Obama Says James Clapper 'Should Have Been More Careful' In How He Lied To Congress

from the ridiculous dept

Many of us are still quite disappointed that James Clapper has kept his job as Director of National Intelligence after flat out lying to Congress over whether or not the NSA spied on Americans. There have been increasing calls from within Congress to have Clapper investigated and possibly prosecuted for the felony of lying to Congress, but there appears to be no movement there at all. Not only does the Obama administration seem to want to protect one of their own, but it's also made it clear that something like that would make it look like Ed Snowden "won" and they can't allow that sort of thing.

CNN's Jake Tapper finally got President Obama to "address" the issue in an interview, and the best that Obama could muster was that Clapper "should have been more careful" in how he lied to Congress:

“I think that Jim Clapper himself would acknowledge, and has acknowledged, that he should have been more careful about how he responded,” Obama told CNN’s Jake Tapper. “His concern was that he had a classified program that he couldn't talk about and he was in an open hearing in which he was asked, he was prompted to disclose a program, and so he felt that he was caught between a rock and a hard place.”

I'm wondering if anyone else charged with a felony for lying to Congress will now be able to use that excuse: yes, yes, they should have been more careful in how they lied to Congress.

As for the "rock and a hard place" claim, that's also simply untrue. Clapper knew full well the question was coming and also knew full well that he could easily respond by saying a variety of things, such as "I can only fully answer that question in a closed hearing." Clapper knows he can do this because he's done it many times before. In fact, he did it just this week when asked another question by Senator Wyden about the NSA's activities. He specifically said that he was uncomfortable discussing such details in an open hearing but would be happy to discuss them during a closed session. And, in fact, Clapper had done similar things in previous sessions, as is clear from the correspondences between him and Wyden that pre-dated the hearing where he lied.

For example, take a look at a letter Clapper sent in 2011 to Senator Ron Wyden, in which he states: "the questions you pose on geolocational information are difficult to answer in an unclassified letter." He was able to do that in 2011 and no parade of horribles followed. It did not reveal any "sources and methods" of classified intelligence. He easily could have done the same thing in 2013 when asked.

There was no rock. There was no hard place. Clapper didn't need to "be more careful." He lied. Which is a felony. And the President is excusing it because he doesn't want Snowden to "win."

Filed Under: barack obama, felony, james clapper, lying to congress, nsa, ron wyden, surveillance

Wyden And Udall Hint Strongly At CIA Hacking Into Americans' Computers

from the pay-attention dept

By this point, it should be clear that when Senators Ron Wyden and Mark Udall ask questions to senior intelligence community officials in open hearings, it's not because they don't know the answers, but because they do, and they have information that they think should be public. Remember, of course, that, years ago, Wyden and Udall were clearly hinting at what Ed Snowden eventually revealed. So, during yesterday's hearing during which leaders from the intelligence community tried to pull their usual "be scared American people!" schtick, Wyden's and Udall's questions point to some potential mischief by the CIA. Both asked questions of CIA boss John Brennan concerning the legality of certain actions. It is unlikely that they did this because they were just curious. Wyden kicked it off by asking if the Computer Fraud and Abuse Act (CFAA) applied to the CIA:

Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?

Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.

Wyden: How long would that take?

Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–

Wyden: A week?

Brennan: I think that I could get that back to you, yes.

Of course, we've written about the CFAA many times, and how the broadly (terribly) written law has been abused by law enforcement to go after all sorts of ordinary or reasonable computer activity. But Wyden is flipping this around in a slightly interesting way -- asking if the CFAA applies to the CIA. The answer, actually, is probably no, the CFAA doesn't apply to the CIA. If you look at 18 USC 1030(f) (which is part of the CFAA), it says:

This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.

It seems likely that the eventual answer from Brennan to Wyden will basically point to this particular language. But that's not particularly important, as the intent of the question likely had little to do with actually looking at the scope of the CFAA, but rather hinting very strongly that the CIA is hacking into computers in a manner that would violate the CFAA if it wasn't being done by law enforcement.

This was then followed up soon after with a question from Udall, again to Brennan, asking a slightly different question about the CIA's legal authority, which Brennan doesn't actually answer, instead answering a different question that wasn't asked:

Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?

Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.

