The Differences Between Obama And Bush On NSA Surveillance, According To Virtual Obama

from the watch-this dept

It feels like it's been a while since I've seen Xtranormal videos, but someone who shall remain nameless has put together a rather hysterical video of President Obama explaining why massive NSA surveillance under his watch is different than when it was done by President George W. Bush. As you may recall, President Obama criticized these programs while he was "Candidate Obama," but has now expanded them massively. This video explains why -- and is likely to make you laugh: Below are some of my favorite lines... which is actually nearly a full transcript, because as I was picking out "favorite" lines, most of the video fell into that category.

It was concerning when the Bush administration was secretly collecting your information. Heck, I had concerns back then myself. But, everyone knows that George W. Bush was not a good President. Whereas, I am a good President. See the difference? So, while you could not trust George W. Bush to secretly collect your data, you can trust me. I'm a trustworthy guy.

Another important difference between my administration and the Bush administration is that when the Bush administration secretly spied on you, the Bush administration could not point to a single judge willing to say their program was legal. We, on the other hand, can point to such a judge. I'm not going to tell you who this judge is, or why he or she thinks our program is legal. If I did that, it would, obviously be harder for me to convince you that the program is legal. Instead, I'm just going to tell you that we secretly found one judge who was willingly to secretly say that it was legal for us to collect all of your data....

The Bush administration could not tell you that it had informed Congress. Whereas my administration took steps to ensure that if you ever found out about our secret surveillance program, we could tell you that we informed Congress. To be clear, when I say 'we informed Congress,' I am not saying that we did out best to ensure that Congress had enough information to have an informed debate on this vital national security issue. What I am saying is that we informed Congress enough for me to stand here and tell you that 'we informed Congress.' What Congress actually knew is not important....

If Congress did not want us to secretly interpret the law, then Congress should not have passed a law for us to secretly interpret....

If you, the American people, did not want me to secretly collect your data, then you should not have elected me President. Yes, I know many of you were probably unaware that I wanted to secretly collect your data, especially since I said I would not secretly collect your data. But, I choose to believe that you elected me to be your President, because you believe that if someone has to secretly collect your data, that someone should be me. And, as we all know, my secret interpretations of your support are more important than the reasons you actually supported me.

Finally, while I do not believe there is any reason to debate this issue, I will tell you that I welcome a debate on this issue. In fact, I'm so grateful that Edward Snowden started this debate that I have decided to stop at nothing to ensure he spends the rest of his life in a federal prison.

Filed Under: barack obama, fisa court, fisc, george w. bush, nsa surveillance, secret interpretations, surveillance

Former FISC Judge Quit Over Warrantless Wiretapping, Now Argues FISC Is Out Of Control

from the needs-an-adversary dept

Last year, we noted that after five years of nothingness, despite what the law required, the federal government finally had a Privacy and Civil Liberties Oversight Board (PCLOB), after years of nominations that went nowhere. The PCLOB does now exist and has been charged with looking into the government's surveillance efforts. While the PCLOB does have some really good members who are strong privacy/civil liberties advocates, there are significant questions about how much authority it actually has. Still, on Tuesday, the PCLOB held hearings on the ongoing surveillance programs, and perhaps the most interesting thing to come out of them were the comments from James Robertson, a former FISC judge, who had quit the court, but had not spoken publicly about why until now.

Specifically, he claims that he quit because of revelations about the Bush administration using warrantless wiretapping and going around the court's approval process.

Robertson said he asked to join the FISA court "to see what it was up to," had previously played a central role in national security law. He was the judge who ruled against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at the U.S. naval prison at Guantanamo Bay, Cuba, the right to challenge their detentions. That ruling was upheld by the Supreme Court in 2006.

Robertson quit the FISA court in 2005, days after the New York Times revealed widespread NSA warrantless wiretapping under President George W. Bush's administration. Robertson had previously refused to explain his decision. But during a break in the hearing Tuesday he confirmed for the first time to the AP that he had "resigned in protest because the Bush administration was bypassing the court on warrantless wiretaps."

