NSA Used FBI Abuses To Justify Metadata Collection

from the another-bad-argument,-'bolstered'-by-worse-tactics dept

James Clapper's office has released another batch of documents in a grudging nod to the transparency forced on it by the ACLU's FOIA requests (and subsequent lawsuit). Mike covered one yesterday that detailed the NSA's collection of location data, something it had previously assured legislators hadn't actually happened. Well, it did happen but the agency excused it as a "test," something it felt the FISA bulk records orders allowed it to do. Tellingly, it informed officials after the fact, rather than seeking explicit approval beforehand.

Beyond that, these documents are rather light on details. If I were in Clapper's position, these are the sorts of documents I'd release -- ones that nod toward openness but provide as little information as possible. Most of what's been released is memos issued to intelligence committees stating that the NSA has fixed its problems (the end-to-end reviews) and is behaving itself. The memos also indicate that the NSA has a very bad habit of doing things first and seeking permission or forgiveness later -- "playing to the edges of the box," as it were.

That's not to say there's nothing useful, informative or revealing in this release, but what is there is very limited, and a handful of the memos are redundant. All in all, it's a very safe document release.

One of the more interesting bits appears in a joint statement issued in October, 2009 by the National Counterterrorism Center and the NSA in support of the PATRIOT Act reauthorization.

While defending the Section 215 collections, the following points are listed as evidence of the program's worthiness.

FBI representatives have indicated to NSA that the telephone contact reporting has provided leads and linkages to individuals in the United States with potential ties to terrorism who may not have otherwise been known to or identified by the FBI. In Calendar Year 2008, telephone numbers tipped from the NSA business records results either added value or led to:

• the opening of over 240 Threat Assessments
• the opening of over 100 Preliminary Investigations
• the opening of approximately 15 Full Investigations
• 180 National Security Letters issued.

That both the NSA and FBI actually believe "threat assessments" and NSLs hold any worth indicates there's been a little too much Kool-Aid in the interdepartmental water cooler, to say nothing about the fact that 100 "preliminary investigations" resulted in only 15 "full investigations."

The ACLU's rundown of the FBI's abuse of its powers had this to say about the uselessness of "threat assessments."

In 2008, the US Attorney General granted the FBI permission to utilize investigations called "assessments" which required no predicate and granted the agency power to conduct these as though they were actual investigations and use all the tools normally available. The FBI was only too happy to take the AG up on his offer.

In a two-year period from 2009 to 2011, the FBI opened over 82,000 “assessments” of individuals or organizations, less than 3,500 of which discovered information justifying further investigation.

To credit the NSA with "tipping" leads that resulted in "assessments" is hardly an indicator of the program's usefulness. The FBI's enthusiasm for exploiting this "tool" is well documented. Handing the FBI a few random pages from the nearest phonebook would likely have resulted in the same number of "assessments" over that same time period.

The FBI has a fondness for National Security Letters as well. These allow agents to bypass legal safeguards when seeking info -- little things like warrants, subpoenas and court orders. The FBI's abuse of NSLs is also well-documented.

A 2007 Inspector General audit revealed that from 2003 through 2005 the FBI issued over 140,000 National Security Letters —secret demands for certain account information from telecommunications companies, financial institutions, and credit agencies that require no judicial approval — almost half of which targeted Americans.

The FBI's abuse of the NSLs goes even further than the fact that the agency nearly continuously wrote itself blank surveillance checks for three straight years. The ACLU notes that the agency so thoroughly abused the program that it truly had no idea how many letters had been issued. An audit of the program also found that 60% of the audited files had no supporting documentation and that 22% contained at least one unreported legal violation.

And when the agency's NSL abuse came under fire, it switched to exigent circumstance letters, Post-It notes or showing up at the telco offices and reading search results over employees' shoulders.

The NSA using these horrendously abused processes as "proof" of the bulk records collection's worth is just as ridiculous as someone pointing to overflowing prisons as proof minimum sentencing standards are an effective deterrent of criminal activity.

The paper also makes the claim that having these records would have prevented the 9/11 attacks which, if nothing else, gives some idea how long that particular (bad) argument has been in play. It points to the fact that it couldn't collect domestic phone data at that point as the essential missing element, while omitting any mention of the CIA's failure to put Khalid al-Mihdhar on a watch list, which allowed him to return to the US unnoticed after he fell off the agency's radar during a visit to the Middle East.

