Entries Tagged "NSA"

Page 52 of 53

The NSA on How to Redact

Interesting paper.

Both the Microsoft Word document format (MS Word) and Adobe Portable Document (PDF) are complex, sophisticated computer data formats. They can contain many kinds of information such as text, graphics, tables, images, meta-data, and more all mixed together. The complexity makes them potential vehicles for exposing information unintentionally, especially when downgrading or sanitizing classified materials. Although the focus is on MS Word, the general guidance applies to other word processors and office tools, such as WordPerfect, PowerPoint, Excel, Star Office, etc.

This document does not address all the issues that can arise when distributing or downgrading original document formats such as MS Word or MS PowerPoint. Using original source formats, such as MS Word, for downgrading can entail exceptional risks; the lengthy and complicated procedures for mitigating such risks are outside the scope of this note.

EDITED TO ADD (2/1): The NSA page for the redaction document, and other “Security Configuration Guides,” is here.

Posted on February 1, 2006 at 1:09 PMView Comments

NSA Has a Technology Transfer Program

Really:

The National Security Agency has established a formal technology transfer mechanism for openly sharing technologies with the external community. Our scientists and engineers, along with our academic and research partners, have developed cutting-edge technologies, which have not only satisfied our mission requirements, but have also served to improve the global technological leadership of the United States. In addition, these technical advances have contributed to the creation and improvement of many commercial products in America.

Look at their 44 Technology Profile Fact Sheets.

Posted on January 27, 2006 at 7:03 AMView Comments

NSA Eavesdropping Yields Dead Ends

All of that extra-legal NSA eavesdropping resulted in a whole lot of dead ends.

In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

Surely this can’t be a surprise to anyone? And as I’ve been arguing for years, programs like this divert resources from real investigations.

President Bush has characterized the eavesdropping program as a “vital tool” against terrorism; Vice President Dick Cheney has said it has saved “thousands of lives.”

But the results of the program look very different to some officials charged with tracking terrorism in the United States. More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.

A lot of this article reads like a turf war between the NSA and the FBI, but the “inside baseball” aspects are interesting.

EDITED TO ADD (1/18): Jennifer Granick has written on the topic.

Posted on January 18, 2006 at 6:51 AMView Comments

Project Shamrock

Decades before 9/11, and the subsequent Bush order that directed the NSA to eavesdrop on every phone call, e-mail message, and who-knows-what-else going into or out of the United States, U.S. citizens included, they did the same thing with telegrams. It was called Project Shamrock, and anyone who thinks this is new legal and technological terrain should read up on that program.

Project SHAMROCK…was an espionage exercise that involved the accumulation of all telegraphic data entering into or exiting from the United States. The Armed Forces Security Agency (AFSA) and its successor NSA were given direct access to daily microfilm copies of all incoming, outgoing, and transiting telegraphs via the Western Union and its associates RCA and ITT. Operation Shamrock lasted well into the 1960s when computerized operations (HARVEST) made it possible to search for keywords rather than read through all communications.

Project SHAMROCK became so successful that in 1966 the NSA and CIA set up a front company in lower Manhattan (where the offices of the telegraph companies were located) under the codename LPMEDLEY. At the height of Project SHAMROCK, 150,000 messages a month were printed and analyzed by NSA agents. In May 1975 however, congressional critics began to investigate and expose the program. As a result, NSA director Lew Allen terminated it. The testimony of both the representatives from the cable companies and of director Allen at the hearings prompted Senate Intelligence Committee chairman Sen. Frank Church to conclude that Project SHAMROCK was “probably the largest government interception program affecting Americans ever undertaken.”

If you want details, the best place is James Banford’s books about the NSA: his 1982 book, The Puzzle Palace, and his 2001 book, Body of Secrets. This quote is from the latter book, page 440:

Among the reforms to come out of the Church Committee investigation was the creation of the Foreign Intelligence Surveillance Act (FISA), which for the first time outlined what NSA was and was not permitted to do. The new statute outlawed wholesale, warrantless acquisition of raw telegrams such as had been provided under Shamrock. It also outlawed the arbitrary compilation of watch list containing the names of Americans. Under FISA, a secret federal court was set up, the Foreign Intelligence Surveillance Court. In order for NSA to target an American citizen or a permanent resident alien–a “green card” holder–within the United States, a secret warrant must be obtained from the court. To get the warrant, NSA officials must show that the person they wish to target is either an agent of a foreign power or involved in espionage or terrorism.

