Senator Wyden Argues FCC Is Either Incompetent Or Lying About Alleged DDoS Attack

from the derailing-the-John-Oliver-effect dept

Last week we noted how the FCC was acting incredibly suspicious in regards to its May claim that a DDOS attack, not annoyed John Oliver viewers, brought down the agency's website shortly after Oliver's latest rant on net neutrality. Despite pressure from journalists and several Senators, the FCC is simply refusing to release any data providing the existence of the attack, resulting in many media outlets not so subtly implying that the agency was lying:

"The FCC’s refusal to produce records of any true relevance reflects pressure from the agency’s upper echelon to limit the disclosure of information about the incident to a handful of carefully crafted public statements...It would be hard for a government agency to do more to give off the impression that it was engaged in a cover up. That’s troubling given the rise of questions over the FCC’s integrity.

As we noted last week, there are really only two options here. One, the FCC was attacked coincidentally at the same time John Oliver's program aired, it just failed to do any meaningful written analysis of the attack, and has zero interest in being transparent about it. Two, the FCC made up the attack completely to try to deflate all the talk about the "John Oliver effect" in the press, a misguided continuation of the agency's clear desire to downplay the massive public opposition to Pai's plan to kill net neutrality.

Based on the FCC's other recent behaviors in regards to ignoring comment fraud to this same purpose, it's fairly obvious the latter is a very real possibility. But with the FCC refusing to comply to FOIA requests, it's going to take some notable outside pressure to get to the truth. That's not going to be easy given that despite broad bipartisan support for the rules, ISPs have successfully convinced the public this is a partisan issue, which helps them stall meaningful discourse by bogging the entire process down in thinking-optional partisan patty cake.

Under the din of this dysfunction, Senator Ron Wyden was quick to highlight at the hearing that the FCC doesn't look particularly good here regardless of your political leaning:

"Senator Ron Wyden...stated in an email to Gizmodo that the agency’s response to Gizmodo’s FOIA request raised "legitimate questions about whether the agency is being truthful when it claims a DDoS attack knocked its commenting system offline."

The Oregon senator said it was critical that the agency produce evidence of the attack, if only so independent experts could verify and learn something from it. He continued: "If the FCC did suffer a DDoS attack and yet created no written materials about it, that would be deeply irresponsible and cast doubt on how the FCC could possibly prevent future attacks. On the other hand, if FCC is playing word games to avoid responding to FOIA requests, it would clearly violate Chairman Ajit Pai’s pledge to increase transparency at the FCC."

The FCC's contention is that for fifteen hours after the attack, nobody sent an e-mail, wrote a memo, or documented this supposed attack in any fashion. And again, this lack of transparency about any of this is in stark contrast to FCC boss Ajit Pai's repeated, breathless claims that he was going to bring a new wave of transparency to the agency. This lack of transparency will become increasingly stark as the agency continues to gut popular, meaningful consumer protections -- leaving the only thing standing between you and your carrier's bullshit an unelected bureaucrat that believes anti-competitive behavior in the telecom sector isn't a real problem.

Filed Under: ajit pai, ddos, fcc, john oliver, lies, ron wyden

Senator Wyden Wants To Know How Many Times Americans Have Been Targeted By Executive Order 12333

from the am-I-free-to-know-am-I-free-to-know-am-I-free-to-know-am-I-free-to-know-am-I-fre dept

That buzzing noise that never seems to leave the Intelligence Community's ears is Sen. Ron Wyden. Wyden's questions -- often unanswered -- are dog whistles for privacy advocates but ear-bleeding tinnitus for agency officials. Persistence is key in Congressional oversight and few are better at it than Wyden is.

For years, Wyden has been asking how many Americans have been hauled in by the NSA's Section 702 dragnet. And for years, the NSA and ODNI have sidestepped the question. The surveillance bosses got close to returning an answer -- right before they announced they were shutting down the collection that netted the most Americans.

Right before Trump was elected, James Clapper finally said he'd cough up the numbers. But with the regime change, the promise is no longer a promise. The NSA may try to keep this buried, using time and distance from the abruptly-abandoned "about" collection to stiff-arm additional requests for domestic surveillance data.

Ever persistent, Wyden has returned with another set of questions [PDF] regarding NSA surveillance. This one pertains to the least-discussed surveillance authorization and the one almost everyone -- including members of oversight committees -- knows nearly nothing about: Executive Order 12333.

Like Section 702, there's a good probability intelligence gathered under this authority is being used by domestic agencies. Backdoor searches of NSA intel have been unofficial common knowledge for years now, so there's very little reason to believe the NSA's most mysterious authority doesn't have its own built-in peepholes for the FBI and other federal agencies.

