Senator Loeffler's COVID-Related Stock Trades Looking Even Worse, While Feds Start Investigating Senator Burr's

from the insider-trading dept

As we noted just a few weeks ago, two Senators -- Kelly Loeffler from Georgia and Richard Burr from North Carolina, both of whom were publicly trying to play down the risks associated with COVID-19 -- were quietly engaging in stock trades that suggested they had a different viewpoint (while five different Senators sold stock during this period, only Loeffler's and Burr's look particularly suspicious). Burr's stock sell-off was revealed first, and got the most attention, in part because he's also the Chair of the Senate Intelligence Committee and was getting classified briefings about COVID-19. The latest news on that front is that the Justice Department has supposedly opened an investigation:

Senate Intelligence Committee Chairman Richard Burr sold off a large amount of stocks before the coronavirus market crash, and now the Justice Department is looking into his statements around this time period, NPR can report.

Others have reported that the FBI has been in contact with Burr. That doesn't mean much for now, and the investigation may turn up nothing. But it's worth noting that it's happening.

The other Senator, Kelly Loeffler, has some more bad news, as new reports suggest even more stock trading that at least looks suspicious. As was noted in the original report, Loeffler had sold off a bunch of retail stock, and bought into a company that does videoconferencing. The original reports suggest that she sold off somewhere between $1.3 million and $3.1 million in stock right before the US economy went south. Turns out it was way more. The new report shows that she also sold off nearly $19 million in stock of Intercontinental Exchange, the company that owns the New York Stock Exchange. It is worth noting that Loeffler's husband is the chair and CEO of Intercontinental Exchange, and the sales took place between February 26th and March 11th. That means at least some of those sales were happening while she was insisting that the US had everything under control.

Perhaps even more damning, though? Beyond buying into a videoconferencing software company, Loeffler and her husband, Jeff Sprecher, also purchased a bunch of stock in DuPont, a major supplier of the personal protective gear that hospitals are all now desperate for:

Sprecher bought $206,774 in chemical giant DuPont de Nemours in four transactions in late February and early March. DuPont has performed poorly on Wall Street lately, but the company is a major supplier of desperately needed personal protective gear as the global pandemic strains hospital and first responders.

So, to recap: they sold somewhere in the range of $20 million worth of mostly stock market and retail companies -- and bought into videoconferencing and protective health gear. All while telling the public that the government she's a part of has everything under control.

Filed Under: congress, covid-19, fbi, insider trading, investigation, kelly loeffler, richard burr, stock trades

New Inspector General's Report Finds Even More Problems With The FBI's FISA Surveillance Applications

from the demanding-the-best-people-but-demanding-nothing-from-them dept

The FBI's inability (or unwillingness) to craft factual FISA court affidavits was exposed late last year by an investigation by the DOJ's Inspector General. During the FBI's surveillance of former Trump advisor, Carter Page, information known by the agency was omitted to allow agents to continue its interception of Page's communications. Despite having obtained info showing Page was likely not acting on behalf of a foreign power, the FBI continued its surveillance for months by hiding this key finding from the FISA court.

The fallout from this report continues. The FISA Court banned the FBI agent who lied on the warrant applications. The court also instructed the FBI to start cleaning up its Carter Page mess, including tracking down where any other info it might have illegally collected in this case might have gone, in order to prevent further violations by other agencies in the future.

Current and former DOJ/FBI officials made it clear the FBI's questionable actions in this case were only the agency's most current violations. The skirting of internal guidelines and the truth itself was a common practice dating back nearly 20 years.

The Inspector General's findings in the Page investigation were the tip of the unexpected iceberg. The IG is now looking at the rest of the FBI's FISA work. And the office is finding even more to be concerned about.

The finding of broader failings in the Foreign Intelligence Surveillance Act program came in a review launched by Justice Department Inspector General Michael Horowitz after an earlier inquiry found numerous errors in applications to monitor former Trump campaign foreign policy adviser Carter Page. In a bid to assess whether the faults in the Page’s surveillance process were an aberration or a chronic problem, Horowitz’s audit team zeroed in on 29 applications for surveillance of U.S. citizens or green-card holders over a five-year period.

Horowitz found an average of 20 errors in each of the applications.

