The Email Collection The NSA Shut Down Has Been Abused For Years

from the and-it's-only-part-of-a-larger-collection dept

As was noted here earlier, the NSA surprised many people by shutting down its email collection. This collection was authorized by the FISA Amendments Act, which is due for renewal at the end of this year. Since the point the collection began, it was clear the NSA was also harvesting (inadvertently, it said) US persons' communications.

Ron Wyden, along with a few other lawmakers, has been asking the NSA for years to turn over information on this program -- specifically, how many US persons had been swept up "incidentally" in the bulk collection. For years, the NSA has refused to do so, claiming it would be impossible to compile this information and, somewhat hilariously, claiming it would violate the privacy of those swept up in the collection to query the database for incidental collections.

This decision to shut down the program may result in that answer never being given to Wyden. The ODNI (Office of the Director of National Intelligence) may decide the shutdown renders this particular query moot. It shouldn't. Now that the email program has been shut down EXPLICITLY because it sweeps up too many US persons' in the dragnet, the answer is more important than ever. And the ODNI has recently (and very belatedly) promised to deliver this number and should keep that promise even though the program has been shut down. Not only that, but this shutdown only affects the collection of email. It doesn't prevent the NSA from collecting other internet-based communications. With fewer people using email as their primary communication method, the NSA will still have plenty of communications to harvest.

There's another good reason for turning over that number: the Section 702 collection has been plagued with problems pretty much since its inception. The FISA court determined in 2011 that the program -- as operated by the NSA -- was unconstitutional. Apparently some fixes were made as the program was allowed to continue. But as Marcy Wheeler pointed out a year ago, the program has never not been violating the Foreign Intelligence Surveillance Act.

In his November 6, 2015 opinion reauthorizing Section 702, presiding judge Thomas Hogan described two more definite violations of 50 U.S.C. §1809(a)(2), and one potential one, bringing the list of times the FISC caught NSA illegally surveilling Americans to four, and potentially five, times.

Fall 2009 confession/July 2010 opinion: Collection of categories of data under the bulk PRTT program not permitted by the FISC (Bates’ opinion describes a category violation reported to FISC in the very first PRTT docket, along with NSA’s assurances it would never happen again)

June 2010 confession/December 10 2010, May 13, 2011 opinions: Retention of overcollected data from a traditional FISA warrant in mission management systems ultimately not deemed necessary for collection avoidance

May 2011 confession/October 3, 2011 opinion: Collection of entirely domestic communications on upstream surveillance MCTs

July 13, 2015 confession/November 6, 2015 opinion: Retention of 702 communications that had been otherwise purged in mission management systems, even though FISC had ruled against such retention in 2011

[Potential] July 13, 2015 confession/November 6, 2015 opinion: Retention of data that should have been purged or aged off in compliance databases

This is the authority the NSA wants approved at the end of the year. This shutdown might be an attempt to finally make the program legal -- or at least legal enough to survive a closer examination as the issue heads towards a vote.

This shutdown -- along with the NSA's long history of abuse -- also explains why there were no Section 702 approvals from the FISA court. As Wheeler suggested when the information was first released, the lack of approvals in 2016 indicated the program had "serious issues." Her post from last year shows the program has always had "serious issues." The number of requests the government made in 2016 was redacted from the report, but the footnote attached to it suggests it was more than one.

Perhaps the court no longer found the program Constitutional, at least not the way the NSA routinely operated it. While incidental collection is always a problem with bulk surveillance, the internal controls, which NSA talking points claim prevent abuse, apparently aren't controlling much or preventing much. It appears the NSA can't find a way to operate this part of the Section 702 program without collecting (and querying) US persons' communications, so it has decided to shut it down, rather than spend any more time and effort trying to talk the FISA court into approving its ritualistic abuse.

Despite having years to improve its practices and improve its segregation of collected data, the agency apparently did very little to rein this program in. A 2014 DOJ/ODNI report quoted by Wheeler shows misuse of collected data continued to increase even as the NSA sought orders to collect even more.

The joint oversight team, however, is concerned about the increase in incidents involving improper queries using United States person identifiers, including incidents involving NSA’s querying of Section 702-acquired data in upstream data using United States Person identifiers. Specifically, although section 3(b)(5) of NSA’s Section 702 minimization procedures permits the scanning of media using United States person identifiers, this same section prohibits using United States person identifiers to query Internet communications acquired through NSA’s upstream collection techniques. NSA [redacted] incidents of non-compliance with this subsection of its minimization procedures, many of which involved analysts inadvertently searching upstream collection. For example, [redacted], the NSA analyst conducted approved querying with United States persons identifiers ([long redaction]), but inadvertently forgot to exclude Section 702-acquired upstream data from his query.

This continued abuse and misuse is highly problematic, although the ODNI has been the last entity to officially recognize this. The "upstream" collection not only results in vast amounts of intercepted communications, but is one the FBI's favorite sources for intel. The ODNI denies to this day the FBI's searches of the NSA's collections are "backdoor searches," but it's information and communications the FBI certainly can't collect itself under its legal authorities. The supposedly foreign-facing collection is routinely used by a domestic law enforcement agency to obtain US persons' communications without a warrant. That's a "backdoor" search, no matter how the ODNI portrays it.

