Clapper Continues To Pretend He Didn't Lie To Congress About Domestic Surveillance Programs

from the six-years-of-deflection dept

James Clapper is going to take his Section 215 lie to his grave. One day after the first Snowden leak exposed the breadth of the NSA's phone metadata program, Sen. Ron Wyden asked the then-Director of National Intelligence if the agency collected data on Americans. Despite published documents clearly showing otherwise, Clapper went with this answer:

Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not?

Clapper: Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly.

Since everyone clearly knew he was lying, Clapper spent the next several days claiming he wasn't. First, he said he meant the NSA wasn't "voyeurestically" reading everyone's emails. Good, but not what Wyden asked. Then he said it was the only response he could give to Wyden's "when did you stop beating your wife" question. Then he claimed he thought Wyden was asking about another collection entirely: the foreign-facing Section 702 program (which does, inadvertently, collect a lot of US person data/communications).

This is the legacy Clapper has secured for himself. He won't be remembered for his IC leadership or his post-IC career talking headmanship. Nope, it will be his super-weak, super-transparent lie, delivered to a US Senator against a backdrop of leaked documents showing the NSA did "wittingly" collect data on hundreds of millions of Americans.

Nearly six years later, Clapper is telling the same story to anyone who asks him about this hearing, ensuring the word "Clapper" and "lie" will remain inseparable. The Section 215 program Clapper was alluding to -- the program exposed in the first Snowden leak -- is back in the news, thanks to an unexpected early retirement.

In an interview with CNN about the surprise Section 215 shutdown, Clapper again pretended he didn't know what program he was being asked about.

“As far as the comment, the allegation about my lying, I didn’t lie, I made a big mistake and I just simply didn’t understand what I was being asked about. I thought of another surveillance program, Section 702 of the Foreign Intelligence Surveillance Act when I was being asked about Section 215 of the Patriot Act at the time, I just didn’t understand that...”

Clapper's repetition of this excuse hasn't made it any more believable. None other than Senator Ron Wyden popped up on Twitter to point out Clapper's lies about his lie.

If you can't see/read the tweet, it says:

James Clapper needs to stop making excuses for lying to the American people about mass surveillance. To be clear: I sent him the question in advance. I asked him to correct the record afterward. He chose to let the lie stand.

That's the face of IC leadership, as portrayed by James Clapper. Clapper managed to exit the public sector unscathed, turning over a limping surveillance ship to his successor while stepping into the private sector with no threat of punishment hanging over his head. He lied to Congress and got away with it. And he's going to spend the rest of his life pretending he didn't.

Filed Under: james clapper, lies, mass surveillance, nsa, ron wyden, section 215

Clock Runs Out On Perjury Charges For James Clapper, Ensuring He Won't Be Punished For Lying To Congress

from the skating-by-on-DOJ-indifference dept

It almost seems like half a lifetime ago, but only a half-decade has passed since James Clapper lied to Ron Wyden about the NSA's domestic collections. Wyden pointedly asked Clapper during an intelligence committee hearing whether or not the NSA was collecting "any type of data at all" on American citizens. Clapper gave two answers, both untrue: "No, sir" and "Not wittingly."

A couple of months later, the first Snowden leak -- detailing massive amounts of call data being captured in the Section 215 dragnet -- undid Clapper's careful, under-oath lies. Since then, nothing has happened. The DOJ refused to investigate Clapper for lying to his oversight. Clapper exited office a few years later, becoming a go-to national security expert for a variety of news programs. He has since offered a variety of excuses for lying, but none of them are particularly good.

As of March 12, the clock has run on perjury charges. James Clapper has violated federal law and gotten away with it.

Clapper, director of national intelligence from 2010 to 2017, admitted giving “clearly erroneous” testimony about mass surveillance in March 2013, and offered differing explanations for why.

Two criminal statutes that cover lying to Congress have five-year statutes of limitations, establishing a Monday deadline to charge Clapper, who in retirement has emerged as a leading critic of President Trump.

