“In the First Half of 2016” Signal Received an (Overbroad) Subpoena

This morning, the ACLU released a set of information associated with a subpoena served on Open Whisper Systems, the maker of Signal)\, for information associated with two phone numbers. As ACLU explained, OWS originally received the subpoena with a broad gag order. OWS was only able to turn over the account creation and last connection date for one of the phone numbers; the other account had no Signal account associated with it.


But OWS also got ACLU to go challenge the gag associated with it, which led to the release of today’s information. All the specific data associated with the request is redacted (as reflected above), though ACLU was able to say the request was served on OWS in the first half of the year.

There are two interesting details of this. First, as OWS/ACLU noted in their response to the government, the government asked for far more information than they can obtain with a subpoena, including:

  • subscriber name
  • subscriber address
  • subscriber telephone numbers
  • subscriber email addresses
  • subscriber method of payment
  • subscriber IP registration
  • IP history logs and addresses
  • subscriber account history
  • subscriber toll records
  • upstream and downstream providers
  • any associated accounts acquired through cookie data
  • any other contact information from inception to the present

As OWS/ACLU noted,

OWS notes that not all of those types of information can be appropriately requested with a subpoena. Under ECPA, the government can use a subpoena to compel disclosure of information from an electro1lic communications service provider onJy if that information falls within the categories listed at 18 U.S.C. § 2703(c)(2). For other types of information, the government must obtain a court order or search warrant. OWS objects to use of the grand-jury subpoena to request information beyond what is authorized in Section 2703(c)(2).

I’ve got an email in with ACLU, but I believe ECPA would not permit the government to obtain the IP, cookie, and upstream/downstream information. Effectively, the government tried to do here what they have done with NSLs, obtain information beyond the subscriber and toll record information permitted by statute.

ACLU says this is “the only one ever received by OWS,” presumably meaning it is the only subpoena the company has obtained, but it notes the government has other ways of gagging compliance, including with NSLs (it doesn’t mention Section 215 orders, but that would be included as well).

I do wonder whether in the latter case — with a request for daily compliance under Section 215 — Signal might be able to turn over more information, given that they would know prospectively the government was seeking the information. That’s particularly worth asking given that the District that issued this subpoena — Eastern District of Virginia — is the one that specializes in hacking and other spying cases (and is managing the prosecution of Edward Snowden, who happens to use Signal), which means they’d have the ability to use NSLs or individualized 215 orders for many of their cases.

Update: Here’s a Chris Soghoian post from 2013 that deals with some, but not all, of the scope issues pertaining to text messaging.

Marco Rubio Leaks that the Phone Dragnet Has Expanded to “A Large Number of Companies”

Last night, Marco Rubio went on Fox News to try to fear-monger over the phone dragnet again.

He repeated the claim that the AP also idiotically parroted uncritically — that the government can only get three years of records for the culprits in the San Bernardino attack.

In the case of these individuals that conducted this attack, we cannot see any phone records for the first three years in which — you can only see them up to three years. You’ll not be able to see the full five-year picture.

Again, he’s ignoring the AT&T backbone records that cover virtually all of Syed Rizwan Farook’s 28-year life that are available, that 215 phone dragnet could never have covered Tashfeen Malik’s time in Pakistan and Saudi Arabia, and that EO 12333 collection not only would cover Malik’s time before she came to the US, but would also include Farook’s international calls going back well over 5 years.

So he’s either an idiot or he’s lying on that point.

I’m more interested in what he said before that, because he appears to have leaked a classified detail about the ongoing USA Freedom dragnet: that they’ve been issuing orders to a “large and significant number of companies” under the new dragnet.

There are large and significant number of companies that either said, we are not going to collect records at all, we’re not going to have any records if you come asking for them, or we’re only going to keep them on average of 18 months. When the intelligence community or law enforcement comes knocking and subpoenas those records, in many cases there won’t be any records because some of these companies already said they’re not going to hold these records. And the result is that we will not be able in many cases to put together the full puzzle, the full picture of some of these individuals.

Let me clear: I’m certain this fact, that the IC has been asking for records from “a large number of companies,” is classified. For a guy trying to run for President as an uber-hawk, leaking such details (especially in appearance where he calls cleared people who leak like Edward Snowden “traitors”) ought to be entirely disqualifying.

But that detail is not news to emptywheel readers. As I noted in my analysis of the Intelligence Authorization the House just passed, James Clapper would be required to do a report 30 days after the authorization passes telling Congress which “telecoms” aren’t holding your call records for 18 months.

Section 307: Requires DNI to report if telecoms aren’t hoarding your call records

This adds language doing what some versions of USA Freedom tried to requiring DNI to report on which “electronic communications service providers” aren’t hoarding your call records for at least 18 months. He will have to do a report after 30 days listing all that don’t (bizarrely, the bill doesn’t specify what size company this covers, which given the extent of ECSPs in this country could be daunting), and also report to Congress within 15 days if any of them stop hoarding your records.

That there would be so many companies included Clapper would need a list surprised me, a bit. When I analyzed the House Report on the bill, I predicted USAF would pull in anything that might be described as a “call.”

We have every reason to believe the CDR function covers all “calls,” whether telephony or Internet, unlike the existing dragnet. Thus, for better and worse, far more people will be exposed to chaining than under the existing dragnet. It will catch more potential terrorists, but also more innocent people. As a result, far more people will be sucked into the NSA’s maw, indefinitely, for exploitation under all its analytical functions. This raises the chances that an innocent person will get targeted as a false positive.

At the same time, I thought that the report’s usage of “phone company” might limit collection to the providers that had been included — AT&T, Verizon, and Sprint — plus whatever providers cell companies aren’t already using their backbone, as well as the big tech companies that by dint of being handset manufacturers, that is, “phone” companies, could be obligated to turn over messaging records — things like iMessage and Skype metadata.

Nope. According to uber-hawk who believes leakers are traitors Marco Rubio, a “large number” of companies are getting requests.

From that I assume that the IC is sending requests to the entire universe of providers laid out by Verizon Associate General Counsel Michael Woods in his testimony to SSCI in 2014:

Screen Shot 2015-12-08 at 1.17.27 AM

Woods describes Skype (as the application that carried 34% of international minutes in 2012), as well as applications like iMessage and smaller outlets of particular interest like Signal as well as conferencing apps.

So it appears the intelligence committees, because they’re morons who don’t understand technology (and ignored Woods) got themselves in a pickle, because they didn’t realize that if you want full coverage from all “phone” communication, you’re going to have to go well beyond even AT&T, Verizon, Sprint, Apple, Microsoft, and Google (all of which have compliance departments and the infrastructure to keep such records). They are going to try to obtain all the call records, from every little provider, whether or not they actually have the means with which to keep and comply with such requests. Some — Signal might be among them — simply aren’t going to keep records, which is what Rubio is complaining about.

That’s a daunting task — and I can see why Rubio, if he believes that’s what needs to happen, is flustered by it. But, of course, it has nothing to do with the end of the old gap-filled dragnet. Indeed, that daunting problem arises because the new program aspires to be more comprehensive.

In any case, I’m grateful Rubio has done us the favor of laying out precisely what gaps the IC is currently trying to fill, but hawks like Rubio will likely call him a traitor for doing so.