Puerto Rico's Justice Department Demanded Info From Facebook About Journalists Who Livestreamed Protests

from the not-how-that-works dept

Historically, the DOJ hasn't really let the First Amendment stand in the way of its investigations. In very recent history, the FBI has targeted journalists to hunt down leakers, and has impersonated journalists during investigations. While the DOJ and FBI have dealt with some limited repercussions due to their targeting of First Amendment activities (which includes targeting Muslims because they're Muslims), it really hasn't promised to stop doing this. Nor has it been told to stop doing this. Instead, the DOJ has simply made it slightly more difficult for investigators to violate people's rights.

The Intercept has done some investigating of its own and discovered the FBI actively engaged in First Amendment violations for years during its partnership with Puerto Rican law enforcement agencies.

For decades, Puerto Rico’s police department operated an intelligence unit dedicated to spying on dissidents. With the knowledge of the FBI, police officers created a file, known as a carpeta, for anyone who could be construed as a supporter of Puerto Rican independence or other environmental or labor causes. Officers recruited neighbors, friends, and relatives to collect information about those targeted, and planted rumors that led to divorce, job loss, and irreparable discord within communities and families.

75,000 of these files were created. This secret surveillance was finally revealed in 1987 and was ruled unconstitutional in 1988 by a Puerto Rican court. That should have ended it. Instead, the surveillance of First Amendment-protected activities is alive and well, headed by the island's Justice Department. Seven students are facing charges related to a nonviolent anti-austerity protest held in 2017. To locate the suspects it wanted to charge, the Justice Department targeted the student publications that streamed footage of the demonstration.

The documents released to defense attorneys provide... evidence of a broad and invasive hunt for prosecutable crimes related to the protests. An agent from the cybercrimes unit of Puerto Rico’s Justice Department sought a search warrant for the records of virtually every Facebook interaction over a 72-hour period with the three publications that livestreamed the protest. The agent obtained private messages with the publications’ followers and detailed information about the student journalists who managed the pages.

The warrant demanded everything. It asked Facebook to hand over searches performed by page administrators, any content that had been deleted, GPS coordinates for posts, IMSI numbers from associated phones, and billing records. The agent working for the Justice Department claimed this was a normal thing to do during an investigation of an incident where no one was arrested, saying all this was needed to collect "evidence" of supposed criminal activity.

Again, the protest being investigated resulted in only a small amount of property damage and zero arrests. Only in hindsight did Puerto Rican law enforcement decide some people needed to be prosecuted and, bizarrely, decided to start this investigation by demanding information about journalists who did nothing more than record the demonstration.

Unfortunately, this sort of thing seems to be increasing, rather than being relegated to law enforcement agencies' pasts. The protests that greeted Trump's inauguration did result in property damage and violence, but the investigation started with broad demands for data on the 1.2 million visitors to a protest group's website.

This investigation also involved a protest, one that lasted only a half-hour, and resulted in a broken glass door and some damaged furniture. This led to an investigation where 1,553 pages of information about student journalists were handed over to the Justice Department by Facebook. And for what? To investigate people who weren't even participating in the protest? To give the government evidence it doesn't even appear to be interested in using in this case?

Collateral damage to rights is something to be taken seriously. Targeting one First Amendment activity (protesting) through the Facebook pages of another First Amendment activity (journalism) is pretty much the worst way to investigate anything. In this case, the obvious problems were made worse by the government's inability (or unwillingness) to narrow the scope of data demands. And the demand for info should never have been approved by any level of oversight (judicial or otherwise) without more restrictions being put in place.

Filed Under: 1st amendment, doj, fbi, investigations, journalism, privacy, protests, puerto rico, surveillance
Companies: facebook

FISA Court Orders FBI To Start Cleaning Up Its Carter Page Surveillance Mess

from the fool-me-a-dozen-or-more-times,-here's-another-angry-court-order dept

The FBI's abuse of its surveillance powers in the Carter Page investigation -- uncovered by the Inspector General -- is now being addressed by the FISA court. The FISA court is often considered to be a rubber stamp for government applications -- only very rarely rejecting the government's national security advances.

Some of this is due to deference the government very definitely hasn't earned. But some of this is due to the FISA court flying blind. The government still keeps secrets from the nation's most secretive court and judges are forced to accept its assertions because they don't possess the information needed to push back against the government's claims.

