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Paul Merrell

Bulk Collection Under Section 215 Has Ended… What's Next? | Just Security - 0 views

  • The first (and thus far only) roll-back of post-9/11 surveillance authorities was implemented over the weekend: The National Security Agency shuttered its program for collecting and holding the metadata of Americans’ phone calls under Section 215 of the Patriot Act. While bulk collection under Section 215 has ended, the government can obtain access to this information under the procedures specified in the USA Freedom Act. Indeed, some experts have argued that the Agency likely has access to more metadata because its earlier dragnet didn’t cover cell phones or Internet calling. In addition, the metadata of calls made by an individual in the United States to someone overseas and vice versa can still be collected in bulk — this takes place abroad under Executive Order 12333. No doubt the NSA wishes that this was the end of the surveillance reform story and the Paris attacks initially gave them an opening. John Brennan, the Director of the CIA, implied that the attacks were somehow related to “hand wringing” about spying and Sen. Tom Cotton (R-Ark.) introduced a bill to delay the shut down of the 215 program. Opponents of encryption were quick to say: “I told you so.”
  • But the facts that have emerged thus far tell a different story. It appears that much of the planning took place IRL (that’s “in real life” for those of you who don’t have teenagers). The attackers, several of whom were on law enforcement’s radar, communicated openly over the Internet. If France ever has a 9/11 Commission-type inquiry, it could well conclude that the Paris attacks were a failure of the intelligence agencies rather than a failure of intelligence authorities. Despite the passage of the USA Freedom Act, US surveillance authorities have remained largely intact. Section 702 of the FISA Amendments Act — which is the basis of programs like PRISM and the NSA’s Upstream collection of information from Internet cables — sunsets in the summer of 2017. While it’s difficult to predict the political environment that far out, meaningful reform of Section 702 faces significant obstacles. Unlike the Section 215 program, which was clearly aimed at Americans, Section 702 is supposedly targeted at foreigners and only picks up information about Americans “incidentally.” The NSA has refused to provide an estimate of how many Americans’ information it collects under Section 702, despite repeated requests from lawmakers and most recently a large cohort of advocates. The Section 215 program was held illegal by two federal courts (here and here), but civil attempts to challenge Section 702 have run into standing barriers. Finally, while two review panels concluded that the Section 215 program provided little counterterrorism benefit (here and here), they found that the Section 702 program had been useful.
  • There is, nonetheless, some pressure to narrow the reach of Section 702. The recent decision by the European Court of Justice in the safe harbor case suggests that data flows between Europe and the US may be restricted unless the PRISM program is modified to protect the information of Europeans (see here, here, and here for discussion of the decision and reform options). Pressure from Internet companies whose business is suffering — estimates run to the tune of $35 to 180 billion — as a result of disclosures about NSA spying may also nudge lawmakers towards reform. One of the courts currently considering criminal cases which rely on evidence derived from Section 702 surveillance may hold the program unconstitutional either on the basis of the Fourth Amendment or Article III for the reasons set out in this Brennan Center report. A federal district court in Colorado recently rejected such a challenge, although as explained in Steve’s post, the decision did not seriously explore the issues. Further litigation in the European courts too could have an impact on the debate.
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  • The US intelligence community’s broadest surveillance authorities are enshrined in Executive Order 12333, which primarily covers the interception of electronic communications overseas. The Order authorizes the collection, retention, and dissemination of “foreign intelligence” information, which includes information “relating to the capabilities, intentions or activities of foreign powers, organizations or persons.” In other words, so long as they are operating outside the US, intelligence agencies are authorized to collect information about any foreign person — and, of course, any Americans with whom they communicate. The NSA has conceded that EO 12333 is the basis of most of its surveillance. While public information about these programs is limited, a few highlights give a sense of the breadth of EO 12333 operations: The NSA gathers information about every cell phone call made to, from, and within the Bahamas, Mexico, Kenya, the Philippines, and Afghanistan, and possibly other countries. A joint US-UK program tapped into the cables connecting internal Yahoo and Google networks to gather e-mail address books and contact lists from their customers. Another US-UK collaboration collected images from video chats among Yahoo users and possibly other webcam services. The NSA collects both the content and metadata of hundreds of millions of text messages from around the world. By tapping into the cables that connect global networks, the NSA has created a database of the location of hundreds of millions of mobile phones outside the US.
  • Given its scope, EO 12333 is clearly critical to those seeking serious surveillance reform. The path to reform is, however, less clear. There is no sunset provision that requires action by Congress and creates an opportunity for exposing privacy risks. Even in the unlikely event that Congress was inclined to intervene, it would have to address questions about the extent of its constitutional authority to regulate overseas surveillance. To the best of my knowledge, there is no litigation challenging EO 12333 and the government doesn’t give notice to criminal defendants when it uses evidence derived from surveillance under the order, so the likelihood of a court ruling is slim. The Privacy and Civil Liberties Oversight Board is currently reviewing two programs under EO 12333, but it is anticipated that much of its report will be classified (although it has promised a less detailed unclassified version as well). While the short-term outlook for additional surveillance reform is challenging, from a longer-term perspective, the distinctions that our law makes between Americans and non-Americans and between domestic and foreign collection cannot stand indefinitely. If the Fourth Amendment is to meaningfully protect Americans’ privacy, the courts and Congress must come to grips with this reality.
Paul Merrell

