Federal Civil Liberties Board To Issue Scathing Condemnation Of Bulk Metadata Program And The Bogus Defenses Of It

from the another-one dept

We noted a week ago that it seemed odd that President Obama was announcing his (mostly cosmetic) reforms for the intelligence community a week or so before the Privacy and Civil Liberties Oversight Board (PCLOB) had a chance to weigh in. As we noted, the PCLOB is the government organization that should be looking into this issue. The PCLOB had briefed the President a week or so earlier, and that may explain why he sought to get his speech out before their report came out: the report, to be released later today, clearly states that the NSA's bulk metadata collection program is illegal and should end.

In a strongly worded report to be issued Thursday, the Privacy and Civil Liberties Oversight Board (PCLOB) said that the statute upon which the program was based, Section 215 of the USA Patriot Act, “does not provide an adequate basis to support this program.”

The board’s conclusion goes further than President Obama, who said in a speech Friday that he thought the NSA’s database of records should be moved out of government hands but did not call for an outright halt to the program. The board had shared its conclusions with Obama in the days leading up to his speech.

It seems clear that President Obama clearly wanted to get his speech out of the way before this report came out. The PCLOB has found the same basic thing that the President's own task force (and Judge Leon) found: that the bulk data collection on pretty much everyone's phone call data had been almost entirely useless (while violating everyone's privacy). According to the Washington Post:

“We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation,” said the report, a copy of which was obtained by The Washington Post. “Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”

The full report, which sounds like it will be well worth reading, clearly appears to recognize that the NSA and the FISA Court reinterpreted the law in secret, in a manner that directly conflicts with the plain reading of the law -- exactly what Senators Ron Wyden and Mark Udall have been screaming about for years:

But the board found that it is impossible that all the records collected — billions daily — could be relevant to a single investigation “without redefining that word in a manner that is circular, unlimited in scope.” Moreover, instead of compelling phone companies to turn over records already in their possession, the program requires them to furnish newly generated call data on a daily basis. “This is an approach lacking foundation in the statute,” the report said.

“At its core, the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations,” the report said. This approach, it said, “at minimum, is in deep tension with the statutory requirement that items obtained through a Section 215 order be sought for ‘an investigation,’ not for the purpose of enhancing the government’s counterterrorism capabilities generally.”

Importantly, unlike the task force, the PCLOB calls bullshit on the oft-repeated claim that a program like the Section 215 program would have prevented 9/11. This has been debunked multiple times, but here is a government organization doing the debunking:

The board rejected the contention made by officials from Obama on down that the program was necessary to address a gap arising from a failure to detect an al Qaeda terrorist in the United States, Khalid al-Mihdhar, prior to the 2001 attacks. Mihdhar was in phone contact with a safehouse in Yemen, and though the NSA had intercepted the calls, it did not realize at the time that Mihdhar was calling from San Diego.

“The failure to identify Mihdhar’s presence in the United States stemmed primarily from a lack of information sharing among federal agencies, not of a lack of surveillance capabilities,” the report said, noting that in early 2000 the CIA knew Mihdhar had a visa enabling him to enter the United States but did not advise the FBI or watchlist him. “...This was a failure to connect the dots, not a failure to connect enough dots.”

Second, the report said, the government need not have collected the entire nation’s calling records to identify the San Diego number from which Mihdhar made his calls. It asserted that the government could have used existing legal authorities to request from U.S. phone companies the records of any calls made to or from the Yemen number. “Doing so could have identified the San Diego number on the other end of the calls,” though, it noted, the speed of the carriers’ responses likely would vary.

The report also apparently calls bullshit on the claim made by some, including Senator Dianne Feinstein, that the program was necessary in stopping the plot to bomb the NYC subway.

I'm sure we'll have more on this report, but it's yet another condemnation of the program which the President is trying to keep going, while pretending he's ending it.

