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Brett Kavanaugh Was In the Loop on (Broader) Precursor to John Yoo’s Stellar Wind Memos

Patrick Leahy just had two key interactions with Brett Kavanaugh. In the first, he made it clear that Kavanaugh had received emails that Orrin Hatch staffer Manny Miranda stole from Democrats, including Leahy himself, in 2001 to 2003 during the period Kavanaugh worked at the White House, including on judicial nominations.

In the second, he asked Kavanaugh whether he still stood by his claim not to have been involved in the authorization for Stellar Wind, Bush’s illegal wiretap program. Kavanaugh almost immediately reverted to the dodge that George Bush used when denying he had ignored FISA — referring to just a subset of the program, for which the Bush White House invented the term “Terrorist Surveillance Program.

But Leahy persisted, asking specifically about this document (see page 13; significantly, Steven Bradbury left the document off a FOIA Vaughn Index about documents pertaining to the “TSP”).

From the context of Leahy’s questions, it’s clear that Kavanaugh was in the loop on this document, even if he wasn’t on the later documents. Leahy further made it clear that he couldn’t release the underlying documents making this clear because Chuck Grassley had deemed them Committee Confidential.

That’s important for several reasons. First, I’ve been told that the NSA started implementing Stellar Wind in response to a Finding (note, this document has the same date as the Gloves Come Off Memorandum of Notification that, according to Jane Meyer, included surveillance) before the October 4 OLC memo.

I’ve also been told that NSA conducted activities that are broader than what got covered by Yoo’s later memos under that Finding. That would make this Finding parallel to the July 13, 2002 John Yoo Fax under which CIA’s torture operated (which is how CIA claimed stuff that went beyond what was approved in the August 1, 2002 Bybee Memos still had DOJ authorization).

If that’s right, then Kavanaugh may not have been involved in authorizing illegal surveillance targeted at terrorists (and also potential culprits of the anthrax attack). But he would have been involved in authorizing even broader surveillance.

Leahy already asked to have the documents showing Kavanaugh’s involvement in this memo released publicly. He renewed that request today.

This underlying September 17 document has never been released, so we don’t know how extreme John Yoo got. But we may soon have the proof that Kavanaugh was involved in authorizing surveillance that goes beyond the scope of what we know got authorized as the Stellar Wind program.

Update: This story from Charlie Savage makes it clear that Kavanaugh was emailing John Yoo about the precursor to the memos authorizing Stellar Wind.

[I]n September 2001, after the terrorist attacks, Judge Kavanaugh engaged with a Justice Department lawyer about questions of warrantless surveillance at the time that lawyer wrote a memo an inspector general report later portrayed as the precursor to the Bush administration’s warrantless surveillance program.

Update: The email reads:

Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?

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.

Why I Left The Intercept: The Surveillance Story They Let Go Untold for 15 Months

The Intercept has a long, must-read story from James Risen about the government’s targeting of him for his reporting on the war on terror. It’s self-serving in many ways — there are parts of his telling of the Wen Ho Lee, the Valerie Plame, and the Jeffrey Sterling stories he leaves out, which I may return to. But it provides a critical narrative of DOJ’s pursuit of him. He describes how DOJ tracked even his financial transactions with his kids (which I wrote about here).

The government eventually disclosed that they had not subpoenaed my phone records, but had subpoenaed the records of people with whom I was in contact. The government obtained my credit reports, along with my credit card and bank records, and hotel and flight records from my travel. They also monitored my financial transactions with my children, including cash I wired to one of my sons while he was studying in Europe.

He also reveals that DOJ sent him a letter suggesting he might be a subject of the investigation into Stellar Wind.

But in August 2007, I found out that the government hadn’t forgotten about me. Penny called to tell me that a FedEx envelope had arrived from the Justice Department. It was a letter saying the DOJ was conducting a criminal investigation into “the unauthorized disclosure of classified information” in “State of War.” The letter was apparently sent to satisfy the requirements of the Justice Department’s internal guidelines that lay out how prosecutors should proceed before issuing subpoenas to journalists to testify in criminal cases.

[snip]

When my lawyers called the Justice Department about the letter I had received, prosecutors refused to assure them that I was not a “subject” of their investigation. That was bad news. If I were considered a “subject,” rather than simply a witness, it meant the government hadn’t ruled out prosecuting me for publishing classified information or other alleged offenses.

But a key part of the story lays out the NYT’s refusals to report Risen’s Merlin story and its reluctance — until Risen threatened to scoop him with his book — to publish the Stellar Wind one.

Glenn Greenwald is rightly touting the piece, suggesting that the NYT was corrupt for acceding to the government’s wishes to hold the Stellar Wind story. But in doing so he suggests The Intercept would never do the same.

That’s not correct.

One of two reasons I left The Intercept is because John Cook did not want to publish a story I had written — it was drafted in the content management system — about how the government uses Section 702 to track cyberattacks. Given that The Intercept thinks such stories are newsworthy, I’m breaking my silence now to explain why I left The Intercept.

I was recruited to work with First Look before it was publicly announced. The initial discussions pertained to a full time job, with a generous salary. But along the way — after Glenn and Jeremy Scahill had already gotten a number of other people hired and as Pierre Omidyar started hearing from friends that the effort was out of control — the outlet decided that they were going to go in a different direction. They’d have journalists — Glenn and Jeremy counted as that. And they’d have bloggers, who would get paid less.

At that point, the discussion of hiring me turned into a discussion of a temporary part time hire. I should have balked at that point. What distinguishes my reporting from other journalists — that I’m document rather than source-focused (though by no means exclusively), to say nothing of the fact that I was the only journalist who had read both the released Snowden documents and the official government releases — should have been an asset to The Intercept. But I wanted to work on the Snowden documents, and so I agreed to those terms.

There were a lot of other reasons why, at that chaotic time, working at The Intercept was a pain in the ass. But nevertheless I set out to write stories I knew the Snowden documents would support. The most important one, I believed, was to document how the government was using upstream Section 702 for cybersecurity — something it had admitted in its very first releases, but something that it tried to hide as time went on. With Ryan Gallagher’s help, I soon had the proof of that.

The initial hook I wanted to use for the story was how, in testimony to PCLOB, government officials misleadingly suggested it only used upstream to collect on things like email addresses.

Bob Litt:

We then target selectors such as telephone numbers or email addresses that will produce foreign intelligence falling within the scope of the certifications.

[snip]

It is targeted collection based on selectors such as telephone numbers or email addresses where there’s reason to believe that the selector is relevant to a foreign intelligence purpose.

[snip]

It is also however selector-based, i.e. based on particular phone numbers or emails, things like phone numbers or emails.

Raj De:

Selectors are things like phone numbers and email addresses.

[snip]

A term like selector is just an operational term to refer to something like an email or phone number, directive being the legal process by which that’s effectuated, and tasking being the sort of internal government term for how you start the collection on a particular selector.

[snip]

So all collection under 702 is based on specific selectors, things like phone numbers or email addresses.

Brad Wiegmann:

A selector would typically be an email account or a phone number that you are targeting.

[snip]

So that’s when we say selector it’s really an arcane term that people wouldn’t understand, but it’s really phone numbers, email addresses, things like that.

[snip]

So putting those cases aside, in cases where we just kind of get it wrong, we think the email account or the phone is located overseas but it turns out that that’s wrong, or it turns out that we think it’s a non-U.S. person but it is a  U.S. person, we do review every single one to see if that’s the case.

