NSA ends collection of digital communications about foreign targets


The NSA will stop its controversial practice of collecting digital communications that merely mention foreign surveillance targets, the agency confirmed on Friday. In a rare public statement, the NSA said it made the change because of "technical constraints" and privacy concerns about Americans whose data was being collected. The decision comes as Congress is locked in a heated debate over whether to revise and reauthorize the portion of the law that authorizes such collection — Section 702 of the Foreign Intelligence Surveillance Act. The provision expires at the end of the year unless Congress acts. Section 702 programs have also been in the spotlight since it was revealed that Trump transition team officials incidentally had their communications swept up through legal government surveillance operations possibly authorized under 702. While the move was greeted as a positive step by surveillance critics on and off Capitol Hill, privacy advocates say it does little to placate their broader concerns about the programs and vowed to continue a legislative push to amend the law. Critics believe the programs constitute warrantless and unconstitutional searches on Americans, but proponents defend the programs as vital to collecting information on overseas terrorists and criminals. Under Section 702, the NSA sweeps up emails and text messages that reference foreign targets, including communications that mention targets’ email addresses or phone numbers. This is in addition to the NSA’s collection of digital chatter to or from those targets themselves.But as the secret court that oversees the NSA’s overseas spying operations was reviewing the Justice Department’s latest request to preserve its Section 702 powers, the NSA discovered that it had accidentally mishandled data on Americans incidentally swept up in the spy program.When the agency reported the issues to the Foreign Intelligence Surveillance Court, the court asked for more information and refused to grant a full Section 702 recertification until the problem was addressed, according to the NSA’s statement. The NSA then launched a broad review of Section 702 and eventually decided to end its so-called “about” collection.“These changes," the NSA said, are meant to retain the "collection that provides the greatest value to national security while reducing the likelihood that NSA will acquire communications of U.S. persons or others who are not in direct contact with one of the Agency’s foreign intelligence targets."The secretive surveillance agency also said it would “delete the vast majority of previously acquired upstream internet communications as soon as practicable.”Privacy advocates applauded the move, but cautioned that it was voluntary and did not address the underlying legal concerns they have with Section 702. Rep. Ted Poe, a civil-liberties-minded Republican from Texas, called the decision a "necessary step in the right direction" in a statement to POLITICO, adding that the practice was "inconsistent with the Constitution."Sen. Ron Wyden (D-Ore.), a leading surveillance critic on Capitol Hill, said he will introduce legislation to codify the NSA’s decision."This change ends a practice that allowed Americans’ communications to be collected without an warrant merely for mentioning a foreign target," Wyden said in a statement. Off Capitol Hill, digital rights activists pushed Congress to go further. They are hoping privacy-minded lawmakers will use Section 702’s sunset clause to inject more transparency measures and privacy protections into the law.Neema Singh Guliani, a surveillance policy expert at the American Civil Liberties Union, said the NSA’s decision “increases the pressure on Congress to closely look at this program.”“To me it’s very notable that the government had trouble complying with procedures that were put in place,” she told POLITICO, cautioning that the move offered no assurance the government wouldn’t reverse its decision down the line.Amie Stepanovich, U.S. policy manager at Access Now, called on the Trump administration to step in and “support statutory changes to provide legal certainty that it will remain in effect.”Cory Bennett and Martin Matishak contributed to this report.


