Entries Tagged "FISA"

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Reforming the FISA Court

The Brennan Center has a long report on what’s wrong with the FISA Court and how to fix it.

At the time of its creation, many lawmakers saw constitutional problems in a court that operated in total secrecy and outside the normal “adversarial” process…. But the majority of Congress was reassured by similarities between FISA Court proceedings and the hearings that take place when the government seeks a search warrant in a criminal investigation. Moreover, the rules governing who could be targeted for “foreign intelligence” purposes were narrow enough to mitigate concerns that the FISA Court process might be used to suppress political dissent in the U.S. — or to avoid the stricter standards that apply in domestic criminal cases.

In the years since then, however, changes in technology and the law have altered the constitutional calculus. Technological advances have revolutionized communications. People are communicating at a scale unimaginable just a few years ago. International phone calls, once difficult and expensive, are now as simple as flipping a light switch, and the Internet provides countless additional means of international communication. Globalization makes such exchanges as necessary as they are easy. As a result of these changes, the amount of information about Americans that the NSA intercepts, even when targeting foreigners overseas, has exploded.

Instead of increasing safeguards for Americans’ privacy as technology advances, the law has evolved in the opposite direction since 9/11…. While surveillance involving Americans previously required individualized court orders, it now happens through massive collection programs…involving no case-by-case judicial review. The pool of permissible targets is no longer limited to foreign powers — such as foreign governments or terrorist groups — and their agents. Furthermore, the government may invoke the FISA Court process even if its primary purpose is to gather evidence for a domestic criminal prosecution rather than to thwart foreign threats.

…[T]hese developments…have had a profound effect on the role exercised by the FISA Court. They have caused the court to veer off course, departing from its traditional role of ensuring that the government has sufficient cause to intercept communications or obtain records in particular cases and instead authorizing broad surveillance programs. It is questionable whether the court’s new role comports with Article III of the Constitution, which mandates that courts must adjudicate concrete disputes rather than issuing advisory opinions on abstract questions. The constitutional infirmity is compounded by the fact that the court generally hears only from the government, while the people whose communications are intercepted have no meaningful opportunity to challenge the surveillance, even after the fact.

Moreover, under current law, the FISA Court does not provide the check on executive action that the Fourth Amendment demands. Interception of communications generally requires the government to obtain a warrant based on probable cause of criminal activity. Although some courts have held that a traditional warrant is not needed to collect foreign intelligence, they have imposed strict limits on the scope of such surveillance and have emphasized the importance of close judicial scrutiny in policing these limits. The FISA Court’s minimal involvement in overseeing programmatic surveillance does not meet these constitutional standards.


Fundamental changes are needed to fix these flaws. Congress should end programmatic surveillance and require the government to obtain judicial approval whenever it seeks to obtain communications or information involving Americans. It should shore up the Article III soundness of the FISA Court by ensuring that the interests of those affected by surveillance are represented in court proceedings, increasing transparency, and facilitating the ability of affected individuals to challenge surveillance programs in regular federal courts. Finally, Congress should address additional Fourth Amendment concerns by narrowing the permissible scope of “foreign intelligence surveillance” and ensuring that it cannot be used as an end-run around the constitutional standards for criminal investigations.

Just Security post — where I copied the above excerpt. Lawfare post.

Posted on March 24, 2015 at 9:04 AMView Comments

NSA Spied on Prominent Muslim Americans

The latest story from the Snowden documents is about five prominent Muslim Americans who were spied on by the NSA and FBI. It’s a good story, and I recommend reading it in its entirety. I have a few observations.

One, it’s hard to assess the significance of this story without context. The source document is a single spreadsheet that lists 7,485 e-mail addresses monitored between 2002 and 2008.

The vast majority of individuals on the “FISA recap” spreadsheet are not named. Instead, only their email addresses are listed, making it impossible in most cases to ascertain their identities. Under the heading “Nationality,” the list designates 202 email addresses as belonging to “U.S. persons,” 1,782 as belonging to “non-U.S. persons,” and 5,501 as “unknown” or simply blank. The Intercept identified the five Americans placed under surveillance from their email addresses.

Without knowing more about this list, we don’t know whether this is good or bad. Is 202 a lot? A little? Were there FISA warrants that put these people on the list? Can we see them?

