Newly-Released Documents Show NSA Claiming An Email Address Is A ‘Facility,’ Skirting Probable Cause Requirements
from the so,-you-know,-more-of-the-same deptIf it’s late Friday afternoon and the public’s attention is focused elsewhere, it must mean it’s time for another document release from James Clapper’s office (ODNI). The heavily-redacted documents dumped by the ODNI deal with the precursors to the FISA Amendments Act (FAA): the Terrorist Surveillance Program (TSP) and 2007’s interim legislation (Protect America Act or PAA) that bridged the gap between the TSP and the FAA.
The most interesting document in the release is an April 3, 2007 order [pdf link] from the FISA court which contains some rare hesitation from a FISA judge (Roger Vinson) as he deals with the NSA’s desire to capture communications without providing probable cause support for its actions.
A footnote attached to the first paragraph of the order makes it clear Judge Vinson felt he was drifting into uncharted waters, with much of that being due to the NSA’s shifting definitions of surveillance terms in its previous legal arguments.
This order and opinion rests on an assumption, rather than a holding, that the surveillance at issue is ‘electronic surveillance’ as defined at 50 U.S.C. 1801(f), and that the application is within the jurisdiction of this Court.
Vinson’s order points out that the NSA attempted to change the rules of its interception program, both in terms of the evidence it provides as well as its desire to collect communications of known US persons.
Until recently, these were the only circumstances in which the government had sought, or this Court had entered, a FISA order authorizing electronic surveillance of the telephone or e-mail communications of suspected international terrorists. However, on December 13, 2006, in Docket No. [redacted], the government filed an application seeking an order that would authorize the electronic surveillance of telephone numbers and e-mail addresses thought to be used by international terrorists without a judge’s making the probable cause findings described above, either before the initiation of surveillance of within the 72 hours specified in 1805(f)…
The NSA claimed in its support memos that the probable cause finding was preventing the agency from working at maximum efficiency, causing it to fall behind a constantly moving terrorist threat. In addition, its January 2007 requests included one seeking permission to collect communications from known US persons, again without meeting even the lowered bar of probable cause required by the FISA court. While the court did hand down a number of stipulations, it allowed the NSA to use its proposed “emergency FISA application” to skirt probable cause requirements and the 72-hour notice period. It also granted this for rolling 90-day periods, subject to renewal. By doing this, the FISA court turned “emergency” surveillance into the new normal.
Beyond that, the NSA also sought to expand its set of “selectors.” Previously, email addresses and phone numbers known to be used by (or about to be used by) members or agents of “foreign powers” or other redacted terrorist organizations were the only ones allowed to be used as selectors when collecting communications. In these applications, the NSA wanted to start contact chaining — tasking email addresses or phone numbers that referred to previous selectors as new selectors. Judge Vinson’s order notes that there’s no way the NSA can hope to meet the probable cause requirement by doing this.
The acquisition of e-mail communications because they refer to a selector e-mail address does not appear to have been authorized under FISA prior to Docket [redacted] and is discussed further below.
The “further discussion” includes Vinson highlighting this relevant part of the FISA court’s probable cause requirements.
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.
Because the NSA couldn’t credibly claim that these new guilty-by-association selectors are being used by the targets it was authorized to collect from, the agency deployed a number of word games. Vinson points out that one memorandum of law defines “facilities” one way (more traditionally as an operations base), while the most recent one defined the word quite differently. (In particular, the NSA maintained that an email address or phone number is a “facility” in and of itself, simply because both “facilitate the transmission of communications.” Footnote on page 32.)
Underlying the government’s position, therefore, is the premise that 1805(a)(3)(B) can be applied so variously that a FISA judge has great discretion in determining what “facilities” should be the subject of the judge’s probable cause analysis.
Much of what follows is redacted, especially where further clarification would be extremely useful. Reading between the black blocks, it appears the NSA attempted to argue that the collection of communications was distinct from the term “electronic surveillance,” except for the gathering of internet communications, which it claims is synonymous with the statutory definition. After reading through the government’s multiple citations (most of which the judge deems irrelevant) in support of its seemingly contrary arguments, Vinson arrives at this conclusion.
Tellingly, none of the cited eases stand for the proposition on which this application rests that electronic surveillance is not ‘directed’ at particular phone numbers and e-mail addresses.
That would be the NSA’s argument that a “facility” can be an email address, except for the times when the more traditional definition allows it to cast a wider net. Vinson further points out that accepting the NSA’s arguments means discarding the intent of Congress and removing the court’s ability to act as a check against executive branch overreach.
However, even if the statutory language were as elastic as the government contends, it would still be incumbent on me to apply the language in the manner that furthers the intent of Congress. In determining what interpretation would best further congressional intent, it is appropriate to consult legislative history. That legislative history makes clear that the purpose of pre-surveillance judicial review is to protect the fourth amendment rights of US persons. Congress intended the pre-surveillance “judicial warrant procedure,” and particularly the judge’s probable cause findings, to provide an “external check” on executive branch decisions to conduct surveillance.
Contrary to this intent of Congress, the probable cause inquiry proposed by the government could not possibly restrain executive branch decisions to direct surveillance at any particular individual, telephone number or e-mail address.
Thus, under the government’s interpretation, the judge’s probable cause findings have no bearing on the salient question: whether the communications to be acquired will relate to the targeted foreign powers. As discussed below, the government would have all of the probable cause findings bearing on that question made by executive branch officials, subject to after-the-fact reporting to the Court, through processes characterized by the government as minimization. That result cannot be squared with the statutory purpose of providing a pre-surveillance “external check” on surveillance decisions, or with the expectation of Congress that the role of the FISA judge would be the same as that of judges under existing law enforcement warrant procedures.
