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USA F-ReDux: Dianne Feinstein Raises the Data Handshake Again

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As I noted last November, in her defense of USA Freedom Act last year, Dianne Feinstein suggested the telecoms (principally, Verizon) had agreed to retain their data for longer than their business purposes required without any mandate — what I dubbed the “data handshake.”

On Tuesday, Nov. 18, Feinstein explained how she had resolved the problem presented by telecoms like Verizon that don’t hold these records as long as the NSA currently does. She and Chambliss had written the country’s four biggest telecom companies a letter — she didn’t say when — asking whether the companies would retain phone records longer than they currently do. Two said yes; two said no. “Since that time, the situation has changed,” Feinstein said. “Not in writing, but by personal testament from two of the companies that they will hold the data for at least two years for business reasons.” President Barack Obama even vouched for the telecom companies’ willingness to hold the data. “The fact is that the telecoms have agreed to hold the data. The president himself has assured me of this,” Feinstein said.

Taken in context, Feinstein’s comments reveal how proponents of the USA Freedom Act solved the intelligence community’s problem with the reform bill — that the period of time that records would be held would shrink dramatically. Rather than a legal mandate requiring that telecoms hold onto the data — which some members of the Senate Intelligence Committee demanded in June — the reform bill would use a “data handshake.”

The terms of the data handshake are the most interesting part. This promise is not in writing. According to Feinstein, it is a “personal testament.” (And of course it wasn’t in the bill, where privacy advocates might have objected to it.) The telecom companies could say they were retaining the data for business purposes, though, until now, they’ve had no business purpose to keep the records.

While some, like Bob Litt, have suggested one challenge for having telecoms retain phone records concerned whether telecoms would retain enough of their call records to do pattern analysis, the issue of data retention has largely been unspoken in this round of debate over USA F-ReDux.

But Dianne Feinstein just raised it again this morning on Meet the Press, again endorsing a “data handshake” behind USA F-ReDux and seemingly referring to the assurances the President got from telecoms they would keep the data.

CHUCK TODD:

Senator, while I have you, the Patriot Act, obviously the big, bulk data collection was struck down, in Court. Not quite saying it was unconstitutional, basically saying that the law doesn’t cover what the administration has said it covers, which is this idea of bulk data collection. And says, “If Congress wants to be able to do this, then they need to explicitly pass a law that forces telephone companies to do this or not.” Where are you on this? Are you willing to pass a specific law that allows for bulk data collection, whether held by the phone companies or the government?

SENATOR DIANNE FEINSTEIN:

I think here’s the thing. The president, the House and a number of members of the Senate believe that we need to change that program. And the way to change it is simply to go to the FISA Court for a query, permission to go to a telecom and get that data. The question is whether the telecoms will hold the data. And the answer to that question is somewhat mixed. I know the president believes that the telecoms will hold the data. I think we should try that.

CHUCK TODD:

An act of Congress could force them to do that, correct?

SENATOR DIANNE FEINSTEIN:

An act of Congress could force them to do that.

CHUCK TODD:

And can that pass this Congress?

SENATOR DIANNE FEINSTEIN:

Well, that’s the problem. The House does not have it in their bill. Senator Leahy does not have that in his bill.

If I had to bet on the most likely outcome for the USA F-ReDux bill, it would be USA F-ReDux, with some more shit added in because USA F-ReDux boosters are reluctant to talk about how much more it gives the Intelligence Community than what they have now, and with data retention mandates. As I have said, I think that’s one of the ultimate purposes of Mitch McConnell’s PATRIOT gambit.

One thing is clear, however, which is that Intelligence insiders like Feinstein are talking about data mandates among themselves, even if they’re not discussing them publicly.

USA F-ReDux’s “Transparency” Provisions and Phone-PRISM

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I’m going to make an unpopular argument.

Most observers of USA F-ReDux point to weakened transparency provisions as one of the biggest drawbacks of the latest version of the bill. They’re not wrong: transparency procedures are worse, remarkably so.

But given that I already thought they were not only inadequate but dangerously misleading,* I’m actually grateful to have had the Intelligence Community do another version of transparency provisions, which shows what they’re most intent on hiding and/or hints at what they will really be doing behind the carefully scripted words they’re getting Congress to rubber-stamp.

For comparison, I’ve put the bulk of the required transparency provisions for USA F-ReDux and Leahy’s USA Freedom below the rules below.

Hiding how 702 numbers will explode

The most remarkable of the changes in the transparency provision is that they basically took out this language requiring a top level count of Section 702 targets and persons whose communications were affected — this language.

(i) the number of targets of such orders;

(ii) the number of individuals whose communications were collected pursuant to such orders; [sub 500 range]

(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection; [sub 500 range]

This leaves — in addition to the “number of 702 orders” requirement — just this reporting requirement for back door content and metadata searches which (like the Leahy bill) exempts the gross majority of the back door searches, because they are done by the FBI.

(A) the number of search terms concerning a known United States person used to retrieve the unminimized contents of electronic communications or wire communications obtained through acquisitions authorized under such section, excluding the number of search terms used to prevent the return of information concerning a United States person; and [FBI Exemption]

(B) the number of queries concerning a known United States person of unminimized noncontents information relating to electronic communications or wire communications obtained through acquisitions authorized under such section, excluding the number of queries containing information used to prevent the return of information concerning a United States person; [FBI Exemption]

This is all the more remarkable given that ODNI has given us the topline number (though not the number of people sucked in) in each of its last two transparency reports.

Screen Shot 2015-05-01 at 9.28.43 AM

 

Screen Shot 2015-05-01 at 9.30.36 AM

 

In other words, ODNI was happy to tell us that the number of FISA 702 targets went up by 4% between 2013 and 2014, but not how much those numbers of targets will go up in 2015, when they presumably begin to roll out the new call chaining provision.

I suspect — and these are well educated but nevertheless wildarseguesses — there are several reasons.