It's impossible to say how many of these errors were accidental or deliberately induced. But an average of 20 errors per application is breathtaking, considering the FISA court's national security focus. This is where the government should be the most careful and the FBI clearly isn't. And if this is where the FBI's top agents end up, you have to wonder how many errors normal, non-FISA applications contain.

There's a specific set of policies the FBI is supposed to adhere to when asking the FISA court for permission to engage in domestic surveillance. Even the most minimal conditions of the Woods Procedures aren't being followed by agents. The Procedures say the FBI must compile and retain supporting documentation to ensure FISA applications are "scrupulously accurate." We already know the applications aren't accurate. The report [PDF] points out at least one reason why:

[W]e could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed…

The system appears to be broken from the ground up. The applications contain errors. The supporting information isn't accurate when it isn't missing completely. Interviews with agents and supervisors by the IG reveal this has been an ongoing problem for years now. And no one up top is doing anything to fix it.

FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

Every 90 days, the FBI is supposed to justify continued surveillance to the FISA Court. It did this multiple times during the Carter Page investigation, continuously omitting facts that would have resulted in its surveillance being terminated. The FBI does this in multiple cases, apparently. A mixture of malice, stupidity, and laziness has resulted in the mess observed by the Inspector General.

[B]ased on the results of our review of two renewal files, as well as our discussions with FBI agents, it appears that the FBI is not consistently re-verifying the original statements of fact within renewal applications. In one instance, we observed that errors or unsupported information in the statements of fact that we identified in the initial application had been carried over to each of the renewal applications. In other instances, we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application. This practice directly contradicts FBI policy.

The FBI agrees with the IG's assessment that it's terrible at following its own policies. But the response attached to the IG report -- crafted by the Deputy FBI director -- says things will be fine because… the FBI is creating more policies!

[T]he FBI has been intensely focused on implementing these remedial measures with the goal of ensuring that our FISA authorities are exercised with objectivity and integrity. Among many other changes, we revised FISA request and verification (Woods) forms, developed a new confidential human source checklist, developed and released training on this checklist, developed and provided new training on revised FISA forms, and developed new FISA process rigor training. The revised Woods form now requires agents and supervisors to attest to their diligence in re-verifying facts from prior applications. All Woods forms, both for initial applications and renewals, must now be scanned and maintained in the electronic case file. These already-implemented changes will drive accountability, accuracy, and completeness in the FISA process.

All of this new paperwork doesn't mean anything if the FBI isn't going to make sure agents follow it. The problems seen in 2002 still exist nearly 20 years later, and that's after the implementation of additional policies following every successive reaming from the Inspector General and the FISA Court. If the FBI isn't going to start engaging in serious oversight -- including meaningful discipline of agents who fail to follow policies -- the problems will continue. The only change will be the length of oversight reports, which will contain details of all the new ways the FBI is ignoring its own protocols.

Filed Under: 4th amendment, carter page, doj, fbi, fisa, fisa court, fisa warrants, fisc, inspector general, surveillance

We Know The FBI Can't Count Phones. A New Report Shows It Can't Count Guns And Ammo Either.

from the multi-billion-dollar-agency-using-pen-and-paper-to-track-weapons dept

We know the FBI can't accurately track how many encrypted devices it has in its possession. Two consecutive directors have pushed a "going dark" narrative using an inflated number of uncracked phones. At one point the FBI claimed it had nearly 8,000 phones in its possession, each one presumably full of evidence. When pressed for information by members of Congress, the FBI suddenly realized it had overstated this number by at least 6,000 phones. It discovered its error in May of 2018. It has yet to release an updated number.

The FBI can't track seized phones so it should come as no surprise it can't accurately track the guns and ammo in its possession. The DOJ Inspector General has completed its audit [PDF] of the FBI's weapons control system and found that the FBI isn't really controlling its weapons.

The FBI claims to have nearly 58,000 firearms in its inventory. This is pretty much the extent of the good news in the IG report:

We found that the FBI has strong physical controls over its unassigned firearms, and Special Agents are personally responsible for properly safeguarding assigned firearms. The FBI tracks its firearms using the Asset Management System (AMS), its automated property management system. During our physical inventory we were able to locate all firearms selected for our sample.

