*Glenn Greenwald* @ggreenwald <https://twitter.com/ggreenwald>2h<https://twitter.com/ggreenwald/status/365933487158603776>
Obama's claim that the debate would have happened absent Snowden's revelations is . . . laughable http://www.washingtonpost.com/blogs/the-swit ch/wp/2013/08/09/the-president-is-wrong-the-nsa-debate-wouldnt-have-happened-without-snowden/ <http://t.co/lQIs32f1BD> ---------------------------------- Cryptome new public key <http://cryptome.org/#Cryptome PK>. *2013-0979.pdf <http://cryptome.org/2013/08/doj-13-0809.pdf> DoJ: NSA Bulk Collection of Telephone Metadata August 9, 2013* *2013-0978.pdf <http://cryptome.org/2013/08/nsa-13-0809.pdf> NSA: Missions, Authorities, Oversight, Partners August 9, 2013* *2013-0976.htm <http://cryptome.org/2013/08/joey006/usa-v-joey006.htm> USA v Lavabit LLC Email Account of Joey006 August 9, 2013* *2013-0974.htm <http://cryptome.org/eyeball/scs-bird/scs-birdseye.htm> NSA Pre-XKeystore in US Embassies 3-2005 Repost August 9, 2013* *2013-0973.htm <http://cryptome.org/eyeball/scs/scs-eyeball.htm> NSA Pre-XKeystore in US Embassies 2-2002 Repost August 9, 2013**2013-0972.htm <http://cryptome.org/cia-nsa-scs.htm> NSA Pre-XKeystore in US Embassies 1-2000 Repost August 9, 2013* --------------------------------------- Obamas Credibility Trap<http://www.emptywheel.net/2013/08/09/obamas-credibility-trap/> By: emptywheel <http://www.emptywheel.net/author/emptywheel/> Friday August 9, 2013 6:28 pm President Obama just stood before the nation and said, And if you look at the reports even the disclosures that Mr. Snowden has put forward all the stories that have been written, what youre not reading about is the government actually abusing these programs and listening in on peoples phone calls or inappropriately reading peoples emails. What youre hearing about is the prospect that these could be abused. Now, part of the reason theyre not abused is because these checks are in place, and those abuses would be against the law and would be against the orders of the FISC. Even as he was speaking, his Administration released a document<http://s3.documentcloud.org/documents/750210/administration-white-paper-section-215.pdf> that said, in part, Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight. In accordance with the Courts rules, upon discovery, these violations were reported to the FISC, which ordered appropriate remedial action. The incidents, and the Courts responses, were also reported to the Intelligence and Judiciary Committees in great detail. These problems generally involved human error or highly sophisticated technology issues related to NSAs compliance with particular aspects of the Courts orders. The FISC has on occasion been critical of the Executive Branchs compliance problems as well as the Governments court filings. However, the NSA and DOJ have corrected the problems identified to the Court, and the Court has continued to authorize the program with appropriate remedial measures. While (as I will show in a future post), Obamas Administration has worked hard to prevent details of these violations from becoming public and delayed even the Judiciary Committees from being briefed, some of them may come out as part of the DOJ Inspector General review that the Administration tried to thwart in 2009. Also, even as he was speaking, EFF announced the government will turn over a redacted copy of the October 3, 2011 FISA Court ruling that found the minimization procedures for Section 702 violated the Fourth Amendment. A new Guardian report<http://www.theguardian.com/world/2013/aug/09/nsa-loophole-warrantless-searches-email-calls> suggests that ruling may pertain<http://www.emptywheel.net/2013/08/09/did-nsa-interpret-adverse-fisc-fourth-amendment-ruling-as-permission-to-search-american-contacts/> to the use of a backdoor to conduct warrantless searches on US person content already collected under Section 702. (While many commentators have insisted the Guardian report provides no evidence of abuse, NSA and DNIs Inspectors General refused to count how often Americans have been searched in such a way, effectively refusing to look if it has been abused.) As Shane Harris astutely describes, all of this kabuki is designed solely<http://blog.foreignpolicy.com/posts/2013/08/09/making_you_comfortable_with_spying_is_obamas_big_nsa_fix> to make people feel more comfortable about these dragnets. And the Presidents message really boiled down to this: Its more important to persuade people surveillance is useful and legal than to make structural changes to the programs. The question is, how do I make the American people more comfortable? Obama said. Not that Obamas unwilling to make any changes to Americas surveillance driftnets and he detailed a few of them but his overriding concern was that people didnt believe him when he said there was nothing to fear. But the President just stood up and claimed the government hasnt abused any of these programs. It has, by its own admission, violated the rules for them. Meanwhile, Ron Wyden has already released a