DOJ Admits That NSA Collection Of Phone Records 'Probably' Sweeps Up Congress As Well

from the but-of-course dept

Last month, Senator Bernie Sanders asked a simple question to the NSA: in collecting all those phone records, does that include the phone records of members of Congress (including both their personal and work phones)? The NSA's response was that "Members of Congress have the same privacy protections as all US persons" -- but since the data collection covers all US persons, it was a basic admission that, yes, of course the NSA is sweeping up their phone records as well.

That issue came up again during this week's House Judiciary Committee Hearings, in which some members of Congress finally got to ask the question live to Deputy Attorney General James Cole, who more or less admitted that Congress's information is collected as well:

Rep. Zoe Lofgren, a California Democrat, began by asking Peter Swire, a member of the president's handpicked surveillance review board, whether lawmakers' numbers are included in the agency's phone-records sweeps. Swire protested that he was not a government official and couldn't best answer the question, but said he was unaware of any mechanism that "scrubbed out" member phone numbers from the agency's data haul.

Lofgren's time expired and Rep. Darrell Issa, a California Republican, then put the question to Cole.

"Mr. Cole, do you collect 202, 225, and four digits afterwards?" Issa asked, referring to the prefixes used to call congressional offices.

"We probably do, Mr. Congressman," Cole responded. "But we're not allowed to look at any of those, however, unless we have reasonable, articulable suspicion that those numbers are related to a known terrorist threat."

And while Representatives like Pete King have argued in the past that the NSA should spy on Congress because they might be talking to terrorists, Issa pointed out that he sometimes has perfectly legitimate reasons for talking to those who might be in the NSA's target list:

Issa rejoindered that he had been in touch with the deputy prime minister of Lebanon after accusations emerged that the official had given money to Hezbollah, warning that a senior member of Congress was only two degrees of separation from terrorists.

Slowly, but surely, it appears that more and more people in Congress are recognizing that the NSA's activities are incredibly broad in their overreach.

Filed Under: congress, darrell issa, doj, house judiciary committee, james cole, nsa, surveillance, zoe lofgren

Mike Rogers Says NSA Told Congress About Spying On Foreign Leaders; Cuts Off Rep. Who Say That's Not True

from the incredible dept

The House Intelligence Committee, led by chief NSA apologist Rep. Mike Rogers, held yet another hearing about the NSA scandal on Tuesday, with an official focus on "potential changes to the Foreign Intelligence Surveillance Act," but that was barely discussed at all. Instead, the panel, made up of Director of National Intelligence James Clapper, NSA boss Keith Alexander, Deputy Attorney General James Cole and number 2 guy at NSA Chris Inglis, mostly focused on defending the NSA, especially in light of the recent headlines concerning spying on foreign leaders. Rogers focused on tossing out a bunch of softball questions to the panel to get them to say that they had clearly informed the House Intelligence Committee about spying on foreign leaders. After the softballs were hit back, Rogers would add a stage-whispered "Hmm," followed by an angry attack on reporters for buying into the story that the NSA hadn't informed Congress.

Of course, given that Rogers' counterpart in the Senate, Dianne Feinstein, claims that she wasn't informed, this seems a bit strange. But it got even stranger when various other committee members, including Rep. Jan Schakowsky and Rep. Adam Schiff made it clear that they had no idea this was going, despite being on the committee.

That resulted in an incredible exchange, in which Rogers attacked others on the Committee, suggesting that they should just shut up if they're going to say they weren't informed -- hinting that some Committee members "do more work than others." Schiff, quite reasonably, appeared to take offense to this, and challenged Rogers, asking for more details as to when and how the Committee was told about spying on foreign leaders. Rogers without actually answering the question kept "warning" other members not to say something about this. Schiff broke in again (with Rogers trying to stop him from talking) to ask if the Committee was directly informed about this or if it was just a giant data dump of information that he would have had to go through carefully to find out who they were spying on. Rogers again refused to answer the question, and again hinted that those who put in the "effort" would have known about this -- and then flat out cut off Schiff and handed the floor to Rep. Michele Bachmann, who went back to tossing softballs (sample question: "Do you think Snowden is a traitor?").

In the end, Rogers weak attempt to continue to defend the NSA here made it pretty clear, once again, that the claims that he has not adequately informed others in Congress of what's going on are quite accurate.

