Posts

Verizon Gets Out of the Upstream Surveillance Business

Even as the privacy world has been discussing how NSA got out of one kind of the upstream collection business on April 28, most people overlooked that someone else got out of the upstream collection business almost entirely just a few days later. That’s when Verizon finalized its sale of a big chunk of its data centers — including the ones used for Stormbrew collection — to Equinix. (h/t to SpaceLifeForm for reminding me)

When Equinix announced the $3.6B cash purchase in December, it emphasized the Miami data center — though which much of the traffic from Latin America passes on to the rest of the world — and the Culpepper site serving the National Security world.

  • The NAP (Network Access Point) of the Americas facility in Miami is a key interconnection point and will become a strategic hub and gateway for Equinix customer deployments servicing Latin America. Combined with the Verizon data centers in Bogotá and the NAP do Brasil in São Paulo, it will strategically position Equinix in the growing Latin American market.
  • The NAP of the Capital Region in Culpeper, VA is a highly secure campus focused on government agency customers, strengthening Equinix as a platform of choice for government services and service providers.

The purchase also expands Equinix’s presence in Silicon Valley.

Mind you, spying infrastructure has continued to evolve since Snowden documents elucidated where the Stormbrew collection points were and what they did. So maybe these data centers are no longer key “chokepoints’ (as the NSA called them) of American spying.

But if they are, then Verizon is no longer the one sifting through your data.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

In Spying, “Things like phone numbers or emails” Turn Out to Be Far More

According to Reuters, the Intelligence Community doesn’t intend to share any details of the Yahoo scan revealed several weeks back with anyone outside of the FISA oversight committees — the House and Senate Intelligence and Judiciary Committees.

Executive branch officials spoke to staff for members of the Senate and House of Representatives committees overseeing intelligence operations and the judiciary, according to people briefed on the events, which followed Reuters’ disclosure of the massive search.

But attempts by other members of Congress and civil society groups to learn more about the Yahoo order are unlikely to meet with success anytime soon, because its details remain a sensitive national security matter, U.S. officials told Reuters. Release of any declassified version of the order is unlikely in the foreseeable future, the officials said.

On its face, it’s a stupid stance, as I think the scan probably fits within existing legal precedents that have already been made public, even if it stretches those precedents from “packet content as content” to “email content as content” (and it may not even do that).

In addition, given that the scan was approved by a judge (albeit one working within the secret FISA court and relying on prior decisions that were issued in secrecy), by releasing more details about the scan the government could at least claim that a judge had determined the scan was necessary and proportionate to obtain details about the (as described to NYT) state-sponsored terrorist group targeted by the scan. This decision presumably relies on a long line of decisions finding warrantless surveillance justified by special needs precedents, which began to be laid out for FISC in In Re Sealed Case in 2002.

Nevertheless, even given the toll the government’s secrecy is having on Yahoo (and presumably on other providers’ willingness to cooperate with the IC), the government thus far has remained intransigent in its secrecy.

Which suggests that the IC believes it would risk more by releasing more data than by its continued, damaging silence.

I’ve already explained one of the risks they might face: that their quick anonymous description of this as a “state-sponsored terrorist group” might (this is admittedly a wildarsed guess) really mean they hacked all of Yahoo’s users to get to Iranian targets, something that wouldn’t have the same scare power as terrorists like ISIS, especially in Europe, which has a markedly different relationship with Iran than the US has.

But I also think ODNI risks losing credibility because it appears to conflict with what ODNI specifically and other spook officials generally have said in the past, both to the US public and to the international community. As I note here, the definition of “facility” has been evolving at FISC since at least 2004. But the privacy community just released a letter and a quote to Reuters that seems unaware of the change. The letter asserts,

According to reports, the order was issued under Title I of FISA, which requires the government to demonstrate probable cause that its target is a foreign power or an agent of a foreign power (such as a spy or a terrorist), and probable cause that the “facility” at which the surveillance is conducted will carry the target’s communications. If reports are true, this authority to conduct a particularized search has apparently been secretly construed to authorize a mass scan.

Traditional FISA orders haven’t been limited to particularized targets since 2007, when an order targeting Al Qaeda was used to temporarily give Stellar Wind legal sanction. If one order requiring a scan of traffic at  telecom switches could target Al Qaeda in 2007, then surely one order can target Iran’s Revolutionary Guard or a similar organization in 2016. The problem is in the execution of the order, requiring Yahoo to scan all its incoming email, but it’s not clear the legal issues are much worse than in the 2007 execution.

A Reuters source goes even further, suggesting that all of Yahoo is the facility, rather than the specific code tied to the targeted group.

The groups say that Title I of the Foreign Intelligence Surveillance Act, under which sources said the order was issued, requires a finding that the target of such a wiretap is probably an agent of a foreign power and that the facility to be tapped is probably going to be used for a transmission. An entire service, such as Yahoo, has never publicly been considered to be a “facility” in such a case: instead, the word usually refers to a phone number or an email account.

Never mind that under the phone dragnet, Verizon was counted as the targeted selector (which was used by terrorists and everyone else), though admittedly that was just for metadata. Had Yahoo been designed the “place” at which a physical search were conducted this usage might be correct (that said, we know very little about how physical searches, including for stored communication, work in practice), but as Semiannual reports have made clear (admittedly in the Section 702 context), facility has come to be synonymous with selector.

[T]argeting is effectuated by tasking communication facilities (also referred to as “selectors”), including but not limited to telephone numbers and electronic communications accounts, to Section 702 electronic communication service providers.

Facilities are selectors, and here FBI got a selector tied to a kind of usage of email — perhaps an encryption signature — approved as a selector/facility.

In spite of the fact that somewhere among 30 NGOs someone should have been able to make this argument (and ACLU’s litigation side surely could do so), there is good reason for them to believe this.

