Washington Post: Yes, We Need To Give Up Liberty For Security

from the oh-really-now? dept

By now you've probably seen the paraphrase of a Ben Franklin quote that those who give up liberty for security, deserve neither (he said similar things a few different ways, but the standard actual quote is: "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.") Whatever the actual quote is, there is quite a lot of truth to it. Giving up liberty for the sake of security rarely works out as planned. Either way, it appears that the editorial board of the Washington Post is either wholly unfamiliar with the quote, or believes it to be untrue. It has come out with an editorial arguing in favor of extending the FISA Amendments Act (and against an ACLU/EFF challenge to the law, to be heard today at the Supreme Court, even with the crazy weather) saying that it is perfectly fine to "give up liberty" for security:

Discomfort with the government’s capacity, technical or legal, to collect and retain massive amounts of personal information is understandable. But the 2008 FISA amendments sought a compromise between two essential goals: preserving American liberty and robustly defending Americans’ lives and property. We favored the law and believe that it should be extended.

That's somewhat ridiculous. After all, as we've noted over and over again, almost no one seems to understand what's actually in the FISA Amendments Act, in part because there's a secret interpretation of it that only the government knows. This means that many, many people, including those in Congress, are clearly misrepresenting what's in the law. The fact that the NSA refuses to say how often it has used this secret interpretation to spy on Americans should be a pretty big warning sign -- especially as politicians who are either clueless or ignorant claim that it can't be used to spy on Americans.

And really, this is the root of the "don't give up liberty for security" quote. Once you do that, you're cooked, because it's a situation that only expands in one direction. Those who seek to hold back liberty will always make use of scare stories and FUD to seek to be able to spy further. You would think that the editorial board of the Washington Post, which has been covering this kind of mess for quite some time, would actually have some sort of ability to look back at history. Apparently its historical knowledge is close to nil.

Filed Under: fisa, fisa amendments act, liberty, security, spying, surveillance
Companies: washington post

House Approves Bill To Spy On Americans By Misrepresenting Or Lying About What's In The Bill

from the they're-just-lying dept

We recently talked about how the House voted to approve the FISA Amendments Act (FAA) by a pretty wide margin, and noted some of the more bizarre and inaccurate statements that Representatives made in support of the renewal. Julian Sanchez has put together a nice summary of some of the more outrageous claims. The key here is that many Reps. seemed to take the FISA Amendments Act at face value, that it would only be used to target foreigners in foreign lands -- in other words, those with no 4th Amendment protections. But, as Sanchez has pointed out repeatedly, former Deputy Attorney General, David Kris, more or less revealed the Act is interpreted to mean that as long as the information they get might be useful in targeting foreigners in foreign lands, it's fair game. That means -- contrary to the direct claims of many FAA supporters -- the law is used to spy on Americans.

Sanchez also highlights another sneaky interpretation. The law claims that it prohibits the interception of "purely domestic" communications. But there's an additional clause with one hell of a loophole: "Known at the time of acquisition." As Sanchez notes, you can drive quite a large truck through that loophole, because if you're, say, scooping up all email communications, you don't know -- at the time of acquisition -- if it's purely domestic... and therefore, you're good to go. Basically, ignorance is bliss for the NSA.

But these two massive loopholes and sketchy interpretations seem to be totally ignored by the Congressional reps who spoke out most strongly in favor of renewing the FAA:

The most common refrain from FAA supporters was that the law only concerned surveillance targeting “foreigners in foreign lands”—meaning it could not possibly affect the rights of Americans. Rep. Trey Gowdy (R-SC), in an impressive display of lung power, delivered a five minute floor shout to this effect. “This bill has nothing to do with Americans on American soil,” Gowdy thundered, “This bill doesn’t implicate the Bill of Rights, any more than it implicates any other part of our Constitution, unless you think that foreign nationals who are on foreign land fall within the protections of the United States Constitution.” But Gowdy has to know that this is false, because the secretive Foreign Intelligence Surveillance Court has already ruled on at least one occasion that surveillance authorized by the FAA did violate the Fourth Amendment’s prohibition on “unreasonable searches and seizures.”