A lot of people are trying to say that it’s a different world today, and that eavesdropping on a massive scale is not covered under the FISA statute, because it just wasn’t possible or anticipated back then. That’s a lie. Project Shamrock began in the 1950s, and ran for about twenty years. It too had a massive program to eavesdrop on all international telegram communications, including communications to and from American citizens. It too was to counter a terrorist threat inside the United States. It too was secret, and illegal. It is exactly, by name, the sort of program that the FISA process was supposed to get under control.

Twenty years ago, Senator Frank Church warned of the dangers of letting the NSA get involved in domestic intelligence gathering. He said that the “potential to violate the privacy of Americans is unmatched by any other intelligence agency.” If the resources of the NSA were ever used domestically, “no American would have any privacy left…. There would be no place to hide…. We must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is an abyss from which there is no return.”

Bush’s eavesdropping program was explicitly anticipated in 1978, and made illegal by FISA. There might not have been fax machines, or e-mail, or the Internet, but the NSA did the exact same thing with telegrams.

We can decide as a society that we need to revisit FISA. We can debate the relative merits of police-state surveillance tactics and counterterrorism. We can discuss the prohibitions against spying on American citizens without a warrant, crossing over that abyss that Church warned us about twenty years ago. But the president can’t simply decide that the law doesn’t apply to him.

This issue is not about terrorism. It’s not about intelligence gathering. It’s about the executive branch of the United States ignoring a law, passed by the legislative branch and signed by President Jimmy Carter: a law that directs the judicial branch to monitor eavesdropping on Americans in national security investigations.

It’s not the spying, it’s the illegality.

Posted on December 29, 2005 at 8:40 AMView Comments

Is the NSA Reading Your E-Mail?

Richard M Smith has some interesting ideas on how to test if the NSA is eavesdropping on your e-mail.

With all of the controversy about the news that the NSA has been monitoring, since 9/11, telephone calls and email messages of Americans, some folks might now be wondering if they are being snooped on. Here’s a quick and easy method to see if one’s email messages are being read by someone else.

The steps are:

  1. Set up a Hotmail account.
  2. Set up a second email account with a non-U.S. provider. (eg. Rediffmail.com)
  3. Send messages between the two accounts which might be interesting to the NSA.
  4. In each message, include a unique URL to a Web server that you have access to its server logs. This URL should only be known by you and not linked to from any other Web page. The text of the message should encourage an NSA monitor to visit the URL.
  5. If the server log file ever shows this URL being accessed, then you know that you are being snooped on. The IP address of the access can also provide clues about who is doing the snooping.

The trick is to make the link enticing enough for someone or something to want to click on it. As part of a large-scale research project, I would suggest sending out a few hundred thousand messages using various tricks to find one that might work. Here are some possible ideas:

  • Include a variety of terrorist related trigger words
  • Include other links in a message to known AQ message boards
  • Include a fake CC: to Mohamed Atta’s old email address (el-amir@tu-harburg.de)
  • Send the message from an SMTP server in Iraq, Afghanistan, etc.
  • Use a fake return address from a known terrorist organization
  • Use a ziplip or hushmail account.

Besides monitoring the NSA, this same technique can be used if you suspect your email account password has been stolen or if a family member or coworker is reading your email on your computer of the sly.

The only problem is that you might get a knock on your door by some random investigative agency. Or get searched every time you try to get on an airplane.

But I think that risk is pretty low, actually. If people actually do this, please report back. I’m very curious.

Posted on December 26, 2005 at 12:31 PMView Comments

The Security Threat of Unchecked Presidential Power

This past Thursday, the New York Times exposed the most significant violation of federal surveillance law in the post-Watergate era. President Bush secretly authorized the National Security Agency to engage in domestic spying, wiretapping thousands of Americans and bypassing the legal procedures regulating this activity.

This isn’t about the spying, although that’s a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago — on the last occasion that the executive branch abused its power so broadly.

In defending this secret spying on Americans, Bush said that he relied on his constitutional powers (Article 2) and the joint resolution passed by Congress after 9/11 that led to the war in Iraq. This rationale was spelled out in a memo written by John Yoo, a White House attorney, less than two weeks after the attacks of 9/11. It’s a dense read and a terrifying piece of legal contortionism, but it basically says that the president has unlimited powers to fight terrorism. He can spy on anyone, arrest anyone, and kidnap anyone and ship him to another country … merely on the suspicion that he might be a terrorist. And according to the memo, this power lasts until there is no more terrorism in the world.