The number of unique identifiers collected under 702 is astronomical

First, the reporting provisions as a whole move from tracking “individuals whose communications were collected” to “unique identifiers used to communicate information.” They probably did that because they don’t really have a handle on which of the identifiers all represent the same natural person (and some aren’t natural persons), and don’t plan on ever getting a handle on that number. Under last year’s bill, ONDI could certify to Congress that he couldn’t count that number (and then as an interim measure I understand they were going to let them do that, but require a deadline on when they would be able to count it). Now, they’ve eliminated such certification for all but 702 metadata back door searches (that certification will apply exclusively to CIA, since FBI is exempted). In other words, part of this is just an admission that ODNI does not know and does not planning on knowing how many of the identifiers they target actually fit together to individual targets.

But since they’re breaking things out into identifiers now, I suspect they’re unwilling to give that number because for each of the 93,000 targets they’re currently collecting on, they’re probably collecting on at least 10 unique identifiers and probably usually far, far more.

Just as an example (this is an inapt case because Hassanshahi, as a US person, could not be a PRISM target, but it does show the bare minimum of what a PRISM target would get), the two reports Google provided in response to administrative subpoenas for information on Shantia Hassanshahi, the guy caught using the DEA phone dragnet (these were subpoenas almost certainly used to parallel construct data obtained from the DEA phone dragnet and PRISM targeted at the Iranian, “Sheikhi,” they found him through), included:

  • a primary gmail account
  • two secondary gmail accounts
  • a second name tied to one of those gmail accounts
  • a backup email (Yahoo) address
  • a backup phone (unknown provider) account
  • Google phone number
  • Google SMS number
  • a primary login IP
  • 4 other IP logins they were tracking
  • 3 credit card accounts
  • Respectively 40, 5, and 11 Google services tied to the primary and two secondary Google accounts, much of which would be treated as separate, correlated identifiers

So just for this person who might be targeted under the new phone dragnet (though they’d have to play the same game of treating Iran as a terrorist organization that they currently do, but I assume they will), you’d have upwards of 15 unique identifiers obtained just from Google. And that doesn’t include a single cookie, which I’ve seen other subpoenas to Google return.

In other words, one likely reason the IC has decided, now that they’re going to report in terms of unique identifiers, they can’t report the number of identifiers targeted under PRISM is because it would make it clear that those 93,000 targets represent, very conservatively, over a million identifiers — and once you add in cookies, maybe a billion identifiers — targeted. And reporting that would make it clear what kind of identifier soup the IC is swimming in.

Hiding new PRISM providers

There is another reason I think they’ve grown reluctant to show much transparency under 702. Implementing the USA F-ReDux system — in which each provider sets up facilities they can use to chain on non-call detail record session identifying information — means more providers (smaller phone companies, and some new Internet providers, for example) will have what amount to PRISM-lite portals that can also be used for PRISM production. If you build it they will come!

In addition, Verizon and Sprint may be providing more PRISM smart phone materials in addition to upstream collection (AT&T likely already provides a lot of this because that’s how they roll).

So I suspect that, whereas now there’s a gap between the cumulative numbers providers report in their own transparency reports and what we see from ODNI, that number will grow notably, which would lead to questions about where the additional 702 production was coming from. (Until Amazon starts producing transparency reports, though, I’ll just assume they’re providing it all).

Hiding the smart-phone-PRISM

Finally, I think that once USA F-ReDux rolls out, the government (read, FBI, where this data will first be sucked in) will have difficulty distinguishing between the 702 and 215 production from a number of providers — probably AT&T, Verizon, Apple, Google, and Microsoft, but that’s just a guess.

Going back to the case of Hassanshahi, for example (and assuming, as I do, that the government has been parallel constructing the fact that they also targeted the Iranian Sheikhi identifier under PRISM, which would have immediately led them to his GMail account, as they very very easily could), the Tehran phone to Google call between Sheikhi and Hassanshahi would likely come in via at least 3 sources: Sheihki PRISM collection, Google USA F-ReDux returns on the Sheikhi number, and AT&T backbone USA F-ReDux returns on the Sheikhi number. And all that’s before you’ve taken a single hop into Hassanshahi’s accounts.

In other words, what you’re actually getting with USA F-ReDux is a way to get to the metadata of US persons identified via incidental collection under PRISM (again, this should just before for targets of a somewhat loosey goosey definition of terrorism targets). It’s basically a way to get a metadata “hop” off of all the Americans already “incidentally” collected under PRISM (note, permission to do this for targets identified under a probable cause warrant is already written into every phone dragnet order; this just extends that, with FISC review, to PRISM targets). And for the big providers that have anything that might be considered “call” service, the portals from which that will derive will likely be very very closely related.

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The Government Changed Its Mind about How Many Databases It Searched in the Hassanshahi Case after It Shut Down the DEA Dragnet

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As I noted in this post, the government insists that it did not engage in parallel construction in the case of Shantia Hassanshahi, the Iranian-American busted for sanctions violations using evidence derivative of a search of what the government now claims was a DEA dragnet. “While it would not be improper for a law enforcement agency to take steps to protect the confidentiality of a law enforcement sensitive investigative technique, this case raises no such issue.”

The claim is almost certainly bullshit, true in only the narrowest sense.

Indeed, the changing story the government has offered about how they IDed Hassanshahi based off a single call he had with a phone belonging to a person of interest, “Sheikhi,” in Iran, is instructive not just against the background of the slow reveal of multiple dragnets over the same period. But also for the technological capabilities included in those claims. Basically, the government appears to be claiming they got a VOIP call from a telephony database.

As I lay out below, the story told by the government in various affidavits and declarations (curiously, the version of the first one that appears in the docket is not signed) changed in multiple ways. While there were other changes, the changes I’m most interested in pertain to:

  • Whether Homeland Security Investigator Joshua Akronowitz searched just one database — the DEA toll record database — or multiple databases
  • How Akronowitz identified Google as the provider for Hassanshahi’s phone record
  • When and how Akronowitz became interested in a call to Hassanshahi from another Iranian number
  • How many calls of interest there were

As you can see from the excerpts below, Akronowitz at first claimed to have searched “HSI-accessible law enforcement databases,” plural, and suggested he searched them himself.  In July 2014, in response to a motion to suppress (and after Edward Snowden had disclosed the NSA’s phone dragnet), Akronowitz changed that story and said he sent a research request to a single database, implying someone else did a search of just one database. Akronowitz told the same story in yet another revised affidavit submitted last October. In the declaration submitted in December but unsealed in January, DEA Assistant Special Agent Robert Patterson stuck with the single database story and used the passive voice to hide who did the database query.