Filed Under: adam schiff, chris inglis, dianne feinstein, house intelligence committee, james clapper, james cole, keith alexander, mike rogers, nsa, nsa surveillance

Political Moves: How Dianne Feinstein Cut Off One Of The Few Attempts At Actual Oversight By Senate Intelligence Committee

from the no-time! dept

We've already covered how Dianne Feinstein used the Senate Intelligence Committee hearing to play games with the English language, while Senator Dan Coats used it to rant against all you stupid Americans for not trusting the NSA, but there have been some actual attempts to have the Senate Intelligence Committee perform its actual duty of oversight. Both Senators Ron Wyden and Mark Udall -- who have been trying to raise these questions for years -- actually had specific questions for the assembled panel, but the panel (mainly Keith Alexander) did its best to completely avoid answering the questions, then used political gamesmanship to block Wyden from asking followups.

Wyden used his question to highlight what he's been hinting at for years, that it's almost certain that the NSA has collected bulk data on the locations of Americans (something not yet officially revealed, and which they've sort of tried to deny for a while). Wyden has been asking versions of this question for a few years (and trying to pass legislation blocking this kind of thing for nearly as long). But watch how Keith Alexander never actually answers the question:

Wyden: Now with respect to questions, let me start with you Director Alexander, and, as you all know, I will notify you in advance so that there won't be any surprise about the types of issues we are going to get into. And Director Alexander, Senators Udall, Heinrich and I and about two dozen other senators have asked in the past whether the NSA has ever collected or made any plans to collect Americans' cell-site information in bulk. What would be your response to that?

Gen. Keith Alexander (Alexander): Senator, on July 25, Director Clapper provided a non-classified written response to this question amongst others, as well as a classified supplement with additional detail. Allow me to reaffirm what was stated in that unclassified response. Under section 215, NSA is not receiving cell-site location data and has no current plans to do so. As you know, I indicated to this committee on October 20, 2011, that I would notify Congress of NSA's intent to obtain cell-site location data prior to any such plans being put in place. As you may also be aware....

Note the word games: "under Section 215." He does not say whether they've used some other authority to do so. And then he's just repeating talking points so Wyden flat out cuts him off:

Wyden: General, if I might. I think we're all familiar with it. That's not the question I'm asking. Respectfully, I'm asking, has the NSA ever collected or ever made any plans to collect Americans' cell-site information. That was the question and we, respectfully General, have still not gotten an answer to it. Could you give me an answer to that?

Alexander: We did. We sent that — as you're also aware I expressly reaffirmed this commitment to the committee on June 25, 2013. Finally, in the most recent and now declassified opinion renewing this program, the FISA court made clear in footnote number five that notice to the court in a briefing would be required if the government were to seek production of cell-site location information as part of the bulk production of call detail records. Additional details were also provided in the classified supplement to Director Clapper's July 25th response to this question. So what I don't want to do, Senator, is put out in an unclassified forum anything that's classified there so I'm reading to you exactly. So we sent both of these to you. I saw what Director Clapper sent and I agree with it.

Wyden: General, if you’re responding to my question by not answering it because you think that’s a classified matter that is certainly your right. We will continue to explore that because I believe this is something the American people have a right to know whether the NSA has ever collected or made plans to collect cell-site information. I understand your answer. I'll have additional questions on the next round. Thank you, Madam Chair.

First off, Alexander's answer shows that, contrary to the assertions of some staunch NSA defenders, it is entirely possible to answer a question by saying "there is more information in classified documents that shouldn't be shared in an open setting." Some have tried to excuse James Clapper's lies to Congress by suggesting he couldn't have said more or less what Alexander said here.

Second, note the doublespeak that Alexander is engaged in here. Even asked, again, to answer the basic question, Alexander pulls an "under this program" type of answer, suggesting (again) that American location data either has been, or is planned, to be collected in bulk. That is worrisome, and should not be classified information. Rather it should be open to public debate as to whether or not it's appropriate.

But here's where the political gamesmanship came in. Committee chair Dianne Feinstein gave Senators only five minutes each for their questions. It seemed like a majority of this "oversight" committee didn't actually ask any questions, but rather, like Coats, simply filibustered angrily at the American public or press for not trusting the NSA. But when actual questions were asked, not enough time was given to get a straight answer. At the very end of the hearing, after most of the other Senators had left, Senator Wyden made a perfectly normal request: could he ask his followup questions. He noted that he just had two questions and both could be asked within an additional five-minute window. Senator Susan Collins, who had similarly filibustered during her own five minutes (focusing mainly on knocking down a complete strawman: falsely insisting that people were upset that the NSA was using Section 215 of the Patriot Act to record all phone calls, when everyone knows that it's just about call records, not call contents), objected to Wyden's request because she thought everything would go in order. It was pure political gamesmanship.