I am unable, on the basis of the facts submitted by the applicant, to find probable cause to believe that each of these facilities “is being used, or is about to be used, by a foreign power or an agent of a foreign power.” The application contains no facts that would support such a finding.
In this, we see the NSA behaving much like its spiritual brethren in law enforcement and investigative agencies — seeking to route around probable cause requirements under the pretense that bad guys will always be at least one step ahead if the government is forced to follow the rules. Rather than stay within the confines, the NSA plays word games in an effort to bypass governing statutes. The agency has demonstrated repeatedly that it has little desire to work within the framework of the law and has on multiple occasions attempted to short-circuit the system by feeding the court bad information and pursuing elliptical legal arguments. The end result is the current surveillance framework, thanks to the FISA Amendments Act’s codifying of the NSA’s questionable collections under the Protect America Act.
Snowden Calls Russian-Spy Story “Absurd” in Exclusive Interview
Edward J. Snowden, the former National Security Agency contractor turned whistle-blower, strongly denies allegations made by members of Congress that he was acting as a spy, perhaps for a foreign power, when he took hundreds of thousands of classified U.S. government documents. Speaking from Moscow, where he is a fugitive from American justice, Snowden told The New Yorker, “This ‘Russian spy’ push is absurd.”
NSA ‘hacking unit’ infiltrates computers around the world – report
• NSA: Tailored Access Operations a ‘unique national asset’
• Former NSA chief calls Edward Snowden a ‘traitor’,
- The Guardian, Sunday 29 December 2013
A Top-secret National Security Agency hacking unit infiltrates computers around the world and breaks into the toughest data targets, according to internal documents quoted in a magazine report on Sunday.
Details of how the division, known as Tailored Access Operations (TAO), steals data and inserts invisible “back door” spying devices into computer systems were published by the German magazine Der Spiegel.
Edward Snowden declares ‘mission accomplished’ in Moscow interview
Tuesday 24 December, 2013;
[…] Guardian: We have published 1 pct of Snowden leak
By Associated Press, Updated: 2013, Tuesday, December 3, 11:49 AM
LONDON — The editor of the Guardian said Tuesday his newspaper has published just 1 percent of the material it received from former National Security Agency contractor Edward Snowden, and denied the paper had placed lives or national security at risk.
Under questioning by lawmakers on Parliament’s home affairs committee, Alan Rusbridger accused British authorities of trying to intimidate the newspaper, and warned of “national security being used as a trump card” to stifle debate. […] Click here to read entire: http://www.washingtonpost.com/world/europe/guardian-we-have-published-1-pct-of-snowden-leak/2013/12/03/55d5a4f4-5c31-11e3-8d24-31c016b976b2_story.html
XKeyscore presentation from 2008 – read in full
Training materials for the XKeyscore program detail how analysts can use it and other systems to mine enormous agency databases and develop intelligence from the web
London Guardian Edward Snowden links page;
Keiser Report: PRISM, SOPA, PIPA, ACTA, etc. Copyright Prostitutes! (E456)
NSA surveillance: The US is behaving like China
Both governments think they are doing what is best for the state and people. But, as I know, such abuse of power can ruin lives
The Guardian, Tuesday 11 June 2013
NSA: ‘Spying on More Than They Can Handle’ TheAlyonaShow
State Dept ‘Doesn’t Understand what the Internet is’
Aaron Swartz – The Network Transformation
Who Really Killed Aaron Swartz?
Reddit co-founder and free speech activist Aaron Scwartz killed himself due to government censorship and harassment linked here . (He was probably clinically depressed linked here and apparently committed suicide; no one is alleging that he was murdered.)
Aaron developed RSS, created the architecture for the Creative Commons licensing system, helped lead the charge against SOPA and other Internet censorship attempts, and fought passionately for free speech and the use of the Web as a force for good.
In his honor, can Reddit stop censoring? As we noted linked here last month:
Reddit [is] censoring.
I’m not talking about censoring specific websites (For example, I was informed today that Reddit’s News category censors all stories from this website. But that’s just an example). I’m talking about censoring entire categories of news media.
Specifically, Reddit’s WorldNews category has 2.5 million linked here subscribers. Most tv news shows have less than linked here 2.5 million daily viewers. So that means that Reddit’s WorldNews is itself a mainstream media source in terms of numbers. And many more people see WorldNews stories on the front page of Reddit, even if they are not subscribers to the WorldNews subreddit.
Yet WorldNews censors blogs, and doesn’t consider them real news sources. Here’s a discussion I had recently with WorldNews moderators: Click here for the rest of the article found here;
Zbigniew Brezezinski acknowledges that Internet Freedom is threatening to derail the move towards a new world order.
(…) accelerating social change driven by “instant mass communications such as radio, television and the Internet,” which have been cumulatively stimulating “a universal awakening of mass political consciousness.”(…)
Internet freedom and digital e-identity are like oil & water, they don’t mix, yet the Internet is being targeted as a vehicle to implement the digital identification of each human on earth (some folks will call that the mark of the beast. (I have yet to be convinced, I underlined the ‘a’ before the word vehicle) by the globalists who want to tax and control the entire world. We have had despots and kings, dictators and prime ministers, and presidents of both governments and corporations who have wanted that kind of power. Megalomania is nothing new to the world. Calling the present western world’s secret societies The New World Order does not necessarily mean that it is the vehicle that will be used to bring in the biblical end times mark of the beast.
There are many people and organizations who would rather that the Internet had never been invented