Got that? He was asked "do you spy on Americans?" and the answer was "we follow the law." Considering that Wyden and Udall have been among the leading folks pointing out that the intelligence community has regularly reinterpreted the laws in secret in order to broaden their claimed authority, that answer is hardly assuring. Instead, it sure sounds like the CIA admitting that, hell yes, they spy on Americans under their twisted interpretation of the law. Combine that with Wyden's question -- which may or may not be about the same issue, but the two have often coordinated on these issues -- and it certainly hints at the idea that the CIA is hacking into Americans' computers.

Over the last few months, much of the focus has been on the NSA, but it's important to remember that the CIA actually is bigger in terms of its budget, and remains incredibly powerful and secretive. Also, over the last decade or so there appears to be significant evidence of incredible abuse by the CIA. As we've noted a few times, the Senate Intelligence Committee has been sitting on a supposedly explosive report that cost $40 million to put together, detailing some horrific CIA abuses, which the CIA has been doing everything possible to stop from being released.

Given all this, how long will it be until we discover "explosive" revelations about the CIA that confirm what Wyden and Udall have been hinting at?

Filed Under: americans, cfaa, cia, eo 12333, executive order 12333, hacking, john brennan, mark udall, ron wyden, surveillance

Seven House Judiciary Members Demand DOJ Investigate James Clapper For Lying To Congress

from the now-we're-getting-somewhere dept

Since the Snowden revelations first started coming out, forcing James Clapper to admit that he flat-out lied to Congress, we've been somewhat perplexed as to how Clapper could come out of the whole thing "unscathed." Congress seemed willing to look the other way, and the President didn't appear to have any interest in firing Clapper or Keith Alexander, so as not to "let Snowden win." But, it's never made much sense. Lying to Congress is a pretty serious crime -- and considering the lying was to cover up a program that just this week was found to be unconstitutional, it seems even more serious. The fact that anyone in Congress thinks that Clapper can even be remotely trusted to tell the truth going forward when he got away with lying, seems bizarre.

Hopefully that will be changing now.

Back in October, Rep. Jim Sensenbrenner, the author of the PATRIOT Act, argued that Clapper should be fired and prosecuted, but hadn't done anything to move that forward. However, with Monday's ruling now making it pretty clear that the program that Clapper lied about (in response to a question from Senator Ron Wyden), Sensenbrenner, along with six of his colleagues on the House Judiciary Committee have sent a letter to Eric Holder, demanding an investigation into Clapper's lying to Congress. The letter is quite a read. They're pretty direct about calling out Clapper for lying, how this is against the law, how others in government have been prosecuted for the same thing, and even how allowing this to go unpunished contributes to "cynicism" about the government.

Congressional oversight depends on truthful testimony--witnesses cannot be allowed to lie to Congress. Accordingly, we request you to investigate the Director of National Intelligence James Clapper's "erroneous" statements to the Senate Select Committee on Intelligence earlier this year.

[....] 18 U.S.C. § 1001 makes it a crime to "knowingly and willfully" make any "materially false" statement in the course of any "investigation or review, conducted pursuant to the authority of any committee." One of the hallmarks of American democracy is that no one is above the law...

[....] Director Clapper has served his country with distinction, and we have no doubt he believed he was acting in its best interest. Nevertheless, the law is clear. He was asked a question and he was obligated to answer truthfully. He could have declined to answer. He could have offered to answer in a classified setting. He could have corrected himself immediately following the hearing. He did none of these things despite advance warning that the question was coming.

The country's interests are best served when its leaders deal truthfully with its citizens. The mutual sense of good faith it fosters permits compromise and concessions in those cases that warrant it. Director Clapper's willful lie under oath fuels the unhealthy cynicism and distrust that citizens feel toward their government and undermines Congress's ability to perform its Constitutional function.

There are differences of opinion about the propriety of the NSA's data collection programs. There can be no disagreement, however, on the basic premise that congressional witnesses must answer truthfully.

It seems unlikely that Holder will do anything, but this is the first official move we've seen towards actually punishing Clapper for lying to Congress. It would be nice if others in Congress supported this effort as well.

