submitted in final form. Here’s how the numbers for 2016 compare.

Rangappa relies on EPIC’s count, which for 2016 not only includes an error in the granted number, but adopts the AOUSC counting method just for 2016, making the methodology of its report invalid (it does have a footnote that explains the new AOUSC numbers, but not why it chose to use that number rather than the DOJ one or at least show both).

Using the only valid methodology for comparison with past years, DOJ’s intentionally misleading number, FISC rejected zero applications, which is consistent or worse than other years.

It’s not the error that’s the most amusing part, though. It’s that, to make the FISC look good, she relies on data made available, in significant part, via the efforts of a bipartisan coalition that she claims consists exclusively of lefties doing nothing but demonizing the FISA process.

If anyone has permitted a pre-existing narrative to get in the way of understanding the reality of how FISA currently functions, it’s Rangappa, not her invented progressive left.

Let me be clear. In spite of Rangappa’s invocation (both in the body of her piece and in her biography) of her membership in the FBI tribe, I don’t take her adherence to her chosen narrative in defiance of facts that she made little effort to actually learn to be representative of all FBI Agents (which is why I bracketed FBI in my title). That would be unfair to a lot of really hard-working Agents. But I can think of a goodly number of cases, some quite important, where that has happened, where Agents chased a certain set of leads more vigorously because they fit their preconceptions about who might be a culprit.

That is precisely what has happened here. A culprit, Devin Nunes — the same guy who helped the FBI dodge reporting requirements Rangappa thinks the progressive left should but is not demanding — demonized the FISA process by obscuring what really happens. And rather than holding that culprit responsible, Rangappa has invented some other bad guy to blame. All while complaining that people ever criticize her FBI tribe.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Jack Goldsmith and Susan Hennessey Run Cover for Those Giving Jeff Sessions Unreviewable Authority to Criminalize Dissent

I’m used to Susan Hennessey partnering with Ben Wittes to write apologies for NSA and FBI that ignore known facts. I’m a bit surprised that Jack Goldsmith did so in this defense of Democrats — like Adam Schiff and Nancy Pelosi and nineteen Democratic Senators — who have voted to give Jeff Sessions unreviewable authority to criminalize dissent using certain privacy tools.

NSA did not fix “abouts” problems before the issues became public

There are numerous problems with this post. The one that irks me the most, however, is the claim that the “system itself” identified and addressed problems with “abouts” collection before they became public.

We acknowledge that the program has raised hard legal questions as well as difficult compliance issues, primarily involving “abouts” collection. But these problems were identified by the system itself, long before the issues became public, and the practices were fixed or terminated.

This claim, one I’ve corrected Hennessey for on numerous occasions on Twitter, is false, and should be retracted.

I say that with great confidence, because I wrote about the problems on August 11, 2016, well before NSA failed to disclose the full extent of the problems in an October 4, 2016 hearing, which led the worst FISC judge ever, Rosemary Collyer, to complain about NSA’s institutional “lack of candor.”

At the October 26, 2016 hearing, the Court ascribed the government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing to an institutional “lack of candor” on NSA’s part and emphasized that “this is a very serious Fourth Amendment issue.”

As a reminder, the problem (the FISC has) with “abouts” collection is not so much that it collected entirely domestic communications — that’s the complaint of the rest of us. It’s that NSA never ever complied with John Bates’ 2011 requirement that NSA not conduct back door searches on upstream collection, because it might result in searches of those entirely domestic communications. In my August 2016 post, I noted that reviewers kept discovering that NSA continued to do back door searches on upstream data in violation of that prohibition, and kept refusing to implement technical fixes to avoid them.

I also raised concerns about the oversight of 704/705(b), which is how the NSA first realized how badly non-compliant their upstream searches were, on May 13, 2016, That’s about when NSA first reported to DOJ “in May and June 2016” that “approximately eighty-five percent of” queries using a tool the NSA employs with 704/705b queries “were not compliant with the applicable minimization procedures.”

I’ll grant that I’m remarkably attentive to documents that get declassified years after the fact. But I’m nevertheless “the public.” If I’m identifying these problems — and NSA’s refusal to make the technical fixes to avoid them — before they get fully briefed to DOJ or FISC, then it is absolutely false to claim that “the system” fixed or terminated the problem long before they became public.

Again, Lawfare should issue a retraction for that claim.

Update, January 19: On Twitter yesterday, Hennessey claimed I misread this quote, and that her proof that the system works was that the NSA had gotten away with ignoring Bates’ orders for five years, but finally shut it down before the public learned that NSA had been ignoring FISC’s orders.

This is still factually false — as I responded to her, the NSA was still identifying problems for eight months after I wrote about the problems, even assuming it had found all of them by April 2017, which was the last declassified reporting on it. But her explanation actually makes the comment downright damning for the NSA. It suggests a lawyer who was at NSA during the period it was not in compliance believes that getting away with violating the Fourth Amendment for five years, but fixing it before documents released on a three year delay (and only because of Snowden) is a sign of a law-abiding agency.

A portrait of a guy who doesn’t know key details as a rigorous overseer

The fact that I was harping on the “abouts” problems before any overseers of the program managed to fully investigate and fix them by itself disproves the claims that Hennessey and Goldsmith make in their hagiography of Adam Schiff.

He is the ranking Democrat on the House intelligence committee and one of the most knowledgeable and informed members of Congress on intelligence matters. Schiff has not hesitated to be  when he sees fit. He has watched the 702 program up close over many years in classified settings in his oversight role. He knows well its virtues and its warts. We suppose it is possible that Schiff would vote to give the president, whose integrity he so obviously worries about, vast powers to spy on Americans in an abusive way. Given everything Schiff has publicly said and done over the last year, however, a much more plausible inference is that he knows not only how valuable the 702 program is but also how law-constrained and carefully controlled and monitored it is.

Plus, I’m not sure why they think that Schiff’s attempt to fix the Section 215 phone dragnet only after Edward Snowden made it public proves that Schiff “never hesitated to be critical of intelligence community practices.” On the contrary, it proves that he did hesitate to do so before excessive programs became public.

The distinction is utterly critical given something I’ve pointed out about this bill. The bill itself is an admission that the intelligence community is out of control, and that congressional overseers can’t get information they need to adequately oversee the program without demanding it in legislation. That’s because it requires the IC to provide information on two practices that Congress cannot be deemed competent to legislate on without having answers about first.

For example, the bill requires an IG Report on how FBI queries raw data.

(b) MATTERS INCLUDED.—The report under subsection (a) shall include, at a minimum, an assessment of the following:

(1) The interpretations by the Federal Bureau of Investigation and the National Security Division of the Department of Justice, respectively, relating to the querying procedures adopted under subsection (f) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)), as added by section 101.

[snip]

(6) The scope of access by the criminal division of the Federal Bureau of Investigation to information obtained pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), including with respect to information acquired under subsection (a) of such section 702 based on queries conducted by the criminal division.

(7) The frequency and nature of the reviews conducted by the National Security Division of the Department of Justice and the Office of the Director of National Intelligence relating to the compliance by the Federal Bureau of Investigation with such querying procedures.

I have explained (and I know Hennessey regards this as a problem too) that since 2012, FBI has devolved its access to raw 702 data to field offices. The FBI already conducted far, far less oversight of the back door searches it conducts than NSA does. But because the DOJ/DNI 702 review teams visit only a fraction of the FBI field offices with each review, and because FBI’s querying system doesn’t collect enough information to do oversight remotely, it is possible that the offices that are least familiar with 702 requirements are — for the smaller number of 702 queries they conduct — getting the least oversight.

You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans.

The bill also requires a briefing within six months to explain how DOJ complies with FISA’s legally mandated notice requirements (because notice under 702 is treated as notice under 106(c), this covers 702 surveillance as well).

Not later than 180 days after the date of the enactment of this Act, the Attorney General, in consultation with the Director of National Intelligence, shall provide to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select 10 Committee on Intelligence of the Senate a briefing with respect to how the Department of Justice interprets the requirements under sections 106(c), 305(d), and 405(c) of the Foreign Intelligence Surveillance Act of 1978 (50 14 U.S.C. 1806(c), 1825(d), and 1845(c)) to notify an aggrieved person under such sections of the use of information obtained or derived from electronic surveillance, physical search, or the use of a pen register or trap and trace device. The briefing shall focus on how the Department interprets the phrase ‘‘obtained or derived from’’ in such sections.