That PCLOB’s witnesses so carefully obscured the fact that 702 is used to collect cybersecurity and other IP-based or other code collection is important for several reasons. First, because collection on a chat room or an encryption key, rather than an email thread, has very different First Amendment implications than collecting on the email of a target. But particularly within the cybersecurity function, identifying foreignness is going to be far more difficult to do because cyberattacks virtually by definition obscure their location, and you risk collecting on victims (whether they are hijacked websites or emails, or actual theft victims) as well as the perpetrator.

Moreover, the distinction was particularly critical because most of the privacy community did not know — many still don’t — how NSA interpreted the word “facility,” and therefore was missing this entire privacy-impacting aspect of the program (though Jameel Jaffer did raise the collection on IP addresses in the hearing).

I had, before writing up the piece, done the same kind of iterative work (one, two, three) I always do; the last of these would have been a worthy story for The Intercept, and did get covered elsewhere. That meant I had put in close to 25 hours working on the hearing before I did other work tied to the story at The Intercept.

I wrote up the story and started talking to John Cook, who had only recently been brought in, about publishing it. He told me that the use of 702 with cyber sounded like a good application (it is!), so why would we want to expose it. I laid out why it would be questionably legal under the 2011 John Bates opinion, but in any case would have very different privacy implications than the terrorism function that the government liked to harp on.

In the end, Cook softened his stance against spiking the story. He told me to keep reporting on it. But in the same conversation, I told him I was no longer willing to work in a part time capacity for the outlet, because it meant The Intercept benefitted from the iterative work that was as much a part of my method as meetings with sources that reveal no big scoop. I told him I was no longer willing to work for The Intercept for free.

Cook’s response to that was to exclude me from the first meeting at which all Intercept reporters would be meeting. The two things together — the refusal to pay me for work and expertise that would be critical to Intercept stories, as well as the reluctance to report what was an important surveillance story, not to mention Cook’s apparent opinion I was not a worthy journalist — are why I left.

And so, in addition to losing the person who could report on both the substance and the policy of the spying that was so central to the Snowden archives, the story didn’t get told until 15 months later, by two journalists with whom I had previously discussed 702’s cybersecurity function specifically with regards to the Snowden archive. In the interim period, the government got approval for the Tor exception (which I remain the only reporter to have covered), an application that might have been scrutinized more closely had the privacy community been discussing the privacy implications of collecting location-obscured data in the interim.

As recently as November, The Intercept asked me questions about how 702 is actually implemented because I am, after all, the expert.

So by all means, read The Intercept’s story about how the NYT refused to report on certain stories. But know that The Intercept has not always been above such things itself. In 2014 it was reluctant to publish a story the NYT thought was newsworthy by the time they got around to publishing it 15 months later.

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]

The Problems with Rosemary Collyer’s Shitty Upstream 702 Opinion

This post took a great deal of time, both in this go-around, and over the years to read all of these opinions carefully. Please consider donating to support this work. 

It often surprises people when I tell them this, but in general, I’ve got a much better opinion of the FISA Court than most other civil libertarians. I do so because I’ve actually read the opinions. And while there are some real stinkers in the bunch, I recognize that the court has long been a source of some control over the executive branch, at times even applying more stringent standards than criminal courts.

But Rosemary Collyer’s April 26, 2017 opinion approving new Section 702 certificates undermines all the trust and regard I have for the FISA Court. It embodies everything that can go wrong with the court — which is all the more inexcusable given efforts to improve the court’s transparency and process since the Snowden leaks. I don’t think she understood what she was ruling on. And when faced with evidence of years of abuse (and the government’s attempt to hide it), she did little to rein in or even ensure accountability for those abuses.

This post is divided into three sections:

  • My analysis of the aspects of the opinion that deal with the upstream surveillance
    • Describing upstream searches
    • Refusing to count the impact
    • Treating the problem as exclusively about MCTs, not SCTs
    • Defining key terms
    • Failing to appoint (much less consider) appointing an amicus
    • Approving back door upstream searches
    • Imposing no consequences
  • A description of all the documents I Con the Record released — and more importantly, the more important ones it did not release (if you’re in the mood for weeds, start there)
  • A timeline showing how NSA tried to hide these violations from FISC

Opinion

The Collyer opinion deals with a range of issues: an expansion of data sharing with the National Counterterrorism Center, the resolution of past abuses, and the rote approval of 702 certificates for form and content.

But the big news from the opinion is that the NSA discovered it had been violating the terms of upstream FISA collection set in 2011 (after violating the terms of upstream FISA set in 2007-2008, terms which were set after Stellar Wind violated FISA since 2002). After five months of trying and failing to find an adequate solution to fix the problem, NSA proposed and Collyer approved new rules for upstream collection. The collection conducted under FISA Section 702 is narrower than it had been because NSA can no longer do “about” searches (which are basically searching for some signature in the “content” of a communication). But it is broader — and still potentially problematic — because NSA now has permission to do the back door searches of upstream collected data that they had, in reality, been doing all along.

My analysis here will focus on the issue of upstream collection, because that is what matters going forward, though I will note problems with the opinion addressing other topics to the extent they support my larger point.

Describing upstream searches

Upstream collection under Section 702 is the collection of communications identified by packet sniffing for a selector at telecommunication switches. As an example, if the NSA wants to collect the communications of someone who doesn’t use Google or Yahoo, they will search for the email address as it passes across circuits the government has access to (overseas, under EO 12333) or that a US telecommunications company runs (domestically, under 702; note many of the data centers at which this occurs have recently changed hands). Stellar Wind — the illegal warrantless wiretap program done under Bush — was upstream surveillance. The period in 2007 when the government tried to replace Stellar Wind under traditional FISA was upstream surveillance. And the Protect America Act and FISA Amendments Act have always included upstream surveillance as part of the mix, even as they moved more (roughly 90% according to a 2011 estimate) of the collection to US-based providers.

The thing is, there’s no reason to believe NSA has ever fully explained how upstream surveillance works to the FISC, not even in this most recent go-around (and it’s now clear that they always lied about how they were using and processing a form of upstream collection to get Internet metadata from 2004 to 2011). Perhaps ironically, the most detailed discussions of the technology behind it likely occurred in 2004 and 2010 in advance of opinions authorizing collection of metadata, not content, but NSA was definitely not fully forthcoming in those discussions about how it processed upstream data.

In 2011, the NSA explained (for the first time), that it was not just collecting communications by searching for a selector in metadata, but it was also collecting communications that included a selector as content. One reason they might do this is to obtain forwarded emails involving a target, but there are clearly other reasons. As a result of looking for selectors as content, NSA got a lot of entirely domestic communications, both in what NSA called multiple communication transactions (“MCTs,” basically emails and other things sent in bundles) and in single communication transactions (SCTs) that NSA didn’t identify as domestic, perhaps because they used Tor or a VPN or were routed overseas for some other reason. The presiding judge in 2011, John Bates, ruled that the bundled stuff violated the Fourth Amendment and imposed new protections — including the requirement NSA segregate that data — for some of the MCTs. Bizarrely, he did not rule the domestic SCTs problematic, on the logic that those entirely domestic communications might have foreign intelligence value.