That’s because the IC has very deliberately avoided talking about how what are called “about” scans but really should be termed signature scans really work.

This is most striking in a March 19, 2014 Privacy and Civil Liberties Oversight Board hearing, which was one of the most extensive discussions of how Section 702 work. Shortly after this hearing, I contacted PCLOB to ask whether they were being fully briefed, including on the non-counterterrorism uses of 702, such as cyber, which use (or used) upstream selectors in a  different way.

Several different times in the hearing, IC witnesses described selectors as “selectors such as telephone numbers or email addresses” or “like telephone numbers or email addresses,” obscuring the full extent of what might be included (Snowden tweeted a list that I included here). Bob Litt did so while insisting that Section 702 (he was referring both to PRISM and upstream here) was not a bulk collection program:

I want to make a couple of important overview points about Section 702. First, there is either a misconception or a mischaracterization commonly repeated that Section 702 is a form of bulk collection. It is not bulk collection. 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.

I just want to repeat that Section 702 is not a bulk collection program.

Then-Deputy Assistant Attorney General Brad Weigmann said selectors were “really phone numbers, email addresses, things like that” when he defined selector.

A selector would typically be an email account or a phone number that you are targeting. So this is the, you get, you know, terrorists at Google.com, you know, whatever. That’s the address that you have information about that if you have reason to believe that that person is a terrorist and you would like to collect foreign intelligence information, I might be focusing on that person’s account.

[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.

And when then-NSA General Counsel Raj De moved from describing Section 702 generally (“selectors are things like”), to discussing upstream, he mistakenly said collection was based on “particularly phone numbers or emails” then immediately corrected himself to say, “things like phone numbers or emails.”

So there’s two types of collection under Section 702. Both are targeted, as Bob was saying, which means they are both selector-based, and I’ll get into some more detail about what that means. Selectors are things like phone numbers and email addresses.

[snip]

It is also however selector-based, i.e. based on particular phone numbers or emails, things like phone numbers or emails. This is collection to, from, or about selectors, the same selectors that are used in PRISM selection. This is not collection based on key words, for example.

 

That language would — and apparently did — create the false impression that about collection really did just use emails and phone numbers (which is why I called PCLOB, because I knew they were or had also targeted cyber signatures).

Here’s how all that evasiveness appeared in the PCLOB 702 report:

Although we cannot discuss the details in an unclassified public report, the moniker “about” collection describes a number of distinct scenarios, which the government has in the past characterized as different “categories” of “about” collection. These categories are not predetermined limits that confine what the government acquires; rather, they are merely ways of describing the different forms of communications that are neither to nor from a tasked selector but nevertheless are collected because they contain the selector somewhere within them.

That certainly goes beyond the linguistic game the IC witnesses were playing, but stops well short of explaining that this really isn’t all about emails and phone numbers.

Plus, there’s one exchange from that March 2014 hearing that might be taken to rule out about collection from a PRISM provider. In reply to specific prodding from Elisabeth Collins Cook, De said about collection cannot be made via PRISM.

MS. COLLINS COOK: I wanted to ask one additional question about abouts. Can you do about collection through PRISM?

MR. DE: No.

MS. COLLINS COOK: So it is limited to upstream collection?

MR. DE: Correct. PRISM is only collection to or from selectors.

Of course, De was referring to warrantless collection under Section 702. He wasn’t talking at all about what is possible under Title I. But it may have left the impression that one couldn’t order a PRISM provider to do an about scan, even though in 2007 FISA ordered telecoms to do about scans.

Ultimately, though, the IC is likely remaining mum about these details because revealing it would make clear what publicly released opinions do, but not in real detail: that these about scans have gotten far beyond a collection of content based off a scan of readily available metadata. These scans likely replicate the problem identified in 2004, in that the initial scan is not of things that count as metadata to the provider doing the scan.

The IC may have FISC approval for that argument. But they also had FISC approval for the Section 215 dragnet. And that didn’t live up to public scrutiny either.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Can the Government Use FISA to Get Evidence of Past Criminal Activities?

A terror support case due to start in NYC in December seems to present some interesting questions about the use of EO 12333 and FISA evidence. Ahmed Mohammed El Gammal was arrested last year on charges he helped someone else — who apparently got killed in Syria — travel to and train for ISIL. After almost a year and several continuations, the government provided notice they intended to use material gathered under a FISA physical surveillance order (but not an electronic surveillance order). The case clearly involves a ton of Internet communications; the defense proposed voir dire questions ask if potential jurors are familiar with Twitter, Tango, Whatsapp, Cryptocat, Viber, Skype, Surespot or Snapchat, and asks how much potential jurors use Facebook.

After the government submitted the FISA notice, El Gammal’s lawyers submitted three filings: one seeking access to CIPA information, one seeking to suppress the FISA material, and one asking where all the other surveillance came from.

The FISA complaint, aside from the standard challenge, appears to stem from both the delay in notification and some concerns the government did not adhere to minimization procedures (in the defense reply, they noted that the government had already released minimization procedures but refused to do so here). In addition, the FISA challenge suggests the government used FISA to “was to gather evidence of his past criminal activity,” which it argues is unlawful. His lawyers also seem to question whether there was no other way to obtain the information (which is particularly interesting given the delayed notice).

In addition, the government’s response describes some of the reasons El Gammal’s lawyers suspect the government used some kind of exotic (probably 12333) surveillance against him (some of which are partly or entirely redacted in the defense filings).