Formerly Imprisoned Journalist Barrett Brown Taken Back Into Custody Before PBS Interview


Award-winning journalist Barrett Brown was re-arrested and taken into custody Thursday, the day before he was scheduled to be interviewed for a PBS documentary. Brown quickly became a symbol of the attack on press freedom after he was arrested in 2012 for reporting he did on the hacked emails of intelligence-contracting firms. Brown wrote about hacked emails that showed the firm Stratfor spying on activists on behalf of corporations. Brown also helped uncover a proposal by intelligence contractors to hack and smear Wikileaks defenders and progressive activists. Faced with the possibility of 100 years in prison, Brown pled guilty in 2014 to two charges related to obstruction of justice and threatening an FBI agent, and was sentenced to 5 years and 3 months. In 2016, Brown won a National Magazine Award for his scathing and often hilarious columns in The Intercept, which focused on his life in prison. He was released in November. Jay Leiderman, Brown’s lawyer, told The Intercept Brown was arrested Thursday during a check-in. According to his mother, Brown had not missed a check-in or failed a drug test since he was released to a halfway house in November. Neither his mother or lawyer has been informed where he is being held. According to his mother, who spoke with Brown by phone after his arrest, Brown believes the reason for his re-arrest was a failure to obtain “permission” to give interviews to media organizations. Several weeks ago, Brown was told by his check-in officer that he needed to fill out permission forms before giving interviews. Since his release, Brown has given numerous interviews, on camera and by phone. But according to his mother, Brown said that the Bureau of Prisons never informed him about a paperwork requirement. When he followed up with his check-in officer, he was given a different form: a liability form for media entering prisons. Just last week, Brown was interviewed for two days by VICE news, and his PBS interview was set for Friday. Leiderman said he had not been presented with a formal justification for the arrest, but was told that it had “to do with failing to abide by BOP restrictions on interviews, which is disgusting.” Leiderman called the impromptu media restrictions “disgusting,” and said he believed the arrest was an act of reprisal for criticizing the government. “I would call the people who did this a bunch of chicken-shit assholes that are brutalizing the Constitution,” Leiderman said. Top photo: Journalist Barrett Brown is released from prison after a four year sentence. The post Formerly Imprisoned Journalist Barrett Brown Taken Back Into Custody Before PBS Interview appeared first on The Intercept.


Why Soviet Weather Was Secret, a Critical Gap in Korea, and Other NSA Newsletter Tales


Three years after the 9/11 attacks, a frustrated NSA employee complained that Osama bin Laden was alive and well, and yet the surveillance agency still had no automated way to search the Arabic language PDFs it had intercepted. This is just one of many complaints and observations included in SIDtoday, the internal newsletter of the NSA’s signals intelligence division. The Intercept today is publishing 251 articles from the newsletter, covering the second half of 2004 and the beginning of 2005. The newsletters were part of a large collection of NSA documents provided to The Intercept by Edward Snowden. This latest batch of posts includes candid employee comments about over-classification, descriptions of tensions in the NSA-CIA relationship, and an intern’s enthusiastic appraisal of a stint in Pakistan. Most revealing perhaps are insights into how NSA has operated domestically. The Intercept is publishing two stories on this topic, including one about NSA cooperation with law enforcement during American political conventions, and in a throwback to the movie “Bladerunner,” another article describes a spy balloon used over the United States. Finally, The Intercept, in cooperation with the Japanese broadcaster NHK, is revealing the history of U.S. surveillance cooperation with Japan. Starting with the American occupation of Japan after World War II and reaching a standoff after the Soviet shoot-down of a South Korean aircraft, the long and sometimes tense relationship reveals how even close U.S. allies can find themselves targeted by the NSA. NSA Targets North Korea’s Money The NSA’s