No matter what else comes of it, this shutdown is huge. Even though it's a smaller part of a larger internet communications collection program, it's still a significant closure. And once again, this is a result of Snowden's leaks. Wyden's persistent pestering about incidental collection likely played a small part as well. But without documents clearly showing how much the program collected and how it was being used, the NSA would most likely still be trying to find a way to push these requests past the FISA court. And without this additional scrutiny, the court itself might have found itself more easily persuaded.

Filed Under: 702, about, mass surveillance, nsa, searches, section 702, surveillance

Surprise: NSA Stops Collecting Americans' Emails 'About' Foreign Targets

from the this-is-big dept

There aren't many details yet, but Charlie Savage at the NY Times has a major scoop: apparently, the NSA has halted "about" email collections. This is important. As we've discussed in the past, under Section 702 of the FISA Amendments Act, the NSA can collect info on approved "foreign targets." But here's where it got sketchy: they could collect the communications "to" them or "from" them -- which most people would expect -- but also they could collect any communications "about" them. In other words, did you joke about Osama bin Laden in an email? It's possible that under Section 702, the NSA could collect that email without a warrant. That was massively concerning because the "about" emails from Americans could contain lots of other info, and once sucked up into the NSA's system and made available to the FBI for "backdoor" incidental collection searches, could expose people to lots and lots of trouble. There have been pushes over the past few years to limit the collection to no longer include "about" communications, but those had been (as far as we knew!) unsuccessful.

And, for an unclear reason, the NSA has stopped doing that. Trevor Timm speculates that perhaps the FISA court ruled that collection illegal, which is possible (also we just noted that there were no new 702 approvals by the FISA Court last year), so perhaps the FISC is finally taking its job a bit more seriously. We've also pointed out that there have been legal fights over the fact that the DOJ lied to the Supreme Court about the nature of these "about" collections, which may have created more pressure to stop them from happening.

I'm sure that we'll find out more about what happened in the near future, but this will certainly play a large role in the upcoming debate about renewing Section 702.

Filed Under: about searches, backdoor searches, doj, fisa court, fisc, mass surveillance, nsa, section 702, surveillance

NSA Makes Pitch For Section 702 Approval While Its 702 Requests Aren't Being Approved By The Court

from the all-perfectly-lawful,-all-running-into-issues-during-approval dept

Section 702 -- the statute that allows the NSA to collect internet communications and data in bulk -- is up for renewal at the end of this year. The NSA, thanks to Ed Snowden, faced more of an uphill battle than usual when renewing Section 215 (bulk metadata collections). For the first time in its existence, the NSA ended up with a compromise (the USA Freedom Act), rather than a straight renewal.

The Intelligence Community appears to be trying to get out ahead of straight renewal opponents. The Office of the Director of National Intelligence has released a Section 702 Q&A at millennial watering hole Tumblr. By returning its own soft serve questions with canned talking points, the ODNI is hoping to show just how lawful its upstream collection is.

It also hopes to obscure something that's been around since the 2008 FISA Amendments Act: backdoor searches. Other government agencies have had the ability to peruse the NSA's collections, which were ostensibly gathered solely for national security use. The FBI is the most frequent backdoor searcher, seeing as it has rebranded as a counterterrorism unit over the past several years, which has allowed it to expand its surveillance capabilities and increase exploitation of the NSA's data stores.

The ODNI's Q&A document sort of admits this, but tries to downplay the implications of allowing a domestic law enforcement agency free access to national security-focused surveillance intake.

The government’s minimization procedures restrict the ability of analysts to query the databases that hold “raw” Section 702 information (i.e., where information identifying a U.S. person has not yet been minimized for permanent retention) using an identifier, such as a name or telephone number, that is associated with a U.S. person. Generally, queries of raw content are only permitted if they are reasonably designed to identify foreign intelligence information, although the FBI also may conduct such queries to identify evidence of a crime. As part of Section 702’s extensive oversight, DOJ and ODNI review the agencies’ U.S. person queries of content to ensure the query satisfies the legal standard. Any compliance incidents are reported to Congress and the FISC.

It still sort of sounds like a backdoor search, even with supposed strict oversight, but the ODNI adds a footnote claiming it isn't:

Queries of Section 702 data using U.S. person identifiers are sometimes mischaracterized in the public discourse as “backdoor searches.”

Oh, that crazy "public discourse." Won't it get anything right? Here's Emptywheel's Marcy Wheeler to explain what the ODNI won't.

While it’s true that NSA and CIA minimization procedures impose limits on when an analyst can query raw data for content (but not for metadata at CIA), that’s simply not true at FBI, where the primary rule is that if someone is not cleared for FISA themselves, they ask a buddy to access the information. As a result — and because FBI queries FISA data for any national security assessment and “with some frequency” in the course of criminal investigations. In other words, partly because FBI is a domestic agency and partly because it has broader querying authorities, it conduct a “substantial” number of queries as opposed to the thousands done by CIA.