The Latest Rules on How Long NSA Can Keep Americans' Encrypted Data Look Too Familiar |... - 0 views

  • Does the National Security Agency (NSA) have the authority to collect and keep all encrypted Internet traffic for as long as is necessary to decrypt that traffic? That was a question first raised in June 2013, after the minimization procedures governing telephone and Internet records collected under Section 702 of the Foreign Intelligence Surveillance Act were disclosed by Edward Snowden. The issue quickly receded into the background, however, as the world struggled to keep up with the deluge of surveillance disclosures. The Intelligence Authorization Act of 2015, which passed Congress this last December, should bring the question back to the fore. It established retention guidelines for communications collected under Executive Order 12333 and included an exception that allows NSA to keep ‘incidentally’ collected encrypted communications for an indefinite period of time. This creates a massive loophole in the guidelines. NSA’s retention of encrypted communications deserves further consideration today, now that these retention guidelines have been written into law. It has become increasingly clear over the last year that surveillance reform will be driven by technological change—specifically by the growing use of encryption technologies. Therefore, any legislation touching on encryption should receive close scrutiny.
  • Section 309 of the intel authorization bill describes “procedures for the retention of incidentally acquired communications.” It establishes retention guidelines for surveillance programs that are “reasonably anticipated to result in the acquisition of [telephone or electronic communications] to or from a United States person.” Communications to or from a United States person are ‘incidentally’ collected because the U.S. person is not the actual target of the collection. Section 309 states that these incidentally collected communications must be deleted after five years unless they meet a number of exceptions. One of these exceptions is that “the communication is enciphered or reasonably believed to have a secret meaning.” This exception appears to be directly lifted from NSA’s minimization procedures for data collected under Section 702 of FISA, which were declassified in 2013. 
  • While Section 309 specifically applies to collection taking place under E.O. 12333, not FISA, several of the exceptions described in Section 309 closely match exceptions in the FISA minimization procedures. That includes the exception for “enciphered” communications. Those minimization procedures almost certainly served as a model for these retention guidelines and will likely shape how this new language is interpreted by the Executive Branch. Section 309 also asks the heads of each relevant member of the intelligence community to develop procedures to ensure compliance with new retention requirements. I expect those procedures to look a lot like the FISA minimization guidelines.
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  • This language is broad, circular, and technically incoherent, so it takes some effort to parse appropriately. When the minimization procedures were disclosed in 2013, this language was interpreted by outside commentators to mean that NSA may keep all encrypted data that has been incidentally collected under Section 702 for at least as long as is necessary to decrypt that data. Is this the correct interpretation? I think so. It is important to realize that the language above isn’t just broad. It seems purposefully broad. The part regarding relevance seems to mirror the rationale NSA has used to justify its bulk phone records collection program. Under that program, all phone records were relevant because some of those records could be valuable to terrorism investigations and (allegedly) it isn’t possible to collect only those valuable records. This is the “to find a needle a haystack, you first have to have the haystack” argument. The same argument could be applied to encrypted data and might be at play here.
  • This exception doesn’t just apply to encrypted data that might be relevant to a current foreign intelligence investigation. It also applies to cases in which the encrypted data is likely to become relevant to a future intelligence requirement. This is some remarkably generous language. It seems one could justify keeping any type of encrypted data under this exception. Upon close reading, it is difficult to avoid the conclusion that these procedures were written carefully to allow NSA to collect and keep a broad category of encrypted data under the rationale that this data might contain the communications of NSA targets and that it might be decrypted in the future. If NSA isn’t doing this today, then whoever wrote these minimization procedures wanted to at least ensure that NSA has the authority to do this tomorrow.
  • There are a few additional observations that are worth making regarding these nominally new retention guidelines and Section 702 collection. First, the concept of incidental collection as it has typically been used makes very little sense when applied to encrypted data. The way that NSA’s Section 702 upstream “about” collection is understood to work is that technology installed on the network does some sort of pattern match on Internet traffic; say that an NSA target uses example@gmail.com to communicate. NSA would then search content of emails for references to example@gmail.com. This could notionally result in a lot of incidental collection of U.S. persons’ communications whenever the email that references example@gmail.com is somehow mixed together with emails that have nothing to do with the target. This type of incidental collection isn’t possible when the data is encrypted because it won’t be possible to search and find example@gmail.com in the body of an email. Instead, example@gmail.com will have been turned into some alternative, indecipherable string of bits on the network. Incidental collection shouldn’t occur because the pattern match can’t occur in the first place. This demonstrates that, when communications are encrypted, it will be much harder for NSA to search Internet traffic for a unique ID associated with a specific target.
  • This lends further credence to the conclusion above: rather than doing targeted collection against specific individuals, NSA is collecting, or plans to collect, a broad class of data that is encrypted. For example, NSA might collect all PGP encrypted emails or all Tor traffic. In those cases, NSA could search Internet traffic for patterns associated with specific types of communications, rather than specific individuals’ communications. This would technically meet the definition of incidental collection because such activity would result in the collection of communications of U.S. persons who aren’t the actual targets of surveillance. Collection of all Tor traffic would entail a lot of this “incidental” collection because the communications of NSA targets would be mixed with the communications of a large number of non-target U.S. persons. However, this “incidental” collection is inconsistent with how the term is typically used, which is to refer to over-collection resulting from targeted surveillance programs. If NSA were collecting all Tor traffic, that activity wouldn’t actually be targeted, and so any resulting over-collection wouldn’t actually be incidental. Moreover, greater use of encryption by the general public would result in an ever-growing amount of this type of incidental collection.
  • This type of collection would also be inconsistent with representations of Section 702 upstream collection that have been made to the public and to Congress. Intelligence officials have repeatedly suggested that search terms used as part of this program have a high degree of specificity. They have also argued that the program is an example of targeted rather than bulk collection. ODNI General Counsel Robert Litt, in a March 2014 meeting before the Privacy and Civil Liberties Oversight Board, stated that “there is either a misconception or a mischaracterization commonly repeated that Section 702 is a form of bulk collection. It is not bulk collection. It is targeted collection based on selectors such as telephone numbers or email addresses where there’s reason to believe that the selector is relevant to a foreign intelligence purpose.” The collection of Internet traffic based on patterns associated with types of communications would be bulk collection; more akin to NSA’s collection of phone records en mass than it is to targeted collection focused on specific individuals. Moreover, this type of collection would certainly fall within the definition of bulk collection provided just last week by the National Academy of Sciences: “collection in which a significant portion of the retained data pertains to identifiers that are not targets at the time of collection.”
  • The Section 702 minimization procedures, which will serve as a template for any new retention guidelines established for E.O. 12333 collection, create a large loophole for encrypted communications. With everything from email to Internet browsing to real-time communications moving to encrypted formats, an ever-growing amount of Internet traffic will fall within this loophole.
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    Tucked into a budget authorization act in December without press notice. Section 309 (the Act is linked from the article) appears to be very broad authority for the NSA to intercept any form of telephone or other electronic information in bulk. There are far more exceptions from the five-year retention limitation than the encrypted information exception. When reading this, keep in mind that the U.S. intelligence community plays semantic games to obfuscate what it does. One of its word plays is that communications are not "collected" until an analyst looks at or listens to partiuclar data, even though the data will be searched to find information countless times before it becomes "collected." That searching was the major basis for a decision by the U.S. District Court in Washington, D.C. that bulk collection of telephone communications was unconstitutional: Under the Fourth Amendment, a "search" or "seizure" requiring a judicial warrant occurs no later than when the information is intercepted. That case is on appeal, has been briefed and argued, and a decision could come any time now. Similar cases are pending in two other courts of appeals. Also, an important definition from the new Intelligence Authorization Act: "(a) DEFINITIONS.-In this section: (1) COVERED COMMUNICATION.-The term ''covered communication'' means any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication, including communications in electronic storage."       
Paul Merrell

