Why The NSA And President Bush Got The FISA Court To Reinterpret The Law In Order To Collect Tons Of Data

from the a-bit-more-revealing dept

Over the weekend, the Washington Post published yet another revelation about the NSA's surveillance capabilities, including some details of various "code named" data collection projects like MAINWAY, MARINA and NUCLEON. NUCLEON is the program for intercepting telephone calls (the actual content), though that's apparently limited. MAINWAY and MARINA are focused on all the data about communications (what everyone's been referring to as metadata), but not the actual content.

But what struck me as most interesting about the report is that it reveals some of the details of why the FISA court reinterpreted a key part of the Patriot Act to allow the NSA to do bulk collection of data -- contrary to its plain wording -- and how that interpretation has been used by the government. We've discussed in the past that the telcos had a habit of voluntarily handing over a ton of information (i.e., nearly everything) to the government on no legal basis at all. However, when the NY Times broke the story back in 2006 about the Bush administration's warrantless wiretapping, the telcos freaked out. As was widely covered, that led to passing a law that gave the telcos retroactive immunity for breaking the law (which they did). However, apparently, the telcos (with the help of the administration) sought to have the FISA court reinterpret the patriot act such that the limitation on "relevant" business records in Section 215 would now mean "all of them." The law was written such that the FISA court is only supposed to allow for the collection of "tangible" things (including records) if it can be shown to the court that the specific thing being collected is relevant to an investigation. The FISA Court apparently believes that means anything -- and that's the crux of the secret interpretation from the FISA Court which it and the DOJ have been refusing to reveal.

When the New York Times revealed the warrantless surveillance of voice calls, in December 2005, the telephone companies got nervous. One of them, unnamed in the report, approached the NSA with a request. Rather than volunteer the data, at a price, the “provider preferred to be compelled to do so by a court order,” the report said. Other companies followed suit. The surveillance court order that recast the meaning of business records “essentially gave NSA the same authority to collect bulk telephony metadata from business records that it had” under Bush’s asserted authority alone.

The article also highlights an even bigger mess around the collection of internet data. Bush had ordered it to be done, covering email data and Skype calls, from the siphoning they were doing directly off the network from the telcos. Cheney's lawyer wrote up the order. Then there was the somewhat infamous story of a bunch of top DOJ officials, including FBI boss Robert Mueller and his expected replacement James Comey, who apparently threatened to resign, pointing out that this was not actually legal. NSA boss Michael Hayden, apparently has no scruples at all, and said he was fine with keeping the program going, even if the Attorney General wouldn't sign the order. Lawyers for the NSA also tried out a ridiculous interpretation of the law that said they could collect everything, but they didn't technically "acquire" anything until they looked at it. While the report claims this interpretation is no longer used by the NSA, it certainly seems like officials have argued that data is not "collected" until they look at it. Either way, the FISA court stepped in to "make it legal" to do such bulk data collection:

Three months later, on July 15, the secret surveillance court allowed the NSA to resume bulk collection under the court’s own authority. The opinion, which remains highly classified, was based on a provision of electronic surveillance law, known as “pen register, trap and trace,” that was written to allow law enforcement officers to obtain the phone numbers of incoming and outgoing calls from a single telephone line.

Basically, when data collection runs up against the limits of the law, the FISA court steps in with a secret reinterpretation of the law to let intelligence officials do what they want. There are no adversarial hearings with anyone arguing the other side, and since the rulings are secret, the judges never even have to be worried about criticism. Hence the infamous rubber stamp of the court.

Filed Under: business records, fisa, fisa court, george w. bush, james comey, michael hayden, nsa, nsa surveillance, robert mueller

Leaked: NSA's Talking Points Defending NSA Surveillance

from the you-have-to-be-kidding-me dept

The government has been passing around some "talking points" to politicians and the press trying to spin the NSA surveillance story. We've got the talking points about scooping up business records (i.e., all data on all phone calls) and on the internet program known as PRISM. Both are embedded below. Let's dig in on a few of the points, starting with the business records/FISA issue:

The news articles have been discussing what purports to be a classified, lawfully-authorized order that the Foreign Intelligence Surveillance Court (FISA Court) issued under an Act of Congress – the Foreign Intelligence Surveillance Act (FISA). Under this Act, the FISA Court authorized a collection of business records. There is no secret program involved here – it is strictly authorized by a U.S. statute.