Yoo starts by arguing that the Constitution gives the president total power during wartime. He also notes that Congress has recently been quiescent when the president takes some military action on his own, citing President Clinton’s 1998 strike against Sudan and Afghanistan.

Yoo then says: “The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks. … The President’s power to respond militarily to the later attacks must be correspondingly broader.”

This is novel reasoning. It’s as if the police would have greater powers when investigating a murder than a burglary.

More to the point, the congressional resolution of Sept. 14, 2001, specifically refused the White House’s initial attempt to seek authority to preempt any future acts of terrorism, and narrowly gave Bush permission to go after those responsible for the attacks on the Pentagon and World Trade Center.

Yoo’s memo ignored this. Written 11 days after Congress refused to grant the president wide-ranging powers, it admitted that “the Joint Resolution is somewhat narrower than the President’s constitutional authority,” but argued “the President’s broad constitutional power to use military force … would allow the President to … [take] whatever actions he deems appropriate … to pre-empt or respond to terrorist threats from new quarters.”

Even if Congress specifically says no.

The result is that the president’s wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical “War on Terror”: a war with no fronts, no boundaries, no opposing army, and — most ominously — no knowable “victory.” Investigations, arrests, and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain “at war” for as long as he chooses.

This is indefinite dictatorial power. And I don’t use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

This is, fundamentally, why this issue crossed political lines in Congress. If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law.

This is not a partisan issue between Democrats and Republicans; it’s a president unilaterally overriding the Fourth Amendment, Congress and the Supreme Court. Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don’t want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael Moore or Ann Coulter.

Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we’re all less safe as a result.

This essay was published today as an op-ed in the Minneapolis Star Tribune.

Here’s the opening paragraph of the Yoo memo. Remember, think of this power in the hands of your least favorite politician when you read it:

You have asked for our opinion as to the scope of the President’s authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. § 1541-1548 (the “WPR”), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

There’s a similar reasoning in the Braybee memo, which was written in 2002 about torture:

In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President’s Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President’s] trust. As Hamilton explained in arguing for the Constitution’s adoption, “because the circumstances which may affect the public safety are not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy.”

. . . [The Constitution’s] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President’s obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.

NSA watcher James Bamford points out how this action was definitely considered illegal in 1978, which is why FISA was passed in the first place:

When the Foreign Intelligence Surveillance Act was created in 1978, one of the things that the Attorney General at the time, Griffin Bell, said — he testified before the intelligence committee, and he said that the current bill recognizes no inherent power of the President to conduct electronic surveillance. He said, “This bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance may be conducted.” In other words, what the President is saying is that he has these inherent powers to conduct electronic surveillance, but the whole reason for creating this act, according to the Attorney General at the time, was to prevent the President from using any inherent powers and to use exclusively this act.

Also this from Salon, discussing a 1952 precedent:

Attorney General Alberto Gonzales argues that the president’s authority rests on two foundations: Congress’s authorization to use military force against al-Qaida, and the Constitution’s vesting of power in the president as commander-in-chief, which necessarily includes gathering “signals intelligence” on the enemy. But that argument cannot be squared with Supreme Court precedent. In 1952, the Supreme Court considered a remarkably similar argument during the Korean War. Youngstown Sheet & Tube Co. v. Sawyer, widely considered the most important separation-of-powers case ever decided by the court, flatly rejected the president’s assertion of unilateral domestic authority during wartime. President Truman had invoked the commander-in-chief clause to justify seizing most of the nation’s steel mills. A nationwide strike threatened to undermine the war, Truman contended, because the mills were critical to manufacturing munitions.

The Supreme Court’s rationale for rejecting Truman’s claims applies with full force to Bush’s policy. In what proved to be the most influential opinion in the case, Justice Robert Jackson identified three possible scenarios in which a president’s actions may be challenged. Where the president acts with explicit or implicit authorization from Congress, his authority “is at its maximum,” and will generally be upheld. Where Congress has been silent, the president acts in a “zone of twilight” in which legality “is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” But where the president acts in defiance of “the expressed or implied will of Congress,” Justice Jackson maintained, his power is “at its lowest ebb,” and his actions can be sustained only if Congress has no authority to regulate the subject at all.

In the steel seizure case, Congress had considered and rejected giving the president the authority to seize businesses in the face of threatened strikes, thereby placing President Truman’s action in the third of Justice Jackson’s categories. As to the war power, Justice Jackson noted, “The Constitution did not contemplate that the Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries, and its inhabitants.”