Wheeler goes on to point to the Privacy and Civil Liberty Oversight Board's (RIP) report on Section 702 as evidence of this common FBI practice. While the PCLOB mostly punted on Section 702, finding it to be less blatantly-unconstitutional than the Section 215 program, it still found the FBI perused raw NSA collections quite frequently, both for foreign intelligence information and evidence of criminal activity. The PCLOB was unable to assess how frequently these "none dare call it a backdoor" searches occurred because the FBI has no way of tracking how often it dips into the NSA's collections. With no data and no reporting, it's pretty disingenuous to claim there's effective oversight over the Section 702 program.

Marcy Wheeler also noticed something unusual in the brand new FISC Section 702 report -- newly-required by the USA Freedom Act. According to the numbers released by the FISA Court, zero 702 applications were approved in 2016.

Wheeler points out the process for Section 702 approval runs much like that of Section 215, with applications either being approved by the FISA court or sent back for fixes. Once approved, extensions can be requested, but only for up to 60 days at a time. As she notes, the last 702 submission wouldn't have been able to coast through 2016 without a renewal.

The prior approval before last year was November 6, 2015, so it would only have had to have been extended 2 months to get into this year. So that seems to suggest there was at least a three month (application time plus extension) delay in approving the certifications for this year.

Note, too, that the report shows the only amicus appointed last year was Marc Zwillinger for a known PRTT application, so this hold up wasn’t even related to an amicus complaint.

In any case, this may reflect significant issues with 702.

The Snowden documents -- along with some from other unidentified leakers -- generated far more scrutiny of Section 702 than the NSA has ever experienced. It's not tough to imagine at least a couple of FISA judges being surprised with the scope of what they were approving. The number of submissions is redacted, but the footnote attached makes it clear the government submitted more than one application. This span with zero approvals dates back to the middle of last year, so it's been a bit of a dry run for the NSA.

The NSA has run into issues before with Section 702, the last time being in 2011, when the FISA court found the "upstream collection" of internet data to be "deficient on constitutional and statutory grounds." The NSA obtained extensions and apparently modified the order until it reached the FISA court's standards. This long delay between approvals could suggest the NSA is back in constitutionally-deficient waters, which definitely isn't where it wants to be as the program heads for renewal.

Filed Under: fisa court, fisc, mass surveillance, nsa, section 702, surveillance

Former Spies' Dubious Claim: Release Of NSA's Windows Exploits Has Seriously Harmed National Security

from the protesting-a-bit-much dept

The Shadow Brokers' attempted firesale of NSA exploits didn't go well. After early leaks failed to pique buyers' interest, SB decided to start handing over the agency's hacking tools to the general public.

The most recent dump was the most interesting. It contained a variety of remote access exploits -- several of them zero days -- that gave NSA operatives "God mode" control over compromised computers with fairly-recent versions of the Windows operating system.

But they were of limited use. The most recent exploitable version was Windows 8, and every version still supported by Microsoft was patched before the SB dump, most likely as the result of a belated tip from the NSA. However, older operating systems without Microsoft support are still exploitable, and will remain exploitable until those systems are updated.

Now that most of the stash is out in the open, the Intelligence Community is able to do two things:

1. Determine who is responsible for the leaked toolset.

2. Complain about it.

The latter appears to be what's happening now. A few (anonymous) former members of the Intelligence Community are talking up what a horrible blow this is to the NSA.

Although digital exploits are used for spying rather than destruction, they allow operators to break down invisible doors, pilfering information. Seeing these latest tools published online was “devastating,” the former cyber intelligence employee said.

Three recently retired intelligence employees who worked on hacking tools for the government requested anonymity in order to speak freely about sensitive matters and to protect ongoing work and employability.

“By my estimation, there’s not much left to burn,” another former intelligence official who worked for several three-letter agencies told Foreign Policy. “The tools that were released were pretty critical.

Supposedly, this set of tools was worth millions of dollars to the NSA. If market prices in Bitcoin are anything to go by, criminals and foreign espionage agencies didn't appear to feel they were worth much more than a few thousand dollars. Of course, potential buyers didn't know exactly what they were getting. Others probably figured the exploits would be patched into irrelevance by the time they got their hands on them.

The "sky is falling" narrative tends to follow every leak of national security documents, starting with Snowden's, which damaged the NSA so much it's in better shape than ever. There may have been some valuable tools in the SB stash, but the moment they ended up in someone other than the NSA's hands, they became relatively worthless to the agency.

But what was released, however powerful, was outdated. The stash appeared to be a 2013 vintage -- valuable in its prime, but no longer quite as useful after Microsoft's forced migration of Windows users to version 10. The NSA is undoubtedly sitting on a stash of current exploits far more valuable than what it lost when someone left a bunch of hacking tools behind in a compromised server.

The public gnashing of natsec teeth also serves another purpose: it hopefully encourages surveillance targets to let their guard down a bit. By projecting the image of an intelligence agency fumbling around in the dark, the agency can very likely obtain a few new intercepts from careless foes it catches relaxing.