In the same order, John Bates for the first time let CIA and NSA do something FBI had already been doing: taking US person selectors (like an email address) and searching through already collected content to see what communications they were involved in (this was partly a response to the 2009 Nidal Hasan attack, which FBI didn’t prevent in part because they were never able to pull up all of Hasan’s communications with Anwar al-Awlaki at once). Following Ron Wyden’s lead, these searches on US person content are often called “back door searches” for the way they let the government read Americans’ communications without a warrant. Because of the newly disclosed risk that upstream collection could pick up domestic communications, however, when Bates approved back door searches in 2011, he explicitly prohibited the back door searching of data collected via upstream searches. He prohibited this for all of it — MCTs (many of which were segregated from general repositories) and SCTs (none of which were segregated).

As I’ve noted, as early as 2013, NSA knew it was conducting “many” back door searches of upstream data. The reasons why it was doing so were stupid: in part, because to avoid upstream searches analysts had to exclude upstream repositories from the search query (basically by writing “NOT upstream” in a Boolean query), which also required them realizing they were searching on a US person selector. For whatever reason, though, no one got alarmed by reports this was going on — not NSA’s overseers, not FISC (which reportedly got notices of these searches), and not Congress (which got notices of them in Semiannual reports, which is how I knew they were going on). So the problem continued; I noted that this was a persistent problem back in August, when NSA and DOJ were still hiding the extent of the problems from FISC.

It became clear the problem was far worse than known, however, when NSA started looking into how it dealt with 704 surveillance. Section 704 is the authority the NSA uses to spy on Americans who are overseas. It basically amounts to getting a FISC order to use EO 12333 spying on an American. An IG Report completed in January 2016 generally found 704 surveillance to be a clusterfuck; as part of that, though, the NSA discovered that there were a whole bunch of 704 backdoor searches that weren’t following the rules, in part because they were collecting US person communications for periods outside of the period when the FISC had authorized surveillance (for 705(b) communication, which is the spying on Americans who are simply traveling overseas, this might mean NSA used EO 12333 to collect on an American when they were in the US). Then NSA’s Compliance people (OCO) did some more checking and found still worse problems.

And then the government — the same government that boasted about properly disclosing this to FISC — tried to bury it, basically not even telling FISC about how bad the problem was until days before Collyer was set to approve new certificates in October 2016. Once they did disclose it, Judge Collyer gave NSA first one and then another extension for them to figure out what went wrong. After 5 months of figuring, they were still having problems nailing it down or even finding where the data and searches had occurred. So, finally, facing a choice of ending “about” collection (only under 702 — they can still accomplish the very same thing under EO 12333) or ending searches of upstream data, they chose the former option, which Collyer approved with almost no accountability for all the problems she saw in the process.

Refusing to count the impact

I believe that (at least given what has been made public) Collyer didn’t really understand the issue placed before her. One thing she does is just operate on assumptions about the impact of certain practices. For example, she uses the 2011 number for the volume of total 702 collection accomplished using upstream collection to claim that it is “a small percentage of NSA’s overall collection of Internet communications under Section 702.” That’s likely still true, but she provides no basis for the claim, and it’s possible changes in communication — such as the increased popularity of Twitter — would change the mix significantly.

Similarly, she assumes that MCTs that involve “a non-U.S. person outside the United States” will be “for that reason [] less likely to contain a large volume of information about U.S. person or domestic communications.” She makes a similar assumption (this time in her treatment of the new NCTC raw take) about 702 data being less intrusive than individual orders targeted at someone in the US, “which often involve targets who are United States persons and typically are directed at persons in the United States.” In both of these, she repeats an assumption John Bates made in 2011 when he first approved back door searches using the same logic — that it was okay to provide raw access to this data, collected without a warrant, because it wouldn’t be as impactful as the data collected with an individual order. And the assumption may be true in both cases. But in an age of increasingly global data flows, that remains unproven. Certainly, with ISIS recruiters located in Syria attempting to recruit Americans, that would not be true at all.

Collyer makes the same move when she makes a critical move in the opinion, when she asserts that “NSA’s elimination of ‘abouts’ collection should reduce the number of communications acquired under Section 702 to which a U.S. person or a person in the United States is a party.” Again, that’s probably true, but it is not clear she has investigated all the possible ways Americans will still be sucked up (which she acknowledges will happen).

And she does this even as NSA was providing her unreliable numbers.

The government later reported that it had inadvertently misstated the percentage of NSA’s overall upstream Internet collection during the relevant period that could have been affected by this [misidentification of MCTs] error (the government first reported the percentage as roughly 1.3% when it was roughly 3.7%.

Collyer’s reliance on assumptions rather than real numbers is all the more unforgivable given one of the changes she approved with this order: basically, permitting the the agencies to conduct otherwise impermissible searches to be able to count how many Americans get sucked up under 702.  In other words, she was told, at length, that Congress wants this number (the government’s application even cites the April 22, 2106 letter from members of the House Judiciary Committee asking for such a number). Moreover, she was told that NSA had already started trying to do such counts.

The government has since [that is, sometime between September 26 and April 26] orally notified the Court that, in order to respond to these requests and in reliance on this provision of its minimization procedures, NSA has made some otherwise-noncompliant queries of data acquired under Section 702 by means other than upstream Internet collection.

And yet she doesn’t then demand real numbers herself (again, in 2011, Bates got NSA to do at least a limited count of the impact of the upstream problems).

Treating the problem as exclusively about MCTs, not SCTs

But the bigger problem with Collyer’s discussion is that she treats all of the problem of upstream collection as being about MCTs, not SCTs. This is true in general — the term single communication transaction or SCT doesn’t appear at all in the opinion. But she also, at times, makes claims about MCTs that are more generally true for SCTs. For example, she cites one aspect of NSA’s minimization procedures that applies generally to all upstream collection, but describes it as only applying to MCTs.

A shorter retention period was also put into place, whereby an MCT of any type could not be retained longer than two years after the expiration of the certificate pursuant to which it was acquired, unless applicable criteria were met. And, of greatest relevance to the present discussion, those procedures categorically prohibited NSA analysts from using known U.S.-person identifiers to query the results of upstream Internet collection. (17-18)

Here’s the section of the minimization procedures that imposed the two year retention deadline, which is an entirely different section than that describing the special handling for MCTs.

Similarly, Collyer cites a passage from the 2015 Hogan opinion stating that upstream “is more likely than other forms of section 702 collection to contain information of or concerning United States person with no foreign intelligence value” (see page 17). But that passage cites to a passage of the 2011 Bates opinion that includes SCTs in its discussion, as in this sentence.

In addition to these MCTs, NSA likely acquires tens of thousands more wholly domestic communications every year, given that NSA’s upstream collection devices will acquire a wholly domestic “about” SCT if it is routed internationally. (33)

Collyer’s failure to address SCTs is problematic because — as I explain here — the bulk of the searches implicating US persons almost certainly searched SCTs, not MCTs. That’s true for two reasons. First, because (at least according to Bates’ 2011 guesstimate) NSA collects (or collected) far more entirely domestic communications via SCTs than via MCTs. Here’s how Bates made that calculation in 2011 (see footnote 32).

NSA ultimately did not provide the Court with an estimate of the number of wholly domestic “about” SCTs that may be acquired through its upstream collection. Instead, NSA has concluded that “the probability of encountering wholly domestic communications in transactions that feature only a single, discrete communication should be smaller — and certainly no greater — than potentially encountering wholly domestic communications within MCTs.” Sept. 13 Submission at 2.