And here comes the bad news. The IG found over 360 firearms that had no designated property custodian, which is against FBI policy. Its audit sample also found two guns the FBI could not explain how or why they were in its possession.

We were unable to trace two firearms back to AMS, both of which were located in a gun safe in the Madison Resident Agency. The Firearms Instructor in Madison explained that the origins of the firearms were unknown.

The FBI also has trouble tracking firearms that have been lost or stolen.

Of the 45 lost or stolen firearms, 24 have been recovered, 1 of which was used in a crime. We also found that the FBI did not maintain complete documentation for 8 of the 45 lost or stolen firearms, including its make, model, or serial number; and a stolen firearm that was subsequently recovered more than 1 year ago was still marked as lost or stolen in AMS.

The list of lost/stolen guns is an interesting read. In every case, agents who lost weapons were suspended. But safely handling firearms appears to be an ongoing problem. Guns were stolen from vehicles, left behind in restrooms and hotel rooms. One was apparently "left on a bumper." But the best/worst missing gun synopsis is this: "stolen by daughter."

The agency's control of ammunition is even worse. Only one of the sites visited by the IG is doing this job properly.

The FBI maintained duty ammunition at 14 of the 15 sites we reviewed. We found that the FBI stored its ammunition in secured areas with access limited to FBI personnel. However, we identified weaknesses in the FBI’s ammunition tracking and physical inventory policies that increase the risk of ammunition being lost or stolen without detection. As a result, we found that 6 of the FBI sites included in our audit were not tracking over 1.2 million rounds of ammunition, and another 7 sites were not adequately tracking ammunition.

Explosives tracking fared a little better, but the system used for keeping tabs on explosives contains weaknesses that could increase the risk of explosives being lost or stolen. Only two of the eight sites with explosives on the premises were adequately tracking these items.

The Inspector General obviously recommends the FBI do better at tracking guns, ammo, and explosives. The FBI pretty much agrees with all of the IG's suggestions. But it's had plenty of time to improve things and it hasn't done all that much. The FBI loses far fewer weapons than it used to, so it at least has this area mostly under control. A 2007 audit showed the FBI had 354 weapons lost or stolen over a 22-month period in 2001-2002. By 2007, it had cut that number in half. The most recent audit shows only 45 lost/stolen weapons over a three-year period.

But this report highlights the agency's inability to count and control things in its possession. So, it's hardly surprising it has no idea how many encrypted devices it has on hand. And if it doesn't know that, it can't present an accurate picture of device encryption and its impact on investigations.

Filed Under: counting, evidence, fbi, phones

FBI Says It Will Only Accept Snail Mail FOIA Requests Until Further Notice, Due To Coronavirus Concerns

from the and-it's-not-even-going-to-respond-to-those dept

With the Coronavirus grinding everything to a halt (except for stock market losses! [sobs in 401(k)]), it's understandable that public services would be affected as well. The unexpected shift to telecommuting means everything is going to slow down as public and private entities figure out how to still serve customers/citizens while still keeping the spread of the virus to a minimum.

But none of that explains this completely incomprehensible response from the FBI, which appears to be using the virus as a way to become even more tight-fisted with its stash of FOIA-able files. "FOIA terrorist" Jason Leopold reports the FBI is seeking to serve the public in the worst way possible during this national health crisis.

A message posted on the FBI's Freedom of Information Act website Tuesday says:

"Due to the emerging COVID-19 situation, the FBI is not accepting electronic Freedom of Information/Privacy Act requests or sending out electronic responses through the eFOIPA portal at this time. You may still submit a FOIPA request via standard mail. We apologize for this inconvenience and appreciate your understanding."

Left unexplained by the agency is how sending out snail mail -- which could conceivably carry a bit of COVID with it -- is preferable to email requests, which can only infect others if they insist on opening sketchy attachments.

This is also against the law, unless the administration decides it's going to suspend FOIA law until the it's declared safe to act sane again. The regulations governing FOIA responses say all federal agencies must have the capability to "receive requests electronically" either via email or their FOIA portals. It appears the FBI has simply chosen to ignore its online portal and its capability to receive emailed requests.