So instead of getting to conduct more actual oversight by having the committee ask important questions of the surveillance bosses, the panel, instead, moved on to the "second part" of the hearing, which involved two staunch non-governmental NSA defenders who basically sat down to talk about the awesomeness of being able to spy on everyone. Ben Wittes opened with a "joke" about how the NSA's director of compliance John DeLong, mocked the level of scrutiny the NSA was under by pointing out that if he had typos in a document he'd have to reveal that to some oversight authority. Har har. This was useless. There was no reason to have them testify, and they were given a hell of a lot more time than the Senators actually asking questions.

That time could have been used to actually conduct oversight. Instead, we got nothing. Throughout the panel Senators pointed out that the American public doesn't trust the NSA right now (though, they often blamed the public and the press for this, rather than the direct actions and statements of the NSA). If they wanted a lesson in how not to build up that trust, holding a completely toothless "oversight" hearing was a pretty good start.

After Wyden, Udall also asked some specific questions, in which the deputy Attorney General basically just repeated the FISA Court ruling saying that "relevant" has been redefined by the intelligence community to mean basically anything that the intelligence community feels is "necessary" to its investigations, and seems to think that it's a good thing that this is a "low bar." He completely ignores the basics of the 4th Amendment, as well as recent Supreme Court decisions on the topic.

I've included the video of both Wyden and Udall's questions below, so you can see the less than 20 minutes of the two-hour session where actual serious questions were asked.

Filed Under: dianne feinstein, james clapper, james cole, keith alexander, mark udall, ron wyden, susan collins

Author Of The Patriot Act: Congress Will Not Renew If Intelligence Agencies Don't Change Their Ways

from the time-to-fix-things dept

We've already pointed out that the key author of the Patriot Act, Rep. Jim Sensenbrenner, has spoken out against the NSA's surveillance activities, saying that the law was actually written specifically to prevent that kind of activity. Sensenbrenner, as the author of the Patriot Act, certainly isn't known for having a particularly strong focus on protecting civil liberties. However, he does seem quite perturbed at what's being done with the law associated with his name, which he insists is being abused. During today's Congressional hearings, Sensenbrenner made it clear that Congress will not renew the controversial Section 215 if the NSA doesn't correct its broad surveillance efforts:

Section 215 expires at the end of 2015. Unless you realize you've got a problem, that is not going to be renewed. There are not the votes in the House of Representatives to renew Section 215, and then you're gonna lose the business records access.... You have to change how you operate Section 215, otherwise in two and a half years you're not going to have it any more.”

The full video of Sensenbrenner questioning Deputy Attorney General James Cole is worth watching: Sensenbrenner clearly gets angry with Cole, as Cole tries to tap dance around the question, by pointing out that he's not at all happy with the idea that the intelligence community gets to determine what's "relevant" rather than the court. He notes that relevance was supposed to be a limitation not something that the intelligence community gets to decide for itself. As the revelations have shown, under Section 215, the feds get to scoop up everything, as approved by the court, and then the intelligence agencies get to determine what's "relevant" within that collection to take a closer look. Sensenbrenner is clearly outraged that it's not the court that determines relevance. Having the intelligence community get to decide for itself makes a mockery of the law.

Sensenbrenner: It appears to me that, according to this letter and the testimony of FBI Director Mueller, that "relevant" [is being interpreted as] an expansion of what could happen rather than a limitation... when relevant was not included in that statute. Doesn't that make a mockery of the legal standard, because you're trying to have it both ways?

Cole: I don't think we're trying to have it both ways...

Sensenbrenner: You sure are! Because you're saying have the court authorized to get the records of all the phone calls that are made to and from phones in the United States including people who have nothing to do with any kind of terrorist investigation. And then what you're saying is that "we'll decide" what to pick out of that mass of maybe a billion phone calls a day, rather than saying that 'this person is a target' why don't you get an authorization for only that person's telephone records?