The Court understands this to mean that the percentage of wholly domestic communications within the universe of SCTs acquired through NSA’s upstream collection should not exceed the percentage of MCTs within its statistical sample. Since NSA found 10 MCTs with wholly domestic communications within the 5,081 MCTs reviewed, the relevant percentage is .197% (10/5,081). Aug. 16 Submission at 5.

NSA’s manual review found that approximately 90% of the 50,440 transactions in the same were SCTs. Id. at 3. Ninety percent of the approximately 13.25 million total Internet transactions acquired by NSA through its upstream collection during the six-month period, works out to be approximately 11,925,000 transactions. Those 11,925,000 transactions would constitute the universe of SCTs acquired during the six-month period, and .197% of that universe would be approximately 23,000 wholly domestic SCTs. Thus, NSA may be acquiring as many as 46,000 wholly domestic “about” SCTs each year, in addition to the 2,000-10,000 MCTs referenced above.

Assuming some of this happens because people use VPNs or Tor, then the amount of entirely domestic communications collected via upstream would presumably have increased significantly in the interim period. Indeed, the redaction in this passage likely hides a reference to technologies that obscure location.

If so, it would seem to acknowledge NSA collects entirely domestic communications using upstream that obscure their location.

The other reason the problem is likely worse with SCTs is because — as I noted above — no SCTs were segregated from NSA’s general repositories, whereas some MCTs were supposed to be (and in any case, in 2011 the SCTs constituted by far the bulk of upstream collection).

Now, Collyer’s failure to deal with SCTs may or may not matter for her ultimate analysis that upstream collection without “about” collection solves the problem. Collyer limits the collection of abouts by limiting upstream collection to communications where “the active user is the target of acquisition.” She describes “active user” as “the user of a communication service to or from whom the MCT is in transit when it is acquired (e.g., the user of an e-mail account [half line redacted].” If upstream signatures are limited to emails and texts, that would seem to fix the problem. But upstream wouldn’t necessarily be limited to emails and texts — upstream collection would be particularly valuable for searching on other kinds of selectors, such as an encryption key, and there may be more than one person who would use those other kinds of selectors. And when Collyer says, “NSA may target for acquisition a particular ‘selector,’ which is typically a facility such as a telephone number or e-mail address,” I worry she’s unaware or simply not ensuring that NSA won’t use upstream to search for non-typical signatures that might function as abouts even if they’re not “content.” The problem is treating this as a content/metadata distinction, when “metadata” (however far down in the packet you go) could include stuff that functions like an about selector.

Defining key terms terms

Collyer did define “active user,” however inadequately. But there are a number of other terms that go undefined in this opinion. By far the funniest is when Collyer notes that the government’s March 30 submission promises to sequester upstream data that is stored in “institutionally managed repositories.” In a footnote, she notes they don’t define the term. Then she pretty much drops the issue. This comes in an opinion that shows FBI data has been wandering around in repositories it didn’t belong and indicating that NSA can’t identify where all its 704 data is. Yet she’s told there is some other kind of repository and she doesn’t make a point to figure out what the hell that means.

Later, in a discussion of other violations, Collyer introduces the term “data object,” which she always uses in quotation marks, without explaining what that is.

Failing to appoint (or even consider) amicus

In any case, this opinion makes clear that what should have happened, years ago, is a careful discussion of how packet sniffing works, and where a packet collected by a backbone provider stops being metadata and starts being content, and all the kinds of data NSA might want to and does collect via domestic packet sniffing. (They collect far more under EO 12333.) As mentioned, some of that discussion may have taken place in advance of the 2004 and 2010 opinions approving upstream collection of Internet metadata (though, again, I’m now convinced NSA was always lying about what it would take to process that data). But there’s no evidence the discussion has ever happened when discussing the collection of upstream content. As a result, judges are still using made up terms like MCTs, rather than adopting terms that have real technical meaning.

For that reason, it’s particularly troubling Collyer didn’t use — didn’t even consider using, according to the available documentation — an amicus. As Collyer herself notes, upstream surveillance “has represented more than its share of the challenges in implementing Section 702” (and, I’d add, Internet metadata collection).

At a minimum, when NSA was pitching fixes to this, she should have stopped and said, “this sounds like a significant decision” and brought in amicus Amy Jeffress or Marc Zwillinger to help her think through whether this solution really fixes the problem. Even better, she should have brought in a technical expert who, at a minimum, could have explained to her that SCTs pose as big a problem as MCTs; Steve Bellovin — one of the authors of this paper that explores the content versus metadata issue in depth — was already cleared to serve as the Privacy and Civil Liberties Oversight Board’s technical expert, so presumably could easily have been brought into consult here.

That didn’t happen. And while the decision whether or not to appoint an amicus is at the court’s discretion, Collyer is obligated to explain why she didn’t choose to appoint one for anything that presents a significant interpretation of the law.

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;

For what it’s worth, my guess is that Collyer didn’t want to extend the 2015 certificates (as it was, she didn’t extend them as long as NSA had asked in January), so figured there wasn’t time. There are other aspects of this opinion that make it seem like she just gave up at the end. But that still doesn’t excuse her from explaining why she didn’t appoint one.

Instead, she wrote a shitty opinion that doesn’t appear to fully understand the issue and that defers, once again, the issue of what counts as content in a packet.

Approving back door upstream searches

Collyer’s failure to appoint an amicus is most problematic when it comes to her decision to reverse John Bates’ restriction on doing back door searches on upstream data.

To restate what I suggested above, by all appearances, NSA largely blew off the Bates’ restriction. Indeed, Collyer notes in passing that, “In practice, however, no analysts received the requisite training to work with the segregated MCTs.” Given the persistent problems with back door searches on upstream data, it’s hard to believe NSA took that restriction seriously at all (particularly since it refused to consider a technical fix to the requirement to exclude upstream from searches). So Collyer’s approval of back door searches of upstream data is, for all intents and purposes, the sanctioning of behavior that NSA refused to stop, even when told to.

And the way in which she sanctions it is very problematic.

First, in spite of her judgment that ending about searches would fix the problems in (as she described it) MCT collection, she nevertheless laid out a scenario (see page 27) where an MCT would acquire an entirely domestic communication.

Having laid out that there will still be some entirely domestic comms in the collection, Collyer then goes on to say this:

The Court agrees that the removal of “abouts” communications eliminates the types of communications presenting the Court the greatest level of constitutional and statutory concern. As discussed above, the October 3, 2011 Memorandum Opinion (finding the then-proposed NSA Minimization Procedures deficient in their handling of some types of MCTs) noted that MCTs in which the target was the active user, and therefore a party to all of the discrete communications within the MCT, did not present the same statutory and constitutional concerns as other MCTs. The Court is therefore satisfied that queries using U.S.-person identifiers may now be permitted to run against information obtained by the above-described, more limited form of upstream Internet collection, subject to the same restrictions as apply to querying other forms of Section

This is absurd! She has just laid out that there will be some exclusively domestic comms in the collection. Not as much as there was before NSA stopped collecting abouts, but it’ll still be there. So she’s basically permitting domestic communications to be back door searched, which, if they’re found (as she notes), might be kept based on some claim of foreign intelligence value.

And this is where her misunderstanding of the MCT/SCT distinction is her undoing. Bates prohibited back door searching of all upstream data, both that supposedly segregated because it was most likely to have unrelated domestic communications in it, and that not segregated because even the domestic communications would have intelligence value. Bates’ specific concerns about MCTs are irrelevant to his analysis about back door searches, but that’s precisely what Collyer cites to justify her own decision.

