National Security Bosses Still Claiming It Would Violate National Security To Tell You If They Violate Your Privacy

from the whose-security-are-we-talking-about? dept

Via Julian Sanchez we learn that Senator Ron Wyden has released some updated responses from our national intelligence bosses concerning the questions that Wyden (and a few other Senators) have been asking for years. It's been pretty clear that a "secret" interpretation under the FISA Amendments Act (related to the Patriot Act) has meant that the NSA is scooping up tons of American communications, even as its mandate is that it only cover foreign intelligence—and Wyden has been pushing for more information.

It appears that there are some pretty significant loopholes that have allowed the NSA to go a lot further. For example, it isn't allowed to collect information on Americans if "it's known at the time of acquisition" that the communications are domestic. So as long as it doesn't look when it's acquiring (but does look later) there's no problem. Similarly, it appears that the secret interpretation also means as long as the target of the investigation being conducted -- and not necessarily the person whose communication is being intercepted -- is a foreign terrorist, the communication is fair game. That is, so long as the NSA can claim that they're collecting the information to go after Al Qaeda, they can claim that it's valid to intercept almost anything, as it "targets" foreign communications, even if it's collecting purely domestic communications. The key to all of this is reports that the NSA is likely collecting a massive chunk of information, possibly including pretty much all mobile phone records. Senator Wyden keeps asking about how many Americans have had their data collected, and what interpretation the NSA is using. These seem like completely valid questions, but the NSA and James Clapper, the director of national intelligence, keep refusing to answer.

After the NSA responded to yet another request from Wyden for answers to these questions, Wyden once again demanded answers from James Clapper, the Director of National Security. Wyden, along with Senators Jeff Merkeley, Tom Udall and Mark Udall, sent a letter simply asking Clapper to respond to four simple questions -- many of which could be answered with a simple yes or no:

First, we asked if any entities have made any estimates -- even imprecise estimates -- about how many US cmmunications have been collected under section 702 of the FISA statute (which is the central provision of the FISA Amendments Act). You did not answer this question. Please provide an answer. We would expect this answer to be unclassified, but if you disagree please provide your reasons for keeping this answer secret.

Second, we asked if it was possible to estimate the order of magnitude of this number. (For example, is the number of US communications collected under section 702 closer to 100. or 100.000. or 100 million?) You did not answer this question directly, however the Director of the NSA has made public statements that appear to estimate this order of magnitude. Specifically, the NSA Director has said that "the story that [the NSA] has millions or hundreds of millions of dossiers on people is absolutely false." Please explain whether this statement should be understood to mean that the number of US communications collected under section 702 is less than "millions or hundreds of millions." Since the NSA Director made this statement publicly, we would expect this answer to be unclassified as well.

Third, we asked if any wholly domestic American communications had been collected under section 702 authorities. Your response was classified. We do not understand how simply stating whether any wholly domestic communications have been collected under section 702 authorities would have any impact at all on US national security interests. if you believe that it would, please explain why. And if you agree that it would not, please provide an unclassified answer to this question.

Fourth, we noted that the FISA Amendments Act does not prohibit searching through communications collected under section 702 to find the communications of particular Americans, and asked if the US government has ever attempted to search for the communications of a specific American in this way without a warrant or emergency authorization. Your response was classified. We do not understand how providing a 'yes' or 'no' answer to this question would impact US national security interests in any way, and we ask that you provide an unclassified response.

They further note, via a footnote, that the idea that it's reasonable to answer these questions in a classified manner because Senators can read the classified answers makes little sense concerning the important debate on renewing the FISA Amendments Act, since the key staffers who Senators hire to understand this stuff probably can't read those classified responses.

We note that classifying these answers does not just keep them secret from the public. Most members of Congress including eleven of the thirteen senators that signed our letter - do not have any staff who are cleared to read your attachment, which will make it extremely difficult for most members to review and understand these" answers.

The whole thing is ridiculous... and making it even more ridiculous is the response sent by Clapper which basically ignores the questions and says that he's happy to meet directly with any Senator in a classified setting to answer questions:

We cannot provide additional answers to your questions in an unclassified format. Rather than provide you with imprecise, unclassified information, I reiterate our offer to meet with you -- and any other Members of Congress -- in a classified setting to discuss these authorities and answer any questions you might have.