Wyden is asking for details on this authority, specifically the number of times it has been used to surveil Americans. As he points out, the order allows the deliberate targeting of American citizens with the Attorney General's approval.

Please provide the following information:

1. How many times, in each of the calendar years 2011-2016, has the Attorney General provided this approval?

2. Can the Intelligence Community conduct these searches "for the purpose of targeting a US. person or a person in the United States" without an individual warrant?

3. What limitations and approval requirements would apply to searches for communications that are reasonably likely to be to, from, or about a US. person or a person located in the United States if the purpose of the search is not to "target" that person?

That's the "what." Here's the "why:"

Concerns about warrantless "backdoor" searches for information about Americans are among the reasons I have repeatedly asked the Intelligence Community to publish an estimate of the number of Americans whose communications have been collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Concerns about these searches under Section 702 are also why the Intelligence Community now publishes data on the number of these searches, with the notable exception of searches conducted by the FBI.

Executive Order 12333 poses similar, if not greater concerns, given the lack of public awareness of the breadth of that collection, extremely limited oversight, and the vagueness of the procedures governing collection and use. For these reasons, I believe the public has the right both to clarity with regard to those procedures and data related to the frequency with which Americans and individuals in the United States are the subject of these searches.

No sense holding your breath. As much as I appreciate Wyden's effort, the current administration firmly believes surveillance might makes right. The Intelligence Community has been so emboldened by the administration's lack of concern for civil liberties it's already asked to have the "about" collection -- which it shut down voluntarily so it could finally get 702 orders approved by the FISA court -- turned back on.

If any answers do appear, expect them to be vague and deliberately uninteresting. But at this point, it's probably less disappointing to just not expect them at all.

Filed Under: domestic surveillance, eo 12333, executive order 12333, nsa, odni, ron wyden, surveillance

Wyden Siren: Coats Is Answering A Different Question About Surveillance Of US Persons

from the tricky-coats dept

Remember, folks, when Senator Ron Wyden asks certain questions or suggests something nefarious is going on behind the scenes, you'd best listen. Time and time again over the past six years or so, whenever he's brought up such an issue, he's been right. Some on Twitter have now dubbed this the Wyden Siren. Pay attention when Wyden is hinting at something. So... it's time to pay attention. On Thursday, Wyden sent a letter to Dan Coats, the Director of National Intelligence, complaining that he is answering a different question than the one Wyden asked. This is, of course, a fairly typical move in political circles, but especially in the intelligence community. You word answers in very tricky ways, such that you know the public will be misled, but if pressed in the future, you can argue that your answer was not untruthful -- just semantically misleading in the extreme.

This case goes back to Wyden questioning Coats on June 7th about whether Section 702 can be used to collect purely domestic communications. There were already some people screaming "Wyden Siren" on Twitter about the question, even to the point of arguing that the question was setting up Coats the way that James Clapper was setup a few years back (in which he lied about NSA surveillance on Americans). Coats stated that such a thing would be against the law -- leading Marcy Wheeler to point out not only that the statement is incorrect, but that Coats signed a memo saying it's incorrect.

After the hearing, as Wyden's new letter to Coats points out, Coats gave Wyden an answer. But, as Wyden now points out, it was an answer to a different question:

Dear Director Coats:

At the Senate Select Committee on Intelligence's open hearing on June 7, 2017, I asked you the following question and requested a yes or no response: "Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic." You responded: "Not to my knowledge. It would be against the law." After the hearing, in response to questions from reporters, the ODNI sent the following:

"Section 702(b)(4) plainly states we 'may not intentionally acquire 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 DNI interpreted Senator Wyden's question to ask about this provision and answered accordingly.

That was not my question. Please provide a public response to my question, as asked at the June 7, 2017, hearing.

Thank you for your attention to this important matter.

Sincerely,
Ron Wyden

Pay attention, folks. The Wyden Siren is blaring... and that usually means more awful surveillance revelations will be coming soon...