She then applies the 2015 opinion, with its input from amicus Amy Jeffress stating that NSA back door searches that excluded upstream collection were constitutional, to claim that back door searches that include upstream collection would meet Fourth Amendment standards.

The revised procedures subject NSA’s use of U.S. person identifiers to query the results of its newly-limited upstream Internet collection to the same limitations and requirements that apply to its use of such identifiers to query information acquired by other forms of Section 702 collection. See NSA Minimization Procedures § 3(b)(5). For that reason, the analysis in the November 6, 2015 Opinion remains valid regarding why NSA’s procedures comport with Fourth Amendment standards of reasonableness with regard to such U.S. person queries, even as applied to queries of upstream Internet collection. (63)

As with her invocation of Bates’ 2011 opinion, she applies analysis that may not fully apply to the question — because it’s not actually clear that the active user restriction really equates newly limited upstream collection to PRISM collection — before her as if it does.

Imposing no consequences

The other area where Collyer’s opinion fails to meet the standards of prior ones is in resolution of the problem. In 2009, when Reggie Walton was dealing with first phone and then Internet dragnet problems, he required the NSA to do complete end-to-end reviews of the programs. In the case of the Internet dragnet, the report was ridiculous (because it failed to identify that the entire program had always been violating category restrictions). He demanded IG reports, which seems to be what led the NSA to finally admit the Internet dragnet program was broken. He shut down production twice, first of foreign call records, from July to September 2009, then of the entire Internet dragnet sometime in fall 2009. Significantly, he required the NSA to track down and withdraw all the reports based on violative production.

In 2010 and 2011, dealing with the Internet dragnet and upstream problems, John Bates similarly required written details (and, as noted, actual volume of the upstream problem). Then, when the NSA wanted to retain the fruits of its violative collection, Bates threatened to find NSA in violation of 50 USC 1809(a) — basically, threatened to declare them to be conducting illegal wiretapping — to make them actually fix their prior violations. Ultimately, NSA destroyed (or said they destroyed) their violative collection and the fruits of it.

Even Thomas Hogan threatened NSA with 50 USC 1809(a) to make them clean up willful flouting of FISC orders.

Not Collyer. She went from issuing stern complaints (John Bates was admittedly also good at this) back in October…

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.”

… to basically reauthorizing 702 before using the reauthorization process as leverage over NSA.

Of course, NSA still needs to take all reasonable and necessary steps to investigate and close out the compliance incidents described in the October 26, 2016 Notice and subsequent submissions relating to the improper use of U.S.-person identifiers to query terms in NSA upstream data. The Court is approving on a going-foward basis, subject to the above-mentioned requirements, use of U.S.-person identifiers to query the results of a narrower form of Internet upstream collection. That approval, and the reasoning that supports it, by no means suggest that the Court approves or excuses violations that occurred under the prior procedures.

That is particularly troubling given that there is no indication, even six months after NSA first (belatedly) disclosed the back door search problems to FISC, that it had finally gotten ahold of the problem.

As Collyer noted, weeks before it submitted its new application, NSA still didn’t know where all the upstream data lived. “On March 17, 2017, the government reported that NSA was still attempting to identify all systems that store upstream data and all tools used to query such data.” She revealed that  some of the queries of US persons do not interact with “NSA’s query audit system,” meaning they may have escaped notice forever (I’ve had former NSA people tell me even they don’t believe this claim, as seemingly nothing should be this far beyond auditability). Which is presumably why, “The government still had not ascertained the full range of systems that might have been used to conduct improper U.S.-person queries.” There’s the data that might be in repositories that weren’t run by NSA, alluded to above. There’s the fact that on April 7, even after NSA submitted its new plan, it was discovering that someone had mislabeled upstream data as PRISM, allowing it to be queried.

Here’s the thing. There seems to be no way to have that bad an idea of where the data is and what functions access the data and to be able to claim — as Mike Rogers, Dan Coats, and Jeff Sessions apparently did in the certificates submitted in March that didn’t get publicly released — to be able to fulfill the promises they made FISC. How can the NSA promise to destroy upstream data at an accelerated pace if it admits it doesn’t know where it is? How can NSA promise to implement new limits on upstream collection if that data doesn’t get audited?

And Collyer excuses John Bates’ past decision (and, by association, her continued reliance on his logic to approve back door searches) by saying the decision wasn’t so much the problem, but the implementation of it was.

When the Court approved the prior, broader form of upstream collection in 2011, it did so partly in reliance on the government’s assertion that, due to some communications of foreign intelligence interest could only be acquired by such means. $ee October 3, 2011 Memorandum Opinion at 31 & n. 27, 43, 57-58. This Opinion and Order does not question the propriety of acquiring “abouts” communications and MCTs as approved by the Court since 2011, subject to the rigorous safeguards imposed on such acquisitions. The concerns raised in the current matters stem from NSA’s failure to adhere fully to those safeguards.

If problems arise because NSA has failed, over 6 years, to adhere to safeguards imposed because NSA hadn’t adhered to the rules for the 3 years before that, which came after NSA had just blown off the law itself for the 6 years before that, what basis is there to believe they’ll adhere to the safeguards she herself imposed, particularly given that unlike her predecessors in similar moments, she gave up any leverage she had over the agency?

The other thing Collyer does differently from her predecessors is that she lets NSA keep data that arose from violations.

Certain records derived from upstream Internet communications (many of which have been evaluated and found to meet retention standards) will be retained by NSA, even though the underlying raw Internet transactions from which they are derived might be subject to destruction. These records include serialized intelligence reports and evaluated and minimized traffic disseminations, completed transcripts and transcriptions of Internet transactions, [redacted] information used to support Section 702 taskings and FISA applications to this Court, and [redacted].

If “many” of these communications have been found to meet retention standards, it suggests that “some” have not. Meaning they should never have been retained in the first place. Yet Collyer lets an entire stream of reporting — and the Section 702 taskings that arise from that stream of reporting — remain unrecalled. Effectively, even while issuing stern warning after stern warning, by letting NSA keep this stuff, she is letting the agency commit violations for years without any disincentive.

Now, perhaps Collyer is availing herself of the exception offered in Section 301 of the USA Freedom Act, which permits the government to retain illegally obtained material if it is corrected by subsequent minimization procedures.

Exception.–If the Government corrects any deficiency identified by the order of the Court under subparagraph (B), the Court may permit the use or disclosure of information obtained before the date of the correction under such minimization procedures as the Court may approve for purposes of this clause.

Except that she doesn’t cite that provision, nor is there any evidence deficiencies have been corrected.

Which should mean, especially given the way Collyer depends on the prior opinions of Bates and Hogan, she should likewise rely on their practice of treating this as a potential violation of 50 USC 1809(a) to ensure the harm to Americans doesn’t persist. She did no such thing, basically sanctioning the illegal use of back door searches to spy on Americans.

Up until this opinion, I was generally willing to argue for the efficacy of the FISC (even while arguing the job could and should be devolved to district courts for more rigorous testing of the law). But not now. This opinion discredits the entire court.

Last April when Collyer became presiding FISC judge, I pointed to what I considered Rosemary Collyer’s worst FISC decision, which was actually a District Court opinion that permitted the NSA to keep aspects of its upstream problems secret from EFF, which is suing over those same issues. I predicted then that, “I fear she will be a crummy presiding judge, making the FISC worse than it already is.”