Filed Under: civil liberties, nsa, oversight, patriot act, pclob, section 215, surveillance

USTR Refuses To Show Up For Senate Hearing On Fast Track

from the how's-that-for-working-closely-with-congress dept

One of the biggest concerns that we've heard from Congress about the USTR's desire for fast track authority is the fact that the USTR has been positively dismissive of Congressional attempts at transparency. While the USTR pretends that getting fast track actually means great cooperation with Congress, apparently USTR boss Michael Froman decided to bend over and tell Congress to kiss his ass by not even bothering to show up for the Senate's hearing on fast track authority.

Several committee members said they were puzzled and disappointed that USTR Michael Froman passed on an opportunity to convince some skeptical lawmakers they need to establish Fast Track authority for President Barack Obama’s priority Trans-Pacific Partnership (TPP) agreement.

“I wish they were here,” said Portman, a member of the committee and a former US trade representative under President George W. Bush.  “It’s important.”

This shows the kind of disdain that the USTR appears to hold Congress in. Congress remains a mere nuisance in the USTR's ongoing efforts to put forth the best agreement possible for a bunch of crony friends who will soon be offering USTR staffers new jobs as lobbyists.

If the USTR can't even bother to show up to argue for fast track, while arguing how important it is, perhaps it suggests that Congress really ought not to give the USTR that kind of power. So far, the USTR has not been transparent. It has directly lied, repeatedly, to the American public about what it's trying to do, and when given the chance to explain itself to the Senate committee in charge of the very bill it wants to give it more power over the TPP and TTIP/TAFTA, it blows it off.

Filed Under: congress, fast track authority, international trade, michael froman, oversight, senate, tpp, trade promotion authority

Congressional Reps Ask Bruce Schneier To Explain To Them What The NSA Is Doing, Because The NSA Won't Tell Them

from the look-at-that dept

This is both depressing and good news at the same time. A group of Congressional Representatives (who are among the most critical of the NSA) apparently asked Bruce Schneier to come brief them on what the NSA is doing because the NSA won't tell them:

This morning I spent an hour in a closed room with six Members of Congress: Rep. Logfren, Rep. Sensenbrenner, Rep. Scott, Rep. Goodlate, Rep Thompson, and Rep. Amash. No staffers, no public: just them. Lofgren asked me to brief her and a few Representatives on the NSA. She said that the NSA wasn't forthcoming about their activities, and they wanted me -- as someone with access to the Snowden documents -- to explain to them what the NSA was doing. Of course I'm not going to give details on the meeting, except to say that it was candid and interesting. And that it's extremely freaky that Congress has such a difficult time getting information out of the NSA that they have to ask me. I really want oversight to work better in this country.

There's really not much more to be said about that, other than it shows what a complete joke it is for anyone to claim that Congress has real oversight over the NSA. It's great that these Reps would reach out to someone with qualifications like Schneier to have this kind of conversation. It's depressing that such a thing was necessary.

Filed Under: bob goodlatte, bruce schneier, congress, jim sensenbrenner, justin amash, nsa, oversight, security, surveillance, zoe lofgren

The GAO's Office In The NSA Is Collecting Dust Because Congress Hasn't Asked For A Report In Years

from the oh,-you-mean-this-'stringent-oversight?' dept

The NSA's defenders go to great lengths to convince everyone (the public and many angered legislators) that it operates under a tremendous amount of oversight -- so much though that even THINKING about abusing its capabilities is out of the question. The leaks have repeatedly proven this assertion false as members of the supposedly stringent oversight continue to state their shock and dismay over what's been uncovered.

Steven Aftergood at Secrecy News points out there's another layer of oversight that's gone unutilized for years as well.

Years ago, the Government Accountability Office, the investigative arm of Congress, conducted routine audits and investigations of the National Security Agency, such that the two agencies were in “nearly continuous contact” with one another. In the post-Snowden era, GAO could perform that oversight function once again.

“NSA advises that the GAO maintains a team permanently in residence at NSA, resulting in nearly continuous contact between the two organizations,” according to a 1994 CIA memorandum for the Director of Central Intelligence.

Why haven't we read any damning reports from the GAO about the NSA's abuses over the past several years? Well, apparently it's because no one wants to know.