The public treatment of DOJ’s serial, obvious failures to give notice to defendants is a nifty trick. When DOJ fails to give notice, it clearly violates the law, but notice is not included in minimization procedure review, so therefore is not reviewed by the FISC. When surveillance boosters like Hennessey and Goldsmith say there have never been any willful violations of the law, they manage to ignore the notice violations that have allowed some pretty problematic practices to avoid judicial oversight only because by breaking the law DOJ ensures no court will find them to be breaking the law.

Catch 22: Heads legal violations never get reviewed by a court, tails surveillance boosters can claim the surveillance has a clean bill of health.

Again, this is a known, egregious problem with the implementation of 702.

But rather than do the obvious thing as part of what this post dubs “robust democratic deliberation,” which is to demand answers about how notice is (not) given and require DOJ to fix it as part of the bill, the bill instead simply requires DOJ to provide the information that Congress needs to do basic oversight six months after reauthorization, which effectively punts fixing the problem six years down the road.

How many Chinese-American scientists will be improperly prosecuted because FBI is technically inane in those 6 years, because a bunch of California legislators like Nancy Pelosi, Adam Schiff, and Dianne Feinstein chose to punt on basic oversight?

The most egregious example of this, however, involves the government’s obstinate refusal to explain how many US persons are affected by 702. This bill also did not incorporate an HJC proposal requiring a count of how many Americans got referred for criminal prosecution off of 702 collection.

Letting Jeff Sessions criminalize dissent

That refusal — the refusal to even legislatively require the government to report on the impact of 702 surveillance on Americans, via incidental collection and/or criminal referral — brings us to the problem with this bill that opponents are all raising, but about which Hennessey and Goldsmith are inexcusably silent: the codification of giving Jeff Sessions unreviewable authority to determine what counts as a “criminal proceeding [that] affects, involves, or is related to the national security of the United States.”

Here’s how Hennessey and Goldsmith describe the impact of this program on Americans.

As Lawfare readers know, Section 702 authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes. It does not permit the intelligence community to target a U.S. person anywhere in the world. But it does permit incidental collection on U.S. persons, subject to strict rules about minimization and use.

Their silence about how the bill doesn’t deal with back door searches is problematic enough.

But they predictably, but problematically, make no mention of the way the bill codifies the use of 702 in domestic law enforcement under the Tor/VPN exception.

As I have laid out, in 2014 FISC created an exception to the rule that NSA must detask from a facility as soon as they learn that Americans are also using that facility. That exception applies to Tor and (though I understand this part even less) VPN servers — basically the kinds of privacy tools that criminals, spies, journalists, and dissidents might use to hide their online activities. NSA has to sort through what they collect on the back end, but along the way, they get to decide to keep any entirely domestic traffic they find has significant foreign intelligence purpose or is evidence of a crime, among other reasons. The bill even codifies 8 enumerated crimes under which they can keep such data. Some of those crimes — child porn and murder — make sense, but others — like transnational crime (including local drug dealers selling imported drugs) and CFAA (with its well-known propensity for abuse) pose more potential for abuse.

But it’s the unreviewable authority for Jeff Sessions bit that is the real problem.

We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump.

This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat.

This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way.

I mean, I get that surveillance boosters who recognize the threat Trump and Sessions pose want to absolve themselves for giving Trump tools that can so obviously be abused.

But this attempt does so precisely by dodging the most obvious reasons for which boosters should be held to account.

Update: Changed post to note that just Trump has accused FBI Agents of treason, not Sessions, and not (yet) journalists.

Update: Here’s the roll call of the 65-34 vote passage of the bill. Democrats who voted in favor are:

  1. Carper
  2. Casey
  3. Cortez Masto
  4. Donnelly
  5. Duckworth
  6. Feinstein
  7. Hassan
  8. Heitkamp
  9. Jones
  10. Klobuchar
  11. Manchin
  12. McCaskill
  13. Nelson
  14. Peters
  15. Reed
  16. Schumer
  17. Shaheen
  18. Stabenow
  19. Warner
  20. Whitehouse

 

A Dragnet of emptywheel’s Most Important Posts on Surveillance, 2007 to 2017

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten this week.

To celebrate, the emptywheel team has been sharing some of our favorite work from the last decade. This is my massive dragnet of surveillance posts.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2007

Whitehouse Reveals Smoking Gun of White House Claiming Not to Be Bound by Any Law

Just days after opening the new digs, I noticed Sheldon Whitehouse entering important details into the Senate record — notably, that John Yoo had pixie dusted EO 12333 to permit George Bush to authorize the Stellar Wind dragnet. In the ten years since, both parties worked to gradually expand spying on Americans under EO 12333, only to have Obama permit the sharing of raw EO 12333 data in its last days in office, completing the years long project of restoring Stellar Wind’s functionalities. This post, from 2016, analyzes a version of the underlying memo permitting the President to change EO 12333 without providing public notice he had done so.

2008

McConnell and Mukasey Tell Half Truths

In the wake of the Protect America Act, I started to track surveillance legislation as it was written, rather than figure out after the fact how the intelligence community snookered us. In this post, I examined the veto threats Mike McConnell and Michael Mukasey issued in response to some Russ Feingold amendments to the FISA Amendments Act and showed that the government intended to use that authority to access Americans’ communication via both what we now call back door searches and reverse targeting. “That is, one of the main purposes is to collect communications in the United States.”

9 years later, we’re still litigating this (though, since then FISC has permitted the NSA to collect entirely domestic communications under the 2014 exception).

2009

FISA + EO 12333 + [redacted] procedures = No Fourth Amendment

The Government Sez: We Don’t Have a Database of All Your Communication

After the FISCR opinion on what we now know to be the Yahoo challenge to Protect American Act first got declassified, I identified several issues that we now have much more visibility on. First, PAA permitted spying on Americans overseas under EO 12333. And it didn’t achieve particularity through the PAA, but instead through what we know to be targeting procedures, including contact chaining. Since then we’ve learned the role of SPCMA in this.

In addition, to avoid problems with back door searches, the government claimed it didn’t have a database of all our communication — a claim that, narrowly parsed might be true, but as to the intent of the question was deeply misleading. That claim is one of the reasons we’ve never had a real legal review of back door searches.

Bush’s Illegal Domestic Surveillance Program and Section 215

On PATRIOTs and JUSTICE: Feingold Aims for Justice

During the 2009 PATRIOT Act reauthorization, I continued to track what the government hated most as a way of understanding what Congress was really authorizing. I understood that Stellar Wind got replaced not just by PAA and FAA, but also by the PATRIOT authorities.

All of which is a very vague way to say we probably ought to be thinking of four programs–Bush’s illegal domestic surveillance program and the PAA/FAA program that replaced it, NSLs, Section 215 orders, and trap and trace devices–as one whole. As the authorities of one program got shut down by exposure or court rulings or internal dissent, it would migrate to another program. That might explain, for example, why Senators who opposed fishing expeditions in 2005 would come to embrace broadened use of Section 215 orders in 2009.

I guessed, for example, that the government was bulk collecting data and mining it to identify targets for surveillance.

We probably know what this is: the bulk collection and data mining of information to select targets under FISA. Feingold introduced a bajillion amendments that would have made data mining impossible, and each time Mike McConnell and Michael Mukasey would invent reasons why Feingold’s amendments would have dire consequences if they passed. And the legal information Feingold refers to is probably the way in which the Administration used EO 12333 and redacted procedures to authorize the use of data mining to select FISA targets.

Sadly, I allowed myself to get distracted by my parallel attempts to understand how the government used Section 215 to obtain TATP precursors. As more and more people confirmed that, I stopped pursuing the PATRIOT Act ties to 702 as aggressively.

2010

Throwing our PATRIOT at Assange

This may be controversial, given everything that has transpired since, but it is often forgotten what measures the US used against Wikileaks in 2010. The funding boycott is one thing (which is what led Wikileaks to embrace Bitcoin, which means it is now in great financial shape). But there’s a lot of reason to believe that the government used PATRIOT authorities to target not just Wikileaks, but its supporters and readers; this was one hint of that in real time.

2011

The March–and April or May–2004 Changes to the Illegal Wiretap Program

When the first iteration of the May 2004 Jack Goldsmith OLC memo first got released, I identified that there were multiple changes made and unpacked what some of them were. The observation that Goldsmith newly limited Stellar Wind to terrorist conversations is one another reporter would claim credit for “scooping” years later (and get the change wrong in the process). We’re now seeing the scope of targeting morph again, to include a range of domestic crimes.

Using Domestic Surveillance to Get Rapists to Spy for America

Something that is still not widely known about 702 and our other dragnets is how they are used to identify potential informants. This post, in which I note Ted Olson’s 2002 defense of using (traditional) FISA to find rapists whom FBI can then coerce to cooperate in investigations was the beginning of my focus on the topic.

