Patriot Act Used By The FBI To Collect Internet Browsing Data, Contradicting Claims Made To Oversight

from the oh-no-this-must-be-the-first-time-the-IC-has-lied-to-its-oversight-[faints] dept

The NSA shut down its bulk phone records collection -- authorized under Section 215 -- after it became apparent it wasn't worth the effort. Reforms put in place by the USA Freedom Act prevented the agency from collecting it all and sorting it out later. Instead, it had to approach telcos with actual targeted requests and only haul away responsive records. The NSA somehow still managed to overcollect records, putting it in violation of the law. The NSA hinted the program had outlived its usefulness anyway, suggesting it had far better collections available under other authorities that it would rather not subject to greater scrutiny.

But this didn't end the government's bulk records collections. It just ended the phone metadata program. The NSA still collects other records in bulk, including banking records and, oddly, books checked out by library patrons. The broad authority of Section 215 could be read to allow the government collect other records, like email metadata and internet activity. Reasoning that people voluntarily create records of their internet use by using third-party services to surf the web, the government hinted it could sweep these up just as easily as it had swept up call records.

The government's attempt to collect internet history under this authority ran into some friction earlier this year when the Senate voted to block this collection. Senator Ron Wyden directly asked the director of national intelligence (DNI) to inform the Senate whether or not agencies under its purview had gathered internet use records under this authority. He received this answer.

In a Nov. 6 letter to Mr. Wyden, John Ratcliffe, the intelligence director, wrote that Section 215 was not used to gather internet search terms, and that none of the 61 orders issued last year under that law by the Foreign Intelligence Surveillance Court involved collection of “web browsing” records.

Wyden took this response to mean that implementing a ban on collection of internet history records could be put into place without negatively affecting any intelligence gathering activities. But when the New York Times pressed DNI John Ratcliffe on specifics, a new party inserted itself into the conversation: the DOJ. According to its response, the FBI had already done the thing the DNI had just told Sen. Wyden it hadn't.

In fact, “one of those 61 orders resulted in the production of information that could be characterized as information regarding browsing,” Mr. Ratcliffe wrote in the second letter. Specifically, one order had approved collection of logs revealing which computers “in a specified foreign country” had visited “a single, identified U.S. web page.”

So, the FBI was collecting internet browsing records, albeit with an order that only targeted foreign users visiting one US web page. Still, this wasn't what the DNI originally said to Sen. Wyden. This set Wyden off. Again. The supposedly honest answer he received in response to his questions wasn't actually all that honest. As he pointed out in his statement, the belated admission raised questions about domestic surveillance and potential abuse of Section 215 authority to collect something the DNI said no one was collecting. And, if nothing changed, there was no guarantee the Intelligence Community wouldn't talk itself into believing a collection of internet browsing data would be cool and legal.

“More generally,” Mr. Wyden continued, “the D.N.I. has provided no guarantee that the government wouldn’t use the Patriot Act to intentionally collect Americans’ web browsing information in the future, which is why Congress must pass the warrant requirement that has already received support from a bipartisan majority in the Senate.”

Previous attempts to erect a warrant requirement for the collection of internet data or search histories have failed to reach the president's desk. This latest admission has refueled the fire to protect Americans (or visitors to American websites) from government overreach. Even if such a collection targets only foreign internet users, there's no guarantee it won't sweep up US citizens -- like pretty much every other bulk collection has.

At this point, everything is up in the air. There's a new president headed into office who might be more receptive to reform efforts, but he's also the man who served the Obama Administration -- one that wasn't all that concerned about domestic surveillance until it became impossible to ignore the documents leaked by Ed Snowden. Even then, its response was tepid at best and it still allowed IC surveillance business to continue pretty much uninterrupted -- something it used to justify extrajudicial killings based on little more than metadata. This needs to be fixed, but surveillance reform advocates still lack majority support. And the guy headed to the White House has never seemed all that concerned about surveillance abuses.