Robertson argued that the "rubber stamp" claims about the FISA Court were inaccurate, saying that they left out the fact that FISC frequently pushed back on requests, requiring changes from the government, which were not seen in the overall stats on requests "approved" by the court. That said, he notes that the approval/disapproval of warrants was supposed to be all that FISC was about -- but since the FISA Amendments Act of 2008, the role of FISC has changed entirely, from a narrowly focused court approving specific warrants to what is effectively a judicially run administrative agency designed to approve entire surveillance programs:

But he warned that Congress' 2008 reform of the FISA system expanded the government's authority by forcing the court to approve entire surveillance systems, not just surveillance warrants, as it previously handled. Under the FISA changes, "the court is now approving programmatic surveillance. I don't think that is a judicial function," he said.

Robertson said he was "frankly stunned" by a recent Times report that FISA court rulings had created a new body of law broadening the ability of the NSA to use its surveillance programs to target not only terrorists but suspects in cases involving espionage, cyberattacks and weapons of mass destruction.

This is a really key point that has not received nearly enough attention. Under the old rules, the FISC would look at specific warrants and approve or (rarely) refuse to approve those warrants. But now it basically is issuing a blanket "approval" of methods and techniques, such as the infamous dragnet of all information on all phone calls from various telcos. That's a really different function.

Furthermore, Robertson highlighted what many of us have been saying all along: when you have a secret court that only hears one side of a case, it should be no surprise that the court keeps pushing further and further in the direction of the single party (the government) that presents information before it. Robertson's suggestion to try to fix this is to somehow come up with an adversarial process -- whether it's (for example) someone from a public interest group, such as the ACLU, or someone appointed by the PCLOB itself, to act as an advocate for those on the other side of the government's surveillance desires.

Filed Under: adversarial hearings, civil liberties, fisa court, fisc, james robertson, pclob, privacy, warrantless wiretapping

DOJ Says Public Has No Right To Know About The Secret Laws The Feds Use To Spy On Us

from the what,-you-want-to-know-that-stuff? dept

So, we were just discussing the insanity of the FISA court (FISC) basically acting as a shadow Supreme Court, making broad rulings in total secrecy that have created a secret body of law that the public is not allowed to know about. Given increasing revelations about these shadow laws, the ACLU and other public interest groups are trying, yet again, to get access to some of these key rulings. All along, they've been extremely careful to note that they're not asking FISC to reveal specific foreign intelligence issues, operations or targets: merely the parts of the rulings that identify what the law is -- i.e., how it's being interpreted by the courts. Because that seems rather fundamental to a functioning democracy.

However, as you might expect, the Justice Department has now hit back with a new filing that says, flat out, the public has no right to know what the secret court is ruling on and how it's codifying secret laws. The argument is, basically, that because FISC rulings have almost always been secret, then it's perfectly reasonable that they're secret. In other words, it's perfectly legal for secret laws to remain secret, because they're secret. Later it also argues that actually revealing the law would be (oooooooh, scary!) dangerous.

Let's make this simple: yes, revealing specific details of various surveillance efforts and targets could create security issues, no doubt. But revealing how a United States' law is interpreted can never by itself create a national security issue. And that's all that's being asked of here. The DOJ is being incredibly dishonest and disingenuous in conflating the two issues, arguing that because the FISC deals with intelligence operations, that its rulings on the interpretation of the law must also be secret. But that's wrong. You can reveal the basic interpretation of the law without revealing the specific intelligence efforts and methods. The only reason to keep the interpretation of the law a secret is because it'll be a huge embarrassment and show widespread abuse.

Filed Under: doj, fisa, fisa court, fisc, nsa, secret laws, surveillance

A Secret Court Making Secret Laws? That's No Democracy

from the get-rid-of-the-fisa-court dept

Last December, well before the Ed Snowden leaks revealed some information about the FISA court (FISC) and its rulings, we had already noted that the court itself was almost certainly unconstitutional. More recently, we talked about how the fact that all the court's judges are appointed by the Chief Justice of the Supreme Court means that the court has turned into a rubber stamp made in the image of some of the most "law and order"-minded Chief Justices from the past few decades. Ezra Klein has since expanded on that to discuss the oddity of how current Chief Justice John Roberts is basically the Chief Justice of the Surveillance State, answerable to absolutely no one: "You have exclusive, unaccountable, lifetime power to shape the surveillance state."