Even if lower staffing levels might result in slower responses, the agency's virus response shouldn't be to switch off the online portal and direct everyone to another government service that itself might be negatively affected by the virus in the near future.

But there's more to it than this inexplicable explanation for shutting down the internet-friendly side of its FOIA services. Those bothering to send snail mail shouldn't expect responses, either.

Katie Townsend, the legal director for the Reporters Committee for the Freedom of the Press, told BuzzFeed News that in a FOIA case she is litigating, an assistant US attorney filed court papers Tuesday saying the office that handles the FBI's FOIA requests is "closed at least until March 30, 2020 because of the current coronavirus outbreak."

This has been confirmed by other attorneys involved in FOIA litigation with the FBI. The regulation-dodging statement on the FBI's website doesn't inform requesters that the FBI won't be touching any requests for the rest of the month. The FBI -- through its lawyers -- insists this all very logical because FOIA response personnel can't work from home due to security issues. Even if so, encouraging people to climb into an FOIA time machine to take them back before the internet was a thing isn't helping anyone but an agency that would rather not answer FOIA requests at all.

Filed Under: coronavirus, covid-19, fbi, foia, pandemic, transparency

Since The FBI Can't Be Bothered To Do It, Motherboard Has Compiled A Database Of Attempts To Access Encrypted IPhones

from the thanks-for-nothing,-g-men dept

The FBI continues to avoid playing its hand honestly in the "going dark" debate. It continues to do things like call strong encryption "warrant-proof" encryption, damning it by associating its very existence with unlawfulness. FBI Director Chris Wray continues to claim he's not asking for encryption backdoors while calling for encryption backdoors. And for nearly two years, the FBI has refused to update its erroneous count of uncracked devices in its possession.

The last time the FBI delivered a number, it claimed it had about 7,800 devices in its possession that it couldn't get into. After being questioned by Congress about its claims, the FBI went back to count devices and found its tracking method had resulted in a severe miscount. No real number has been delivered yet, but the early estimate was that the actual number was slightly over 1,000 devices. Not quite the apocalypse the FBI needed us (and our Congressional reps) to believe it was.

As usual, when the government fails, private citizens step in to do the work that government agencies are spending our tax dollars not doing. The DOJ and FBI have spent years hardly bothering to compile an accurate accounting of police use of deadly force, resulting in a small cottage industry of journalists, activists, and hobbyists doing the work for them.

The same thing can be said about the "going dark" narrative. The FBI loves the narrative but can't be bothered to provide any hard data backing its assertions that encryption is destroying the criminal justice system. So, it's left up to people like Joseph Cox and his team members at Motherboard to try to get a grip on how often device encryption is disrupting criminal investigations.

Using information gathered from more than 500 iPhone search warrants and other court records, Motherboard has compiled a database that gives readers a better idea of encryption's impact on law enforcement investigations -- a narrative stripped of all the competing narratives, if you will.

In conclusion, Going Dark is a land of contrasts:

[T]he records compiled by Motherboard show that the capability to unlock iPhones is a fluid issue, with an ebb and flow of law enforcement sometimes being able to access devices and others not. The data solidifies that some law enforcement officials do have trouble accessing data stored on iPhones.

What this doesn't answer is the question the FBI and DOJ want answered in their favor: should access to encrypted content and communications be guaranteed? Is it better for citizens to be less secure but possibly more "safe" by making encryption inherently flawed? Of course, the answer is "no," but those at the top of the law enforcement food chain are never going to stop arguing that their lofty ideals should trump the rights and protections of all the little people below them. Only a criminal would want encryption because innocent people have nothing to hide and all of that garbage.

But Motherboard is providing a valuable service -- one the government refuses to do itself: it's providing data about the law enforcement v. encryption battle which should better inform everyone on both sides of the issue. For all of its insistence that encryption is an evil that's not even necessary, the FBI has done next to nothing than provide a handful of anecdotes about its experience with encrypted devices. And for more than a half-decade, these anecdotes have been backed by extremely faulty numbers. Let's hope throwing a little more reality around will bring the agency back to earth -- and more in agreement with the millions of people who ensure it stays funded.