Follow-the-Money Branch (the actual name of the division) brings together “experts from across a spectrum of disciplines and organizations.” The division in 2004 created a North Korea CRASH Team, short for Combined Rapid Analysis and Synthesis Hit, after the State Department “issued a requirement for a new emphasis on regime finance and an increased emphasis on” North Korea’s financing of its nuclear proliferation. In response, the CRASH Team looked at North Korean transactions that went through foreign banks. In particular, the team “targeted leadership finance,” i.e. Kim Jong Il, the North Korean leader who died in 2011, and traced sales of precious metals allegedly owned by him, weapons shipments, and relationships among regime leaders. Unprepared for Another Korean War The “6th rock drill on Korea” brought together NSA and officials from the U.K., Canada, Australia, and New Zealand to rehearse the scenarios involving civilian evacuations in Seoul and Pyongyang during a hypothetical Korean War. Participants planned a response to a North Korean attack and “held a brainstorming session about signals intelligence operations” in a hypothetical newly unified Korea. In the discussions, “critical gaps” were found in communications with trusted Five Eyes countries, which did not have access to the computer networks for the “Korea Theater of Operations.” Twenty-two other nations committed to defending South Korea are not included in intelligence sharing either. So NSA will be “working through some of these problems, with the goal of exercising the resulting solutions sometime in early 2005.” Czech youngsters stand atop an overturned truck as the Soviet-led invasion by the Warsaw Pact armies crushes the so-called Prague Spring reform in former Czechoslovakia, in Prague on Aug. 21, 1968. Photo: Libor Hajsky/AFP/Getty Images NSA Weather Reporting on the Soviet Union Back in the late 1960s, Charlie Meals, the deputy director of SID, worked in the Soviet “weather shop.” The only way the U.S. could track weather in the Soviet Union was by listening to Soviet communications. The Soviets knew the U.S. was listening and so it encrypted the locations of weather reports. U.S. Strategic Air Command “needed to have weather reports in case bombers ever had to fly into Soviet air space,” and the weather reporting could also be an indicator of impending military action. For example, before the 1968 invasion of Czechoslovakia, the Soviets started including Czech weather reports in military broadcasts. (The intricacies of collecting weather data as intelligence is also described in this article by Jeffrey Richelson of National Security Archive.) The “weather effort” had at least 250 people at NSA and people at bases around the world. This desk was still in operation in 2004. NSA’s FBI Relations FBI field office staff made little use of signals intelligence and many didn’t know how to access the information for themselves on the Intelligence Community’s Intelink system, according to an NSA intern, describing assignments at the bureau. The FBI field offices had little or no Sensitive Compartmented Information Facility space, which made it difficult to share the higher levels of intelligence between the agencies. The intern had higher regard for FBI headquarters. With data from the NSA, “FBI analysts can now immediately tell if an individual in the U.S. has any foreign terrorism-related contacts.” A rebel is blessed during a Voodoo ceremony of the Gonaives Resistance Front, during a march in Gonaives, Haiti, on Feb. 13, 2004. Photo: Walter Astrada/AP Eavesdropping in Haiti After 2004 Coup The NSA tracked “High Value Targets” in Haiti following the 2004 coup, according to an article classified “Top Secret.” An NSA staffer reports that a task force on HVTs traveled to the central highlands of Haiti where they met with rebel leaders. “During this trip they had collected several telephone numbers of these leaders and their associates,” the staffer wrote. Soon thereafter, the NSA “began to see multi-page reports of conversations between one important rebel leader and his wife which provided insight into his negotiating position and plans for control of the central highlands.” Those private conversations proved useful. “I received several emails from people who were incredulous that a conversation between an HVT target and his girlfriend was of any importance,” the staffer went on. “The truth is that a lot of SIGINT ‘leavings’ that never make