The Inspector General's report highlighted more abuses by the FBI during its investigation of former Trump campaign advisor, Carter Page. The IG found the FBI had omitted info that likely would have seen its applications denied, most notably knowledge it had obtained from its sources that Carter Page most likely wasn't acting as an agent of a foreign power.

The first application made to the court in October 2016 was probably legitimate. The other two applications seeking to continue surveillance of Page weren't. Had the FBI been honest in its applications, the two extensions would likely have been rejected by the FISA court.

With this info in hand, the FISA court is moving forward with another attempt to keep the FBI from abusing its national security privileges. We'll see if it works. So far, nothing has permanently prevented any agency with access to the FISA court from abusing its surveillance powers.

The corrective actions began with a December 2019 order that demanded the FBI identify any other matters before the court that involved FBI lawyer Kevin Clinesmith. Clinesmith altered an email from another US government agency to hide the fact that Page was a government source for this agency. The FBI lawyer has since resigned and been referred to the DOJ for criminal charges.

The latest order [PDF] is another rarity for the FISA court, but sketchy times call for greater transparency. If the FBI doesn't want its dirty laundry aired publicly by the secret court, perhaps it shouldn't create so much of it. Very few orders have been released by the FISA court without a (regular) court battle, so the FISA court's proactiveness is still very much an anomaly.

The order makes more demands of the FBI. The court wants to know how the agency is going to make things right. In reference to the Carter Page surveillance applications, the court demands the FBI to explain how it's going to "sequester" everything the FBI collected on/from Carter Page using its bogus applications.

It also wants a detailed description of what the FBI/DOJ is doing to restrict access to unminimized US person info gathered during the Carter Page investigation, as well any restrictions it has placed on access/dissemination of info on Page it never should have collected, much less distributed in the first place.

The Intelligence Community's string of surveillance abuses remains unbroken. Because the FISA court is only barely adversarial, the government is able to run its bullshit pretty much uncontested. Once again, it took outside help -- namely, the Inspector General's office -- to show the court what the FBI was really doing. The only question is how often the court is willing to get burnt by its untrustworthy patrons.

Filed Under: carter page, doj, fbi, fisa, fisa court, fisc, inspector general, transparency

Attorney General Barr's Anti-Encryption Efforts Aren't Supported By Many FBI Officials

from the going-to-war-with-the-one-many-army-you-have dept

When Attorney General William Barr speaks, he represents the DOJ and all the agencies it oversees. The problem is that Bill Barr's recent anti-encryption agitating doesn't reflect the views of the people he oversees. While Barr is trying to turn the public against Apple by suggesting it protects terrorists and murderers, FBI employees are worried his words and actions will harm them more than help them.

The Wall Street Journal spoke to people in the FBI and DOJ who aren't convinced Barr's doing the right thing by taking a hardline stance on encryption. [Non-paywalled version here.]

Some senior FBI officials say privately they are worried that Mr. Barr’s sharp tone could undermine relationships with technology companies they have worked hard to develop, people familiar with the matter said.

The bureau relies on close partnerships with tech firms in a range of investigations, with companies complying with legal requests for data and troubleshooting technical obstacles that agents may struggle with, current and former officials said.

Pushing Apple is unproductive. It damages relationships while gaining absolutely nothing for the DOJ and FBI. Apple has already given the FBI all the information it can pull from the Pensacola shooters' accounts. Breaking encryption simply isn't an option -- not when it leads directly to reduced security for the rest of Apple's customers.

Many in the FBI realize this. Barr just doesn't seem to care. If Barr continues to push his anti-encryption agenda, he not only risks reducing cooperation from tech companies but also the trust of the people who work for him. Barr says Apple's not doing enough to help investigations. Internally, the FBI disagrees.

Some FBI officials were stunned by Mr. Barr’s rebuke of Apple, the people familiar with the matter said, and believe the Pensacola case is the wrong one to press in the encryption fight, in part because they believed Apple had already provided ample assistance to the probe.

Barr's ultimate goal may be another courtroom showdown. Others in the FBI would prefer precedent to outside help from phone-cracking companies. Barr has aligned himself with those officials. But the ones pushing for precedent seem unaware of how much collateral damage the FBI itself might suffer if things don't work out the way Barr wants them to.