While Akronowitz’ story didn’t change regarding how he discovered that Hassanshahi’s phone was a Google number, it did get more detailed in the July 2014 affidavit, which explained that he had first checked with another VOIP provider before being referred to Google.

Perhaps most interestingly, the government’s story changed regarding how many calls of interest there were, and between what numbers. In January 2013, Akronowitz said “a number of telephone calls between ‘Sheikhi’s’ known business telephone number and telephone number 818-971-9512 had occurred within a relatively narrow time frame” (though he doesn’t tell us what that time frame was). He also says that his Google subpoena showed “numerous calls to the same Iranian-based telephone number during a relatively finite period of time.” He neither explained that this number was not Sheikhi’s number — it was a different Iranian number — nor what he means by “a relatively finite period of time.”  His July and October affidavits said his research showed a contact, “on one occasion, that is, on July 4, 2011,” with Sheikhi’s number. The July affidavit maintained the claim that there were multiple calls between Hassanshahi’s number and an Iranian one: “numerous phone calls between Hassanshahi’s ‘818’ number and one Iranian phone number.” But by October, Akronowitz conceded that the Google records showed only “that Hassanshahi’s ‘818’ number made contact with an Iranian phone number (982144406457) only once, on October 5, 2011” (as well as a “22932293” number that he bizarrely claimed was a call to Iran).  Note, Akronowitz’ currently operative story would mean the government never checked whether there were any calls between Hassanshahi and Sheikhi between August 24 and September 6 (or after October 6), which would be rather remarkable. Patterson’s December affidavit provided no details about the date of the single call discovered using what he identified as DEA’s database, but did specify that the call was made by Hassanshahi’s phone, outbound to Iran. (Patterson didn’t address the later Google production, as that was pursuant to a subpoena.)

To sum up, before Edward Snowden’s leaks alerted us to the scope of NSA’s domestic and international dragnet, Akronowitz claimed he personally had searched multiple databases and found evidence of multiple calls between Hassanshahi’s phone number and Sheikhi’s number, as well as (after getting a month of call records from Google) multiple calls to another Iranian number over unspecified periods of time. After Snowden’s leaks alerted us to the dragnet, after Dianne Feinstein made it clear the NSA can search on Iranian targets in the Section 215 database, which somehow counts as a terrorist purpose, and after Eric Holder decided to shut down just the DEA dragnet, Akronowitz changed his story to claim he had found just one call between Hassanshahi and Shiekhi, and — after a few more months — just one call from another Iranian number to Hassanshahi. Then, two months later, the government claimed that the only database that ever got searched was the DEA one (the one that had already been shut down) which — Patterson told us — was based on records obtained from “United States telecommunications service providers” via a subpoena.

Before I go on, consider that the government currently claims it used just a single phone call of interest — and the absence of any additional calls in a later months’s worth of call records collected that fall — to conduct a warrantless search of a laptop in a state (CA) where such searches require warrants, after having previously claimed there was a potentially more interesting set of call records to base that search on.

Aside from the government’s currently operative claim that it would conduct border searches based on the metadata tied to a single phone call, I find all this interesting for two reasons.

First, the government’s story about how many databases got searched and how many calls got found changed in such a way that the only admission of an unconstitutional search to the judge, in December 2014, involved a database that had allegedly been shut down 15 months earlier.

Maybe they’re telling the truth. Or maybe Akronowitz searched or had searched multiple databases — as he first claimed — and found the multiple calls he originally claimed, but then revised his story to match what could have been found in the DEA database. We don’t know, for example, if the DEA database permits “hops,” but he might have found a more interesting call pattern had he been able to examine hops (for example, it might explain his interest in the other phone number in Iran, which otherwise would reflect no more than an immigrant receiving a call from his home country).

All of this is made more interesting because of my second point: the US side of the call in question was an Internet call, a Google call, not a telephony call. Indeed, at least according to Patterson’s declaration (records of this call weren’t turned over in discovery, as far as I can tell), Hassanshahi placed the call, not Sheikhi.

I have no idea how Google calls get routed, but given that Hassanshahi placed the call, there’s a high likelihood that it didn’t cross a telecom provider’s backbone in this country (and god only knows how DEA or NSA would collect Iranian telephony provider records), which is who Patterson suggests the calls came from (though there’s some room for ambiguity in his use of the term “telecommunications service providers”).

USAT’s story on this dragnet suggests the data all comes from telephone companies.

It allowed agents to link the call records its agents gathered domestically with calling data the DEA and intelligence agencies had acquired outside the USA. (In some cases, officials said the DEA paid employees of foreign telecom firms for copies of call logs and subscriber lists.)

[snip]

Instead of simply asking phone companies for records about calls made by people suspected of drug crimes, the Justice Department began ordering telephone companies to turn over lists of all phone calls from the USA to countries where the government determined drug traffickers operated, current and former officials said.

[snip]

Former officials said the operation included records from AT&T and other telecom companies.

But if this call really was placed from a Google number, it’s not clear it would come up under such production, even under production of calls that pass through telephone companies’ backbones. That may reflect — if the claims in this case are remotely honest — that the DEA dragnet, at least, gathered call records not just from telecom companies, but also from Internet companies (remember, too, that DOJ’s Inspector General has suggested DEA had or has more than one dragnet, so it may also have been collecting Internet toll records).

And that — coupled with the government’s evolving claims about how many databases got checked and how many calls that research reflected — may suggest something else. Given that the redactions on the providers obliged under the Section 215 phone dragnet orders haven’t changed going back to 2009, when it was fairly clear there were just 3 providers (AT&T, Sprint, and Verizon), it may be safe to assume that’s still all NSA collects from. A never-ending series of leaks have pointed out that the 215 phone dragnet increasingly has gaps in coverage. And this Google call would be precisely the kind of call we would expect it to miss (indeed, that’s consistent with what Verizon Associate General Counsel — and former DOJ National Security Division and FBI Counsel — Michael Woods testified to before the SSCI last year, strongly suggesting the 215 dragnet missed VOIP). So while FISC has approved use of the “terrorist” Section 215 database for the terrorist group, “Iran,” (meaning NSA might actually have been able to query on Sheikhi), we should expect that this call would not be in that database. Mind you, we should also expect NSA’s EO 12333 dragnet — which permits contact chaining on US persons under SPCMA — to include VOIP calls, even with Iran. But depending on what databases someone consulted, we would expect gaps in precisely the places where the government’s story has changed since it decided it had searched only the now-defunct DEA database.