Two, the 2008 date is important. In July of that year, Congress passed the FISA Amendments Act, which restricted what sorts of surveillance the NSA can do on Americans. So while this story tells us about what was happening before the FAA, we don’t know what — if anything — changed with the passage of the FAA.

Three, another significant event at the time was the FBI’s prosecution of the Holy Land Foundation on terrorism charges. This brought with it an overly broad investigation of Muslim Americans who were just associated with that charity, but that investigation came with approved warrants and all the due process it was supposed to have. How many of the Americans on this list are there as a result of this one case?

Four, this list was just the starting point for a much broader NSA surveillance effort. As Marcy Wheeler pointed out, these people were almost certainly associationally mapped. CAIR founder Nihad Awad is one of the NSA targets named in the story. CAIR is named in an EFF lawsuit against the NSA. If Awad had any contact with the EFF in 2008, then they were also being spied on — that’s one hop. Since I had lots of contact with the EFF in the affected time period, I was being spied on as well — that’s two hops. And if any of you e-mailed me around that time — well, that’s three hops. This isn’t “just metadata”; this is full-take content that’s stored forever. And, yes, the president instructed the NSA to only spy people up to two hops away this January, but that was just one program under one authority.

This is a hard story to analyze, because it’s more anecdote than data. I much preferred last Saturday’s story that tried to analyze broad trends about who the subjects of NSA surveillance are. But anecdotes are more persuasive than data, so this story might be more compelling to a mainstream audience.

Other commentary: EFF, Ben Wittes, the Director of National Intelligence. I’m curious to watch how this story unfolds in the media.

One final note: I just couldn’t think of a headline more sensationalist than the descriptive one.

Posted on July 9, 2014 at 12:39 PMView Comments

Espionage vs. Surveillance

According to NSA documents published in Glenn Greenwald’s new book No Place to Hide, we now know that the NSA spies on embassies and missions all over the world, including those of Brazil, Bulgaria, Colombia, the European Union, France, Georgia, Greece, India, Italy, Japan, Mexico, Slovakia, South Africa, South Korea, Taiwan, Venezuela and Vietnam.

This will certainly strain international relations, as happened when it was revealed that the U.S. is eavesdropping on German Chancellor Angela Merkel’s cell phone — but is anyone really surprised? Spying on foreign governments is what the NSA is supposed to do. Much more problematic, and dangerous, is that the NSA is spying on entire populations. It’s a mistake to have the same laws and organizations involved with both activities, and it’s time we separated the two.

The former is espionage: the traditional mission of the NSA. It’s an important military mission, both in peacetime and wartime, and something that’s not going to go away. It’s targeted. It’s focused. Decisions of whom to target are decisions of foreign policy. And secrecy is paramount.

The latter is very different. Terrorists are a different type of enemy; they’re individual actors instead of state governments. We know who foreign government officials are and where they’re located: in government offices in their home countries, and embassies abroad. Terrorists could be anyone, anywhere in the world. To find them, the NSA has to look for individual bad actors swimming in a sea of innocent people. This is why the NSA turned to broad surveillance of populations, both in the U.S. and internationally.

If you think about it, this is much more of a law enforcement sort of activity than a military activity. Both involve security, but just as the NSA’s traditional focus was governments, the FBI’s traditional focus was individuals. Before and after 9/11, both the NSA and the FBI were involved in counterterrorism. The FBI did work in the U.S. and abroad. After 9/11, the primary mission of counterterrorist surveillance was given to the NSA because it had existing capabilities, but the decision could have gone the other way.

Because the NSA got the mission, both the military norms and the legal framework from the espionage world carried over. Our surveillance efforts against entire populations were kept as secret as our espionage efforts against governments. And we modified our laws accordingly. The 1978 Foreign Intelligence Surveillance Act (FISA) that regulated NSA surveillance required targets to be “agents of a foreign power.” When the law was amended in 2008 under the FISA Amendments Act, a target could be any foreigner anywhere.

Government-on-government espionage is as old as governments themselves, and is the proper purview of the military. So let the Commander in Chief make the determination on whose cell phones to eavesdrop on, and let the NSA carry those orders out.

Surveillance is a large-scale activity, potentially affecting billions of people, and different rules have to apply – the rules of the police. Any organization doing such surveillance should apply the police norms of probable cause, due process, and oversight to population surveillance activities. It should make its activities much less secret and more transparent. It should be accountable in open courts. This is how we, and the rest of the world, regains the trust in the US’s actions.

