Documents Obtained By The ACLU Show NSA's Inability To Prevent Collection Of US Persons' Data And Communications

from the sued-into-translucence dept

Thu, Nov 6th 2014 2:44pm — Tim Cushing

The ACLU has freed up more NSA documents -- again as the result of a FOIA lawsuit. Some of what's been obtained provides a few more details on the NSA's reliance on Executive Order 12333 to perform its data and communications harvesting. This Executive Order is, and always has been, the go-to authority for the NSA. This allows it to bypass nearly every form of oversight. There's no FISA court involvement or input from Congressional oversight committees. The NSA relies almost exclusively on the good graces of the Executive Branch -- something that has worked out in its favor for the past two presidencies.

The NSA's Office of General Counsel issued a memo discussing the agency's SIGINT (signals intelligence) work in 2007 as a response to questions from the executive branch. As is par for the course, the memo expresses its concerns for the rights of "US persons," as well as the agency's strict compliance with the Fourth Amendment. All well and good as far as that goes, which isn't very far.

[W]e conclude that compliance with NSA's Attorney General-approved minimization procedures, which are required by Executive Order 12333 and are rooted in Fourth Amendment privacy protections, constrains NSA from granting to employees of other intelligence agencies widespread access to NSA content databases.

Which is true, more or less. Agencies like the UK's GCHQ are given broad access to raw, unminimized data and communications collected by the NSA, all without a warrant. The built-in argument is that the NSA doesn't release unminimized US person data or communications to its Five Eyes partners. But this distinction makes very little difference in practice.

As a practical matter, metadata from electronic communications such as email cannot be similarly shared at the moment under the same theory, because it is not possible to determine what communications are to or from U.S, persons nearly as readily as is the case with telephony, and often is not possible at all.

As a "practical matter," nearly nothing the NSA collects should be shared, considering the untargeted manner in which it's collected. The NSA can't guarantee anything about the composition of its bulk collections, but that doesn't stop it from disseminating unminimized data/communications to its foreign "customers." In fact, the document clearly states that the agency feels there are zero protections inherent in "meta data," which means the sharing of identifying information (like phone numbers) with foreign intelligence agencies is perfecty acceptable.

A more recent memo -- issued in 2013 -- notes the further expansion of its powers under EO 12333. The document describes the 2008's modification of the 1981 Order, which consolidated signals intelligence programs under the Director of the National Security Agency. This also brought the Director of the CIA onboard as the head of Human Intelligence. The FBI was also brought in under the expansion of this directive, which added a new layer of middle management -- "functional managers" -- to the mix. These positions are in place to "weigh" the effectiveness of the interconnected agencies' programs against the "National Intelligence Priorities Framework," something that has rarely worked out in favor of privacy or civil liberties.

RAW SIGINT Memo (PDF)RAW SIGINT Memo (Text)

Authorities of SIGINT Functional Manager (PDF)Authorities of SIGINT Functional Manager (Text)

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Filed Under: 4th amendment, eo 12333, executive order 12333, foia, nsa, privacy, surveillance, us persons
Companies: aclu

19 Comments

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Anonymous Coward, 6 Nov 2014 @ 3:02pm

"Inability"

Ha, right. "Look at us we're so helpless collecting all this juicy data on all Americans. What will we ever do?!"
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beech, 6 Nov 2014 @ 3:12pm

Response to: Anonymous Coward on Nov 6th, 2014 @ 3:02pm
"And while we're intercepting every communication that crosses into the country, you expect us to be able to run a search function on our own email provider? Inconceivable! We're not wizards! "
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AtlantaJeweler (profile), 6 Nov 2014 @ 3:23pm

Finding Nuggets
The NSA is way out of line in violating the Constitutional rights of citizens under the guise of finding nuggets of "important security information". The world has become a relatively small space and the government knows the identity of the major threat groups and individuals. Unfortunately the government is more concerned with citizens who voice disagreement with Policy rather than eradicating terror groups. It's worth noting that the majority of our elected officials in D.C. seemingly have no interest in protecting the Constitutional rights of citizens by prosecuting those that are in violation of Federal laws.
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Anonymous Coward, 6 Nov 2014 @ 4:39pm

... elected officials in D.C. seemingly have no interest in protecting the Constitutional rights of citizens...

But they don't mind protecting their own as seen with the incident of the CIA and Senator Fienstien. It was sure a different colored horse when that happened.

This gets right to the heart of why it is so venomously fought in courts with the National Security tags. Were the topic of Constitutional rights ever exposed for what it is they know this would fail to pass the criteria. They are not fools, they know this.

To them it is inconceivable to have to hit the power switch to the vacuum cleaner. Rather than do any sort of changes, the FUD will come out 10 fold over dire predictions.
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tqk (profile), 6 Nov 2014 @ 7:45pm

Re: Response to: Anonymous Coward on Nov 6th, 2014 @ 3:02pm
Just so you know, I know a guy in Sudan who, at the height of US sanctions against that country, used a hotmail email address. I suspect he still uses it. How's anyone to know what country he's in, or from, when all you see is ...@somewebmail.com?
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Pixelation, 6 Nov 2014 @ 9:08pm

Re: Re: Response to: Anonymous Coward on Nov 6th, 2014 @ 3:02pm
If you know a guy from Sudan you must be a terrorist...
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Anonymous Coward, 6 Nov 2014 @ 10:08pm

With how the NSA is making slaves of us all to protect our "freedoms" I am surprised they haven't declared submitting FOIA a terrorist act that makes a person subject to immediate arrest and imprisonment without trial.
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Anonymous Coward, 6 Nov 2014 @ 11:17pm

Re: Re: Re: Response to: Anonymous Coward on Nov 6th, 2014 @ 3:02pm
Hey! I'll have you know I know tons of American-grown terrorists! They have e-mails and everything!
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Anonymous Coward, 7 Nov 2014 @ 6:57am

Anyone with a little bit of understanding of how the internet actually works understood this to be true from the beginning.