Some members of Congress had called for charges to be brought against Clapper, but they seemed based more on Republicans' newfound distrust for the "Deep State" than an honest desire to see a federal lawbreaker brought to justice. One of the reps, however, has held steady in his calls for Clapper's prosecution for the entirety of the last half-decade: James Sensenbrenner.

"Political consideration should not affect the Department of Justice from pursuing this matter,” Rep. James Sensenbrenner, R-Wis., said ahead of the deadline. “Complete and truthful testimony is imperative for Congress to conduct effective oversight. It is clear from the evidence and Director Clapper’s own admission that he lied.”

Both the DOJ and James Clapper have refused to comment on the issue. Presumably, both entities are happy the deadline came and went without further development. The "no comment" responses allow both to avoid discussion of the DOJ double standards. But this non-prosecution shouldn't pass without notice.

Jesselyn Radack, a defense attorney who represents Snowden and fellow NSA whistleblower Thomas Drake, however, takes a dim view of Clapper being let off the hook.

“It shows that government officials in positions of power can lie with impunity to Congress and the American people about outrageous abuses, but when ordinary citizens like Reality Winner reveal the truth about the same abuses, they face espionage charges and prison," Radack said, referring to the NSA contractor charged last year for sending the Intercept a report on Russian attempts to hack election systems.

Most people who lie to Congress won't have the luxury of exiting their current positions gracefully before popping in cable newsrooms all over the nation. But Clapper is one of the special ones -- the ones who won't be held accountable because the government takes care of its own, especially when dubious, Congress-approved surveillance programs are in the mix.

Filed Under: james clapper, lying to congress

2013 Authority Expansion Means A Whole Lot Of People On Capitol Hill Can View Unminimized NSA Collections

from the little-bit-of-comms-dirt-on-everyone dept

The unmasking rules House Intelligence Chair Devin Nunes has been (somewhat disingenuously) complaining about have been around for a few years now. Normally, US persons' identities are minimized before government officials can view intel gathered by the NSA. But in cases where it might be necessary to provide context, the White House can ask for the identities to be unmasked.

This has turned into a mini-firestorm on Capitol Hill, with Nunes striking most of the matches. The problem is Nunes should be aware of these rules, as he's in charge of the intelligence oversight committee. He apparently doesn't, or at least wasn't aware how many people can actually ask for US persons to be unmasked.

The loosening of these restrictions traces back to Obama's second term, as John Solomon of The Hill points out.

Procedures issued by Director of National Intelligence James Clapper in March 2013 formally supplanted a 1992 set of rules that made the dissemination of names of intercepted lawmakers or congressional aides an act of last resort.

The new standard allowed for a lawmaker’s or staffer’s name to be unmasked if “an executive branch recipient of intelligence” believed that learning “the identity of the Member of Congress or the Congressional staff is necessary to understand and assess the associated intelligence and further a lawful activity of the recipient agency,” according to a memo released earlier this month by the DNI's office with little public fanfare.

The unmasking standard has become less of a "standard" as the years have passed, according to this report by The Hill. All the way back in the mid-90's, the rules allowed only one person to sign off on unmasking: the head of the CIA. And this could only be done as a last resort -- if context for the intercepted communications could not be "satisfied in any other fashion."

Since then, there's been nothing but slippage. Now it's not only legislators that can request unmasking, but also their staffers as well, meaning there are potentially hundreds of people with the power to view unminimized NSA intel. (This doesn't even include those on the downstream side of this surveillance: at least 16 federal agencies now have access to unminimized intel.)

Now that the Director of National Intelligence has replaced the CIA Director at the top of the unmasking organizational chart -- something that happened in 2005 -- the rules have been relaxing continuously. In fact, the latest version, which does away with the "as a last resort language," was written into force by James Clapper's office, which saw it as nothing more than a codification of practices the intel community was already engaged in.

(DNI Counsel Bob) Litt said by the time he drafted the 2013 rules, he did not believe he was changing policy, because the procedures had been evolving for years.

“We believed we were formalizing simply what we had inherited,” he explained.

It hasn't slid so far that the exception has become the rule, but unmaskings are becoming far more routine. What used to be limited to a handful of times a year has now become a monthly occurrence. Hence the outrage from members of Congress, which should be viewed a bit skeptically, given they also have the power to perform unmaskings and their outrage tends to adhere to party lines.