[Former DHS Secretary Michael] Chertoff said a court ruling against the Justice Department could limit access to widely available forensic tools that allow investigators to get into phones in some situations, for instance. “It’s not clear to me why this fight is advantageous to anybody,” he said.

Barr and those like them so firmly believe they're in the right, they're seemingly incapable of considering the negative consequences of their actions. Precedent that safeguards people's phones against encryption-breaking efforts works against the government, restricting its access to outside assistance. But even if the FBI gets the precedent it wants, the nation as a whole will be less secure because encryption will be compromised severely and permanently. Barr and his anti-encryption buddies are willing to sacrifice everyone else's security for their own ends. That's not just selfish. It's also dangerous.

Filed Under: doj, encryption, fbi, going dark, william barr
Companies: apple

The FBI Can Get Into The Latest IPhones, So Why Is It Asking Apple To Break Encryption On Older Models?

from the reminder:-the-FBI-still-hasn't-updated-its-locked-device-count dept

The FBI has asked Apple to break the encryption on devices owned by the Pensacola Naval Base shooter. It hasn't made this request officially -- there's no court order being sought to compel Apple's assistance -- but it's asking nonetheless.

Attorney General Bill Barr put a little more muscle behind the FBI's informal request. His statement insinuated that Apple was making the country less safe by refusing to break encryption. He also stated that time was of the essence in cases like this and Apple's general unhelpfulness wasn't acceptable.

Apple fired back by again stating it would not break phone encryption for the US government. It also pointed out the FBI did not inform of it a second locked device until a month after the shooting. If the government was concerned about time slipping away, it did not act with alacrity during this latest investigation.

Donald Trump followed Bill Barr's lead, attacking Apple via Twitter with a particularly stupid tweet that suggests the president is still all about quid pro quo.

The administration is trying to turn public opinion against Apple. This will make it easier to push anti-encryption laws and policies. But the FBI doesn't seem to need Apple to break encryption for it. It has options it's apparently decided not to use in this case.

As we've noted earlier, a handful of tech companies offer devices that break or bypass encryption to pull data and communications from locked phones. Yes, it's still an arms race, with companies like Apple patching the flaws these tools exploit, but there's plenty of money to be made cracking open devices for government agencies.

The FBI isn't interested in these tools, except when it's convenient for the agency. Legal precedent compelling phone manufacturers to break encryption is infinitely more useful to the FBI. So, it chooses to ignore these options when it thinks it has a compelling case for encryption backdoors. That's what appears to be happening here.

Thomas Brewster of Forbes says the FBI has used third-party hacking tools to access the contents of Apple's latest iPhone.

Last year, FBI investigators in Ohio used a hacking device called a GrayKey to draw data from the latest Apple model, the iPhone 11 Pro Max. The phone belonged to Baris Ali Koch, who was accused of helping his convicted brother flee the country by providing him with his own ID documents and lying to the police.

If the FBI can get into the newest devices, why does it need Apple to break encryption on the shooters' phones, which are much older?

Given the models in the Pensacola shooting case are iPhones 5 and 7, it’s unclear why a GrayKey hasn’t proven useful in that investigation. Forbes has previously revealed a GrayKey brochure that showed it worked on older devices, too.

It's a question the DOJ probably doesn't want to answer. It will have to, though. Senator Ron Wyden has already asked the DOJ to explain its actions in this case.

The most obvious answer is this: this case pushes all the buttons the administration wants pressed. It involves the shooting of US military members by a foreigner. The San Bernardino shooting was pretty much the same thing: the shooting of government employees by foreigners. These are the only two cases where the FBI has gone public about its desire to force Apple to undermine its own encryption. For everything else, there are third-party hacking tools that actually give the FBI the evidence it wants without undermining the security of millions of iPhone users.

The FBI will only push for precedent when it thinks it has the public's support. It failed to read the room during the San Bernardino case. It hasn't gotten any better at gauging public opinion since then. Even with Barr and Trump going on the attack, the public's mood hasn't shifted. Compelled encryption-breaking makes everyone less secure, not just the targets of investigations. Trying to parlay dead people's phones into court precedent is not a good look for the agency. But the agency -- and the administration running it -- don't particularly care what the public wants or is best for it.