it into normal SIGINT reporting are actually valuable intelligence items for tactical warfighters.” NSA’s Setup in Pakistan NSA interns see the sights, even in Pakistan. An intelligence analysis intern working in SID’s Pakistan branch was deployed to assignments in Islamabad and Lahore. At the embassy, the intern focused on signals intelligence related to the non-tribal “Settled Areas” and coordinated communications among NSA, CIA and the “local counterpart” i.e. Pakistani partners, in tracking and targeting terrorists. The Settled Areas Office along with their local counterparts was responsible for the arrests of more than 600 alleged terrorists from September 11, 2001 to 2004. Outside of working hours, the blonde American attracted a “constant stream of stares and curious looks” as she ventured out to tourist sites. Station Islamabad, which has been fictionalized in “Homeland” and “Zero Dark Thirty,” was to this staffer “one of the most exciting, challenging, and fast-paced locations to work in the world.” SIGINT Travels Beyond the Intelligence Community “Q: What do SIGINT and mad cows have in common? A: Both are of critical interest to the U.S. Department of Agriculture” SIGINT isn’t just for intelligence or military agencies. NSA’s two-person Washington Liaison Office responds to signals intelligence requests from Departments of Agriculture, Health and Human Services, Interior, Transportation, the Environmental Protection Agency, Export-Import Bank, Federal Aviation Administration, Federal Communications Commission, Federal Reserve System, and National Aeronautics and Space Administration. With such a wide range of subject matter and competing priorities, the liaison officers have to balance “topics from bovine spongiform encephalopathy to space launch vehicle capabilities; from narcotics interdiction techniques to wine labeling regulations; from toxin delivery technologies to secure communications options, and much, much more.” A protestor holding a portrait of Osama bin Laden shouts “Allahu Akbar” during a protest in front of Baiturrahman mosque, Banda Aceh, Indonesia, on Oct. 10, 2001. Photo: AFP/Getty Images NSA Couldn’t Search Arabic PDFs Imagine if the NSA missed warning signs of an attack for no other reason than it couldn’t search Arabic words in PDF format. “If you were looking for Osama bin Laden,” wrote an NSA employee in SIDtoday, “and you had entered every Arabic word known to mankind in every possible encoding and Osama were doing nothing more than using PDF and writing in Arabic, you’d never get a hit. Quite reassuring, isn’t it?” Near the end of 2004, SIDtoday began publishing a technical advice column written by an experienced Digital Network Intelligence analyst under the pseudonym “Raul.” One article describes a gaping intelligence hole that NSA had at the time, three years after the 9/11 attacks. Though analysts at NSA understood exactly how foreign-language PDFs were encoded, they lacked the technology to untangle them in real-time in order to search them for keywords. Apparently, this article “hit a few nerves.” Raul’s subsequent column responded to a flood of complaints he had received. In the subsequent column, he outlined requirements for a hypothetical solution to the foreign-language PDF problem, and concluded with a bit of snark: “Bin Laden is still safe and we, to the best of my knowledge, still have no reasonable solution to the PDF problem.” When NSA Agents Go Undercover For some sensitive missions, NSA personnel need cover identities while working in the field. An article from October 2004 describes how agents “go about making NSA personnel look like they actually work for an entity other than NSA.” The Special Operational Support office is responsible for NSA’s “cover and sensitive personnel support programs.” In addition to ensuring that cover operations comply with Department of Defense regulations, SOS provides “logistics, transportation, personnel and medical support.” The office also provides undercover operatives with “DoD Common Access Cards (CAC), travel documents, state driver’s licenses, credit cards, post office boxes, social security cards, pocket litter and telecommunications.” Finding Genetic Sequences in SIGINT The NSA, it turns out, likes to stay on top of the latest scientific developments. Writing at the end of 2004, an NSA cryptanalyst described her experience working as an intern, and using her cryptography skills, on looking for information about