In Hearing on Internet Surveillance, Nobody Knows How Many Americans Impacted in Data C... - 0 views

  • The Senate Judiciary Committee held an open hearing today on the FISA Amendments Act, the law that ostensibly authorizes the digital surveillance of hundreds of millions of people both in the United States and around the world. Section 702 of the law, scheduled to expire next year, is designed to allow U.S. intelligence services to collect signals intelligence on foreign targets related to our national security interests. However—thanks to the leaks of many whistleblowers including Edward Snowden, the work of investigative journalists, and statements by public officials—we now know that the FISA Amendments Act has been used to sweep up data on hundreds of millions of people who have no connection to a terrorist investigation, including countless Americans. What do we mean by “countless”? As became increasingly clear in the hearing today, the exact number of Americans impacted by this surveillance is unknown. Senator Franken asked the panel of witnesses, “Is it possible for the government to provide an exact count of how many United States persons have been swept up in Section 702 surveillance? And if not the exact count, then what about an estimate?”
  • The lack of information makes rigorous oversight of the programs all but impossible. As Senator Franken put it in the hearing today, “When the public lacks even a rough sense of the scope of the government’s surveillance program, they have no way of knowing if the government is striking the right balance, whether we are safeguarding our national security without trampling on our citizens’ fundamental privacy rights. But the public can’t know if we succeed in striking that balance if they don’t even have the most basic information about our major surveillance programs."  Senator Patrick Leahy also questioned the panel about the “minimization procedures” associated with this type of surveillance, the privacy safeguard that is intended to ensure that irrelevant data and data on American citizens is swiftly deleted. Senator Leahy asked the panel: “Do you believe the current minimization procedures ensure that data about innocent Americans is deleted? Is that enough?”  David Medine, who recently announced his pending retirement from the Privacy and Civil Liberties Oversight Board, answered unequivocally:
  • Elizabeth Goitein, the Brennan Center director whose articulate and thought-provoking testimony was the highlight of the hearing, noted that at this time an exact number would be difficult to provide. However, she asserted that an estimate should be possible for most if not all of the government’s surveillance programs. None of the other panel participants—which included David Medine and Rachel Brand of the Privacy and Civil Liberties Oversight Board as well as Matthew Olsen of IronNet Cybersecurity and attorney Kenneth Wainstein—offered an estimate. Today’s hearing reaffirmed that it is not only the American people who are left in the dark about how many people or accounts are impacted by the NSA’s dragnet surveillance of the Internet. Even vital oversight committees in Congress like the Senate Judiciary Committee are left to speculate about just how far-reaching this surveillance is. It's part of the reason why we urged the House Judiciary Committee to demand that the Intelligence Community provide the public with a number. 
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  • Senator Leahy, they don’t. The minimization procedures call for the deletion of innocent Americans’ information upon discovery to determine whether it has any foreign intelligence value. But what the board’s report found is that in fact information is never deleted. It sits in the databases for 5 years, or sometimes longer. And so the minimization doesn’t really address the privacy concerns of incidentally collected communications—again, where there’s been no warrant at all in the process… In the United States, we simply can’t read people’s emails and listen to their phone calls without court approval, and the same should be true when the government shifts its attention to Americans under this program. One of the most startling exchanges from the hearing today came toward the end of the session, when Senator Dianne Feinstein—who also sits on the Intelligence Committee—seemed taken aback by Ms. Goitein’s mention of “backdoor searches.” 
  • Feinstein: Wow, wow. What do you call it? What’s a backdoor search? Goitein: Backdoor search is when the FBI or any other agency targets a U.S. person for a search of data that was collected under Section 702, which is supposed to be targeted against foreigners overseas. Feinstein: Regardless of the minimization that was properly carried out. Goitein: Well the data is searched in its unminimized form. So the FBI gets raw data, the NSA, the CIA get raw data. And they search that raw data using U.S. person identifiers. That’s what I’m referring to as backdoor searches. It’s deeply concerning that any member of Congress, much less a member of the Senate Judiciary Committee and the Senate Intelligence Committee, might not be aware of the problem surrounding backdoor searches. In April 2014, the Director of National Intelligence acknowledged the searches of this data, which Senators Ron Wyden and Mark Udall termed “the ‘back-door search’ loophole in section 702.” The public was so incensed that the House of Representatives passed an amendment to that year's defense appropriations bill effectively banning the warrantless backdoor searches. Nonetheless, in the hearing today it seemed like Senator Feinstein might not recognize or appreciate the serious implications of allowing U.S. law enforcement agencies to query the raw data collected through these Internet surveillance programs. Hopefully today’s testimony helped convince the Senator that there is more to this topic than what she’s hearing in jargon-filled classified security briefings.
