Using Foreign Nationals to Bypass US Surveillance Restrictions
Remember when the US and Australian police surreptitiously owned and operated the encrypted cell phone app ANOM? They arrested 800 people in 2021 based on that operation.
New documents received by Motherboard show that over 100 of those phones were shipped to users in the US, far more than previously believed.
What’s most interesting to me about this new information is how the US used the Australians to get around domestic spying laws:
For legal reasons, the FBI did not monitor outgoing messages from Anom devices determined to be inside the U.S. Instead, the Australian Federal Police (AFP) monitored them on behalf of the FBI, according to previously published court records. In those court records unsealed shortly before the announcement of the Anom operation, FBI Special Agent Nicholas Cheviron wrote that the FBI received Anom user data three times a week, which contained the messages of all of the users of Anom with some exceptions, including “the messages of approximately 15 Anom users in the U.S. sent to any other Anom device.”
Stewart Baker, partner at Steptoe & Johnson LLP, and Bryce Klehm, associate editor of Lawfare, previously wrote that “The ‘threat to life; standard echoes the provision of U.S. law that allows communications providers to share user data with law enforcement without legal process under 18 U.S.C. § 2702. Whether the AFP was relying on this provision of U.S. law or a more general moral imperative to take action to prevent imminent threats is not clear.” That section of law discusses the voluntary disclosure of customer communications or records.
When asked about the practice of Australian law enforcement monitoring devices inside the U.S. on behalf of the FBI, Senator Ron Wyden told Motherboard in a statement “Multiple intelligence community officials have confirmed to me, in writing, that intelligence agencies cannot ask foreign partners to conduct surveillance that the U.S. would be legally prohibited from doing itself. The FBI should follow this same standard. Allegations that the FBI outsourced warrantless surveillance of Americans to a foreign government raise troubling questions about the Justice Department’s oversight of these practices.”
I and others have long suspected that the NSA uses foreign nationals to get around restrictions that prevent it from spying on Americans. It is interesting to see the FBI using the same trick.