Finally, note that if the government was sufficiently interested in Sheikhi, it could easily have targeted him under PRISM (he did have a GMail account), which would have made any metadata tied to any of his Google identities broadly shareable within the government (though DHS Inspectors would likely have to go through another agency, quite possibly the CIA). PRISM production should return any Internet phone calls (though there’s nothing in the public record to indicate Sheikhi had an Internet phone number). Indeed, the way the NSA’s larger dragnets work, a search on Sheikhi would chain on all his correlated identifiers, including any communications via another number or Internet identifier, and so would chain on whatever collection they had from his GMail address and any other Google services he used (and the USAT described the DEA dragnet as using similarly automated techniques).  In other words, when Akronowitz originally said there had been multiple “telephone calls,” he may have instead meant that Sheikhi and Hassanshahi had communicated, via a variety of different identifiers, multiple times as reflected in his search (and given what we know about DEA’s phone dragnet and my suspicion they also had an Internet dragnet, that might have come up just on the DEA dragnets alone).

The point is that each of these dragnets will have slightly different strengths and weaknesses. Given Akronowitz’ original claims, it sounds like he may have consulted dragnets with slightly better coverage than just the DEA phone dragnet — either including a correlated DEA Internet dragnet or a more extensive NSA one — but the government now claims that it only consulted the DEA dragnet and consequently claims it only found one call, a call it should have almost no reason to have an interest in.

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“Information Is No Longer Being Collected in Bulk [Pursuant to 21 U.S.C. § 876]”

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Given the details in yesterday’s USAT story on DEA’s dragnet, I wanted to re-examine the DEA declaration revealing details of the phone dragnet in the Shantia Hassanshahi case which I wrote about here. As I noted then, there’s a footnote modifying the claim that the database in question “was suspended in September 2013” that is entirely redacted. And the declaration only states that “information is no longer being collected in bulk pursuant to 21 U.S.C. §876,” not that it is no longer being collected.

According to the USAT, DEA moved this collection to more targeted subpoenas that may number in the thousands.

The DEA asked the Justice Department to restart the surveillance program in December 2013. It withdrew that request when agents came up with a new solution. Every day, the agency assembles a list of the telephone numbers its agents suspect may be tied to drug trafficking. Each day, it sends electronic subpoenas — sometimes listing more than a thousand numbers — to telephone companies seeking logs of international telephone calls linked to those numbers, two official familiar with the program said.

The data collection that results is more targeted but slower and more expensive. Agents said it takes a day or more to pull together communication profiles that used to take minutes.

We should expect this move occurred either in the second half of 2013 (after the dragnet first got shut down) or the first half of 2014 (after DEA backed off its request to restart the draget). And we should expect these numbers to show in the telecoms transparency reports.

But they don’t — or don’t appear to.

Both AT&T and Verizon reported their 2013 numbers for the entire year. They both broke out their 2014 numbers semiannually. (Verizon; AT&T 2013; AT&T 2014; h/t Matt Cagle, who first got me looking at these numbers)

Here are the numbers for all subpoenas (see correction below):

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Both companies show a decrease in overall criminal subpoenas from 2013 to 2014. And while Verizon shows a continued decline, AT&T’s subpoena numbers went back up in the second half of 2014, but still lower than half of 2013’s numbers.

In any case, both companies report at least 15% fewer subpoenas in 2014, at a time when — according to what USAT got told — they should have been getting thousands of extra subpoenas a day.

It is possible what we’re seeing is just the decreased utility of phone records. As the USAT notes, criminals are increasingly using messaging platforms that use the Internet rather than telecoms.

But it’s possible the DEA’s dragnet went somewhere else entirely.

Though USAT doesn’t mention it (comparing instead with the Section 215 dragnet, which is not a comparable program because it, like Hemisphere as far as we know, focuses solely on domestic records), the NSA has an even bigger phone and Internet dragnet that collects on drug targets. Indeed, President Obama included “transnational criminal threats” among the uses permitted for data collected in bulk under PPD-28, which he issued January 17, 2014. So literally weeks after DEA supposedly moved to subpoena-based collection in December 2013, the President reiterated support for using NSA (or, indeed, any part of the Intelligence Community) bulk collections to pursue transnational crime, of which drug cartels are the most threatening.

There is no technical reason to need to collect this data in the US. Indeed, given the value of location data, the government is better off collecting it overseas to avoid coverage under US v. Jones. Moreover, as absolutely crummy as DOJ is about disclosing these kinds of subpoenas, it has disclosed them, whereas it continues to refuse to disclose any collection under EO 12333.

Perhaps it is the case that DEA really replaced its dragnet with targeted collection. Or perhaps it simply moved it under a new shell, EO 12333 collection, where it will remain better hidden.

Update: I realized I had used criminal subpoenas for AT&T, but not for Verizon (which doesn’t break out criminal and civil). Moreover, it’s not clear whether the telecoms would consider these criminal or civil subpoenas.

I also realized one other possible explanation why these don’t show up in the numbers. USAT reports that DEA uses subpoenas including thousands of numbers, whereas they used to use a subpoena to get all the records. That is, the telecoms may count each of these subpoenas as just one subpoena, regardless of whether it obtains 200 million or 1,000 numbers. Which would have truly horrifying implications for “Transparency.”

Update: There would be limitations to relying on the NSA’s database (though DEA could create its own for countries of particular interest). First, DEA could not search for US person identifiers without Attorney General approval (though under SPMCA, it could conduct chaining it knew to include US persons). Also, as of August 2014, at least, NSA wasn’t sharing raw EO 12333 data with other agencies, per this Charlie Savage story.