"There is no secret program here"? Bullshit. Why, then, have so many people, both in the Congress and the public been shocked at the extent to which the NSA is snarfing up data? This is a secret program, enabled by a secret interpretation of the FISA Amendments Act, by the FISA Court, which the DOJ and the NSA insist the public is not allowed to know. Yes, it's a secret program. Saying otherwise is simply lying.

It authorizes only metadata collection, which includes barebones records – such as a telephone number or the length of a call.

"Barebones records" and "metadata" are terms being used to play down the extent of the collection of info, but it ignores multiple reports that note the amount of data actually collected -- including phone numbers, call times, call location, among other things -- is more than enough to identify who someone is and a variety of important characteristics about that person.

This legal tool, as enacted by Congress, has been critical in protecting America. It has been essential in thwarting at least one major terrorist attack to our country in the past few years.

"At least one" is a lot less than the "dozens" NSA boss Keith Alexander recently stated. But, so far the only "one" identified, involving an attempted NYC Subway bombing was shown not to have needed this data collection program to uncover and stop. So, nope.

Despite what appears to be a broad scope in the FISA Court’s order, the Intelligence Community uses only a small fraction of a percent of the business records collected to pursue terrorism subjects.

This is meaningless. That's like saying, even though we search everyone's house illegally, we only actually arrest a small number of people. No one would allow such house searches under the 4th Amendment, so why is it okay with phone records?

All three branches – Congress, the Courts, and the Executive Branch – review and sign off on FISA collection authorities. Congress passed FISA, and the Intelligence Committees are regularly and fully briefed on how it is used.

Except many in Congress have made it clear they did not review this kind of program, or were led to believe that the NSA did not collect this kind of information. And those who are being briefed now say the program goes way beyond what they were told. And, those who did know about it beforehand, tried to dig deeper into the program, but were blocked. As for "the Courts" reviewing it, we're talking about the FISA Court which is a rubberstamp in black robes, having approved every single request of it for the past three years. It last rejected a request back in 2009, and that was only one out of 1320. In its entire history, since 1979, the court has rejected a grand total of 11 applications. 11. Out of 33,939 applications. That's 0.03%. Not 3%. 0.03% with not a single rejection in over three years. That's not careful review. That's a rubber stamp. As for the executive branch signing off on it, what do you expect? They're going to hold back their own ability to spy on people?

The FISA Court authorizes intelligence collection only after the Intelligence Community has proven its case, based on underlying facts and investigations.

Well, we already covered the rubber stamp issue above, but Section 215 of the Patriot Act requires that the government present a case that the data it is seeking "must be relevant to an authorized preliminary or full investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities." I'd love to see the argument that all data is somehow relevant to the investigation. Of course, I can't see it, because it's secret.

This legal tool has been reauthorized only after ongoing 90-day renewal periods. That means that every 90 days, the Department of Justice and the FBI must prove to the Foreign Intelligence Surveillance Court that they have the facts and legal basis to renew this legal authority. It is not a rubber stamp.

Ha ha ha. So, we violate your privacy without any opposing view -- but we do it every 90 days for seven straight years.

FISA-authorized collections are subject to strict controls and procedures under oversight of the Department of Justice, the Office of the Director of National Intelligence and the FISA Court, to ensure that they comply with the Constitution and laws of the United States and appropriately protect privacy and civil liberties.

What kind of "strict controls and procedures" allow for the collection of every single record of every single phone call, and then also make it accessible to the 29-year-old IT guy in Hawaii? Just wondering...