The Trump administration has signed off on the 2013 rule change, indicating it feels there's nothing wrong with the status quo. That makes Devin Nunes' demands for answers that much more suspect, as he seems to be motivated more by the fact the rule change resulted in the ousting of short-lived National Security Advisor Mike Flynn (and assisting with the ongoing investigations into the administration's ties to Russia) than any general sense of Constitutional wrongness.

This is a problem. Most requests for unmasking will eventually route through the Director of National Intelligence, but the bar has been lowered, both in terms of when requests can be made, but also by who. Most of the attention is being paid to the unmasking of communications between government officials, but it's also normal, everyday Americans who are being subjected to lower privacy expectations as time goes on. As we head towards the renewal process for Section 702 collections, this is one of the areas Congress should spend some time discussing seriously. If nothing else, it gives lawmakers an opportunity to roll back some of the mission creep.

Filed Under: devin nunes, james clapper, minimization, nsa, surveillance, unmasking

James Clapper Says Nerd Magic Can Solve Terrorist Content Filtering, Create Safe Encryption Backdoors

from the harry-potter-but-for-lawful-access dept

Former Director of National Intelligence James Clapper went from having a comfortable, shadowy job in a comfortable, shadowy office to being the face of the American surveillance state after the Snowden leaks. Instead of only being periodically hassled by a couple of Intelligence Committee members (mainly Ron Wyden), Clapper was called to account for the NSA's apparent surveillance sins. And he handled it badly.

After plenty of evasive discussion, Clapper finally said, "Oh, you mean those phone records," and ushered in a new era of slightly less bulk metadata collection. But he still made the most of his speaking opportunities to pin the woes of the terrorized world on Snowden, noting his leaks "sped up encryption adoption by seven years." It was an oddly precise estimate, especially given the contradicting evidence showing terrorists hadn't really changed their communication methods in response to the Snowden leaks.

Clapper is no longer the Intelligence Director, but he's still beating the encryption drum during interviews. And it appears he's aligned himself with another former government employee, James Comey. Speaking to the National Press Club in Australia, Clapper called for both harder nerding and tech companies being a (possibly compelled) source of light in the growing darkness.

As governments around the world face the ongoing threat of extremism, former US Director of National Intelligence James Clapper says tech companies have a social "responsibility" to take better care of what appears on their platforms.

[...]

"I do think there is a role to play here in some screening and filtering of what appears in social media," he said.

"In the same way that these companies very directly capitalise on the information that we make available to them and exploit it, it seems that that same ingenuity could be applied in a sensitive way to filtering out or at least identifying some of the more egregious material that appears on social media."

How social media companies are supposed to auto-filter all terrorist content is, of course, left unexplained. When companies like Facebook can't even filter human breasts without screwing it up, it's a stretch to say the problem of terrorist content and communications is just a coding breakthrough away. Considering the vast amount of content posted everyday on major networks, it's not as simple as applying a bit more mental elbow grease. Much of this is relegated to algorithms, simply because there's not enough manpower in the world to handle the input of billions of social media users.

Clapper also called for tech companies to "work with" law enforcement to provide access to encrypted communications.

Clapper suggested that cooperation could mean "law enforcement particularly would be allowed access to encryption" if it could be done in a "safeguarded way."

"I hear the argument about if you share once with one person and it's forever compromised. I'm not sure I really buy into that," he said.

It really doesn't matter whether Clapper "buys" this or not. It's a fact. And it's a fact that's been demonstrated in explicit detail by the leak of NSA software exploits. A hole is hole -- one that can be used for good or for evil. The world's top intelligence agency can't even keep its exploits secure. How are we expected to believe law enforcement agencies are going to keep these backdoors from being discovered and exploited?

Clapper grooved on the Comey vibe during this talk, acting as though tech expertise is some sort of dark art used deliberately to stick it to The Man. Anyone who uses the phrase "miraculous technological things like iPhones" shouldn't expect to have their assertions taken seriously. It suggests the person making them still has trouble distinguishing between innovation and magic. Consequently, it's these sort of people who continually claim "safe" backdoors are possible, rather than being the mythical deus ex machina they actually are.