In all likelihood, this "essential element" would have been just another dot for the NSA to connect. Whether or not it would have made the connection in time to prevent the attack is open to speculation. NSA heads and its defenders believe it would have, but there's been no evidence produced so far that would indicate the 215 programs do anything more than create another set of dots.

The key element would have been preventing al-Mihdhar from boarding that plane on 9/11. If the CIA had placed him on a watch list after it lost track of him, this could very well have been prevented as any attempts to travel would have triggered a response from security and intelligence agencies.

Finally, there's this bizarre redaction, which directly follows discussion of the tracking and arrest of a suspected al-Qaeda member.


Given the context, this missing word can't be anything other than al-Qaeda ("continues their aspirations and attempts to achieve another spectacular attack in the United States..."). There's that over-classification and opacity at work again, redacting a word that can be inferred by context and which would come as no surprise to any al-Qaeda members who might be viewing the DNI's recently released documents.

Filed Under: exigent letters, metadata, national security letters, nsa, surveillance

The ACLU Would Like To Remind You That The NSA Isn't The Only Three-Letter Agency Abusing The Rights Of Americans

from the the-NSA-gets-all-the-'glory'-while-the-FBI-has-all-the-fun dept

The ACLU would like to remind Americans that, while the NSA has been truly awful, it hasn't completely cornered the market on overreaching surveillance programs and civil liberty trampling. As it points out, the initial leak from Ed Snowden dealt with a bulk phone records court order that was issued jointly for the NSA AND the FBI.

The FBI may seem like a silent partner these days, but it too has its own history of excesses, abuses and overreach.

Since 9/11, the FBI has once again transformed itself into a domestic intelligence agency with the unprecedented power to peer into the lives of ordinary Americans and secretly amass data about people not suspected of any wrongdoing. Through laws passed by Congress, such as the PATRIOT Act, as well as revisions to internal investigative guidelines meant to curb the abuses of the past, the FBI now has the authority to investigate and collect information on Americans without any evidence that they've committed a crime.

With so much power, the result was predictable.

Over the last 12 years, FBI agents have abused the new powers they were given to unfairly target immigrants, racial and religious minorities, and political dissidents for surveillance, infiltration, investigation, and disruption. Specifically, the ACLU has uncovered and documented persistent abuses, including warrantless wiretapping, racial and religious profiling, biased counterterrorism training materials, politically motivated investigations, abusive detention and interrogation practices, and misuse of the No-Fly List to recruit informants.

There's a ton of info in the ACLU's report, and while most of it isn't new, it's still a very thorough breakdown of systemic abuse in the investigative agency. Unlike the NSA, the FBI doesn't necessarily have to take a hands-off approach to Americans or their data. If anything, the FBI is a bigger threat to American citizens and their civil liberties because its domain is primarily the US.

The FBI and NSA are nearly indistinguishable in terms of post-9/11 behavior, as the paper's introduction points out.

[M]odern technological innovations have significantly increased the threat to American liberty by giving today’s FBI the capability to collect, store, and analyze data about millions of innocent Americans. The excessive secrecy with which it cloaks these domestic intelligence gathering operations has crippled constitutional oversight mechanisms. Courts have been reticent tochallenge government secrecy demands and, despite years of debate in Congress regarding the proper scope of domestic surveillance, it took unauthorized leaks by a whistleblower to finally reveal the government’s secret interpretations of these laws and the Orwellian scope of its domestic surveillance programs.

There is evidence the FBI’s increased intelligence collection powers have harmed, rather than aided, its terrorism prevention efforts by overwhelming agents with a flood of irrelevant data and false alarms. Former FBI Director William Webster evaluated the FBI’s investigation of Maj. Nadal Hasan prior to the Ft. Hood shooting and cited the “relentless” workload resulting from a “data explosion” within the FBI as an impediment to proper intelligence analysis.

Lack of oversight? Excessive secrecy? Too much data? The FBI has all the same bad traits as its security counterpart.

Here's some more from the report.

In 2008, the US Attorney General granted the FBI permission to utilize investigations called "assessments" which required no predicate and granted the agency power to conduct these as though they were actual investigations and use all the tools normally available. The FBI was only too happy to take the AG up on his offer.

In a two-year period from 2009 to 2011, the FBI opened over 82,000 “assessments” of individuals or organizations, less than 3,500 of which discovered information justifying further investigation.