Over the weekend, the NY Times put out a powerful piece discussing how FISC has basically become a shadow Supreme Court, doling out all sorts of important rulings in total secrecy. It rules on cases where it only hears one side, and where there are no appeals, no guarantee that the full story is presented, and involves a bunch of judges who tend to have law enforcement backgrounds before being appointed to the court. In the end, you have a secret court issuing secret rulings by ex-law enforcement officials, allowing their former colleagues ever greater power to spy on everyone.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

[....] Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

As an example of how FISC has basically completely overturned the rules of surveillance in secret, the NY Times reveals the details of some of its thinking, taking a extremely narrow ruling meant to apply in special cases, and turning it into a general rule that has allowed the vast capture of information:

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

I don't care where you come down on the importance of widespread surveillance -- I just don't see how you can possibly square the above interpretation of the law with the 4th Amendment. If "special needs" can be used to justify mass collection of data on just about everyone "just in case" it might stop some sort of terrorist attack, then you no longer have a 4th Amendment. At all.

But, the bigger issue here is just the fact that we have a secret court issuing secret interpretations of the law that have a massive impact on our privacy. This is supposed to be an open democracy. An open democracy doesn't involve secret courts and secret laws. We have laws that everyone knows, and which the public can discuss and weigh in on through their elected officials. When you set up a secret court, making secret rules with no oversight, and with all of the judges appointed by a single Supreme Court Justice with a particular bias, you no longer have a functioning democracy at all. And that's downright scary.

This is a point that some Senators have been making for years now, but the leaks from Ed Snowden have really made it that much clearer just how insane the situation is. Earlier, it had seemed like perhaps there was one or two rulings from FISC that had some oddities in the interpretation, and which should probably be revealed to the public. However, the various revelations so far suggest that the issue is much, much bigger, and we have a secret "shadow court" system that is systematically obliterating the 4th Amendment and helping to create and then "legitimize" the vast surveillance state.

The Snowden leaks have shone a number of lights on various bad things within our government, but one thing that they have made abundantly clear is that the FISC needs to go. Whether that means it needs to be opened up, or to have greater oversight, or just be done away with completely, could be up for discussion. But if it remains the way it is, it's clear that we've thrown away our basic democratic principles, and moved towards the same sorts of autocratic regimes with secret courts that the US has always presented itself as being against.

Filed Under: democracy, fisa, fisa court, fisc, rulings, secret law, secret rulings

How Three Decades Of Conservative Chief Justices Turned The FISA Court Into A Rubber Stamp

from the FISC:-both-the-wheels-AND-the-grease dept

The FISA court has been deemed a "rubber stamp" and with good reason. Not a single request was rejected over the last two years and over the last twelve years, the court has only rejected 10 out of 20,909 requests.

Reuters has put together a long and detailed piece showing why the court is so compliant. Much of it has to do with who was selected and who selected them.

Selected by the Chief Justice of the United States, FISA judges serve for staggered seven-year terms. Although the court carries 11 judges at a time, 14 have served this year because of routine turnover.

Six of the 14 were originally appointed to the trial courts by George W. Bush; five by Ronald Reagan; two by Clinton and one by George H. W. Bush.

"Since FISA was enacted in 1978, we've had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity," said Stephen Vladeck, a law professor at American University's Washington College of Law.

The court is currently comprised of 14 judges, 12 of which are Republican. Half are former prosecutors. Reggie Walton helped lead the War on Drugs under William Bennett. James Zagel spent seven years as the director of the Illinois State Police, following a dozen years in the state attorney's office (including three years as Chief Prosecutor). John Bates spent some time as an assistant state's attorney but more notably has spent a large part of his judicial career dismissing cases brought against the US government and its officials, including a challenge to an Obama-approved targeted killing and Privacy Act claim brought against the DOJ. Mary McLaughlin (the sole Democrat) spent four years as a prosecutor. Raymond Dearie has years of experience as an Assistant United States Attorney for the Eastern District of NY, along with other work done in conjunction with law enforcement. Thomas Hogan was involved in a ruling that restricted public access to Nixon's White House records (and ordered Playboy to continue printing copies in Braille) as well as jailing a NY Times writer for refusing to disclose a source and authorizing an FBI raid on a congressman's office -- a first in the government's history.

