FBI Successfully Stonewalls Inspector General Into Irrelevance By Withholding Timely Section 215 Documents

from the you-can't-oversee-what-you-can't-actually-see dept

The FBI doesn't just stonewall FOIA requesters. It also stonewalls its in-house investigator. Remember all those deferrals to "lawful authority" and "rigorous oversight" the agency makes when not commenting on controversial surveillance programs? Those really don't mean anything if you lock out the oversight and prevent his office from verifying whether surveillance is being carried out in accordance to laws and FBI policies.

Inspector General Michael Horowitz has been fighting a courageous, but losing, battle against FBI secrecy. As the head of the DOJ's OIG office, you'd think FBI officials would throw a small amount of deference his way. But no. They don't. It has obstructed his investigative work "for years," leading to this sort of thing:

[Horowitz] said the refusal to grant routine requests stalls investigations, including a recent one on FBI material witnesses, such that officials who are under review have sometimes retired or left the agencies before the report is complete.

The FBI won't even release an organizational chart to him. Horowitz took these complaints to Congress earlier this year in hopes of prompting FBI document production by threatening its annual budget.

Section 218 of the Appropriations Act does not permit the use of funds appropriated to the Department of Justice to deny the OIG access to records in the custody of the Department unless in accordance with an express limitation of Section 6(a) of the IG Act. The IG Act, Section 6(a), does not expressly or otherwise limit the OIG's access to the categories of information the FBI maintains it must review before providing records to the OIG. For this reason, we are reporting this matter to the Appropriations Committees in conformity with Section 218.

This, surprisingly, failed to have any effect -- not because the FBI might have deduced Horowitz was actually serious about obtaining the long-delayed documents, but because if there's anything government agencies fear more than a loss of power, it's a loss of funding.

Marcy Wheeler points out that -- during the ruckus surrounding the expiration of Section 215 -- the FBI again passed several of its self-imposed deadlines for document delivery.

The OIG has sent four letters to Congress to report that the FBI has failed to comply with Section 218 by refusing to provide the OIG, for reasons unrelated to any express limitation in Section 6(a) of the IG Act, with timely access to certain records in ongoing OIG reviews. Those reviews are:

• Two FBI whistleblower retaliation investigations, letter dated February 3, 2015, which is available here;
• The FBI documents related to review of the DEA’s use of administrative subpoenas, letter dated February 19, 2015, which is available here;
• The FBI’s use of information derived from collection of telephony metadata under Section 215 of the Patriot Act, letter dated February 25, 2015, which is available here; and
• The FBI’s security clearance adjudication process, letter dated March 4, 2015, which is available here.

As of March 31, 2015, the OIG document requests were outstanding in every one of the reviews and investigations that were the subject of the letters above.

Of particular importance is the delay of documents related to the FBI's use of Section 215 collections. Obviously, having the chance to review this before the vote on reauthorization would have been preferable. If there were any questions about the FBI's involvement, or its use of the collected data, these observations could have potentially played a key role in the provision's renewal, not to mention contributed to the debate surrounding the USA Freedom Act.

Obviously, the FBI preferred to keep legislators in the dark about its participation in Section 215. An ill-informed legislature is more prone to rely on fear-mongering and other baseless assertions. With nothing stating otherwise, the FBI is free to operate under the illusion that its use of the program is by-the-book and that the program itself is effective and useful.

Horowitz is one of the few government officials willing to stand up to the FBI. Unfortunately, it hasn't resulted in better behavior by the agency. Apparently, the FBI feels it does best with minimal oversight and isn't inclined to let anyone -- not even its in-house inspector -- in on its domestic surveillance tactics.

Filed Under: doj, fbi, inspector general, michael horowitz, patriot act, public debate, section 215

UK Spies Knew That Its Surveillance Was Likely Illegal, Which Is Why They Fought To Keep It So Secret

from the but-of-course dept

The latest reporting on the Snowden docs by The Guardian shows that the UK's surveillance operation GCHQ was apparently well aware that its activities were almost certainly open to a "legal challenge" and therefore they were committed to keeping them secret to avoid such a challenge. Note that this is quite different than the official excuse always given about being worried about public disclosure putting national security at risk by revealing "sources and methods." Instead, here it seems clear that the secrecy was for the very reason that many of us suspected: they were pretty sure they're breaking the law, or at least coming so close that it was something the courts would eventually have to decide... but only if the info got out. And, it wasn't just them. They realized that the telcos willingness in passing on info likely opened up other legal challenges as well.

GCHQ lobbied furiously to keep secret the fact that telecoms firms had gone "well beyond" what they were legally required to do to help intelligence agencies' mass interception of communications, both in the UK and overseas.

GCHQ feared a legal challenge under the right to privacy in the Human Rights Act if evidence of its surveillance methods became admissible in court.