Similarly, we've seen how the NSA absolutely refuses to say how many Americans have been spied upon using these tools, claiming that it's impossible to know (or that it would violate their privacy to find out -- seriously). But, Sanchez notes that, despite the NSA insisting it's impossible to know, that didn't stop Representatives from claiming they just knew.

Intelligence Committee Chairman Mike Rogers (R-MI) was slightly more equivocal, seemingly acknowledging that the law might permit surveillance of Americans, but that this would happen only very rarely.  The mystery here is how he could possibly know that. Sen. Ron Wyden (D-OR) has repeatedly asked the NSA for a rough ballpark estimate of how many Americans—100? 1,000? 100,000?—have had their communications caught up in the agency’s FAA dragnets. If Rep. Rogers were correct, you’d expect the answer to be “almost none”—but instead the agency has repeatedly insisted that it is unable to provide even an approximate figure. Unless Rep. Rogers somehow knows things about the NSA’s databases that the NSA does not know, he can’t have any real basis for this claim.

And then there's Rep. Dan Lungren. Earlier, we had noted that when there were discussions during hearings about the FAA, he brushed off concerns about spying on Americans by saying he hadn't seen any such evidence so it couldn't be true. Of course, he didn't bother to seek out any such evidence by asking the NSA to provide the data. And here he was even worse, making bizarre claims in support of expanding the FISA Amendments Act that seem to go completely against reality.

Finally, Rep. Dan Lungren (R-CA) suggested that the necessity of the FAA was demonstrated by the failures of intelligence leading up to 9/11. After all, the 9/11 Commission had again and again emphasized the central failure to “connect the dots” that would have revealed an imminent attack before it occurred—and to “connect the dots,” Lungren asserted, intelligence agencies would need still more expansive power to first “collect the dots.” This is, in a way, the most breathtakingly erroneous statements heard during Wednesday’s floor debates, because turns the 9/11 Commission’s findings completely on their head. Their report conspicuously did not identify a lack of legal authority to conduct surveillance as a serious problem: If anything, the trouble was that agencies were drowning in information they lacked the capacity to analyze and put to use. Perversely, Lungren trades on a familiar phrase—”connect the dots”—to utterly invert the Commission’s diagnosis of the causes of 9/11.

So... if you're keeping track at home, the reasons the House approved this horrible bit of legislation with massive loopholes that allows the NSA to spy on us is because it can't be used to spy on us (even though it can), it bars the collection of domestic communication (except in nearly every case that it does not), it's barely been used on Americans (except that the NSA claims it's impossible to tell how many Americans it's been used on) and we need it to "connect the dots" on terrorism (even though it doesn't help connect the dots, but merely to provide even more dots, many of which will distract from the important dots).

How do these people get elected?

Filed Under: congress, dan lungren, faa, fisa amendments act, foreign targets, house of represenatives, lamar smith, mike rogers, nsa, terry gowdy

Credit Where It's Due: DOJ Changes Its Tune On FISA Transparency

from the now-let's-see-what-happens dept

Earlier this week, I complained that the Department of Justice seemed to be stonewalling a Freedom of Information Act request I’d filed seeking copies of mandatory semi-annual reports to Congress on the National Security Agency’s compliance with the procedures and civil liberties safeguards of the FISA Amendments Act--which the House voted yesterday to reauthorize for another five years. After sitting on the request for two months (the statutory deadline is 20 business days), DOJ had finally replied with a letter claiming they could "neither confirm or deny the existence" of reports that were required by federal law. I thought this was a little ridiculous. Fortunately, there were officials at the Justice Department who thought so too.

Having appealed the denial of my request, I got an impressively prompt reply on Tuesday evening from the director of the Office of Information Policy at DOJ, assuring me that she recognized the agency's initial response had been "incorrect," and that a new one would be forthcoming immediately. By Wednesday morning, their stance had changed entirely: They had found the reports I sought, and were forwarding them to the Office of the Director of National Intelligence (ODNI) for review to determine what would need to be redacted before release--with a request that ODNI seek to expedite its analysis to compensate for their own delay.