Moving on to the "NSA internet talking points."

Section 702 is a vital legal tool that Congress reauthorized in December 2012, as part of the FISA Amendments Act Reauthorization Act, after extensive hearings and debate. Under Section 702, the Foreign Intelligence Surveillance Court (FISA Court) certifies foreign intelligence collection. There is no secret program involved – it is strictly authorized by a U.S. statute.

Again, "no secret program," merely a secret interpretation of the law, in a secret ruling by a secret court. What's everyone complaining about?

Section 702 cannot be used to target any U.S. person. Section 702 also cannot be used to target any person located in the United States, whether that person is an American or a foreigner.

Note the careful choice of words: it cannot be used to target a person in the US. It can, however, be used to collect info on a person in the US if they're not "the target" of the investigation. Fun with words!

The unauthorized disclosure of information about this critical legal tool puts our national security in grave danger, puts Americans at risk of terrorist and cyber attacks, and puts our military intelligence resources in danger of being revealed to our adversaries.

Right. So this is not a new program, it's no surprise, people shouldn't be concerned... and now that you know about it we're all going to die!

How does anyone take these jokers seriously?

Filed Under: fisa, fisc, nsa surveillance, prism, suveillance, talking points

FISA Court Says DOJ's Claim That It Can't Reveal Secret Interpretation Of The Law Is Wrong

from the onward dept

We've written a few times about the EFF's lawsuit against the government, trying to reveal the FISA Court's secret interpretation of the FISA Amendments Act (which is at the core of the NSA surveillance dragnet of all phone record data). The DOJ has warned how this would be the end of the world and, more recently, said that it can't reveal the ruling because the FISA court has said that it must be secret, while an earlier ruling from the FISA court said that the FISA court can't reveal such rulings -- only the DOJ can. The EFF sought clarification, and now the FISA court has more or less said that the DOJ's argument is full of it, and yes, the DOJ can reveal such things without violating the laws protecting FISA court rulings.

The Court disagrees with the Government that FISC Rule 62 prohibits the disclosure of the copies of the FISC Opinion to EFF under FOIA.... The Government contends that Rule 62 has the effect of placing copies of the Opinion in its possession "under this Court's seal."... The term "seal," however, does not appear in Rule 62, and contrary to the Government's contention, Rule 62 neither explicitly nor implicitly places the Government's copies of the Opinion "under seal."

Rule 62 contains four subsections, all of which generally concern the "Release of Court Records," but each address a distinct situation... None of these provisions is applicable here.

This doesn't mean the case is over, but it does mean that the DOJ can no longer use the excuse that even if it's required to disclose the FISC ruling under the FOIA that it can't because FISC rulings are secret under that FISC Rule 62.

Filed Under: doj, fisa, fisa amendments act, foia, secret interpretation
Companies: eff

Google Opens Up Some More: The 'Secret' Computer System It Uses To Give Info To NSA Is Secure FTP

from the oh-no,-the-terrorists-will-know-that-now! dept

Google is continuing to open up about the supposed "secret" program by which it hands data over to the NSA that has been subject to so much attention over the last week. And, once again, the story seems to be less than what was originally reported. Google's now said that when it receives a valid FISA order for information, the "secret" computer system it uses to get the required info to the NSA isn't some crazy server setup or dropbox... but secure FTP.

Instead the company transmits FISA information the old fashioned way: by hand, or over secure FTP.

“When required to comply with these requests, we deliver that information to the US government — generally through secure FTP transfers and in person,” Google spokesman Chris Gaither told Wired. “The US government does not have the ability to pull that data directly from our servers or network.”

However, the company does say that the government has asked for more, but that Google has refused.

“We refuse to participate in any program — for national security or other reasons — that requires us to provide governments with access to our systems or to install their equipment on our networks,” he said. “We have been asked to do things in the past and we have declined.”

It's increasingly beginning to appear like the terminology used in the leaked PowerPoint presentation was not as clear as it should be, concerning the level of the NSA's integration with Google (and, perhaps, other companies).