Filed Under: eric holder, house judiciary committee, james clapper, jim sensenbrenner, lying to congress, nsa, nsa surveillance, ron wyden

Digital Exports Dwarf Other Industries, So Why Is The USTR Ignoring Them?

from the just-clueless dept

We've talked a few times about how the USTR seems to have an antiquated view of the American economy these days, which is driving it to make some really bad and dangerous assumptions about what sorts of things should be in the Trans Pacific Partnership (TPP) agreement -- things that benefit a few older legacy industries, which totally ignore the reality of where innovation is happening today. In fact, the current policies that the USTR is pushing in the TPP agreement seem designed to actually hold back the most innovative industries of today, pushing them to other countries instead, and massively harming the US economy. We've detailed, for example, how the main committee of industry folks who are the "advisers" on the "intellectual property" chapter come from legacy industries, rather than anything involving the internet. The "IP" Industry Trade Advisory Committee (ITAC 15) includes a bunch of lumbering giants, more focused on protecting their positions, than on innovating.

Senator Ron Wyden's office recently asked the Congressional Research Service (known for the high-quality, non-partisanship of their reports) to look at how much "digitally enabled services" were exported out of the US today, and to compare that with other "large" exporters, which the USTR generally thinks it's protecting. The results are somewhat astounding. Digital exports are massive compared to all of those other industries. And yet, the USTR seems focused on helping out all those other guys at the expense of the digital services that make up such an important part of our economy. Why? At this point, it seems that there's just a massive level of ignorance within the USTR about which part of our economy is actually driving so much growth -- and their plans to protect old line industries create real problems for the internet, and they just don't seem to care.

At least some in Congress are finding this situation quite troubling. Reps. Jared Polis and Thomas Massie have teamed up to ask USTR Michael Froman to finally commit to actual transparency, and that includes both releasing the text of the IP chapter and finally letting people who are actually knowledgeable about the internet and its impact on the economy into the discussions.

While we recognize the need to maintain a degree of confidentiality in negotiating our trade agreements, we remain disappointed that important stakeholders including civil society groups, businesses, and academics have not been able to meaningfully participate in the treaty process. The Industry Trade Advisory Committee on Intellectual Property (ITAC-15) has a limited membership, precluding a more diverse set of stakeholders from being able to review and provide input on the negotiating texts or regularly meet with United States Trade Representative (USTR) negotiators.

In particular, we are concerned that the TPP Intellectual Property Rights chapter leaked in November 2013 would place undue restrictions on our copyright laws, harming our innovation, our economy, and an open and free Internet. These standards are troubling given their ability to potentially restrict the legislative branch, particularly when Congress has indicated it is beginning to evaluate the merits of revising these laws. For example, as sponsors of H.R. 1892, the Unlocking Technology Act, we are particularly troubled by draft proposals concerning prohibitions on the circumvention of technical protection measures or Digital Rights Management. The leaked treaty draft includes language that would seemingly make any permanent fix to unlocking cellphones illegal. Intellectual property is a dynamic policy area in which preserving Congress’ ability to adapt to the changing nature of technology is absolutely critical for the United States and our trading partners.

To that end, we encourage the Administration to work with the negotiating parties to publicly release the current official text of the TPP intellectual property and related chapters—or at least summaries of these proposals—and invite public comments on such provisions before the agreement is concluded. A strong precedent already exists for such a process; for instance, the Anti-Counterfeiting Trade Agreement official text was made public an entire year before the agreement was finalized. Additionally, in the future we urge you to develop a more open model of trade agreement negotiation.

Personally, I think this language could and should be much, much stronger, given just how out of touch with reality the USTR seems to be. With the Congressional Research Service itself noting how much more important digital services exports are to the economy, why is the USTR still ignoring them, and looking at them as if the internet is a second- or third-class citizen in the US economy?

Meanwhile, over on the Senate side, Senators Ron Wyden and John Thune have introduced a bill directly seeking to promote an open internet when it comes to trade agreements:

The Digital Trade Act of 2013 would establish negotiating principles to address several key digital trade matters in future bilateral and multilateral agreements and in multistakeholder settings. Those principles include: preventing or eliminating restrictions on cross-border data flows, prohibiting localization requirements for data and computing infrastructure, ensuring that provisions affecting platform Internet sites are consistent with U.S. law, and recommitting the United States to the multistakeholder model of Internet governance. The bill requires the president to prioritize digital trade and ensure it benefits from robust and enforceable rules.

Again, it might be nice if this was even stronger, but recognizing that it's difficult to get anything through Congress these days, perhaps you need to start with things that seem simple and obvious, like having the USTR recognize that "digital" is actually a big business these days.