Filed Under: 4th amendment, browsing data, bulk records, doj, fbi, fisa, fisc, john ratcliffe, mass surveillance, metadata, nsa, odni, patriot act, ron wyden, section 215, usa freedom act, warrant

Congress Let Spy Powers Expire Last Month, Which Is Having Almost No Effect On Current Spying

from the hey-you-guys-need-to-knock-it-off-whenever-it's-convenient-for-you dept

Thanks to the goddamn everything else going on in the world right now, we've now learned what happens when Congress lets surveillance authorities expire. Nothing, really. Here's Charlie Savage for the New York Times.

House Democrats left the capital on Friday after passing the $2 trillion coronavirus relief legislation without taking up a Senate bill to temporarily revive three expired F.B.I. surveillance tools for terrorism and espionage investigations, ensuring that the laws will remain lapsed at least until the Senate returns from vacation next month.

The authorities created by the US Patriot Act -- specifically, the bulk collection of business records and roving wiretaps -- both expired on March 15th. More pressing issues backburnered the reauth, which is probably preferable to the alternatives: a blanket reauthorization rush job or some rights-wrecking abomination tacked onto a must-pass coronavirus response bill.

But letting these authorities expire doesn't change much of anything, especially since the FISA Court is presumably on limited duty like other courts in the nation while waiting for the pandemic curve to flatten a bit. It's still business as usual for any surveillance business in progress before the March 15th cutoff, as Julian Sanchez explains.

A so-called savings clause permits the laws to remain in effect for investigations that already existed on March 15, or for new investigations into events that occurred before then.

“The authorities remain available for either investigations open at the time of expiration or investigations predicated on underlying conduct that predates the sunset date,” Mr. Sanchez said.

This means agencies can initiate surveillance using these expired authorities so long as they backdate the impetus for the investigation. We're in the midst of a never-ending War on Terror, so any targets loosely associated with the terrorist networks we've targeted for decades will remain surveilled under expired authorities. And that will continue up until Congress gets around to actually reauthorizing the surveillance that never stopped.

In practice, this means all sorts of surveillance is continuing without explicit Congressional permission. But that's the way the law was written. The escape hatch says nothing needs to stop even when nothing governing surveillance says it's alright to keep going. Securing the nation is too important to be left in the hands of three branches. Congress has cut itself out by not handling the reauthorization in a timely manner. And the FISA Court can't do anything about since it's forced operate (and authorize) in the void Congress created.

There's a lot of power in play here and it's being handled irresponsibly. Just when the FBI has shown it can't be honest with the FISA Court (and hasn't been for most of two decades), no one's stopping anyone from doing anything, much less instituting needed reforms. While tackling the virus may have been the more important job, it's disheartening to know there's really no expiration date on surveillance authorities, no matter what might be said in Congress during these periodic battles over domestic surveillance.

Filed Under: fbi, fisa, fisa court, fisc, patriot act, section 215, surveillance

Senate Punts FISA Reform Bill For At Least 77 Days

from the punting-surveillance dept

Last week, we were perplexed as to why House Democrats had agreed to an extension of NSA/FBI surveillance powers for a President they keep insisting is incompetent and vindictive against anyone he dislikes. At the same time, we couldn't figure out why Republicans were so keen to support it at the same time they were insisting that those same powers were used by the "deep state" to spy on the President's own campaign. After it passed, President Trump hinted that he might veto it anyway, and now with the Covid-19 pandemic in full swing, the Senate has agreed to punt on the issue for the time being, extending the FISA authorities for 77 days, with a promise of debating real reform in the interim:

The Senate on Monday unanimously adopted a short-term extension of key federal surveillance programs that expired on Sunday night — a move that allows the chamber to more rapidly consider legislation addressing the economic impacts of the global coronavirus pandemic.

Senate Majority Leader Mitch McConnell scrapped an initial procedural vote Monday night on a House-passed bill that would reauthorize now-expired provisions of the 2015 USA Freedom Act and alter the Foreign Intelligence Surveillance Act.

Instead, McConnell and his leadership team worked out a deal with civil libertarian hard-liners who oppose that House bill, including Sens. Mike Lee (R-Utah) and Rand Paul (R-Ky.), on a 77-day extension of the surveillance powers.

Of course, we've gone through this before, with extensions being agreed to along with promises of time to debate the issues... and the debate almost never shows up. Instead, we get down to the very last minute again, and something gets shoved through. In this case, given that everyone's attention is really needed in dealing with the pandemic, this seems like a reasonable move, however. I do hope that there actually is a serious debate on the need for these FISA surveillance authorities at some point though.