Like Truman, President Bush acted in the face of contrary congressional authority. In FISA, Congress expressly addressed the subject of warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared. Congress then went further and made it a crime, punishable by up to five years in jail, to conduct a wiretap without statutory authorization.

The Attorney General said that the Administration didn’t try to do this legally, because they didn’t think they could get the law passed. But don’t worry, an NSA shift supervisor is acting in the role of a FISC judge:

GENERAL HAYDEN: FISA involves the process — FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it’s a little — it’s difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it.

Q If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES: That question was asked earlier. We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that — and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Q And who determined that these targets were al Qaeda? Did you wiretap them?

GENERAL HAYDEN: The judgment is made by the operational work force at the National Security Agency using the information available to them at the time, and the standard that they apply — and it’s a two-person standard that must be signed off by a shift supervisor, and carefully recorded as to what created the operational imperative to cover any target, but particularly with regard to those inside the United States.

Q So a shift supervisor is now making decisions that a FISA judge would normally make? I just want to make sure I understand. Is that what you’re saying?

Senators from both parties are demanding hearings:

Democratic and Republican calls mounted on Tuesday for U.S. congressional hearings into President George W. Bush’s assertion that he can order warrantless spying on Americans with suspected terrorist ties.

Vice President Dick Cheney predicted a backlash against critics of the administration’s anti-terrorism policies. He also dismissed charges that Bush overstepped his constitutional bounds when he implemented the recently disclosed eavesdropping shortly after the September 11 attacks.

Republican Sens. Chuck Hagel of Nebraska and Olympia Snowe of Maine joined Democratic Sens. Carl Levin of Michigan, Dianne Feinstein of California and Ron Wyden of Oregon in calling for a joint investigation by the Senate Intelligence and Judiciary Committees into whether the government eavesdropped “without appropriate legal authority.”

Senate Minority Leader Harry Reid, a Nevada Democrat, said he would prefer separate hearings by the Judiciary Committee, which has already promised one, and Intelligence Committee.

This New York Times paragraph is further evidence that we’re talking about an Echelon-like surveillance program here:

Administration officials, speaking anonymously because of the sensitivity of the information, suggested that the speed with which the operation identified “hot numbers” – the telephone numbers of suspects – and then hooked into their conversations lay behind the need to operate outside the old law.

And some more snippets.

There are about a zillion more URLs I could list here. I posted these already, but both Oren Kerr and
Daniel Solove have good discussions of the legal issues. And here are three legal posts by Marty Lederman. A summary of the Republican arguments. Four good blog posts. Spooks comment on the issue.

And this George W. Bush quote (video and transcript), from December 18, 2000, is just too surreal not to reprint: “If this were a dictatorship, it’d be a heck of a lot easier, just so long as I’m the dictator.”

I guess 9/11 made it a heck of a lot easier.

Look, I don’t think 100% of the blame belongs to President Bush. (This kind of thing was also debated under Clinton.) The Congress, Democrats included, have allowed the Executive to gather power at the expense of the other two branches. This is the fundamental security issue here, and it’ll be an issue regardless of who wins the White House in 2008.

EDITED TO ADD (12/21): FISC Judge James Robertson resigned yesterday:

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

….Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

“They just don’t know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”

More generally, here’s some of the relevant statutes and decisions:

Foreign Intelligence Surveillance Act (FISA)” (1978).

Authorization for Use of Military Force (2001),” the law authorizing Bush to use military force against the 9/11 terrorists.

United States v. United States District Court,” 407 U.S. 297 (1972), a national security surveillance case that turned on the Fourth Amendment.

Hamdi v. Rumsfeld,” 124 S. Ct. 981 (2004), the recent Supreme Court case examining the president’s powers during wartime.

[The Government’s position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.

And here are a bunch of blog posts:

Daniel Solove: “Hypothetical: What If President Bush Were Correct About His Surveillance Powers?.”

Seth Weinberger: “Declaring War and Executive Power.”

Juliette Kayyem: “Wiretaps, AUMF and Bush’s Comments Today.”

Mark Schmitt: “Alito and the Wiretaps.”

Eric Muller: “Lawless Like I Said.”

Cass Sunstein: “Presidential Wiretap.”

Spencer Overton: “Judge Damon J. Keith: No Warrantless Wiretaps of Citizens.”