Filed Under: digital exports, innovcation, jared polis, john thune, ron wyden, thomas massie, tpp, ustr

Read This If You Want To Understand Just How Far The NSA Has Gone, And The Political Mess Behind It

from the must-read dept

I cannot say enough good things about Ryan Lizza's comprehensive article about the NSA's surveillance programs and the legal mess and political fights they've created. There's nothing particularly new in the article, but it does an astoundingly good job putting everything that we've learned into context. Even as someone who's been following all of this very closely, it was still a bit of a jumbled puzzle in my mind, but Lizza's piece took all of it and laid out the entire picture. It goes through all of the details of how and why the NSA began the program, its regular and repeated (often egregious) abuses, and the questionable legal defenses to protect the program. It goes into great detail on Senator Ron Wyden's long fight against these programs and in favor of civil liberties and the Constitution. It details how and why President Obama flip-flopped from his position as Senator and kept the programs, despite multiple opportunities to dump them. Even crazier, it discusses how a proposal Obama made as Senator might have stopped these programs years ago:

Even without a full picture of the programs, two senators who were not on the Intelligence Committee became intense critics of N.S.A. domestic surveillance: Barack Obama and Joe Biden. In May, 2006, after the USA Today article appeared, Biden said it was frightening to learn that the government was collecting telephone records. “I don’t have to listen to your phone calls to know what you’re doing,” he told CBS News. “If I know every single phone call you made, I’m able to determine every single person you talked to. I can get a pattern about your life that is very, very intrusive.”

Obama’s objections to domestic surveillance stretched back even further. In 2003, as a Senate candidate, he called the Patriot Act “shoddy and dangerous.” And at the 2004 Democratic Convention, in the speech that effectively launched his eventual campaign for President, he took aim at the “library records” provision of the law. “We worship an awesome God in the blue states, and we don’t like federal agents poking around our libraries in the red states,” he declared. In 2005, when he arrived in Washington, Obama became one of Wyden’s new allies in his attempts to reform the law. The Patriot Act was up for reauthorization, and, at Wyden’s urging, the Senate was trying to scale back the “library records” section. One of the first bills that Obama co-sponsored, the Security and Freedom Enhancement Act, would have required that the government present “specific and articulable facts” if it wanted a court order for records, a much higher standard than the existing one.

Obama and several other senators, including John Kerry, now the Secretary of State, and Chuck Hagel, the current Secretary of Defense, laid out their legal case against the provision in a letter to colleagues on December 14, 2005. The government could “obtain library, medical and gun records and other sensitive personal information under Section 215 of the Patriot Act on a mere showing that those records are relevant to an authorized intelligence investigation,” they wrote. It allowed “government fishing expeditions targeting innocent Americans. We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy.” The following day, on the Senate floor, Obama said that the provision “seriously jeopardizes the rights of all Americans and the ideals America stands for.”

The Bush White House fought Obama’s changes, but offered a few minor concessions. Most notably, a business that received a demand for records could challenge in court a nondisclosure agreement that accompanied the demand. That was enough to placate some Democrats, including Obama. Wyden objected that the change did nothing to address Obama’s concerns, but the reauthorization of the Patriot Act passed the Senate on March 1, 2006. Wyden, eight other Democrats, and one Independent voted against it; Obama and Biden voted for it. Bush signed the law on March 9th.

Wyden later learned that, while he and Obama were fighting to curtail Section 215, the N.S.A.’s lawyers were secretly arguing before the FISA court that the provision should allow the N.S.A. to legally collect the phone records of all Americans. The lawyers, encouraged by their success in retroactively legalizing the Internet-metadata program, believed that they could persuade the FISA court to force phone companies to regularly hand over their entire databases. At the FISA court, there are no lawyers challenging the government’s arguments; all the N.S.A. needed to do was convince a single judge. Had Obama’s language been adopted, the N.S.A.’s case would have collapsed.

It's a long but fascinating article that you owe it to yourself to read, no matter where you stand on these issues. It paints the whole picture that hasn't been clear to many, and highlights just how dysfunctional the oversight has been of the NSA. And, if you weren't already impressed enough by Senator Wyden, the article presents even more reasons to be impressed by him (and depressed that there's only one of him).