In my opinion — as a civil libertarian who has been willing to defend the FISC in the past — with this opinion she has done real damage to any credibility or legitimacy the FISC has.

Update: Latter for former fixed in which choice the Administration picked, h/t CS.

The Documents

Here’s what I Con the Record released.

January 7, 2016 IG Report

This heavily redacted report describes a review of NSA’s compliance with 704/705b of Title VII of FISA, the authority NSA uses to spy on Americans who are located overseas (see my report on the 704 problems here). It was conducted from March through August 2015 and reviewed data from January through March 2015. It basically showed there were no compliance mechanisms in place for 704/705b, and NSA couldn’t even reliably identify the queries that had been conducted under the authority. This report is relevant to the reauthorization, because Americans targeted in individual FISA orders are approved (and almost certainly tasked) by default for 702 back door searches. Though the report was obviously done well before the 702 certifications were submitted on September 26, was not noticed to FISC until days before the court would otherwise have approved the certifications in conjunction with the upstream problems.

September 26, 2016 702 Certification Package 

ICTR released much if not all of the materials submitted for 702 reauthorization on September 2016. The package includes:

Certification cover filing: This is basically the application, which the metadata reveals is actually two parts merged. It describes the changes to the certificates from the past year, most notably a request to share raw 702 data directly from NSA or FBI to NCTC, some tweaks to the FBI targeting and minimization procedures, and permission for NSA, FBI, and CIA to deviate from minimization procedures to develop a count of how many US persons get collected under 702.

The report also describes how the government has fulfilled reporting requirements imposed in 2015. Several of the reports pertain to destroying data it should not have had. The most interesting one is the report on how many criminal queries of 702 data FBI does that result in the retrieval and review of US person data; as I note in this post, the FBI really didn’t (and couldn’t, and can’t, given the oversight regime currently in place) comply with the intent of the reporting requirement.

Very importantly: this application did not include any changes to upstream collection, in large part because NSA did not tell FISC (more specifically, Chief Judge Rosemary Collyer) about the problems they had always had preventing queries of upstream data in its initial application. In NSA’s April statement on ending upstream about collection, it boasts, “Although the incidents were not willful, NSA was required to, and did, report them to both Congress and the FISC.” But that’s a load of horse manure: in fact, NSA and DOJ sat on this information for months. And even with this disclosure, because the government didn’t release the later application that did describe those changes, we don’t actually get to see the government’s description of the problems; we only get to see Collyer’s (I believe mis-) understanding of them.

Procedures and certifications accepted: The September 26 materials also include the targeting and minimization procedures that were accepted in the form in which they were submitted on that date. These include:

Procedures and certificates not accepted: The materials include the documents that the government would have to change before approval on April 26. These include,

Note, I include the latter two items because I believe they would have had to be resubmitted on March 30, 2017 with the updated NSA documents and the opinion makes clear a new DIRNSA affidavit was submitted (see footnote 10), but the release doesn’t give us those. I have mild interest in that, not least because the AG/DNI one would be the first big certification to FISC signed by Jeff Sessions and Dan Coats.

October 26, 2016 Extension

The October 26 extension of 2015’s 702 certificates is interesting primarily for its revelation that the government waited until October 24, 2016 to disclose problems that had been simmering since 2013.

March 30, 2017 Submissions

The release includes two of what I suspect are at least four items submitted on March 30, which are:

April 26, 2017 Opinion

This is the opinion that reauthorized 702, with the now-restricted upstream search component. My comments below largely lay out the problems with it.

April 11, 2017 ACLU Release

I Con the Record also released the FOIAed documents released earlier in April to ACLU, which are on their website in searchable form here. I still have to finish my analysis of that (which includes new details about how the NSA was breaking the law in 2011), but these posts cover some of those files and are relevant to these 702 changes:

Importantly, the ACLU documents as a whole reveal what kinds of US persons are approved for back door searches at NSA (largely, but not exclusively, Americans for whom an individual FISA order has already been approved, importantly including 704 targets, as well as more urgent terrorist targets), and reveal that one reason NSA was able to shut down the PRTT metadata dragnet in 2011 was because John Bates had permitted them to query the metadata from upstream collection.

Not included

Given the point I noted above — that the application submitted on September 26 did not address the problem with upstream surveillance and that we only get to see Collyer’s understanding of it — I wanted to capture the documents that should or do exist that we haven’t seen.

  • October 26, 2016 Preliminary and Supplemental Notice of Compliance Incidents Regarding the Querying of Section 702-Acquired Data
  • January 3, 2017: Supplemental Notice of Compliance Incidents Regarding the Querying of Section 702-Acquired Data
  • NSA Compliance Officer (OCO) review covering April through December 2015
  • OCO review covering April though July of 2016
  • IG Review covering first quarter of 2016 (22)
  • January 27, 2017: Letter In re: DNI/AG 702(g) Certifications asking for another extension
  • January 27, 2017: Order extending 2015 certifications (and noting concern with “important safeguards for interests protected by the Fourth Amendment”)
  • March 30, 2017: Amendment to [Certificates]; includes (or is) second explanatory memo, referred to as “March 30, 2017 Memorandum” in Collyer’s opinion; this would include a description of the decision to shut down about searches
  • March 30, 2017 AG/DNI Certification (?)
  • March 30, 2017 DIRNSA Certification
  • April 7, 2017 preliminary notice

Other Relevant Documents

Because they’re important to this analysis and get cited extensively in Collyer’s opinion, I’m including:

Timeline

November 30, 2013: Latest possible date at which upstream search problems identified

October 2014: Semiannual Report shows problems with upstream searches during period from June 1, 2013 – November 30, 2013

October 2014: SIGINT Compliance (SV) begins helping NSD review 704/705b compliance

June 2015: Semiannual Report shows problems with upstream searches during period from December 1, 2013 – May 31, 2014

December 18, 2015: Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA

January 7, 2016: IG Report on controls over §§704/705b released

January 26, 2016: Discovery of error in upstream collection

March 9, 2016: FBI releases raw data

March 18, 2016: Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA

May and June, 2016: Discovery of querying problem dating back to 2012

May 17, 2016: Opinion relating to improper retention

June 17, 2016: Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA

August 24, 2016: Pre-tasking review update

September 16, 2016: Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA

September 26, 2016: Submission of certifications

October 4, 2016: Hearing on compliance issues

October 24, 2016: Notice of compliance errors

October 26, 2016: Formal notice, with hearing; FISC extends the 2015 certifications to January 31, 2017

November 5, 2016: Date on which 2015 certificates would have expired without extension

December 15, 2016: James Clapper approves EO 12333 Sharing Procedures

December 16, 2016: Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA

December 29, 2016: Government plans to deal with indefinite retention of data on FBI systems

January 3, 2017: DOJ provides supplemental report on compliance programs; Loretta Lynch approves new EO 12333 Sharing Procedures

January 27, 2017: DOJ informs FISC they won’t be able to fully clarify before January 31 expiration, ask for extension to May 26; FISC extends to April 28

January 31, 2007: First extension date for 2015 certificates

March 17, 2017:Quarterly Report to the FISC Concerning Compliance Matters Under Section 702 of FISA; Probable halt of upstream “about” collection

March 30, 2016: Submission of amended NSA certifications

April 7, 2017: Preliminary notice of more query violations

April 28, 2017: Second extension date for 2015 certificates

May 26, 2017: Requested second extension date for 2015 certificates

June 2, 2017: Deadline for report on outstanding issues

In 2010, DOJ Was Stalling Gang of Four Member Silvestre Reyes Over (Probably) Common Commercial Services Memo

As far as the public record shows, Ron Wyden first started complaining about the Common Commercial Service OLC Memo in late 2010, in a letter with Russ Feingold written “over two years” before January 14, 2013. As I’ve written, John Yoo wrote the memo on May 30, 2003, as one of the last things he did before he left the Office of Legal Council. It seems to have something to do with both the Stellar Wind program and cybersecurity, and apparently deals with agreements with private sector partners. At least one agency has operated consistently with the memo (indeed, Ron Wyden’s secret memo submitted to the court probably says the memo was implemented) but the government claims that doesn’t mean that agency relied on the memo and so the ACLU can’t have it in its FOIA lawsuit.