At a 2008 Senate hearing, Sen. Daniel Akaka asked the GAO about its relationship with NSA. “I understand that GAO even had an office at the NSA,” Sen. Akaka noted.

“We still actually do have space at the NSA,” replied David M. Walker, then-Comptroller General, the head of the GAO. “We just don’t use it. And the reason we don’t use it is we are not getting any requests [from Congress]. So I do not want to have people sitting out there twiddling their thumbs.”

There's that oversight at work again. Idle for "years" by 2008 and no signs that anything has occurred since then. The GAO maintains an office (currently unstaffed) within the NSA but because if no one's asking any questions, it's not providing any answers.

If there's something the GAO does well, it's track down internal issues and problematic behavior. Unfortunately, it's limited to recommending courses of action rather than mandating any serious changes, meaning its follow-up reports are generally filled with descriptions of how these audited entities failed to pursue the recommendations and (often) performed considerably worse during the interim.

On the other hand, the GAO's reports do at least make it clear to the American public exactly what's wrong with nearly everything the government spends its money on. It's very limited accountability that does nothing to change the underlying agency ethos, but at least it prevents them from pretending these problems don't exist.

Being in-house should naturally raise concerns about the GAO's objectivity. Unfortunately, considering the nature of the agency's intelligence work, there's probably no way around that. But the first step in renewing this layer of oversight is to remind Congress of its existence. It has the power to order a GAO investigation, but until it does, the office will continue to gather dust and the NSA's internal problems will worsen -- or at least go unnoticed by Congress.

Aftergood points out that James Clapper has ordered the agency to be responsive to GAO inquiries, apparently in the eventuality that it ever gets back to the business of asking questions.

In Intelligence Community Directive 114, issued in 2011 following years of stagnation in GAO oversight of intelligence, DNI James Clapper instructed U.S. intelligence agencies to be responsive to GAO, at least within certain boundaries.

“It is IC policy to cooperate with the Comptroller General, through the GAO, to the fullest extent possible, and to provide timely responses to requests for information,” the DNI wrote.

Of course, Clapper's definition of "responsive" probably differs greatly from the normally-accepted usage of the word. Having Clapper condone cooperation with an agency that exists to find flaws and misconduct is a bit underwhelming. The NSA's top men have been less than cooperative in the many hearings since the Snowden leaks began, most often recycling old talking points and insisting on discussing it in the context of one program (Section 215) when everyone else is clearly focused on another area.

Still, whatever the GAO finds (that somehow doesn't get blotted out with black ink) will provide more useful information for its Congressional overseers. This certainly shouldn't be used in place of more independent oversight committees, but it should prove to be a valuable addition. The real question Congress needs to answer is why it has ignored this option for so many years.

Filed Under: congress, gao, nsa, oversight, surveillance

Committee That Grilled Guardian Editor Over Snowden Documents Won't Get To Question Intelligence Boss

from the of-course-not dept

We recently wrote about the ridiculous performance put on by the UK Parliament in quizzing the editor of the Guardian, Alan Rusbridger, concerning the legality of reporting on the Snowden leaks. Now, it appears that the same committee sought to hold a hearing with the head of the British MI5 intelligence agency, Andrew Parker, in order to see if he could back up the claims that the Guardian's reporting had put UK citizens in danger. However, that's not happening. UK officials won't let Parker testify in front of the same committee. Why? Because.

The home secretary, Theresa May, told the home affairs committee chairman, Keith Vaz, that she had rejected the request for the spy chief to give evidence because his appearance would "duplicate" the existing oversight provided by the prime ministerially appointed intelligence and security committee.

And, indeed, it is true that the intelligence and security committee held a hearing on the topic not so long ago -- but, like the Congressional counterparts, it was almost entirely softballs allowing them to spew rhetoric, rather than answer serious questions concerning the intelligence community.