Of course, that defeats the point of letting the public know about how these laws are being interpreted and how much of their communications are being collected by the NSA. Furthermore, it fails to take into account the footnoted point that the key staffers who help elected officials understand this stuff may not be allowed to learn about these answers. Clapper's letter is even more ridiculous when he explains the justifications for not answering the questions. Basically, he gives a blanket "national security" answer, claiming that he's "balancing" the issues of security and public debate:

I also share your interest in an informed public debate on the government's use of its intelligence collection authorities. As you know, it is my responsibility under the law to protect critical intelligence activities from public disclosure in order to safeguard sensitive sources and methods, including the government's acquisition of vital foreign intelligence information through FAA authorities. Our earlier publicly available letters, including my August 24, 2012 unclassified letter (with classified annex) responding to your July 26, 2012 inquiry, and General Alexander's November 13, 2012 letter, properly balance protecting classified information and informing the public of the manner in which FAA is implemented.

That is, to put it simply: hogwash. As the original letter makes clear, there is no reason that national security is threatened by answering the basic questions being asked. Saying whether or not an estimate has been made on how many Americans have had their communications intercepted (not even saying what that number is) is not going to violate national security. As for the NSA letter from General Alexander that Clapper mentions, Wyden has released that too and it's equally ridiculous -- again, insisting that the answers to such basic questions need to be classified.

In the end, it looks like the NSA and the National Intelligence Director aren't so interested in protecting national security with these non-answers, but their own job security. Claiming that such information needs to be kept secret may allow them to keep quiet how they've been using unique interpretations of the law to collect American citizens' communications, even as Congress pretends that the bill is being interpreted as written, whereby domestic communications are off limits. The whole thing has become a joke, and shows what intelligence officials will do when there's no real oversight, and they can spy on citizens at will under a flimsy secret interpretation of the law that they never have to reveal.

The government spying on Americans using "secret interpretations" of laws, where intelligence officials get to play word games, rather than answer straight questions from Congress? That's not the way these things are supposed to work.

Filed Under: 4th amendment, fisa, fisa amendments act, james clapper, keith alexander, nsa, privacy, ron wyden

Senators Wyden & Udall To DOJ: Stop Saying Patriot Act Isn't A Secret Law When You Know It Is

from the will-it-matter? dept

Senators Ron Wyden and Mark Udall have been pressing the feds for a while now concerning their secret interpretation of the Patriot Act, which appears to go way, way, way beyond what most in the public believe on simply reading the bill. While the two Senators had put forth an Amendment to explain these secret interpretations when certain provisions of the Patriot Act were up for renewal, they eventually dropped the Amendment in exchange for some other concessions, and a promise that hearings would be held on the issue. Since then, the Senators have continued to press the feds on this issue at every opportunity, leading to quite a lot of doublespeak from the feds.

The latest development is that the two Senators have sent a letter to Attorney General Eric Holder, saying that Justice Department representatives are clearly misleading the public about the interpretation of the law. Basically, they say that there's a classified ruling about the interpretation of the law, which some in the government (including Wyden, Udall and Holder) are clearly aware of, but which likely interprets the law vastly differently than most in the public would. And the statements from the Justice Department improperly imply that the details surrounding the law are publicly known -- when they are not.

Shorter version: There's a secret court ruling out there that says the government can spy on a ton of people under the Patriot Act, even though the text of the law seems to suggest otherwise. And the Justice Department is implying that the text of the law is an accurate representation of what the law actually is -- when the secret court ruling seems to say otherwise.

While we are sure that you would agree that government officials should not describe government authorities in a way that misleads the public, during your tenure Justice Department officials have -- on a number of occasions -- made what we believe are misleading statements pertaining to the government's interpretation of surveillance law.

The first set of statements that concern us are the repeated claims by Justice Department officials that the government's authority to obtain business records or other 'tangible things' under section 215 of the USA Patriot Act is analogous to the use of a grand jury subpoena. This comparison -- which we consider highly misleading -- has been made by Justice Department officials on multiple occasions, including in testimony before Congress. As you know, Section 215 authorities are not interpreted the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are "analogous" they provide the public with a false understanding of how surveillance law is interpreted in practice.

More recently, we were troubled to learn that a Justice Department spokesman state that "Section 215 [of the Patriot Act] is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department." This statement is also extremely misleading. As the NSA General Counsel testified in July of this year, significant interpretations of section 215 of the Patriot Act are contained in classified opinions of the Foreign Intelligence Surveillance Court and these opinions -- and the legal interpretations they contain -- continue to be kept secret. In our judgment, when the government relies on significant interpretations of public statutes that are kept secret from the American public, the government is effectively relying on secret law.

Separately, they note that when the truth comes out, the government is going to be severely embarrassed:

Americans will eventually and inevitably come to learn about the gap that currently exists between the public's understanding of government surveillance authorities and the official, classified interpretation of these authorities. We believe the best way to avoid a negative public reaction and an erosion in confidence in US intelligence agencies is to initiate an informed public debate about these authorities today.