The defendant’s motion speculates that the Government relied upon undisclosed techniques when it (1) “appears to have sought information about El Gammal from at least two entities—Verizon and Yahoo—before his identity seems to have become known through the criminal investigation,” (Def. Memo. 3) (2) “seems to have learned about El Gammal before receiving, in the criminal investigation, the first disclosure that would necessarily have identified him,” (Def. Memo. 5) and (3) appeared to have “reviewed the contents of [CC-1’s] [social media] account before [the social media provider] made its Rule 41 return” (Def. Memo. 5). This speculation is baseless. The Government has used a number of investigative techniques in this case. Not all of those techniques require notice or disclosure at this (or any) stage of the investigation.2 And the Government has complied with its notice and disclosure obligations to date.

2 Additional background regarding this investigation is provided in Section IV.A. of the Government’s September 23, 2016 Classified Memorandum in Opposition to the Defendant’s Pretrial Motion to Suppress, and for the Disclosure of the FISA Order, Application, and Related Materials.

It appears that the government had obtained Facebook material (the primary social media involved here) either under Section 702 or EO 12333, then parallel constructed it via warrant. And it appears to suggest the involvement of some kind  of programmatic Verizon and Yahoo collection that may not have been disclosed (El Gammal was in custody before the end of the old phone dragnet).

Particularly given the timing (in the wake of FBI obtaining a way to get into Syed Rezwan Farook’s phone), I had thought the physical search might have been to decrypt El Gammal’s iPhone, but it appears the government had no problems accessing the content of multiple Apple devices.

There’s no reason to think El Gammal will have any more luck obtaining this information than previous defendants seeking FISA and 12333 information have been.

But his lawyers (SDNY’s excellent public defenders office) do seem to think they’re looking at something more programmatic than they’ve seen before. And they do seem to believe those techniques are being parallel constructed.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Does a Fifth of Yahoo’s Value Derive from (Perceived) Security and Privacy?

The NYPost is reporting that Verizon is trying to get a billion dollar discount off its $4.8 billion purchase price for Yahoo.

“In the last day we’ve heard that [AOL head, who is in charge of these negotiations] Tim [Armstong] is getting cold feet. He’s pretty upset about the lack of disclosure and he’s saying can we get out of this or can we reduce the price?” said a source familiar with Verizon’s thinking.

That might just be tough talk to get Yahoo to roll back the price. Verizon had been planning to couple Yahoo with its AOL unit to give it enough scale to be a third force to compete with Google and Facebook for digital ad dollars.

The discount is being pushed because it feels Yahoo’s value has been diminished, sources said.

AOL/Yahoo will reach about 1 billion consumers if the deal closes in the first quarter, with a stated goal to reach 2 billion by 2020. AOL boss Tim Armstrong flew to the West Coast in the past few days to meet with Yahoo executives to hammer out a case for a price reduction, a source said.

At one level, this is just business. Verizon has the opportunity to save some money, and it is exploring that opportunity.

But the underlying argument is an interesting one, as it floats a potential value — over a fifth of the original purchase price — tied to Yahoo’s ability to offer its users privacy.

As I understand it, the basis for any discount would be an interesting debate, too. The NYP story implies this is a reaction to both Yahoo’s admission that upwards of 500 million Yahoo users got hacked in 2014 and the more recent admission that last year Yahoo fulfilled a FISA order to scan all its incoming email addresses without legal challenge.

Yahoo has claimed that it only recently learned about the 2014 hack of its users — it told Verizon within days of discovering the hack. If that’s true, it’s not necessarily something Yahoo could have told Verizon before the purchase. (Indeed, Verizon should have considered Yahoo’s security posture when buying it.) But there are apparently real questions about how forthcoming Yahoo has been about the extent of the hack. The number of people affected might be in the billions.

Yahoo can’t claim to have been ignorant about its willingness to respond to exotic FISA requests without legal challenge, however.

Verizon bought Yahoo at a time when Yahoo’s aggressive challenged to PRISM back in 2007 was public knowledge. Given that Verizon had been — or at least had been making a show — of limiting what it would agree to do under USA Freedom Act (Verizon got too little credit, in my opinion, for being the prime necessary driver behind the reform), that earlier legal challenge would have aligned with what Verizon itself was doing: limiting its voluntary cooperation with US government spying requests. But now we learn Yahoo had repurposed its own spam and kiddie porn filter to help the government spy, without complaint, and without even telling its own security team.

I’ll let the mergers and acquisitions lawyers fight over whether Verizon has a claim about the purchase price here. Obviously, the $1 billion is just the opening offer.

But there is a real basis for the claim, at least in terms of value. Verizon bought Yahoo to be able to bump its user base up high enough to be able to compete with Google and Facebook. The perception, particularly in Europe, that Yahoo has neither adequately valued user security nor pushed back against exotic US government demands (especially in the wake of the Snowden revelations) will make it a lot harder to maintain, much less expand, the user base that is the entire purpose for the purchase.

So we’re about to learn how much of an international Internet Service Provider’s value is currently tied to its ability to offer security to its users.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Tuesday: Allez Vous F

J’adore Stromae. I’m not in the hip hop demographic, but Stromae — whose real name is Paul Van Haver — pulls me in. This multi-talented artist born to a Rwandan father and a Belgian mother pulls together multiple genres of music laced with compelling au courant lyrics presented with stunning visual effects — how could I not love him?

This particular song, Papatouai, has a strong psychic undertow. This song asks where Papa is; the lyrics and video suggest an emotionally or physically distant father. Van Haver’s own father was killed in the Rwandan genocide when he was not yet ten years old. Is this song about his own father, or about inaccessible fathers in general? The use of older African jazz rhythms emphasizes retrospection suggesting a look backward rather than forward for the missing father figure(s). More than a third of a billion views for this video say something important about its themes.