This does not mean that there aren't significant questions about what kinds of data and how much data is requested via FISA orders, but that puts the issue right back to the government. The specifics of how tech companies are handing legally required data over to the NSA seems like much less of an issue than the breadth of the government's requests (and the non-PRISM request for all phone call records).

Filed Under: fisa, fisc, nsa, nsa surveillance, prism, secure ftp
Companies: google

Google Asks Feds For Permission To Publish FISA Requests In Its Transparency Report

from the the-feds-should-say-yes dept

In the wake of the revelation of PRISM last week, Google admitted that it does not include FISA requests in its transparency report -- which has led some to question the value of the transparency report. Now, Google has sent a public letter to Attorney General Eric Holder and FBI boss Robert Mueller, requesting permission to add FISA requests to its transparency report, suggesting that such transparency would be helpful in clearing up how frequently the government is asking Google for information.

Assertions in the press that our compliance with these requests gives the U.S. government unfettered access to our users’ data are simply untrue. However, government nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation.

We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures—in terms of both the number we receive and their scope. Google’s numbers would clearly show that our compliance with these requests falls far short of the claims being made. Google has nothing to hide.

Google appreciates that you authorized the recent disclosure of general numbers for national security letters. There have been no adverse consequences arising from their publication, and in fact more companies are receiving your approval to do so as a result of Google’s initiative. Transparency here will likewise serve the public interest without harming national security.

It would be somewhat ridiculous for the DOJ to refuse this request, but we're used to the DOJ doing stupid things these days.

Filed Under: doj, eric holder, fbi, fisa, fisa requests, robert mueller, transparency report
Companies: google

NSA Defenders Claim PRISM Helped Stop NYC Subway Bombing; Actual Evidence Suggests It Didn't

from the so-much-for-that dept

You knew this was coming. In the wake of the revelations about the NSA surveillance program, defenders of the system are now trying to claim that PRISM was responsible for stopping a plot to bomb the NYC subways by Najibullah Zazi. However, as people looked into the details, they pointed out that this didn't make much sense and, further, that detailed public reports already make it clear that traditional police work had uncovered Zazi's plot, not PRISM.

The details of terror investigations are not always laid out this clearly in public; but they appear to belie the notion, advanced by anonymous government officials Friday, that sweeping access to millions of email accounts played an important roil in foiling the subway attack. Instead, this is the sort investigation made possible by ordinary warrants under the Foreign Intelligence Surveillance Act; authorities appear simply to have been monitoring the Pakistani email account that had been linked to terrorists earlier that year.

That report, by Buzzfeed's Ben Smith has a lot more details.

Of course, there's a separate point in all of this: even if PRISM had been used to stop this plot, that says nothing about whether or not the program is appropriate. I'm sure that we could stop all sorts of terrorist plots and activity if the US government was able to send soldiers door to door searching every house in the country and installing cameras inside our homes. But, most everyone would agree that's a blatant violation of our rights.

Filed Under: fisa, mike rogers, najibullah zazi, nsa, nsa surveillance, prism

More Details On PRISM Revealed; Twitter Deserves Kudos For Refusing To Give In

from the details-details-details dept

Late on Friday, the NY Times released the most detailed explanation to date of the PRISM system that was revealed on Thursday, claiming that nine of the biggest tech and internet companies were working with the NSA to give them "direct access" to servers. The explanation explains how both the original story was substantially true, as were the "denials," though the denials were (as predicted) a bit of doublespeak. Today, the Guardian revealed another slide from the presentation it has, which clarifies some more details.

Basically, it appears those companies all agreed to make it easier for the NSA to access data that was required to be handed over under an approved FISA Court warrant, and they appear to do this by setting up their own servers where they put that information (and just that information). From the NY Times report:

But instead of adding a back door to their servers, the companies were essentially asked to erect a locked mailbox and give the government the key, people briefed on the negotiations said. Facebook, for instance, built such a system for requesting and sharing the information, they said.