genetic sequencing in the signals intelligence collected by the NSA. “The ultimate goals of this project are to gain general knowledge about genetic engineering research activity by foreign entities,” she wrote, “and to identify laboratories and/or individuals who may be involved in nefarious use of genetic research.” Chairman Thomas Kean speaks during a news conference to release the 9/11 Commission’s report in Washington on July 22, 2004. Photo: Mark Wilson/Getty Images NSA’s Contributions to the 9/11 Commission Report Even though the 9/11 Commission report harshly criticized intelligence agencies’ failures to share information, the NSA touted its contribution to the July 22, 2004, report. “It goes without saying that NSA Cooperation was absolutely vital to this effort,” an article in SIDtoday says. SID staff aided in the declassification of material, turned over documents, and “patiently explained the intricacies of their work.” SID workers also scrubbed references to the NSA from the final report, rewording sections to avoid indications that certain pieces of intelligence derived from SIGINT. “You should all feel proud,” writes the post’s author. Yet the report itself points to specific SIGINT that could have led to the discovery of the attackers’ conspiracy that remained unshared due to agencies’ fear of disclosing intelligence to inappropriate channels and a culture of secrecy in which “agencies feeling they own the information they gathered at taxpayer expense.” A prior SIDtoday article touted the agency’s “extraordinary level of cooperation” and provision of “large volumes of SIGINT assessment reporting on terrorism, strategic business plans,” and a wide range of other topics. NSA and CIA’s Uneasy Collaborations Cooperation between the NSA and CIA runs deep, but it hasn’t always been smooth. An August 6 post, “CIA’s Directorates . . . Understanding More About Them,” talks about “‘turf wars’ due to real or perceived mission overlap,” particularly within the CIA’s technical division. Yet the Special Collection Service (SCS), which surveils foreign communications from U.S. embassies, is seen as a positive example of joint CIA-NSA work. SIDtoday cites the achievements of that highly classified organization, which came under scrutiny in 2013 for reports that its Berlin office had been intercepting Chancellor Angela Merkel’s mobile phone data. The August 18 post, “SCS and Executive Protection” details the interception of Philippine police communications about a bomb that had been placed on President Clinton’s motorcade route, which the police were trying to defuse without informing the Americans. SCS passed this information to the Secret Service, who re-routed the cars. The NSA-CIA relationship was also the subject of two SIDtoday articles in 2003. Does the NSA Share Enough Information With Congress? Even the NSA acknowledges that it classifies too much. In an article, “Do We Overclassify? Are We Sharing Enough Information?” a senior SID leader echoes language from the 9/11 Commission report, specifically citing the need to go from “a climate of ‘need to know’ to one of ‘need to share.’” This interview shares the report’s concern that intelligence agencies err on the side of over-classification: “If we continue to insist on classifying information which has already become known to our adversaries or for which disclosure would cause little or no harm to national security, we risk losing control over the really sensitive stuff.” Tellingly, though, he fears that Congress itself will act to force the NSA to disclose more information. NSA Supports the U.S. Marshals Service Post-9/11, the NSA has expanded its cooperation with law enforcement agencies, including the U.S. Marshals Service. In February 2004, SID formalized a relationship with the Marshals and its Electronic Surveillance Unit, which “functions like an intelligence operations team,” as it both monitors fugitives and provides support and threat assessments to other agencies. The U.S. Marshals Service represents an ideal client for the NSA given its interest in “stay(ing) out of the public limelight and courthouses.” Top photo: North Korean soldiers carry a portrait of late leader Kim Jong Il during a military parade to mark 100 years since the birth of the country’s founder Kim Il Sung in Pyongyang on April 15, 2012. The post Why Soviet Weather Was Secret, a Critical Gap in Korea, and Other NSA Newsletter Tales appeared first on The Intercept.