On Twitter last week, after the Snowden leaks showing that, yes, as Wyden had been hinting all along, the NSA has been collecting location data on tons and tons of people, there was a great tweet by Kade Ellis, saying:

New rule: when Ron Wyden asks "NSA, do you do this spying?" HE ALREADY KNOWS THE ANSWER AND THE ANSWER IS ALWAYS YES

Unfortunately, as the article details, Wyden very rarely is even allowed to ask these questions, and the intelligence community stonewalls at every opportunity. Senator Dianne Feinstein, who should be managing oversight of the intelligence community appears to believe her job is rather to defend and support the intelligence community.

Still, the most disappointing aspects of the article really focus on how President Obama and his advisors, many of whom had spoken out against the Patriot Act and various aspects of the program now in place, suddenly changed positions once they were in power, and it was their power to abuse. The repeated stories of intelligence industry insiders coming up with the flimsiest of reasons why these programs must continue are plenty troubling. However, the fact that no one in the government seems to think that the American public can even be trusted with their basic reasoning and interpretations of the laws of the land is just ridiculous.

Either way, as stated, you owe it to yourself to find some time to read the whole thing -- but prepare to be outraged.

Filed Under: barack obama, dianne feinstein, eric holder, james clapper, joe biden, nsa, ron wyden, ryan lizza, surveillance

NSA Is Tracking Mobile Phone Location On So Many People It Can't Handle The Data Storage

from the another-shoe-dropping? dept

We all know that Senators Ron Wyden and Mark Udall have been hinting strongly about the NSA tracking people's location via mobile phone location data. Since the Snowden documents started getting reported on, Wyden especially had ramped up his hints that mobile phone location data still undisclosed would be the real shocker. Back in October, it was revealed that the NSA had done a "pilot program" in the US to track people's locations via their mobile phones, but stopped the program and never used the data. In response to that, Senator Wyden hinted that there was much more to come:

“After years of stonewalling on whether the government has ever tracked or planned to track the location of law-abiding Americans through their cellphones, once again, the intelligence leadership has decided to leave most of the real story secret — even when the truth would not compromise national security,” Mr. Wyden said.

It would appear that "the real story secret" has started to come out via some new Snowden documents reported on in the Washington Post by Bart Gellman and Ashkan Soltani. Basically, while the NSA may not be spying on the location of Americans in the US via their mobile phones, they appear to be collecting location data of pretty much anyone all over the rest of the world to the tune of 5 billion records a day -- so much info that the NSA was having trouble storing it all (now you know what some of the Bluffdale datacenter in Utah is for).

The NSA cannot know in advance which tiny fraction of 1 percent of the records it may need, so it collects and keeps as many as it can — 27 terabytes, by one account, or more than double the text content of the Library of Congress’s print collection.

The location programs have brought in such volumes of information, according to a May 2012 internal NSA briefing, that they are “outpacing our ability to ingest, process and store” data. In the ensuing year and a half, the NSA has been transitioning to a processing system that provided it with greater capacity.

The NSA defends the program by saying that it uses the location data to find "unknown associates of known intelligence targets." Basically, it's tracking where everyone goes, just in case people end up spending time with people the NSA deems as being terrorists. However, that also means that the NSA has an astounding amount of really personal data on where pretty much everyone goes outside of the US, including who they meet with. The ability to abuse that data should be rather obvious. From that data, you can not only determine private business meetings, but you can figure out what doctors people go to, if they're cheating on their spouse, etc. And, given last week's revelations that the NSA has no qualms (at all) about using data on non-terrorists to embarrass them for the sake of embarrassing them, it's not difficult to see how the NSA might do the same over information gleaned from this vast trough of location information.

And, yes, despite the claims by the NSA, it appears to end up getting a ton of information on Americans as well, even if it's not actively collecting data within the US (ah, more "incidental" collections):

Some documents in the Snowden archive suggest that acquisition of U.S. location data is routine enough to be cited as an example in training materials. In an October 2012 white paper on analytic techniques, for example, the NSA’s counterterrorism analysis unit cites two U.S.-based carriers to illustrate the challenge of correlating the travels of phone users on different mobile networks. Asked about that, a U.S. intelligence official said the example was poorly chosen and did not represent the program’s foreign focus.