Now, to be sure, I'd rather have had this response a month ago, and the documents before the House vote, but at this point DOJ appears to be doing exactly what they're supposed to and making a good faith effort to facilitate the redaction and release of these important assessments. So it seemed appropriate to follow up on my initial blog post to acknowledge that--and in particular Office of Information Policy director Melanie Pustay, who straightforwardly acknowledged the error and acted quickly to correct it. We'll see soon enough whether a similar spirit of transparency reigns at ODNI.

Cross-posted from Cato-at-Liberty.

Filed Under: doj, fisa, fisa amendments act, foia, freedom of information, mistakes, odni

House Approves Rep. Lamar Smith's Bill To Keep Spying On Americans

from the of-course-they-did dept

As was expected, despite not knowing the details of how the feds interpret the FISA Amendmens Act, which grants massive spying and surveillance power to the feds -- in fact, while proactively stopping any efforts to find out more about the interpretation, the House of Representatives today approved Lamar Smith's FISA Amendment's Act by a vote of 301-118. You can see which representatives voted which way at that link. The bill would extend the current rules (and the secret interpretation) for another five years. Republicans, who are supposedly against bigger government, only had 7 members vote no, while the remaining 111 no votes came from Democrats.

There had been an attempt to introduce amendments, but that was shot down procedurally. And an hour debate did little to get to the heart of the matter. Rep. Zoe Lofgren fought the good fight, pointing out that "I think the government needs to comply with the Fourth Amendment to the Constitution all the time... We can be safe while still complying with the Constitution of the United States." However, Rep. Dan Lungren -- who previously had insisted that there was no evidence that the NSA was abusing its powers, while refusing to even ask the NSA for basic info on how it was using the powers -- insisted based on absolutely nothing that "this is critical to the protection of the American people."

Even worse, Rep. Terry Gowdy made a ridiculously ignorant statement in response to Lofgren's highlighting of the 4th Amendment:

”Intelligence is the lifeblood of our ability to defend ourselves,” he said. Moments later, he added: “Are we to believe that the Fourth Amendment applies to the entire world?”

But, uh, the concern isn't with the rest of the world. Even without the FISA Amendments Act, the NSA already had the right to seek info on foreign communications. They have no 4th Amendment rights, so that's not even an issue. The issue is that the FISA Amendments Act appears to include some weasel words that have been twisted by the government to suggest that it can spy on Americans too. But Gowdy misleads the public by pretending, falsely, that this is about foreigners? It's not. Has he asked the NSA how many Americans it's spied on? Even the NSA has admitted that it's violated the 4th Amendment under the act in spying on Americans... but Gowdy pretends this is just about foreigners? How do you stand up and call yourself a "Representative" when you can't even get the very basics right?

Of course, House approval is just one step. The Senate version remains on hold thanks to Senator Wyden, who is one of the only elected officials who is actually asking the NSA and the Obama administration to (a) reveal the secret interpretation and (b) disclose how many Americans are being spied on under the rule.

As Julian Sanchez explained recently a former DOJ official has basically revealed part of the secret interpretation, which more or less says that if the target is al Qaeda, then anything goes:

For example, an authorization targeting “al Qaeda”—which is a non-U.S. person located abroad—could allow the government to wiretap any telephone that it believes will yield information from or about al Qaeda, either because the telephone is registered to a person whom the government believes is affiliated with al Qaeda, or because the government believes that the person communicates with others who are affiliated with al Qaeda, regardless of the location of the telephone.

Take that and expand it, and you've basically given the feds and the NSA a blank slate to spy on Americans by claiming that if it believes the spying will yield information about a threat, then it's fine. And our "Representatives" are standing up and -- either through ignorance or straight-up dishonesty -- are pretending that this is about spying on foreigners only. Shameful.