statement<http://www.wyden.senate.gov/news/press-releases/wyden-statement-on-president-obamas-proposed-reforms-to-the-fisc-and-patriot-act> applauding some of these changes while noting that Obama is still minimizing how bad the violations have been. Notably absent from President Obamas speech was any mention of closing the backdoor searches loophole that potentially allows for the warrantless searches of Americans phone calls and emails under section 702 of the Foreign Intelligence Surveillance Act. I believe that this provision requires significant reforms as well and I will continue to fight to close that loophole. I am also concerned that the executive branch has not fully acknowledged the extent to which violations of FISC orders and the spirit of the law have already had a significant impact on Americans privacy. Ultimately, details of these violations will come out, and are on their way out in some form already. If this press conference was designed solely to make us feel better, wouldnt Obama have been better advised to come clean about these violations than to pretend they dont exist? BREAKING! Information is collected on millions of Americans<http://www.emptywheel.net/2013/08/09/breaking-information-is-collected-on-millions-of-americans/> By: emptywheel <http://www.emptywheel.net/author/emptywheel/> Friday August 9, 2013 4:21 pm http://www.youtube.com/watch?v=HIcJ_QFSuUU Obama just gave a press conference to announce some changes to FISA. They include four things: 1. Making some changes to the dragnet program 2. Appointing a privacy officer to do for NSA what DOJs IG has done competently in the past but isnt encouraged to do now 3. Appointing an adversary for major decisions at FISC to represent civil liberties side 4. Having a committee review the programs technically to see if we can improve them (this was something Ron Wyden and Mark Udall pressed for last year but got shot down on) In addition, the Administration released a pretty useless white paper<https://s3.amazonaws.com/s3.documentcloud.org/documents/750223/obama-administrations-legal-rationale-for.pdf> on the dragnet program. Ill have more substantive comments about it later, but for now, note this sentence: Likewise, the program does not violate the First Amendment, particularly given that the *telephony metadata is collected* to serve as an investigative tool in authorized investigations of international terrorism. [my emphasis] Yeah, sure, they dont even try to offer some explanation of how an associational database of all Americans doesnt violate the Freedom of Assembly. But at least theyre finally admitting they do too collect data on millions of Americans. Its well past time to fire James Clapper. Update: Bobby Chesney offers some real analysis<http://www.lawfareblog.com/2013/08/the-presidents-surveillance-reform-initiatives-a-section-by-section-analysis/>. Note I got the order wrong and the Privacy Officer bullet is actually a broader more transparency. NSA-Speak Timely: (Adj.) 2-Month Delay<http://www.emptywheel.net/2013/08/09/nsa-speak-timely-adj-2-month-delay/> By: emptywheel <http://www.emptywheel.net/author/emptywheel/> Friday August 9, 2013 2:19 pm For some reason, this Ellen Nakashima story<http://www.washingtonpost.com/world/national-security/nsa-cites-case-as-success-of-phone-data-collection-program/2013/08/08/fc915e5a-feda-11e2-96a8-d3b921c0924a_print.html> covering parts of what CNN <http://www.cnn.com/2013/02/23/us/somalia-al-shabaab>, Wired <http://www.wired.co.uk/news/archive/2013-06/19/nsa-defence-lawyers>, and I have already reported<http://www.emptywheel.net/2013/07/16/the-8-fisa-judge-11-docket-spying-authorization-to-identify-less-than-10000-to-al-shabaab/> is generating a lot of attention today. While Im grateful that more people are catching on to what Ive been harping on for months that NSA justifies its entire Section 215 metadata dragnet with a case involving the transfer of less than $10,000 to al-Shabaab theres one point that further demonstrates the absurdity of the claim that Nakashima didnt cover. She quotes government officials repeatedly talking about the importance of the 215 dragnet because it provides *timely* identification of numbers. U.S. officials emphasize that those logs do not contain the names of customers or content just metadata, which includes phone numbers and the times and dates of calls. They note that they need a reasonable, articulable suspicion that a number they wish to check in the database is linked to a foreign terrorist group. And they say that without having all the calls in one place and easily searchable with a keystroke, finding links to suspicious numbers would be tedious and *time-consuming*. [snip] U.S. officials argue that Moalins number probably would not have surfaced *at least not in a timely fashion* had it not been for the database. [snip] Had the intelligence community known where Mihdhar and a co-conspirator were and detained them, the simple fact of their detention could have derailed the plan, the 9/11 Commission said<http://www.9-11commission.gov/report/911Report.pdf>. To close that gap, the