In January, President Obama gave a speech on the NSA where he said two very important things. He said that the NSA would no longer spy on Angela Merkel’s cell phone. And while he didn’t extend that courtesy to the other 82 million citizens of Germany, he did say that he would extend some of the U.S.’s constitutional protections against warrantless surveillance to the rest of the world.

Breaking up the NSA by separating espionage from surveillance, and putting the latter under a law enforcement regime instead of a military regime, is a step toward achieving that.

This essay originally appeared on CNN.com.

Posted on May 14, 2014 at 12:08 PMView Comments

NSA Eavesdropping on Google and Yahoo Networks

The Washington Post reported that the NSA is eavesdropping on the Google and Yahoo private networks — the code name for the program is MUSCULAR. I may write more about this later, but I have some initial comments:

  • It’s a measure of how far off the rails the NSA has gone that it’s taking its Cold War–era eavesdropping tactics — surreptitiously eavesdropping on foreign networks — and applying them to US corporations. It’s skirting US law by targeting the portion of these corporate networks outside the US. It’s the same sort of legal argument the NSA used to justify collecting address books and buddy lists worldwide.
  • Although the Washington Post article specifically talks about Google and Yahoo, you have to assume that all the other major — and many of the minor — cloud services are compromised this same way. That means Microsoft, Apple, Facebook, Twitter, MySpace, Badoo, Dropbox, and on and on and on.
  • It is well worth re-reading all the government denials about bulk collection and direct access after PRISM was exposed. It seems that it’s impossible to get the truth out of the NSA. Its carefully worded denials always seem to hide what’s really going on.
  • In light of this, PRISM is really just insurance: a way for the NSA to get legal cover for information it already has. My guess is that the NSA collects the vast majority of its data surreptitiously, using programs such as these. Then, when it has to share the information with the FBI or other organizations, it gets it again through a more public program like PRISM.
  • What this really shows is how robust the surveillance state is, and how hard it will be to craft laws reining in the NSA. All the bills being discussed so far only address portions of the problem: specific programs or specific legal justifications. But the NSA’s surveillance infrastructure is much more robust than that. It has many ways into our data, and all sorts of tricks to get around the law. Note this quote from yesterday’s story:

    John Schindler, a former NSA chief analyst and frequent defender who teaches at the Naval War College, said it is obvious why the agency would prefer to avoid restrictions where it can.

    “Look, NSA has platoons of lawyers, and their entire job is figuring out how to stay within the law and maximize collection by exploiting every loophole,” he said. “It’s fair to say the rules are less restrictive under Executive Order 12333 than they are under FISA,” the Foreign Intelligence Surveillance Act.

    No surprise, really. But it illustrates how difficult meaningful reform will be. I wrote this in September:

    It’s time to start cleaning up this mess. We need a special prosecutor, one not tied to the military, the corporations complicit in these programs, or the current political leadership, whether Democrat or Republican. This prosecutor needs free rein to go through the NSA’s files and discover the full extent of what the agency is doing, as well as enough technical staff who have the capability to understand it. He needs the power to subpoena government officials and take their sworn testimony. He needs the ability to bring criminal indictments where appropriate. And, of course, he needs the requisite security clearance to see it all.

    We also need something like South Africa’s Truth and Reconciliation Commission, where both government and corporate employees can come forward and tell their stories about NSA eavesdropping without fear of reprisal.

    Without this, crafting reform legislation will be impossible.

  • Finally, we need more encryption on the Internet. We have made surveillance too cheap, not just for the NSA but for all nation-state adversaries. We need to make it expensive again.

EDITED TO ADD (11/1): We don’t actually know if the NSA did this surreptitiously, or if it had assistance from another US corporation. Level 3 Communications provides the data links to Google, and its statement was sufficiently non-informative as to be suspicious:

In a statement, Level 3 said: “We comply with the laws in each country where we operate. In general, governments that seek assistance in law enforcement or security investigations prohibit disclosure of the assistance provided.”

When I write that the NSA has destroyed the fabric of trust on the Internet, this is the kind of thing I mean. Google can no longer trust its bandwidth providers not to betray the company.

EDITED TO ADD (11/2): The NSA’s denial is pretty lame. It feels as if it’s hardly trying anymore.