Cole: Again, going to the analogy of the criminal context, we would never in a grand jury situation or a traditional criminal investigation even go to the court for the framework, or the setting of rules, or have sunsetting every 90 days of the authority, or...

Sensenbrenner: But, Mr. Cole, with all due respect, the letter that I got from the Department that you're the number two person in, says that you get the FISA Court order because there are "reasonable grounds to believe that the data is relevant to an authorized investigation to protect against international terrorism" as Section 215 requires. Even though most of the records in the dataset are not associated with terrorist activity. You gobble up all of those records and then you turn around and say well we'll pick out maybe 300 phone numbers out of the billions of records that you have every day and you store for five years there. All the rest of this stuff is sitting in a warehouse and we found out from the IRS who knows who wants to have any kind of legal or illegal access to it. You are having it both ways.

Once again, when will the administration realize that they've clearly taken all of this way too far?

Filed Under: business records, doj, james cole, jim sensenbrenner, nsa surveillange, patriot act, relevant, section 215

NSA Claims Surveillance Programs Aided The Stopping Of 50 Attacks; Details Lacking

from the obfuscate,-obfuscate,-obfuscate dept

In a hearing before the House Intelligence Committee today, NSA boss Keith Alexander once again claimed that the big NSA surveillance programs had stopped terrorist attacks. Rather than the "dozens" he stated last week, today it became "more than 50 potential terrorist events." Of course, as is typical, both the questions (asked by NSA supporters) and the answers were pretty carefully choreographed. Digging in, you find out that Alexander was specifically referring to PRISM, and not the (much more worrisome) dragnet of all phone records. On that program, there doesn't appear to be any actual data on what it was used for. On top of that, when asked about whether or not these programs were essential or necessary to stopping those attacks, as compared to other programs, no one would say that they were necessary or essential.

The other careful choice of words was people would ask about whether or not phone calls had been recorded under these particular programs, but not other programs. When Deputy Attorney General James Cole was specifically asked about other programs, he responded that that was classified information. Make of that what you will. Cole also claimed that the program to collect all phone numbers "is not a program that's off the books, that's been hidden away." Of course, if that were true, why are so many people -- including politicians who supposedly have oversight over the program -- so surprised about it? How come there has been no reporting on it? How come, when asked about it, Director of National Intelligence, James Clapper said "no" to whether or not information was collected on millions of Americans? It certainly sounds "hidden away."

Meanwhile, the really shameful performance came from Rep. Mike Rogers, who led the hearing, who again claimed that Ed Snowden both was lying and that his revelations weakened American security by revealing secrets to enemies. And then he pulled out this whopper:

"It is at times like these when our enemies within become almost as damaging as the enemies on the outside. It is critically important to protect sources and methods so we aren't giving the enemy our playbook."

So, again, no one understands the programs revealed, because Snowden's leaked info is wrong... and now our enemies know what we're doing... and Snowden is "almost as damaging" as those who wish to attack us. None of that makes any sense at all.

In the end, though, it's more of the same. Even if we could say that these programs were useful in stopping a potential attack, what we don't know is if the program was necessary to do so. We don't know what sort of collateral damage was caused. We don't know if traditional methods of investigation would have worked just as well, with no violations of privacy for Americans. We're just being told on faith to "trust the NSA."

Filed Under: congress, ed snowden, james clapper, james cole, keith alexander, mike rogers, nsa, nsa surveillance, prism

Administration Bangs The Drum In Support Of Needless Protectionism On World IP Day

from the you're-doing-it-wrong dept

Well, today was "World Intellectual Property Day," and I had hoped to just ignore the whole thing, but, as was expected on such a day, the politicians were out in force, talking up the importance of "protecting intellectual property," with none of them really discussing the key issues: whether or not that sort of protectionism really is good for the economy, or the growing body of economic research that shows it is not. At all. Instead, we just get the same statements based on the old myths of intellectual property. Outgoing Commerce Secretary Gary Locke gave a mildly bland statement on the "critical importance" of such protectionist policies. But the really bizarre statement came from James Cole, our recently appointed Deputy Attorney General, who really takes the cake for ill-informed rhetoric concerning innovation and intellectual property.

This country has a deep and rich history of developing innovative products and groundbreaking inventions that have helped to shape our world. Intellectual property is one of America's greatest assets and protection of these assets is vital to our economy, our health, and our legacy.