The data shared in these ways, the people said, is shared after company lawyers have reviewed the FISA request according to company practice. It is not sent automatically or in bulk, and the government does not have full access to company servers. Instead, they said, it is a more secure and efficient way to hand over the data.

This is significantly less worrisome than the original Washington Post report, which suggested full real-time access to all servers. That's not quite what has happened, according to this report. This involves cases where the companies really do need to hand over this information. We can disagree with whether or not the FISA Court should issue these warrants, but at some point there may be information that the companies do need to hand over to the government. As for the Guardian, they published the following slide: As you can see, it notes multiple programs where they can get data. The programs on top are the ones such as the NSA servers installed at telcos to collect all traffic running through them, which have been revealed before. The program on the bottom is PRISM, which clearly states: "collection directly from the servers of these U.S. Service Providers," followed by the already known list. That certainly confirms the "direct access" claim from the original WaPo report, but it could also be true in conjunction with the NY Times report, if you look at it as the companies setting up special servers where they place information they're ordered to hand over via FISA court orders. The "denials" from the companies are also substantially true, as they mean that the NSA isn't getting direct access to all their servers, but rather the ones set up for handing over this information.

The real question should be about what information the FISA Court is approving warrants over:

FISA orders can range from inquiries about specific people to a broad sweep for intelligence, like logs of certain search terms, lawyers who work with the orders said. There were 1,856 such requests last year, an increase of 6 percent from the year before.

In one recent instance, the National Security Agency sent an agent to a tech company’s headquarters to monitor a suspect in a cyberattack, a lawyer representing the company said. The agent installed government-developed software on the company’s server and remained at the site for several weeks to download data to an agency laptop.

In other instances, the lawyer said, the agency seeks real-time transmission of data, which companies send digitally.

Note just how broad some of those searches may be. Staying around for weeks to download logs? We're not talking about narrowly focused searches here.

Of course, what's now also come out is that, despite Google and Microsoft releasing transparency reports about government requests for data, they don't include FISA requests because of the gag orders on them. It's only recently that both Google and Microsoft were able to include "range" numbers for how many national security letter requests they get. One hopes they're pushing to be transparent on FISA requests as well.

The article makes it clear that Twitter was alone among the companies in refusing to join this program. That does not mean that Twitter does not hand over data to the government when receiving a legitimate FISA order. I'm sure it does. But it does mean that they have not set up a special system to make it easy for the government to just log in and get the data requested. Some people have suggested that the government has little need for Twitter to join the program since nearly all Twitter information is public, but that's not true. There is still plenty of important information that might be hidden, including IP addresses, email addresses, location information and direct messages that the NSA would likely want. Besides, YouTube is a part of the program, and most of its data is similarly "public."

This is not, by the way, the first time that we've seen Twitter stand up and fight for a user's rights against a government request for data. Over two years ago, we pointed out that Twitter, alone among tech companies, fought back when a court ordered it to hand over user info. Twitter sought, and eventually got, permission to tell the user, and allow that user to try to fight back. It later came out that, as part of that same investigation, the government also had requested information from Google and Sonic.net, with Sonic.net fighting back and losing. It never became clear whether Google fought back.

Separately, however, Chris Soghoian has noted that an "unnamed company" fought back and lost against a FISA court order... and that, according to the PowerPoint presentation, Google "joined" PRISM just a few months later. It is possible that Google fought joining the program, and then only did so after losing in court. That said, Google's most recent denial insists that "the government does not have access to Google servers—not directly, or via a back door, or a so-called drop box." Perhaps they don't consider a special server set up for lawfully required information a "drop box," but others certainly might.