Filed Under: chris wray, doj, encryption, fbi, going dark, graykey, pensacola, technology, william barr

New Report Says Apple Dropped Plans To Fully Encrypt Backups After FBI Complained

from the encrypt-all-the-things dept

As Attorney General William Barr and other law enforcement officials continue to insist (falsely) that Apple refuses to cooperate with them in undermining encryption and security on all iPhones, plenty of people have been pointing out for years that the reality is that most iPhone encryption is effectively meaningless, because if a user has iCloud backups on, Apple retains the key to that data and can (and does!) open it up for legitimate law enforcement requests. In other words, it's extremely rare that full device encryption actually keeps law enforcement out (and that leaves aside the fact that technological solutions exist for law enforcement to hack into most iPhones anyway). Indeed. as you might recall, during the FBI's last big fight about encryption with Apple, over San Bernardino shooter Syed Farook's iPhone, it was revealed that the FBI's own incompetence resulted in Farook's backups being wiped out before the FBI had a chance to access them.

For quite some time now, EFF and others have urged Apple to close this loophole and allow for truly encrypted iCloud backups, such that even Apple can't get in. Apple has toyed with the idea, but as Tim Cook has said a few times, the company chose not to do it this way after weighing the pros and cons from a user's perspective. The key issue: if something is fully encrypted and Apple doesn't have the key, if you lose your password, the data is effectively gone. There is no "password reset" if Apple doesn't retain the key:

There our users have a key and we have one. We do this because some users lose or forget their key and then expect help from us to get their data back.

However, in that same interview, Cook did suggest that Apple would move towards encrypting backups as well:

It is difficult to estimate when we will change this practice. But I think that will be regulated in the future as with the devices. So we will not have a key for it in the future.

I think that there are legitimate user-centric reasons for the decision that Apple made, though it seems clear that many, many people don't realize that Apple still has the key to their backups. However, a new report from Reuters says that Apple killed plans to offer fully encrypted backups after the FBI got upset about it:

Apple Inc dropped plans to let iPhone users fully encrypt backups of their devices in the company’s iCloud service after the FBI complained that the move would harm investigations, six sources familiar with the matter told Reuters.

The tech giant’s reversal, about two years ago, has not previously been reported. It shows how much Apple has been willing to help U.S. law enforcement and intelligence agencies, despite taking a harder line in high-profile legal disputes with the government and casting itself as a defender of its customers’ information.

At the very least, this shows (yet again) that Barr and other law enforcement officials are blatantly lying when they say that Apple does not cooperate with law enforcement or that it doesn't take the concerns they raise seriously. On the flip side, it is a bad look for Apple, in that it has chosen to avoid a more secure option for its users' data, going against the company's long-standing public support for encryption and protecting users' data.

Again, even if there is a legitimate reason for not encrypting backups -- and it's equally true that if Apple did offer it, there would be public complaints of people no longer having access to their data -- it's troubling that Apple won't even make this an option (with clear warning statements) for end users, and that they're doing so because of blatant fearmongering by law enforcement officials.

Of course, the other way one might look at this decision is that if Apple had gone forward with fully encrypting backups, then the DOJ, FBI and other law enforcement would have gone even more ballistic in demanding a regulatory approach that blocks pretty much all real encryption. If you buy that argument, then failing to encrypt backups is a bit of appeasement. Of course, with Barr's recent attacks on device encryption, it seems reasonable to argue that this "compromise" isn't enough (and, frankly, probably would never be enough) for authoritarian law enforcement folks like Barr, and thus, it's silly for Apple to even bother to try to appease them in such a manner.

Indeed, all of this seems like an argument for why Apple should actually cooperate less with law enforcement, rather than more, as the administration keeps asking. Because even when Apple tries to work with law enforcement, it gets attacked as if it has done nothing. It seems like the only reasonable move at this point is to argue that the DOJ is a hostile actor, and Apple should act accordingly.

Filed Under: backups, doj, encryption, fbi, going dark, icloud, pressure
Companies: apple

Attorney General William Barr Says Apple Isn't Doing Enough To Let The DOJ Check Out A Dead Man's Phones

from the give-it-a-rest,-Bill dept

The DOJ has asked somewhat politely for Apple to break the encryption on some iPhones. Last time, the request wasn't so polite. It involved a legal battle that only ended when a third-party cracked the San Bernardino's iPhone for the FBI. Nothing of interest was recovered from that phone.