Filed Under: backdoors, encryption, filtering, james clapper, nerd harder

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

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

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

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

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

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

As Wyden notes:

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

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

In it, he calls out these issues quite clearly:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

James Clapper's Office To Finally Reveal NSA's 'Incidental Collection' Numbers

from the and-only-a-half-decade-since-it-was-first-asked! dept

Prior to the Snowden leaks making it unignorable, the NSA denied the incidental collection of Americans' communications was much of a problem. Ron Wyden and Mark Udall were two of the few members of the NSA's oversight willing to ask tough questions. One of the questions they asked -- all the way back in 2011 -- was how many Americans were spied on by the NSA's programs. The answer may shock you cause uncontrollable eyerolling.

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

It's a terrible answer. But it's still better than the one the ODNI gave the senators earlier. Basically, James Clapper said it would be difficult to give the senators the information they sought because the NSA really didn't want to hand over that information. Not "difficult" in the technical sense, but "difficult" in the "no desire to" sense.

A leaked document showed the NSA didn't think incidental collection was a big deal. Slides from an internal presentation told analysts such collections were inevitable and not to worry about the reporting collected US persons' communications to the Inspector General. Hence why the Inspector General felt it might take a bit of effort to collect this information: it never had collected or received this information previously.

As the re-up for Section 702 approaches, legislators are taking a renewed interest in these still-unrevealed numbers. And Clapper's office has decided to comply:

"The timely production of this information is incredibly important to informed debate on Section 702 in the next Congress— and, without it, even those of us inclined to support reauthorization would have reason for concern," said the letter signed by 11 lawmakers, all members of the House Judiciary Committee.

The letter was sent on Friday to National Intelligence Director James Clapper. It said his office and National Security Agency (NSA) officials had already briefed congressional staff about how the intelligence community intends to comply with the disclosure request.

There are more specifics to this, which make it more useful than the normal publicized internal memo swap. First, the legislators want this expressed in real numbers, not a meaningless percentage of the total Section 702 take. Second, the letter serves to "memorialize" Clapper's agreement to not only hand over these numbers to legislators, but to the public as well.

This data should contain everyone swept up by PRISM or the NSA's upstream collection -- the latter of which pulls communications directly from domestic internet backbones. The upstream collection has no targets. Instead, it grabs everything it can (including audio communications) it can and sorts through it for targeted terms, as well as anything related to the targeted terms NSA analysts add to the filter.

The potential for incidental collection in either program is huge. So it may actually involve a bit of effort to collect this data. Of course, the effort put into this may also involve making the final numbers a bit more palatable by applying internal rules as to what should or shouldn't be considered an incidental collection. Just as certainly as NSA collections are laundered (via parallel construction) before being introduced in court, one should expect the final incidental collection numbers to be purged of anything that might make them larger than the IC would like to admit publicly.

Filed Under: james clapper, mass surveillance, nsa, odni, ron wyden, section 702, surveillance

The Intercept Publishes A Post From James Clapper's Classified Blog... the 'Intercept'

from the stupid-spoiled-Americans-and-their-rights dept

The Intercept, a site that regularly publishes classified documents, reports that the Director of National Intelligence, James Clapper, also publishes a classified internal blog -- called (serendipitously enough) the "Intercept."

It even offers a secret RSS feed so analysts will never miss a post. Clapper’s Intercept blog has no relationship to The Intercept, except that he hates pretty much everything we stand for.

In a blog post [PDF] obtained by The Intercept, Clapper responds to a redacted "constituent" in Nevada who -- two months prior to the first Snowden leak -- wants to reassure the Intelligence Community that Americans have far too many rights.

“If the american [sic] people are not willing to release some freedoms, they cannot blame the IC when they can’t stop” domestic terror attacks because of the intelligence agencies “having their hands tied by Law [sic] & policy,” the “constituent” wrote. He adds that Americans “cannot have your cake and eat it too,” and then offers what has become a dangerous cliche in the post-Snowden mentality of the intelligence community: “So if one has nothing to hide why would a little government watching for mass protection be such a big question.” The letter ends: “WE SUPPORT YOU.”