According to a letter liberated by Jason Leopold, however, someone in Congress was raising concerns about a memo — which is probably the same one — even before Wyden and Feingold were. On June 30, 2010, then Chair of the House Intelligence Committee Silvestre Reyes wrote Attorney General Holder a letter about a May 30, 2003 memo. On October 5, Ron Weich wrote Reyes,

We have conferred with Committee staff about your letter and your concerns regarding the potential implications of the opinion. We appreciate your concerns and your recognition of the complexities of the issues involved in our consideration of your request. We will let you know as soon as we are in a position to provide additional information.

In other words, three months after one of the top ranking intelligence overseers in government raised concerns about the memo, DOJ wrote back saying they weren’t yet “in a position to provide additional information.”

That seems like a problem to me.

It also seems to be another data point suggesting that — whatever the government did back in 2003, after Yoo wrote the memo — it was being discussed more generally in 2010, possibly with an eye to implement it.

Update: On reflection, I may have overstated how sure we can be that this May 30 opinion is the same opinion. I’ve adjusted the post accordingly.

 

Did FBI Stall an IG Review of Innocent Americans Sucked Up in the Dragnet?

I mentioned earlier that the FBI withheld information on the Bureau’s use of phone dragnet tippers from DOJ’s Inspector General long enough to make any review unusable for Congress’ consideration before it passed USA F-ReDux.

That’s important because of this passage from the Stellar Wind IG Report.

Another consequence of the Stellar Wind program and the FBI’s approach to assigning leads was that many threat assessments were conducted on individuals located in the United States, including U.S. persons, who were determined not to have any nexus to terrorism or represent a threat to national security.402 These assessments also caused the FBI to collect and retain a significant amount of personal identification about the users of tipped telephone numbers and e-mail addresses. In addition to an individual’s name and home address, such information could include where the person worked, records of foreign travel, and the identity of family members. The results of these threat assessments and the information that was collected generally were reported in communications to FBI Headquarters and uploaded into FBI databases.

The FBI’s collection of U.S. person information in this manner is ongoing under the NSA’s FISA-authorized bulk metadata collection. To the extent leads derived from this program generate results similar to those under Stellar Wind, the FBI will continue to collect and retain a significant amount of information about individuals in the United States, including U.S. persons, that do not have a nexus to terrorism or represent a threat to national security.

We recommend that as part of the [redacted] project, the Justice Department’s National Security Division (NSD), working with the FBI, should collect addresses disseminated to FBI field offices that are assigned as Action leads and that require offices to conduct threat assessments. The information compiled should include whether individuals identified in threat assessments are U.S. or non-U.S. persons and whether the threat assessments led to the opening of preliminary or full national security investigations. With respect to threat assessments that conclude that users of tipped telephone numbers or e-mail addresses are not involved in terrorism and are not threats to national security, the Justice Department should take steps to track the quantity and nature of U.S. person information collected and how the FBI retains and utilizes this information. This will enable the Justice Department and entities with oversight responsibilities, including the OIG and congressional committees, to assess the impact this intelligence program has on the privacy interests of U.S. persons and to consider whether, and for how long, such information should be retained. (PDF 666-7/329-330)

After a preceding section talking about how many of the tippers to FBI — which, after all, may be two hops away from someone of interest — weren’t all that useful, DOJ’s IG (the current IG, Michael Horowitz’s predecessor, Glenn Fine) noted how many Americans with no nexus to terrorism nevertheless have their names, home addresses, workplace, travel records, and family members’ identities collected and stored in an FBI database, potentially for decades. And, we now know, those assessments would include a search for any previously-collected content, which the FBI could read without a warrant.

Fine recommended that FBI begin to track what happens with the Americans sucked up in PATRIOT-authorized dragnets.

But we can be virtually certain FBI chose not to heed that recommendation, because it hasn’t heeded similar recommendations with NSLs, and because FBI refuses to track any of their other FISA-related activities.

And Horowitz has been very disciplined in following up on previous IG recommendations in reports that follow up on like topics, so that is likely one of the things he planned to investigate with his focus on the “receiving, processing, and disseminating [of] leads” from the phone dragnet.

The review will examine the FBI’s procedures for receiving, processing, and disseminating leads the NSA develops from the metadata, as well as any changes that have been made to these procedures over time. The review will also examine how FBI field offices respond to leads and the scope and type of information field offices collect as a result of any investigative activity that is initiated. In addition, the review will examine the role the leads have had in FBI counterterrorism efforts

Frankly, because NSA had to curtail so much of what they were doing with the phone dragnet in 2009, there should be fewer Americans sucked up in the dragnet now then there was when Fine did his Stellar Wind review in 2008-09. Though if FBI continued to require an assessment of every new identifier, it would still result in a lot of innocent Americans having their lives unpacked and stored for 30 years by the FBI.

But those numbers will likely be higher — potentially significantly higher — under USA F-ReDux, because any given query will draw off of more kinds of information. More importantly, FBI is exempted from counting the queries it does on any database of call detail records obtained under the new CDR function.

(C) the number of search terms that included information concerning a United States person that were used to query any database of call detail records obtained through the use of such orders;

[snip]

(A) FEDERAL BUREAU OF INVESTIGATION.—Paragraphs (2)(A), (2)(B), and (5)(C) of subsection (b) shall not apply to information or records held by, or queries conducted by, the Federal Bureau of Investigation.

This strongly suggests the data will come in through the FBI, be treated under FBI’s far more permissive (than NSA’s) minimization procedures, and searched regularly. Which likely means the privacy implications of innocent Americans sucked up into the dragnet will be far worse. And all that’s before any of the analysis NSA will do on these query results.

There was no public consideration of the privacy impact of the innocent Americans sucked in under the CDR function during the USA F-ReDux debate (though I wrote about it repeatedly).

But if DOJ’s IG intended to include past recommendations in its review of what FBI does with the phone dragnet data — which would be utterly consistent with past practice — that’s one of the things this review, the review FBI stalled beyond the point when it could be useful, would have focused on.

 

In 2003, OLC Doubled Down on Unlimited (de)Classification Authority for the President

One of the tactics those in DOJ attempted to use in 2004 to put some controls on Stellar Wind, it appears from the DOJ IG Report, was to point to legal requirements to inform Congress (for example, to inform Congress that the Attorney General had decided not to enforce particular laws), which might have led to enough people in Congress learning of the program to impose some limits on it. For example, Robert Mueller apparently tried to get the Executive to brief the Judiciary Committees, in addition to the Gang of Four, about the program.