Thing is... the first sentence and the second sentence have little to do with one another. Our deep and rich history is not because of our intellectual property laws. In fact, much of our history involved very weak IP laws (some of which allowed us to industrialize faster). Recent studies, such as those by Eric von Hippel at MIT, have shown that the vast majority of productive innovation is done for reasons that have nothing to do with intellectual property laws. So why would Cole make such a statement?

Today, as we recognize the 11th Annual World Intellectual Property Day, we celebrate the creativity and innovation of American music, literature, film, art and the inventive spirit that have set this country apart. The growth of new technologies, increased broadband access to the Internet and global manufacturing distribution channels provide increasing opportunities to market American products and creative content around the world.

Yes, and much of that had nothing whatsoever to do with intellectual property laws. In fact, much of it happened in spite of intellectual property laws. The whole film business was launched on the basis of trying to hide from Thomas Edison's patents.

Yet, on this day we must also recognize that there are those who exploit these same technological advances to profit illegally from the hard work of American authors, artists and inventors through criminal copyright infringement, trademark counterfeiting, trade secret theft, economic espionage, and other intellectual property (IP) offenses.

Like the founders of Hollywood? Like Disney, exploiting our cultural heritage and then locking up those works?

Unfortunately, criminals rely upon American consumers to buy their counterfeit goods. According to recent research from the National Crime Prevention Council, most Americans do not fully understand the scope or consequences of intellectual property crime and are susceptible to being swayed by the lure of a bargain, especially in these tough economic times.

Actually, multiple studies have shown that counterfeiting isn't really that big of a problem. It's not that American's don't understand the scope. It's that industries who benefit from excess gov't protectionism have massively inflated the actual problem and most consumers recognize that these concerns are bogus. They know when they're buying a fake purse, and no harm is being done to them or the original brand. The purchase is often aspirational in that they buy the counterfeit when they can afford it, knowing that when they get enough money, they'll buy the real version. In fact, studies have shown that massive numbers of counterfeit purchasers go on to buy the real thing within just a few years. You would think this info would be relevant. Why does Cole ignore it?

As chair of the Department's Task Force on Intellectual Property that Attorney General Eric Holder established last year, I know we must continue to work to change the perception that IP crime is risk-free and victimless through aggressive criminal enforcement of laws designed to protect the American public and ensure the quality of products reaching consumers. Intellectual property crime contributes to the loss of hundreds of thousands of jobs, costs our economy billions of dollars annually and exposes Americans to potentially dangerous products, affecting public health and safety and national security.

Almost nothing in this paragraph is accurate. The "loss" numbers, in both jobs and dollars has been widely debunked. The studies mentioned earlier point out that in many, many cases it is a victimless issue. And, at most, this should be a civil issue between a rightsholder and an infringer. The government has no place in this.

The task force has sought to strengthen IP protections through an increased focus on domestic and international enforcement and better coordination with our state and local law enforcement partners. We've made significant strides to obtain convictions of online distributors of counterfeit pharmaceuticals; large-scale producers and smugglers of counterfeit goods ranging from luxury items to military-grade computer system hardware; distributors of pirated digital movies and music; and those who have misappropriated highly-valued trade secret information from American corporations.

Note the conflation of very, very different types of issues. Also note the ignoring of the massive due process and First Amendment violations that happened in the process of seizing domains from those falsely accused. Gee... I wonder why.

The risk to the public of counterfeits is clear.

No, actually, it's not. There are a few specific cases where there is a risk: genuinely fake medicines (not grey market imports) and counterfeit military & safety equipment. But those are very, very small issues. And yet they're used to give Cole's Justice Department a wide berth in stomping on people's basic rights, turning civil, non-commercial issues into bogus criminal indictments, and taking questionable steps that appear to contradict basic free speech and due process principles.

Though we have accomplished a great deal, we recognize that we cannot rest on what has been done. The attorney general and I are committed to continuing to do more and with your help, we will hold accountable these criminals, protect the American public and safeguard one of America's greatest assets.

Please, don't. You're making things worse, not better. You're encouraging innovation to avoid the US and go elsewhere. You're making the US the laughingstock of the world by seizing domains and censoring the internet while pretending to be in favor of free speech. Innovation does not work by "protecting" anything. It's about enabling. And the DOJ is doing the opposite of that.

Filed Under: intellectual property, james cole, obama administration, protectionism