Another shooting and another dead shooter has brought Apple and the DOJ together again. The DOJ's counsel sent a letter to Apple asking it to break into two phones recovered from the shooter. Apple stated it had already given the DOJ all the information it could recover without actually cracking the devices. This isn't good enough for the DOJ, which believes the possession of a warrant should trump any concerns about creating encryption backdoors.

There's been no demand made in court… yet. But Attorney General Bill Barr -- whose antipathy towards encryption has been stated multiple times -- is trying to apply a little more extrajudicial pressure.

Attorney General William P. Barr declared on Monday that a deadly shooting last month at a naval air station in Pensacola, Fla., was an act of terrorism, and he asked Apple in an unusually high-profile request to provide access to two phones used by the gunman.

[...]

“This situation perfectly illustrates why it is critical that the public be able to get access to digital evidence,” Mr. Barr said, calling on technology companies to find a solution and complaining that Apple had provided no “substantive assistance.”

It actually illustrates nothing of the sort. "Substantive evidence" is unlikely to be found on the shooter's phones. While the DOJ has pointed to evidence the shooter was "radicalized" on social media, it can only speculate about what evidence can be recovered from the phones, one of which partially destroyed by a deputy's bullet during the shootout with the gunman.

The DOJ's assertions undercut Bill Barr's claims that Apple has provided "no substantive assistance." Barr said that the evidence the DOJ already has shows the "shooter was motivated by jihadist ideology." This is based on social media messages and other content recovered by the DOJ, some of it likely from Apple itself.

There's not much of a case to be built against a dead man. And there's probably some value in mining contacts and text messages, but it's dubious to claim the evidence that might reside on the locked devices will be a game changer for the FBI or result in new leads that could prevent future shootings.

Nevertheless, the Attorney General insists Apple is preventing law enforcement from doing its job. According to Barr, a warrant is all anyone should need to see to start cracking open cellphones for the FBI.

Mr. Barr indicated that he is ready for a sharp fight. “We don’t want to get into a world where we have to spend months and even years exhausting efforts when lives are in the balance,” he said. “We should be able to get in when we have a warrant that establishes that criminal activity is underway.”

This is the leverage. Any tragedy with an iPhone in the mix is fodder for the DOJ's anti-encryption efforts. Third-party services can help the FBI achieve what Barr says it wants to achieve: speedy recovery of evidence from locked devices. But Barr and the agencies he represents only want outside help from the courts -- precedent that will make all cellphone users less safe in the name of securing the nation.

Filed Under: doj, encryption, fbi, going dark, iphones, terrorism, william barr
Companies: apple

San Bernardino 2.0: FBI Asking Apple To Crack Encryption On Phones Owned By Pensacola Naval Station Gunman

from the encryption-is-letting-dead-men-get-away-with-crimes-they-already-committed dept

It looks like the FBI wants to relitigate the San Bernardino shooting. After that tragedy, the FBI tried (and failed) to obtain legal precedent forcing cellphone manufacturers to crack open seized phones at the drop of a warrant. Finally, a third party sold a solution to the FBI that opened the phone and allowed it to recover nothing useful whatsoever from the shooter's device.

The FBI was displeased that it didn't get this precedent. Internal communications showed FBI officials were doing everything they could to avoid using a third-party solution. The theoretical existence of evidence related to a tragic shooting was the only leverage the FBI had and a private company's cracking service took that leverage away. It could no longer claim approaching Apple directly was the only way to access the contents of the phone.

The FBI is trying again. It has more locked phones and another shooting to use as leverage.

The FBI is asking Apple Inc. to help unlock two iPhones that investigators think were owned by Mohammed Saeed Alshamrani, the man believed to have carried out the shooting attack that killed three people last month at Naval Air Station Pensacola, Florida.

In a letter sent late Monday to Apple's general counsel, the FBI said that although it has court permission to search the contents of the phones, both are password-protected. "Investigators are actively engaging in efforts to 'guess' the relevant passcodes but so far have been unsuccessful," it said.