Filed Under: congress, fbi, fisa, fisa court, fisa warrants, fisc, nsa, section 215, senate, surveillance

Bizarre: Democrats In Congress Agree To Give Trump More Of The Spying Powers He Complains Were Abused Against Him

from the someone-explain dept

If ever there were a time to end Constitutionally questionable FISA surveillance powers it should be now. Democrats have been, quite rightly, concerned about an out of control Trump administration, abusing the powers of government to target his enemies and critics. Republicans have been screaming from the heavens, quite rightly, about the FBI's abuse of the FISA process to conduct surveillance on members of the Trump Campaign. And all this is coming at a time when the crown jewel of the program -- the phone metadata surveillance -- has been shown to have been a huge, wasteful mess that has been effectively useless.

And it's up for renewal. So just kill it.

But, no, that's not how Congress works. Instead, earlier this week, the House worked out a bipartisan "compromise" that lets them each claim victory -- when all it really does is reauthorize powerful, frequently abused, Constitutionally-questionable surveillance powers -- the very same powers that the Trump administration has been insisting are being abused by "the deep state" against the President himself. As Marcy Wheeler explains, the final bill involved Rep. Adam Schiff -- who ran the impeachment effort against Trump, pointing out how incompetent and dangerous Trump can be -- watering down an earlier proposal to make sure that Trump has much greater surveillance powers with less oversight.

Effectively, Adam Schiff took the Jerry Nadler bill, watered down some key provisions, but added a bunch of symbolic certifications that would do nothing to eliminate the kinds of problems in the Carter Page application, probably are less effective than certifications presiding FISA judge James Boasberg required the other day, but give Republicans who are too stupid to understand FISA the ability to claim victory.

She goes on to detail the rather sneaky language in the bill that seems designed deliberately to give William Barr could use the program to hide some pretty scary shit:

Finally, and most outrageously, the government can still move not to give that notice based on a claim that providing it “would harm to the national security of the United States.” Outrageously, they don’t even have to convince a judge that such harm is real. A court “or other authority of the United States” could agree with such a finding. The Attorney General is “an authority of the United States.” So Attorney General Bill Barr — the father of the first subpoena based dragnet — could make a motion saying that notice of a dragnet would harm the national security of the United States, and Attorney General Bill Barr could agree with Bill Barr that that’s the case.

This is how the whole dragnet problem started in the first place, when, in 1992, Bill Barr decided that he could authorized secret dragnets.

I'm sure that won't be abused at all...

Of course, Bill Barr is thrilled with this outcome:

"I have reviewed the House FISA bill and support its passage. The bill contains an array of new requirements and compliance provisions that will protect against abuse and misuse in the future while ensuring that this critical tool is available when appropriate to protect the safety of the American people.

I am pleased that the bill contains a number of provisions Director Wray and I put forward to address past failures, including compliance failures that the Inspector General has identified for us in his recent audit work. The IG’s analysis and recommendations have helped shape our proposals. The Director and I will promulgate additional, implementing rules that advance these reforms.

It is of the utmost important that the Department’s attorneys and investigators always work in a manner consistent with the highest professional standards, and this overall package will help ensure the integrity of the FISA process and protect against future abuses going forward. This legislation deserves broad bi-partisan support."

Because none of this makes sense any more, the bill has both bipartisan support -- and bipartisan opposition, with the opposition coming from those who tend to actually fight to protect our civil liberties from either party. CNN has some of the details:

But the agreement has also come under fire from lawmakers in both parties, criticized by both liberals and libertarian-leaning Republicans for not going far enough to address privacy concerns.

In a sign of the odd alliances over the vote, both the leader of the conservative House Freedom Caucus, Rep. Andy Biggs, and the co-chairs of the liberal Congressional Progressive Caucus, Reps. Pramila Jayapal and Mark Pocan, opposed the measure.

"It's not real reform," said Rep. Zoe Lofgren of California, a Democratic member of the House Judiciary Committee who took part in the negotiations with Democratic leaders.

On the Senate side, Senators Rand Paul, Mike Lee, and Ron Wyden have all complained about the bill as well -- with threats to block and requests for Trump to veto the bill.

