DOJ Agrees To Release Redacted Court Ruling About How NSA Practices Violated The 4th Amendment

from the transparency! dept

You may recall that last year it was revealed that the FISA court (FISC) had determined that certain searches by the NSA under the section 702 program of the FISA Amendments Act were unconstitutional under the 4th Amendment. As we noted just this morning, it appears that the NSA's justification for spying on Americans is related to this ruling. Ever since that secret ruling was announced, the EFF has been asking the government for a copy of it, via the Freedom of Information Act (FOIA) process. The DOJ has fought very very hard against releasing this ruling, claiming that it would put us all in danger:

The government has determined that disclosure of the information withheld from Plaintiff could result in exceptionally grave and serious damage to the national security. Plaintiff obviously cannot contend otherwise. The Court accordingly should defer to the government’s determination in this case, uphold the Department’s withholdings, and grant this motion.

Except, today, during President Obama's press conference, the DOJ suddenly (magically!) changed its position and filed a motion with the court saying that it will no longer fight this, but instead will release a redacted version of the FISC ruling later this month, claiming that recent declassifications by the federal government mean this is now acceptable.

Defendant further provides notice to the Court and Plaintiff that it has determined it will release to Plaintiff a redacted version of the Foreign Intelligence Surveillance Court (“FISC”) opinion previously withheld in full pursuant to FOIA exemptions (b)(1) and (b)(3), and a redacted version of the one responsive paragraph in the classified white paper to Congress also previously withheld in full pursuant to those exemptions. The information to be released to Plaintiff will consist of segregable information that the government has declassified and thus is no longer exempt under (b)(1) and (b)(3).

The filing also requests a bit more time to handle all of this, but it appears that revealing at least a little bit of info from this key ruling will no longer kill us all. And now we wait to see just how much is actually revealed... and how much is redacted.

Filed Under: 4th amendment, doj, fisc, foia, nsa, nsa surveillance, surveillance
Companies: eff

Details Revealed On Old NSA Intelligence Database: ANCHORY

from the from-way-back-when dept

You may remember that, back in June, we pointed out that if you plugged in a few of the "code names" for various NSA programs (as revealed by Ed Snowden's leaks), you could find a few resumes of NSA employees, listing out other such code names. Jason Gulledge apparently saw that post, and used the list of code names that we posted to file a Freedom of Information Act (FOIA) request on NSA documents concerning those programs. Amazingly, they actually sent back some info -- though, just about the very first program, ANCHORY, and the info sent is from 1993 (and some from 2000), describing the text search system that the government has to search through various intelligence reports. From 1993, long before "search engines" were a thing:

ANCHORY is a system that provides timely retrieval of textual data by keyword and other relevant information on a 24-hour per day, 7 day per week basis. [REDACTED] is the ANCHORY hardware platform and BRS/Search, a commercial software product, is the engine behind ANCHORY text retrieval and database management functions.

[....] ANCHORY contains three years of full text reports written by NSA, CIA, DIA, State and Foreign Broadcast Information System, as well as Reuters News Service, Cryptologic Intelligence Reports and precis of hard copy reports.

The documents are interesting, mainly for the historical interest aspect. Though, at the same time, it does suggest that the NSA is (once again) completely full of crap when it claims that it doesn't have the technology to search its own emails. If it had text search twenty years ago for all reports, it has the capability to do email search today (not that this is a surprise).

Unfortunately, the FOIA person at the NSA rejected Gulledge's request to waive the FOIA fees, which it will do for media operations when there is a strong public interest basis for the request. Muckrock, the FOIA service Gulledge is using (and which, of course, we've used many times as well) is now appealing that decision. However, because of that, the NSA has not looked into whether it can send the documents on any of the other code named programs listed.

Filed Under: anchory, code names, foia, nsa, search

NSA: Sure We Can Search Your Emails, But Not Ours

from the facepalm dept

The NSA. They're the no-such-agency with the time-honored tradition of looking through the metadata we all leave behind, like the scum-trail of a slug. Also, our emails, social media communications, recipe exchanges, and those obituaries we write up for our enemies in nearly-sexual anticipation of their demise (editor's note: damn it, Timothy, nobody does that but you!). They have the kind of technological hardware and software that would make an IT admin's pants explode. They can search through approximately all the stuff, ever, anywhere, to root out terrorist plots and reality TV spoilers.

But you want them to find one of their own internal emails? That's just crazy-talk, apparently. This, according to ProPublica's Justin Elliot:

I filed a request last week for emails between NSA employees and employees of the National Geographic Channel over a specific time period. The TV station had aired a friendly documentary on the NSA and I want to better understand the agency's public-relations efforts. A few days after filing the request, Blacker called, asking me to narrow my request since the FOIA office can search emails only “person by person," rather than in bulk. The NSA has more than 30,000 employees.