Filed Under: 702, dan coats, domestic surveillance, mass surveillance, nsa, ron wyden, section 702, surveillance

Congress Getting Pissed Off Over Failure Of Intel Community To Reveal How Many Americans Are Being Spied On

from the outright-lies dept

As we've pointed out for many, many years, Senator Ron Wyden has been banging the drum, asking the Director of National Intelligence to reveal how many Americans are having their communications swept up under Section 702 of the FISA Act. We have posts going back to 2011 of Wyden asking for a number and being stonewalled. At the time, many tried to brush it off as nothing to be concerned about -- after all, the "F" in FISA is supposed to stand for "Foreign" and so it was assumed (incorrectly) that Americans' communications were mostly unlikely to be caught up in the matter. Of course, as we now know quite well, that's not even remotely true. Between the Snowden revelations and other declassified FISA court orders, we know that tons of Americans had their communications swept up, without any kind of warrant. Throughout all of this time, Wyden kept asking that question over and over again, without getting any answers. Last year, others finally joined in, with a large bipartisan group from the House Intelligence Committee all (finally!) asking the same question.

Eventually, late last year (after years of stalling), then Director of National Intelligence, James Clapper, said that his office would deliver an estimate to Congress. Indeed, the House Judiciary Committee worked with Clapper's office to set up the parameters for that number, noting that it needed to be provided "early enough to inform the debate" about the renewal of Section 702, and had to be provided in a format that could be provided to the public, rather than kept in secret. That estimate never came. This issue came up again during the hearings for Clapper's replacement, Dan Coats, who also said he would try to get Congress a number. Specifically, he told Wyden: "I'm going to do everything I can to work with Admiral Rogers in NSA to get you that number."

As we noted, two months ago, another bipartisan letter was sent to Coats, this time signed by both the chair of the committee, Bob Goodlatte, and the ranking member, John Conyers. That generally means that the Committee is getting serious about stuff. In the letter, they noted that they were still waiting on Coats to deliver this number and expected to see it soon.

Then, yesterday, there was a public Senate Intelligence Committee hearing over the issue of the 702 renewal. While most of the press is focused on the refusal of those testifying to say whether President Trump had spoken to them about various investigations concerning Russia, there was something else concerning that was brought up. Coats, despite his earlier promises and the promises of his office, is now saying that it would be impossible to give a number.

Not surprisingly, for the folks in Congress who have been insisting on getting this number (and giving it to the public), this... did not sit well. When it was Senator Wyden's turn to question the panel, he went off on Coats for going back on his word.

This morning you went back on that promise and you said that even putting together a sampling, a statistical estimate, would jeopardize national security. I think that is a very, very damaging position to stake out.

Later in that exchange, there was this exchange (which, if you watch it, involved both men being fairly testy with each other):

Wyden: Can the government use FISA 702 to collect communications it knows are entirely domestic?

Coats: Not to my knowledge. It would be against the law.

As Marcy Wheeler points out, that exchange may prove to be similar to Wyden's now infamous question to Coats' predecessor, Clapper, about whether or not the NSA collected information on millions of Americans (the "not wittingly" response, which was later shown to be completely bogus). Wheeler points out that for Coats to actually believe that, it would appear that he doesn't know how 702 is actually used, even though he signed a memo about this very thing. Wheeler points to the recent FISC opinion reauthorizing 702 data collection that states that if the Director of the NSA signs a waiver for all of the domestic collections, then the NSA can still collect a wholly domestic communication under 702. That FISC opinion cites a March 30th memo that Coats would have signed as the justification for this argument. So for him to now say that it's illegal for the very thing his own memo from March says is okay... seems like a serious problem.

And Wyden's not the only one upset about this. Since this was a Senate hearing, Rep. Conyers wasn't there, but he put out a blistering statement calling Coats' statements "unacceptable."

The intelligence community has—for many months—expressly promised members of both parties that they would deliver this estimate to us in time to inform our debate on the reauthorization of Section 702. As late as last August, we had discussed and approved the specific methodologies that the NSA might use to make good on their promise.

Today, Director Coats announced that the estimate is ‘infeasible’ and will not be forthcoming. I find that outcome unacceptable.

Over the course of the last year, we believed we had worked past the excuses we are offered today. The nation’s leading civil liberties organizations see no threat to privacy in this project, and have said so publicly. The agencies demonstrated to us how they might perform this analysis without significant diversion of resources. I am deeply disappointed in a return to these old talking points.

Section 702 is built on trust. It will be more difficult to find that trust as we move forward with the debate.

As we discussed earlier this week, a bunch of Senators have already been pushing a permanent renewal of 702 with no changes at all. As the debate heats up on the renewal of Section 702 ahead of its expiration later this year, we're going to need Congress to hold the intelligence community to its promise to reveal at least some data on how these programs impact Americans' communications.