In the end, it appears that the initial Washington Post report was overblown in that it suggested direct access to all servers, rather than specific servers, set up to provide information that was required. That said, it is still true that the FISA Court appears to issue a fair number of secret orders for information from a variety of technology companies, some of them quite broad, and that many of the biggest tech companies have set up systems to make it easier to give the NSA/FBI and others access to that info -- though, they are often required by law to provide that information. The real outrage remains that all of this is happening in complete secrecy, where there is little real oversight to stop this from being abused. As we noted just a few weeks ago, the FISA Court has become a rubber stamp, rejecting no requests at all in the past two years.

Given the revelations of the past week, the public (and our representatives) need to demand much more transparency and oversight concerning these surveillance programs.

Filed Under: 4th amendment, direct access, fisa, fisa court, nsa, oversight, privacy, servers, surveillance
Companies: aol, apple, dropbox, facebook, google, microsoft, paltalk, skype, twitter, yahoo, youtube

A Trip Down Memory Lane: People Warned What Would Happen When Congress Passed Bills To Enable Vast Spying

from the let's-go-back dept

One of the points we've made throughout this discussion on the revelations around widespread NSA surveillance is that if you had been paying attention, none of this should have come as a surprise. It's just the confirmation of the exact issues that people raised. In 2007, when Congress passed the "Protect America Act," some people quickly pointed out that it massively expanded warrantless surveillance with little oversight:

But the hastily-enacted legislation, dubbed the Protect America Act, does more than permit the interception of foreign-to-foreign communications. It permits warrantless surveillance "directed at a person reasonably believed to be located outside of the United States." There is no language specifically restricting surveillance activities to communications originating outside of the United States.

And then, a year later, we got the FISA Amendments Act (FAA), which raised more concerns:

In passing the FISA Amendments Act, Congress gave the executive branch the power to order Google, AT&T and Yahoo to forward to the government all e-mails, phone calls and text messages where one party to the conversation is thought to be overseas. President Bush signed the bill into law Thursday morning, describing it as a bill that "protect[s] the liberties of our citizens while maintaining the vital flow of intelligence."

Of course, last year, the FAA was up for renewal and we spent a lot of time discussing how folks in the House and the Senate (1) pretended that it only applied to foreign calls (when it clearly did not) and then (2) ignored Senators Wyden and Udall, who repeatedly made it clear that the law was being abused in this way, and asked others in Congress to demand a full and public accountability.

And, of course, the nefariousness here is not a partisan issue. Both of the laws above were signed by President Bush, and while President Obama campaigned on the fact that he would end such practices, we can safely say that that never happened.

So, while it's good that people are now realizing just how widespread the spying is, perhaps next time, when the same group of folks raise the alarm at these bills, they shouldn't be ignored or brushed off to the side as "oh you guys again..."

Filed Under: fisa, fisa amendments act, nsa, patriot act, protect america act, surveillance, warrantless wiretapping

Leaked Document Shows The NSA Is Harvesting Call Data On Millions Of Verizon Subscribers

from the Verizon:-home-to-nearly-100-million-terrorism-suspects! dept

What's always been suspected has now been proven true: the NSA is indiscriminately harvesting the phone records of millions of Americans. Various whistleblowers have pointed out that the NSA's hunger for data has driven it to collect anything and everything it can, without having to submit to limitations placed on other agencies. Domestic surveillance is a full-time job for the NSA, and this order obtained by the Guardian spells it all out in unredacted black and white.

The order... requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing...

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

This order was granted by the secret FISA court, allowing the FBI to collect this data until July 19th, with another copy going to the NSA. This sort of thing isn't necessarily new or unusual (large scale data collection like this began during the Bush presidency, as Greenwald points out), but this particular request's scope is rather breathtaking.

The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

This order has no target. It just wants everything. Every Verizon subscriber is included in the NSA's data dragnet. And while there's a lack of individual specificity in the data Verizon is ordered to produce, there are several ways the information collected can be manipulated and abused.

The information is classed as "metadata", or transactional information, rather than communications, and so does not require individual warrants to access...

While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively...