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    The 4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and *particularly describing the place to be searched, and the* persons or *things to be seized."* So much for the particularized description of the place to be searched and the thngs to be seized.  Fah! Who needs a Constitution, anyway .... 
Paul Merrell

White House, Intel Chiefs Want To Make Digital Spying Law Permanent | HuffPost - 0 views

  • The White House and U.S. intelligence chiefs Wednesday backed making permanent a law that allows for the collection of digital communications of foreigners overseas, escalating a fight in Congress over privacy and security. The law, enshrined in Section 702 of the Foreign Intelligence Surveillance Act, is due to expire on December 31 unless Congress votes to reauthorize it, but is considered vital by U.S. intelligence agencies. Privacy advocates have criticized the law though for allowing the incidental collection of data belonging to millions of Americans without a search warrant. The push to make the law permanent may lead to a contentious debate over renewal of Section 702 in Congress, where lawmakers in both parties are deeply divided over whether to adopt transparency and oversight reforms
  • Reuters reported in March that the Trump administration supported renewal of Section 702 without any changes, citing an unnamed White House official, but it was not clear at the time whether it wanted the law made permanent.
Paul Merrell

Stop The NSA's Backdoor: Call Congress Today To Support Key Amendment | Techdirt - 0 views

  • Last week, we noted that there was an effort underway to introduce an amendment for this week's Defense Appropriations bill in the House that would effectively limit some of the most nefarious aspects of the NSA's ability to spy on Americans via two different types of backdoors: (1) so-called "backdoor searches" on Americans' information collected under Section 702 of the FISA Amendments Act and (2) mandating tech companies build in backdoors to their technology for the NSA to go snooping. The Defense Appropriations bill is expected to hit the House floor sometime soon, under open rules, meaning that the amendment in question won't be blocked by the House Rules Committee, as happens on a variety of other bills.
  • The amendment has powerful bipartisan backing, sponsored by Reps. James Sensenbrenner, Thomas Massie and Zoe Lofgren, along with co-sponsors Reps. Conyers, Poe, Gabbard, Jordan, O’Rourke, Amash, and Holt. Having Sensenbrenner bring out this amendment is a big deal. This amendment would restore at least one aspect of the USA Freedom Act that was stripped out at the last minute under pressure from the White House. Sensenbrenner sponsoring this bill highlights that he's clearly not satisfied with how his own bill got twisted and watered down from the original, and he's still working to put back in some of the protections that were removed. Conyers is a powerful force on the other side of the aisle, whose support for the USA Freedom Act was seen by some as a signal that the bill was "okay" to vote on. Having both of them support this Amendment suggests that neither were really that satisfied with the bill and felt pressured into supporting it.
  • While this Amendment doesn't fix everything, it is an important chance for members of Congress to show that they really do support protecting Americans' privacy. But they need to know that. Please contact your Representative today to let them know you want them to support this amendment. The EFF and others have set up a website, ShutTheBackDoor.net, to help you contact your official. Please do so today.
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    "from the speak-up-now dept Last week, we noted that there was an effort underway to introduce an amendment for this week's Defense Appropriations bill in the House that would effectively limit some of the most nefarious aspects of the NSA's ability to spy on Americans via two different types of backdoors: (1) so-called "backdoor searches" on Americans' information collected under Section 702 of the FISA Amendments Act and (2) mandating tech companies build in backdoors to their technology for the NSA to go snooping."
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    "from the speak-up-now dept Last week, we noted that there was an effort underway to introduce an amendment for this week's Defense Appropriations bill in the House that would effectively limit some of the most nefarious aspects of the NSA's ability to spy on Americans via two different types of backdoors: (1) so-called "backdoor searches" on Americans' information collected under Section 702 of the FISA Amendments Act and (2) mandating tech companies build in backdoors to their technology for the NSA to go snooping."
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    Word is that the vote will happen today. If your Congress-critter needs persuading, it's time to jump at that telephone and send a few volts their way. 
Paul Merrell