Much of Stromae’s work is strongly political, but it conveys the difficulty of youth who are multi-racial/multi-ethnic unsatisfied with the binaries and economic injustices forced on them by oldsters. A favorite among kids I know is AVF (Allez Vous Faire):

“Allez vous faire!”
Toujours les mêmes discours, toujours les mêmes airs,
Hollande, Belgique, France austère.
Gauches, ou libéraux, avant-centres ou centristes,
Ça m’est égal, tous aussi démagos que des artistes.


Go fuck yourselves!
Always the same words, always the same airs.
Holland, Belgium, France, austere.
Right or Left? Moderate or Extremist?
They’re all the same to me – the demagogues and the artists.

Remarquable et pertinent, non? I’m also crazy about Tous Les Mêmes, a trans- and cis-feminist song with a marvelous old school Latin beat simmering with frustration. But there’s not much I don’t like by Stromae; I can’t name a song I wouldn’t listen to again and again.

If you’re ready for more Stromae, try his concert recorded in Montreal this past winter. So good.

Expedition to the Cyber Pass

  • UK wireless firm O2 customer data breached and sold (BBC) — O2 customers who were gamers at XSplit had their O2 account data stolen. The approach used, credential stuffing, relies on users who employ the same password at multiple sites. Wonder how Verizon’s recent hiring of O2’s CEO Ronan Dunne will play out during the integration of Yahoo into Verizon’s corporate fold, given Verizon’s data breach? Will Dunne insist on mandatory 2FA policy and insure Verizon and Yahoo accounts can’t use the same passwords?
  • Speaking of Yahoo: 200 million credentials for sale (Motherboard) — Yahoo’s Tumblr had already been involved in a massive breach, now there’s Yahoo accounts available on the dark web. Given the Verizon breach already mentioned, it’s just a matter of time before these accounts are cross-matched for criminal use.
  • Oracle’s not-so-good-very-bad-too-many 276 vulnerabilities patched (Threatpost) — Whew. Two. Hundred. Seventy. Six. That’s a lot of risk. Good they’re all patched, but wow, how did Oracle end up with so many to begin with? Some of them are in products once owned by Sun Microsystems, including Java. Maybe Oracle ought to rethink Java’s licensing and work with the software community to develop a better approach to patching Java?
  • F-35 ready, says USAF — kind of (Bloomberg) — Massively expensive combat jet now up for ‘limited combat use’, except…

    The initial aircraft won’t have all the electronic combat, data fusion, weapons capacity or automated maintenance and diagnostics capabilities until the most advanced version of its complex software is fielded by 2018.

    Uh, what the hell did we spend a gazillion-plus bucks on if we don’t have aircraft with competitive working electronics?

Light load today, busy here between getting youngest ready for college and primary day in Michigan. YES, YOU, MICHIGANDER, GO VOTE IN THE PRIMARY! Polls close at 8:00 p.m. EDT, you still have time — check your party for write-in candidates. You can check your registration, precinct, ballot at this MI-SOS link.

The rest of you: check your own state’s primary date and registration deadlines. Scoot!

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

How Did Booz Employee Analyst-Trainee Edward Snowden Get the Verizon 215 Order?

One thing I’ve been pondering as I’ve been going through the Snowden emails liberated by Jason Leopold is the transition Snowden made just before he left. They show that in August 2012, Snowden was (as we’ve heard) a Dell contractor serving as a SysAdmin in Hawaii.

Screen Shot 2016-06-10 at 1.48.37 PM

The training he was taking (and complaining about) in around April 5 – 12, 2013 was in preparation to move into an analyst role with the National Threat Operations Center.

Screen Shot 2016-06-10 at 1.55.17 PM

That would mean Snowden would have been analyzing US vulnerabilities to cyberattack in what is a hybrid “best defense is a good offense” mode; given that he was in HI, these attacks would probably have been launched predominantly from, and countermeasures would be focused on, China. (Before Stewart Baker accuses me of showing no curiosity about this move, as Baker did about the Chinese invitation to Snowden’s girlfriend to a pole dancing competition, I did, but got remarkably little response from anyone on it.)

It’s not clear why Snowden made the switch, but we have certainly seen a number of cybersecurity related documents — see the packet published by Charlie Savage in conjunction with his upstream cyber article. Even the PRISM PowerPoint — the second thing released — actually has a cybersecurity focus (though I think there’s one detail that remains redacted). It’s about using upstream to track known cyberthreat actors.

Screen Shot 2016-06-10 at 2.09.14 PM

I suspect, given the inaccuracies and boosterism in this slide deck, that it was something Snowden picked up while at Booz training, when he was back in Maryland in April 2013. Which raises certain questions about what might have been available at Booz that wasn’t available at NSA itself, especially given the fact that all the PRISM providers’ names appear in uncoded fashion.

Incidentally, Snowden’s job changes at NSA also reveal that there are Booz analysts, not NSA direct employees, doing Section 702 analysis (though that is technically public). In case that makes you feel any better about the way the NSA runs it warrantless surveillance programs.

Anyway, thus far, all that makes sense: Snowden got into a cybersecurity role, and one of the latest documents he took was a document that included a cybersecurity function (though presumably he could have gotten most of the ones that had already been completed as a SysAdmin before that).

But one of the most sensitive documents he got — the Verizon Section 215 primary order — has nothing to do with cybersecurity. The Section 215 dragnet was supposed to be used exclusively for counterterrorism. (And as I understand it, there are almost no documents, of any type, listing provider names in the Snowden stash, and not all that many listing encoded provider names). But the Verizon dragnet order it is dated April 23, 2013, several weeks into the time Snowden had moved into a cybersecurity analytical role.

Screen Shot 2016-06-10 at 2.29.20 PM

There’s probably an easy explanation: That even though NSA is supposed to shift people’s credentials as they move from job to job, it hadn’t happened for Snowden yet. If that’s right, it would say whoever was responsible for downgrading Snowden’s access from SysAdmin to analyst was slow to make the change, resulting in one of the most significant disclosures Snowden made (there have been at least some cases of credentials not being adjusted since Snowden’s leaks, too, so they haven’t entirely addressed what would have to be regarded as a major fuck-up if that’s how this happened).