Will Baude: “Presidential Authority, A Lament.”

And news articles:

Washington Post: “Clash Is Latest Chapter in Bush Effort to Widen Executive Power.”

The clash over the secret domestic spying program is one slice of a broader struggle over the power of the presidency that has animated the Bush administration. George W. Bush and Dick Cheney came to office convinced that the authority of the presidency had eroded and have spent the past five years trying to reclaim it.

From shielding energy policy deliberations to setting up military tribunals without court involvement, Bush, with Cheney’s encouragement, has taken what scholars call a more expansive view of his role than any commander in chief in decades. With few exceptions, Congress and the courts have largely stayed out of the way, deferential to the argument that a president needs free rein, especially in wartime.

New York Times: Spying Program Snared U.S. Calls.”

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

Posted on December 21, 2005 at 6:50 AM

NSA and Bush's Illegal Eavesdropping

When President Bush directed the National Security Agency to secretly eavesdrop on American citizens, he transferred an authority previously under the purview of the Justice Department to the Defense Department and bypassed the very laws put in place to protect Americans against widespread government eavesdropping. The reason may have been to tap the NSA’s capability for data-mining and widespread surveillance.

Illegal wiretapping of Americans is nothing new. In the 1950s and ’60s, in a program called “Project Shamrock,” the NSA intercepted every single telegram coming into or going out of the United States. It conducted eavesdropping without a warrant on behalf of the CIA and other agencies. Much of this became public during the 1975 Church Committee hearings and resulted in the now famous Foreign Intelligence Surveillance Act (FISA) of 1978.

The purpose of this law was to protect the American people by regulating government eavesdropping. Like many laws limiting the power of government, it relies on checks and balances: one branch of the government watching the other. The law established a secret court, the Foreign Intelligence Surveillance Court (FISC), and empowered it to approve national-security-related eavesdropping warrants. The Justice Department can request FISA warrants to monitor foreign communications as well as communications by American citizens, provided that they meet certain minimal criteria.

The FISC issued about 500 FISA warrants per year from 1979 through 1995, and has slowly increased subsequently — 1,758 were issued in 2004. The process is designed for speed and even has provisions where the Justice Department can wiretap first and ask for permission later. In all that time, only four warrant requests were ever rejected: all in 2003. (We don’t know any details, of course, as the court proceedings are secret.)

FISA warrants are carried out by the FBI, but in the days immediately after the terrorist attacks, there was a widespread perception in Washington that the FBI wasn’t up to dealing with these new threats — they couldn’t uncover plots in a timely manner. So instead the Bush administration turned to the NSA. They had the tools, the expertise, the experience, and so they were given the mission.

The NSA’s ability to eavesdrop on communications is exemplified by a technological capability called Echelon. Echelon is the world’s largest information “vacuum cleaner,” sucking up a staggering amount of voice, fax, and data communications — satellite, microwave, fiber-optic, cellular and everything else — from all over the world: an estimated 3 billion communications per day. These communications are then processed through sophisticated data-mining technologies, which look for simple phrases like “assassinate the president” as well as more complicated communications patterns.

Supposedly Echelon only covers communications outside of the United States. Although there is no evidence that the Bush administration has employed Echelon to monitor communications to and from the U.S., this surveillance capability is probably exactly what the president wanted and may explain why the administration sought to bypass the FISA process of acquiring a warrant for searches.

Perhaps the NSA just didn’t have any experience submitting FISA warrants, so Bush unilaterally waived that requirement. And perhaps Bush thought FISA was a hindrance — in 2002 there was a widespread but false believe that the FISC got in the way of the investigation of Zacarias Moussaoui (the presumed “20th hijacker”) — and bypassed the court for that reason.

Most likely, Bush wanted a whole new surveillance paradigm. You can think of the FBI’s capabilities as “retail surveillance”: It eavesdrops on a particular person or phone. The NSA, on the other hand, conducts “wholesale surveillance.” It, or more exactly its computers, listens to everything. An example might be to feed the computers every voice, fax, and e-mail communication looking for the name “Ayman al-Zawahiri.” This type of surveillance is more along the lines of Project Shamrock, and not legal under FISA. As Sen. Jay Rockefeller wrote in a secret memo after being briefed on the program, it raises “profound oversight issues.”

It is also unclear whether Echelon-style eavesdropping would prevent terrorist attacks. In the months before 9/11, Echelon noticed considerable “chatter”: bits of conversation suggesting some sort of imminent attack. But because much of the planning for 9/11 occurred face-to-face, analysts were unable to learn details.