"There's no central method to search an email at this time with the way our records are set up, unfortunately," NSA Freedom of Information Act officer Cindy Blacker told me last week.

I know, I know. you're thinking, "Will my insurance cover a broken, face-palmed nose?" But surely there's an explanation for this. Let's think about it logically. The NSA is essentially a spy organization. They deal in lots of classified stuff and they probably send a lot of information that is classified to one another. After all, they don't have to worry about being spied on, since they're doing the spying, follow? So, they set up a system, something like an ultra-awesome Mission Impossible platform, where searching for emails between employees is impossible, because it's been designed to be impossible. Got it? This is all part of the system, a way to keep information privileged. It's not ineptitude, they're just guarding secrets, and that's why the FOIA request can't be fulfilled. Right, Cindy?

The system is “a little antiquated and archaic," she added.

Well, slap a puppy, that's just unbelievable. And I mean that in every sense of the word. I don't believe it. The NSA can likely tell me how many emails I've sent to whom and about what subjects, but it can't find any of its own internal emails via the kind of search any competent IT manager could do in his/her sleep? I literally don't believe that. Neither does anyone else concerned, apparently.

“It’s just baffling,” says Mark Caramanica of the Reporters Committee for Freedom of the Press. “This is an agency that’s charged with monitoring millions of communications globally and they can’t even track their own internal communications in response to a FOIA request.”

I think the truth is much closer to they won't rather than can't. But, hey, what do I know?

Filed Under: emails, foia, nsa, nsa surveillance

MIT Trying To Block The Release Of Aaron Swartz's Secret Service File

from the sharing-of-knowledge dept

It's not all that uncommon to see government agencies try to refuse to release information that is subject to a Freedom of Information Act (FOIA) request -- but to have a non-governmental third party jump into a FOIA request to seek to block the info from being released? That's pretty damn rare. But it's happened -- and, amazingly, the third party is MIT, a school that is supposedly dedicated to advancing knowledge. Except, apparently, if that knowledge is going to make MIT look bad.

We recently noted that Judge Colleen Kollar-Kotelly had ordered Homeland Security to release the Secret Service file on Aaron Swartz that had been requested by Wired reporter/editor Kevin Poulsen. However, MIT has now stepped into the case trying to block the release of the information. The judge has consented to putting a stay on the initial order until MIT can file its motion.

MIT's concern -- as it was in a separate legal fight concerning releasing the evidence used against Aaron -- is apparently that the released documents will reveal which MIT employees helped with the investigation, and that could lead to unwarranted harassment. However, as Poulsen notes, the documents that have already been released have been redacting those names, so it's unlikely that these further releases would leave those same names unredacted.

The larger issue, however, is that an institute of higher learning, one which supposedly supports information sharing and knowledge transfer, is intervening in a FOIA case to actively support keeping information from the public. This is quite incredible, and a rather shameful move from the MIT administration, following a string of similarly shameful moves having to do with how it handled the Swartz situation from the very beginning. As Poulsen notes, the situation is incredibly rare:

I have never, in fifteen years of reporting, seen a non-governmental party argue for the right to interfere in a Freedom of Information Act release of government documents. My lawyer, David Sobel, has been litigating FOIA for decades, and he’s never encountered it either. It’s saddening to see an academic institution set this precedent.

MIT was one of the first universities to support open online courses. It has a long history of encouraging the open exchange and sharing of knowledge and information. It seems like quite a departure from its history and mission to suddenly focus on trying to increase the government's secrecy and blocking access to information.

Filed Under: aaron swartz, foia, homeland security, mit, public information

'Secret' DHS Twitter Account Isn't Following Anyone Interesting, So Why Is It Secret?

from the looks-like-a-pretty-boring-feed dept

It's no secret that various law enforcement and government agencies "monitor" Twitter, and sometimes to do that properly, they need to have an actual Twitter account. Apparently for Homeland Security, that Twitter account is @DHSNOCMMC1, which (as you might imagine) is a "protected" account, so you can't see its tweets. However, Carlton Purvis noticed that this account followed a few hundred other Twitter users, and wondered who they were. Purvis filed a FOIA request, asking for the follower list, but also for any authorized apps and widgets that DHS uses. It took a while (and many, many followups), but DHS finally sent back the list, and it's basically just a big list of news media (CNN, Al Jazeera English, ABC, etc.) and various government and law enforcement agencies (FEMA, FDNY, Chicago Police, etc.). The response notes that "in acordance [sic] with DHS Privacy direction, DHS NOC MMC follows only authorized accounts and never follows accounts of private individuals." Of course, Purvis notes that there are actually two (somewhat random) individuals on the list: District of Columbia Mayor Vincent Gray and FEMA Administrator Craig Fugate. Somewhat random. But that really raises the larger question: what is DHS doing with this account, and why is it "protected" in the first place. If nothing on the list is controversial (and it doesn't seem like it), and they're clearly not using the account to tweet out publicly, why not just leave the account "open" and just not tweet. Then people wouldn't even wonder who they're following.