GCHQ assisted the Home Office in lining up sympathetic people to help with "press handling", including the Liberal Democrat peer and former intelligence services commissioner Lord Carlile, who this week criticised the Guardian for its coverage of mass surveillance by GCHQ and America's National Security Agency.

Amazingly, they seem to admit that the fear of a public debate/legal challenge was the key reason they fought (and won) a battle to keep such evidence out of trials. That is, even though they could have gone with the old favorite of "national security," instead, they finally admitted reality:

Our main concern is that references to agency practices (ie the scale of interception and deletion) could lead to damaging public debate which might lead to legal challenges against the current regime.

That other point mentioned above, about telcos going "above and beyond" in voluntarily handing over access is also pretty big, considering that the telcos in question had tried the "we're just complying with the law" excuse in the past. But, evidently, they were lying.

The revelations of voluntary co-operation with some telecoms companies appear to contrast markedly with statements made by large telecoms firms in the wake of the first Tempora stories. They stressed that they were simply complying with the law of the countries in which they operated.

In reality, numerous telecoms companies were doing much more than that, as disclosed in a secret document prepared in 2009 by a joint working group of GCHQ, MI5 and MI6.

Later in the report, a GCHQ memo notes that telcos "feared damage to their brands" if the extent of their over-cooperation was revealed. You know how they could have dealt with that? By not going so far above and beyond the law. But, once again, it seems like the telcos have been incredibly willing to screw over their own customers' privacy at every opportunity.

Filed Under: gchq, legality, public debate, surveillance, telcos, uk

What Edward Snowden Has Given Us

from the age-of-the-whistleblower dept

When Edward Snowden first revealed himself as the source of the NSA leaks, the Guardian released a short video interview with him in which he made the following confession:

"The greatest fear that I have regarding the outcome for America of these disclosures is that nothing will change. People will see in the media all of these disclosures. They'll know the lengths that the government is going to grant themselves powers unilaterally to create greater control over American society and global society. But they won't be willing to take the risks necessary to stand up and fight to change things to force their representatives to actually take a stand in their interests."

Less than a week later, Glenn Greenwald was asserting that Snowden's worst fear had not been realized. That same claim was made somewhat more plausibly a few days ago by Philip Bump, writing in The Atlantic under the headline "Edward Snowden is Winning." Even if you don't agree with that optimistic assessment, the narrowness of the defeat of the Amash Amendment shows how far things have come in a few weeks.

But just as interesting as the fact that the debate is taking place, exactly as Snowden hoped, are the collateral benefits that are flowing from his leaks. Jay Rosen has gathered together a number of examples, part of what he calls The Snowden Effect:

Direct and indirect gains in public knowledge from the cascade of events and further reporting that followed Edward Snowden's leaks of classified information about the surveillance state in the U.S.

An interesting post by danah boyd suggests that there may be another important knock-on effect from Snowden's actions:

He's creating a template for how to share information. He's clearly learned from previous whistleblowers and is using many of their tactics. But he's also forged his own path which has had its own follies. Regardless of whether he succeeds or fails in getting asylum somewhere, he's inspired others to think about how they can serve as a check to power. And this is terrifying for any government.

Ironically, the government's efforts to deter future whistleblowers by being tough on Snowden is most likely to backfire. This kind of zero-tolerance approach assumes that those who are engaging in whistleblowing are operating under the same logic, priorities, and values as government actors. Sure, plenty of people don't come forward because they're too scared; that's not new. But because of how the government responded to Snowden, those who are willing to take on the big fight now have a model for how to do it, how to iterate based on what they learned watching Snowden. The US government, far from deterring future whistleblowers, has just incentivized a new generation of them by acting like a megalomaniac.

If, as boyd suggests, a new generation of government whistleblowers come forward to carry on the work Snowden began, that would be an even better result for him than simply leading to a few immediate changes, since it would offer the hope that those might be both durable and continuing.

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Filed Under: discussion, ed snowden, leaks, nsa, nsa surveillance, public debate, the snowden effect

Australian Gov't Censors Plans About Gov't Internet Censorship

from the to-avoid-premature-unnecessary-debate dept

As the Australian government pushes forward with plans to have ISPs spy on users as part of its effort to control and censor the internet, some have made a freedom of information request to see the details of the plan... and the government provided the documents with 90% of the content blacked out. Yes, the government is censoring its plans about censorship. Even better is the "reasoning" for this. Government officials defended the move by saying it:

"may lead to premature unnecessary debate and could potentially prejudice and impede government decision making".

Yes, how dare the people make their views known in a way that lets the government know they don't approve. That would be a representative government, and apparently Australia doesn't believe in such things.

Filed Under: australia, censorship, isps, public debate, spying