The fundamental issue here is security, but it’s not the security most people think of. James Madison famously said: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Terrorism is a serious risk to our nation, but an even greater threat is the centralization of American political power in the hands of any single branch of the government.

Over 200 years ago, the framers of the U.S. Constitution established an ingenious security device against tyrannical government: they divided government power among three different bodies. A carefully thought out system of checks and balances in the executive branch, the legislative branch, and the judicial branch, ensured that no single branch became too powerful.

After watching tyrannies rise and fall throughout Europe, this seemed like a prudent way to form a government. Courts monitor the actions of police. Congress passes laws that even the president must follow. Since 9/11, the United States has seen an enormous power grab by the executive branch. It’s time we brought back the security system that’s protected us from government for over 200 years.

A version of this essay originally appeared in Salon.

I wrote another essay about the legal and constitutional implications of this. The Minneapolis Star Tribune will publish it either Wednesday or Thursday, and I will post it here at that time.

I didn’t talk about the political dynamics in either essay, but they’re fascinating. The White House kept this secret, but they briefed at least six people outside the administration. The current and former chief justices of the FISC knew about this. Last Sunday’s Washington Post reported that both of them had misgivings about the program, but neither did anything about it. The White House also briefed the Committee Chairs and Ranking Members of the House and Senate Intelligence Committees, and they didn’t do anything about it. (Although Sen. Rockefeller wrote a bizarre I’m-not-going-down-with-you memo to Cheney and for his files.)

Cheney was on television this weekend citing this minimal disclosure as evidence that Congress acquiesced to the program. I see it as evidence of something else: if people from both the Legislative and the Judiciary branches knowingly permitted unlawful surveillance by the Executive branch, then the current system of checks and balances isn’t working.

It’s also evidence about how secretive this administration is. None of the other FISC judges, and none of the other House or Senate Intelligence Committee members, were told about this,­ even under clearance. And if there’s one thing these people hate, it’s being kept in the dark on a matter within their jurisdiction. That’s why Senator Feinstein, a member of the Senate Intelligence Committee, was so upset yesterday. And it’s pushing Senator Specter, and some of the Republicans in these Judiciary committees, further into the civil liberties camp.

There are about a zillion links worth reading, but here are some of them you might not yet have seen. Some good newspaper commentaries. An excellent legal analysis. Three blog posts. Four more blog posts. Daniel Solove on FISA. Two legal analyses. An interesting “Democracy Now” commentary, including interesting comments on the NSA’s capabilities by James Bamford. And finally, my 2004 essay on the security of checks and balances.

“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” — William Pitt, House of Commons, 11/18/1783.

Posted on December 20, 2005 at 12:45 PMView Comments

Brian Snow on Security

Good paper (.pdf) by Brian Snow of the NSA on security and assurance.

Abstract: When will we be secure? Nobody knows for sure — but it cannot happen before commercial security products and services possess not only enough functionality to satisfy customers’ stated needs, but also sufficient assurance of quality, reliability, safety, and appropriateness for use. Such assurances are lacking in most of today’s commercial security products and services. I discuss paths to better assurance in Operating Systems, Applications, and Hardware through better development environments, requirements definition, systems engineering, quality certification, and legal/regulatory constraints. I also give some examples.

Posted on December 13, 2005 at 2:15 PMView Comments

Secret NSA Patents

From The New Scientist:

The hyper-secretive US National Security Agency — the government’s eavesdropping arm — appears to be having its patent applications increasingly blocked by the Pentagon. And the grounds for this are for reasons of national security, reveals information obtained under a freedom of information request.

Most Western governments can prevent the granting (and therefore publishing) of patents on inventions deemed to contain sensitive information of use to an enemy or terrorists. They do so by issuing a secrecy order barring publication and even discussion of certain inventions.

Experts at the US Patent and Trademark Office perform an initial security screening of all patent applications and then army, air force and navy staff at the Pentagon’s Defense Technology Security Administration (DTSA) makes the final decision on what is classified and what is not.

Now figures obtained from the USPTO under a freedom of information request by the Federation of American Scientists show that the NSA had nine of its patent applications blocked in the financial year to March 2005 against five in 2004, and none in each of the three years up to 2003.

EDITED TO ADD: This story is wrong.

Posted on November 1, 2005 at 7:46 AMView Comments

Sidebar photo of Bruce Schneier by Joe MacInnis.