Filed Under: chris wray, encryption, fbi, going dark, law enforcement, william barr

Senate Punts FISA Reform Bill For At Least 77 Days

from the punting-surveillance dept

Last week, we were perplexed as to why House Democrats had agreed to an extension of NSA/FBI surveillance powers for a President they keep insisting is incompetent and vindictive against anyone he dislikes. At the same time, we couldn't figure out why Republicans were so keen to support it at the same time they were insisting that those same powers were used by the "deep state" to spy on the President's own campaign. After it passed, President Trump hinted that he might veto it anyway, and now with the Covid-19 pandemic in full swing, the Senate has agreed to punt on the issue for the time being, extending the FISA authorities for 77 days, with a promise of debating real reform in the interim:

The Senate on Monday unanimously adopted a short-term extension of key federal surveillance programs that expired on Sunday night — a move that allows the chamber to more rapidly consider legislation addressing the economic impacts of the global coronavirus pandemic.

Senate Majority Leader Mitch McConnell scrapped an initial procedural vote Monday night on a House-passed bill that would reauthorize now-expired provisions of the 2015 USA Freedom Act and alter the Foreign Intelligence Surveillance Act.

Instead, McConnell and his leadership team worked out a deal with civil libertarian hard-liners who oppose that House bill, including Sens. Mike Lee (R-Utah) and Rand Paul (R-Ky.), on a 77-day extension of the surveillance powers.

Of course, we've gone through this before, with extensions being agreed to along with promises of time to debate the issues... and the debate almost never shows up. Instead, we get down to the very last minute again, and something gets shoved through. In this case, given that everyone's attention is really needed in dealing with the pandemic, this seems like a reasonable move, however. I do hope that there actually is a serious debate on the need for these FISA surveillance authorities at some point though.

Filed Under: congress, fbi, fisa, fisa court, fisa warrants, fisc, nsa, section 215, senate, surveillance

FBI Director Chris Wray Pitches Weakened Encryption At A Cyber Security Conference

from the piling-on-the-unintended-irony dept

On May 29, 2018, the FBI promised to deliver an updated count of encrypted devices in its possession. As James Comey and his replacement, Chris Wray, continued to advocate for weakened encryption, the number of phones the FBI couldn't get into swelled from 880 in 2016 to over 7,800 by the time the FBI realized its phone-counting method was broken.

This number still hasn't been updated. An early internal estimate by the FBI put the real number of locked devices at ~1,200. But the official number still hasn't been released. This hasn't stopped Chris Wray from continuing his attacks on encryption, painting pictures of a dark future that isn't supported by the small number of encrypted devices in the agency's possession.

The attacks continue. They're more subtle than Attorney General Bill Barr's aggressive pitches, but they're still happening. Chris Wray spent his time at a recent cyber security conference in Boston making the case for strong encryption before (yet again) making a plea for tech companies to give law enforcement the encryption backdoors Wray still refuses to call backdoors.

Today we’re worried about a wider-than-ever range of threat actors, from multi-national cyber syndicates to nation-state adversaries. And we’re concerned about a wider-than-ever gamut of methods continually employed in new ways, like the targeting of managed service providers—MSPs—as a way to access scores of victims by hacking just one provider.

[...]

We’re also battling the increasing sophistication of criminal groups that places many hackers on a level we used to see only among hackers working for governments. The proliferation of malware as a service, where darkweb vendors sell sophistication in exchange for cryptocurrency, increases the difficulty of stopping what would once have been less-dangerous offenders. It can give a ring of unsophisticated criminals the tools to paralyze entire hospitals, police departments, and businesses with ransomware. Often the hackers themselves haven’t actually gotten much more sophisticated—but they’re renting sophisticated capabilities, requiring us to up our game as we work to defeat them, too.

These all sound like arguments for strong encryption. They're not, I guess. Because the very next thing out of Wray's mouth is this:

We’re having to fight these increasingly-dangerous threats while contending with providers increasingly shielding indispensable information about those threats from any form of lawful access—through warrant-proof encryption.

"Warrant-proof encryption" is just encryption. It's protecting all the people Chris Wray says need to be protected from cyber threats. Just because it's made gathering evidence slightly more difficult is no reason to portray encryption as an evil the nation needs to be saved from.

But Wray's disingenuousness doesn't stop there.