Apple is helping the FBI but it's not doing the only thing the FBI really wants it to do. Apple's statement says it's already turned over "all the data in [Apple's] possession." But it's not going to break the devices' encryption.

And no matter what legal precedent the DOJ obtains -- should it decide to force the issue by seeking a court order compelling decryption -- it still may not find anything useful, or indeed anything at all, if it manages to unlock the devices. There's a twist in this case that sets it apart from the San Bernardino shooting.

A law enforcement official said there's an additional problem with one of the iPhones thought to belong to Alshamrani, who was killed by a deputy during the attack: He apparently fired a round into the phone, further complicating efforts to unlock it.

Shooting someone right in the evidence is a new logistical hurdle -- one that probably can't be cleared with a stack of legal paperwork and precedent. But this is the FBI's latest attempt to undermine device encryption. Attorney General Bill Barr has made it clear he feels encryption is only good for criminals. If the DOJ decides to take another run at this, it will be less likely to back down even if presented with a third-party solution.

The FBI and DOJ are always on the lookout for another tragedy to use as leverage for anti-encryption precedent. Unfortunately, this country produces more than its share of mass shootings, so the FBI and DOJ will always have plenty to work with.

Filed Under: doj, encryption, fbi, going dark, pensacola
Companies: apple

Second Circuit Says Warrantless Backdoor Searches Of NSA Collections Might Violate The Fourth Amendment

from the stay-in-your-own-lane,-g-men dept

The Second Circuit Court of Appeals has suggested -- not exactly ruled -- that backdoor searches of Section 702 collections targeting Americans (citizens and permanent residents) is a violation of the Fourth Amendment.

The case involves Agron Hasbajrami, a lawful permanent resident who was arrested in 2011 as he attempted to board a flight to Turkey. The government claimed Agron -- an Albanian immigrant -- was ultimately headed to Pakistan to join a terrorist organization.

Agron is somewhat of a unicorn. He's one of the few defendants that's actually been informed the evidence used against him was derived from NSA collections under Section 702. The DOJ is supposed to be proactive about this, but instead has chosen to emphasize parallel construction over transparency.

The evidence appears to have come from a backdoor search by the FBI. The FBI is allowed to access Section 702 collections, but domestic data and communications are supposed to be "minimized" to protect US persons swept up by the NSA. If the FBI performs backdoor searches to access Americans' communications that have been incidentally collected by the NSA foreign-facing surveillance programs, it should have to obtain a warrant. But that's not actually the case for a couple of reasons. First, very few defendants are ever informed of the true source of the evidence against them. Second, the secrecy shrouding the NSA's collections and the Intelligence Community's access prevents a lot of judicial examination in the few cases where evidence can actually be challenged.

The Second Circuit's ruling [PDF] kicks Hasbajrami's case back down to the lower court so it can reexamine the Fourth Amendment implications of warrantless backdoor searches. The Appeals Court has no problem with the NSA's collections, which putatively target foreigners. The court says these are lawful. Accessing collected communications from Americans via the NSA's collections, not so much.

The issue here isn't the collection itself or any inadvertent collection of US persons' communications. The problem is the querying of stored communications without a warrant when the target of the queries is a US person. The court doesn't say the FBI can't look at its own stored collections without a warrant to locate intelligence or evidence. Stuff it has already acquired is fair game, more or less. The court makes a physical analogy:

It is true the FBI does not need an additional warrant to go down to its evidence locker and look through a box of evidence it collected from a crime scene.

But that's where the analogy ends.

But lawful collection alone is not always enough to justify a future search.

Pointing to the Riley decision, the court notes that the lawful seizure of an arrestee's phone does not give law enforcement the right to perform a warrantless search of its contents.

Searching the FBI's own data stores tipped to it by the NSA isn't nearly as problematic as what the FBI appears to have done here: browsing the NSA's much larger collection without a warrant to find more communications originating from a US person. Say goodbye to any flattering "evidence locker" analogies.

If such a vast body of information [250 million emails as of 2011] is simply stored in a database, available for review by request from domestic law enforcement agencies solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.

And there's where the Fourth Amendment fits in:

To permit that information to be accessed indiscriminately, for domestic law enforcement purposes, without any reason to believe that the individual is involved in any criminal activity and or even that any information about that person is likely to be in the database, just to see if there is anything incriminating in any conversations that might happen to be there, would be at odds with the bedrock Fourth Amendment concept that law enforcement agents may not invade the privacy of individuals without some objective reason to believe that evidence of a crime will be found by a search.