And, of course, privacy advocates are reasonably concerned about this as well. The ACLU has asked Congress to vote against the bill:

Over the last several years, it has become abundantly clear that many of our surveillance laws are broken. The Foreign Intelligence Surveillance Court is not equipped to protect Americans’ rights -–with an Inspector General report finding a litany of errors in the government’s applications to the court to surveil Trump campaign advisor Carter Page. During a House hearing last month, FBI Director Christopher Wray agreed with the characterization of at least a portion of the surveillance of Carter Page as illegal. Also last month, the FISC court itself accepted the Justice Department’s position that at least two of the surveillance applications for spying on Page were “invalid” and the court took extraordinary steps to order the government to try to remedy its wrongdoing and avoid a repeat. Despite the secrecy around FISA proceedings, the Page episode offers a window into the abuses that predictably follow from giving the government extraordinary powers with minimal checks and no meaningful due process.

At the same time, Section 215, which is one of the Patriot Act provisions set to expire on March 15th, has been used to engage in large-scale collection of Americans’ information, and the call detail record program operated under the authority has been suspended following compliance violations that resulted in unlawful collection of information.

Despite this record, disappointingly, the reforms contained in H.R. 6172 are minimal –in many cases merely representing a codification of the status quo. In addition, the bill contains provisions that would be a step back from even our flawed current law, including an additional criminal penalty. Given this, we believe that a short six week extension of the expiring

One hopes the criticism of the bill -- and the bizarre situation of Trump possibly signing a bill that continues the program he's been railing against (while pretending to limit it) -- leads this bill to die.

Filed Under: adam schiff, carter page, fisa, fisa renewal, house, mass surveillance, section 215, senate, surveillance, trump administration

Senate May Try To Sneak A Clean Reauth Of Surveillance Powers Into A Must-Pass Coronovirus Bill

from the conspiracy-theorists-v.-surveillance-apologists dept

The USA Freedom Act is up for renewal, bringing with it the usual arguments for preserving the surveillance status quo. But this administration is a little bit different. President Trump remains convinced a Deep State conspiracy exists that is actively trying to unseat him. The FBI added some fuel to the conspiratorial fire by intentionally misleading the FISA court during its investigation of former Trump adviser, Carter Page. The FBI's omission of evidence it had indicating Page wasn't acting as an agent of a foreign power allowed it to continue its surveillance without legal justification.

This has made Trump wary of writing a blank surveillance check. Pervasive surveillance is fine, as long as it doesn't target Trump or his staff. But Trump also firmly believes in sacrificing rights and freedoms on the altar of national security, so there's a new tension on display here.

Attorney General Bill Barr is telling Republicans to listen to Barr's heart and just shove this thing through, no matter what Trump's personal preferences might be.

Attorney General William Barr urged Senate Republicans on Tuesday to renew expiring provisions of a controversial surveillance law that has come under fire from President Donald Trump after its use in investigations into Russian interference in the 2016 election.

And it appears senators are listening… or at least their frontmouth is. Senate Majority Leader Mitch McConnell says it's too important to let expire, much less discuss.

“These tools have been overwhelmingly useful, according to our intelligence advisers, and I hope that when the Senate deals with these expiring provisions in a couple weeks, we’ll be able to continue to have them in law, which will of course provide maximum protection for the American people,” McConnell said.

Maybe some of the tools have been "overwhelmingly useful." But one definitely hasn't. The remodeled Section 215 program -- operating under alterations codified with the USA Freedom Act -- has been a bust. When the NSA wasn't overcollecting records (despite having to request them from telcos specifically and directly), it wasn't doing anything useful with the records it did have. The five years under the USA Freedom Act produced a total of two leads, of which only one led to an actual investigation.

Other Republicans seem willing to push the re-up through with little discussion, promising to fix it in post. Senator Lindsey Graham wants to reauthorize it completely, despite being concerned about the issues raised in the Inspector General's report. Procrastinating on fixing problems first observed more than two decades ago is a pretty lazy take from a party that claims intelligence agencies illegally targeted their president.

A few Republicans are leaning the other way, though, suggesting some more reform of surveillance programs could be on the way.