Tripling Its Collection, NSA Sucked Up Over 530 Million US Phone Records in 2017 - 0 views

  • he National Security Agency (NSA) collected over 530 million phone records of Americans in 2017—that's three times the amount the spy agency sucked up in 2016. The figures were released Friday in an annual report from the Office of the Director of National Intelligence (ODNI). It shows that the number of "call detail records" the agency collected from telecommunications providers during Trump's first year in office was 534 million, compared to 151 million the year prior. "The intelligence community's transparency has yet to extend to explaining dramatic increases in their collection," said Robyn Greene, policy counsel at the Open Technology Institute. The content of the calls itself is not collected but so-called "metadata," which, as Gizmodo notes, "is supposedly anonymous, but it can easily be used to identify an individual. The information can also be paired with other publicly available information from social media and other sources to paint a surprisingly detailed picture of a person's life." The report also revealed that the agency, using its controversial Section 702 authority, increased the number of foreign targets of warrantless surveillance. It was 129,080 in 2017 compared to 106,469 in 2016. As digital rights group EFF noted earlier this year, Under Section 702, the NSA collects billions of communications, including those belonging to innocent Americans who are not actually targeted. These communications are then placed in databases that other intelligence and law enforcement agencies can access—for purposes unrelated to national security—without a warrant or any judicial review. "Overall," Jake Laperruque, senior counsel at the Project On Government Oversight, said to ZDNet, "the numbers show that the scale of warrantless surveillance is growing at a significant rate, but ODNI still won't tell Americans how much it affects them."
Paul Merrell

U.S. Says It Spied on 89,000 Targets Last Year, But the Number Is Deceptive | Threat Le... - 0 views

  • About 89,000 foreigners or organizations were targeted for spying under a U.S. surveillance order last year, according to a new transparency report. The report was released for the first time Friday by the Office of the Director of Intelligence, upon order of the president, in the wake of surveillance leaks by NSA whistleblower Edward Snowden. But the report, which covers only surveillance orders issued in 2013, doesn’t tell the whole story about how many individuals the spying targeted or how many Americans were caught in the surveillance that targeted foreigners. Civil liberties groups say the real number is likely “orders of magnitude” larger than this. “Even if it was an honest definition of ‘target’—that is, an individual instead of a group—that also is not encompassing those who are ancillary to a target and are caught up in the dragnet,” says Kurt Opsahl, deputy general counsel of the Electronic Frontier Foundation.
  • The report, remarkably, shows that the government obtained just one order last year under Section 702 of FISA—which allows for bulk collection of data on foreigners—and that this one order covered 89,138 targets. But, as the report notes, “target” can refer to “an individual person, a group, an organization composed of multiple individuals or a foreign power that possesses or is likely to communicate foreign intelligence information.” Furthermore, Section 702 orders are actually certificates issued by the FISA Court that can cover surveillance of an entire facility. And since, as the government points out in its report, the government cannot know how many people use a facility, the figure only “reflects an estimate of the number of known users of particular facilities (sometimes referred to as selectors) subject to intelligence collection under those Certifications,” the report notes.
  • “If you’re actually trying to get a sense of the number of human beings affected or the number of Americans affected, the number of people affected is vastly, vastly larger,” says Julian Sanchez, senior fellow at the Cato Institute. “And how many of those are Americans is impossible to say. But [although] you may not think you are routinely communicating with foreign persons, [this] is not any kind of assurance that your communications are not part of the traffic subject to interception.” Sanchez points out that each individual targeted is likely communicating with dozens or hundred of others, whose communications will be picked up in the surveillance. “And probably a lot of these targets are not individuals but entire web sites or companies. While [a company like the Chinese firm] Huawei might be a target, thousands of emails used by thousands of employees will be swept up.” How many of those employees might be American or communicating with Americans is unknown.
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  • Also revealed in today’s report is the number of times the government has queried the controversial phone records database it created by collecting the phone records of every subscriber from U.S. providers. According to the report, the government used 423 “selectors” to search its massive phone records database, which includes records going back to at least 2006 when the program began. A search involves querying a specific phone number or device ID that appears in the database. The government has long maintained that its collection of phone records isn’t a violation of its authority, since it only views the records of specific individuals targeted in an investigation. But such searches, even if targeted at phone numbers used by foreigners, would include calls made to and from Americans as well as calls exchanged with people two or three hops out from the targeted number.
  • In its report, the government indicated that the 423 selectors involved just 248 “known or presumed” Americans whose information was collected by the agency in the database. But Opsahl says that both of these numbers are deceptive given what we know about the database and how it’s been used. “We know it’s affecting millions of people,” he points out. But “then we have estimated numbers of affected people [that are just] in the three digits. That requires some effort [on the government's part] to find a way to do the definition of the number [in such a way] to make it as small as possible.”
  • One additional figure today’s report covers is the number of National Security Letters the government issued last year to businesses to obtain data on accountholders and users—19,212. NSLs are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited, and more. These letters are a powerful tool because they do not require court approval, and they come with a built-in gag order, preventing recipients from disclosing to anyone that they have received an NSL. An FBI agent looking into a possible anti-terrorism case can self-issue an NSL to a credit bureau, ISP, or phone company with only the sign-off of the Special Agent in Charge of their office. The FBI has merely to assert that the information is “relevant” to an investigation into international terrorism or clandestine intelligence activities.
  • The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them. Last year a federal judge ruled that the use of NSLs is unconstitutional, due to the gag order that accompanies them, and ordered the government to stop using them. Her ruling, however, was stayed pending the government’s appeal.
  • According to the government’s report today, the 19,000 NSLs issued last year involved more than 38,000 requests for information.
Paul Merrell