In his response to this outpouring of love for government overreach, James Clapper -- perhaps feeling he was writing for the "home team" -- dispenses with niceties about honest government employees doing their damndest to protect American civil liberties while still keeping the government safe from international terrorism.

Instead, he becomes an echo chamber.

I can't tell you how much I appreciate your letter… I say this on behalf of all the women and men in the Intelligence Community. In my view you have very accurately described the issue that the Boston Bombings represent! Just how small do the Americans want the holes in the security fish net to be?

Clapper has greatly overestimated his affinity with the rank-and-file of the IC, as the comments on his blog post attest.

The first two intelligence people to comment on his post took Clapper, and his “constituent,” to the woodshed. “I think it was inappropriate for DNI Clapper to respond in a way that indicates he agrees with the premise of the writer’s letter, namely, that government must expand its domestic “watching” and the people must give up “some ‘rights’ in the interest of the greater good,” one IC commenter posted. “The head of the US Intelligence Community — the business of which is foreign intelligence —should not be taking sides on matters of domestic intelligence policy.”

Another commenter wrote that, like Clapper, he agreed with the letter’s author about “the fact that it is impossible to defend 100% against these kinds of attacks given the restrictions placed on America’s security forces and the freedom and range of targets enjoyed by the attackers.” However, this commenter, who went by the name Wormy, warned against being “too quick to release your freedoms and “rights” in the name of security.”

The head of the intelligence community is at odds with his own underlings. Clapper and Gen. Keith Alexander have long been fans of unrestricted mass surveillance that helps the agency pursue its "collect it all" goals. Clapper has lied about the existence of surveillance programs and followed those lies up with spirited arguments against any narrowing of their scope.

Clapper apparently believes Americans can get by with fewer rights in exchange for security he can't possibly guarantee. And all to save the nation from something less likely to kill Americans than lightning strikes.

On the other hand, if these two commenters are more indicative of the attitudes of the bulk of the NSA's workforce, then Clapper's assertions about analysts' concern for protecting American civil liberties have been accurate. Of course, they would be accurate despite Clapper, not because of him. If the general NSA attitude was more aligned with his views on the rights v. security debate, Clapper's statements would have been identical. They just would have been less factual.

Filed Under: blog, civil liberties, dni, intercept, james clapper, nsa, odni, rights, terrorism
Companies: the intercept

NSA Leaked More Hacking Tools, Leading To Calls To Fire Its Director... Who Ran To Trump For Support

from the wait,-what? dept

Since Admiral Michael Rogers took over for previous NSA boss, General Keith Alexander, a couple of years ago, he's mostly stayed out of the public eye. While Alexander became the face of excessive NSA surveillance exposed by Ed Snowden, Rogers seemed to want to present himself as the face of a cleaned up NSA. On Friday, it was even reported that Rogers was the "top candidate" to take over as Director of National Intelligence from retiring James Clapper. That is, he was in line for a big promotion (though, oddly, another report released at the same time noted that Trump was considering getting rid of the role of "Director of National Intelligence" and moving back to a pre-9/11 setup where the various intelligence agencies have no one coordinating their actions.

But, over the weekend, a bizarre story broke in the Washington Post, detailing how both Clapper and Defense Department boss Ash Carter had been strongly recommending that President Obama fire Rogers for a variety of problematic actions. The most shocking -- though buried in the article -- is that the NSA has had multiple breaches revealing its most powerful hacking tools. We already know about the whole Shadow Brokers thing, revealing some powerful hacking tools, and that an NSA contractor named Harold Martin was arrested a few months ago for apparently hoarding all sorts of classified info. As we noted at the time, the fact that Martin was doing so years after Snowden, raised serious questions about how well the NSA could really keep its secrets.

And the Washington Post revealed that it's even worse:

But there was a second, previously undisclosed breach of cybertools, discovered in the summer of 2015, which was also carried out by a TAO employee, one official said. That individual also has been arrested, but his case has not been made public. The individual is not believed to have shared the material with another country, the official said.