NSA Blimp Spied in the United States


To residents of Maryland, catching an occasional glimpse of a huge white blimp floating in the sky is not unusual. For more than a decade, the military has used the state as a proving ground for new airships destined for Afghanistan or Iraq. But less known is that the test flights have sometimes served a more secretive purpose involving National Security Agency surveillance. Back in 2004, a division of the NSA called the National Tactical Integration Office fitted a 62-foot diameter airship called the Hover Hammer with an eavesdropping device, according to a classified document published Monday by The Intercept. The agency launched the three-engined airship at an airfield near Solomons Island, Maryland. And from there, the blimp was able to vacuum up “international shipping data emanating from the Long Island, New York area,” the document says. The spy equipment on the airship was called Digital Receiver Technology – a proprietary system manufactured by a Maryland-based company of the same name – which can intercept wireless communications, including cellphone calls. With the exception of a few military websites that refer to the Hover Hammer as an “antenna mounting platform,” there is little information in the public domain about it. The classified NSA document describes the airship as a “helium-filled sphere inside another sphere, constructed of Spectra, the same material used to make bullet-proof vests. … It ‘hovers’ above small arms fire, has a negligible [infrared] signature, and radar can’t detect it.” The agency added in the document that it planned to conduct more tests with the Hover Hammer, and said it wanted to develop a larger version of blimp that would be capable of flying at altitudes of 68,000 feet for up to six months at a time. “More experiments, including the use of onboard imagery sensors, are being conducted,” it said. The NSA declined to comment for this story. In recent years, airships – or aerostats, as they are formally called – have been a source of major military investment. Between 2006 and 2015, the U.S. Army paid Raytheon some $1.8 billion to develop a massive missile-defense blimp called the JLENS, which is equipped with powerful radar that can scan in any direction 310 miles. (That’s almost the entire length of New York state.) In October 2015, the JLENS attracted national attention after one became untethered amid testing and drifted north from Maryland to Pennsylvania before it was brought back under control. In 2010, the Army commissioned another three airships – called Long Endurance Multi-Intelligence Vehicles – as part of a $517 million contract with Northrop Grumman. The company stated that the airships would “shape the future” of the military’s intelligence-gathering capabilities and provide a “persistent unblinking stare” from the sky. Unsurprisingly, privacy groups have expressed concerns about the prospect of the blimps being used domestically to spy on Americans. However, military officials have often been quick to dismiss such fears. In August 2015, Lt. Shane Glass told Baltimore broadcaster WBAL that the JLENS blimps being tested in Maryland were not equipped with cameras or eavesdropping devices. “There are no cameras on the system, and we are not capable of tracking any individuals,” Glass stated. The same cannot be said, it seems, of the NSA’s Hover Hammer. Top photo: A flight crew launches a U.S. Army Joint Land Attack Cruise Missile Defense Elevated Sensor System (JLENS) at the Utah Test and Training Range, Utah, on Feb. 3, 2014. The post NSA Blimp Spied in the United States appeared first on The Intercept.


NSA Kept Watch Over Democratic and Republican Conventions, Snowden Documents Reveal


It was August 2004 in New York City and President George W. Bush was in town, attending the Republican National Convention at Madison Square Garden. Thousands of protesters were out in the streets in the sweltering summer heat, carrying placards emblazoned with slogans like “Push Bush Out The Door” and “The War on Terror is A Lie.” As the demonstrations rumbled on outside, the National Security Agency was getting to work on an unusual operation. The agency, which mostly focuses on vacuuming up communications and monitoring events in foreign countries, had been drafted in to provide surveillance support to other federal agencies. A month earlier, in late July 2004, the NSA had served a similar role — using its vast electronic spying apparatus to bolster security at the Democratic National Convention in Boston. That’s according to a classified NSA document, published Monday by The Intercept, which offers a rare glimpse into the little-known circumstances surrounding the agency’s domestically focused missions. Department of Homeland Security Secretary Tom Ridge speaks at a press conference in New York City, on Aug. 25, 2004. Ridge was in New York surveying security preparations for the 2004 Republican National Convention in Manhattan. Photo: Chris Hondros/Getty Images The NSA became involved after then-Homeland Security Secretary Thomas Ridge and Attorney General John Ashcroft declared the conventions to be “National Special Security Events.” This designation came into existence following a secret