Rep. Jim Jordan and Sen. Rand Paul have both signaled a desire for some type of reform, with Paul tweeting that he “spoke with Trump,” and that the FISA Court — the secret court which approves certain types of surveillance requests from the intelligence community — should be “forbidden from ever spying on or investigating Americans.”

That's a nice thought, but there's no way the FBI (or DOJ, or any of the other fifteen Intelligence Community components) will agree to stop spying on or investigating Americans. The NSA collections are their goldmine of domestic data/communications that can be searched through handy backdoors marked "foreign surveillance only." Cutting them out of this surreptitious intel supply just isn't going to fly, no matter how many legislators back this curtailment of their surveillance powers.

More tension. With the Coronavirus almost literally hanging over the proceedings, there's a chance a clear reauthorization will be tacked onto legislation addressing this issue to ensure it passes without amendments to the USA Freedom Act or the IC's surveillance powers.

The Trump administration’s request for $2.5 billion to mitigate the coronavirus pandemic is likely to become an unstoppable legislative vehicle — as must-pass legislation that congressional leaders of both parties could use to ram through a reauthorization of the FBI’s call detail records program. Such a move would sidestep the House’s reform effort and instead push through a clean reauthorization of the program.

The Senate, said a Democrat on the House Judiciary Committee, is “threatening to put that clean reauthorization into something like coronavirus funding which would make it impossible to defeat if we don’t come up with a bill here. Pelosi and Schiff will never allow it to expire.”

Some Republican senators want to do some editing of the reauth, mainly for political reasons. Others want zero discussion on the reauthorization and likely would do exactly this to bypass surveillance opponents. It all depends on who gets there first and how much they can add to the Trojan bill before it lands on the president's desk. Given the urgent need to pass a bill to address the spread of the virus, those wanting zero discussion will probably prevail and it will be five more years of business as usual before the next conversation about surveillance programs and powers.

The good news is there seems to be enough people on both sides of the aisle who want to see some reforms enacted so this may end up being one of those rare "must-pass" bills that doesn't have a lot of self-serving garbage attached. We won't know until it's all hashed out, but this is already an anomaly: a bi-partisan agreement that surveillance powers are being abused and some actual oversight should be done by the surveillance state's overseers.

Filed Under: congress, coronavirus, covid19, fbi, mass surveillance, mitch mcconnell, nsa, section 215, surveillance, usa freedom, william barr

NSA Blew $100 Million On Phone Records Over Five Years, Generated Exactly One Usable Lead

from the try-not-to-ask-what-your-country-can-do-for-you-because-as-you-can-see... dept

The telephone metadata program the NSA finally put out to pasture in 2019 was apparently well past its expiration date. Since the initial Snowden leak in 2013, critics have argued the program needed to die since it was obviously the sort of general warrant rummaging (only without the warrant!) the founding fathers headed off with the Fourth Amendment.

The program wasn't remade/remodeled until the passage of the USA Freedom Act in 2015. That took the phone records away from the NSA and left them at their place of origin -- the databases maintained by telcos and other service providers. The government was also required to put forward some sort of articulable suspicion before asking for phone records from telcos.

The NSA was uniquely unprepared to handle these sorts of transactions, having been built from the ground up to collect everything and sort through it later. Now that its searches were more confined, it frequently found itself obtaining more records than it could legally justify having. The cost of compliance managed to outweigh the benefits of the program and the NSA just kind of stopped approaching the FISA court with requests for communications metadata.

Still, proponents argued the program had value -- possibly unrealized -- and that it should not be written out of existence by the periodic surveillance powers renewal process. I have no idea what they planned to use as evidence for these claims. A new report by Charlie Savage for the New York Times makes it clear even the most obligatory cost-benefit analysis should lead Congressional oversight to question why it allowed the modified Section 215 collection to limp along for another five years.

A National Security Agency system that analyzed logs of Americans’ domestic phone calls and text messages cost $100 million from 2015 to 2019, but yielded only a single significant investigation, according to a newly declassified study.

$100 million for a single investigation lead. How's that for ROI? It actually produced two leads, but the other lead was a dead end that terminated an investigation before it could get past its initial stages.

Not only was the program useless, it was also redundant.