Interestingly, however, the declassification stamp on the document suggests it was classified on April 12, not April 23, which may mean they had wrapped up the authorization process, only to backdate it on the date it needed to be reauthorized. April 12, 2013 was, I believe, the last day Snowden was at Fort Meade.

Screen Shot 2016-06-10 at 2.34.33 PM

Whatever the underlying explanation, it should be noted that the most sensitive document Snowden leaked — the one that revealed that the government aspired to collect phone records from every single Verizon customer (and, significantly, the one that made court challenges possible) — had to have been obtained after Snowden formally left his SysAdmin, privileged user, position.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Wednesday Morning: A Whiter Shade

She said, ‘There is no reason
and the truth is plain to see.’
But I wandered through my playing cards
and would not let her be

— excerpt, Whiter Shade of Pale by Procol Harum
cover here by Annie Lennox

I’ve been on an Annie Lennox jag, sorry. I’m indulging myself here at the intersection of a favorite song which fit today’s theme and a favorite performer. Some of you will take me to task for not using the original version by Procol Harum, or another cover like Eric Clapton’s. Knock yourselves out; it’s Lennox for me.

Speaking of a whiter shade and truth…

FBI used a ‘gray hat’ to crack the San Bernardino shooter’s phone
Last evening after regular business hours WaPo published a story which made damned sure we knew:

1) The FBI waded into a fuzzy zone to hack the phone — oh, not hiring a ‘black hat’, mind you, but a whiter-shade ‘gray hat’ hacker;
2) Cellebrite wasn’t that ‘gray hat’;
3) The third-party resource was referred to as ‘professional hackers’ or ‘researchers who sell flaws’;
4) FBI paid a ‘one-time fee’ for this hack — which sounds like, “Honest, we only did it once! How could we be pregnant?!
5) A ‘previously unknown software flaw’ was employed after the third-party pointed to it.

This reporting only generated more questions:

• Why the careful wording, ‘previously unknown software flaw’ as opposed to zero-day vulnerability, which has become a term of art?
• How was the determination made that the party was not black or white but gray, and not just a ‘professional hacker who sold knowledges about a flaw they used’? Or was the explanation provided just stenography?
• However did Cellebrite end up named in the media anyhow if they weren’t the source of the resolution?
• What assurances were received in addition to the assist for that ‘one-time fee’?
• Why weren’t known security experts consulted?
• Why did the FBI say it had exhausted all resources to crack the San Bernardino shooter’s phone?
• Why did FBI director Jim Comey say “we just haven’t decided yet” to tell Apple about this unlocking method at all if ‘persons familiar with the matter’ were going to blab to WaPo about their sketchy not-black-or-white-hat approach instead?

That’s just for starters. Marcy’s gone over this latest story, too, be sure to read.

Volkswagen execs get a haircut
Panic among employees and state of Lower Saxony over VW’s losses and anticipated payouts as a result of Dieselgate impelled executives to share the pain and cut their bonuses. Germany’s Lower Saxony is the largest state/municipal shareholder in VW, but it’s doubly exposed to VW financial risks as nearly one in ten Germans are employed in the automotive industry, and VW is the largest single German automotive company. The cuts to bonuses will be retroactive, affecting payouts based on last year’s business performance.

Fuzzy dust bunnies

  • Verizon workers on strike (Boston Globe) — Until minimum wage is raised across the country and offshoring jobs stops, we’ll probably see more labor actions like this. Should be a warning to corporations with quarter-after-quarter profits and offshore tax shelters to watch themselves — they can afford to pay their workers.
  • Facebook deploys bots across its services (Computerworld) — But, but AI is years away, said Microsoft research…meanwhile, you just know Amazon’s Alexa is already looking to hookup with Facebook’s chatbot.
  • Google’s charitable arm ponied up $20M cash for disabled users’ technology improvements (Google.org) — IMO, this was a great move for an underserved population.
  • Judge’s rejects Obama administration blow-off of apex predator wolverines (HGN) — Wolverines, a necessary part of health northern and mountain ecosystems, need cold weather to survive. Montana’s U.S. District Court ruled the administration had not done enough to protect biodiversity including the wolverine. Crazy part of this entire situation is that the feds don’t believe the wolverine warrants Endangered Species Act (ESA) protection and that they can’t tell what effects climate change has on this species, but the species is seen rarely to know. Hello? A rarely-seen species means the numbers are so low they are at risk of extinction — isn’t that what the ESA is supposed to define and prevent?

UPDATE — 12:10 PM EDT —
From @cintagliata via Twitter:

Back in 1971, researchers observed Zika virus replicating in neurons and glia. (in mice) http://bit.ly/1XvsD4d

I’m done with the pesticides-as-causal theory. It may be a secondary exacerbating factor, but not likely primary. In short, we’ve had information about Zika’s destructive effects on the brain and nervous system for 45 years. It’s past time for adequate funding to address prevention, treatments, control of its spread.

It’s all down the hump from here, kids. See you tomorrow morning!

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

Friday Morning: Far Over Yonder

It was rough road this week, but we made it to Friday again for more jazz. Today’s genre is ska jazz, which will feel like an old friend to many of you.

The artist Tommy McCook was one of the earliest artists in this genre. Just listen to his work and you’ll understand why he has had such a deep and long-lasting influence on contemporary Jamaican music.

Let’s get cooking.