Filed Under: eric holder, fisa, geolocation, james clapper, mark udall, patriot act, privacy, ron wyden, secrecy, senate

Ron Wyden Puts Hold On FISA Amendments Act; Wants Answers To How Many Americans Have Been Spied On

from the good-for-him dept

Last week, we noted that as everyone was focused on the debt ceiling, some in the Senate Intelligence Committee saw it as an opportunity to rush through an extension for the FISA Amendment Act, which was originally passed to "legalize" the government's warrantless wiretapping program (already ongoing) with retroactive immunity. Of course, when that was passed, it was made clear that the intent was solely to use it to conduct surveillance on people outside of the US. However, as Senators Ron Wyden and Mark Udall have made clear, intelligence officials have been using a very questionable "hybrid theory" to use the FAA and the Patriot Act to conduct widespread surveillance of Americans, most likely in the form of collecting tons of geolocation data from mobile phone operators.

There was no reason to approve the FAA extension last week, since it doesn't expire until next year. Even worse, the vote for the whole thing was in a "closed" session, not for classified reasons, since votes come out eventually, but basically to avoid public scrutiny. Wyden and Udall introduced an amendment requiring intelligence officials to explain the "problems" associated with secret interpretations of such laws that disagree with how most (including those in Congress) believe the law is intended for use. Since the vote was closed, there was no official notice on how it turned out, though we'd heard rumors that it was approved.

Senator Wyden has now come out and said that it was, in fact, approved, and his and Udall's Amendment was voted down 7-8. Because of this, Wyden is putting a hold on the FISA Amendments Act extension, and is pushing for a simple answer to the question that multiple intelligence officials said "is not reasonably possible" to answer: how many Americans are being spied under this Act, which was clearly intended to cover surveillance of foreigners.

As most of my colleagues remember, Congress passed the FISA Amendments Act in 2008 in an effort to give the government new authorities to conduct surveillance of foreigners outside the United States. The bill contained an expiration date of December 2012, and the purpose of this expiration date was to force members of Congress to come back in a few years and examine whether these new authorities had been interpreted and implemented as intended.

I believe that Congress has not yet adequately examined this issue, and that there are important questions that need to be answered before the FISA Amendments Act is given a long-term extension.

The central section of the FISA Amendments Act, the part that is now section 702 of the Foreign Intelligence Surveillance Act itself, specifically stated that it was intended to address foreigners outside the United States, and it even required the Attorney General to develop procedures designed to make sure that any individuals targeted with this new authority are believed to be outside the United States. So one of the central questions that Congress needs to ask is, are these procedures working as intended? Are they keeping the communications of law-abiding Americans from being swept up under this authority that was designed to apply to foreigners?

Wyden also notes that he has no intention of accepting the "not reasonably possible" language from the feds in response to his questions about how many Americans were spied on.

Hopefully this puts more pressure on the federal government to say how they've (mis)interpreted the law to collect vast aggregate data on Americans, abusing a law that was clearly designed for the sake of monitoring foreign communications.

Filed Under: fisa, geolocation, james clapper, mark udall, patriot act, privacy, ron wyden, secrecy, senate

Is Your Senator Using The Distraction Of The Debt Ceiling To Support The Feds Secret Interpretation Of Spying Laws?

from the sneaky-sneaky dept

We were just reporting on how Director of National Intelligence James Clapper was tap dancing around some specific questions about how much warrantless spying on Americans US federal intelligence agencies do. Much of that discussion revolved around the controversial FISA Amendments Act (recursively called the FAA) of 2008, which you may recall as the law that both made warrantless wiretapping officially legal (despite the fact that the federal government had been doing it for years under a very questionable legal theory) and granted telecom companies retroactive immunity for having helped the feds get such wiretaps despite the lack of warrants (and, in some cases, nothing more than a post-it note asking for it).

The FAA is set to expire in 2012, but, as we've seen with any law that grants the federal government more power to spy on Americans without oversight, there is no way the folks in power want to give up such things. Now come reports that, while most of Congress is focused on that whole debt ceiling thing, some have decided this is the perfect cover to quickly and secretly re-up the FAA. It's been reported that the Senate Select Committee on Intelligence is likely meeting behind closed doors today in an effort (by some) to re-up the FAA now, before anyone even realizes it's being debated. The last thing they want is pesky civil libertarians to re-start the discussion about the general constitutionality of spying on Americans without a warrant (believing in the 4th Amendment is sooooo old fashioned).