It also disclosed that in the four years the Freedom Act system was operational, the National Security Agency produced 15 intelligence reports derived from it. The other 13, however, contained information the F.B.I. had already collected through other means, like ordinary subpoenas to telephone companies.

Killing the program just makes sense. And Congress can do it with during the renewal process for the USA Freedom Act, which expires in March of this year. With this information in the public domain, no one can seriously argue the program should continue to consume tax dollars and provide almost zero usable intel for another five years. Given the fact these agencies can still use subpoenas to target phone records, it would seem far more beneficial for everyone if the NSA and FBI did a bit more targeted snooping, rather than use the Foreign Intelligence Surveillance Act to sweep up Americans' phone records.

Filed Under: mass surveillance, metadata, nsa, phone metadata, section 215, surveillance, usa freedom act

FBI Asks Congress To Permanently Reauthorize The Phone Record Collection The NSA Voluntarily Shut Down

from the IC's-make-a-wish-foundation dept

Earlier this year, the NSA -- after a few months of hedging -- finally mothballed its phone record collection program. The modified phone metadata collection had posed problems for the NSA since its remodeling with the enactment of the USA Freedom Act, which forced the NSA to ask telcos for specific records, rather than just demanding they hand over everything on a rolling 90-day basis.

Whatever benefits this program provided to the NSA was apparently outweighed by the technical problems it created. After hinting at its impending death on a podcast of all things, the NSA made it (sort of) official in May, saying it didn't see any reason to move forward with the collection, not after it had already been unofficially shut down for several months by that point.

The NSA may not need the phone records collection but it appears the FBI thinks it does. The easiest way for Congress to codify the program's shut down would be to let it expire at the end of this year. FBI Director Chris Wray is hoping to prevent a do-nothing Congress from doing nothing and letting the clock run out on the metadata collection.

Wray's testimony to the Senate Intelligence Community asks legislators to flip the switch back to "ON."

NSA’s decision to suspend the CDR program does not mean that Congress should allow the CDR authority to expire. Rather, that decision shows that the Executive Branch is a responsible steward of the authority Congress afforded it, and that the numerous constraints on the government imposed by the FREEDOM Act, including oversight by the FISC, are demanding and effective. As technology changes, our adversaries’ tradecraft and communications habits continue to evolve and adapt. In light of this dynamic environment, the administration supports reauthorization of the CDR provision so that the Government will retain this potentially valuable tool should it prove useful in the future.

Yeah, I know. He said the NSA is trustworthy. It isn't, of course. And neither is the FBI for that matter. But the FBI feels strongly that the program the NSA can't operate without violating the law might be useful at some point in the future for whatever reason. And the FBI wants this authorization to be permanent, so it doesn't have to come down to the SSCI and make this pitch every half-decade. But "just in case" isn't really a compelling reason to keep a questionable authority alive, much less forever.

It's not the only thing the FBI wants permanently authorized. It wants the rest of the business records collection -- the stuff that isn't phone records (but IS bank records, hotel records, car rental records, apartment lease records, etc.) -- permanently reauthorized. This gives the FBI and other members of the Intelligence Community (which now includes the CBP) warrantless access to a wealth of records our courts and Congresspeople haven't declared worthy of Fourth Amendment protections.

Then there are the roving wiretaps. The FBI wants those reauthorized forever, despite its history of abuse. And it wants to be able to target random people for almost no reason whatsoever with the "lone wolf" provision. Normally, it's only able to target individuals in terrorism-related investigations by showing they're tied to an international terrorist group. With this provision, it can target non-US persons based on the hunch they might be their own personal terrorist cell.

The FBI says it has never used this provision, which seems like a clear indication it's not really needed. Nevertheless, the FBI feels this -- like the phone metadata collection -- might become useful at some undetermined point in the future and wants to keep its options open.

This is why surveillance reform is an ongoing battle, not something that can be patched up here and there with legislation. Every reform effort contains sunset periods and when those appear on the horizon, IC members start petitioning Congress to not only reauthorize powers they're not even using, but to do so permanently so they don't have to ask for another renewal every half-decade or so. Every sunset contains the potential for a "forever" authorization of powers the IC doesn't like to discuss in public and have likely been abused periodically, if not frequently. At minimum, IC members should be forced to justify the continuance of expiring collections and authorizations. If they can't offer something better than the FBI's offering here, the programs should be allowed to fade from existence.