Filed Under: congress, dan coats, estimate, john conyers, nsa, odni, ron wyden, section 702, surveillance

Erasing History: Trump Administration Returning CIA Torture Report To Be Destroyed

from the awful dept

Over the last few months, a battle has played out over what will happen to the 6,700 page "CIA Torture Report" that the Senate Intelligence Committee spent many years and approximately $40 million producing. The report apparently reveals all sorts of terrible details about how the CIA tortured people for little benefit (and great harm in other ways) and lied to Congress about it. While a heavily redacted executive summary was released, there is apparently significantly more in the full report. And if we, as a country, are to actually come to terms with what our nation did, this report should be made public and there should be a public discussion on our past failings.

Instead, it looks like the report is going to be returned and destroyed. Senator Richard Burr has been against the report from the beginning, and ever since he took over the Senate Intelligence Committee he's demanded that the administration return the report, arguing (totally against all evidence) that it was a work product of the Senate Intelligence Committee not meant for distribution to the executive branch. Of course, that's the exact opposite of what Senator Dianne Feinstein -- who spearheaded the effort to create the report -- has said. The intention was to understand what the CIA did and make sure the same mistakes were not repeated. And, in fact, Feinstein asked the executive branch agencies to put the document into their own records -- which would make the report subject to a FOIA request.

The previous administration did not give the report back to Burr, but did block those in the executive branch from reading it or from putting it into their records -- which has so far stymied FOIA requests. And now, the Trump administration has started returning the report to Burr to destroy:

The Trump administration has begun returning copies of a voluminous 2014 Senate report about the Central Intelligence Agency’s detention and interrogation program to Congress, complying with the demand of a top Republican senator who has criticized the report for being shoddy and excessively critical of the C.I.A.

The Trump administration’s move, described by multiple congressional officials, raises the possibility that copies of the 6,700-page report could be locked in Senate vaults for good — exempt from laws requiring that government records eventually become public. The C.I.A., the office of the Director of National Intelligence and the C.I.A.’s inspector general have returned their copies of the report, the officials said.

This is problematic on many, many levels. Feinstein had even asked Obama to declassify the report, before leaving office -- something he refused to do. Feinstein is not at all happy about this turn of events.

“I’m concerned and disappointed that Chairman Burr demanded the return of copies of the classified edition of the torture report. The fact that he would take this divisive action without notifying or consulting with the Democrats on the committee is a departure from the bipartisan nature of this committee. It’s particularly troubling he would take this divisive action while the committee is conducting its Russian investigation.

“The committee voted in March 2009 to initiate a report on harsh interrogation techniques used by the CIA on detainees during the Bush administration. After almost four years of hard work, the committee approved the report in December 2012. The CIA was afforded the opportunity to respond and where appropriate, changes were made and the CIA’s responses were included in the footnotes. The committee then voted to declassify and release the executive summary and the findings and conclusions in December 2014.

“Chairman Burr’s assertion that he, today, has authority over a final Senate report completed prior to him assuming the chairmanship is both alarming and concerning. This creates a dangerous precedent that a current chairman could question acts of previous congresses and countless historical reports and records and essentially nullify reports produced by a prior congress under a different chairman.

“No senator—chairman or not—has the authority to erase history. I believe that is the intent of the chairman in this case.

“I’m profoundly disappointed that CIA Director Pompeo would approve this action. Members, including myself, carefully questioned him during his confirmation process about his views on torture. He clearly stated his opposition to torture and made a commitment to read the full classified report. I very much doubt that he has had an opportunity to fulfill that commitment.

“The report is an important tool to help educate our intelligence agencies about a dark chapter of our nation’s history. Without copies of it, the lessons we’ve learned will be forgotten. The intelligence agencies have a moral, if not legal, obligation to retain every copy of this report for posterity.”

Senator Ron Wyden put out an even stronger statement:

“Attempts to erase history are the tactics of the insecure and the power hungry and have no place in a democracy. The torture report is a historical record that belongs to all Americans,” Wyden said. “This unprecedented move by Chairman Burr and the Trump administration could serve only one purpose -- to pave the way for the kind of falsehoods used to justify an illegal and dangerous torture program. For the sake of future generations of Americans, this report should be immediately returned to the government agencies who gave it up, disseminated widely within the government and most importantly, declassified for the American people.”

Assuming Burr gets back his copies and does, in fact, destroy them, there are still two possible other copies out there. The Trump administration (unlike the Obama administration) did, in fact, give a copy to the courts as was ordered by the judge in a case about the torture program. The other copy was apparently "preserved" in the Obama archives, where it will be kept for 12 years before it might be declassified. At this point that copy is, perhaps, the only chance that this detailed report won't be completely deleted from history.

Of course, the other possibility... is that someone along the way who had access to the report has kept a copy of it and decides to leak the report to the press. This would be doing a true service to history and help preventing future shameful episodes involving torture. Hopefully someone out there with access to the report -- and a conscience -- does the right thing.