Apple pan dowdy

  • Need a hashtag for NotAlliPhones after FBI says hack only works on “narrow slice” (Reuters) — The method offered by a third party to open San Bernardino shooter’s iPhone 5c won’t work on later phones like the iPhone 5s in the Brooklyn case, according to FBI director Jim Comey. While it may be assumed newer technology is the barrier, this could be a simple line in the sand drawn by the FBI so as to limit potential risk.
  • Yet another pearl-clutching essay asking us if Apple went too far protecting privacy (MIT Technology Review) — This is the second such POS in this outlet in the last couple of months. Oh, by all means, let’s risk exposing hundreds of millions of iOS users to any surveillance because law enforcement needs access to the kind of information they didn’t have 20 years ago.
  • Apple has complied with government requests to crack iPhones 70 times, beginning in 2008 (Mac Rumors) — The first request, believed to have occurred while George Bush was still in office, arose from a child abuse and pornography case. In a case like this where children may have been endangered, one can understand the impetus for the request. But maybe, just maybe, Apple was so firm about the San Bernardino iPhone 5c is that Apple knows the government has gone too far after nearly eight years of compliance.
  • And for a change of pace, a recipe for Apple Pan Dowdy. Don’t fret over the pastry flour; just use all-purpose and not bread flour.

Leftovers

  • Yahoo up for bids, Verizon interested (Reuters) — The same telecom once in trouble for using persistent cookies is interested in a search engine-portal business which may offer them access to non-Verizon customers. Plan ahead for the next level of consumer tracking if Verizon’s bid wins. Bidding deadline has been extended from April 11 to the 18th.
  • Households at bottom income levels can’t afford food, housing (Vox) — Can’t understand why the rise of angry white man candidates? This is one big reason — things are getting much worse for those who can afford it least. And nobody working in Capitol Hill or the White House seems to give a rat’s whisker.
  • Banksters blame Hollywood for lack of interest in dodgy subprime automotive bonds (Indiewire) — Investment banking firm Morgan Stanley credits the film The Big Short, based on Michael Lewis’ book about the 2000s housing bubble and the subprime mortgage crisis, with spooking investors away from subprime automotive bonds. By all means, let’s not look in the mirror, banksters, or at the inability of working poor to make ends meet, increasing likely uptick in automotive loan defaults.
  • Venezuela makes every Friday a holiday (Bloomberg)

    — The deep El Nino cycle caused drought conditions, substantively lowering reservoir levels. President Maduro is asking large customers to make their electricity in addition to declaring every Friday for the next two months a work holiday to conserve energy. Clearly Venezuela needed investment in solar energy before this El Nino began.

  • Researchers found people do stupid stuff when they find a flash drive (Naked Security) — After sprinkling a campus with prepared USB flash drives, a study found nearly half the people who found them plugged them into a computer, ostensibly to find the owner. DON’T DO IT. If you find one, destroy it. If you lost one, consider it a lost cause — and before you lose one, make sure you’ve encrypted it just in case somebody is stupid enough to try and find the owner/look at the contents.

HIGHLY EDITORIAL COMMENT: Bill, STFU.
Just because a single African American author called you “The First Black President” doesn’t mean you are literally a black man (and the label wasn’t meant as a compliment). Your massive white/male/former-elected privilege is getting in the way of listening to people you helped marginalize. You cannot fake feeling their pain or triangulate this away. Just shut up and listen, if for no other reason than you’re hurting your wife yet again. (Sorry, I had to get that off my chest. This opinion may differ from those of other contributors at this site. YMMV.)

Phew. Hope you have a quiet, calm weekend planned. We could use one. See you Monday morning!

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

FBI’s Open NSL Requests

DOJ’s Inspector General just released a report of all the recommendations it made prior to September 15, 2015 that are not yet closed. As it explained in the release, the IG compiled the report in response to a congressional request, but they’ve posted (and will continue to post, every 6 months) the report for our benefit as well.

Specifically, we have posted a report listing all recommendations from OIG audits, evaluations, and reviews that we had not closed as of September 30, 2015.  As you will see, most of the recommendations show a status of “resolved,” which indicates that the Department of Justice has agreed with our recommendation, but we have not yet concluded that they have fully implemented it.

As that release made clear, most of the recommendations that have not yet been closed are not open, but resolved, which means DOJ has agreed with the IG’s recommendation but has not fully implemented a fix for that recommendation.

Which leaves the “open” recommendations, which might include recommendations DOJ hasn’t agreed to address or hasn’t told the IG how they’ll address. There are 20 open recommendations in the report, most of which date to 2014. That’s largely because every single one of the 10 recommendations made in the 2014 report on National Security Letters remains open. Here are some of my posts on that report (one, two, three, four, five), but the recommendations pertain to not ingesting out-of-scope information, counting the NSL’s accurately, and maintaining paperwork so as to be able to track NSLs. [Update: as the update below notes, the FBI response to the released report claimed it was responding, in whole or in part, to all 10 recommendations, which means the “open” category here means that FBI has not had time to go back and certify that FBI has done what it said.]

Three of the other still-open recommendations pertain to hiring; they pertain to nepotism, applicants for the civil rights division wanting to enforce civil rights laws (!), and the use of political tests for positions hiring career attorneys (this was the Monica Goodling report). Another still open recommendation suggests DOJ should document why US Attorneys book hotels that are outside cost limits (this pertains, ironically, to Chris Christie’s travel while US Attorney).

The remaining 2 recommendations, both of which date to 2010, are of particular interest.

1/19/2010: A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records

The OIG recommends that the FBI should issue guidance specifically directing FBI personnel that they may not use the practices known as hot number [classified and redacted] to obtain calling activity information from electronic communications service providers.