2012

FISA Amendments Act: “Targeting” and “Querying” and “Searching” Are Different Things

During the 2012 702 reauthorization fight, Ron Wyden and Mark Udall tried to stop back door searches. They didn’t succeed, but their efforts to do so revealed that the government was doing so. Even back in 2012, Dianne Feinstein was using the same strategy the NSA currently uses — repeating the word “target” over and over — to deny the impact on Americans.

Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

As part of the 2012 702 reauthorization, Sheldon Whitehouse said that requiring warrants to access the US person content collected incidentally would “kill the program.” I took that as confirmation of what Wyden was saying: the government was doing what we now call back door searches.

2013

20 Questions: Mike Rogers’ Vaunted Section 215 Briefings

After the Snowden leaks started, I spent a lot of time tracking bogus claims about oversight. After having pointed out that, contrary to Administration claims, Congress did not have the opportunity to be briefed on the phone dragnet before reauthorizing the PATRIOT Act in 2011, I then noted that in one of the only briefings available to non-HPSCI House members, FBI had lied by saying there had been no abuses of 215.

John Bates’ TWO Wiretapping Warnings: Why the Government Took Its Internet Dragnet Collection Overseas

Among the many posts I wrote on released FISA orders, this is among the most important (and least widely understood). It was a first glimpse into what now clearly appears to be 7 years of FISA violation by the PRTT Internet dragnet. It explains why they government moved much of that dragnet to SPCMA collection. And it laid out how John Bates used FISA clause 1809(a)(2) to force the government to destroy improperly collected data.

Federated Queries and EO 12333 FISC Workaround

In neither NSA nor FBI do the authorities work in isolation. That means you can conduct a query on federated databases and obtain redundant results in which the same data point might be obtained via two different authorities. For example, a call between Michigan and Yemen might be collected via bulk collection off a switch in or near Yemen (or any of the switches between there and the US), as well as in upstream collection from a switch entering the US (and all that’s assuming the American is not targeted). The NSA uses such redundancy to apply the optimal authority to a data point. With metadata, for example, it trained analysts to use SPCMA rather than PATRIOT authorities because they could disseminate it more easily and for more purposes. With content, NSA appears to default to PRISM where available, probably to bury the far more creative collection under EO 12333 for the same data, and also because that data comes in structured form.

Also not widely understood: the NSA can query across metadata types, returning both Internet and phone connection in the same query (which is probably all the more important now given how mobile phones collapse the distinction between telephony and Internet).

This post described how this worked with the metadata dragnets.

The Purpose(s) of the Dragnet, Revisited

The government likes to pretend it uses its dragnet only to find terrorists. But it does far more, as this analysis of some court filings lays out.

2014

The Corporate Store: Where NSA Goes to Shop Your Content and Your Lifestyle

There’s something poorly understood about the metadata dragnets NSA conducts. The contact-chaining isn’t the point. Rather, the contact-chaining serves as a kind of nomination process that puts individuals’ selectors, indefinitely, into the “corporate store,” where your identity can start attracting other related datapoints like a magnet. The contact-chaining is just a way of identifying which people are sufficiently interesting to submit them to that constant, ongoing data collection.

SPCMA: The Other NSA Dragnet Sucking In Americans

I’ve done a lot of work on SPCMA — the authorization that, starting in 2008, permitted the NSA to contact chain on and through Americans with EO 12333 data, which was one key building block to restoring access to EO 12333 analysis on Americans that had been partly ended by the hospital confrontation, and which is where much of the metadata analysis affecting Americans has long happened. This was my first comprehensive post on it.

The August 20, 2008 Correlations Opinion

A big part of both FBI and NSA’s surveillance involves correlating identities — basically, tracking all the known identities a person uses on telephony and the Internet (and financially, though we see fewer details of that), so as to be able to pull up all activities in one profile (what Bill Binney once called “dossiers”). It turns out the FISC opinion authorizing such correlations is among the documents the government still refuses to release under FOIA. Even as I was writing the post Snowden was explaining how it works with XKeyscore.

A Yahoo! Lesson for USA Freedom Act: Mission Creep

This is another post I refer back to constantly. It shows that, between the time Yahoo first discussed the kinds of information they’d have to hand over under PRISM in August 2007 and the time they got directives during their challenge, the kinds of information they were asked for expanded into all four of its business areas. This is concrete proof that it’s not just emails that Yahoo and other PRISM providers turn over — it’s also things like searches, location data, stored documents, photos, and cookies.

FISCR Used an Outdated Version of EO 12333 to Rule Protect America Act Legal

Confession: I have an entire chapter of the start of a book on the Yahoo challenge to PRISM. That’s because so much about it embodied the kind of dodgy practices the government has, at the most important times, used with the FISA Court. In this post, I showed that the documents that the government provided the FISCR hid the fact that the then-current versions of the documents had recently been modified. Using the active documents would have shown that Yahoo’s key argument — that the government could change the rules protecting Americans anytime, in secret — was correct.

2015

Is CISA the Upstream Cyber Certificate NSA Wanted But Didn’t Really Get?

Among the posts I wrote on CISA, I noted that because the main upstream 702 providers have a lot of federal business, they’ll “voluntarily” scan on any known cybersecurity signatures as part of protecting the federal government. Effectively, it gives the government the certificate it wanted, but without any of the FISA oversight or sharing restrictions. The government has repeatedly moved collection to new authorities when FISC proved too watchful of its practices.

The FISA Court’s Uncelebrated Good Points

Many civil libertarians are very critical of the FISC. Not me. In this post I point out that it has policed minimization procedures, conducted real First Amendment reviews, taken notice of magistrate decisions and, in some cases, adopted the highest common denominator, and limited dissemination.

How the Government Uses Location Data from Mobile Apps

Following up on a Ron Wyden breadcrumb, I figured out that the government — under both FISA and criminal law — obtain location data from mobile apps. While the government still has to adhere to the collection standard in any given jurisdiction, obtaining the data gives the government enhanced location data tied to social media, which can implicate associates of targets as well as the target himself.

The NSA (Said It) Ate Its Illegal Domestic Content Homework before Having to Turn It in to John Bates

I’m close to being able to show that even after John Bates reauthorized the Internet metadata dragnet in 2010, it remained out of compliance (meaning NSA was always violating FISA in obtaining Internet metadata from 2002 to 2011, with a brief lapse). That case was significantly bolstered when it became clear NSA hastily replaced the Internet dragnet with obtaining metadata from upstream collection after the October 2011 upstream opinion. NSA hid the evidence of problems on intake from its IG.

FBI Asks for at Least Eight Correlations with a Single NSL

As part of my ongoing effort to catalog the collection and impact of correlations, I showed that the NSL Nick Merrill started fighting in 2004 asked for eight different kinds of correlations before even asking for location data. Ultimately, it’s these correlations as much as any specific call records that the government appears to be obtaining with NSLs.

2016

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

During the lead-up to the USA Freedom Debate, the government leaked stories about receiving a fraction of US phone records, reportedly because of location concerns. The leaks were ridiculously misleading, in part because they ignored that the US got redundant collection of many of exactly the same calls they were looking for from EO 12333 collection. Yet in spite of these leaks, the few figured out that the need to be able to force Verizon and other cell carriers to strip location data was a far bigger reason to pass USAF than anything Snowden had done. This post laid out what was known about location data and the phone dragnet.

While It Is Reauthorizing FISA Amendments Act, Congress Should Reform Section 704

When Congress passed FISA Amendments Act, it made a show of providing protections to Americans overseas. One authority, Section 703, was for spying on people overseas with help of US providers, and another was for spying on Americans overseas without that help. By May 2016, I had spent some time laying out that only the second, which has less FISC oversight, was used. And I was seeing problems with its use in reporting. So I suggested maybe Congress should look into that?

It turns out that at precisely that moment, NSA was wildly scrambling to get a hold on its 704 collection, having had an IG report earlier in the year showing they couldn’t audit it, find it all, or keep it within legal boundaries. This would be the source of the delay in the 702 reauthorization in 2016, which led to the prohibition on about searches.

The Yahoo Scan: On Facilities and FISA

The discussion last year of a scan the government asked Yahoo to do of all of its users was muddled because so few people, even within the privacy community, understand how broadly the NSA has interpreted the term “selector” or “facility” that it can target for collection. The confusion remains to this day, as some in the privacy community claim HPSCI’s use of facility based language in its 702 reauthorization bill reflects new practice. This post attempts to explain what we knew about the terms in 2016 (though the various 702 reauthorization bills have offered some new clarity about the distinctions between the language the government uses).