The N.S.A. is also permitted to search the 12333 storehouse using keywords likely to bring up Americans’ messages. Such searches must have “foreign intelligence” purposes, so analysts cannot hunt for ordinary criminal activity.

For now, the N.S.A. does not share raw 12333 intercepts with other agencies, like the F.B.I. or the C.I.A., to search for their own purposes. But the administration is drafting new internal guidelines that could permit such sharing, officials said.

That said, it’s clear that NSA shares metadata under ICREACH with other agencies, explicitly including DEA.

If Section 215 Lapsed, Would the Government Finally Accede to ECPA Reform?

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Now that the Section 215 Sunset draws nearer, the debate over what reformers should do has shifted away from whether USA Freedom Act is adequate reform to whether it is wise to push for Section 215 to sunset.

That debate, repeatedly, has focused almost entirely on the phone dragnet that Section 215 authorizes. It seems most of the people engaging in this debate or reporting on it are unaware or uninterested in what the other roughly 175 Section 215 orders authorized last year did (just 5 orders authorized the phone dragnet).

But if Section 215 sunsets in June, those other 175 orders will be affected too (though thus far it looks like FISC is approving fewer 215 orders than they did last year). Yet the government won’t tell us what those 175 orders do.

We know — or suspect — some of what these other orders do. NYT and WSJ reported on a Western Union dragnet that would probably amount to 4-5 orders a year (and would have been unaffected and hidden in transparency reporting under USA Freedom Act).

The FBI has previously confirmed that it used Section 215 to collect records of explosives precursors — things like large quantities of acetone, hydrogen peroxide, fertilizer, and (probably now) pressure cookers; given that the Presidential Review Group consulted with ATF on its review of Section 215, it’s likely these are programmatic collection. (If the government told us it was, we might then be able to ask why these materials couldn’t be handled the same way Sudafed is handled, too, which might force the government to tie it more closely to actual threats.) This too would have been unaffected by USAF.

The government also probably uses Section 215 to collect hotel records (which is what it was originally designed for, though not in the bulk it is probably accomplished). This use of Section 215 will likely be reinforced if and when SCOTUS affirms the collection of hotel records in Los Angeles v. Patel.

But the majority of those 175 Section 215 orders, we now know, are for some kind of Internet records that may or may not relate to cyber investigations, depending on whether you think FBI talks out of its arse when trying to keep authorities, but which they almost certainly collect in sufficient bulk that FISC imposed minimization procedures on FBI.

Which brings me to my argument that reauthorizing Section 215 will forestall any ECPA reform.

We know most Section 215 orders are for Internet records because someone reliable — DOJ’s Inspector General in last year’s report on National Security Letters — told us that a collection of Internet companies successfully challenged FBI’s use of NSLs to collect this stuff after DOJ published an opinion on ECPA in 2008.

The decision of these [redacted] Internet companies to discontinue producing electronic communication transactional records in response to NSLs followed public release of a legal opinion issued by the Department’s Office of Legal Counsel (OLC) regarding the application of ECPA Section 2709 to various types of information. The FBI General Counsel sought guidance from the OLC on, among other things, whether the four types of information listed in subsection (b) of Section 2709 — the subscriber’s name, address, length of service, and local and long distance toll billing records — are exhaustive or merely illustrative of the information that the FBI may request in an NSL. In a November 2008 opinion, the OLC concluded that the records identified in Section 2709(b) constitute the exclusive list of records that may be obtained through an ECPA NSL.

Although the OLC opinion did not focus on electronic communication transaction records specifically, according to the FBI, [redacted] took a legal position based on the opinion that if the records identified in Section 2709(b) constitute the exclusive list of records that may be obtained through an ECPA NSL, then the FBI does not have the authority to compel the production of electronic communication transactional records because that term does not appear in subsection (b).

That report went on to explain that FBI considered fixing this problem by amending the definition for toll records in Section 2709, but then bagged that plan and just moved all this collection to Section 215, which takes longer.

In the absence of a legislative amendment to Section 2709, [2.5 lines redacted]. [Deputy General Counsel of FBI’s National Security Law Branch] Siegel told us that the process of generating and approving a Section 215 application is similar to the NSL process for the agents and supervisors in the field, but then the applications undergo a review process in NSLB and the Department’s National Security Division, which submits the application to the Foreign Intelligence Surveillance Court (FISA Court). According to Siegel, a request that at one time could be accomplished with an NSL in a matter of hours if necessary, now takes about 30-40 days to accomplish with a standard Section 215 application.

In addition to increasing the time it takes to obtain transactional records, Section 215 requests, unlike NSL requests, require the involvement of FBI Headquarters, NSD, and the FISA Court. Supervisors in the Operations Section of NSD, which submits Section 215 applications to the FISA Court, told us that the majority of Section 215 applications submitted to the FISA Court [redacted] in 2010 and [redacted] in 2011 — concerned requests for electronic communication transaction records.

The NSD supervisors told us that at first they intended the [3.5 lines redacted] They told us that when a legislative change no longer appeared imminent and [3 lines redacted] and by taking steps to better streamline the application process.

The government is, according to the report, going through all sorts of hoop-jumping on these records rather than working with Congress to pass ECPA reform.

Why?

That’s not all the Report told us. Even earlier than that problem, in 2007, the IG identified other uncertainties about what the FBI should be obtaining with an NSL, and FBI actually put together a proposal to Congress. The proposed definition included both financial information and what could be construed as location data in toll records. That bill has never been passed.

But while Internet companies have shown reluctance to let the FBI secretly expand the meaning of toll record, two telecoms have not (a third, which I suspect is Verizon, backed out of closer cooperation on NSLs in 2009, and presumably a fourth, which probably is T-Mobile, was never a part of it).

And here’s what happened to the kinds of records FBI has been obtaining (almost certainly from AT&T) in the interim:

Screen Shot 2015-03-19 at 5.15.23 PM

 

FBI is collecting 7 kinds of things from (probably) AT&T that the Inspector General doesn’t think fits under ECPA.