Elsewhere in the article, they quote NSA officials repeatedly saying that the program is "tuned to be looking outside the United States," but not saying it only collects info outside the US. Also, they make clear, once a person leaves the US, the NSA no longer believes the 4th Amendment applies to them, so their location is fair game in this giant database.. Asked for specific numbers, an NSA person said:

“It’s awkward for us to try to provide any specific numbers..."

And, at that point, they were cut off by an NSA spokesperson who didn't want the person to go any further. In other words, it's "awkward" for the NSA to admit that it's spying on pretty much everyone. Everyone.

Oh, and as for the methods used by some to avoid this kind of thing: getting prepaid lines, disposing of phones regularly, etc. Apparently the NSA is tracking that and it leads to greater suspicion:

Like encryption and anonymity tools online, which are used by dissidents, journalists and terrorists alike, security-minded behavior — using disposable cellphones and switching them on only long enough to make brief calls — marks a user for special scrutiny. CO-TRAVELER takes note, for example, when a new telephone connects to a cell tower soon after another nearby device is used for the last time.

The NSA defends this program, arguing (as it always does) that there's nothing wrong with doing what it's doing. Billions of people living around the globe might disagree.

Filed Under: 4th amendment, co-traveller, gps, location data, mobile phones, nsa, nsa surveillance, ron wyden

US Gov't Appears To Have Misled The Supreme Court About How The NSA Spied On Americans

from the whoa dept

We've written a few times now about the fact that US Solicitor General Donald Verrilli pretty clearly made false statements to the Supreme Court in a key case concerning NSA warrantless wiretapping. The case, Clapper v. Amnesty International, mainly focused on who had standing to challenge warrantless wiretaps performed by the NSA. The government argued that since there was no evidence that Amnesty International was spied on, it had no standing. The false statement involved the claim that the government would have to inform defendants in cases where warrantless wiretaps were used that that's how the info was gathered. Except the government didn't do that.

It turns out that might not have been the only misrepresentation from Verrilli -- and this next one may be even bigger, involving misleading the Supreme Court on a loophole that allowed the NSA to spy on tens of thousands of Americans.

As was noted earlier this year, upon realizing what happened, Verrilli was apparently furious, and the DOJ has now changed its policy to match with what Verrilli said -- they now will notify defendants, but it's clear that they never did so before.

But Senators Mark Udall, Ron Wyden and Martin Heinrich have sent Verrilli a letter urging him to "set the record straight" with the Supreme Court... but not just on that issue of disclosing. Rather they highlight somewhere else they think he did not paint the correct picture:

In Clapper v. Amnesty, the majority opinion characterizes as “highly speculative” the plaintiffs’ fear that “the Government will decide to target the communications of non-U.S. persons with whom they communicate,” and states that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals – namely their foreign contacts.” These and other statements in the opinion indicate the Court’s view that the only way the plaintiffs’ communications could be intercepted under the FAA is if those communications are to or from a foreign intelligence target.

Yet with the disclosure and declassification in recent months of relevant documents regarding Section 702, the role of ‘about’ collection under the FAA is now public, although not widely understood. In addition to authorizing the collection of communications to and from foreign, overseas targets, the FISA Amendments Act also has been secretly interpreted to authorize the collection of communications that are merely about a targeted overseas foreigner.

This form of collection allows the government – through the “upstream” collection under Section 702 – to collect any communication whose content includes an identifier, such as an email address, associated with an overseas foreigner who may be a foreign intelligence target. But according to the FISA Court’s October 2011 opinion, the ‘about’ collection likely results in the acquisition of “tens of thousands” of wholly domestic communications every year. In other words, tens of thousands of emails between law-abiding Americans are likely being collected – even though these Americans are not actually communicating directly with a foreign intelligence or terrorism target. As FAA collection was intended to target persons “reasonably believed to be located outside the United States,” and targeting procedures were intended to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States,” the FISA Court in its October 2011 opinion called this expanded FAA collection a circumvention of the “spirit” of the law and a “cause of concern for the Court.”

Just to hammer this point home, they're saying that despite everyone, including the Supreme Court, clearly reading the law to say that Section 702 of the FAA is supposed to be limited to surveillance on foreign targets, it actually also allows surveillance on communications about foreign targets -- and that likely includes tons of communications of Americans. And these communications were believed not to be available under this program, including by the Supreme Court.

The Senators ask Verrilli if he clearly informed the Supreme Court of this at any point, and if not, suggest that he correct the record.