We also know that Level 3 Communications already cooperates with the NSA, and has the codename of LITTLE:

The document identified for the first time which telecoms companies are working with GCHQ’s “special source” team. It gives top secret codenames for each firm, with BT (“Remedy”), Verizon Business (“Dacron”), and Vodafone Cable (“Gerontic”). The other firms include Global Crossing (“Pinnage”), Level 3 (“Little”), Viatel (“Vitreous”) and Interoute (“Streetcar”).

Again, those code names should properly be in all caps.

EDITED TO ADD (11/5): More details on the program.

Posted on October 31, 2013 at 10:29 AMView Comments

Senator Feinstein Admits the NSA Taps the Internet Backbone

We know from the Snowden documents (and other sources) that the NSA taps the Internet backbone through secret agreements with major US telcos., but the US government still hasn’t admitted it.

In late August, the Obama administration declassified a ruling from the Foreign Intelligence Surveillance Court. Footnote 3 reads:

The term ‘upstream collection’ refers to NSA’s interception of Internet communications as they transit [LONG REDACTED CLAUSE], [REDACTED], rather than to acquisitions directly from Internet service providers such as [LIST OF REDACTED THINGS, PRESUMABLY THE PRISM DOWNSTREAM COMPANIES].

Here’s one analysis of the document.

On Thursday, Senator Diane Feinstein filled in some of the details:

Upstream collection…occurs when NSA obtains internet communications, such as e-mails, from certain US companies that operate the Internet background [sic, she means “backbone”], i.e., the companies that own and operate the domestic telecommunications lines over which internet traffic flows.

Note that we knew this in 2006:

One thing the NSA wanted was access to the growing fraction of global telecommunications that passed through junctions on U.S. territory. According to former senator Bob Graham (D-Fla.), who chaired the Intelligence Committee at the time, briefers told him in Cheney’s office in October 2002 that Bush had authorized the agency to tap into those junctions. That decision, Graham said in an interview first reported in The Washington Post on Dec. 18, allowed the NSA to intercept “conversations that . . . went through a transit facility inside the United States.”

And this in 2007:

[The Program] requires the NSA, as noted by Rep. Peter Hoekstra, “to steal light off of different cables” in order to acquire the “information that’s most important to us” Interview with Rep. Peter Hoekstra by Paul Gigot, Lack of Intelligence: Congress Dawdles on Terrorist Wiretapping, JOURNAL EDITORIAL REPORT, FOX NEWS CHANNEL (Aug. 6, 2007) at 2.

So we knew it already, but now we know it even more. So why won’t President Obama admit it?

EDITED TO ADD (9/28): Another article on this.

EDITED TO ADD (9/30): Also, there’s Mark Klein’s revelations from 2006.

Posted on September 28, 2013 at 6:10 AMView Comments

More on NSA Data Collection

There’s an article from Wednesday’s Wall Street Journal that gives more details about the NSA’s data collection efforts.

The system has the capacity to reach roughly 75% of all U.S. Internet traffic in the hunt for foreign intelligence, including a wide array of communications by foreigners and Americans. In some cases, it retains the written content of emails sent between citizens within the U.S. and also filters domestic phone calls made with Internet technology, these people say.


The programs, code-named Blarney, Fairview, Oakstar, Lithium and Stormbrew, among others, filter and gather information at major telecommunications companies. Blarney, for instance, was established with AT&T Inc….

This filtering takes place at more than a dozen locations at major Internet junctions in the U.S., officials say. Previously, any NSA filtering of this kind was largely believed to be happening near points where undersea or other foreign cables enter the country.


The systems operate like this: The NSA asks telecom companies to send it various streams of Internet traffic it believes most likely to contain foreign intelligence. This is the first cut of the data. These requests don’t ask for all Internet traffic. Rather, they focus on certain areas of interest, according to a person familiar with the legal process. “It’s still a large amount of data, but not everything in the world,” this person says.

The second cut is done by NSA. It briefly copies the traffic and decides which communications to keep based on what it calls “strong selectors”—say, an email address, or a large block of computer addresses that correspond to an organization it is interested in. In making these decisions, the NSA can look at content of communications as well as information about who is sending the data. One U.S. official says the agency doesn’t itself “access” all the traffic within the surveillance system. The agency defines access as “things we actually touch,” this person says, pointing out that the telecom companies do the first stage of filtering.

The surveillance system is built on relationships with telecommunications carriers that together cover about 75% of U.S. Internet communications. They must hand over what the NSA asks for under orders from the secret Foreign Intelligence Surveillance Court. The firms search Internet traffic based on the NSA’s criteria, current and former officials say.