In terms of apps used, they admit to using TweetDeck and TweetGrid to monitor the service, so it's likely that they've set up some searches, for which you don't have to be following any individuals directly. But it still makes you wonder how effective the whole process really is. Perhaps DHS thinks that's what it needs to do, ever since Twitter told the feds to take a hike when it came to PRISM.

Filed Under: foia, homeland security, private, secrecy, twitter

Judge Tells Homeland Security To Shut Up And Release Aaron Swartz's File

from the about-time dept

After Aaron Swartz's suicide, Kevin Poulsen filed a Freedom of Information Act (FOIA) request to the Department of Homeland Security, asking for the Secret Service's file on Aaron Swartz, since it was the Secret Service that handled the bulk of the investigation. Aaron, himself, was a big user of the FOIA process, including retrieving his own FBI file concerning his earlier run-in with the authorities over downloading PACER material. So it seemed bizarre that the Secret Service denied Poulsen's request, "citing a FOIA exemption that covers sensitive law enforcement records that are part of an ongoing proceeding." Considering that the case was closed and Swartz was dead, that seemed like a ridiculous excuse.

Poulsen went through the official appeal process, which was ignored leading him to officially sue. In May, the government admitted that the law enforcement exemption no longer made sense, but then continued to do nothing about releasing the documents. However, Judge Colleen Kollar-Kotelly (a former FISA Court judge, and a name associated with various other high profile cases over the years) has now ordered the government to begin releasing the documents it has held about Aaron.

DHS claims that just last week it found a new stack of documents, and that it needs time to go through them all. The judge gave them a deadline of August 5th, but said it needs to already start releasing the documents it has already reviewed.

Filed Under: aaron swartz, colleen kollar-kotelly, foia, homeland security, kevin poulsen, secret service

The NSA Turns Everyone Into A 'Threat To National Security' By Instantly Classifying All Data It Scoops Up

from the and-the-people-you-talk-to?-also-threats dept

Now that it's common knowledge the NSA is collecting metadata on pretty much any American with a working phone and/or internet connection, some Americans are trying to find out what's been collected. Multiple FOIA requests have been sent to the NSA, but each one is receiving the same form letter -- one that states that any information, including affirmation or denial, would result in "exceptionally grave damage" to national security.

The DailyKOS has a writeup on another citizen's attempt to get some info on their info, only to be stonewalled by the NSA's rejection form letter. David Gershon Harris, the author of the DailyKOS piece, says that "dozens of others" have received similar letters.

It's not as if there aren't protections in place that allow redactions of certain information. The problem with the letter this person (IT specialist Clayton Seymour) received is that it points to a specific executive order.

[T]he central problem is this: Seymour's letter from the NSA points to Executive Order 13526, signed by President Obama in 2009, as justification for the NSA's FOIA exemption.

This order signed by Obama established a uniform system for classifying national security information, and stipulates that "information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security."

This qualification appears in section 1.4 of the executive order, after which follow many categories of information which may be marked as classified. The category the NSA points to in justifying the classification of all its data is this:

"(c) intelligence activities (including covert action), intelligence sources or methods, or cryptology"

By securing the metadata on millions of Americans through covert action, the NSA has given itself an "out." It will never have to reveal this information via a response to a FOIA request because all data collected is, by this definition, instantly classified. The use (or abuse) of this executive order implies something very unseemly about the NSA's thought processes.

The NSA, it seems, has classified every single piece of data on American citizens that it has seized and saved, even benign data culled from people like Seymour, who are no threat to U.S. national security.

What does this mean? In the eyes of the NSA, every person in the US who has had data collected covertly (in order to skirt Fourth Amendment protections), is a "threat to national security." The gathered data, even if incidentally gathered in the pursuit of terrorists, is instantly classified and stashed away securely. FOIA requests won't pry it loose.

There's no way the NSA truly believes every American is a threat, but that hasn't stopped it from gathering up everything it can and locking it up. The data that is supposed to be flushed from the system or otherwise protected from abuse by its holders? You can't have access to that either. Even the data it doesn't need has been given the same protection as that which could cause "identifiable or describable damage to national security."

This is the NSA's America. Everyone's a security threat. It just a matter of connecting the dots.