2017

Ron Wyden’s History of Bogus Excuses for Not Counting 702 US Person Collection

Ron Wyden has been asking for a count of how many Americans get swept up under 702 for years. The IC has been inventing bogus explanations for why they can’t do that for years. This post chronicles that process and explains why the debate is so important.

The Kelihos Pen Register: Codifying an Expansive Definition of DRAS?

When DOJ used its new Rule 41 hacking warrant against the Kelihos botnet this year, most of the attention focused on that first-known usage. But I was at least as interested in the accompanying Pen Register order, which I believe may serve to codify an expansion of the dialing, routing, addressing, and signaling information the government can obtain with a PRTT. A similar codification of an expansion exists in the HJC and Lee-Leahy bills reauthorizing 702.

The Problems with Rosemary Collyer’s Shitty Upstream 702 Opinion

The title speaks for itself. I don’t even consider Rosemary Collyer’s 2017 approval of 702 certificates her worst FISA opinion ever. But it is part of the reason why I consider her the worst FISC judge.

It Is False that Downstream 702 Collection Consists Only of To and From Communications

I pointed out a number of things not raised in a panel on 702, not least that the authorization of EO 12333 sharing this year probably replaces some of the “about” collection function. Most of all, though, I reminded that in spite of what often gets claimed, PRISM is far more than just communications to and from a target.

UNITEDRAKE and Hacking under FISA Orders

A document leaked by Shadow Brokers reveals a bit about how NSA uses hacking on FISA targets. Perhaps most alarmingly, the same tools that conduct such hacks can be used to impersonate a user. While that might be very useful for collection purposes, it also invites very serious abuse that might create a really nasty poisonous tree.

A Better Example of Article III FISA Oversight: Reaz Qadir Khan

In response to Glenn Gerstell’s claims that Article III courts have exercised oversight by approving FISA practices (though the reality on back door searches is not so cut and dry), I point to the case of Reaz Qadir Khan where, as Michael Mosman (who happens to serve on FISC) moved towards providing a CIPA review for surveillance techniques, Khan got a plea deal.

The NSA’s 5-Page Entirely Redacted Definition of Metadata

In 2010, John Bates redefined metadata. That five page entirely redacted definition became codified in 2011. Yet even as Congress moves to reauthorize 702, we don’t know what’s included in that definition (note: location would be included).

FISA and the Space-Time Continuum

This post talks about how NSA uses its various authorities to get around geographical and time restrictions on its spying.

The Senate Intelligence Committee 702 Bill Is a Domestic Spying Bill

This is one of the most important posts on FISA I’ve ever written. It explains how in 2014, to close an intelligence gap, the NSA got an exception to the rule it has to detask from a facility as soon as it identifies Americans using the facility. The government uses it to collect on Tor and, probably VPN, data. Because the government can keep entirely domestic communications that the DIRNSA has deemed evidence of a crime, the exception means that 702 has become a domestic spying authority for use with a broad range of crimes, not to mention anything the Attorney General deems a threat to national security.

“Hype:” How FBI Decided Searching 702 Content Was the Least Intrusive Means

In a response to a rare good faith defense of FBI’s back door searches, I pointed out that the FBI is obliged to consider the least intrusive means of investigation. Yet, even while it admits that accessing content like that obtained via 702 is extremely intrusive, it nevertheless uses the technique routinely at the assessment level.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

10 Years of emptywheel: Key Non-Surveillance Posts 2016-2017

10 Years of emptywheel: Jim’s Dimestore

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Technical Fixes in HJC Bill Suggest SCOTUS May Have Reviewed a (2015 ?) FISA Application

HJC has released a new version of the bill they’re cynically calling USA Liberty. The most significant change in the bill is that it makes the warrant requirement for criminal backdoor queries that will never be used an actual probable cause warrant, with the judge having discretion to reject the warrant.

But that’ll never be used. If a warrant requirement falls in the woods but no one ever uses it does it make a sound?

I’m more interested in a series of changes that were introduced as technical amendments that make seemingly notable changes to the way the FISC and FISCR work.

The changes are:

In 50 USC 1803 and 50 USC 1822 eliminating the requirement that the FISA Court of Review immediately explain its reason for denying an application before sending it to the Supreme Court.

The Chief Justice shall publicly designate three judges, one of whom shall be publicly designated as the presiding judge, from the United States district courts or courts of appeals who together shall comprise a court of review which shall have jurisdiction to review the denial of any application made under this chapter. If such court determines that the application was properly denied, the court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.

Letting the FISA Court of Review, in addition to the FISC, ensure compliance with orders.

Nothing in this chapter shall be construed to reduce or contravene the inherent authority of the court established under subsection (a) [a court established under this section] to determine or enforce compliance with an order or a rule of such court or with a procedure approved by such court.

In 50 USC 1805 (traditional FISA), 50 USC 1842(d) and 50 USC 1843(e) (pen registers), and 50 USC 1861(c) (215 orders) stating that a denial of a FISC order under 50 USC 1804 may be reviewed under 50 USC 1803 (that is, by FISCR).

Now, I suppose these (especially the language permitting FISCR reviews) count as technical fixes, ensuring that the review process, which we know has been used on at least three occasions, actually works.

But the only reason anyone would notice these technical fixes — especially how something moves from FISCR to SCOTUS — is if some request had been denied (or modified, given the language permitting the FISCR to ensure compliance with an order) at both the FISA court and the FISA Court of Review, or if FISCR tried (and got challenged) to enforce minimization procedures imposed at that level.

There’s one other reason to think there must have been a significant denial: The report, in the 2015 FISC report, that an amicus curiae had been appointed four times.

During the reporting period, on four occasions individuals were appointed to serve as amicus curiae under 50 U.S.C. § 1803(i). The names of the three individuals appointed to serve as amicus curiae are as follows:  Preston Burton, Kenneth T. Cuccinelli II  (with Freedom Works), and Amy Jeffress. All four appointments in 2015 were made pursuant to § 1803(i)(2)(B). Five findings were made that an amicus curiae appointment was not appropriate under 50 U.S.C. § 1803(i)(2)(A) (however, in three of those five instances, the court appointed an amicus curiae under 50 U.S.C. § 1803(i)(2)(B) in the same matter).

We know of three of those in 2015: Ken Cuccinelli serving as amicus for FreedomWorks’ challenge to the restarted dragnet in June 2015, Preston Burton serving as amicus for the determination of what to do with existing Section 215 data, and Amy Jeffress for the review of the Section 702 certifications in 2015. (We also know of the consultation with Mark Zwillinger in 2016 and Rosemary Collyer’s refusal to abide by USA Freedom Act’s intent on amici on this year’s reauthorization.) I’m not aware of another, fourth consultation that has been made public, but according to this there was one more. I say Jeffress was almost certainly the amicus used in that case because she was one of the people chosen to be a formal amicus in November 2015, meaning she would have been called on twice. If it was Jeffress, then it likely happened in the last months of the year.

Obviously, we have no idea what this hidden consultation is. The scan of all of Yahoo’s email accounts was in 2015, but it has always been reported as “spring” and weeks before Alex Stamos left Yahoo, so that seems sure to have happened before June 8 and therefore without a post-USA Freedom Act amicus. Moreover, it seems very likely that this fourth amicus consultation involved a denial, because the government is supposed to release any significant decision. So I’m guessing that Jeffress proved persuasive in one case we don’t get to know about.

Update: In this bill I briefly called the bill USS Liberty but thought better of doing so.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Ben Wittes and Susan Hennessey Endorse Judicial Lawbreaking

The surveillance boosters are having a tough time with this year’s Section 702 reauthorization. For the first time, enough details about the program are public such that we can have a debate about the authority. In response to substantive discussions of policy, boosters are engaging in ad hominem attacks and, at times, betraying their own ignorance.

Take this piece from Ben Wittes and Susan Hennessey. For the moment, ignore the insults they use against Congress and reformers. The most remarkable passage comes where they attack the HJC reauthorization bill’s requirement that, for the yearly 702 reauthorization, the FISA Court appoint an amicus or explain why they didn’t think it was necessary.

Or consider the strange provision that requires that the FISA court must appoint an amicus curiae, or special advocate and expert, in the certification process for Section 702’s surveillance programs to make the proceedings more adversarial with respect to the government’s position. Previously, the court appointed amici — which were established in the 2015 USA Freedom Act — at its discretion. The court has never indicated any need for a change in practice; indeed, if it wanted to appoint amici in every case it would and could. Currently, FISC judges rely on highly specialized staff attorneys and call on amici when they deem outside counsel useful to their decision-making. This provision usurps judicial discretion and further burdens a heavily strained court that would now need to justify each and every decision to not use the help it didn’t ask for.