Now, I’m not sure precisely why ECPA reform has gone nowhere in the last 8 years, but all this redaction suggests one reason is the government doesn’t want to be bound by a traditional definition of toll record, so much so it’s willing to put up with the aggravation of getting Section 215 orders for (what may be the same kind of) information from Internet companies in order to not be bound by limits on its telecom (or at least AT&T) NSLs.

Don’t get me wrong. I’d rather have the Internet stuff be under Section 215 orders, where it will be treated with some kind of minimization (the FBI is still completely ignoring the 2006 language in Section 215 requiring it to adopt minimization procedures for that section, but FISC has stepped into the void and imposed some itself).

But ultimately what’s going on — in addition to the adoption of a dragnet approach for phone records (that might have been deemed a violation of 18 USC 2302-3 if litigated with an adversary) and financial records (that might have been deemed a violation of 12 USC 3401-3422 if litigated with an adversary), is that the government is also, apparently, far exceeding the common understanding of NSLs without going back to Congress to get them to amend the law (and this goes well beyond communities of interest — two or maybe three hop collection under an NSL — which isn’t entirely redacted in this report).

It may be moot anyway. I actually wonder whether Internet companies will use the immunity of CISA, if and when it passes, to turn whatever they’re turning over without a Section 215 order.

And it’s not like Pat Leahy and Mike Lee have been successful in their efforts to get ECPA reform that protects electronic communications passed. ECPA isn’t happening anyway.

But maybe it might, if Section 215 were to lapse and the government were forced to stop kluging all the programs that have never really been approved by Congress in the first place into Section 215.

Will Verizon Challenge the Government’s Fishy Dragnet?

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Tim Edgar has a fascinating post on how the SCOTUS decision in Yates v US — in which a guy busted for throwing away undersized fish was let off because those fish do not constitute a tangible object under the law — might have repercussions for the phone dragnet.

The Supreme Court let Yates off the hook.  Five justices agreed that a fish is not a tangible object.  At first blush, this seems a bit implausible.  Justice Kagan certainly thought so.  Her eloquent dissent cites Dr. Seuss’s One Fish Two Fish Red Fish Blue Fish – for a time, my favorite book – as authority that fish are, indeed, tangible objects.  I expect it is the first use of any book by Dr. Seuss as legal authority in an opinion of the Supreme Court, and I must say that I found it squarely on point, if not ultimately persuasive.

Justice Ginsburg’s opinion for the plurality explains that fish are not tangible objects because “in law as in life . . . the same words, placed in different contexts, sometimes mean different things.”

[snip]

Surprisingly, Yates has real implications for national security surveillance.   The NSA’s bulk collection of telephone records is based on section 215 of the Patriot Act, which amended the business records provision of the Foreign Intelligence Surveillance Act (FISA).  That provision is titled “Access to certain business records for foreign intelligence and international terrorism investigations.”  It allows the government to obtain an order from the FISA court “requiring the production of any tangible things(including books, records, papers, documents, and other items)” in national security investigations.

Does this literally mean “any tangible things,” or is this just a catch-all ensuring that  all types of business records are covered?  While the provision is very broad even if limited to business records or data, until Yates it might have meant literally anything at all.  For example, it might be tempting for the government to use it to obtain, in national security investigations, the kind of physical items that would otherwise have required a physical search order.  As a FISA business records order requires only relevance, and not probable cause, that would be a dangerous loophole.  Yates closes it.

Perhaps more to the point, Yates also weakens the government’s bulk collection theory for telephone records.  While Yates is interpreting a different statute, the logic is clear: the words “any tangible things” should not be read literally.  Instead, they must be read in context, taking account of the words immediately surrounding it, the title of the section, the structure of the law, and its purpose.  Read in this way, it is clear that “tangible things” should not be read to encompass things far afield from the sorts of business records that Congress expected would be sought in national security investigations.

[snip]

Bulk collection is qualitatively, not just quantitatively, different from the sorts of requests for records, documents, or other “tangible things” ordinarily made by government both in law enforcement and intelligence investigations. 

Steve Vladeck made a similar observation on Twitter earlier today, so Edgar is not the only one raising this question.

As it happens, today is dragnet renewal day. Which not only means that some FISC judge will reapprove the dragnet, but that providers will get new Secondary Orders. And — as happened in January 2014, when Verizon challenged an order based on Richard Leon’s decision in Klayman v. Obama — that presents the providers with an opportunity to challenge the order based on new legal developments.

And it’s not just Verizon that has a new opportunity to challenge the government’s fishy dragnets.

I’ve long suspected that the government has, in limited fashion, used Section 215 to obtain DNA material (they have databases of DNA from Gitmo detainees, for example, and I can imagine that they’d love to obtain DNA samples where they exist).

More interestingly, we’ve been talking about the government’s use of Section 215 to obtain Internet data, probably in hacking investigations. If, as a number of people suspect, they’re using it to get data flow records, that may be deemed even further away from common definitions of “tangible things.” And the Internet companies are riled up.

So let’s have it, providers! Some challenges to the fishy dragnet!

Update: In the post announcing the reauthorization (yesterday, actually) of the dragnet, I Con the Record noted that this one expires on June 1. I suppose that’s designed to add pressure on the reauthorization fight.  I think that works out to be a 95 day dragnet.

On the USA Freedom Act’s Data Handshake

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As I noted yesterday, part of the effort to pass the USA Freedom Act involved what I call a “data handshake:” A deal whereby all four major telecoms would keep call detail records 2 years, without a mandate to do so.

At Foreign Policy, I have more details on this — with a focus on how this works with the Business Records law that authorizes the phone dragnet.

The terms of the data handshake are the most interesting part. This promise is not in writing. According to Feinstein it is a “personal testament.” (And of course it wasn’t in the bill, where privacy advocates might have objected to it.) The telecom companies could say they were retaining the data for business purposes, though, until now, they’ve had no business purpose to keep the records.

The government has repeatedly told courts that under Section 215, the NSA can only ask telecoms for business records they already hold. Yet Feinstein seems to have revealed, perhaps unintentionally, that under the new law the telecom companies would be willing to hold records at least an extra six months just so the government could presumably spy on their customers, if necessary. And in order to keep the records available under the law, the companies would claim they were keeping the records for business reasons. By doing this orally, no records could be obtained under discovery in a customer lawsuit or leaked by an NSA whistleblower like Edward Snowden. The telecoms could claim that they are not agents of the nation’s spies, even after they seem to have agreed to a handshake deal making them into just that.