On March 16, 2004 Gonzales wrote a letter to Jim Comey in response to DOJ’s efforts to force the Administration to follow the law. Previous reporting revealed that Gonzales told Comey he misunderstood the White House’s interest in DOJ’s opinion.

Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.

This appears to have led directly to Comey drafting his resignation letter.

But what previous reporting didn’t make clear was that Gonzales also claimed the Administration had unfettered authority to decide whether or not to share classified information (and that, implicitly, it could blow off statutory Congressional reporting requirements).

Gonzales letter also addressed Comey’s comments about congressional notification. Citing Department of the Navy v. Egan, 484 U.S. 518 (1988) and a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, “including authority to determine the extent to which disclosure may be made outside the Executive Branch.” (TS//STLW//SI/OC/NF) [PDF 504]

I’m as interested in this as much for the timing of the memo — 2003 — as the indication that the Executive asserted the authority to invoke unlimited authority over classification as a way to flout reporting mandates (both with regards to Stellar Wind, but the implication is, generally as well).

The most likely time frame for this decision would be around March 25, 2003, when President Bush was also rewriting the Executive Order on classification (this EO is most famous because it gave the Vice President new authorities over classifying information). If that’s right, it would confirm that Bush’s intent with the EO (and the underlying OLC memo) was to expand the ability to invoke classification for whatever reasons.

And if that OLC opinion was written around the time of the March 2003 EO, it would mean it was on the books (and, surely, known by David Addington) when he counseled Scooter Libby in July 2003 he could leak whatever it was Dick Cheney told him to leak to Judy Miller, up to and including Valerie Plame’s identity.

But I’m also interested that this footnote was classified under STLW, the Stellar Wind marking. That may not be definitive, especially given the innocuous reference to the OLC memo. But it’s possible that means the 2003 opinion — the decision to share or not share classified information according to the whim of the President — was tied to Stellar Wind. That would be interesting given that George Tenet and John Yoo were declaring Iraq and their claimed conspirators in the US were terrorists permissible for surveillance around the same time.

Finally, I assume this OLC memo, whatever it says, is still on the books. And given how it was interpreted in the past — that OLC could simply ignore reporting mandates — and that the government continued to flout reporting mandates until at least 2010, even those tied specifically to surveillance, I assume that the Executive still believes it can use a claimed unlimited authority over classification to trump legally mandated reporting requirements.

That’s worth keeping in mind as we debate a bill, USA F-ReDux, celebrated, in part, for its reporting requirements.

OLC Lowers Its Standards for Retroactive Legal Reviews

There’s an interesting passage in the DOJ IG discussion of Jack Goldsmith’s efforts to rewrite the Stellar Wind OLC memos (PDF 456).

The first passage describes Jim Comey permitting a lower standard of review to apply for activities already in process.

In explaining the rationale for the revise opinion, Comey described to the OIG his view of two approaches or standards that could be used to undertake legal analysis of government action. If the government is contemplating taking a particular action, OLC’s legal analysis will be based on a “best view of the law” standard. However, if the government already is taking the action, the analysis should instead focus on whether reasonable legal arguments can be made to support the continuation of the conduct.137

137 Goldsmith emphasized to us that this second situation almost never presents itself, and that OLC rarely is asked to furnish legal advise on an ongoing program because the pressure “to say ‘yes’ to the President” invariably would result in applying a lower standard of review. Goldsmith stated that OLC’s involvement in Stellar Wind was “unprecedented” because OLC is always asked to review the facts and formulate its advice “up front.”

If it was unprecedented on March 1, 2004, it quickly became common.

After all, Goldsmith was asked to consider how the Geneva Convention applied to various types of detainees in Iraq, after the Administration had already been and continued to render people out of that occupied country. And he was also in the midst of a review of the torture program.

Indeed, Daniel Levin, who would go on to reconsider torture approvals until Cheney booted him out of the way to have Steven Bradbury rubberstamp things, would have been a part of those discussions.

So when, in fall 2004, he was asked to reconsider torture, that lower standard of review would have been in his mind.

You could even say that this standard of review gave CIA an incentive to start and continue torturing Janat Gul, on whom they pinned their need to resume torture, even after they accepted he was not, as a fabricator had claimed, planning election year plots in the US. So long as they tortured Gul, Levin would be permitted to apply a lower standard to that torture.

In any case, if this was unprecedented then, I suspect it’s not anymore. After all, by the time David Barron first considered the drone killing memo for Anwar al-Awlaki, the Administration had apparently already tried to kill him once. And the Libyan war had already started when OLC started reviewing it (though they made a heroic effort to rule it illegal, which is a testament to just how illegal it was).

With regards to the Stellar Wind OLC, the discussion of what Goldsmith found so problematic is mostly redacted. Which is why I’m interested in his opinion that “‘we can get there’ as to [redacted] albeit by using an aggressive legal analysis.” That says that one of the things his opinion would approve — either the content collection of one-end foreign communications or the dragnet collection of telephone metadata — involved “aggressive legal analysis” even to meet this lower standard.

It’d sure be nice to know which practice was considered so marginally legal.

John Yoo Approved the Stellar Wind Authorization that First Covered Iraq

As I noted, one interesting aspect of reading the Stellar Wind IG Reports is tracking the things that show up in the Snowden-leaked draft IG Report that are completely redacted in the DOJ-released report.

One thing that is completely redacted is that Stellar Wind was used to spy on Iraqi targets (or US targets alleged to be Iraqi targets during the war?), as explained here.

(TS//SI//NF) Iraqi Intelligence Service. For a limited period of time surrounding the 2003 invasion oflraq, the President authorized the use of PSP authority against the Iraqi Intelligence Service. On 28 March 2003, the DCI determined that, based on then current intelligence, the Iraqi Intelligence service was engaged in terrorist activities and presented a threat to U.S. interests in the United States and abroad. Through the Deputy DCI, Mr. Tenet received the President’s concurrence that PSP authorities could be used against the Iraqi Intelligence Service. NSA ceased using the Authority for this purpose in March 2004.

Given the timing, this almost certainly is one of the things Jack Goldsmith shut down in the first set of modifications in March 2004 (there appears to have been a parallel effort in 2004 to stop treating Iraqi prisoners as terrorists who could be tortured).

And while the officially released IG Reports hide all mention of this, there is one detail that says volumes. Amid the section describing all the things Patrick Philbin found to be problematic in Yoo’s OLC memos authorizing the program, this footnote appears (at PDF 442).

See Presidential Authorization of April 22, 2003 at para. 4(b)(i) & (ii). The April 22, 2003, Authorization was the only Authorization personally approved as to form and legality by Yoo. He approved the Authorization on April 18, 2003; five days before the date of his talking points memorandum.

John Yoo, not Attorney General Ashcroft, signed the Authorization that went into effect on April 22, 2003.

This Authorization was the first issued after Tenet declared Iraq terrorists on March 28, 2003 (I’ve added the Authorization dates here).

As it happens, that Authorization was also the last or second-to-last one signed while Yoo remained at DOJ. He left in June 2003 because Ashcroft had refused to let him assume the OLC AAG position after Jay Bybee moved onto his sinecure on the 9th Circuit.

That’s not the last crazy thing Yoo did while at OLC: at roughly the same time he was free-lancing “Legal Principles” documents pretend-authorizing torture techniques that the original Bybee memo had not approved.

But I find it interesting that one of the last things Yoo did was sign an authorization to use a program purportedly focused on terrorists to surveil targets (who must in some part be in the US) related to a war of choice.