Let’s start with the clear errors in this passage.

Contrary to what these so-called experts (a former NSA lawyer!!) say, the USA Freedom Act did not “establish” the practice of appointing amici at the court’s discretion. The FISC always had that authority, and in fact appointed amici on a number of occasions before passage of USAF, as early as the 2002 In Re Sealed Case and again in the wake of the Snowden leaks.

What the USAF did was mandate that the FISC appoint an amicus curiae for novel or significant interpretations of the law, “unless the court issues a finding that such appointment is not appropriate.”

Authorization.–A court established under subsection (a) or (b), consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time–
(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate;

It troubles me that a former NSA lawyer doesn’t know what that word, “shall” means. Or perhaps is writing about matters of law without actually reading the law?

It should be obvious that the yearly authorization of the yearly 702 reauthorization program is a “significant interpretation of law.” It authorizes spying on over 100,000 people.

That was especially true this year, because the FISC had to decide what to do in response to learning NSA had been violating rules imposed back in 2011 to ensure the constitutionality of upstream collection (for several of those years, Hennessey was at NSA). Just as importantly, the FISC had to decide whether to permit back door searches of upstream surveillance that it knew included entirely domestic communications. Such searches had never been permitted before because of the privacy impact on Americans. Yet FISA judge Rosemary Collyer didn’t bother consulting with an amicus. Nor did she provide the mandated finding explaining why she didn’t need the help.

And trust me, Collyer needed the help: it’s clear she got some key technical details (the difference between SCT and MCTs) wrong. Who knows how much else she got wrong? But she figured she was smart enough she could blow off the law requiring an amicus in such situations.

In the wake of such stubbornness from the court, the HJC bill mandates an amicus for the yearly authorization. It is an obvious (and inadequate) response to a clear problem that may have profound consequences for Americans’ privacy.

In response to that, Wittes and Hennessey complain that the court — the same court that has just blown off USAF!!! — “never indicated any need” to be obligated to do what USAF requires. They claim that the “provision usurps judicial discretion,” suggesting they don’t believe the coequal Congress itself may or should exercise discretion. And they suggest the once-yearly requirement would “further burden[] a heavily strained court that would now need to justify each and every decision to not use the help it didn’t ask for,” as if simply including an amicus review for a program that affects millions is just too difficult for judges who are used to adversarial process on all their non-FISA proceedings.

Here’s the craziest thing. These two experts (including an ex-NSA lawyer!!) make clear errors of law. They appear unfamiliar with the last 702 reauthorization. They get the constitutionality of coequal branches wrong.

And having done all that, they complain about “panicky civil libertarians” and “congressional dysfunction,” as if boosters who can’t get basic facts right are in a position to judge the good faith engagement of others.

This is what passes for responsible oversight among surveillance boosters: responding to judicial obstinance by complaining that asking the poor FISA court to do what Congress mandated they do “usurps judicial discretion.”

There is far more in this piece that is erroneous and obnoxious.

But why bother laying that all out? All this piece reveals is that key surveillance boosters are either operating in bad faith or unaware of the law and implementation of the program they bitch at others about.

If this is the best the surveillance boosters can do, then we should impose far more reforms of this bill, because Hennessey has revealed that the lawyers overseeing this program don’t know enough about it to make sure it operates safely.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

702 Reauthorization Bill: The “About” Fix (What Is A Person?)

I’m going to do a series of posts on the draft 702 reauthorization bill, which is here. The bill makes a number of improvements to the status quo, but it’s not clear whether it fixes the biggest problems with Section 702.

Take the “about” fix, which is a short and sweet change to the targeting procedures.

(4) LIMITATION.—During the period preceding September 30, 2023, the procedures adopted in accordance with paragraph (1) shall require that the targeting of a person is limited to communications to or from the targeted person.

As a reminder, “about” collection targeted the content of “communications” — perhaps searching on something like Osama bin Laden’s phone number in the content of email. It posed a problem because sometimes NSA obtains upstream communications in bundles, meaning they’ll get a number of unrelated communications at the same time. In such a case, if an email in a bundle included the target (OBL’s phone number), then all the emails would be collected, which also might include emails to other people. In a small number of cases, such collection would result in the collection of entirely domestic communications that had no foreign intelligence value; it resulted in a larger number of entirely domestic, unbundled communications that were of foreign intelligence value because they mentioned the selector.

The legislative fix largely parallels the fix Rosemary Collyer approved in April. She accomplished this (relying on an Administration memo that, unlike almost everything else from the reauthorization process, has not been released) this way:

Finally, upstream collection of Internet transaction [redacted] for communications to or from a targeted person, but “abouts” communication may no longer be acquired. The NSA Targeting Procedures are amended to state that “[a]cquisitions conducted under these procedures will be limited to communications to or from persons targeted in accordance with these procedures. [citation removed], and NSA’s Minimization Procedures now state that Internet transactions acquired after March 17, 2017, “that are not to or from a person targeted in accordance with NSA’s section 702 targeting procedures are unauthorized acquisitions and therefore will be destroyed upon recognition.” [citation removed]

Here’s how it looks in practice, in the current targeting procedures.

In both cases, I have a similar concern, one which is made more obvious in the targeting procedures. They start by suggesting that all acquisitions under 702 will be limited to “communications to or from persons targeted in accordance with these procedures.” But then its discussion of upstream collection defines “Internet transaction” in such a way to treat it only as a communication.

The draft bill similarly suggests the possibility that there is the targeting of persons — for whom the active user rule much hold, but if there were some other kind of targeting, it might not hold.

What is a person, in this situation? Does this language prevent NSA from targeting a group (a point raised by John Bates on precisely this point in 2011)? Can NSA target — say — an encryption product used by a corporate group (ISIS’s shitty encryption product, for example), and if so are all users of that product assumed to be part of the group? What happens if the collection is targeting the command and control server of a botnet; any communications back and forth from it are, technically speaking, communications, but not involving a human person.

In other words, both versions of this prohibition seem to operate under they fiction that NSA is just collecting emails, traditional communications between traditional people. I’m actually not sure how the language would apply to other stuff. I’m also not sure if the possible exceptions would have privacy concerns.

Which is why I’m not certain whether the prohibition actually eliminates the privacy threat in question.

Not least, because directly after the introduction of the prohibition in her opinion, Collyer acknowledges that NSA will still obtain entirely domestic comms.

As I’ve said elsewhere, I think this prohibition does fix the email (and other kinds of Internet messaging) MCT problem. But given that even Collyer admits NSA will still obtain domestic communications, there’s still the problem that those domestic comms will be sucked up in the newly permitted back door searches of upstream communications.

How Keith Gartenlaub Turned Child Porn into Foreign Intelligence

As I mentioned in this post on FISA and the space-time continuum, I’m going to be focusing closely on the FISA implications of Keith Gartenlaub’s child porn prosecution.

Gartenlaub was a Boeing engineer in 2013 when the FBI started investigating him for sharing information with China (see this and this story for background). He was suspected, in significant part, because of relationships and communications tied to his wife, who is a naturalized Chinese-American and whose family appears well-connected in China. The case is interesting for the way the government used both FISA and criminal searches to prosecute him for a non-national security related crime.

The case is currently being appealed to the 9th Circuit; it will be heard on December 4. His defense is challenging several things about his conviction, including that there was insufficient evidence to deem him an Agent of a Foreign Power (and therefore to obtain the ability to conduct a broader search than might be permitted under a criminal warrant), as well as that there was insufficient evidence offered at trial that he knowingly possessed the 9-year old child porn on which his conviction rests. I think there’s some merit to the latter claim, but I’m going to bracket it for my discussion, both because I think the FISA issues would remain important even if the government’s case on the child porn charge were far stronger than it is, and because I think the government may be sitting on potentially inculpatory evidence.

In this post, I’m going to show that it is almost certain that the government changed FISA minimization procedures to facilitate using FISA to prosecute him for child porn.