Even worse, it appears that the UK leadership is working extra hard to keep trying to pass a hot potato to make sure no one has to testify on this particular issue:

A similar request for Kim Darroch, the national security adviser, to give evidence to the committee's inquiry into counter-terrorism was also rejected in a letter from David Cameron. He said "it was not a good idea" because Darroch's role focused on providing private advice to him and the national security council and his appearance would "set a difficult precedent".

The prime minister said it should be left to the home secretary to give evidence to the MPs on their concerns about counter-terrorism and the Guardian's disclosures of mass digital surveillance by GCHQ and the US national security agency.

The decision prompted a furious reaction from Vaz, who said: "The prime minister has suggested that the home secretary should come before us to answer our questions and Theresa May is suggesting that it is a matter for the intelligence and security committee. We cannot play pass the parcel on the issue of accountability on these important issues.

While the US process has been something of a joke, at least Congress has been able to get James Clapper, Keith Alexander and others out to testify a bunch of times on these issues. Some in the UK, however, would apparently like to sweep the whole issue under the rug.

Filed Under: andrew parker, edward snowden, mi5, oversight, theresa may, uk parliament

Rep. Peter King's Office Suggests NPR Producer Lied About Being Detained At Border By DHS

from the gotcha-moment dept

We've written a few times now about how a producer for On the Media, Sarah Abdurrahman and many of her friends and family (all of whom are American citizens), were detained by US customs and border patrol (CBP) officials at the US Canadian border for many hours with no explanation. Their treatment was horrific, and worse, no one at DHS seems to have any interest in explaining what happened or why. On the Media then created a cool crowdsourcing tool asking people to call their Congressional representatives to try to get answers.

The latest report involves some of the people who have called and what sort of response they got back. Not surprisingly, so far, not much has come of the effort, as no one in Congress seems particularly interested. However, I did want to call out one particular interaction, involving Rep. Pete King's "new media guy" who a caller reached. The caller, Philip Elmer-Dewitt, explained Sarah's story, and King's staff apparently got confrontational. According to the caller:

And he said:

"Why should I believe this just because someone reported it?"

And I kinda got my back up and said:

"So, are you calling the NPR producer a liar?"

And he said:

"Oh! So you got your 'gotcha moment' now!"

And he was a little hostile, so I backed off a bit and said:

"No, it's a journalistic experiment. We're trying to elicit information. We're trying to learn what the policy is."

But, basically his answer was that Sarah should call her representative and that's all there was to it.

Of course, it's worth remembering that Rep. Pete King famously was very supportive of IRA terrorists, but now argues that Ed Snowden and Glenn Greenwald are "traitors" and even that Greenwald should be prosecuted (based on completely false claims that King appears to have made up himself). He's also claimed that calling the NSA's activities "snooping" or "spying" amounts to slander. Now, apparently, his staff are getting confrontational with constituents asking rather basic questions about how DHS is treating American citizens at the border. Makes you wonder whom Rep. Peter King actually thinks he's representing.

Filed Under: cbp, customs and border patrol, detention, dhs, journalism, oversight, peter king, sarah abdurrahman

Wall Street Journal Columnist Repeatedly Gets His Facts Wrong About NSA Surveillance

from the journalism! dept

Wall Street Journal columnist L. Gordon Crovitz wrote a misleading and error-filled column on NSA surveillance Monday based on documents obtained by EFF through our Freedom of Information Act lawsuit. Since we’ve been poring over the documents for the last week, we felt it was important we set the record straight about what they actually reveal.

Crovitz:

Edward Snowden thought he was exposing the National Security Agency's lawless spying on Americans. But the more information emerges about how the NSA conducts surveillance, the clearer it becomes that this is an agency obsessed with complying with the complex rules limiting its authority.

That’s an interesting interpretation of the recently released documents, given that one of the two main FISA court opinions released says the NSA was engaged in “systemic overcollection” of American Internet data for years, as well as committed “longstanding and pervasive violations of the prior orders in this matter.” The court summarized what it called the government’s “frequent failures to comply with the [surveillance program’s] terms” and their “apparent widespread disregard of [FISA court imposed] restrictions.”

Crovitz:

[The documents] portray an agency acting under the watchful eye of hundreds of lawyers and compliance officers.