The case returns to the lower court so it can consider the Fourth Amendment implications it chose to ignore when considering the defendant's motion to suppress evidence that is starting to look like it was acquired unconstitutionally.

If this results in suppression, this case is going to travel right back up the judicial ladder. There's no way the government is going to let its backdoor searches be subject to a warrant requirement. Warrants create paper trails, and the last thing the IC wants is more paperwork linking domestic surveillance to foreign-facing NSA collections. This isn't a win yet, but if the district court aligns itself with the Appeals Court's suggestions, it could be a game changer.

Filed Under: 2nd circuit, 4th amendment, agron hasbajrami, backdoor searches, evidence, fbi, nsa, parallel construction, section 702

FISA Court Benchslaps FBI For Its Abuse Of The FISA Warrant Process During The Trump Campaign Investigation

from the FBI-finally-uses-up-all-of-its-unearned-trust dept

This didn't take long. The Inspector General's report on the FBI's Trump campaign investigation had nothing positive to say about the FBI other than it sucked at its job. Unbelievably, this was better than the IG saying the FBI performed its job in a biased fashion as part of a concerted Deep State effort to prevent Trump from taking office. (Or from staying in it, I guess, since the prevention plan obviously didn't work.)

But there was also an aspect of the FBI's investigation that should probably be chalked up to malice, rather than stupidity: the FISA warrant process. The FBI was so very determined to keep campaign advisor Carter Page under surveillance it cherry-picked statements from cooperators and buried everything that might have suggested Page was not actually involved in a Trump-Russia conspiracy.

The Inspector General said the FBI's FISA affidavit process was so full of failure, the office would be performin an audit of the FBI's FISA application processes and procedures. That's still in the works. Until then, there's the FISA court itself, which is incredibly peeved by these findings.

An order issued December 17 by FISA judge Rosemary Collyer was released publicly -- something the FISA court rarely does without allowing the IC to perform a few rounds of declassification vetting first. Charlie Savage of the New York Times was the first to report on the order [non-paywalled link here], but the order [PDF] does a pretty good job of speaking for itself.

The order opens by making it clear Judge Collyer is incredibly unhappy with the FBI's behavior, as uncovered by the IG's investigation.

This order responds to reports that personnel of the Federal Bureau of Investigation (FBI) provided false information to the National Security Division (NSD ) of the Department of Justice, and withheld material information from NSD which was detrimental to the FBI's case, in connection with four applications to the Foreign Intelligence Surveillance Court (FISC) for authority to conduct electronic surveillance of a U.S. citizen named Carter W. Page. When FBI personnel mislead NSD in the ways described above, they equally mislead the FISC.

After detailing the OIG's findings, the court delivers its message to the FBI.

The FBI's handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.

Oof. The FISA Court just said it no longer trusts the FBI.

To earn back this trust, the court has ordered it to deliver a sworn submission that outlines the agency's efforts to ensure every application going forward will not contain material omissions or otherwise untrustworthy statements. Better, the court orders the FBI to undergo an immediate review of the December 5th order (which demanded the FBI explain the statements [or omissions] made in the Page warrant affidavits) in preparation for it to be released to the public. The last sentence of the order makes it clear any attempts to subject this soon-to-be-declassified order to further convenient omissions won't be tolerated by the Court.

In view of the information released to the public in the OIG report, the Court expects that such review will entail minimal if any redactions.

How many times must the FISA court benchslap IC members for abusing processes and powers? At least once more apparently. It's refreshing to see the FBI called out for its misconduct, but the FISA court has been soundly and serially abused for years by multiple agencies who know the real benefit of a non-adversarial system is it minimizes the number of parties capable of calling bullshit.

Filed Under: deception, fbi, fisa, fisa affidavit, fisa court, fisa warrants, fisc, lying, rosemary collyer

Inspector General's Report On Investigation Of Trump Campaign Finds More FISA-Related Abuse By The FBI

from the and-if-the-FBI-does-this-to-the-big-people,-imagine-what-it-does-to-the-little-p dept

The Inspector General's report [PDF] on the FBI's investigation into Russia's connection to the Trump election campaign has been released. In the 480-page report, there's enough to satisfy both sides of the argument. Those who believe the investigation was never politically-driven will have their hunches confirmed. Those that believe there's a concerted Deep State effort targeting Trump will find just enough in it to affirm those beliefs as well.