government created the phone call database. The goal, the reports say, is to *rapidly* identify any terrorist threats emanating from within the United States. The NSA could put together a more limited dataset by going to every phone company and asking for all the numbers that have been in contact with a target number. *But that takes time*, and if analysts want to examine secondary contacts, they would have to go back to the phone company, officials said. [my emphasis] And Nakashima quotes Ron Wyden challenging the timeliness of all this. If time was of the essence, he said, a different court order or administrative subpoena would allow for an emergency request for the records. Wyden noted that both Moalin and the subway plot co-conspirator were arrested months or years after they were first identified by mining the phone logs. But theres a further reason, if Moalin is the exemplar of the practice, to challenge the NSAs claims that the dragnet gives them timeliness they wouldnt get otherwise. Because at least according to the public record, there was a 2-month delay between the time they found the number used to query the 215 database and when they wiretapped Moalin. (Note, I do have significant suspicions that the court record does not accurately reflect what happened, but if it is inaccurate thats the governments own damn fault.) In a hearing <http://judiciary.house.gov/hearings/113th/hear_07172013.html> before the House Judiciary Committee last month, FBIs National Security Division Executive Assistant Director Stephanie Douglas provided more details on how they found (or refound) Moalin. Id like to also represent one case to you, specific to the Business Record 215 authority. In 2003, the FBI initiated a case on an individual identified as Bisaaly Moalin. It was based on anonymous tips that he was somehow connected to terrorism. In 2004 the case was closed without sufficient information to move forward on the investigation. However, *three years later in October 2007, NSA provided a phone number to the FBI with an area code which came back to an area consistent with San Diego*. NSA found this phone number was in contact with an al-Qaida East African affiliated person. Once provided to the FBI, we initiated an investigation, submitted a national security letter for the subscriber of the phone number and determined that it was Mr. Moalin, the subject of the previously closed case. Subsequent investigation led to the identification of others, and to date Moalin and three others have been convicted of material support for terrorism. [my emphasis] The FBI got this lead in October 2007. But an affidavit for a search warrant<http://www.emptywheel.net/wp-content/uploads/2013/08/101029-Search-Warrant1.pdf> at the time Moalin was arrested claims that the government first wiretapped Moalin in December 2007. In December 2007, the FBI began intercepting MOALINs cell phone. And a 2011 report<http://www.emptywheel.net/wp-content/uploads/2013/08/110605-FBI-Report.pdf> summarizing a 2009 assessment (this is the source of Moalins Defense claims that the FBI had concluded he wasnt trying to fund al-Shabaab per se) the Full Investigation into Moalin was initiated on December 18, 2007. All thats with hints from the government opposition to Moalins FISA challenge<http://www.emptywheel.net/wp-content/uploads/2013/07/120217-Govt-Opposition-to-FISA.pdf> that at least some of this intelligence was collected under emergency authorization. (See, for example, the discussion on page 7, and footnote 22, which would probably be unnecessary unless the government did use emergency authorizations at some point in the process.) In other words, even on the signature case using Section 215 and with FBIs use of a National Security Letter to pinpoint Moalin it still took 2 months before they initiated the full investigation into him. And yet they need to collect every Americans phone records so they can quickly get leads they take 2 months to open full investigations into. Posted in FISA <http://www.emptywheel.net/category/fisa/>, PATRIOT<http://www.emptywheel.net/category/patriot/> | Tagged Basaaly Saeed Moalin<http://www.emptywheel.net/tag/basaaly-saeed-moalin/> , Section 215 <http://www.emptywheel.net/tag/section-215/> | *3* Replies<http://www.emptywheel.net/2013/08/09/nsa-speak-timely-adj-2-month-delay/#comments>Did NSA Interpret Adverse FISC Fourth Amendment Ruling as Permission to Search American Contacts?