Filed Under: 4th amendment, congress, fbi, mass surveillance, metadata, nsa, phone metadata, section 215, surveillance

As The NSA Declares Phone Record Program Dead, Trump Administration Asks For A Permanent Reauthorization

from the learn-how-to-read-a-room,-dudes dept

The NSA decided to abandon its phone data collection earlier this year, stating that it was having all sorts of technical issues collecting only the stuff it was asking for. In the good old days prior to the enactment of the USA Freedom Act, the NSA simply asked for everything. "Reasonable articulable suspicion" now guides the record collection -- something that appears to be too tricky for the NSA to wrap its collective collection powers around.

It's not all the NSA's fault. The telcos now hold the records and only hand over what's asked for when the NSA approaches them. Easier said than done, apparently, as over-collection continues and the NSA seems unable to prevent collecting records it's not actually trying to correct.

But it's also the NSA's fault because it's had plenty of time to get used to the new rules and develop better practices/software to sort through collected data. Of course, the NSA has also hinted the program is of limited usefulness and has seemed willing to give it up for years now, especially if the token sacrifice saves other, far more intrusive programs from the Congressional chopping block.

Is it really shut down, though? That's been a tough question to answer. The NSA did recommend the program be shut down and claims it's just gathering dust at the moment, but there's been nothing definitive delivered to its oversight. Until now. Charlie Savage reports for the New York Times that there's finally official confirmation of the program's (possibly temporary) demise. Exiting Director of National Intelligence Dan Coats' unclassified letter makes it clear the NSA has shut down the program indefinitely.

“The National Security Agency has suspended the call detail records program that uses this authority and deleted the call detail records acquired under this authority,” Mr. Coats wrote. “This decision was made after balancing the program’s relative intelligence value, associated costs, and compliance and data integrity concerns caused by the unique complexities of using these company-generated business records for intelligence purposes.”

This isn't really good news, though. The current administration has other ideas for the program -- and a few other collection authorities -- that would excuse them permanently from periodic review.

In a letter to Congress delivered on Thursday and obtained by The New York Times, the administration urged lawmakers to make permanent the legal authority for the National Security Agency to gain access to logs of Americans’ domestic communications, the USA Freedom Act.

Not sure if Dan Coats is just a team player or he actually believes the NSA can power through its technical struggles and finally get this phone record thing nailed down. Savage reports Dan Coats is on board with plans to permanently reauthorize the program under the theory that technical advances will make this program useful again at some undetermined point in the future.

In addition to the phone record collection, the administration also was a permanent reauthorization of other business record collections, authority to wiretap "lone wolf" suspected terrorists with no ties to foreign powers, and its infamous roving wiretaps that follow the suspects, rather than their phones.

The NSA and its programs are barely subject to oversight as it is. This would further insulate four surveillance programs -- one wholly domestic -- from even a rote appraisal of their use and abuse. And for all the talk about how much trouble the phone record collection is, the outgoing Intelligence Director thinks it's wise to just leave it idling in the driveway until the next time the NSA wants to take it out for a spin.

Filed Under: 215 renewal, bulk records, business records, dan coats, mass surveillance, nsa, privacy, section 215, surveillance

Oversight Report Shows The NSA Did Not Delete All The Inadvertently-Collected Phone Records It Claimed It Had Deleted

from the crossing-the-sec-215-finish-line-in-a-blaze-of-failure dept

Ever since Ed Snowden doxed the NSA's phone records collection, the agency has been coughing up documents showing its multiple collection programs have never not been abused since its was granted more power shortly after the 9/11 attacks.

The putative sacrificial lamb offered up to angry Congressional reps and dismayed citizens was the Section 215 program. Well, only a small part of it, actually. The NSA would continue to hoover up business records without a warrant, but it was having trouble working within the confines of modifications forced upon it by the USA Freedom Act.

Rather than use its considerable expertise to tackle the problem of over-collection, the NSA has apparently decided to abandon this collection altogether. It only took six years since the first Snowden leak, but it's something. But the NSA's uninterrupted string of abuses continued right up to its offer to shutter the program -- something that won't actually be official until Congress codifies the abandonment.