The Inspector General behind the report, Michael Horowitz, has never been afraid of calling bullshit on the numerous agencies he oversees. These agencies, on the other hand, do everything they can to thwart his investigations, so if anything crucial seems to be missing from this report, you can probably blame the FBI.

The report clears the FBI of any wrongdoing, at least as far as the "politically-driven" allegations. The IG concluded the FBI did things badly, but did not do them for anti-Trump reasons.

That being said, the more disturbing aspects of the report deal with the FISA court and the FBI's casual abuse of its surveillance authorities. Not much is known about the FBI's domestic surveillance efforts -- at least not those authorized by the Foreign Intelligence Surveillance Act. While the FBI routinely performs "backdoor" searches of domestic communications harvested by the NSA's foreign-facing surveillance efforts, we have yet to see an actual FISA affidavit from the FBI.

The affidavits reviewed by IG Horowitz involved the surveillance of Carter Page, hat-wearer and foreign policy advisor for the Trump campaign. The super-secret process has rarely been this closely examined before. What it shows is the FBI playing fast and loose with its surveillance powers. Here's Charlie Savage's take for the New York Times:

[T]he inspector general found major errors, material omissions and unsupported statements about Mr. Page in the materials that went to the court. F.B.I. agents cherry-picked the evidence, telling the Justice Department information that made Mr. Page look suspicious and omitting material that cut the other way, and the department passed that misleading portrait onto the court.

Here's what the report says:

Our review found that FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are "scrupulously accurate." We identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed.

The FBI was so interested in keeping Carter Page under surveillance that it manipulated the facts it had to better fit the actions it wanted to take. In the FBI's initial wiretap application, the agency cherry-picked info from informants to find anything that might possibly suggest Carter Page was the connective tissue between Donald Trump and the twice-convicted Paul Manafort. When it came time for the wiretap renewal, the FBI chose to withhold new information that contradicted some of the original probable cause it had supplied to the FISA court on its first application.

This is just the FBI adding onto its not-so-proud tradition of misleading the FISA court. As far back as 2002, the FISA court was already complaining about the FBI's "inaccurate affidavits." Not much seems to have changed. If this report is any indication of the FBI's general approach to submitting affidavits, agents are massaging weak correlations into something approaching probable cause and continuing this abusive editing process for every renewal. The procedures introduced following the FISA court's 2002 criticism don't appear to be having much of an effect.

The FBI will get yet another chance to start acting like a trustworthy government agency. More pressure is being placed on it from its oversight. The Inspector General's office says another audit is underway -- this time to determine just how often the FBI fudges facts on FISA applications.

Given the extensive compliance failures we identified in this review, we believe that additional OIG oversight work is required to assess the FBI's compliance with Department and FBI FISA-related policies that seek to protect the civil liberties of U.S. persons. Accordingly, we have today initiated an OIG audit that will further examine the FBI's compliance with the Woods Procedures in FISA applications that target U.S. persons in both counterintelligence and counterterrorism investigations.

These findings will be of considerable public interest, but given how much secrecy surrounds FISA court proceedings, it's unclear when, or if, we'll ever see this report. So far, nothing seems to be making the FBI handle its considerable power more responsibly. The FISA court isn't adversarial. Few people criminally charged as the result of FISA-ordained surveillance have the opportunity to challenge this evidence in court. The worst thing that can happen to the FBI is periodic benchslaps by FISA judges. And the opinions and orders containing these benchslaps generally aren't cleared for public consumption until years after the fact. That's not much of a deterrent.

There's a Deep State problem out there, but it's not politically-motivated. It's not the FBI vs. politicians it doesn't like. It's the FBI vs. Americans it wants to place under surveillance via a court supposedly interested in the gathering of foreign intelligence. Ordinary domestic surveillance produces paper trails that must be turned over in trial courts. FISA surveillance does not, which is why the FBI loves having this option.

Filed Under: 4th amendment, fbi, fisa, fisa court, fisa warrants, fisc, inspector general, oversight, surveillance