Rogers was put on notice by his two bosses — Clapper and Carter — that he had to get control of internal security and improve his leadership style. There have been persistent complaints from NSA personnel that Rogers is aloof, frequently absent and does not listen to staff input. The NSA is an intelligence agency but part of the Defense Department, hence the two overseers.

FBI agents investigating the Martin breach were appalled at how lax security was at the TAO, officials said. “[Rogers] is a guy who has been at the helm of the NSA at the time of some of the most egregious security breaches, most recently Hal Martin,” a senior administration official said. “Clearly it’s a sprawling bureaucracy . . . but I think there’s a compelling case that can be made that some of the safeguards that should have been put in place were either not fully put in place or not implemented properly.”

The WaPo story also notes that there may be some turf battle issues going on here as well. We've long highlighted the serious problems of the NSA also running the US Cyber Command, noting that this creates a tremendous conflict of interest, since it makes the NSA more willing to not reveal vulnerabilities it discovers, since they may be more useful offensively as well. Apparently many in the administration agree, and the plan was to split the NSA and US Cyber Command, and get rid of Rogers at the same time. But, Senator John McCain apparently freaked out and insisted that the NSA and Cyber Command had to remain stuck together, or he would block any new nominees to head the NSA. At the same time, the reason Carter is upset with Rogers is that he feels he's done a poor job in mounting cyberattacks against ISIS (for what it's worth, in his own weird way, this was also a point that Trump would make during the campaign when asked about cybersecurity -- meaning that it's a bit odd he'd now consider promoting the guy who was responsible for what he'd been making fun of during the campaign...).

There's another oddity in the story: Rogers meeting with Trump was done without telling his superiors -- a massive breach of protocol for a military official:

In a move apparently unprecedented for a military officer, Rogers, without notifying superiors, traveled to New York to meet with Trump on Thursday at Trump Tower. That caused consternation at senior levels of the administration, according to the officials, who spoke on the condition of anonymity to discuss internal personnel matters

This made some wonder if Rogers did this as a last gasp effort to save his job. For what it's worth, when asked about the story, Rogers said he's "accountable" for his actions:

"I'm not going to go down that road," Rogers said, interrupting a journalist who asked about The Washington Post story during a forum where the admiral was speaking.

He added, "I'm accountable for my actions."

No matter what, at the very least, we're left (once again!) wondering what the hell is going on with the NSA. This is yet another example of how the organization is a mess that can't seem to keep track of its most powerful secrets and hacking tools. And they want us to "trust" them not to abuse those tools? They can't even keep track of them. And, the guy who's been in charge for the last two and a half years may now be getting a promotion (with a brief "being fired" thrown in between).

Filed Under: admiral michael rogers, ash carter, donald trump, ed snowden, james clapper, leaks, nsa, odni, surveillance, us cyber command

Yahoo Asks James Clapper To Please Let It Talk About The Email Scanning It Did For The Government

from the 'it-already-sucks-enough-to-be-us' dept

After spending several days basking in the fiery glow of negative press (and seeing potential investors walk away from buying the company), Yahoo is asking the government to please please let it talk about the spying it apparently performed for the NSA or FBI.

Yahoo sent a letter to National Intelligence director James Clapper on Wednesday urging the U.S. government to provide clearer information to citizens on national security demands for user data.

Yahoo’s letter called for intelligence groups to confirm if future reported demands for data are real, and if they are, declassify them with context for the public.

Pots, kettles, and other analogous materials are rendered incomprehensible in its statement, which involves a media company implicitly criticizing other media companies.

In a letter today to James Clapper, Director of National Intelligence (DNI), Yahoo is formally urging that the U.S. government provide its citizens with clarification around national security orders they issue to internet companies to obtain user data.

While the letter makes specific reference to recent allegations against Yahoo, it is intended to set a stronger precedent of transparency for our users and all citizens who could be affected by government requests for user data. As we’ve said before, recent press reports have been misleading; the mail scanning described in the article does not exist on our systems.

"Does not exist" is not nearly the same thing as "did not exist." This means Yahoo is no longer scanning emails in this fashion, not that it never performed this scanning.