In trying to hunt down more details about what's going on, we found out that Senators Wyden and Udall -- who, as we've been discussing, have been trying to stop the federal government from secretly interpreting these laws in ways that seem contrary to what most believe the laws say -- are trying to add an amendment to this attempt to reauthorize the FAA. It's difficult to see how anyone can, in good conscience, vote against this. It includes such basic truths as:

In democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances.

The amendment specifically says that the Attorney General and the Director of National Intelligence would need to explain "the problems posed by the reliance of government agencies and departments on interpretations of domestic surveillance authorities that are inconsistent with the understanding of such authorities by the public."

Who could possibly vote against that?

Well, tragically, since this supposed meeting is "closed" (though not classified), the Senators get to hide from view for a while. It's one of those arcane Senate rules that are all too often used to allow Senators to avoid public scrutiny for their actions. While no members of the public or press are allowed in the room, and those in the room cannot tell what anyone else says (or votes) in the room... since it's not classified the Senators who are in the room can absolutely say what they said or did in the room. The specific votes on this particular amendment will be made public three weeks after the markup occurs, buying anyone voting against it three weeks of cover (and when the votes come out, they can pretend this is "old news"). The amendment itself is not secret or classified. Senators cannot reasonably claim that they can't say how they voted for "national security" reasons (a popular cop out) because their votes are going to be made public. The only reason to not answer the question of how they voted is because they want to avoid scrutiny.

So... if your Senator happens to be on the Senate Intelligence Committee now would be the time to call, email, tweet, fax, carrier pigeon, etc. to ask them whether they voted to let Americans know how the government is secretly interpreting its own laws... or if they voted against your basic fundamental rights to know how the government interprets its own laws. The list of Senators on the Committee are as follows:

• Dianne Feinstein, California (chair)
• Saxby Chambliss, Georgia (vice chair)
• John D. Rockefeller IV, West Virginia
• Olympia J. Snowe, Maine
• Ron Wyden, Oregon
• Richard Burr, North Carolina
• Barbara A. Mikulski, Maryland
• James Risch, Idaho
• Bill Nelson, Florida
• Daniel Coats, Indiana
• Kent Conrad, North Dakota
• Roy Blunt, Missouri
• Mark Udall, Colorado
• Marco Rubio, Florida
• Mark Warner, Virginia

If any of these Senators represent you, please reach out to them as soon as possible to ask them how they voted on the amendment embedded below, and please report back to us with what you hear. Let's not let certain Senators allow the government to make up its own rules and not tell the American public what those rules are.

Filed Under: fisa, geolocation, james clapper, mark udall, patriot act, privacy, ron wyden, secrecy, senate

Intelligence Chief To Wyden: It Would Be Difficult To Reveal What You Want Us To Reveal Because We Don't Want To Reveal It

from the got-it dept

We've been covering Senators Ron Wyden and Mark Udall's attempts to get folks working in national intelligence to explain their secret interpretation of certain provisions of the PATRIOT Act. It hasn't been too difficult to piece together the implication that the government has interpreted the already controversial Section 215 of the PATRIOT Act to allow it to gather geolocation data of pretty much anyone in the US from their mobile phone provider without a warrant or any other oversight. If you're unfamiliar with it, Section 215 was the part of the PATRIOT Act that allowed the feds to demand "any tangible thing (including books, records, papers, documents and other items)," from an organization, just as long as the records are being asked for "in connection with" a terrorism investigation.

A while back, there was an attempt to change the language of the law to make it specific that the collection of such records had to actually be about a terror subject, rather than the much broader initial definition (how hard is it to claim that collecting any data is "in connection with" a terrorism investigation these days?) Combined with a few other novel legal theories, and some convoluted loophole finding, it appears likely that the feds believe they can get pretty much realtime info on almost anyone without any warrant, which allows them to do all sorts of things that seem to go way beyond what people would normally think of as a "reasonable" search.

Of course, the feds don't want to admit that this is how they're (ab)using the PATRIOT Act. However, Senator Wyden has been pretty insistent in asking intelligence officials about the federal government's authority to collect geolocation info. He recently asked this question specifically to Director of National Intelligence James Clapper... who has provided a display in tap dancing as an answer. You can see the full letter from Clapper below, but the key point:

The questions you pose on geolocational information are difficult to answer in an unclassified letter. It is our understanding, based on a conversation with your staff, that you are most interested in learning about the government's authority to collect cell phone mobility data of American citizens in the United States for intelligence purposes. As you acknowledge, the government has some authority to collect cell phone mobility data under appropriate circumstances but there have been a diverse set of rulings concerning the quantum of evidence and the procedures required to obtain such information. We will work closely with the relevant agencies to define the government's view of the full contours of this authority and will get back to you.