Filed Under: exploits, hacking tools, leaks, national security, nsa, surveillance

Latest Exploit Dump By Shadow Brokers Contains Easy-To-Use Windows Exploits, Most Already Patched By Microsoft

from the menu-driven-God-Mode dept

The Shadow Brokers -- having failed to live up to half their name -- released more NSA exploits last week when it became apparent no one was willing to purchase the exploits from them. This dump was far more interesting than previous releases, as it contained a large number of Windows exploits and -- for some -- a very handy, easy-to-use front end for malware deployment.

This dump probably ruined a few Easter weekends at Microsoft, but not nearly as many as was first presumed. While the exploits targeted older versions of Windows, they would have caused trouble for government and corporate networks still relying those versions. Those targeting unsupported versions are the most dangerous, as those holes will never be patched. They're also the ones with the smallest user bases, so that mitigates the damage somewhat.

As Marcy Wheeler points out, the NSA had plenty of time to warn Microsoft about unpatched holes prior to the Shadow Brokers' latest dump.

That’s a critical detail for the debate going on on Twitter and in chats about how shitty it was for SB to release these files on Good Friday, just before (or for those with generous vacation schedules, at the beginning of) a holiday weekend. While those trying to defend against the files and those trying to exploit them are racing against the clock and each other, it is not the case that the folks at NSA got no warning. NSA has had, at a minimum, 96 days of warning, knowing that SB could drop the files at any time.

The big question, of course, is whether NSA told Microsoft what the files targeted. Certainly, Microsoft had not fully responded to that warning, as hackers have already gotten a number of these files to work.

Unlike the CIA dump happening at Wikileaks, the NSA had a pretty good idea what was contained in the Shadow Brokers stash. Microsoft, however, says it was never contacted by the NSA or "any agency" about the exploits ahead of their release.

Despite this statement, the exploits appear to have already been patched by Microsoft.

Today, Microsoft triaged a large release of exploits made publicly available by Shadow Brokers. Understandingly, customers have expressed concerns around the risk this disclosure potentially creates. Our engineers have investigated the disclosed exploits, and most of the exploits are already patched.

The most interesting patch on the list is MS17-010, released March 14th. It patched several remote code execution holes in older Windows versions. These patches weren't applied to test machines, resulting in the mistaken conclusion these vulnerabilities hadn't been fixed.

But the patch notes say nothing about who disclosed the vulnerabilities, which makes it an anomaly. Microsoft's denial, combined with its blank "acknowledgements" page, suggests the NSA itself warned the company about the vulnerabilities. It seems unlikely Shadow Brokers would have given Microsoft a heads up, as it hadn't warned any other affected vendor up to this point.

If so, the Vulnerabilities Equity Process sort of works. I mean, the NSA held onto these as long as it could, but finally informed the affected party when it became apparent it might have to share its "exclusive" exploits with the rest of the world. Better late than never, and certainly better when delivered ahead of a very public disclosure.

What's in the latest dump is now mostly useless. But not completely useless. There are still plenty of machines running older Microsoft software that are still vulnerable, many of them possessed by corporations and government agencies. If the software is old enough, the security holes are permanent.

Not that those with the latest and greatest should rest easy. The NSA hasn't stopped producing and purchasing exploits. The SB stash was a few years old. Current Microsoft software remains under attack from state intelligence agencies and criminals. But this dump of tools shows just how powerful the NSA's toolkit is -- one made even more dangerous by its apparent ease of use. It makes exploit delivery possible for anyone, not just those with a very specific skillset.

Filed Under: 0days, exploits, hacks, nsa, shadow brokers, vep, vulnerabilities, vulnerabilities equities process, windows
Companies: microsoft

Oh, Sure, Now Congress Is Serious About Asking NSA About Surveillance On Americans

from the about-freaking-time,-goodlatte dept

For many, many years, Senator Ron Wyden has been directly asking the US intelligence community a fairly straightforward question (in his role as a member of the Senate Intelligence Committee): just how many Americans are having their communications swept up in surveillance activities supposedly being conducted on foreigners under the FISA Amendments Act (FISA being Foreign Intelligence Surveillance Act). Wyden started asking way back in 2011 and got no answers. His continued questioning in 2013 resulted in Director of National Intelligence James Clapper lying to Congress in a public hearing, which Ed Snowden later claimed was a big part of the inspiration to make him leak documents to the press.

Just last month, we noted that Wyden had renewed his request for an accurate depiction of how many Americans have had their communications swept up, this time asked to new Director of National Intelligence, Dan Coats. Unfortunately, for all these years, it's basically felt like Senator Wyden tilting at a seeming windmill, with many others in Congress basically rolling their eyes every time the issue is raised. I've never understood why people in Congress think that these kinds of things can be ignored. There have been a few attempts by others -- notably on the House Judiciary Committee -- to ask similar questions. Almost exactly a year ago, there was a letter from many members of the HJC, and there was a followup in December. But, notably, while there were a number of members from both parties on that letter, the chair of the House Judiciary Committee, Bob Goodlatte, did not sign the letter, meaning that it was unlikely to be taken as seriously.