Thanks to yet another FOIA lawsuit, more bad news about the tail end of collection's lifespan has been released. Charlie Savage of the New York Times reports the NSA's claims about its purge of over-collected data were as hollow as any of the dozens of public statements it has offered in response to a steady stream of leaked documents.

Even after the National Security Agency announced last year that it had purged records about Americans because some were inappropriately collected, the agency inadvertently continued to retain some of the data, according to a newly declassified report.

The National Security Agency deleted the remaining data in October 2018 after its inspector general discovered it, the report said. The problem surfaced just as the agency was separately discovering that it was again collecting phone records it had no authority to gather, which came to light last month.

As Savage notes, this report [PDF] sheds some more light on the NSA's decision to pull the plug on the collection. Perhaps the agency is simply tired of generating its own bad press with every new document forced out of its hands by public records requests.

That and the program is likely of limited usefulness, given more people communicate with messaging apps than phone calls at this point in time. On top of that, gathering third-party records without a warrant is no longer a given -- not with the USA Freedom Act modifications and recent Supreme Court decisions.

Every recent development has made the program more of a pain in the ass for the NSA. To that I say, "Good!" But it should have been this way from the start. Engaging in domestic surveillance should be a last resort, not default operating mode. It took most of a decade to turn one domestic surveillance program into a burden for the surveillance agency. Everything the NSA does should be this burdensome. This is the only way it will start treating the powers it has with some respect.

Filed Under: nsa, privacy, section 215, surveillance

Documents Show The NSA's Abuse Of Its Phone Records Collection Continued Right Up Until Its Decision To Pull The Plug

from the too-much-of-a-useless-thing dept

The NSA may have extremely belatedly decided to give up its bulk phone records collection, but that's only after years of dysfunction, abuse, and escalating uselessness. The problems with the NSA's collection of phone records dates back to at least 2004 -- a 14-year streak of violations that may only now be coming to an end because of the NSA's voluntary sunsetting.

For years, the NSA treated the phone records collection as essential to national security. Not much was said about it until Ed Snowden leaked a court order showing the NSA was sweeping up every record possessed by Verizon's business services wing. Then things got heated and the NSA was unable to justify its continued existence.

Once the program was modified, the NSA had even more trouble collecting records lawfully. It may have been limited to performing targeted searches, but it was still somehow able to over-collect. Whether this was due to the NSA's filtering of returned search results or errors on the telco side when providing records, the NSA hasn't definitively said. But it did destroy millions of records it never should have had in the first place, strongly suggesting the agency was still collecting in bulk, despite legislative changes.

The NSA may be winding the program down, but it's not going out without extending its violation streak, as John Bacon reports for USA Today.

The National Security Agency improperly collected phone call records of Americans last fall, months after a previous breach that compelled the agency to destroy millions of records from the contentious program, documents released Wednesday revealed.

The redacted documents, obtained by the ACLU in a Freedom of Information Act lawsuit, do not indicate how many records NSA improperly collected in the October breach, nor which telecommunications provider submitted the improper data.

The NSA is consistent, if nothing else. It continues to violate the rules governing its collections and the American public will be made aware of these abuses months after the fact. This latest revelation didn't come via the ODNI's Tumblr or during a Congressional hearing, but via a lawsuit over withheld documents.

The ACLU notes that this is just more evidence that the NSA can't be trusted with the incredible amount of power it's been given. This is from ACLU staff attorney Patrick Toomey:

The NSA’s collection of Americans’ call records is too sweeping, the compliance problems too many and evidence of the program’s value all but nonexistent.

This is all known now. But every trickle of information about this program has come from FOIA lawsuits and document leaks. None of this has come directly from the NSA or its oversight. This means both entities have been fronting an abusive, useless program for most of two decades and are only now abandoning it because apparently the rigors of compliance outweigh the value of the intel.

Finally, it should be noted the NSA is only ditching the phone records program. It will continue to sweep up other "business records" in bulk. Given its history with this program, it's guaranteed its other collections under this authority are just as abused, and possibly just as worthless.

Filed Under: abuse, business records, mass surveillance, metadata, nsa, phone records, privacy, section 215, surveillance