Timeline

The public timeline around the case looks like this (and as I said, I believe the government is hiding some bits):

Around January 28, 2013: Agent Wesley Harris reads article that leads him to start searching for Chinese spies at Boeing

February 7, 8, and 22, 2013: Harris interviews Gartenlaub

June 18, 2013: Agent Harris obtains search warrant for Gartenlaub and his wife, Tess Yi’s, Google and Yahoo accounts

Unknown date: Harris obtains a FISA order

January 29, 2014: Using FISA physical search order, FBI searches Gartenlaub’s home, images three hard drives

June 3, 2014: Harris sends files to National Center for Missing and Exploited Children, which confirms some files display known victims

August 22, 2014: Criminal search warrant obtained for Gartenlaub’s premises

August 27, 2014: FBI searches Gartenlaub’s properties, seizing computers used as evidence in trial, arrests him

August 29, 2014: Government reportedly says it will dismiss charges if Gartenlaub will cooperate on spying

October 23, 2014: Grand jury indicts

December 10, 2015: Guilty verdict

FBI used a criminal search warrant to obtain evidence, then obtained a FISA order

As you can see from the timeline, the government first obtained a criminal search warrant for access to Gartenlaub and his wife’s email accounts (Gartenlaub also got an 1806 notice, meaning they used a FISA wiretap on him at some point). Only after that did they execute a FISA physical search order to search his house and image his computers. Which means — unless they had a FISA order and a criminal warrant simultaneously — they had already convinced a judge it was likely Gartenlaub’s emails would provide evidence he was “remov[ing ] information, including export controlled technical data, from Boeing’s computer networks to China.” In his affidavit, Agent Harris cited violations of the Arms Export Control Act and Computer Fraud and Abuse Act.

Then, after probably months of reviewing emails later, having already shown probable cause that could have enabled them to get a search warrant to search Gartenlaub’s computer for those specific crimes — that is, proof that he had exploited his network access at Boeing in order to obtain data he could share with his wife’s Chinese associates — the government then went to FISA and convinced a judge they had probable cause Gartenlaub (or perhaps his wife) was acting as an agent of a foreign power for what are assumed to be the same underlying activities.

The government insists it still had adequate evidence Gartenlaub or his wife was an agent of a foreign power under FISA

The government’s response to Gartenlaub’s appeal predictably redacts much of the discussion to support its claim that it had sufficient probable cause, after months of reading his emails, to claim he or his wife was an agent of China. But the structure of it — with an unredacted paragraph addressing weaknesses with the criminal affidavit, followed by a redacted passage of unknown length, as well as a redacted footnote modifying the idea that the criminal affidavit “merely ‘recycled’ details that were found in the Harris affidavit” (see page 38-39) — suggests they raised evidence beyond what got included in the criminal affidavit. That’s surely true; it presumably explains what was so interesting about Yi’s family and associates in China as to sustain suspicion that they would be soliciting Boeing technology.

In any case, in a filing in which the government admits that “the [District] court expressed ‘some personal questions regarding the propriety of the FISA court proceeding even though that certainly seems to be legally authorized’,” the government pushed the Ninth Circuit to adopt a deferential standard on probable cause for FISA orders, in which only clear error can overturn the probable cause standard.

The Court has not previously articulated the standard of review applicable to an underlying finding of probable cause in a FISA case. In the analogous context of search warrants, this Court gives “great deference” to an issuing magistrate judge’s findings of probable cause, reviewing such findings only for “clear error.” Krupa, 658 F.3d at 1177; United States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006) (same); United States v. Clark, 31 F.3d 831, 834 (9th Cir. 1994) (same). “In borderline cases, preference will be accorded to warrants and to the decision of the magistrate issuing it.” United States v. Terry, 911 F.2d 272, 275 (9th Cir. 1990). The same standard applies to this Court’s review of the findings in Title III wiretap applications. United States v. Brown, 761 F.2d 1272, 1275 (9th Cir. 2002).

Consistent with these standards and with FISA itself, the Second and Fifth Circuits have held that the “established standard of judicial review applicable to FISA warrants is deferential,” particularly given that “FISA warrant applications are subject to ‘minimal scrutiny by the courts,’ both upon initial presentation and subsequent challenge.” United States v. Abu-Jihaad, 630 F.3d 102, 130 (2d Cir. 2010); accord United States v. El-Mezain, 664 F.3d 467, 567 (5th Cir. 2011) (noting that representations and certifications in FISA application should be “presumed valid”). Other courts, reviewing district court orders de novo, have not discussed what deference applies to the FISC. See, e.g., Demeisi, 424 F.3d at 578; Squillacote, 221 F.3d at 553-54.

The government submits that the appropriate standard should be deferential. Consistent with findings of probable cause in other cases, the Court should review only for “clear error,” giving “great deference” to the initial conclusion that a FISA application established probable cause.

And, of course, the government argues that even if it didn’t meet the standards required under FISA, it still operated in good faith.

By using a FISA rather than a criminal search warrant, the FBI had more leeway to search for unrelated items

Nevertheless, having read Gartenlaub’s email for months and presumably having had the opportunity to obtain a warrant to search his computers for those specific crimes, the government instead obtained a FISA order that allowed the FBI to search his devices far more broadly, opening up decades old files named with sexually explicit names in the guise of finding intelligence on stealing Boeing’s secrets. Here’s how Gartenlaub’s lawyers describe the search in his appeal, a description the government largely endorses in their response:

The FISC can only authorize the government to search for and seize “foreign intelligence information.” 50 U.S.C. §§ 1822(b), 1823(a)(6)(A), 1824(a)(4). The order authorizing the January 2014 search of Gartenlaub’s home and computers presumably complied with this restriction. “Foreign intelligence information” (defined at 50 U.S.C. §§ 1801(e) and 1821(1)) does not include child pornography. Nonetheless, as detailed in the government’s application for the August 2014 search warrant, the agents imaged Gartenlaub’s computers in their entirety, reviewed every file, and–upon discovering that some of the files contained possible child pornography–subjected those and related files to detailed scrutiny, including sending them to the National Center for Exploited Children for analysis. ER248-56, 262-68. In an effort to establish that Gartenlaub had downloaded the child pornography, the agents also examined and analyzed a number of other files on the computers, none of which had anything to do with “foreign intelligence information.” ER255-62, 268-70.

As far as the record shows, the agents conducted this detailed, far-ranging analysis without obtaining any court authorization beyond the initial FISC order. In other words, after encountering suspected child pornography files, the agents did not stop their search and seek a warrant authorizing them to open and review those files and other potentially related files. Instead, they opened, examined, and analyzed the suspected child pornography files and a number of other files having nothing to do with foreign intelligence information. They then incorporated the results of that analysis into the August 2014 search warrant application. ER248- 49. That application, in turn, produced the warrant that gave the agents authority to search for and seize the very materials that they had already seized and searched under the purported authority of the January 2014 FISC order.

How did agents authorized to search for “foreign intelligence information” end up opening, examining, and analyzing suspected child pornography files and a number of other files that had nothing to do with the only authorized object of the search? The agents apparently relied on the following argument: To determine whether Gartenlaub’s computers contained foreign intelligence information, it was necessary to open and review every file; after all, a foreign spy might cleverly conceal such information in .jpg files with sex-themed names or in other non-obvious locations. And after opening the files, the child pornography and other information was in “plain view” and thus could be lawfully seized under the Fourth Amendment.

As a result of these broad standards, and of Gartenlaub’s habit of retaining disk drives from computers he no longer owned, the FBI found files dating back to 2005, from a computer Gartenlaub no longer owned.

Upon finding that those files included apparent child porn, the FBI sent them off to the National Center for Missing and Exploited Children, which confirmed some of the images included known victims. Almost two months later, FBI conducted further (criminal) searches, and arrested Gartenlaub for child porn.

In December 2015, Gartenlaub was found guilty on two counts of child porn, though one count was vacated by the judge after the verdict.

FBI changed standard minimization procedures to permit sharing with NCMEC

The timeline above is what would have been available to Gartenlaub’s defense team.

But in 2015 and 2017, two new details were added to the timeline.

First, on April 11, 2017, two months after Gartenlaub submitted his opening brief in the appeal on February 8, the government released an August 11, 2014 opinion approving the sharing of FISA-obtained data with NCMEC.

Congress established NCMEC in 1984 as a non-governmental organization and it is funded through grants administered by the Department of Justice. One of its purposes is to assist law enforcement in identifying victims of child pornography and other sexual crimes. Indeed, Congress has mandated Department of Justice coordination with NCMEC on these and related issues. See Mot. at 5-8. Furthermore, this Court has approved modifications to these SMPs in individual cases to permit the Government to disseminate information to NCMEC. See Docket Nos. [redacted]. Because of its unique role as a non-governmental organization with a law enforcement function, and because it will be receiving what reasonably appears to be evidence of specific types of crimes for law enforcement purposes, the Government’s amendment to the SMPs comply with FISA under Section 180l(h)(3).1

As noted, in the past the FISC had approved sharing FISA-collected data with NCMEC on a case-by-case basis. But in 2014, in the weeks while  it prepared to arrest Gartenlaub on child porn charges tied to a search that only found the child porn because it used the broader FISA search standard, the government finally made NCMEC sharing part of the standard minimization procedures.