We believe that a formal notification to the Supreme Court of the government’s misrepresentations in the case — both relating to its notice policy and relating to its practice of ‘about’ collection under Section 702 of the FISA Amendments Act — would be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court.

This seems rather important -- and a point that not many reporters have covered (which also might explain why the Senators are raising it, and noting that the revelation "is not widely understood.") This is a way of alerting people to the simple fact that the NSA has interpreted Section 702 to mean it can collect any communication deemed to be "about" a target, even if the communication is not from or to that target.

Filed Under: donald verrilli, faa, fisa, fisa amendments act, james clapper, mark udall, martin heinrich, nsa, ron wyden, section 702, solicitor general, supreme court, target
Companies: amnesty international

Senators Tell Court There's No Evidence That Bulk Phone Record Collection Was Useful

from the now-that's-an-amicus-brief dept

Here's something you don't see every day: three sitting US Senators filing an amicus brief against the federal government. Amicus (friend of the court) briefs can sometimes be quite useful, but all too often they're sort of there to just reinforce certain arguments made by some of the parties. Sometimes that's helpful, because at times they can present things in a way that is very useful for the court to understand things. It's somewhat rarer for an amicus to really have a unique insight into the issue. But here's one case where there's an amicus brief with a truly unique perspective. Senators Ron Wyden, Mark Udall and Martin Heinrich are asking to file an amicus brief in one of the big cases over the NSA's bulk collection of metadata from all phone calls. This is the case that was organized by the EFF, involving a variety of organizations, from churches to gun rights organizations to civil liberties groups and more.

The three Senators, all members of the Senate Intelligence Committee, have submitted amicus briefs to share with the court that, from what they've seen, there's no evidence that the bulk data collection program has been at all useful -- which is likely to be a key claim by the DOJ.

Now that the government’s bulk call-records program has been exposed, the government has defended it vigorously. Amici submit this brief to respond to the government’s claim, which it is expected to repeat in this suit, that its collection of bulk call records is necessary to defend the nation against terrorist attacks. Amici make one central point: As members of the committee charged with overseeing the National Security Agency’s surveillance, Amici have reviewed this surveillance extensively and have seen no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through less intrusive means. The government has at its disposal a number of authorities that allow it to obtain the call records of suspected terrorists and those in contact with suspected terrorists. It appears to Amici that these more targeted authorities could have been used to obtain the information that the government has publicly claimed was crucial in a few important counterterrorism cases.

They further point out that beyond the lack of usefulness, the implications of the federal government's interpretation of the law has a very wide impact. However, the real focus of the filing is on the supposed usefulness, and the Senators don't pull any punches. They directly call out the NSA and its defenders for trying very hard to misrepresent and mislead the public record:

As Amici and others have made clear, the evidence shows that the executive branch’s claims about the effectiveness of the bulk phone-records program have been vastly overstated and, in some cases, utterly misleading....

For example, the executive branch has defended the program by claiming that it helped “thwart” or “disrupt” fifty-four specific terrorist plots.... But that claim conflates the bulk-collection program with other foreign-intelligence authorities.5 In fact, as Amici know from their regular oversight of the intelligence community as members of the SSCI, “it appears that the bulk phone records collection program under section 215 of the USA Patriot Act played little or no role in most of these disruptions.” .... Indeed, of the original fifty- four that the government pointed to, officials have only been able to describe two that involved materially useful information obtained through the bulk call-records program.... Even the two supposed success stories involved information that Amici believe—after repeated requests to the government for evidence to the contrary—could readily have been obtained without a database of all Americans’ call records....

In both public statements and in newly declassified submissions to the SSCI, intelligence officials have significantly exaggerated the phone-records program’s effectiveness. Based on the experience of Amici, the public—and this Court—should view the government’s claims regarding the effectiveness of its surveillance programs with searching skepticism and demand evidence rather than assurances before accepting them.

The Senators are not the only amici. There are others, including from a group of experts in the history of government surveillance (including noted NSA watcher, James Bamford), a bunch of news organizations (including the American Society of News Editors, the LA Times, McClatchy, the Newspaper Guild, Advance Publications and more), criminal defense lawyers (who apparently are realizing how the NSA has been funneling and laundering data used against their clients under "parallel construction") and PEN American Center, a non-profit representing a bunch of writers. Still, having Senators jump into the case is big news, even if Wyden and Udall have been making their opinion clear for some time.