directive issued in May 1998 by then-President Bill Clinton. The directive ensured that major gatherings of national or international significance would receive special federal resources to boost security, “with the goal of preventing terrorist attacks and criminal acts,” the classified NSA document explains. Between September 1998 and February 2008, there were 28 events approved for this extra level of protection, U.S. Department of Transportation records show. These included — aside from Republican and Democratic conventions — Super Bowls, presidential inaugurations, State of the Union addresses, and the Winter Olympics in Salt Lake City. It is not known whether NSA provided support to all of these events, but previous reporting — and a document published by The Intercept — have revealed that NSA was involved in carrying out surveillance at the Salt Lake City Olympics, where it worked with the FBI in a “fusion cell” known as the Olympics Intelligence Center. The targets of NSA’s surveillance during the 2004 conventions — and whether they were foreigners, Americans, or both — are not disclosed in the agency’s documents, which were obtained by The Intercept from the whistleblower Edward Snowden. The documents do specify, however, that six employees from the agency’s Signals Intelligence Directorate were deployed to New York City and Boston for the events, and that their role was to provide “SIGINT [signals intelligence] support to the FBI, the Department of Homeland Security and other national agencies.” NSA staff were equipped with computers that linked them back to the agency’s headquarters in Fort Meade, Maryland. And if they gathered any intelligence they believed concerned a threat, they could get it declassified so that it could be shared with federal, state, and local officials on site who did not have security clearances. Protesters are arrested at Union Square after attempting to march without a permit on the second day of the Republican National Convention, in New York City, on Aug. 31, 2004. Photo: Paula Bronstein/Getty Images The Republican convention at Madison Square Garden took place over four days between August 30 and September 2. During some of the large-scale protests on the streets outside, the New York Police Department arrested more than 1,800 activists, bystanders, journalists, and lawyers. In 2012, after a lengthy court battle, federal Judge Richard J. Sullivan ruled that the arrests were illegal. Sullivan noted in his judgment that the NYPD had been responding “to a threat derived from intelligence sources — namely, that demonstrators aimed to ‘shut down the City of New York and the R.N.C.’ through ‘continuous unlawful behavior.’” Patrick Toomey, a staff attorney with the ACLU’s National Security Project, said there needed to be transparency on whether NSA had eavesdropped on any communications about the demonstrations. “If NSA surveillance was used directly or indirectly to monitor protesters or domestic political activities, as opposed to detecting foreign threats, that would be a matter of serious concern,” Toomey told The Intercept. “The public should know more about the nature of any NSA surveillance, whether it swept up the private communications of Americans, and whether law enforcement relied on that information to monitor people exercising their First Amendment rights.” The NSA declined to comment for this story. The Department of Homeland Security and New York Police Department had not responded to requests for comment at time of publication. A spokeswoman for the FBI said she could not comment because she had no knowledge of the 2004 operation. Top photo: A group carrying what was described as 1,000 coffins representing the U.S. dead in Iraq marches past Madison Square Garden during the anti-Bush march organized by United for Peace and Justice in New York, on Aug. 29, 2004, on the eve of the Republican National Convention. The post NSA Kept Watch Over Democratic and Republican Conventions, Snowden Documents Reveal appeared first on The Intercept.


In Secret Court Hearing, Lawyer Objected to FBI Sifting Through NSA Data Like It Was Google


In her first appearance representing the American public before the top-secret Foreign Intelligence Surveillance Court in 2015, Amy Jeffress argued that the FBI is violating the Fourth Amendment by giving agents “virtually unrestricted” access to data from one of the NSA’s largest surveillance programs, which includes an untold amount of communications involving innocent Americans. The NSA harvests data from major Internet companies like Facebook and from huge fiber optic backbones in the U.S. without a warrant, because it is ostensibly “targeting” only foreigners. But the surveillance program sweeps up a large number of Americans’ communications as well. Then vast amounts of data from the program, including the domestic communications, are entered into a master database that a Justice Department lawyer at the 2015 hearing described as the “FBI’s ‘Google’ of its lawfully acquired information.” The FBI routinely searches this database during ordinary criminal investigations — which gives them to access to Americans’ communications without a warrant. Jeffress, a former federal prosecutor now serving as an