Beyond these 82,000 fishing expeditions, the FBI also misused National Security Letters in order to bypass the very minimal restrictions its data collection efforts were subjected to.

A 2007 Inspector General audit revealed that from 2003 through 2005 the FBI issued over 140,000 National Security Letters —secret demands for certain account information from telecommunications companies, financial institutions, and credit agencies that require no judicial approval — almost half of which targeted Americans.

The FBI's abuse of the NSLs goes even further than the fact that the agency nearly continuously wrote itself blank surveillance checks for three straight years. The ACLU notes that the agency so thoroughly abused the program that it truly had no idea how many letters had been issued. An audit of the program also found that 60% of the audited files had no supporting documentation and that 22% contained at least one unreported legal violation.

A second audit report in 2008 failed to find any signs of improvement, but it did uncover signs of an agency trying to cover its tracks.

High-ranking FBI officials improperly issued eleven “blanket National Security Letters” in 2006 seeking data on 3,860 telephone numbers, in an effort to hide that the data had been illegally collected with “exigent letters."

"Exigent letters" being only one of the means the FBI used to illegally acquire data. The report goes on to mention the infamous Post-It notes and other collection methods… like reading over a telco employee's shoulder.

It's all in this report. The spying on journalists. The racial profiling. The investigations of activist groups. The ACLU even makes a note of a report that shows the spirit of J. Edgar still lives on in certain agents.

In a document that reads as if it were written during the Hoover era, an FBI agent describes the peace group Catholic Worker as having “semi-communistic ideology.”

Post-9/11, the agency became unstoppable, even considering the excesses of the Hoover era.

During the FBI’s relentless investigation of the 2001 anthrax attacks, for instance, The New York Times reported that several people falling under suspicion lost jobs, were placed on watch lists, had citizenship and visa applications denied, and personal relationships destroyed. The FBI publicly hounded bioterrorism researcher Steven Hatfill for over a year, following him so closely with up to eight FBI surveillance cars that one of them once ran over his foot. FBI officials later acknowledged Hatfill was completely innocent, and the Justice Department paid him $4.6 million in damages.

The FBI then turned its sights on another researcher, Bruce Ivins, who suffered a mental breakdown and committed suicide.

The FBI, like the NSA, is also very proud of its haystacks and haystack-building programs.

An FBI budget request for fiscal year 2008 said the FBI had amassed databases containing 1.5 billion records, and two members of Congress described documents predicting the FBI would have 6 billion records by 2012, which they said would represent “20 separate ‘records’ for each man, woman and child in the United States.”

And despite all of this data, terrorists continued to slip through the FBI (and NSA's) grasp. The House Homeland Security Committee pointed out shortly after the Boston Bombing that Tamerlan Tsarnaev was the sixth terrorist attack by a "person previously known to the FBI or CIA."

And as the FBI seeks out new sources of data to add to the billions of records it's already drowning in, it's continuing to lie and obfuscate in order to grab more and hold onto it longer.

A tax fraud prosecution in Arizona revealed that the FBI has been failing to inform judges about the particularly invasive nature of “Stingray” devices when it seeks to obtain court orders for location information…

The ACLU of Northern California obtained Justice Department documents showing the FBI has been obtaining pen register orders—which authorize the government to obtain telephone numbers called from and received by a particular mobile device based on a relevance determination—to obtain location data using IMSI catchers, without telling the magistrate judges that this invasive technology would be used.

As was stated earlier, much of what's included here has been uncovered before, but the ACLU's comprehensive report leaves no stone unturned (and no footnote unlinked) in its takedown of an agency whose actions over the last decade have become increasingly abusive.

The FBI doesn't deserve to be let off the hook simply because the national debate on civil liberties and safety is mainly focused on the NSA's actions. It has proven to be just as careless in regards to respecting the rights of Americans and just as bold in its overreach.

Filed Under: abuses, civil liberties, domestic surveillance, exigent letters, fbi, national security letters, nsa, surveillance
Companies: aclu

Former FBI Lawyer Who Oversaw Years Of Fourth Amendment Violations By The Agency Nominated For Federal Judge Seat

from the 'lifelong-position-of-power'-is-the-new-'disciplinary-action' dept

So, this is the way the system works, apparently. If you're linked with nearly a decade's worth of surveillance abuses, not only won't you be punished for your malfeasance, but you'll be promoted to a lifelong position of greater power.