Filed Under: 4th amendment, congress, dan lungren, faa, fisa amendments act, house, lamar smith, nsa, surveillance, terry gowdy, zoe lofgren

House To Vote On FISA Amendments Act, Despite Not Even Knowing How It's Being Interpreted

from the this-is-ridiculous dept

This is getting more ridiculous by the day. We've been covering how the NSA refuses to admit how many Americans are being spied upon via a secret interpretation of the FISA Amendments Act -- and how Congress' response is to pretend that as long as they stick their head in the sand, the NSA couldn't possibly be abusing the law. Rep. Dan Lungren literally said that he sees no reason to be worried because he hasn't seen any evidence that it's being used to spy on Americans. But that's only true if you are being willfully blind. The NSA has refused basic requests to reveal non-confidential info, ridiculously claiming it would violate the privacy of Americans to admit how many Americans were being spied upon. Meanwhile, Julian Sanchez's attempt to reveal some info via a Freedom of Information Act request is being stonewalled by the feds.

And yet Congress still wants to move forward. The House is planning to vote on extending the FISA Amendments Act in the next day or two, despite the fact that the vast majority of elected officials do not have the information on how the law is being interpreted and those who are in the know have hinted very, very, very strongly that it is being widely abused. Now, if Congress actually represented the public, it might try to stop this process and ask for some of the details. Instead, it seems to be focused on just re-upping support for this tool that has more or less enabled domestic spying on Americans.

After four years, you’d hope that some basic information or parameters of such a massive spying program would be divulged to the public, or at least your rank-and-file member of Congress, but they haven’t.  Only a small handful of members have either personally attended classified briefings or have staff with high enough clearances to attend for them.  Sen. Ron Wyden—who has been on the Senate Intelligence Committee for years—has even been stonewalled by the Obama administration for a year and a half in his attempts to learn basic information about the program, such as the number of Americans who have had their communications intercepted under the FAA. 

Yet the House ambles on, ready to rubber stamp another five years of expansive surveillance that can pick up American communications without meaningful judicial oversight and without probable cause or any finding of wrongdoing.  Instead of blind faith in the executive branch, every member of the House should demand that the administration publicly disclose the following before proceeding with reauthorization:

Copies of FISA court opinions interpreting our Fourth Amendment rights under the FAA, with redactions to protect sensitive information (the Department of Justice can write summaries of law if necessary);

A rough estimate of how many Americans are surveilled under the FAA every year;

A description of the rules that govern how American information picked up by FAA surveillance is protected.

Can you believe that 435 members of Congress who have sworn to uphold the Constitution are about to vote on a sweeping intelligence gathering law without this basic information?

If you find this worrisome (and you should), the ACLU has set up an an action page to contact your elected officials and ask them to do their jobs and find out the details before just rubber-stamping the extension of the FISA Amendments Act.

Filed Under: congress, fisa amendments act, house, nsa, privacy, spying, surveillance

Testing 'The Most Transparent Administration in History'

from the not-so-transparent dept

Barack Obama pledged to preside over the “most transparent administration in history,” drawing an explicit contrast with the extreme secrecy of his predecessor. The Web site of the Department of Justice highlights that pledge, declaring its commitment to faithfully carry out a presidential directive encouraging such transparency, especially with regards to Freedom of Information Act requests, which are a vital tool for public accountability and informed democratic deliberation about government’s activities. Earlier this summer, I decided I’d put that commitment to what should have been an easy test.

When Congress passed the controversial FISA Amendments Act of 2008, granting the NSA broad power to conduct sweeping electronic surveillance of Americans’ international communications without individualized search warrants, it wisely required the Justice Department to issue semi-annual reports to Congress on the government’s implementation of the law, evaluating compliance with the various rules, guidelines, and procedures in place to reduce the risk of civil liberties abuses. While these reports are classified, redacted versions of several previous installments have been released to the public in response to Freedom of Information Act requests. The most recent is from May of 2010, which means that by now there are three or four further reports on the government’s use of its new spying powers which haven’t been seen by the public.