I would like them try to explain how this isn't clearly unconstitutional, but realistically they are so full of shit anything they would try to 'explain' to you would take twisting of common English vocabulary...
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tqk (profile), 7 Nov 2014 @ 7:01am

Re: Re: Re: Response to: Anonymous Coward on Nov 6th, 2014 @ 3:02pm
The real terrorists were lobbing cruise missiles at empty pharmaceutical factories there at the time.

George Washington was a terrorist, depending on who you asked. Can't be all that bad.

I define terrorist as one who mass murders innocent non-combattants. So much for Winston Churchill and Harry Truman.
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John Fenderson (profile), 7 Nov 2014 @ 7:55am

Re: Re: Re: Re: Response to: Anonymous Coward on Nov 6th, 2014 @ 3:02pm
"I define terrorist as one who mass murders innocent non-combattants."

I define it a little differently. Your definition is simply that of mass murderers. To me, a terrorist is someone who uses fear as a means of social control and manipulation.
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tqk (profile), 7 Nov 2014 @ 10:41am

Re: Re: Re: Re: Re: Response to: Anonymous Coward on Nov 6th, 2014 @ 3:02pm
... a terrorist is someone who uses fear as a means of social control and manipulation.

That reduces the word to meaningless. There was one heck of a lot of that going on in the US just a couple of days ago. Maybe you need to use, "terrorist is someone who uses terror ...", but that's self-referential which doesn't make for a good definition.

Nit picking: the MMORPG for the 21st Century. :-)
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Cal (profile), 7 Nov 2014 @ 11:06am

"Some of what's been obtained provides a few more details on the NSA's reliance on Executive Order 12333 to perform its data and communications harvesting. This Executive Order is, and always has been, the go-to authority for the NSA. This allows it to bypass nearly every form of oversight. "

Actually, the Constitution of the united States of America IS the last, and first, word considering lawfulness here in the USA.

It says that ALL (meaning every single bit) of legislation:

US Constitution. Article. I. Section. 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Notice that no where is mentioned any other branch of the federal government. It is also important to realize that it does NOT matter over how many years, or who all did it, it is STILL unlawful.

That EVERY person who served within the federal government and let executive orders "slide" are guilty of a felony.

The US Constitution and all that is in Pursuance thereof it is the Supreme LAW of THIS land. Executive orders are forbidden by it to both the legislative and the judicial branches by the word "All".

The Bill of Rights Preamble lets everyone know that it further adds things to the forbidden and "only-done-in-a-specific-in-writing- way" list. (caps are mine)

Preamble to the Bill of Rights

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, IN ORDER TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS, THAT FURTHER DECLARATORY AND RESTRICTIVE CLAUSES SHOULD BE ADDED: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Amendment IV says EXACTLY how these things ARE allowed to be done within our nation: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Since there was no warrants issued, and it matters NOT what those domestic enemies occupying our courts at this time say, what they are doing amounts to treason and to *terrorism against Americans and the USA from domestic enemies.

*28 C.F.R. Section 0.85 Terrorism is defined as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives”.
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John Fenderson (profile), 8 Nov 2014 @ 11:19am

Re: Re: Re: Re: Re: Re: Response to: Anonymous Coward on Nov 6th, 2014 @ 3:02pm
"There was one heck of a lot of that going on in the US just a couple of days ago. "

Indeed yes.

I agree. The problem, really, is that "terrorism" is more of a marketing term than a meaningful one. every definition I've seen (including the ones used by the US government -- which are closer to mine than yours) are ambiguous to the point of meaninglessness.
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tqk (profile), 9 Nov 2014 @ 2:02pm

Re: thnaks
I define it a little differently. Your definition is simply that of mass murderers. To me, a terrorist is someone who uses fear as a means of social control and manipulation.

That's strange. I thought that's what John F. said:
I define it a little differently. Your definition is simply that of mass murderers. To me, a terrorist is someone who uses fear as a means of social control and manipulation.

In answer, you're welcome to refer back to my reply to him.

What's going on?
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tqk (profile), 9 Nov 2014 @ 2:50pm

Fifth Columnists alert.
What do these have in common:

http://www.bursachat.net/
http://www.hazalsena.com/
http://cografyabilimi.net/
http://www.besici ftligi.com/
http://www.ledisiksuslemeleri.com/

Why are they having an apparently private conversation here unrelated to any TD stories?
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PariteHaber, 15 Nov 2014 @ 2:09pm

Thank You
Thank You Friends
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Chat, 15 Nov 2014 @ 2:30pm

A more recent memo -- issued in 2013 -- notes the further expansion of its powers under EO 12333. The document describes the 2008's modification of the 1981 Order, which consolidated signals intelligence programs under the Director of the National Security Agency. This also brought the Director of the CIA onboard as the head of Human Intelligence. The FBI was also brought in under the expansion of this directive, which added a new layer of middle management -- "functional managers" -- to the mix. These positions are in place to "weigh" the effectiveness of the interconnected agencies' programs against the "National Intelligence Priorities Framework," something that has rarely worked out in favor of privacy or civil liberties. probleme
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Talha, 17 Nov 2014 @ 7:45am

No subject
I define it a little differently. Your definition is simply that of mass murderers. To me, a terrorist is someone who uses fear as a means of social control and manipulation.

http://www.sinetayfa.net/forum.php
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