Privacy advocates have long warned that allowing the government to collect and store unlimited "metadata" is a highly invasive form of surveillance of citizens' communications activities. Those records enable the government to know the identity of every person with whom an individual communicates electronically, how long they spoke, and their location at the time of the communication.

A year ago, the NSA claimed it couldn't say how many Americans it had spied on illegally because doing so with violate the privacy of those it spied on. Now, we can make an estimate: 98.2 million Verizon customers as of Dec. 2012. And that's just Verizon. There's no reason to believe other carriers haven't received (and submitted to) similar orders and past events indicate the NSA has been spreading its net wide for several years. And, of course, thanks to a whistleblower literally showing up at the front door of the EFF, we know that AT&T has basically helped set up direct access for the NSA on its network in the past as well.

The NSA, as part of a program secretly authorized by President Bush on 4 October 2001, implemented a bulk collection program of domestic telephone, internet and email records. A furore erupted in 2006 when USA Today reported that the NSA had "been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth" and was "using the data to analyze calling patterns in an effort to detect terrorist activity."

With this document exposed, the NSA can no longer pretend (if it's even bothering to at this point) its data collection efforts are targeted. It long ago turned away from its original mandate -- foreign surveillance only -- and now appears to be harvesting vast amounts of data on US citizens simply because no one's going to stop it.

Filed Under: 4th amendment, fisa, fisc, nsaq, privacy, surveillance
Companies: verizon

US Secret Surveillance Court Approves All Domestic Spying Requests For A Second Year In A Row

from the these-may-be-secrets-but-they're-no-surprises dept

For the second year running, all snooping-on-citizens requests have been granted by our nation's most secret court, the United States Foreign Intelligence Surveillance Court.

A secretive federal court last year approved all of the 1,856 requests to search or electronically surveil people within the United States “for foreign intelligence purposes,” the Justice Department reported this week.

The 2012 figures represent a 5 percent bump from the prior year, when no requests were denied either.

This surveillance was supposed to be limited to American citizens in contact with entities outside of the United States, but requesters found that adding the words "Al Qaeda" into the mix allowed eavesdropping on email and phone calls that never leave the country. This being a secret court, one running without oversight and immune from lawsuits, it seems operatives can request pretty much anything and have it approved. It's the ultimate rubber stamp process and one that can be asked for after the fact. Even a still-theoretical rejection can't slow down the spying.

The legislation does not require the government to identify the target or facility to be monitored. It can begin surveillance a week before making the request to the secret court, and the surveillance can continue during the appeals process if, in a rare case, the spy court rejects the surveillance application.

On the bright less oppressively gloomy side, there has been a slight reduction in National Security Letters, those wonderful sheets of paper law enforcement and security agencies use to compel pretty much any business (ISPs, banks, credit agencies, etc.) to hand over as much data on the named citizen as possible.

The same Justice Department report this week said the government issued 15,229 National Security Letters last year, down from 16,511 in 2011.

We'll have to see how much this number tails off in 2013 considering a federal judge ruled these letters unconstitutional in March. There's no reason to stop writing these letters quite yet, though. The ruling has been stayed for 90 days pending the administration's appeal. Given the track record of this administration (and the last), one would expect these letters to live a full, healthy (and unconstitutional) life, perhaps revived by an Executive Order or some sort of "national safety/security" exemption.

On top of the usual concerns about increased surveillance of American citizens is the fact that this 2-page "report" gives us no useful information about whether all of this spying is actually having any impact in the War on Terror.

As an instrument of public oversight, the annual reports on FISA are only minimally informative. They register gross levels of activity, but they provide no measures of quality, performance or significance. Neither counterintelligence successes nor failures can be discerned from the reports. Nor can one conclude from the data presented that the FISA process is functioning as intended, or that it needs to be curbed or refined.

The less data there is available, the fewer questions there are to answer. Right now, there's plenty of questions, but until the courts force the issue (a route that doesn't look terribly promising, despite the recent decision on National Security Letters), these questions can be safely ignored.

Filed Under: fisa, fisc, oversight, surveillance