Since the FAA is set to expire at the end of this year, and Congress is rapidly steamrolling toward reauthorizing the law for another five years, it seems like now would be a good time to let the public see the latest versions of these reports—with any specific references to operational details removed, of course. That’s especially true given that we’ve recently learned that at least one ruling by the secretive FISA Court found some surveillance under the FAA had violated the Fourth Amendment. The latest reports, even in redacted form, might give us further insight into the scale and seriousness of this violation of Americans’ constitutional rights. If, on the other hand, we find no mention of this in the official reports, it would be powerful evidence that Congress is getting a whitewashed account, and that internal oversight may not provide adequate protection for our privacy and liberties. Again, the government has already released several previous installments of this report—though the ACLU ultimately had to file a lawsuit before they agreed to do so—so there should be no doubt now as to whether these are documents they’re obligated to release.

On June 26, therefore, I sent a FOIA request to the Justice Department asking for the release of the newer installments of this important report—specifically asking for expedited review, given the importance of informing the public about the use of the law before Congress renews it. On July 6, I got a response acknowledging that my request had been received and forwarded to the FOIA office of the DOJ’s National Security Division. Federal law requires agencies to reply to these requests within 20 business days. I was still waiting when, a few days ago, a bill extending FAA spying authority was scheduled for consideration before the House of Representatives this week. I did, however, have a brief phone conversation with the NSD’s FOIA officer confirming that she was evaluating my request, and that she understood clearly exactly which reports I was requesting.

Yesterday morning, September 10—more than two months after acknowledging receipt of my request for these three or four documents—I finally got a reply (my emphasis added), denying my request with the following unhelpful boilerplate:

The Office of Intelligence (OI) maintains operational files which consist of copies of all FISA applications, as well as requests for approval of various foreign intelligence and counterintelligence collection techniques such as physical searches.  We did not search these records in response to your request because the existence or nonexistence of such records on specific persons or organizations is properly classified under Executive Order 13526.  To confirm or deny the existence of such materials in each case would tend to reveal which persons or organizations are the subjects of such requests.  Accordingly, we can neither confirm nor deny the existence of records in these files responsive to your request pursuant to 5 U.S.C. §552(b) (1).

This is, in a word, ridiculous. The “existence” of the reports I asked for is required by federal law. To the extent they contain passing references to any specific persons or organizations under investigation, these can easily be redacted, and have been redacted for previous public releases of the same documents. No reasonable person could believe that this reply is applicable to my request. If it had been sent immediately, you could at least put it down to sloppiness or inattention, but remember, it took them two months to send out a denial based on the preposterous claim that it is classified information whether a report mandated by federal statute even exists.

I can appeal—and of course, I intend to—but since that’s likely to drag out the process for at least another month or two, the reports are likely to come too late to be relevant to the debate over FAA reauthorization. Try as I might, it’s almost impossible for me to see this as a good faith response to my request. Instead, it looks an awful lot like a stalling tactic calculated to drag out the process until it’s too late for the documents to be relevant to the debate over the FAA. I suppose this shouldn’t be terribly surprising: DOJ’s modus operandi, at least when it comes to anything controversial or potentially embarrassing to the government, seems to be to force FOIA requesters to waste time, energy, and money going to court even when it’s painfully obvious there’s no legitimate legal basis for sustaining a denial. That this is routine enough to be predictable, however, shouldn’t make it any more acceptable in a democracy.

Cross-posted from Cato at Liberty.

Filed Under: fisa amendments act, foia, politics, secrecy, transparency

NSA Whistleblower Explains How The NSA Is Collecting Data On All Of You (And He's Sorry About It)

from the unfortunate dept

Last year, in writing about the US government's vindictive lawsuit against whistleblower and former NSA employee Thomas Drake, we also talked about William Binney -- another ex-NSA employee and whistleblower (who was also raided by the feds, though they failed to find anything they could pin on him in a lawsuit). Binney is the mathematical genius behind one of the key algorithms the NSA is using to track everyone. Here's what the New Yorker said about Binner over a year ago:

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the "little program" that he invented to track enemies outside the U.S., "got twisted," and was used for both foreign and domestic spying: "I should apologize to the American people. It's violated everyone's rights. It can be used to eavesdrop on the whole world."