Spencer Ackerman at The Guardian has compiled an in-depth look at Valerie Caproni, former top lawyer for the FBI and current nominee for a federal judge position in the Southern District of New York. Nothing Ackerman's dug up looks promising for plaintiffs running privacy-related cases through this district court if she's approved.

A 2010 report by the Department of Justice's internal watchdog found that the FBI misused a type of non-judicial subpoena known as an "exigent letter" to improperly obtain more than 5,500 phone numbers of Americans.

"The FBI broke the law on telephone records privacy and the general counsel's office, headed by Valerie Caproni, sanctioned it and must face consequences," said John Conyers, then the chairman of the House judiciary committee, in April 2010, who called for then-FBI director Robert Mueller to fire her.

Conyers said he was "outraged" that the FBI invented "exigent letters" to more easily obtain phone records, and intimated Caproni was responsible for it. "It's not in the Patriot Act. It never has been. And its use, perhaps coincidentally, began in the same month that Ms Valerie Caproni began her work as general counsel," Conyers said in a hearing that month. The FBI stopped using exigent letters in 2006.

"Exigent circumstance letters" (ECLs) were the end-around the FBI used when its National Security Letters failed to pry loose the phone data it was looking for, or more frequently, when it was deemed that following proper procedure would just take too long. Not that these NSLs were any less abusive -- they were often used to access data in violation of the "limits" built into the PATRIOT Act. Apparently, the NSL loophole frequently wasn't big enough or fast enough, at which point the FBI would craft "exigent letters." These were supposed to be followed up by official NSLs, but the FBI often found it was easier to just not do that.

The nadir was reached when the FBI decided to replace the entire legal process for obtaining this data with Post-It notes and requests made over the phone. All of this occurred under Caproni's watch.

Caproni doesn't seem to care much for privacy advocates either, considering them to be nothing but ignorant noise to be filtered out.

At one meeting in 2007, Graves recalled, "Caproni said she thought civil libertarians were wasting their time complaining about the NSL [national security letter] powers because the government could just obtain all that information and more through a 215 order by the Fisa court or through a grand jury subpoena issued by a single federal prosecutor and because those orders are secret we would never know. When pressed about that, she insisted that going around the limits on the NSL powers by using 215 or grand jury subpoenas was no big deal and a perfectly permissible use of those powers."

As has been clearly detailed over the years and confirmed by these leaks, giving an entity this sort of power guarantees it will be abused. Caproni's tenure began during the Bush administration and she followed that administration's lead in exploiting Section 215 to its fullest. The FBI's tactics didn't really have to change with the election of a new president, as he went on to expand the powers granted by the PATRIOT Act. Caproni's actions and justifications have fit in perfectly with the government's over the past nine years, despite a regime change.

Caproni is Obama's nominee for this district court seat, which makes sense as his administration has already forgiven her for her agency's past violations. This was done via a secret ruling issued by the Office of Legal Counsel -- the same office that retroactively gave its blessing for torture and warrantless wiretapping that occurred under Bush's administration.

Caproni has vowed to recuse herself from cases where her "impartiality might be questioned" or dealing with issues she was actively involved with in her former position. Unfortunately, this still leaves plenty of room for Caproni to insert herself into the ongoing court battles seeking to hold intelligence agencies accountable for their overreach.

Currently, the ACLU is suing the government in that court on its own behalf (as a Verizon customer) for violating its Fourth Amendment rights. Certainly there will be more to follow. As Karen Greenburg, director of Fordham University's Center on National Security points out, the southern district court of New York is the "premier venue" for terrorism cases.

Would Caproni consider cases like the ACLU's to be the sort she should recuse herself from, seeing as they deal with the same sort of Fourth Amendment violations the FBI routinely performed under her counsel? I'm of the opinion she wouldn't, especially considering her antipathy towards "civil libertarians" and her willingness to not only test the limits on data collection laws, but frequently exceed them if deemed "necessary."

Filed Under: abuse, exigent letters, fbi, judge, national security letters, valerie caproni

DOJ's History Of Ignoring The Rules When Getting Phone Records Of Journalists

from the not-the-first-time dept

There was, of course, plenty of talk about the DOJ getting two months of phone records concerning calls involving some reporters. Since the original story came out, reporters have quickly deduced what the government was after: they were trying to figure out who leaked information about the CIA stopping a plane bombing plot, because the "would be bomber" was actually working for the US, and revealing the news apparently ended the work early. The DOJ going batshit insane over a leak to the press is, unfortunately, par for the course for the Obama administration, which has been ridiculously aggressive (to an unprecedented level) in going after anyone who leaks to the press.