The NSA seems to have finally found a PR agency with a TS/SI clearance, since there was a response to this story. They’ve also had a conference call with the press, and the Director of National Intelligence is on Twitter and Tumblr.

I am completely croggled by the fact that the NSA apparently had absolutely no contingency plans for this sort of thing.

Posted on August 27, 2013 at 1:19 PMView Comments

The Public/Private Surveillance Partnership

Imagine the government passed a law requiring all citizens to carry a tracking device. Such a law would immediately be found unconstitutional. Yet we all carry mobile phones.

If the National Security Agency required us to notify it whenever we made a new friend, the nation would rebel. Yet we notify Facebook. If the Federal Bureau of Investigation demanded copies of all our conversations and correspondence, it would be laughed at. Yet we provide copies of our e-mail to Google, Microsoft or whoever our mail host is; we provide copies of our text messages to Verizon, AT&T and Sprint; and we provide copies of other conversations to Twitter, Facebook, LinkedIn, or whatever other site is hosting them.

The primary business model of the Internet is built on mass surveillance, and our government’s intelligence-gathering agencies have become addicted to that data. Understanding how we got here is critical to understanding how we undo the damage.

Computers and networks inherently produce data, and our constant interactions with them allow corporations to collect an enormous amount of intensely personal data about us as we go about our daily lives. Sometimes we produce this data inadvertently simply by using our phones, credit cards, computers and other devices. Sometimes we give corporations this data directly on Google, Facebook, Apple Inc.’s iCloud and so on in exchange for whatever free or cheap service we receive from the Internet in return.

The NSA is also in the business of spying on everyone, and it has realized it’s far easier to collect all the data from these corporations rather than from us directly. In some cases, the NSA asks for this data nicely. In other cases, it makes use of subtle threats or overt pressure. If that doesn’t work, it uses tools like national security letters.

The result is a corporate-government surveillance partnership, one that allows both the government and corporations to get away with things they couldn’t otherwise.

There are two types of laws in the U.S., each designed to constrain a different type of power: constitutional law, which places limitations on government, and regulatory law, which constrains corporations. Historically, these two areas have largely remained separate, but today each group has learned how to use the other’s laws to bypass their own restrictions. The government uses corporations to get around its limits, and corporations use the government to get around their limits.

This partnership manifests itself in various ways. The government uses corporations to circumvent its prohibitions against eavesdropping domestically on its citizens. Corporations rely on the government to ensure that they have unfettered use of the data they collect.

Here’s an example: It would be reasonable for our government to debate the circumstances under which corporations can collect and use our data, and to provide for protections against misuse. But if the government is using that very data for its own surveillance purposes, it has an incentive to oppose any laws to limit data collection. And because corporations see no need to give consumers any choice in this matter — because it would only reduce their profits — the market isn’t going to protect consumers, either.

Our elected officials are often supported, endorsed and funded by these corporations as well, setting up an incestuous relationship between corporations, lawmakers and the intelligence community.

The losers are us, the people, who are left with no one to stand up for our interests. Our elected government, which is supposed to be responsible to us, is not. And corporations, which in a market economy are supposed to be responsive to our needs, are not. What we have now is death to privacy—and that’s very dangerous to democracy and liberty.

The simple answer is to blame consumers, who shouldn’t use mobile phones, credit cards, banks or the Internet if they don’t want to be tracked. But that argument deliberately ignores the reality of today’s world. Everything we do involves computers, even if we’re not using them directly. And by their nature, computers produce tracking data. We can’t go back to a world where we don’t use computers, the Internet or social networking. We have no choice but to share our personal information with these corporations, because that’s how our world works today.

Curbing the power of the corporate-private surveillance partnership requires limitations on both what corporations can do with the data we choose to give them and restrictions on how and when the government can demand access to that data. Because both of these changes go against the interests of corporations and the government, we have to demand them as citizens and voters. We can lobby our government to operate more transparently — disclosing the opinions of the Foreign Intelligence Surveillance Court would be a good start — and hold our lawmakers accountable when it doesn’t. But it’s not going to be easy. There are strong interests doing their best to ensure that the steady stream of data keeps flowing.

This essay originally appeared on Bloomberg.com.

Posted on August 5, 2013 at 6:02 AMView Comments

Sidebar photo of Bruce Schneier by Joe MacInnis.