In other words, we can't tell you what you want to know because that would look bad. Still, this answer definitely seems to further confirm Julian Sanchez's original speculation on what was going on here. In that report, he discussed the government's highly questionable "hybrid theory," of picking and choosing tiny pieces of different statutes, to put together the fake authority to get location info without a warrant. As Sanchez noted at the time, "many courts have been skeptical of this theory and rejected it--but at least some have gone along with this clever bit of legal origami..."

That certainly sounds like the "diverse set of rulings," mentioned in the letter.

The rest of the letter is full of similar tap dancing, explaining the rather plain interpretation of what the laws seem to say (i.e., they're not supposed to track Americans in the US), but any time it gets close to actually revealing the "secret" interpretations or the results of those interpretations, the letter basically says "that's not possible." For example, there's this:

While it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed...

In other words, yeah, we're spying on so many people we can't even count 'em all.

The letter, of course, points out repeatedly that intelligence agencies report the answers to what Wyden is asking in classified briefings. In other words, they're saying "hey, look, we already provided the answers to your questions in secret, and you know the answers and we know you know the answers, and we sure as hell don't want the public to know the answers." When Senator Wyden brought this issue up a couple months ago, he noted that if the public knew these answers, it would make them "angry." It seems that the intelligence folks don't want the public angry... but sure as hell don't want to give up their broad and questionable interpretation of the PATRIOT Act.

Filed Under: geolocation, james clapper, mark udall, patriot act, privacy, ron wyden

Wyden Continues To Press Intelligence Officials About Tracking Americans Under 'Secret' Interpretation Of The Patriot Act

from the you-have-no-privacy dept

Senator Ron Wyden has made it pretty clear, for the past few months, that the federal government is secretly interpreting the PATRIOT Act to mean that it can spy on the location of Americans without a warrant. Wyden, who is likely aware of the interpretation due to his position on the Senate Intelligence Committee, can't say what the interpretation is, but it's become abundantly clear through his questioning. Recently, we noted his questions to Director of National Intelligence James Clapper, specifically asking if government agencies "have the authority to collect the geolocation information."

And now he's been asking the same basic question, getting even more specific, and confirming what some had suspected all along. The link there is from Julian Sanchez, who was one of the first to piece together the clues and suggest that Wyden was hinting at an interpretation of the PATRIOT Act that let the government feel it could track location info on just about anyone with a mobile phone. Whereas Wyden's previous questions focused generally on collecting location info, in this hearing, Wyden specifically asked if the intelligence community uses "cell site data to track the location of Americans inside the country." At this point, it's kind of ridiculous that the feds don't just come out and admit it. At the hearing Wyden was told that there were "certain circumstances" under which such authority could exist, but that it was "complicated." However, he was promised more details on the circumstances by September. As Sanchez notes:

That means that just about ten years after Congress approved the Patriot Act, a handful of legislators may get the privilege of learning what it does. Ah, democracy.

There really are two separate issues here, each of which is disturbing. The first, of course, is the feds possibly believing that they can effectively spy on everyone's location at will. If true, that seems like a gross expansion of the surveillance state. But, perhaps an even bigger issue is that the federal government feels that it can secretly interpret laws with meanings that certainly are not stated explicitly within the law... and can then avoid explaining what its own interpretation is. That's not how a representative and transparent government is supposed to work.

Filed Under: geolocation, james clapper, mark udall, patriot act, privacy, ron wyden

Senators Ask Ingelligence Boss If He Thinks He Can Track People's Phone Locations

from the hint-hint-hint dept

Back in May, Senators Ron Wyden and Mark Udall revealed that the federal government apparently was interpreting the Patriot Act in a way that seemed at odds with the plain language of the act. Of course, Wyden and Udall couldn't reveal what they meant directly, since they only knew about it from their work on the Senate Intelligence Committee... but they sure could hint at it. It didn't take long for people to suggest that the issue had to do with how the feds interpreted their ability to get phone geolocation data on pretty much everyone without a warrant. That still hasn't been confirmed, but the Senators are hinting very strongly that that's exactly what's happening. They've sent a letter to Director of National Intelligence James Clapper, which asks, point blank:

Do government agencies have the authority to collect the geolocation information of American citizens for intelligence purposes?

If yes, please explain the specific statutory basis for this authority. And to the extent that this statutory basis imposes any procedural requirements, such as judicial review or approval by particular officials, please describe these requirements.

If no, please explain the statutory basis for this prohibition.

It's not too difficult to read between the lines here. If the government has reinterpreted the Patrtiot Act to allow such tracking, shouldn't it say so?

Filed Under: geolocation, james clapper, mark udall, patriot act, privacy, ron wyden