We are all for strong encryption—and contrary to what you might hear, we’re not advocating for “back doors.” We’ve been asking for providers to make sure that they themselves maintain some kind of access to the encrypted data we need, so they can still provide it in response to a court order.

It's still a door -- one that wasn't there previously. Trying to dodge the "backdoor" term by asking service providers to leave themselves a key under the doormat is a weak and transparent effort to pre-distance Wray from any subsequent damage his desires might cause. Wray doesn't want to be the villain if anti-encryption laws are ever enacted. But he won't waste any time availing himself of the access it provides, even as it undermines the security of the nation.

Filed Under: chris wray, doj, encryption, fbi

FISA Court Bans FBI Agent Who Lied To The Court About Carter Page

from the are-you-accepting-applications-for-FISA-court-moderators? dept

The FBI's inability to rein in its agents is causing it more pain. The Inspector General's report released late last year showed agents performed some very selective editing of probable cause to unlawfully prolong the FBI's surveillance of former Trump adviser, Carter Page.

Omitting evidence agents had on hand that Page was not acting on behalf of a foreign power, agents repeatedly extended FISA wiretaps, allowing FBI spooks to continue unjustified domestic surveillance. If you like your Deep State Conspiracy, you can keep it.

But the most probable motivating factor isn't FBI agents' personal dislike of Donald Trump. It's more likely their all-encompassing love of surveillance. The FBI (along with the NSA) has abused the FISA court for years, allowing both agencies to perform domestic snooping under the guise of securing the nation from foreign threats. An agency that's willing to pursue "lying to a federal agent" charges when it's unable to find anything else to go after targets with is one that's willing to engage in surveillance long after it knows continued snooping will fail to uncover evidence of criminal activity.

The FBI has already been told to revamp its warrant request procedures to ensure this abuse doesn't happen again. More significantly, the Inspector General has recommended one FBI official for prosecution after emails were altered to hide wrongdoing from the IG and (presumably) the FISA court. The FISA court went so far as to question nearly everything the FBI has brought to it, given the evidentiary cherry-picking uncovered by the IG's investigation.

In what is possibly a first in FISA court history, the court has banned certain FBI agents from submitting warrant applications to the court. Charlie Savage reports on the latest federal embarrassment.

A secretive federal court on Wednesday effectively barred F.B.I. officials involved in the wiretapping of a former Trump campaign adviser from appearing before it in other cases at least temporarily, the latest fallout from an internal inquiry into the bureau’s surveillance of the aide.

Judge James Boasberg's order [PDF] accepts the FBI's suggested FISA surveillance remedies, but goes further by offering one of the judge's own: the booting of agents shown to have lied to the court to continue surveillance of Carter Page. He also accepted a recommendation from an appointed adversarial party -- FISA expert David S. Kris -- who suggested the FBI agents who submit affidavits sign those affidavits themselves (rather than field supervisors who may have no idea about the particulars of the request). This makes those agents directly responsible for the factual content (or lack thereof) of the assertions made to request (or extend) wiretaps.

Boasberg's ban goes further than the agents implicated in the latest FBI/FISA bullshittery. Anyone else who fucks up will find themselves on Boasberg's ban list as well.

Judge Boasberg’s new order also directed that no Justice Department or F.B.I. officials “under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, reviewing or submitting such applications to the court.”

This won't completely fix the FBI's reluctance to engage honestly with courts. But it will at least head off future abuse of the FISA court for the time being. The only other thing limiting the FBI's malfeasance is Congress itself. Another renewal of surveillance powers is playing out against this backdrop, giving finger-to-the-administration's-wind politicians reasons to bypass a clean reauthorization of (abused) powers. Politically popular reforms may be on the way. While we'd rather see bipartisan recognition that we handed federal agencies way too much power after the 9/11 attacks nearly 20 years ago, we'll also take what we can get -- especially when these restrictions will roll over into the next administration.