Filed Under: cia, dianne feinstetin, donald trump, history, richard burr, ron wyden, torture report

Senate ID Cards Use A Photo Of A Chip Rather Than An Actual Smart Chip

from the security-by-stupidity dept

Our government isn't exactly known for its security chops, but in a letter sent recently from Senator Ron Wyden to two of his colleagues who head the Committee on Rules & Administration, it's noted that (incredibly), the ID cards used by Senate Staffers only appear to have a smart chip in them. Instead of the real thing, some genius just decided to put a photo of a smart chip on each card, rather than an actual smart chip. This isn't security by obscurity, it's... bad security through cheap Photoshopping. From our Senate.

Moreover, in contrast to the executive branch's widespread adoption of PIV cards with a smart chip, most Senate staff ID cards have a photo of a chip printed on them, rather than a real chip. Given the significant investment by the executive branch in smart chip based two-factor authentication, we should strongly consider issuing our staff real chip-based ID cards and then using those chips as a second factor.

We asked the Senate if there was any way we could get a (heavily redacted, obviously) image of a Senate ID with the "photo" smart chip but (not at all surprisingly) that request was rejected. So, instead, we've got this artist's rendering of what something like it might look like, more or less.

Most of the letter (as the last sentence suggests), is about how the Senate barely uses two factor authentication, which is also kind of stunning. These days, two factor authentication is the absolute basic level necessary for anything that you want to keep moderately secure. That the Senate isn't doing this (and that it's faking smart chips) is preposterous. It's great that Senator Wyden is calling out the Senate IT staff for this very basic failing. I don't know for sure, but a lot about this letter makes me suspect that one Chris Soghoian is behind discovering the lack of a real smart chip and highlighting the lack of true two factor authentication (it's possible it's someone else, but it feels like a very Chris Soghoian thing to notice and call out...).

Filed Under: 2fa, chips, ron wyden, senate, smart card, two factor authentication

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

from the about-freaking-time,-goodlatte dept

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

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

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

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

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

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

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

Bipartisan Bill Would Require A Warrant To Search Americans' Devices At The Border

from the would-be-a-start dept

As we've discussed for many years, Homeland Security and the Justice Department have convinced too many courts that there is some sort of 4th Amendment "exception" at the border, whereby Customs and Border Patrol agents (CBP) are somehow allowed to search through your laptops, phones, tablets and more just because, fuck it, they can. Now bipartisan pairs in both the Senate and the House have introduced a new bill that would require that CBP get a warrant to search the devices of Americans at the border. On the Senate side, the bill is sponsored by Senators Ron Wyden and Rand Paul, and in the House, it's Reps. Blake Farenthold and Jared Polis. Honestly, it's absolutely ridiculous that this kind of bill is even needed in the first place, because the 4th Amendment should just take care of it. But with DHS and the courts not properly appreciating the 4th Amendment's requirment for a warrant to do a search, here we are. Here's a short summary of the bill as well, that notes:

The government has asserted broad authority to search or seize digital devices at the border without any level of suspicion due to legal precedent referred to as the “border search exception” to the Fourth Amendment’s requirement for probable cause or a warrant.

Until 2014, the government claimed it did not need a warrant to search a device if a person had been arrested. In a landmark unanimous decision, the Supreme Court (in Riley v. California) ruled that digital data is different and that law enforcement needed a warrant to search an electronic device when a person has been arrested.

This bill recognizes the principles from that decision extend to searches of digital devices at the border. In addition, this bill requires that U.S. persons are aware of their rights before they consent to giving up online account information (like social media account names or passwords) or before they consent to give law enforcement access to their devices.

That last part is especially important, given how eager Homeland Security has been to start demanding social media passwords as you deplane. Unfortunately, the bill as written only applies to "US Persons" as defined here, meaning that it may not be of much help for a new DHS proposal, also revealed this week, to more aggressively pursue phone and social media searches of foreigners. This is a bad idea for a whole host of reasons we've already discussed, but the short version is that it's bad for security, it's bad for tourism, it's bad for Americans' safety (because other countries will reciprocate). It's just a bad, bad idea.

At the very least, this new bill would block this from happening for American citizens or otherwise legal aliens, but it should go much further. And, of course, who knows if this bill will get any traction, or get signed by the President.

Filed Under: 4th amendment, blake farenthold, border search, border search exception, devices, jared polis, rand paul, ron wyden

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

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

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

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

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

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

As Wyden notes:

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

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

In it, he calls out these issues quite clearly:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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