<http://www.emptywheel.net/2013/08/09/did-nsa-interpret-adverse-fisc-fourth-amendment-ruling-as-permission-to-search-american-contacts/> By: emptywheel <http://www.emptywheel.net/author/emptywheel/> Friday August 9, 2013 1:00 pm Finally! The backdoor! The Guardian today confirms<http://www.theguardian.com/world/2013/aug/09/nsa-loophole-warrantless-searches-email-calls> what Ron Wyden and, before him, Russ Feingold have warned about for years. In a glossary updated in June 2012, the NSA claims that minimization rules approved on October 3, 2011 now allow for use of certain United States person names and identifiers as query terms. A secret glossary document provided to operatives in the NSAs Special Source Operations division which runs the Prism program and large-scale cable intercepts through corporate partnerships with technology companies details an update to the minimization procedures that govern how the agency must handle the communications of US persons. That group is defined as both American citizens and foreigners located in the US. While the FAA 702 minimization procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms when reviewing collected FAA 702 data, the glossary states, analysts may NOT/NOT [not repeat not] implement any USP [US persons] queries until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI [Office of the Director of National Intelligence]. The term identifiers is NSA jargon for information relating to an individual, such as telephone number, email address, IP address and username as well as their name. The document which is undated, though metadata suggests this version was last updated in June 2012 does not say whether the oversight process it mentions has been established or whether any searches against US person names have taken place. The Guardian goes on to quote Ron Wyden confirming that this is the back door hes been warning about for years. Once Americans communications are collected, a gap in the law that I call the back-door searches loophole allows the government to potentially go through these communications and conduct warrantless searches for the phone calls or emails of law-abiding Americans. But the Guardian is missing one critical part of this story. The FISC Court didnt just approve minimization procedures on October 3, 2011. In fact, that was the day that it declared<https://www.eff.org/node/74631> that part of the program precisely pertaining to minimization procedures violated the Fourth Amendment. So where the glossary says minimization procedures approved on that date now allow for querying US person data, it almost certainly means that on October 3, 2011, the FISC court ruled the querying the government had already been doing violated the Fourth Amendment, and sent it away to generate an effective oversight process, even while approving the idea in general. And note that FISC didnt, apparently, require that ODNI/DOJ come back to the FISC to approve that new effective oversight process. Consider one more thing. As I have repeatedly<http://www.emptywheel.net/2013/06/25/confirmed-nsa-does-search-section-702-data-for-particular-us-person-data/> highlighted<http://www.emptywheel.net/2013/06/25/nsas-querying-of-us-person-data-take-two/>, the Senate Intelligence Committee (and the Senate Judiciary Committee, though theres no equivalent report) considered<https://www.fas.org/irp/congress/2012_rpt/faa-extend.html> whether to regulate precisely this issue last year when extending the FISA Amendments Act. Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession. The Department of Justice and Intelligence Community reaffirmed that any queries made of Section 702 data will be conducted in strict compliance with applicable guidelines and procedures and do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA. But in spite of Ron Wyden and Mark Udalls best efforts and, it now appears, in spite of FISC concerns about precisely this issue the Senate Intelligence Committee chose not to do so. This strongly suggests that the concerns FISC had about the Fourth Amendment directly pertained to this backdoor search. But if thats the case, it also suggests that none of NSAs overseers not the Intelligence Committees, not ODNI/DOJ, and not FISC have bothered to actually close that back door. - See more at: http://www.emptywheel.net/#sthash.LFVYuog0.dpuf - See more at: http://www.emptywheel.net/#sthash.LFVYuog0.dpuf - See more at: http://www.emptywheel.net/#sthash.LFVYuog0.dpuf - See more at: http://www.emptywheel.net/#sthash.LFVYuog0.dpuf [Non-text portions of this message have been removed] ------------------------------------ --------------------------------------------------------------------------- LAAMN: Los Angeles Alternative Media Network --------------------------------------------------------------------------- Unsubscribe: <mailto:[email protected]> --------------------------------------------------------------------------- Subscribe: <mailto:[email protected]> --------------------------------------------------------------------------- Digest: <mailto:[email protected]> --------------------------------------------------------------------------- Help: <mailto:[email protected]?subject=laamn> --------------------------------------------------------------------------- Post: <mailto:[email protected]> --------------------------------------------------------------------------- Archive1: <http://www.egroups.com/messages/laamn> --------------------------------------------------------------------------- Archive2: <http://www.mail-archive.com/[email protected]> --------------------------------------------------------------------------- Yahoo! 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