Filed Under: 4th amendment, carter page, fbi, fisa court, fisa warrants, rubber stamp, surveillance

Senate May Try To Sneak A Clean Reauth Of Surveillance Powers Into A Must-Pass Coronovirus Bill

from the conspiracy-theorists-v.-surveillance-apologists dept

The USA Freedom Act is up for renewal, bringing with it the usual arguments for preserving the surveillance status quo. But this administration is a little bit different. President Trump remains convinced a Deep State conspiracy exists that is actively trying to unseat him. The FBI added some fuel to the conspiratorial fire by intentionally misleading the FISA court during its investigation of former Trump adviser, Carter Page. The FBI's omission of evidence it had indicating Page wasn't acting as an agent of a foreign power allowed it to continue its surveillance without legal justification.

This has made Trump wary of writing a blank surveillance check. Pervasive surveillance is fine, as long as it doesn't target Trump or his staff. But Trump also firmly believes in sacrificing rights and freedoms on the altar of national security, so there's a new tension on display here.

Attorney General Bill Barr is telling Republicans to listen to Barr's heart and just shove this thing through, no matter what Trump's personal preferences might be.

Attorney General William Barr urged Senate Republicans on Tuesday to renew expiring provisions of a controversial surveillance law that has come under fire from President Donald Trump after its use in investigations into Russian interference in the 2016 election.

And it appears senators are listening… or at least their frontmouth is. Senate Majority Leader Mitch McConnell says it's too important to let expire, much less discuss.

“These tools have been overwhelmingly useful, according to our intelligence advisers, and I hope that when the Senate deals with these expiring provisions in a couple weeks, we’ll be able to continue to have them in law, which will of course provide maximum protection for the American people,” McConnell said.

Maybe some of the tools have been "overwhelmingly useful." But one definitely hasn't. The remodeled Section 215 program -- operating under alterations codified with the USA Freedom Act -- has been a bust. When the NSA wasn't overcollecting records (despite having to request them from telcos specifically and directly), it wasn't doing anything useful with the records it did have. The five years under the USA Freedom Act produced a total of two leads, of which only one led to an actual investigation.

Other Republicans seem willing to push the re-up through with little discussion, promising to fix it in post. Senator Lindsey Graham wants to reauthorize it completely, despite being concerned about the issues raised in the Inspector General's report. Procrastinating on fixing problems first observed more than two decades ago is a pretty lazy take from a party that claims intelligence agencies illegally targeted their president.

A few Republicans are leaning the other way, though, suggesting some more reform of surveillance programs could be on the way.

Rep. Jim Jordan and Sen. Rand Paul have both signaled a desire for some type of reform, with Paul tweeting that he “spoke with Trump,” and that the FISA Court — the secret court which approves certain types of surveillance requests from the intelligence community — should be “forbidden from ever spying on or investigating Americans.”

That's a nice thought, but there's no way the FBI (or DOJ, or any of the other fifteen Intelligence Community components) will agree to stop spying on or investigating Americans. The NSA collections are their goldmine of domestic data/communications that can be searched through handy backdoors marked "foreign surveillance only." Cutting them out of this surreptitious intel supply just isn't going to fly, no matter how many legislators back this curtailment of their surveillance powers.

More tension. With the Coronavirus almost literally hanging over the proceedings, there's a chance a clear reauthorization will be tacked onto legislation addressing this issue to ensure it passes without amendments to the USA Freedom Act or the IC's surveillance powers.

The Trump administration’s request for $2.5 billion to mitigate the coronavirus pandemic is likely to become an unstoppable legislative vehicle — as must-pass legislation that congressional leaders of both parties could use to ram through a reauthorization of the FBI’s call detail records program. Such a move would sidestep the House’s reform effort and instead push through a clean reauthorization of the program.

The Senate, said a Democrat on the House Judiciary Committee, is “threatening to put that clean reauthorization into something like coronavirus funding which would make it impossible to defeat if we don’t come up with a bill here. Pelosi and Schiff will never allow it to expire.”

Some Republican senators want to do some editing of the reauth, mainly for political reasons. Others want zero discussion on the reauthorization and likely would do exactly this to bypass surveillance opponents. It all depends on who gets there first and how much they can add to the Trojan bill before it lands on the president's desk. Given the urgent need to pass a bill to address the spread of the virus, those wanting zero discussion will probably prevail and it will be five more years of business as usual before the next conversation about surveillance programs and powers.