The first pertains to the IG Report on exigent letters. The report described (starting on PDF 94) how FBI contracted with two providers for “hot number” services that would let them alert the FBI when certain numbers were being used. FBI first contracted for the service with MCI or Verizon, not AT&T (as happened with most tech novelties in this program). The newly released version of the report make it clear that redactions are redacted for b1 (classification), b4 (trade secrets), b7A (enforcement proceedings), and b7E (law enforcement technique). At one point, then General Counsel now lifetime appointed judge Valerie Caproni said the practice did not require Pen Registers.

I find this practice — and FBI’s longstanding unwillingness to forswear it — interesting for two reasons. First, most references to the practice follow “hot number” by a short redaction.

Screen Shot 2016-01-21 at 2.02.30 PM

That suggests “hot number” may just be a partial name. Given that this section makes it clear this was often used with fugitives — just as Stingrays are often most often used — I wonder whether this involved “number” and “site.” That’s especially true since Company C (again, MCI or Verizon) also tracked whether calls were being made from a particular area code or [redacted], suggesting some location tracking function.

I’m also interested in this because “hot numbers” tracks the unauthorized “alert” function the NSA was using with the phone dragnet up until 2009. As you recall, NSA analysts would get an alert if any of thousands of phone numbers got used in a given day, none of which it counted as a contact-chaining session.

In other words, this practice might be related to one or both of these things. And 6 years later, the FBI doesn’t want to forswear the practice.

9/20/2010, A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups

The OIG recommends that the FBI seek to ensure that it is able to identify and document the source of facts provided to Congress through testimony and correspondence, and to the public.

This report (see one of my posts on it) reviewed why the FBI had investigated a bunch of peace and other advocacy groups as international terrorist groups dating back to 2004. ACLU had FOIAed some documents on investigations into Pittsburgh’s peace community. In response, Patrick Leahy started asking for answers, which led to obvious obfuscation from the FBI. And as I noted, even the normally respectable Glenn Fine produced a report that was obviously scoped not to find what it was looking for.

Nevertheless, a key part of the report pertained to FBI’s inability (or unwillingess) to respond to Leahy’s inquiries about what had started this investigation or to explain where the sources of information for their responses came from. (See PDF 56) The FBI, to this day, has apparently refused to agree to commit to be able to document where the information it responds to Congress comes from.

I will have more to say on this now, but I believe this is tantamount to retaining the ability to parallel construct answers for Congress. I’m quite confident that’s what happened here, and it seems that FBI has spent 6 years refusing to give up the ability to do that.

Update:

I didn’t read it when I originally reported in the NSL IG report, but it, like most IG reports, has a response from FBI, which in this case is quite detailed. The FBI claims that it had fulfilled most recommendations well before the report was released.

The response to the open exigent letter recommendation is at PDF 224. It’s not very compelling; it only promised to consider issuing a statement to say “hot number [redacted]” was prohibited.

The response to the 2014 report recommendations start on PDF 226. Of those, the FBI didn’t say they agreed with one part of one recommendations:

  • That the NSL subsystem generate reminders if an agent hasn’t verified return data for manual NSLs (which are sensitive)

In addition, with respect to the data requested with NSLs, FBI has taken out expansive language from manual models for NSLs (this includes an attachment the other discussion of which is redacted), but had not yet from the automated system.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

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

Last month’s squabble between Marco Rubio and Ted Cruz about USA Freedom Act led a number of USAF boosters to belatedly understand what I’ve been writing for years: that USAF expanded the universe of people whose records would be collected under the program, and would therefore expose more completely innocent people, along with more potential suspects, to the full analytical tradecraft of the NSA, indefinitely.

In an attempt to explain why that might be so, Julian Sanchez wrote this post, focusing on the limits on location data collection that restricted cell phone collection. Sanchez ignores two other likely factors — the probable inclusion of Internet phone calls and the ability to do certain kinds of connection chaining — that mark key new functionalities in the program which would have posed difficulties prior to USAF. But he also misses a lot of the public facts about location collection and cell phones under the Section 215 dragnet.  This post will lay those out.

The short version is this: the FISC appears to have imposed some limits on prospective cell location collection under Section 215 even as the phone dragnet moved over to it, and it was not until August 2011 that NSA started collecting cell phone records — stripped of location — from AT&T under Section 215 collection rules. The NSA was clearly getting “domestic” records from cell phones prior to that point, though it’s possible they weren’t coming from Section 215 data. Indeed, the only known “successes” of the phone dragnet — Basaaly Moalin and Adis Medunjanin — identified cell phones. It’s not clear whether those came from EO 12333, secondary database information that didn’t include location, or something else.

Here’s the more detailed explanation, along with a timeline of key dates:

There is significant circumstantial evidence that by February 17, 2006 — two months before the FISA Court approved the use of Section 215 of the PATRIOT Act to aspire to collect all Americans’ phone records — the FISA Court required briefing on the use of “hybrid” requests to get real-time location data from targets using a FISA Pen Register together with a Section 215 order. The move appears to have been a reaction to a series of magistrates’ rulings against a parallel practice in criminal cases. The briefing order came in advance of the 2006 PATRIOT Act reauthorization going into effect, which newly limited Section 215 requests to things that could be obtained with a grand jury subpoena. Because some courts had required more than a subpoena to obtain location, it appears, FISC reviewed the practice in the FISC — and, given the BR/PR numbers reported in IG Reports, ended, sometime before the end of 2006 though not immediately.

The FISC taking notice of criminal rulings and restricting FISC-authorized collection accordingly would be consistent with information provided in response to a January 2014 Ron Wyden query about what standards the FBI uses for obtaining location data under FISA. To get historic data (at least according to the letter), FBI used a 215 order at that point. But because some district courts (this was written in 2014, before some states and circuits had weighed in on prospective location collection, not to mention the 11th circuit ruling on historical location data under US v. Davis) require a warrant, “the FBI elects to seek prospective CSLI pursuant to a full content FISA order, thus matching the higher standard imposed in some U.S. districts.” In other words, as soon as some criminal courts started requiring a warrant, FISC apparently adopted that standard. If FISC continued to adopt criminal precedents, then at least after the first US v. Davis ruling, it would have and might still require a warrant (that is, an individualized FISA order) even for historical cell location data (though Davis did not apply to Stingrays).