ACLU Demands Secret Court Hand Over Crucial Rulings On Surveillance Law - 0 views

  • The American Civil Liberties Union (ACLU) has filed a motion to reveal the secret court opinions with “novel or significant interpretations” of surveillance law, in a renewed push for government transparency. The motion, filed Wednesday by the ACLU and Yale Law School’s Media Freedom and Information Access Clinic, asks the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence gathering activities in secret, to release 23 classified decisions it made between 9/11 and the passage of the USA Freedom Act in June 2015. As ACLU National Security Project staff attorney Patrick Toomey explains, the opinions are part of a “much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans.” Among them is the court order that the government used to direct Yahoo to secretly scanits users’ emails for “a specific set of characters.” Toomey writes: These court rulings are essential for the public to understand how federal laws are being construed and implemented. They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.
  • Although the USA Freedom Act requires the release of novel FISA court opinions on surveillance law, the government maintains that the rule does not apply retroactively—thereby protecting the panel from publishing many of its post-9/11 opinions, which helped create an “unprecedented buildup” of secret surveillance laws. Even after National Security Agency (NSA) whistleblower Edward Snowden revealed the scope of mass surveillance in 2013, sparking widespread outcry, dozens of rulings on spying operations remain hidden from the public eye, which stymies efforts to keep the government accountable, civil liberties advocates say. “These rulings are necessary to inform the public about the scope of the government’s surveillance powers today,” the ACLU’s motion states.
  • Toomey writes that the rulings helped influence a number of novel spying activities, including: The government’s use of malware, which it calls “Network Investigative Techniques” The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA) The government’s warrantless surveillance of Americans under FISA Section 702—a controversial authority scheduled to expire in December 2017 The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act Without these rulings being made public, “it simply isn’t possible to understand the government’s claimed authority to conduct surveillance,” Toomey writes. As he told The Intercept on Wednesday, “The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow. These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”
Paul Merrell

Shaking My Head - Medium - 0 views

  • Last month, at the request of the Department of Justice, the Courts approved changes to the obscure Rule 41 of the Federal Rules of Criminal Procedure, which governs search and seizure. By the nature of this obscure bureaucratic process, these rules become law unless Congress rejects the changes before December 1, 2016.Today I, along with my colleagues Senators Paul from Kentucky, Baldwin from Wisconsin, and Daines and Tester from Montana, am introducing the Stopping Mass Hacking (SMH) Act (bill, summary), a bill to protect millions of law-abiding Americans from a massive expansion of government hacking and surveillance. Join the conversation with #SMHact.
  • For law enforcement to conduct a remote electronic search, they generally need to plant malware in — i.e. hack — a device. These rule changes will allow the government to search millions of computers with the warrant of a single judge. To me, that’s clearly a policy change that’s outside the scope of an “administrative change,” and it is something that Congress should consider. An agency with the record of the Justice Department shouldn’t be able to wave its arms and grant itself entirely new powers.
  • These changes say that if law enforcement doesn’t know where an electronic device is located, a magistrate judge will now have the the authority to issue a warrant to remotely search the device, anywhere in the world. While it may be appropriate to address the issue of allowing a remote electronic search for a device at an unknown location, Congress needs to consider what protections must be in place to protect Americans’ digital security and privacy. This is a new and uncertain area of law, so there needs to be full and careful debate. The ACLU has a thorough discussion of the Fourth Amendment ramifications and the technological questions at issue with these kinds of searches.The second part of the change to Rule 41 would give a magistrate judge the authority to issue a single warrant that would authorize the search of an unlimited number — potentially thousands or millions — of devices, located anywhere in the world. These changes would dramatically expand the government’s hacking and surveillance authority. The American public should understand that these changes won’t just affect criminals: computer security experts and civil liberties advocates say the amendments would also dramatically expand the government’s ability to hack the electronic devices of law-abiding Americans if their devices were affected by a computer attack. Devices will be subject to search if their owners were victims of a botnet attack — so the government will be treating victims of hacking the same way they treat the perpetrators.
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  • As the Center on Democracy and Technology has noted, there are approximately 500 million computers that fall under this rule. The public doesn’t know nearly enough about how law enforcement executes these hacks, and what risks these types of searches will pose. By compromising the computer’s system, the search might leave it open to other attackers or damage the computer they are searching.Don’t take it from me that this will impact your security, read more from security researchers Steven Bellovin, Matt Blaze and Susan Landau.Finally, these changes to Rule 41 would also give some types of electronic searches different, weaker notification requirements than physical searches. Under this new Rule, they are only required to make “reasonable efforts” to notify people that their computers were searched. This raises the possibility of the FBI hacking into a cyber attack victim’s computer and not telling them about it until afterward, if at all.
Paul Merrell