independent “friend of the court,” expressed frustration over the casualness with which the FBI is allowed to look through the data. “There need be no connection to foreign intelligence or national security, and that is the purpose of the collection,” she told Thomas Hogan, then the chief judge of the court. “So they’re overstepping, really, the purpose for which the information is collected.” The ACLU obtained the hearing transcript and other legal documents related to the secret court proceedings under the Freedom of Information Act, and released them to the public on Friday. The FISA Court has been widely criticized for its secrecy, its extreme tendency to defer to the government, and the fact that until recently it only heard the government’s side of the case. In 2015, Congress passed a law establishing the position of “amicus curiae” to represent the interests of the public and civil liberties, and Jeffress is one of five amici now serving. Jeffress, who is now a partner at the law firm Arnold and Porter, declined an interview request, citing the sensitivity of the FISA Court’s proceedings. The NSA program in question operates under Section 702 of the Foreign Intelligence Surveillance Act, which is scheduled to sunset in December unless it is reauthorized by Congress. What critics call the FBI’s “backdoor search loophole” is likely to be a major topic of debate in the coming months. The FBI’s backdoor searches are so controversial that the Republican-controlled House of Representatives passed measures in 2014 and 2015 requiring agents to get a warrant before conducting them, although the Senate refused to take up either proposal. “Section 702 backdoor searches of Americans’ private communications are plainly unconstitutional, and the FBI’s warrantless searches are especially troubling,” said Ashley Gorski, a staff attorney with the ACLU. The CIA and even the NSA itself have imposed a requirement that each query they run on 702 data involving a U.S. person be supported by a statement of facts that explains why the information being sought is relevant to foreign intelligence – as the independent Privacy and Civil Liberties Oversight Board recommended in 2014. But when Hogan asked if the FBI were willing to do the same thing, the lawyer representing the Department of Justice at the hearing – whose name the government redacted in the transcript – brushed him off. The lawyer said that searches of the FBI’s “lawfully acquired data” are so common that requiring agents to document them would be impractical, and even dangerous. “If we require our agents to write a full justification every time — think about if you wrote a full justification every time you used Google. Among other things, you would use Google a lot less,” the Justice Department attorney said. “We want the FBI to look and connect the dots in its lawfully acquired information.” Throughout the court hearing, the government insisted that being able to routinely sift through the data during criminal investigations was essential to national security, arguing that the ordinary crimes the FBI investigates can be connected to terrorism, unbeknownst to the agent. But when asked how often non-national security queries elicited such information from the NSA data, the lawyer conceded that “at the very least it would be extremely rare.” Members of Congress have been trying to understand the scope of 702 surveillance for years. In 2011, Sen. Ron Wyden, D-Ore., requested an estimate of how many Americans’ communications are caught up in that one NSA dragnet — and other members and committees have repeatedly asked — but the government has refused to provide even a ballpark figure. Just last week, the House Judiciary Committee renewed that request, sending a bipartisan letter requesting an estimate. The government published a document Wednesday saying it would not provide the number, but called on Congress to reauthorize the program anyway. In her brief to the court, Jeffress argued that the breadth of collection on U.S. citizens was enough to warrant additional Constitutional scrutiny. “Not all section 702 targets are international terrorists,” Jeffress wrote. The next several sections, presumably describing what other kind of things get caught up in the dragnet, were blacked out. She continued: “These scenarios suggest a potentially very large and broad scope of incidental collection of communications between lawful target and U.S. persons that are not the type of communications Section 702 was designed to collect,” she wrote. Judge Hogan ultimately ruled in favor of the government, allowing the FBI to continue giving its agents virtually unlimited access to conduct backdoor searches. His 80-page opinion was declassified in April 2016. That leaves the matter to Congress. Jeffress told the court: “I don’t think that the FBI will voluntarily set limits on its querying procedures, because law enforcement agencies tend not to take steps to restrict or limit what they can do, for obvious reasons.” Top Photo: The official seal of the Federal Bureau of Investigation is seen on an iPhone’s camera screen. The post In Secret Court Hearing, Lawyer Objected to FBI Sifting Through NSA Data Like It Was Google appeared first on The Intercept.