FISC doesn’t always adopt the criminal court standard; at least until 2009 and by all appearances still, for example, FISC permits the collection, then minimization, of Post Cut Through Dialed Digits collected using FISA Pen Registers, whereas in the criminal context FBI does not collect PCTDD. But the FISC does take notice of, and respond to — even imposing a higher national security standard than what exists at some district levels — criminal court decisions. So the developments affecting location collection in magistrate, district, and circuit courts would be one limit on the government’s ability to collect location under FISA.

That wouldn’t necessarily prevent NSA from collecting cell records using a Section 215 order, at least until the Davis decision. After all, does that count as historic (a daily collection of records each day) or prospective (the approval to collect data going forward in 90 day approvals)? Plus, given the PCTDD and some other later FISA decisions, it’s possible FISC would have permitted the government to collect but minimize location data. But the decisions in criminal courts likely gave FISC pause, especially considering the magnitude of the production.

Then there’s the chaos of the program up to 2009.

At least between January 2008 and March 2009, and to some degree for the entire period preceding the 2009 clean-up of the phone and Internet dragnets, the NSA was applying EO 12333 standards to FISC-authorized metadata collection. In January 2008, NSA co-mingled 215 and EO 12333 data in either a repository or interface, and when the shit started hitting the fan the next year, analysts were instructed to distinguish the two authorities by date (which would have been useless to do). Not long after this data was co-mingled in 2008, FISC first approved IMEI and IMSI as identifiers for use in Section 215 chaining. In other words, any restrictions on cell collection in this period may have been meaningless, because NSA wasn’t heeding FISC’s restrictions on PATRIOT authorized collection, nor could it distinguish between the data it got under EO 12333 and Section 215.

Few people seem to get this point, but at least during 2008, and probably during the entire period leading up to 2009, there was no appreciable analytical border between where the EO 12333 phone dragnet ended and the Section 215 one began.

There’s no unredacted evidence (aside from the IMEI/IMSI permission) the NSA was collecting cell phone records under Section 215 before the 2009 process, though in 2009, both Sprint and Verizon (even AT&T, though to a much less significant level) had to separate out their entirely foreign collection from their domestic, meaning they were turning over data subject to EO 12333 and Section 215 together for years. That’s also roughly the point when NSA moved toward XML coding of data on intake, clearly identifying where and under what authority it obtained the data. Thus, it’s only from that point forward where (at least according to what we know) the data collected under Section 215 would clearly have adhered to any restrictions imposed on location.

In 2010, the NSA first started experimenting with smaller collections of records including location data at a time when Verizon Wireless was named on primary orders. And we have two separate documents describing what NSA considered its first collection of cell data under Section 215 on August 29, 2011. But it did so only after AT&T had stripped the location data from the records.

It appears Verizon never did the same (indeed, Verizon objected to any request to do so in testimony leading up to USAF’s passage). The telecoms used different methods of delivering call records under the program. In fact, in August 2, 2012, NSA’s IG described the orders as requiring telecoms to produce “certain call detail records (CDRs) or telephony metadata,” which may differentiate records that (which may just be AT&T) got processed before turning over. Also in 2009, part of Verizon ended its contract with the FBI to provide special compliance with NSLs. Both things may have affected Verizon’s ability or willingness to custom what it was delivering to NSA, as compared to AT&T.

All of which suggests that at least Verizon could not or chose not to do what AT&T did: strip location data from its call records. Section 215, before USAF, could only require providers to turn over records they kept, it could not require, as USAF may, provision of records under the form required by the government. Additionally, under Section 215, providers did not get compensated after the first two dragnet orders.

All that said, the dragnet has identified cell phones! In fact, the only known “successes” under Section 215 — the discovery of Basaaly Moalin’s T-Mobile cell phone and the discovery of Adis Medunjanin’s unknown, but believed to be Verizon, cell phone — did, and they are cell phones from companies that didn’t turn over records. In addition, there’s another case, cited in a 2009 Robert Mueller declaration preceding the Medunjanin discovery, that found a US-based cell phone.

There are several possible explanations for that. The first is that these phones were identified based off calls from landlines and/or off backbone records (so the phone number would be identified, but not the cell information). But note that, in the Moalin case, there are no known land lines involved in the presumed chain from Ayro to Moalin.

Another possibility — a very real possibility with some of these — is that the underlying records weren’t collected under Section 215 at all, but were instead collected under EO 12333 (though Moalin’s phone was identified before Michael Mukasey signed off on procedures permitting the chaining through US person records). That’s all the more likely given that all the known hits were collected before the point in 2009 when the FISC started requiring providers to separate out foreign (EO 12333) collection from domestic and international (Section 215) collection. In other words, the Section 215 phone dragnet may have been working swimmingly up until 2009 because NSA was breaking the rules, but as soon as it started abiding by the rules — and adhering to FISC’s increasingly strict limits on cell location data — it all of a sudden became virtually useless given the likelihood that potential terrorism targets would use exclusively cell and/or Internet calls just as they came to bypass telephony lines. Though as that happened, the permissions on tracking US persons via records collected under EO 12333, including doing location analysis, grew far more permissive.

In any case, at least in recent years, it’s clear that by giving notice and adjusting policy to match districts, the FISC and FBI made it very difficult to collect prospective location records under FISA, and therefore absent some means of forcing telecoms to strip their records before turning them over, to collect cell data.

Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.