Even on top of this coincidental timing, there are reasons to suspect DOJ codified the NCMEC sharing because of Gartenlaub’s case. For example, in the government’s response there’s a passage that clearly addresses how NCMEC got involved in the case that bridges the discussion of use of child porn evidence discovered in plain view in the criminal context and the discussion of its use here.

Non-FISA precedents also foreclose defendant’s claims. Analyzing a Rule 41 search warrant, this Court has held that using child pornography inadvertently discovered during a lawful search is consistent with the Fourth Amendment. Giberson, 527 F.3d at 889-90 (ruling that “the pornographic material [the agent] inadvertently discovered while searching for the documents enumerated in the warrant [related to document identification fraud] was properly used as a basis for the third warrant authorizing the search for child pornography”);

[additional precedents excluded]

[CLASSIFIED INFORMATION REMOVED] With the benefit of NCMEC’s assistance, the government then sought and obtained the August 2014 search warrants, authorizing the search of defendant’s residence and storage units for child pornography. (CR 73; GER 901-53). The fruits of this warrant were then used in defendant’s prosecution. The use of information discovered during the prior lawful January 2014 search in the subsequent search warrant application was proper. Giberson, 527 F.3d at 890.

The redacted discussion must include not only a description of how NCMEC was permitted to get involved, but in the approval approving this as part of the minimization procedures, which (after all) are designed to protect Americans under the Fourth Amendment.

Of particular interest, the government argued that one of the precedents Gartenlaub cited was not binding generally, and especially not binding on the FISC.

The concurring opinion in CDT, upon which defendant relies, does not aid him. That concurrence is not “binding circuit precedent” or a “constitutional requirement,” much less one binding on the FISC. Schesso, 730 F.3d at 1049 (the “search protocol” set forth in the CDT concurrence is not “binding circuit precedent,” not a[] constitutional requirement[],” and provides “no clear-cut rule”); see CDT, 621 F.3d at 1178 (observing that “[d]istrict and magistrate judges must exercise their independent judgment in every case”); Nessland, 601 Fed. Appx. at 576 (holding that “no special protocol was required” for a computer search). Defendant thus cannot demonstrate any error relating to any FISC-authorized search.

The FISC had, by the time of the search relying on the FISA-obtained child porn as evidence, already approved the use of child porn obtained in a FISA search. So the government could say the CDT case was not binding precedent, because it already had a precedent in hand from the FISC. Of course, it didn’t tell Gartenlaub that.

Of course, that’s not proof that the government codified the NCMEC sharing just for the Gartenlaub case. But there’s a lot of circumstantial evidence that that’s what happened.

The government still has not formally noticed this change to Gartenlaub

As I noted above, the government released the FISC order approving the change in the standard minimization procedures too late to be of use for Gartenlaub’s opening brief. That’s a point EFF and ACLU made in their worthwhile amicus submitted in the appeal.

For example, in this case, the government apparently refused to disclose the relevant FBI minimization procedures to Gartenlaub’s counsel even though other versions of those minimization procedures are publicly available. See Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under FISA (2008). 8

We can debate whether the standard approval for NCMEC sharing is a good thing or whether it invites abuse, offering the FBI an opportunity to use more expansive searches to “find” evidence of child porn that it can then use as leverage in a foreign intelligence context (which I’ll return to). I suspect it is wiser to approve such sharing on a case-by-case basis, as had been the case before Gartenlaub.

But from this point forward, I would assume the FBI will routinely use this provision as an excuse to conduct particularly thorough searches for child porn, on the logic that obtaining any would provide great leverage against an intelligence target.

The timing of the approval of NCMEC sharing under Section 702

I have said repeatedly, I think the government is withholding some details.

One reason I think that is because of another remarkable coincidence of timing.

As I first reported here, the first notice that the government had approved the sharing with NCMEC in standard minimization procedures came in September 2015, when the government released the 2014 Thomas Hogan Section 702 opinion that approved such sharing under Section 702. The opinion relied on the earlier approval (by Rosemary Collyer), but redacted all reference to the timing and context of it, as well as a footnote relating to it.

I find the timing of both the release and the opinion itself to be of immense interest.

First, the government had no problem releasing this opinion back in 2015, while Gartenlaub was still awaiting trial (though it waited until almost two months after the District judge in his case, Christina Snyder, rejected his FISA challenge on August 6, 2015). So it was fine revealing to potential intelligence targets that it had standardized the approval of using FISA information to pursue child porn cases, just not revealing the dates that might have made it useful for Gartenlaub.

I’m even more interested in the timing of the order: August 26. The day before the FBI got its complaint approved and arrested Gartenlaub.

The FBI had long ago submitted FISA information to NCMEC. But it waited until both the standard minimization procedures for traditional FISA and for Section 702 had approved the sharing of data with NCMEC before they arrested Gartenlaub.

That’s one of several pieces of data that suggests they may have used Section 702 against Gartenlaub, on top of the other mix of criminal and FISA authorizations.

To be continued.

Updated timeline

Around January 28, 2013: Agent Wesley Harris reads article that leads him to start searching for Chinese spies at Boeing

February 7, 8, and 22, 2013: Harris interviews Gartenlaub

June 18, 2013: Agent Harris obtains search warrant for Gartenlaub and his wife, Tess Yi’s, Google and Yahoo accounts

Unknown date: Harris obtains a FISA order

January 29, 2014: FBI searches Gartenlaub’s home, images three hard drives

June 3, 2014: Harris sends files to National Center for Missing and Exploited Children, which confirms some files display known victims

August 11, 2014: Rosemary Collyer approves NCMEC sharing for traditional FISA standard minimization procedures

August 22, 2014: Search warrant obtained for Gartenlaub’s premises

August 26, 2014: Thomas Hogan approves NCMEC sharing for FISA 702

August 27, 2014: FBI searches Gartenlaub’s properties, seizing computers used as evidence in trial, arrests him

August 29, 2014: Government reportedly says it will dismiss charges if Gartenlaub will cooperate on spying

October 23, 2014: Grand jury indicts

August 6, 2015: Christina Snyder rejects Gartenlaub FISA challenge

September 29, 2015: ODNI releases 702 NCMEC sharing opinion

December 10, 2015: Guilty verdict

February 8, 2017: Gartenlaub submits opening brief

April 11, 2017: Government releases traditional FISA NCMEC sharing opinion

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

A Better Example of Article III FISA Oversight: Reaz Qadir Khan

As debate over reauthorization of Section 702 heats up, both those in favor of reform and those asking for straight reauthorization are making their cases. As part of that, I wrote a summary of the most persistent NSA (and FBI) violations of FISA for Demand Progress, called “Institutional Lack of Candor.” I did a piece for Motherboard based off the report, which also looks at how Rosermary Collyer did not use the leverage of FISA’s exclusivity clause to force NSA to purge improperly accessed data this year.

Meanwhile, NSA’s General Counsel, Glenn Gerstell, just did a speech at University of Texas laying out what he claimed is the judicial oversight over Section 702. There’s one line I find particularly interesting:

Among other things, Section 702 also enables collection of information on foreign weapons proliferators and informs our cybersecurity efforts.

Here, Gerstell appears to be laying out the three known certificates (counterterrorism, counterproliferation, and foreign government). But I wonder whether the “among other things” points to a new certificate, or to the more amorphous uses of the foreign government cert.

As for Gerstell’s argument that there’s sufficient judicial oversight, I find it laughable in several key points.

For example, here’s how Gerstell describes the amicus provision included with USA Freedom Act.

The FISC is entitled to call upon the assistance of amici when evaluating a novel or significant interpretation of the law or when it requires outside technical expertise. This amicus provision, which was added to FISA as part of the USA FREEDOM Act amendments in 2015, enables the court to draw upon additional expertise and outside perspectives when evaluating a proposed surveillance activity, thus ensuring that the FISC’s oversight remains both robust and knowledgeable. The court has designated a pool of experts in national security to serve as amicus curiae at the court’s request. Amici are specifically instructed to provide to the court “legal arguments that advance the protection of individual privacy and civil liberties,” “information related to intelligence collection or communications technology,” or any other legal arguments relevant to the issue before the court.