Now, the NY Times has something of a following, including a short documentary feature about Binney and his whistleblowing over the NSA's domestic spying. It's really worth watching as it very simply highlights how vast the domestic spying effort is, however powerful it can be -- and also how the NSA dances around the fact that it's not allowed to spy on Americans. They claim that as long as they're not actually looking at the content they record and store directly, it's just collecting the info and not actually spying on people. That is, they think that acquiring all this data is fine, so long as they don't directly query the info. But... as Binney explains, his algorithms (which have likely been updated quite a bit) can still go through all this info and build basic "profiles" of just about anyone. It's really worth watching, if only to wonder how anyone thinks this is acceptable.

I'd embed the video here, except the geniuses over at the NY Times seem to have not figured out how to allow embeds with their video player.

The documentary was put together by Laura Poitras, who notes that thanks to some over-aggressive surveillance she, too, is on a "watch-list," thanks to a documentary she did about Iraq.

I have been detained at the border more than 40 times. Once, in 2011, when I was stopped at John F. Kennedy International Airport in New York and asserted my First Amendment right not to answer questions about my work, the border agent replied, “If you don’t answer our questions, we’ll find our answers on your electronics.”’ As a filmmaker and journalist entrusted to protect the people who share information with me, it is becoming increasingly difficult for me to work in the United States. Although I take every effort to secure my material, I know the N.S.A. has technical abilities that are nearly impossible to defend against if you are targeted.

All of this attention, by the way, is to question why Congress is so intent on re-authorizing the FISA Amendments Act (FAA) which is what gives the NSA a pass on much of this spying, thanks to a "secret interpretation" of the law, which the public is not allowed to even know about. If this sounds like the sort of thing that shouldn't be allowed in a free and open society, you're just beginning to grasp the problem.

Filed Under: fisa amendments act, nsa, spying, surveillance, whistleblowing, william binney

Feds Wait Until Late Friday To Admit That, Yeah, They Ignored The 4th Amendment

from the congress-will-ignore-it-anyway dept

While Senator Wyden has been banging the drum about privacy violations committed by the federal government under the FISA Amendments Act for quite some time, the rest of Congress seems perfectly content to stay ignorant and pretend that there's no possible way that the feds might be abusing the powers that let them spy on nearly anyone without much (if any) oversight. So it's interesting that Wyden was finally able to squeeze out of the Director of National Intelligence an admission that, oh yeah, the feds violated the 4th Amendment. As covered by the always awesome reporting by Spencer Ackerman at Wired:

The head of the U.S. government’s vast spying apparatus has conceded that recent surveillance efforts on at least one occasion violated the Constitutional prohibitions on unlawful search and seizure.

The admission comes in a letter from the Office of the Director of National Intelligence declassifying statements that a top U.S. Senator wished to make public in order to call attention to the government’s 2008 expansion of its key surveillance law.

The letter is embedded below. There are two key admissions in there that are new:

• It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
• I believe that the government's implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

Of course, they chose to release this bit of information late on a Friday evening -- exactly the time you release something when you want to bury it. The public should not let this news die. They should be asking their elected officials why they're rushing to re-approve the FAA, and have so far refused to have even the slightest curiosity about what the feds are doing with these powers -- even to the point of claiming that since they've seen no evidence of abuse (not that they've asked for it) they shouldn't assume that there is any. Well, now there's some evidence of abuse. Shouldn't Congress be seeking more information, rather than just rubber stamping a renewal of such powers?

Filed Under: 4th amendment, abuse, faa, fisa, fisa amendments act, privacy, ron wyden

Congress Plays See-No-Evil, Pretend-There's-No-Evil, Let-The-Evil-Continue With NSA Domestic Spying

from the wtf dept

We're still completely perplexed at how anyone in Congress could recognize that the NSA has refused to tell Congress how often it's violated the privacy of Americans without a warrant under the FISA Amendments Act (FAA) -- and then still vote to renew it. What kind of "oversight" is that? As Julian Sanchez recently wrote, it's no oversight at all. As he notes, the law requires the NSA to "prevent" the spying on folks when both parties in communication are in the US -- but here, the NSA is admitting that it has no mechanism to actually do that. Either (a) it's lying or (b) it's admitting that it cannot do what the law requires.