Filed Under: classifications, foia, national security, nsa, nsa surveillance

EFF Sues FBI: Hey Before You Launch New Face Recognition Tool, Can You Respond To Our FOIA On Old Tool?

from the just-saying dept

The folks over at EFF have now sued the FBI concerning a set of Freedom of Information Act (FOIA) requests that the FBI has failed to respond to concerning its use of various biometric tools, such as face recognition. The EFF finds this to be especially pernicious, since the FBI has gleefully announced plans to expand these efforts, without any information or public debate on how its existing programs have worked (or, as the case may be, not worked):

In the complaint filed with the U.S. District Court for the Northern District of California, EFF is asking a judge to enforce EFF's FOIA requests, which were sent to the FBI in June and July of last year. The information sought includes agreements and discussions between the FBI and various state agencies regarding the face-recognition program; records addressing the reliability of face-recognition technology; and documentation of the FBI's plan to merge civilian and criminal records in a single repository. EFF is also seeking disclosure of the total number of face-recognition capable records currently in the FBI's database, as well as the proposed number at deployment.

NGI will have an unprecedented impact on Americans' privacy interests, and yet the FBI has not updated its Privacy Impact Assessment since 2008, well before it built the system and signed agreements with several states for an early roll-out of the program.

"Before the federal government decides to expand its surveillance powers, there needs to be a public debate," Lynch says. "But there can be no public debate until the details of the program are presented to the public."

Yet again, with our intelligence agencies, it appears that the federal government seems to feel that it can do whatever it wants, and any attempt to answer to the public is to be ignored at all costs.

Filed Under: biometrics, face recognition, fbi, foia
Companies: eff

NSA Can Neither Confirm Nor Deny Anything Without Causing 'Exceptionally Grave Damage' To National Security

from the schrodinger's-metadata dept

When you find out your own government is harvesting your phone metadata and internet activity, what do you do? If you're Jeff Larson at ProPublica, you file a FOIA request in hopes of getting the NSA to cough up some of the info it's collected on you.

Shortly after the Guardian and Washington Post published their Verizon and PRISM stories, I filed a freedom of information request with the NSA seeking any personal data the agency has about me. I didn't expect an answer, but yesterday I received a letter signed by Pamela Phillips, the Chief FOIA Officer at the agency (which really freaked out my wife when she picked up our mail).

Yes, Larson received three pages of unredacted excuses and explanations as to why the NSA would not be letting him in on what it had gathered, as well as some circuitous explanations as to why it was unable to confirm the existence of the data he requested.

The letter, a denial, includes what is known as a Glomar response -- neither a confirmation nor a denial that the agency has my metadata. It also warns that any response would help “our adversaries”:

Any positive or negative response on a request-by-request basis would allow our adversaries to accumulate information and draw conclusions about the NSA's technical capabilities, sources, and methods. Our adversaries are likely to evaluate all public responses related to these programs. Were we to provide positive or negative responses to requests such as yours, our adversaries' compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security."

"Reasonably be expected to cause exceptionally grave damage to the national security..." That's a beauty, as is the entire paragraph. Instead of "Yes, we have some stuff but we can't let you look at it," or "No, we don't have your stuff, but thanks for asking," we get "We can neither confirm nor deny we have your stuff because a simple yes or no would give terrorists the upper hand." Alternately: "Sorry we can't be more specific. Can I offer you some fear instead?" Fortunately, as Larson notes, he won't be charged a fee for this non-answer to his request.

The NSA's FOIA responder takes a little time to imply that the media possibly has all the facts wrong.

As you may be also be aware, there has been considerable speculation about two NSA intelligence programs in the press /media.

If by "considerable speculation," she means "actual document leaks," then we're on the right track. Yes, there's been plenty of speculation but there are several exposed documents that give this speculation a solid starting point. The non-confirmation/non-denial continues, spilling onto the next page after a brief respite where the NSA rolls out the talking points and proclaims everything to be firmly above-board.

Therefore, your request is denied because the fact or the existence or non-existence of responsive records is a currently and properly classified matter in accordance with Executive order 13526, as set forth in subparagraph of section 1.4.

The NSA: so secure even non-existing records are classified.

The response letter explains the other reasons everything's remains under wraps. Larson is welcome to file an appeal but the lengthy list of exemptions included in this response gives the indication that actually doing so would be a waste of everyone's time. This leaves Larson with only one legitimate option, the same option the ACLU and EFF find themselves pursuing with increasing frequency.

So where does this leave me? According to Aaron Mackey, a staff attorney at the Reporter's Committee for Freedom of the Press, "If you wanted to see those records you would have to file a lawsuit."

That's the way it goes in the surveillance state. Information doesn't want to be free. It wants to be litigated.

Filed Under: foia, jeff larson, nsa, nsa surveillance

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

from the onward dept

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

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

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

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

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