The FISC’s amicus provisions are more than a mere statutory wink and nod to strong judicial oversight. The court has in fact called upon its amici to assist in evaluating Section 702 activities. In 2015, the FISC appointed an amicus to analyze what the court felt were two novel or significant interpretations of law that arose as part of its review of the government’s annual application for 702 certifications. The first issue involved whether queries of 702 collection that are designed to return information concerning U.S. persons are consistent with statutory and constitutional requirements. The second question involved whether there were any statutory or constitutional concerns about preserving information collected under Section 702 for litigation purposes that would otherwise be subject to destruction under the government’s minimization procedures. On both issues, the FISC carefully considered the views of the amicus, ultimately concluding that both of the proposed procedures were reasonably tailored to protect the privacy of U.S. persons and thus permissible under both the FISA statute and the constitution. [my emphasis]

Gerstell speaks of the amicus provision as newly permitting — “entitled,” “enabled” — the FISC to consult with others. Yet the FISC always had the ability to call amici (in fact it did ask for outside help in the In Re Sealed Case provision and in a few issues in the wake of the Snowden leaks). What was new with the USAF amicus is an affirmative requirement to either use an amicus or explain why it chose not to in any matters that present a “novel or significant interpretation of the law.”

Authorization.–A court established under subsection (a) or (b), consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time–

(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate; and

(B) may appoint an individual or organization to serve as amicus curiae, including to provide technical expertise, in any instance as such court deems appropriate or, upon motion, permit an individual or organization leave to file an amicus curiae brief.

It’s true that USAF permits the FISC to decide what counts as new, but in those cases, the law does require one or another action, not simply permit it.

Which is why it’s so funny that Gerstell harps on the inclusion of Amy Jeffress in the 2015 recertification process. Note his silence on the 2016 process, which addressed an issue that (as both my reports above make clear) is far more problematic than the ones Jeffress weighed in on? Collyer simply blew off the USAF requirement, and didn’t get the technical help she apparently badly needed. As I noted, she sort of threw up her hands and claimed there were simply no people with the technical expertise and clearance available to help.

I suspect the Intelligence Community — and possibly even the law enforcement community — will live to regret Collyer’s obstinance about asking for help, if for no other reason than we’re likely to see legal challenges because of the way she authorized back door searches on content she knows to include domestic communications.

Gerstell then goes on to hail Mohamed Mohamud’s challenge to 702 as an example of worthwhile Title III court oversight of the program.

In certain circumstances, challenges to surveillance programs can be brought in other federal courts across the country. One recent court case is particularly illustrative of the review of Section 702 outside of the FISC, and here is how it commenced:

A few years ago, a young man named Mohamed Mohamud was studying engineering at Oregon State University. He had emigrated to the U.S. from Somalia with his family when he was only three, and he later became a naturalized U.S. citizen. He grew up around Portland, Oregon, enjoying many typical American pursuits like music and the Los Angeles Lakers. In 2008, however, he was involved in an incident at Heathrow Airport in London during which he believed he was racially profiled by airport security. This incident set Mohamud on a path toward radicalization. He began reading jihadist literature and corresponding with other Al-Qaeda supporters. In 2010, he was arrested and indicted for his involvement in a plot to bomb the Christmas Tree Lighting Ceremony in Portland, which was scheduled to take place the day after Thanksgiving. He was eventually found guilty of attempted use of a weapon of mass destruction.

After the verdict but before his sentencing, the government provided Mohamud with a supplemental notice that it had offered into evidence or otherwise used or disclosed during the proceedings information derived from Section 702 collection. After receiving this notice, Mohamud petitioned the court for a new trial, arguing that any 702-derived information should be suppressed because, among other reasons, he claimed that Section 702 violated the Fourth Amendment. The federal district court considered Mohamud’s claims before ultimately holding that 702 was constitutional. In so holding, the court found that 702 surveillance does not trigger the Fourth Amendment’s warrant requirement because any collection of U.S. person information occurring as a result of constitutionally permissible 702 acquisitions occurs only incidentally and, even if it did trigger the warrant requirement, a foreign intelligence exception applies. The court also found that “the government’s compelling interest in protecting national security outweighed the intrusion of Section 702 surveillance on an individual’s privacy,” so the 702 collection at issue in that case was reasonable under the Fourth Amendment.

Mohamud appealed the district court’s ruling to the Ninth Circuit, where the Circuit Court again looked at the constitutionality of the 702 collection at issue, with particular scrutiny on incidental collection. The Ninth Circuit concluded that the government’s surveillance in this case was consistent with constitutional and statutory requirements; even if Mohamud had a Fourth Amendment right to privacy in any incidentally-collected communications, the government’s searches were held to be reasonable. [my emphasis]

Look carefully at what Gerstell has argued: he uses a case where DOJ introduced evidence derived from 702, but gave the legally required notice only after the entire trial was over! That is, he’s pointing to a case where DOJ broke the law as proof of how well judicial oversight works.

And that’s important because DOJ has stopped giving 702 notice again (and has never given notice in a non-terrorism case, even though it surely has used derivative information in those cases as well). Without that notice, no defendant will be able to challenge 702 in the designated manner.

Which is why I would point to a different case for what criminal court oversight of SIGINT should look like: that of Reaz Qadir Khan (whose own case was closely linked to that of Mohamud).

At first, Khan tried to force the judge in his case, Michael Mosman, to recuse because he was serving as a FISA judge at the time. Mosman stayed.

Khan then asked for notice from the government for every piece of evidence obtained by the defense, laying out the possible authorities. Things started getting squirrelly at that point, as I summarized here.

Last year, I described the effort by the Reaz Qadir Khan’s lawyers to make the government list all the surveillance it had used to catch him (which, significantly, would either be targeted off a dead man or go back to the period during with the government used Stellar Wind). In October the government wrote a letter dodging most notice. Earlier this year, Judge Michael Mosman (who happens to also be a FISA judge) deferred the notice issues until late in the CIPA process. Earlier this month, Khan plead guilty to accessory to material support for terrorism after the fact.

What I suspect happened is that Mosman, who knows more about FISA than almost all District judges because he was (and still is) serving on the court, recognized that the government had surveillance that deserved some kind of judicial scrutiny (in this case, it probably involved Stellar Wind collection, but also likely included other authorities). So he agreed to deal with it in CIPA.

And just weeks later, Khan got a plea deal.

That’s the way it should work: for a judge to be able to look at surveillance and figure out if something isn’t exactly right or, for exotic interpretations of the law that don’t pass a smell test, and in those cases provide some means for review. Here, the government appears to have gotten uninterested in subjecting its evidence for review and, as is built into CIPA, ended up making a deal instead.

Of course, that rare exception points to one of the problems with FISC.

Gerstell claims that a court that until the Snowden leaks had no Democratic appointees on it boasts a “diversity of backgrounds.”

Recognizing the importance of judicial accountability for foreign intelligence surveillance under FISA, Congress designed a specialized court authorized to operate in secret – the FISC – to encourage rigorous oversight of activities conducted under FISA. Even its structure is deliberately assembled to serve that purpose. FISC judges are selected by the Chief Justice to serve for up to seven years, on staggered terms, which guarantees continuity and subject matter expertise on critical issues. In addition, the FISC is required by statute to be composed of judges drawn from at least seven of the U.S. judicial circuits. This statutory makeup ensures that the FISC includes judges from a diversity of backgrounds and geographic regions, rather than a court that might tend toward unanimity of thought or particular judicial sympathies.

That’s poppycock. The judges tend to be conservative. Importantly, the presiding judges are always from the DC district, not even just the DC neighborhood, such as MD or EDVA.

And remarkably, almost none of the judges on the FISC have presided over terrorism cases (Mosman is from OR, which because of a mosque that the FBI has basically lived in since 9/11, has had more than its share of terrorism cases). Which means the men and women sitting in Prettyman overseeing FISA often have little to no experience on how that data might affect an American’s right to a fair trial two years down the road.

I, like Gerstell, contest the claim that the FISC is generally a rubber stamp. But I do believe it should include more of the judges who actually oversee the trials that may result, because that experience would vastly improve understanding of the import of the review. At the very least, it should include the judges from EDVA who oversee the cases that go through the CIA-Pentagon District, which also includes a great many of the country’s espionage cases.

And most of all, the practice of having one judge, always from DC, review programmatic spying programs by herself should stop. While it is absolutely the case that judges have often shown great diligence, when a judge doesn’t show adequate diligence — as I believe Collyer did not this year — it may create problems that will persist for years.

The FISC is not a rubber stamp. But neither is the judicial oversight of 702 the consistently diligent oversight Gerstell claims.