It's unsurprising that George W. Bush would find the makeup of the court to his liking when pushing his "War on Terror" policies -- conservatives with backgrounds in crime and (especially) punishment. (There's no bigger crime than terrorism.) Obama should have been the wild card -- someone who could have attempted to tilt things back in a more moderate direction or at least questioned the court's overwhelmingly partisan composition. Instead, he extended and expanded many of Bush's policies and realized there was no one better to carry out these directives than adherents to the party line.

Almost all of the current FISA judges declined to comment or be interviewed. Only one (Reggie Walton) responded, issuing this rather indignant statement:

"The perception that the court is a rubber stamp is absolutely false. There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts, and then by the judges, to ensure that the court's authorizations comport with what the applicable statutes authorize."

Walton may not like the "rubber stamp" designation but the only information the public is allowed to look at indicates a vast majority of requests are granted, no matter how wide a net the requesting agents wish to cast.

Walton's claim that the court's authorizations "comport with what the applicable statutes authorize" is similarly hollow. What's been at least as surprising as the scope and reach of the NSA and FBI's granted requests is the fact that this massive-scale domestic surveillance still somehow falls under the protection of existing laws, or at least the secret interpretation of these laws.

Other information gathered by Reuters suggests some sort of oversight is being applied, but without further details, it's very hard to determine its effect on granted requests.

The records also show that FISA judges ordered "substantial modifications" to 497 surveillance and property warrants and 428 of the business record warrants

The statistics are especially intriguing for business record warrants for 2011 and 2012. Of 417 warrants authorized, the court "substantially modified" 376.

There are a few educated guesses as to what "substantially modified" means, and it very likely doesn't mean "protecting the privacy of US citizens."

Syracuse University College of Law professor William C. Banks, who follows the FISA court closely, said he suspects that warrants are "modified" when judges request more information about a warrant or decide to split a warrant with multiple suspects, phone numbers and locations into several, more specific ones.

"We can't tell the extent of modification, but clearly it suggests that the judges are taking a real look at these things and are at least modifying them in some respect," said Penn Law professor Theodore Ruger. "But I don't think it answers the bigger, more important question of whether this court is acting as a balanced check on the government's authority."

To date, the court has been little more than a complicit tool of two consecutive administrations. Exacerbating this problem is the fact that the Chief Justice of the United States is free to pick FISA judges that align with their viewpoints on crime, terrorism and security. What may have originally served as a functioning part of our system of checks and balances has now become an administrative lapdog and a willing cog in the War on Terror machinery.

William C. Banks pointed this out to current and former FISA judges in his keynote speech given at an American Bar Association dinner celebrating the 35th anniversary of the FISA court.

"FISA envisioned case-specific surveillance, not a generic surveillance operation, and its approval architecture was accordingly geared to specific, narrowly targeted applications," Banks told the FISA judges, according to a transcript. The 2008 changes to the law, he said, have "strained its utility as an independent arbiter of lawful FISA surveillance."

His speech received "polite, if tepid, applause."

Judge Walton may bristle at the "rubber stamp" label and everyone from the administration all the way on down to the requesting agent may insist that nothing is done with oversight and strict adherence to applicable laws, but the track record speaks for itself. 12 years. 20,909 requests. 10 rejections. 36 withdrawn by the court.

Either the court is stocked with judges who can rubber stamp their approval and still somehow delude themselves into believing they're giving everything their full attention and consideration, or they've simply bought into the "terrorist" rhetoric and see no other option but complicity to keep this country "safe." Either way, it's a travesty.