If we care about the spirit as well as the letter of that constraint being respected, it ought to be a little disturbing that the NSA has admitted it doesn’t have any systematic mechanism for identifying communications with U.S. endpoints. Similar considerations apply to the “minimization procedures” which are supposed to limit the retention and dissemination of information about U.S. persons: How meaningfully can these be applied if there’s no systematic effort to detect when a U.S. person is party to a communication?

Normally, this should be the point at which Congress steps in and says "no more" to the NSA. Instead, it shuns those who even ask the basic questions -- and as in the case of Rep. Dan Lungren, pretends that as long as no one proves to them that the NSA is abusing its power, there's simply no reason to demand evidence. That's not oversight. That's willful ignorance.

And... given that they're choosing to ignore their own oversight obligations over the NSA's spying on Americans, it should come as no surprise that the House Intelligence Committee unanimously voted to extend the FAA for five more years. Why not? It's not like Congress is actually going to make sure that the NSA is playing by the rules. The NSA apparently just needs to say that it would be too much work to do what the law requires and Congress says, "here, have a gift of five more years to spy on Americans against the specifics of the law." And, once again, as Sanchez points out, there are plenty of ways that the NSA could at least estimate how many Americans they're spying on.

But why would it do that? As Sanchez also points out, the NSA seems to redact anything even remotely embarrassing from its reports... including data on how often it failed to follow the law:

More generally, these reports contain a good deal of redacted statistical information that there is simply no plausible excuse for keeping secret. A table of “statistical data relating to compliance incidents,” for example, is included—but entirely blacked out. Are we to believe that the national security of the United States would be imperiled if the public knew the number of times the NSA had difficulty following the law? The reviewers conclude that the “number of compliance incidents remains small, particularly when compared with the total amount of activity”—but is there any legitimate reason for barring the public from knowing what counts as a “small” number, or just how massive the “total amount of activity” truly is?

How do folks in Congress who vote for this kind of thing defend such actions? They can't say that it's to protect Americans, when they refuse to even seek to get the data on whether or not Americans are being illegally spied upon.

Filed Under: congress, fisa, fisa amendments act, nsa, oversight, privacy, spying, warrants

NSA: Figuring Out How Many US Citizens We Illegally Spied On Would Violate Their Privacy

from the wtf dept

For quite some time now, we've been reporting on Senators Wyden and Udall's repeated attempts to get the government to explain how many American citizens the NSA spied on under the FISA Amendments Act (which is supposed to be used to spy on foreigners, but appears to have been used much more broadly). It's quite clear that Wyden and Udall, in their roles on the Senate Intelligence Committee, believe there is some information that the public needs to know about, but which is not public. So they keep asking the same basic question over and over again. As we noted last week, since most of the rest of Congress does not have this information, and yet is expected to vote on the renewal of the FISA Amendments Act, something is seriously wrong.

What's never made sense is why the feds simply refuse to admit how many Americans they've spied on under the law. In the past, the Director of National Intelligence has basically told Wyden and Udall that he wouldn't answer because he didn't want to. But the latest answer really takes the insanity to stunning new levels. As initially revealed at Wired, the NSA has refused to answer claiming that, not only would it be too much work to figure it out, but that figuring it out would violate the privacy of Americans.

Yes, I'm going to repeat that, because it's insane. The NSA claims that figuring out how many Americans it spied on would violate their privacy. Here's the specific language from the letter:

The NSA IG provided a classified response on 6 June 2012. I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA's mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons..

At this point, you have to just wonder if the NSA is flat out mocking Wyden and Udall and basically taunting them to make it clear that the NSA doesn't believe anyone has oversight powers concerning the agency. And, of course, there is the other explanation: that the NSA has spied on more or less everyone who owns a mobile phone (which has been suggested by some reports).

Either way, it certainly sounds like the NSA really doesn't care what the law actually says, so long as it gets to keep spying on people.

Filed Under: data surveillance, fisa amendments act, marc udall, nsa, ron wyden, spying