Filed Under: bulk collection, mark udall, martin heinrich, metadata, nsa, nsa surveillance, patriot act, ron wyden, section 215

Senate Intelligence Committee Rejects A Bunch Of Attempts To Amend Dianne Feinstein's Fake NSA Reform Bill

from the but-of-course dept

The Senate Intelligence Committee apparently just voted on Dianne Feinstein's fake NSA reform bill, which actually legalizes all of the illegal spying and adds a few new ways for the government to spy on everyone. Some of the members of the committee tried to add some amendments which would have made the bill do at least a few minor useful things, but it sounds like all of those were rejected. Incredibly, even though the NSA has been indicating pretty strongly that it's fine if the data it collects can only be held for three years, rather than the five it currently uses, an amendment limiting such data collection to three years was rejected. Even Dianne Feinstein supported that amendment, but increasingly disappointing Senator Angus King (like so many politicians, he seemed promising... until he got into office) voted with the Republicans on the Committee who all wanted to keep the surveillance backups for five years. As for other amendments, here's how Politico summarized them:

Another 7-8 casualty in the intel panel mark-up was a provision to ban the bulk collection of cell-site information that can show where a caller is physically located at the time of making or receiving a call. The NSA has acknowledged running experiments to handle such data, but says it isn’t collecting it now. Most panel Democrats supported the geolocation data ban, and most Republicans opposed it, but some crossed the lines. Feinstein and Sen. Barbara Mikulski (D-Md.), whose state is home to the NSA, voted against the ban. Sen. Susan Collins (R-Maine) voted for it.

The third proposed reform to fall 7-8 was an amendment by Sen. Ron Wyden (D-Ore.) to require that any Foreign Intelligence Surveillance Court decision finding a violation of the Constitution be made public. Again, most Democrats supported the proposal, while most Republicans opposed it. This time, Feinstein and Sen. Jay Rockefeller (D-W.V.) bucked their Democratic colleagues. Collins joined with six Democrats in favor of the transparency mandate.

The overall bill passed out of committee 11-4, with Senators Wyden, Udall, Heinrich and Coburn voting against it. As the Politico article notes, Coburn voting against it is a bit of a surprise, since he's been seen as an NSA supporter. In fact, the article suggests he voted against it because he thinks it puts too many restrictions on the NSA, which is crazy since it puts fewer restrictions than they have today. Specifically, Coburn doesn't want any limits on how long the NSA can keep your data, which is downright nutty.

Filed Under: amendments, dianne feinstein, fisa, fisa improvements act, mark udall, nsa, ron wyden, surveillance, tom coburn

Yes, The NSA Tracked Mobile Phone Locations, Despite Previous Semi-Denials

from the under-this-program dept

We had just talked about how Ron Wyden has been trying to pin the NSA down on whether or not it collected mobile phone location data, and how NSA officials continue to dance around the question by claiming "not under this program." Charlie Savage, over at the NY Times, now has an article about a "pilot program" the NSA did doing bulk collection of the location of Americans' mobile phones. The pilot program was run in 2010 and 2011. While the NSA eventually decided not to go forward with the program, they certainly did use it for a period of time. The existence of the program was apparently "recently declassified" by James Clapper -- but not actually revealed (neat trick!). Clapper had a "draft answer" ready about the program if he was asked about it, but with Feinstein carefully making sure Wyden couldn't ask too many questions, it appears the question never made it to the floor. Still, the NY Times received the draft answer, which according to them said:

“In 2010 and 2011 N.S.A. received samples in order to test the ability of its systems to handle the data format, but that data was not used for any other purpose and was never available for intelligence analysis purposes,” the draft answer says, adding that the N.S.A. has promised to notify Congress and seek the approval of a secret surveillance court in the future before any locational data was collected using Section 215.

Senator Wyden told the NY Times that this answer is not providing "the real story":

“After years of stonewalling on whether the government has ever tracked or planned to track the location of law-abiding Americans through their cellphones, once again, the intelligence leadership has decided to leave most of the real story secret — even when the truth would not compromise national security,” Mr. Wyden said.

I imagine there will be much more to come on this story.

Filed Under: cell-site location, james clapper, keith alexander, location, nsa, nsa surveillance, ron wyden, surveillance