Suddenly, though, it seems that the ins-and-outs of Section 702, and how the "incidental" information it collects on Americans is used has taken on a much wider interest, following President Trump's misleading suggestion that President Obama tapped his phone lines, and some Trump supporters trying to twist typical 702 surveillance to justify those remarks. Either way, if that leads people to actually look at 702, that may be a good result out of a stupid situation. And, thus, we get to this surprising moment, in which Goodlatte has actually sent a similar letter to Coats (along with ranking member John Conyers) asking about the impact of 702 surveillance on Americans. And since (for reasons that are beyond me) Reuters refuses to link to the actual source materials, you can read the full letter here or embedded below.

The letter demands an answer by April 24th. And, yes, it's notable that Goodlatte has signed on, because Section 702 is up for reauthorization at the end of the year, and if Goodlatte is not on board with reauthorization, then the NSA is going to have some difficulty in getting it through.

You have described reauthorization of Section 702 as your "top legislative priority." Although Congress designed this authority to target non-U.S. persons located outside of the United States, it is clear that Section 702 surveillance programs can and do collect information about U.S. persons, on subjects unrelated to counterterrorism. It is imperative that we understand the size of this impact on U.S. persons as our Committee proceeds with the debate on reauthorization.

The letter then even points to Coats' response to Wyden during Coats' confirmation hearing that he was "going to do everything I can to work with Admiral Rogers in NSA to get you that number." Of course, back in December, it was said that the intelligence community might finally deliver that number... in January. And it's now April. Still, with Goodlatte finally taking an interest in this, it's a sign that the NSA can't just coast by and continue to completely ignore this.

Filed Under: bob goodlatte, dan coats, fbi, fisa amendments act, house judiciary committee, nsa, ron wyden, section 702, surveillance

DOJ Memo Shows NSA And White House Lawyers Mainly Unconcerned About Evidence Obligations In Criminal Trials

from the let's-temporarily-sort-of-care-about-something dept

Charlie Savage of the New York Times has obtained another document detailing the internal guidelines of the NSA's STELLAR WIND program as a result of the NYT's long-running FOIA lawsuit against the government. The new document is a memo from the Department of Justice, which details its lawyers' attempts to suss out the government's obligation to defendants when it comes to evidence derived from classified surveillance programs.

As Savage points out in his post, much of the NSA program's inner workings (and abuses) have been detailed in previously-released documents, including an Inspector General's report obtained by the Times in 2015. That doesn't make this document [PDF] unworthy of a read, however. It doesn't provide more detail on the program or its apparent abuse, but it does make it clear the government didn't seem too concerned about potential due process violations arising from the obscuring of surveillance-derived evidence.

First, the memo points out very few DOJ lawyers and prosecutors have been "read in" to the program, which immediately makes it more difficult to balance adversarial issues in criminal prosecutions where the paper trail leads back to the NSA's warrantless surveillance.

But the OLC (Office of Legal Counsel) doesn't have the right lawyers on staff to make this determination. Then-OLC head John Yoo himself admits (via a quotation in the memo) that "criminal law is not [his] area." To remedy this, the OLC brought in two lawyers from the DOJ's Criminal Division -- Patrick Rowan and Christopher Wray -- to analyze processes and check for adherence to Rule 16 (defendant' communications and statements in the government's possession) and Brady (exculpatory evidence) obligations. But it appears once the two DOJ lawyers were "read in," they were forgotten about.

Wray told the OIG that after his and Rowan's read-in, they "were kind of left on our own." He said that no one directed him or Rowan to continue studying the Rule 16 issues or the government's Brady obligations in connection with international terrorism prosecutions, nor did anyone tell them to develop any judgments or opinions on the subject.

What is clear is that whatever changes were made at the NSA and DOJ were the result of journalism. According to Rowan's statements to the NSA's Inspector General, the NSA was, at best, "generally aware" of its evidence disclosure obligations "prior to the December 2005 disclosure… of the Stellar Wind program in The New York Times."

But the process in place -- and likely the process that continues today with the OLC's blessing -- was to spot cases that might present discovery issues and take steps to hide the origin of that evidence.

Rowan stated that if the NSA located any responsive but classified information, it would be expected to notify senior Justice Department officials with the requisite clearances about the information. Rowan said he was confident that if Brady information were known to the NSA, it would be brought to the attention of the Department and steps would have been taken to dismiss the case or otherwise ensure the program was not disclosed.

If the government wanted both program secrecy and a successful prosecution, the FBI would engage in something that looks an awful lot like parallel construction.

[Rowan] stated that the FBI had "walled off" any evidence it collected from inclusion in criminal cases by tipping out Stellar Wind-derived information under [REDACTED] with a caveat that the information in the tipper was "for lead purposes only." Rowan noted that OIPR [the DOJ's Office of Intelligence Policy and Review] also had in place a scrubbing process to delete program-derived information from FISA applications. Rowan expressed confidence that these mechanisms ensured that no program information was used in international terrorism prosecutions. Finally, Rowan stated that the FBI is "very quick to get FISAs up," thereby minimizing the likelihood that the NSA's Stellar Wind database would be the sole repository of Brady material.