Filed Under: fisa, fisa court, fisc, law enforcement, prosecutors, supreme court, surveillance

Latest NSA Leak: Rules On How They Use Data Without A Warrant

from the wow dept

Glenn Greenwald had promised that there were more incredible leaks concerning the NSA to come, and here's the first big one. Greenwald has revealed the NSA's rules that show the procedures for targeting non-US persons, and also how they "minimize" data collected on US persons when dealing with the "bulk" data records collection they do, such as with all of the data around every phone call made. These are two key parts to the NSA's insistence that they're staying within the law and not spying on people in the US. The details here, however, suggest a very different story. The FISA court has signed off on these rules that appear to grant incredibly wide latitude for the NSA to make use of data, rather than really "minimize" its usage. While President Obama and others have insisted that the rules make sure that the NSA really isn't collecting data on Americans, the reality shows that FISC approved rules let the NSA:

• Keep data that could potentially contain details of US persons for up to five years;
• Retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
• Preserve "foreign intelligence information" contained within attorney-client communications;
• Access the content of communications gathered from "U.S. based machine[s]" or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.

The report from Greenwald also reveals that orders he has seen from the FISA court concerning broad data collection do not appear to include details or explanations, other than your basic rubber stamp that FISC says it's okay.

One such warrant seen by the Guardian shows that they do not contain detailed legal rulings or explanation. Instead, the one-paragraph order, signed by a Fisa court judge in 2010, declares that the procedures submitted by the attorney general on behalf of the NSA are consistent with US law and the fourth amendment.

But since those procedures have now been leaked, we can see that they're not very carefully targeted at all. If the NSA doesn't know where someone is located, it can assume the person is foreign:

In the absence of specific information regarding whether a target is a United States person, a person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person.

That part about how the NSA can still keep data on US persons if they believe the data contains "evidence of a crime," "technical data base information" or "information pertaining to a threat of serious harm to life or property" obviously give the NSA incredible powers to -- contrary to what they've stated publicly -- retain all sorts of info on Americans.

Once we and others have had a chance to dig deeper through these, I'm sure we'll have more to say, but for now, it appears that, once again, the NSA and its defenders were less than fully forthcoming about how the NSA uses the data it collects and how it makes sure that Americans aren't targeted.

Filed Under: fisa, fisa court, fisc, foreign persons, minimization, nsa, nsa surveillance, oversight, targeting, us persons, warrants

Retired Federal Judge Explains Why The FISA Court Should Not Be Trusted

from the secret-courts-do-bad-things dept

Retired federal judge Nancy Gertner, who has appeared in stories here for years (she was the original judge in the Tenenbaum trial, and also spoke out about how US attorney Carmen Ortiz handled the Aaron Swartz case), has now highlighted a very important point about all of the NSA surveillance stories: at the heart of much of it is the secretive FISA court, and that court should not be trusted.

As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.

Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said....

It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.

The "judges" on the FISA Court are appointed by the Chief Justice of the Supreme Court. And that's it. As we were just discussing, they hear only one side of a case, and their rulings are kept secret. When you have a party that only hears one side of things and never, ever has to be subject to public review or criticism of decisions, take a wild guess what happens? You get a court that is judicially captured, and sides very much with the intelligence infrastructure that it spends most of its time dealing with.

On top of that, there's a very big question: why are these rulings secret? Something like an interpretation of the law should never, ever be considered secret. Yes, it makes sense to keep something secret if it exposes direct information on a specific case that is being worked on, but basic rulings about what the law actually says should never be. But they are, because the FISA court can do that sort of thing. And that's a huge problem. Late last year, we had a post linking to a story by another former judge, Andrew Napolitano, explaining why the entire FISA court was almost certainly unconstitutional:

The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard -- thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution -- of probable cause of status. The status was that of an agent of a foreign power.... Over time, the requirement of status as a foreign agent was modified to status as a foreign person. This, of course, was an even lesser standard and one rarely rejected by the FISA court.

With everything that's been going on, most of the attention has been on the administration -- including both the NSA and the DOJ -- as well as some companies participating in the various surveillance programs. But, increasingly, it seems that perhaps a lot more attention should be paid to the entire concept and structure of the FISA court.