And while some are still trying to argue that this is a non-story, what may be more important is pointing out what a complete bullshit response the DOJ gave to this whole thing:

Despite the seizure of the phone records, a Justice Department spokesman said the agency valued freedom of the press and was “always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”

The "right balance"? Well, let's take a look about how "always careful and deliberative" the DOJ is on these kinds of things. Julian Sanchez helpfully points us to the infamous 2010 report from the DOJ's Inspector General detailing how the FBI regularly abused "exigent letters" (pdf) -- better known as National Security Letters or NSLs -- to get phone records. This report got plenty of attention at the time, but if you don't recall all 300 pages of it, there's a discussion about getting info from reporters' call logs starting on page 89 (of the official pagination, which falls on page 102 of the pdf) detailing heavily redacted examples of getting reporters' phone records without getting the proper authorization or approvals. What is striking is the extremely cavalier attitude law enforcement seems to have about this. Here is just one example of the DOJ's "always careful and deliberative process" when "seeking to strike the right balance" in getting access to reporters' phone records. This case was an investigation into a leak that appeared in articles in the NY Times and the Washington Post. The full story is much longer, but here are the key points:

On November 5, [redacted], the case agent sent an e-mail asking another Special Agent in the [redacted] Field Office to inquire, in the other agent's capacity as his squad's liaison to the CAU, whether the on-site communications service providers could obtain telephone toll records of U.S. persons making [redacted] calls [redacted]. The case agent's November 5 e-mail listed 12 [redacted] telephone numbers, 8 of which were identified in the e-mail as belonging to Washington Post reporters [redacted] and Washington Post researcher [redacted] and New York Times reporters [redacted] The email identified a 7-month period -- a few months before and a few months after the published articles -- as the time period of interest for the leak investigation.

[....] However, in absence of any request from the case agent or anyone in the FBI, the CAU SSA issued an exigent letter dated December 17, [redacted], to Company A for telephone records of the reporters and others listed in the case agent's November 5, [redacted], e-mail. We determined that the SSA did this without further discussion with the case agent or the Special Agent who had asked only whether such records could be obtained through on-site providers, not that the records should be obtained.

The CAU SSA's exigent letter sought records on nine telephone numbers, seven of which were identified in the e-mail exchanges described above as belonging to Washington Post and New York Times reporters or their news organizations' bureaus in [redacted].....

The exigent letter did not specify the 7-month interval noted in the case agent's November 5 e-mail, or contain any date restrictions. The exigent letter also stated that the request was made "due to exigent circumstances" and that "subpoenas requesting this information have been submitted to the U.S. Attorney's office who will process and serve them formally on [Company A] as expeditiously as possible." However, this statement was not accurate. A subpoena request had not been sent to the U.S. Attorney's Office at the time the exigent letter was served, or at any time thereafter.

That's the "always careful and deliberative process"? Hmm. Later in the report, they note that even when the agent only had asked about (and never actually sought) 7 months of records, thanks to the NSL, they got months and months of records, nearly none of which was actually in the 7 month period the agent was interested in. All total, they were sent 1,627 telephone call records, and only three calls were from that 7 month period. Oh, and once they got those records, they were uploaded into a database, where they were searchable by other FBI staff and other government personnel as well.

The report notes a few other examples of agents getting access to reporter phone information without the proper authorization as well.

Of course, once this came out the FBI and DOJ insisted that this was no big deal. But, in a coincidence of timing, just before this whole story broke, the FBI was in court, seeking to keep secret the memo that gave the "legal basis" for its past use of NSLs to access phone records. While the DOJ insists that it's not using these processes any more, it still thinks it should keep the legal basis for why it issued those letters a complete secret. They claim, ridiculously, that this would "chill deliberative discussions within the Executive Branch." But people aren't asking for deliberative discussions, just the very specific claimed legal basis for issuing such letters. And, of course, the DOJ would prefer not to say.

Given all of this, is it any wonder that people suspect the DOJ of being up to no good?

Filed Under: doj, eric holder, exigent letters, fbi, nsls, phone records, privacy, regulations, reporters, rules