The DOJ lawyers felt evidence issues still remained mostly unaddressed, but the OLC apparently lost interest shortly thereafter. The new head of the OLC discussed some issues with Rowan but told the DOJ "he did not believe the OLC followed up on Rowan's request that it continue researching these issues." Another OLC official said he had seen Rowan's work, but the office apparently decided Yoo's memo (the same Yoo who stated criminal law "wasn't his area") was the final word on the subject. This same official also stated he wasn't aware of any "formal procedures" for handling surveillance-derived evidence arising from the DOJ's examination of the subject.

The other DOJ lawyer "read in" to the program confirmed the OLC official's statement.

Wray also told us there was no organized Departmental effort to establish formal procedures for reviewing international terrorism prosecutions to comply with Rule 16 disclosure requests and Brady obligations. He said "the thinking was" that the Rowan memorandum was the "first step" toward devising "some kind of systematized process" for such reviews. However, we found no indication that OLC followed up on Rowan's request to further study these discovery issues with any kind of written product.

So, the answer on prosecution evidence obligations comes from a guy who knows little about criminal law. On the plus side (haha), he's a strong proponent of making all rights and liberties subservient to national security concerns. The FBI does its part to protect NSA surveillance programs by erecting parallel evidence gathering, which means defendants might actually be able to see the evidence used against them, but be unable to challenge the constitutionality of the original collection. This all works out very well for the government, which somehow managed to slack its way into a playing field tilted towards the prosecution despite having one of its flagship surveillance programs splashed all over the pages of the New York Times. Remind me again how leaks damage the government's ability to pursue investigations and prosecutions?

Filed Under: christopher wray, discovery, doj, evidence, john yoo, nsa, olc, patrick rowan, stellar wind, surveillance

Privacy And National Security Concerns Play Second Fiddle To Administration's Attempts To Control The Narrative

from the privacy-violations-are-coming-from-inside-the-house! dept

Rep. Devin Nunes, who heads the House Intelligence Committee, has been all over the privacy/security map in recent weeks. He's publicly decried the supposed "illegal surveillance" of former National Security Advisor Mike Flynn while trying to avoid undercutting the NSA programs and presidential authority that make it all this spying possible.

His hypocrisy knows no bounds. Nunes has repeatedly suggested NSA spying activities (under Executive Order 12333) should receive even less oversight. Now he's complaining the spy infrastructure he wholeheartedly supports is too big and dangerous, now that it's resulted in Mike Flynn's departure.

But it goes even further than that. Nunes is utilizing an informal network of what he calls "whistleblowers" to leak him details of investigations. Then he immediately goes and discusses these investigations in public. Barton Gellman (who handled some of Snowden's leaks) points out just how far Nunes has gone in defending both Mike Flynn and Trump White House.

Three named officials—two Trump appointees and arguably his leading defender on the Hill—appear to have engaged in precisely the behavior that the president describes as the true national security threat posed by the Russia debate...

The offense, which in some cases can be prosecuted as a felony, would apply even if the White House officials showed Nunes only “tearsheet” summaries of the surveillance reports. Based on what Nunes has said in public, they appear to have showed him the more sensitive verbatim transcripts. Those are always classified as TS/SI (special intelligence) or TS/COMINT (communications intelligence), which means that they could reveal sources and methods if disclosed. That is the first apparent breach of secrecy rules. The second, of course, is the impromptu Nunes news conference. There is no unclassified way to speak in public about the identity of a target or an “incidentally collected” communicant in a surveillance operation.

When communications of US persons is "incidentally" collected, the information is minimized and the names redacted. Gellman points out "customers" (other government agencies/officials) can ask for the names to be revealed. But the policies governing dissemination mean the NSA doesn't just hand out this info to anyone. The fact that Nunes knew whose communications were swept up along with the targets means the real breach of privacy isn't the NSA's incidental collection, but the unmasking of those incidentally-collected. That means the same White House that's so upset about Trump being spied on is the one asking for an unminimized copies of the collected communications.

The names could only have been unmasked if the customers—who seem in this case to have been Trump’s White House appointees—made that request themselves. If anyone breached the president’s privacy, the perpetrators were working down the hall from him. (Okay, probably in the Eisenhower Executive Office Building next door.) It is of course hypocritical, even deceptive, for Nunes to lay that blame at the feet of intelligence officials…

This raises an even more interesting question about what's going on at the White House. Officials are asking for unminimized reports on incidental collections. But for what reason? Gellman theorizes it may be some form of an unofficial backdoor search.

There is no chance that the FBI would brief them about the substance or progress of its investigation into the Trump campaign’s connections to the Russian government. Were the president’s men using the surveillance assets of the U.S. government to track the FBI investigation from the outside?