Compare agreeing to this data handshake with what Verizon said in June.

At a Senate hearing in June, Verizon’s Associate General Counsel Michael Woods explained that Verizon keeps call detail records for just 12 to 18 months. “We don’t have data five years back,” Woods explained in response to a question from Collins. “All collection would be from our ordinary business records.”

In June, Woods made clear that Verizon objected to holding call detail records longer. His written testimony insisted that “national security is a fundamental government function that should not be outsourced to private companies.” He described that if a telecom company were asked to “retain data for the use of intelligence agencies,” it would be serving as “an agent” of the government.

Now, as I conclude in my piece, the telecoms that agreed to the data handshakes were probably calculating, correctly, that their customers would be better off if they held the records for 6 months longer than they needed to given their business needs than having the government hold them at all. I get the logic behind this deal.

But it is indefensible. The law, as written, cannot oblige Verizon to hold these records. The reason it can’t is because the law was never intended to set up an intrusive dragnet. Had it done so –and hopefully if the government tries to do so now — then it would have been publicly debated. And the program’s inefficacy would have been a much bigger issue.

The strong-arming of telecoms, presumably including Verizon, into this data handshake ought to refocus efforts to find a better solution to get the government the coverage it actually needs, but without inventing dragnets that have not shown to be useful.

 

Dianne Feinstein Describes the Data Handshake

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I’m going to transcribe some comments Dianne Feinstein made Tuesday night about how proponents of USA Freedom Act got around a data mandate requiring telecoms to keep data longer than they otherwise would. The short version? Rather than a data mandate, USA Freedom Act would have relied on a data handshake.

I’m prepared to make the compromise, which is that the metadata will be kept by the telecoms.  Senator Chambliss and I wrote a letter to the four big telecoms, and we asked them if they would hold the data. The answer came back from two, yes. And the answer came back from two, no. Since that time, the situation has changed — not in writing — but by personal testament from two of the companies, that they will hold the data for at least two years for business reasons. Now here’s the problem. The mandate that was inherent in the 215 Act is gone. But the fact is that the telecoms have agreed to hold the data. The President himself has assured me of this.

I’ll write more on this, which is legally unbelievably fascinating. But for now, I just wanted to post it.

Yes, the Government Does Spy Under Grandfathered Approvals

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Charlie Savage is catching no end of shit today because he reported on a provision in the PATRIOT Act (one I just noticed Tuesday, actually, when finding the sunset language for something else) that specifies ongoing investigations may continue even after a sunset.

The law says that Section 215, along with another section of the Patriot Act, expires on “June 1, 2015, except that former provisions continue in effect with respect to any particular foreign intelligence investigation that began before June 1, 2015, or with respect to any particular offense or potential offense that began or occurred before June 1, 2015.”

Michael Davidson, who until his retirement in 2011 was the Senate Intelligence Committee’s top staff lawyer, said this meant that as long as there was an older counterterrorism investigation still open, the court could keep issuing Section 215 orders to phone companies indefinitely for that investigation.

“It was always understood that no investigation should be different the day after the sunset than it was the day before,” Mr. Davidson said, adding: “There are important reasons for Congress to legislate on what, if any, program is now warranted. But considering the actual language of the sunset provision, no one should believe the present program will disappear solely because of the sunset.”

Mr. Davidson said the widespread assumption by lawmakers and executive branch officials, as well as in news articles in The New York Times and elsewhere, that the program must lapse next summer without new legislation was incorrect.

The exception is obscure because it was recorded as a note accompanying Section 215; while still law, it does not receive its own listing in the United States Code. It was created by the original Patriot Act and was explicitly restated in a 2006 reauthorization bill, and then quietly carried forward in 2010 and in 2011.

Now, I’m happy to give Savage shit when I think he deserves it. But I’m confident those attacking him now are wrong.

Before I get into why, let me first say that to some degree it is moot. The Administration believes that, legally, it needs no Congressional authorization to carry out the phone dragnet. None. What limits its ability to engage in the phone dragnet is not the law (at least not until some courts start striking the Administration’s interpretation down). It’s the willingness of the telecoms to cooperate. Right now, the government appears to have a significant problem forcing Verizon to fully cooperate. Without Verizon, you don’t have an effective dragnet, which is significantly what USA Freedom and other “reform” efforts are about, to coerce or entice Verizon’s full cooperation without at the same time creating a legal basis to kill the entire program.

That said, not only is Davidson likely absolutely correct, but there’s precedent at the FISA Court for broadly approving grandfathering claims that make dubious sense.

As Davidson noted elsewhere in Savage’s story, the FBI has ongoing enterprise investigations that don’t lapse — and almost certainly have not lapsed since 9/11. Indeed, that’s the investigation(s) the government appears, from declassified documents, to have argued the dragnet is “relevant” to. So while some claim this perverts the definition of “particular,” that’s not the word that’s really at issue here, it’s the “relevant to” interpretation that USAF leaves intact, effectively ratifying (this time with uncontested full knowledge of Congress) the 2004 redefinition of it that everyone agrees was batshit insane. If you want to prevent this from happening, you need to affirmatively correct that FISA opinion, not to mention not ratify the definition again, which USAF would do (as would a straight reauthorization of PATRIOT next year).

And as I said, there is precedent for this kind of grandfathering at FISA, all now in the public record thanks to the declassification of the Yahoo challenge documents (and all probably known to Davidson, given that he was a lead negotiator on FISA Amendments Act which included significant discussion about sunset procedures, which they lifted from PAA.

For starters, on January 15, 2008, in an opinion approving the certifications for Protect America Act submitted in August and September 2007, Colleen Kollar-Kotelly approved the grand-fathering of the earlier 2007 large content dockets based on the government’s argument that they had generally considered the same factors they promised to follow under the PAA certifications and would subject the data obtained to the post-collection procedures in the certifications. (See page 15ff)

Effectively then, this permitted them to continue collection under the older, weaker protections, under near year-long PAA certifications.