Again, this is not what the actual FISA court opinions portray. “NSA’s record of compliance with these rules has been poor,” and “those responsible for conducting oversight failed to do so effectively,” FISA court Judge Bates wrote in the key opinion released last week. In another FISA court opinion from 2009, released two months ago, the NSA admitted that not a single person in the entire agency accurately understood or could describe the NSA’s whole surveillance system to the court.

It's true that the number of compliance officers at the NSA has increased in recent years, but as the Washington Post reported, so has the number of privacy violations.

Crovitz:

These documents disprove one of Mr. Snowden's central claims: "I, sitting at my desk, certainly had the authority to wiretap anyone, from you or your accountant, to a federal judge, to even the president if I had a personal email," he told the Guardian, a British newspaper.

Here, Crovitz is setting up a strawman. Snowden wasn’t talking about the NSA’s legal authority, but their technical authority to conduct such searches. Snowden was likely referring to XKeyScore, which the Guardian reported allowed NSA analysts to “search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals.”

We actually have a specific example that proves Snowden’s point. As the New York Times reported in 2009, an NSA analyst “improperly accessed” former President Bill Clinton’s personal email. More recently, we’ve learned that the NSA analysts abused the agency vast surveillance powers to spying on ex-spouses or former lovers.

Crovitz:

The NSA also released the legal arguments the Justice Department used in 2006 to justify collection of phone metadata-the telephone number of the calling and called parties and the date, time and duration of the call.

...

Metadata collection is about connecting the dots linking potential terrorist accomplices. The Clinton administration created barriers to the use of metadata, which the 9/11 Commission concluded let the terrorists avoid detection. Since then, metadata has helped stop dozens of plots, including an Islamist plan to blow up the New York Stock Exchange in 2008.

Again, not true. As Intelligence Committee members Sen. Ron Wyden and Sen. Mark Udall have continually emphasized, there is “no evidence” that the phone metadata program is effective at stopping terrorists. Independent analyses have come to the same conclusion. When called out on that number in a Congressional hearing, even NSA Director Keith Alexander admitted the number was exaggerated.

The only “disrupted plot” the NSA can point to that was solely the work of the phone metadata program was a case where a man from San Diego sent a few thousand dollars to the al-Shabaab organization in Africa in 2008. In other words, the metadata did not disrupt an active terrorist plot inside the US at all.

Crovitz:

The declassified brief from 2006 made clear that such metadata "would never even be seen by any human being unless a terrorist connection were first established," estimating that "0.000025% or one in four million" of the call records "actually would be seen by a trained analyst."

The major 2009 FISA court opinion released in September, that apparently Mr. Crovitz either didn’t read or conveniently left out of his piece, showed that the NSA had been systematically querying part of this phone records database for years for numbers that the agency did not have a “reasonable articulable suspicion” were involved in terrorism—as they were required to have by the FISA court. Of the more than 17,000 numbers that the NSA was querying everyday, the NSA only had “reasonable articulable suspicion” for 1,800 of them.

The FISA court concluded, five years after the metadata program was brought under a legal framework, that it had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall…regime has never functioned effectively.”

These documents do not paint a picture of an agency with a clean privacy record and a reputation for following court rules, as Mr. Crovitz claims, and in fact, they show why it is vital Congress passes substantive NSA reform immediately. You can go here to take action.

Reposted from EFF

Filed Under: ed snowden, gordon crovitz, nsa, oversight, surveillance

Less Than 20% Of Americans Believe That There's Adequate Oversight Of The NSA

from the that-story's-not-working dept

One of the key responses from the NSA and its defenders to all of these Snowden leaks is that there is "rigorous oversight" of the NSA by the courts and Congress. Of course, that talking point has been debunked thoroughly, but NSA defenders keep trotting it out. It appears that the public is not buying it. At all. A recent poll from YouGov found that only 17% of people believe that Congress provides "adequate oversight" on the spying of Americans. A marginally better 20% (though, within the 4.6% margin of error, so meaningless difference really) felt that Congress provides adequate oversight of the NSA when it comes to collecting data on foreigners. Basically, that part of the NSA story just isn't particularly believable in light of everything that's come out. Oh, and people are paying attention to the news. A full 87% had heard something about the spying on foreign countries -- with only 14% thinking that such a program has helped US interests abroad.