If so, it's an interesting way to obtain information a government agency (the FBI) won't share with you: get it from the intelligence agency that's feeding it to the FBI. If this is what's happening, it's another example of the Trump White House -- and those subservient to it -- ignoring national security rules to further their own ends. This abuse likely isn't unusual, but it's definitely hypocritical for those engaging in it to make comments about the sanctity of privacy and/or national security while doing damage to both.

Filed Under: backdoor search, classified info, devin nunes, donald trump, incidental collection, leaks, mike flynn, minimization, nsa, surveillance 12333

NSA Official Says It Might Have Been Nice If The Agency Had Handled The Public Disclosure Of The Section 215 Program

from the see-also:-snooze-v.-lose dept

Now that Edward Snowden has done all the leg work, the Intelligence Community is admitting that, yeah, maybe it should have been more upfront about the phone metadata collection. The soon-to-be-former NSA Deputy Director says it might have been better for the agency to be out ahead of the disclosures, rather than forced to play defense.

Richard Ledgett, who is retiring next month, said in an interview with Reuters that disclosing the secret program would have been difficult. But, he said, doing so might have mitigated the damage done by Snowden.

"That's one where I might have to say, yes," Ledgett said in his office at NSA headquarters in Fort Meade, Maryland. "That's one where maybe it would have been less shocking when Snowden did what he did."

Ledgett's not alone in feeling this way. Since the leaking began back in June 2013, several current and former officials have made similar statements. For one thing, controlling the disclosure means controlling the narrative. The IC could have pointed to several things in defense of the bulk domestic collection program, including:

a.) the lawfulness of the collection
b.) the rigorous oversight
c.) the strict compliance with FISA and the FISA court
d.) it's "just metadata"

Doing so might have headed off Snowden and other leakers. Possibly. At the very least, it would have bought the NSA some time and some narrative leeway before documents began being published showing:

a.) the collection's lawfulness was dubious at best
b.) the oversight was a joke
c.) the FISA court routinely discovered abuse by the NSA
d.) metadata exposes quite a bit of a person's life, actually.

Not quite as straightforward were Ledgett's comments on the Section 702 program, which provides backdoor domestic searches for a variety of government agencies, as well as harvests millions of communications from internet backbones. During the run-up to the Section 215 reauthorization two years ago, it sometimes appeared the NSA was willing to make deep compromises on the telephone metadata program in order to spare the internet collection the same sort of Congressional scrutiny.

Since 2011, oversight committee members (well, just a couple of them, actually) have been demanding an estimate of the amount of American communications incidentally-collected by the NSA with this program. Six years later, there have been promises made but none kept. At this point, Ledgett is just another IC official making promises no one seems to have any intent of keeping.

Privacy advocates have repeatedly demanded that the government share an estimate of how many Americans are ensnared by programs authorized under Section 702.

Intelligence officials have declined to do so. But Ledgett, in remarks earlier Tuesday at a forum sponsored by the Aspen Institute, said "yes" when asked if an estimate would be provided before year end.

We'll see. Deadlines have been ignored in the past and Ledgett's on his way out the door, so these are promises he can't be held responsible for not keeping.

Filed Under: disclosure, ed snowden, mass surveillance, nsa, richard ledgett, section 215

Once Again, Senator Wyden Wants To Know How Many Americans Are Being Surveilled By The NSA

from the why-is-this-so-difficult dept

Many people seem to forget that before Ed Snowden came along, Senator Ron Wyden was beating the drum in Congress about how the NSA was abusing Section 702 of the FISA Amendments Act to spy on Americans. Here's a story we did back in 2011 concerning Wyden raising concerns about the failure of the Director of National Intelligence to say how Section 702 was being used on Americans. Even earlier in 2011, we wrote about then Director of National Intelligence, James Clapper, refusing to answer this question, saying that "it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed."

Wyden kept up a series of similar requests, famously leading to the 2013 hearing in which Wyden directly asked Clapper about whether or not information was being collected on Americans and Clapper flat out lied. Snowden himself has credited that particular exchange as playing a big role in convincing him to leak documents.

Fast forward to now. Last week, Senator Wyden sent a letter to incoming Director of National Intelligence* Dan Coats, once again asking how many Americans are having their communications watched under Section 702 of the FISA Amendments Act (which, again, is supposed to be used for foreign intelligence, but which we now know is regularly used to do surveillance on Americans).

I and other members of Congress have been seeking an answer to this question since 2011. We posed the question again in the context of the reauthorization of Section 702 in 2012. It is now central to the debate this year over the reauthorization of the program, which you have described as your "top legislative priority."

As Wyden notes:

The lack of information on the extent to which Americans' communications have been collected under Section 702 is relevant not just to the question of whether Section 702 should be reauthorized, but to what reforms may be needed. For example, the government is currently authorized to conduct warrentless queries for Americans' communications collected under Section 702. Without data on the number of Americans' communications available to government, it is impossible to know the full extent to which these queries intrude on the privacy and constitutional rights of Americans.