In the weeks immediately following Kollar-Kotelly’s approval of the underlying certifications (though there’s evidence they had planned the move as far back as October, before they served Directives on Yahoo), the government significantly reorganized their FAA program, bringing FBI into a central role in the process and almost certainly setting up the back door searches that have become so controversial. They submitted new certifications on January 31, 2008, on what was supposed to be the original expiration date of the PAA. As Kollar-Kotelly described in an June 18, 2008 opinion (starting at 30), that came to her in the form of new procedures received on February 12, 2008, 4 days before the final expiration date of PAA.

On February 12, 2008, the government filed in each of the 07 Dockets additional sets of procedures used by the Federal Bureau of Investigation(FBI) when that agency acquires foreign intelligence information under PAA authorities. These procedures were adopted pursuant to amendments made by the Attorney General and the Director of National Intelligence (DNI) on January 31, 2008 to the certifications in the 07 Dockets.

Then, several weeks later — and therefore several weeks after PAA expired on February 16, 2008 — the government submitted still new procedures.

On March 3, 2008, the government submitted NSA and FBI procedures in a new matter [redacted]

[snip]

Because the FBI and NSA procedures submitted in Docket No. [redacted] are quite similar to the procedures submitted in the 07 Dockets, the Court has consolidated these matters for purposes of its review under 50 U.S.C. § 1805c.

For the reasons explained below, the Court concludes that it retains jurisdiction to review the above-described procedures under §1805c. On the merits, the Court finds that the FBI procedures submitted in each of the 07 Dockets, and the NSA and FBI procedures submitted in Docket No. [redacted] satisfy the applicable review for clear error under 50 U.S.C. § 1805c(b).

She regarded these new procedures, submitted well after the law had expired, a modification of existing certifications.

In all [redacted] of the above-captioned dockets, the DNI and the Attorney General authorized acquisitions of foreign intelligence information by making or amending certifications prior to February 16, 2009, pursuant to provisions of the PAA codified at 50 U.S.C. § 1805b.

She did this in part by relying on Reggie Walton’s interim April 25, 2008 opinion in the Yahoo case that the revisions affecting Yahoo were still kosher, without, apparently, considering the very different status of procedures changed after the law had expired.

The government even considered itself to be spying with Yahoo under a September 2007 certification (that is, the latter of at least two certifications affecting Yahoo) past the July 10, 2008 passage of FISA Amendments Act, which imposed additional protections for US persons.

These are, admittedly, a slightly different case. In two cases, they amount to retaining older, less protective laws even after their replacement gets passed by Congress. In the third, it amounts to modifying procedures under a law that has already expired but remains active because of the later expiration date of the underlying certificate.

Still, this is all stuff the FISC has already approved.

The FISC also maintains — incorrectly in my opinion, but I’m not a FISC judge so they don’t much give a damn — that the 2010 and 2011 PATRIOT reauthorizations ratified everything the court had already approved, even the dragnets not explicitly laid out in the law. This sunset language was public, and there’s nothing exotic about what they say. To argue the FISC wouldn’t consider these valid clauses grand-fathering the dragnet, you’d have to argue they don’t believe the 2010 and 2011 reauthorizations ratified even the secret things already in place. That’s highly unlikely to happen, as it would bring the validity of their 40ish reauthorizations under question, which they’re not going to do.

Again, I think it’s moot. The “reform” process before us is about getting Verizon to engage in a dragnet that is not actually authorized by the law as written. They’re not doing what the government would like them to do now, so there’s no reason to believe this grandfathered language would lead them to suddenly do so.

Only Remaining Senator Personally Targeted by Terrorist Attack Still Believes in Constitution

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The Senate just voted down cloture on the USA Freedom Act, 58-42. Even while we disagreed on the bill, I extend sincere condolences to civil liberties allies who worked hard to pass this in good faith. I know you all have worked hard in good faith to pass something viable.

Several things about the vote were predictable (in fact, I predicted them in June). Just as one example, I noted to allies that if Jeff Flake — who had a great record on civil liberties while he was still in the House — did not support the effort, it would fail. Four Senators — cosponsors Mike Lee, Ted Cruz, and Dean Heller, plus Lisa Murkowski voted for cloture; Rand Paul did not. Bill Nelson voted against cloture as well (there are reports he is claiming it was a mistake, but given how closely this bill was whipped that would be … telling).

Equally predictable was the fear-mongering. GOP Senator after GOP Senator got up and insisted if the phone dragnet ended, ISIL would attack the country. None noted, of course, that the phone dragnet had never succeeded in preventing a terrorist attack. Pat Leahy made that point but it’s one opponents of the dragnet need to make in more concerted fashion.

Then there was a piece of news that neither side — supporter or opponent — seemed to want to mention. Dianne Feinstein revealed that at first 2 of 4 providers (presumably the fourth is T-Mobile though it could even be Microsoft, given that Skype is a more important phone carrier for international traffic) had refused to keep phone records, but that they had voluntarily agreed to do so for a full two years (this is at least a 6 month extension for Verizon, though may be significantly longer for cell calls).

The most dramatic part of the debate came after everyone left, when a frustrated Pat Leahy made the case for defending the Constitution. He recalled the anthrax letter addressed to him, on September 18, 2001, that killed a postal worker who processed it (another letter killed a Tom Daschle aide see Meryl Nass’ correction). “13 years ago this week, a letter was sent to me, addressed to me. It was so deadly, with the antrax in it that one person who touched the envelope–addressed to me, that I was supposed to open–They died!” Leahy reminded that the FBI had still not caught all the culprits for the attack. (That he believes that was first reported here in 2008; I believe FBI has, in fact, caught none of the culprits.) That attack targeting him personally, Leahy noted, did not convince him he had to abrogate the Constitution. “This nation should not let our liberties to be set aside by passing fears.” Leahy said. “If we do not protect our Constitution we do not deserve to be in this body.”

Senators like Marco Rubio got up and screamed about terrorists. But unless I’m mistaken, Pat Leahy is the only one remaining in the Senate who was personally targeted by a terrorist.

Maybe we ought to highlight that point?

Updated w/additions from Leahy’s comments.