The letter does make a good point about transparency. Currently, Yahoo is unable to defend itself against any allegations because it is likely under a gag order. Yahoo would like Clapper's office to share in the public pain, especially since it had a problem sharing in the communications gathered on its behalf by the email provider.

Public embarrassment or not, Clapper's office is probably not rushing through a declassification review of this Section 702 FISA order. It could still be months or years before the government produces this document and/or allows Yahoo to speak openly about its email scanning program.

Perhaps recognizing that a displeased letter to the ODNI doesn't create much leverage, the company appears to be making this a global issue, rather than simply a domestic one. Marcy Wheeler points out that the letter mentions Yahoo's global reach and users several times and namechecks the EU's Privacy Shield agreement. This may be the key that loosens the Intelligence Community's Glomarred lips.

But there’s another reason why Clapper’s office — or rather ODNI General Counsel Bob Litt — may be so quiet.

Litt is the one who made many of the representations about US spying to authorities here [Wheeler is in Europe at the moment]. Someone — Litt, if he’s still around for a hearing that may take place under President Hillary — may also need to go testify under oath in an Irish court in conjunction with a lawsuit there. Whoever testifies will be asked about the kinds of surveillance implicating European users the government makes US companies do.

In other words, Bob Litt is the one who made certain representations to the European authorities. And now some of those same people are asking questions about how this scan complies with the terms Litt laid out.

Which makes his silence all the more instructive.

Someone's going to have to start talking about Yahoo's email scanning program soon. Yahoo obviously can't, which means the ODNI is going to have to address this on someone else's timetable. We already have US legislators demanding answers. European politicians are already unhappy about the apparent breach of the Privacy Shield Agreement. If the ODNI continues to avoid the issue, all it will be doing is letting a private company take the fall for its possible overreach.

Filed Under: email, gag order, james clapper, mass surveillance, nsa, scanning, surveillance
Companies: yahoo

Surprise: Intelligence Community Comes Out Against Congressional Plan To Weaken Intelligence Oversight

from the hmmmm dept

Well, this is somewhat unexpected. Earlier this year, we noted that Congress was working on a plan to undermine the Privacy and Civil Liberties Oversight Board (PCLOB). But apparently, the Intelligence Community, in the form of Director of National Intelligence, James Clapper, is against this idea.

The PCLOB was initially created as part of the PATRIOT Act, but was basically given no real power. In 2007, Congress finally gave it a bit more power and independence, only to watch both the Bush and Obama administrations ignore it by not appointing anyone to the board. That finally changed in 2012 -- just in time for the Snowden leaks (though it has been without a chairperson, since the last one left earlier this year). The PCLOB then put out a scathing report about the NSA's mass surveillance on Americans under the Section 215 program, though it wasn't as concerned about PRISM and upstream collection under the Section 702 program. For years now, the PCLOB has supposedly been investigating surveillance under Executive Order 12333, which we've been told by insiders is the main program the NSA relies on for surveillance (the others just fill in the gaps).

A key part of the "reform" from Congress, beyond cutting funding, would be to limit the PCLOB to only reviewing surveillance on Americans, which would basically cut off its ability to study EO 12333.

We certainly found it concerning that Congress would seek to pull the rug out from under the PCLOB, but we certainly didn't expect James Clapper to agree with us. And yet...

The intelligence community "strongly opposes" part of the proposed legislation seeking to limit the jurisdiction of PCLOB to the privacy rights of Americans, and not foreigners, the letter, signed by Director of National Intelligence James Clapper, reads.

PCLOB is "uniquely situated" to give advice to spy agencies on how to respect global privacy interests, and limiting its authority "is a significant step backward from the reforms that the president has directed."

The letter apparently also suggests that President Obama would veto such a bill if it came across his desk. This is a bit of a surprise all around. At the very least, it does make you wonder how the House and Senate Intelligence Committees will continue to support the idea of undermining the PCLOB when not even the intelligence community itself is fine with it. Could it really be that the two Congressional committees in Congress in charge of "oversight" for the intelligence community want even less oversight than the intelligence community itself?

Filed Under: civil liberties, congress, james clapper, odni, oversight, pclob, privacy, surveillance