Oh, and it gets worse. According to a different study, the more informed people are about the NSA, the less they like what the NSA is doing. The NSA has been insisting if people could only understand more about its actions they'd be much more comfortable with the agency's actions, but this study suggests that's not quite true either.

Neither of these findings should come as a shock to most people outside of the NSA, but for our friends over at the NSA reading this, it would appear that your talking points aren't working. Perhaps, next time, try (1) telling the truth and (2) not trampling all over the Constitution.

Filed Under: nsa, oversight, public opinion, surveillance

Inspector General For Intelligence Community Rejects Congress' Request To Investigate The NSA

from the oversight! dept

Remember, kids, how the NSA and its defenders keep talking about how much oversight there is? One part of that is the inspector general who is supposed to make sure that the NSA isn't going rogue. Except... now that the Judiciary Committee asked the intelligence community Inspector General Charles McCullough to investigate the NSA's dragnet data collections, he's told them he just can't do it, according to a recent report at Politico.

“At present, we are not resourced to conduct the requested review within the requested timeframe,” wrote McCullough, before adding he and other agency inspectors general are weighing now whether they can combine forces on a larger probe.

Not surprisingly, those who asked for the help, are not pleased. Senator Pat Leahy appears particularly angry about this:

That response didn’t sit well with Leahy, who raised the letter during a scathing speech on the Senate floor Wednesday that slammed the intelligence community for a “trust deficit.” Leahy also emphasized his belief that “the American people are rightly concerned that their private information could be swept up into a massive database, and then compromised.”

While it may be true that McCullough does not have significant resources to do this kind of investigation, that really just highlights the problem. There clearly is not sufficient oversight over the NSA's activities. The fact that the very person in charge of this kind of investigation, when told to do it by Congress, says he can't, should demonstrate just how little actual oversight there is. Perhaps instead of putting more money towards stopping the next Ed Snowden, the Senate should give that money to the inspector general to investigate the NSA and encourage the next Ed Snowden to come forward.

Filed Under: charles mccullough, inspector general, nsa, nsa surveillance, oversight, pat leahy, senate judiciary committee

NSA Officials Admit: 'We're Screwed Now' After Feinstein's Statement

from the maybe-shouldn't-have-pushed-the-limits-so-much dept

While we're a bit cynical about the reasoning behind Senator Dianne Feinstein's sudden "conversion" to realizing that perhaps the NSA is out of control with its spying, and needs greater oversight and control, apparently her statement sent chills through officials at the NSA. After all, Feinstein was the strongest Senate defender of the NSA's activities -- to the point that we'd suggested in the past a somewhat co-dependent relationship. However, it sounds like she just turned on the NSA and has suggested that perhaps it needs to go to rehab. Shane Harris and John Hudson at Foreign Policy's The Cable blog have the details:

"We're really screwed now," one NSA official told The Cable. "You know things are bad when the few friends you've got disappear without a trace in the dead of night and leave no forwarding address."

Of course, that's the sort of crazy hyperbole that the NSA is increasingly known for. Feinstein hasn't "disappeared." She's just finally pointed out what many of the rest of us have been arguing for ages: that the NSA is out of control, going way beyond what it's authorized to do, and has little real oversight, in part because of its regular practice of misleading pretty much everyone over the details and extent of its surveillance programs.

Even more important, the statement from that NSA official shows that they still don't recognize what got them into this mess. If the NSA had actually been upfront about what it was doing with others, perhaps it wouldn't find itself in this mess today. It makes you wonder if the NSA is so focused on being super secret about its operations to the outside world that it couldn't distinguish enough about being transparent to government oversight bodies as well.

Filed Under: dianne feinstein, nsa, nsa surveillance, oversight