Rand Paul Is Right: NSA Routinely Monitors Americans' Communications Without Warrants - 0 views

  • On Sunday’s Face the Nation, Sen. Rand Paul was asked about President Trump’s accusation that President Obama ordered the NSA to wiretap his calls. The Kentucky senator expressed skepticism about the mechanics of Trump’s specific charge, saying: “I doubt that Trump was a target directly of any kind of eavesdropping.” But he then made a broader and more crucial point about how the U.S. government spies on Americans’ communications — a point that is deliberately obscured and concealed by U.S. government defenders. Paul explained how the NSA routinely and deliberately spies on Americans’ communications — listens to their calls and reads their emails — without a judicial warrant of any kind: The way it works is, the FISA court, through Section 702, wiretaps foreigners and then [NSA] listens to Americans. It is a backdoor search of Americans. And because they have so much data, they can tap — type Donald Trump into their vast resources of people they are tapping overseas, and they get all of his phone calls. And so they did this to President Obama. They — 1,227 times eavesdrops on President Obama’s phone calls. Then they mask him. But here is the problem. And General Hayden said this the other day. He said even low-level employees can unmask the caller. That is probably what happened to Flynn. They are not targeting Americans. They are targeting foreigners. But they are doing it purposefully to get to Americans.
  • Paul’s explanation is absolutely correct. That the NSA is empowered to spy on Americans’ communications without a warrant — in direct contravention of the core Fourth Amendment guarantee that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause” — is the dirty little secret of the U.S. Surveillance State. As I documented at the height of the controversy over the Snowden reporting, top government officials — including President Obama — constantly deceived (and still deceive) the public by falsely telling them that their communications cannot be monitored without a warrant. Responding to the furor created over the first set of Snowden reports about domestic spying, Obama sought to reassure Americans by telling Charlie Rose: “What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls … by law and by rule, and unless they … go to a court, and obtain a warrant, and seek probable cause.” The right-wing chairman of the House Intelligence Committee at the time, GOP Rep. Mike Rogers, echoed Obama, telling CNN the NSA “is not listening to Americans’ phone calls. If it did, it is illegal. It is breaking the law.” Those statements are categorically false. A key purpose of the new 2008 FISA law — which then-Senator Obama voted for during the 2008 general election after breaking his primary-race promise to filibuster it — was to legalize the once-controversial Bush/Cheney warrantless eavesdropping program, which the New York Times won a Pulitzer Prize for exposing in 2005. The crux of the Bush/Cheney controversy was that they ordered NSA to listen to Americans’ international telephone calls without warrants — which was illegal at the time — and the 2008 law purported to make that type of domestic warrantless spying legal.
Paul Merrell

Court gave NSA broad leeway in surveillance, documents show - The Washington Post - 0 views