Wyden was hoping to get an answer to this question, prior to Coats' being voted in. That, of course, did not happen. However, Wyden gave one of his big speeches about this issue:

In it, he calls out these issues quite clearly:

But I want it understood that the reason that I’m going through this background is that I believe the American people deserve a fully informed debate about the Foreign Intelligence Surveillance Act reauthorization. You cannot have that debate — you cannot ensure that the American people have security and liberty unless you know the impact of section 702 of that bill on the constitutional rights of law-abiding Americans.

So for six years, Mr. President, in this body Democrats and Republicans — in the other body, Democrats and Republicans — have been asking the same question: How many law-abiding Americans are having their communications swept up in all of this collection?

Without even an estimate of this number, I don’t think it’s possible to judge what section 702 means for the core liberties of law-abiding Americans.

Without this information, the Congress can’t make an informed decision about whether to reauthorize section 702 or what kind of reforms might be necessary to ensure the protection of the individual liberties of innocent Americans.

There's a lot more in the nearly 50-minute speech (the transcript is in the link above). But it's truly incredible that the executive branch refuses to give Congress this information that it needs for oversight:

Mr. President, how many law-abiding Americans — innocent, law-abiding Americans are getting swept up in these searches? It will be an increasingly important issue, as the nature of telecommunications companies continues to change because it is now a field that is globally interconnected. We don’t have telecommunications systems just stopping at national borders.

So getting the number of Americans whose communications have been collected in the first place is the prerequisite to doing real oversight on this law and doing our job at a time when it is being reauthorized and the American people want both security and liberty and understand that the two are not mutually exclusive. So, Director Clapper then suggested reviewing the classified number of targets that were later determined to be located in the United States. But the question has never been about the targets of section 702, although the mistaken targeting of Americans and the people in our country is another serious question.

The question that Democrats and Republicans have been asking is about how many Americans are being swept up by a program that, according to the law, is supposed to only target foreigners overseas. So let me repeat that. That’s what the law says. The Foreign Intelligence Surveillance Act says that the targets are supposed to be foreigners overseas. And Democrats and Republicans want to know how many law-abiding Americans who might reside in Alaska or Oregon or anywhere else are getting swept up in these searches. So this bipartisan coalition has kept asking.

Wyden goes on to explain how many in the intelligence community are misleading the public on how broad the powers and searches under Section 702 really are. He even highlights the claims that some have made that anyone against 702 must be part of a "bad guy caucus." But the issue is that, as currently used, Section 702 can and likely is being used to broadly conduct warrantless surveillance on Americans:

I’ve heard my colleagues on the other side talk frequently. Well, you know, if law-abiding Americans are having their communications swept up, we shouldn’t get all concerned about that because this array of Americans’ communications is being minimized, and somehow that means that it’s not getting out. It’s being hidden. That’s not what necessarily happens.

To begin with, all that collection does not stay at the National Security Agency. All the e-mails collected through the PRISM component of section 702 go to several other agencies, including the C.I.A. and the F.B.I. Then you have those three agencies in particular authorized to conduct searches through all the data for communications that are to, from, or about Americans. Look for an American’s name, telephone number, e-mail address, even a key word or phrase. They can do that without any warrant. There doesn’t have to be even a suspicion, even a suspicion that an American is engaged in any kind of wrongdoing.

The F.B.I.’s authorities are even broader. The F.B.I. can also conduct searches for communications that are to, from, or about an American to seek evidence of a crime. Unlike the National Security Agency and the Central Intelligence Agency, the F.B.I. doesn’t even report how many searches for Americans it’s conducting. Moreover, neither the F.B.I. Nor the C.I.A. Reports on the number of searches for Americans it conducts using metadata collected under section 702.

Now, the authority to conduct searches for Americans’ communications in section 702 data is new. Before 2011, the FISA court prohibited, prohibited queries for U.S. persons. I’m going to repeat that: Under the Bush Administration and the first two years of the Obama Administration, it was not possible to conduct these back-door, warrantless searches of law-abiding Americans. Then the Obama Administration sought to change the rules and obtained authority to conduct them.

In April, 2014, the Director of National Intelligence in response to questions from myself and Senator Mark Udall publicly acknowledged these warrantless searches, and my June, the House voted overwhelmingly to prohibit them. That prohibition didn’t become law, but I can tell you it’s sure going to be considered in the context of this reauthorization, and the House voted overwhelmingly, overwhelmingly to prohibit these warrantless searches. So the question really is what exactly is the privacy impact of these warrantless searches for Americans?

There's a lot more in the speech as well, but this post is getting to be long enough. Unfortunately, of course, the speech will get little attention. It's not the exciting sort of political football that cable news likes to cover. There's no partisan horse race element to it. It's just the kind of thing that impacts the basic Constitutional rights of all Americans. And, apparently, only a few people actually seem to care about it -- and none of them seem to be in roles where they can stop this kind of 4th Amendment violation from happening again.

* Clapper, astoundingly, was never fired or otherwise punished for lying to Congress, and only left at the beginning of this year with the change in administrations.

Filed Under: 4th amendment, dan coats, fisa amendments act, james clapper, nsa, ron wyden, section 702