Filed Under: fisa, fisa court, fisc, judicial capture, nancy gertner, nsa, nsa surveillance, secret courts

DOJ Says Tech Companies Can Sort Of Release FISA Numbers, But.. In A Way That Decreases Transparency

from the that's-not-good dept

Last week, we noted that Google had publicly requested from the DOJ that it be allowed to reveal information about the FISA surveillance requests it gets, and put them in its well-respected transparency report. Facebook, Microsoft and Twitter quickly followed with similar requests. Late Friday, the DOJ "gave permission," but in perhaps the most useless way possible. Facebook was the first to post the data that the DOJ allowed it to post, and you might immediately see the problem:

As of today, the government will only authorize us to communicate about these numbers in aggregate, and as a range...

For the six months ending December 31, 2012, the total number of user-data requests Facebook received from any and all government entities in the U.S. (including local, state, and federal, and including criminal and national security-related requests) – was between 9,000 and 10,000. These requests run the gamut – from things like a local sheriff trying to find a missing child, to a federal marshal tracking a fugitive, to a police department investigating an assault, to a national security official investigating a terrorist threat. The total number of Facebook user accounts for which data was requested pursuant to the entirety of those 9-10 thousand requests was between 18,000 and 19,000 accounts.

Right. So you may notice that this tells us absolutely nothing about the FISA requests. Because the only way that it could actually reveal anything was to bury them in with every other possible type of request. Facebook did, properly, point out that this wasn't really all that transparent:

This is progress, but we’re continuing to push for even more transparency, so that our users around the world can understand how infrequently we are asked to provide user data on national security grounds.

Microsoft posted something quite similar. And equally useless.

Here is what the data shows: For the six months ended December 31, 2012, Microsoft received between 6,000 and 7,000 criminal and national security warrants, subpoenas and orders affecting between 31,000 and 32,000 consumer accounts from U.S. governmental entities (including local, state and federal).

Microsoft, too, noted the limitation that the DOJ gave them:

We are permitted to publish data on national security orders received (including, if any, FISA Orders and FISA Directives), but only if aggregated with law enforcement requests from all other U.S. local, state and federal law enforcement agencies; only for the six-month period of July 1, 2012 thru December 31, 2012; only if the totals are presented in bands of 1,000; and all Microsoft consumer services had to be reported together.

There is one interesting tidbit:

We have not received any national security orders of the type that Verizon was reported to have received that required Verizon to provide business records about U.S. customers.

Considering that this surveillance program -- the so-called "business records" search, which comes from Section 215 of the Patriot Act with a still-secret interpretation by the FISA Court that appears to allow blanket requests for pretty much all data -- is the much more serious issue, it's nice to see Microsoft being able to say that it has received no such orders.

Google and Twitter also both received the same "permission," but both quickly realized that this was not transparency at all. Lumping in FISA requests with everything else does absolutely nothing to reveal the extent of those FISA requests. In fact, it obfuscates them:

“We have always believed that it’s important to differentiate between different types of government requests,” a Google spokesperson said in a statement. “We already publish criminal requests separately from National Security Letters. Lumping the two categories together would be a step back for users. Our request to the government is clear: to be able to publish aggregate numbers of national security requests, including FISA disclosures, separately.”

Twitter responded with a simple tweet (you expected more?) from legal director Ben Lee, saying:

We agree with @Google: It's important to be able to publish numbers of national security requests—including FISA disclosures—separately.

So, once again, we have the federal government pretending to be transparent, when it's really not. It's only trying to hide the actual number of FISA requests and the number of users impacted. Frankly, this whole demand for excess secrecy over these things makes no sense at all. What could we possibly be "alerting our enemies" to if there were broad general numbers of the number of FISA requests that were sent to Google, Twitter, Facebook and Microsoft? Sure, the actual information requested should remain secret. But the number of requests? That makes no sense at all.

Filed Under: doj, fisa, fisa court, fisa requests, fisc, transparency, transparency report
Companies: facebook, google, microsoft, twitter

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

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