The good news is there seems to be enough people on both sides of the aisle who want to see some reforms enacted so this may end up being one of those rare "must-pass" bills that doesn't have a lot of self-serving garbage attached. We won't know until it's all hashed out, but this is already an anomaly: a bi-partisan agreement that surveillance powers are being abused and some actual oversight should be done by the surveillance state's overseers.

Filed Under: congress, coronavirus, covid19, fbi, mass surveillance, mitch mcconnell, nsa, section 215, surveillance, usa freedom, william barr

FBI And DOJ Personnel Confirm Agents Frequently Fudge Facts When Seeking FISA Warrants

from the respecting-the-fuck-out-of-the-rule-of-law dept

The fallout from the FBI's highly-questionable Carter Page investigation continues. The problems first came to light in an Inspector General's report which found the FBI did a lot of creative writing to continue its surveillance of Page, even after information came to light indicating the former Trump adviser was not operating on behalf of a foreign power.

The IG pointed out the FBI warrants relied on statements that were "inaccurate, incomplete, or unsupported by appropriate documentation." If the FBI did this in the Page investigation, it could easily be assumed the FBI had done it in other cases utilizing the FISA court. The protections erected to protect American citizens from surveillance by their own government were rendered useless by FBI statements the Inspector General was too kind to call lies.

The FBI has been ordered to overhaul its FISA warrant process by the FISA court. The FBI has agreed to do so, while still trying to downplay its serious violations as a long string of one-offs that apparently dates back at least 30 years. A new report from Charlie Savage and Adam Goldman for the New York Times opens with the recounting of the same sort of material omissions by the FBI during its hunt for an alleged Russian mole in the CIA. In that case, agents did the same thing, adding and subtracting evidence to continue unjustified surveillance.

This is, apparently, how the FBI performs its FISA business -- something acknowledged by the many agents and DOJ officials the reporters spoke to about the latest FBI/FISA fiasco.

The problems may be part of a broader pattern in other applications that never receive the same intense scrutiny, according to interviews with more than two dozen current and former F.B.I. agents and Justice Department officials who have worked with national security wiretaps. The system is vulnerable, they said, to lower-level agents suppressing or overlooking evidence that weakens their case when they seek permission to conduct surveillance.

The FBI is a law enforcement bureaucracy. Results are expected and no one gets participation trophies for investigations that go nowhere. To justify expenditures already on the books (and with an eye on funds not yet spoken for), agents have been adjusting narratives to ensure investigations keep running, even when the evidence appears to show there's nothing worth investigating.

The time limits on FISA warrants add to the problem.

F.B.I. agents are also racing against a clock with FISA wiretaps — good for 90 days — which can also leave them open to confirmation bias, former officials said.

Once a wiretap is in place, Justice Department lawyers charged with seeking its renewal begin nagging F.B.I. agents to identify new facts gleaned from the wiretap that could help justify continuing it. But the lawyers are less insistent on finding facts that might instead undercut their suspicion, former officials said.

These all-too-human weaknesses haven't been tempered by DOJ oversight or the FISA court. Since the court isn't adversarial, it's the FBI's word against the FISA court's judgment -- and the Court is often flying blind, cut out of the loop by national security concerns even as it attempts to regulate the business of national security.

Perhaps unsurprisingly, the FBI didn't feel its evidentiary cherry-picking was worthy of discipline. Fortunately, the Inspector General -- who has long complained about the lack of cooperation from the DOJ components he oversees -- referred one FBI official involved in the Carter Page surveillance efforts for criminal investigation.

The problems uncovered in the Page case aren't just an FBI problem. They're a law enforcement problem. Warrants are 90% boiler plate and 10% cherry picking, even during legitimate investigations. When investigations fail to uncover criminal activity, they can be artificially extended by omitting anything that might suggest the target isn't the criminal law enforcement thinks they are. Unlike other criminal cases, FISA evidence is tough to challenge. Whatever isn't obscured by parallel construction is hidden from the defendant (and possibly the judge) as being too "sensitive" to be discussed in open court.

The FBI's habit of abusing its powers isn't going to be reversed just because some of it has been made public. It takes meaningful oversight to make any changes stick. The current Inspector General takes his job seriously, but those above him in Congress often seem more concerned with political point-scoring than actually addressing the root cause of this abuse.

Filed Under: doj, fbi, fisa, fisa court, fisc, warrants