  • Virtually no foreign government is off-limits for the National Security Agency, which has been authorized to intercept information “concerning” all but four countries, according to top-secret documents. The United States has long had broad no-spying arrangements with those four countries — Britain, Canada, Australia and New Zealand — in a group known collectively with the United States as the Five Eyes. But a classified 2010 legal certification and other documents indicate the NSA has been given a far more elastic authority than previously known, one that allows it to intercept through U.S. companies not just the communications of its overseas targets but any communications about its targets as well.
  • The certification — approved by the Foreign Intelligence Surveillance Court and included among a set of documents leaked by former NSA contractor Edward Snowden — lists 193 countries that would be of valid interest for U.S. intelligence. The certification also permitted the agency to gather intelligence about entities including the World Bank, the International Monetary Fund, the European Union and the International Atomic Energy Agency. The NSA is not necessarily targeting all the countries or organizations identified in the certification, the affidavits and an accompanying exhibit; it has only been given authority to do so. Still, the privacy implications are far-reaching, civil liberties advocates say, because of the wide spectrum of people who might be engaged in communication about foreign governments and entities and whose communications might be of interest to the United States.
  • That language could allow for surveillance of academics, journalists and human rights researchers. A Swiss academic who has information on the German government’s position in the run-up to an international trade negotiation, for instance, could be targeted if the government has determined there is a foreign-intelligence need for that information. If a U.S. college professor e-mails the Swiss professor’s e-mail address or phone number to a colleague, the American’s e-mail could be collected as well, under the program’s court-approved rules
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  • On Friday, the Office of the Director of National Intelligence released a transparency report stating that in 2013 the government targeted nearly 90,000 foreign individuals or organizations for foreign surveillance under the program. Some tech-industry lawyers say the number is relatively low, considering that several billion people use U.S. e-mail services.
  • Still, some lawmakers are concerned that the potential for intrusions on Americans’ privacy has grown under the 2008 law because the government is intercepting not just communications of its targets but communications about its targets as well. The expansiveness of the foreign-powers certification increases that concern.
  • In a 2011 FISA court opinion, a judge using an NSA-provided sample estimated that the agency could be collecting as many as 46,000 wholly domestic e-mails a year that mentioned a particular target’s e-mail address or phone number, in what is referred to as “about” collection. “When Congress passed Section 702 back in 2008, most members of Congress had no idea that the government was collecting Americans’ communications simply because they contained a particular individual’s contact information,” Sen. Ron Wyden (D-Ore.), who has co-sponsored ­legislation to narrow “about” collection authority, said in an e-mail to The Washington Post. “If ‘about the target’ collection were limited to genuine national security threats, there would be very little privacy impact. In fact, this collection is much broader than that, and it is scooping up huge amounts of Americans’ wholly domestic communications.”
  • The only reason the court has oversight of the NSA program is that Congress in 2008 gave the government a new authority to gather intelligence from U.S. companies that own the Internet cables running through the United States, former officials noted. Edgar, the former privacy officer at the Office of the Director of National Intelligence, said ultimately he believes the authority should be narrowed. “There are valid privacy concerns with leaving these collection decisions entirely in the executive branch,” he said. “There shouldn’t be broad collection, using this authority, of foreign government information without any meaningful judicial role that defines the limits of what can be collected.”
Paul Merrell

USA Freedom Act Passes House, Codifying Bulk Collection For First Time, Critics Say - T... - 0 views

  • After only one hour of floor debate, and no allowed amendments, the House of Representatives today passed legislation that opponents believe may give brand new authorization to the U.S. government to conduct domestic dragnets. The USA Freedom Act was approved in a 338-88 vote, with approximately equal numbers of Democrats and Republicans voting against. The bill’s supporters say it will disallow bulk collection of domestic telephone metadata, in which the Foreign Intelligence Surveillance Court has regularly ordered phone companies to turn over such data. The Obama administration claims such collection is authorized by Section 215 of the USA Patriot Act, which is set to expire June 1. However, the U.S. Court of Appeals for the Second Circuit recently held that Section 215 does not provide such authorization. Today’s legislation would prevent the government from issuing such orders for bulk collection and instead rely on telephone companies to store all their metadata — some of which the government could then demand using a “specific selection term” related to foreign terrorism. Bill supporters maintain this would prevent indiscriminate collection.
  • However, the legislation may not end bulk surveillance and in fact could codify the ability of the government to conduct dragnet data collection. “We’re taking something that was not permitted under regular section 215 … and now we’re creating a whole apparatus to provide for it,” Rep. Justin Amash, R-Mich., said on Tuesday night during a House Rules Committee proceeding. “The language does limit the amount of bulk collection, it doesn’t end bulk collection,” Rep. Amash said, arguing that the problematic “specific selection term” allows for “very large data collection, potentially in the hundreds of thousands of people, maybe even millions.” In a statement posted to Facebook ahead of the vote, Rep. Amash said the legislation “falls woefully short of reining in the mass collection of Americans’ data, and it takes us a step in the wrong direction by specifically authorizing such collection in violation of the Fourth Amendment to the Constitution.”
  • “While I appreciate a number of the reforms in the bill and understand the need for secure counter-espionage and terrorism investigations, I believe our nation is better served by allowing Section 215 to expire completely and replacing it with a measure that finds a better balance between national security interests and protecting the civil liberties of Americans,” Congressman Ted Lieu, D-Calif., said in a statement explaining his vote against the bill.
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  • Not addressed in the bill, however, are a slew of other spying authorities in use by the NSA that either directly or inadvertently target the communications of American citizens. Lawmakers offered several amendments in the days leading up to the vote that would have tackled surveillance activities laid out in Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333 — two authorities intended for foreign surveillance that have been used to collect Americans’ internet data, including online address books and buddy lists. The House Rules Committee, however, prohibited consideration of any amendment to the USA Freedom Act, claiming that any changes to the legislation would have weakened its chances of passage.
  • The measure now goes to the Senate where its future is uncertain. Majority Leader Mitch McConnell has declined to schedule the bill for consideration, and is instead pushing for a clean reauthorization of expiring Patriot Act provisions that includes no surveillance reforms. Senators Ron Wyden, D-Ore., and Rand Paul, R-Ky., have threated to filibuster any bill that extends the Patriot Act without also reforming the NSA.
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    Surprise, surprise. U.S. "progressive" groups are waging an all-out email lobbying effort to sunset the Patriot Act. https://www.sunsetthepatriotact.com/ Same with civil liberties groups. e.g., https://action.aclu.org/secure/Section215 And a coalition of libertarian organizations. http://docs.techfreedom.org/Coalition_Letter_McConnell_215Reauth_4.27.15.pdf
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