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comment by crafty

Yeah, and ten years ago, this was my cell phone in high school:

At the risk of sounding flippant, so what? Sure technology changes fast, but this warrant-less domestic mass surveillance has been going on at least since 9/11 and didn't end in 2003 like you imply. The legal basis of the surveillance programs has a long spaghetti history of being justified in one way, then another and another, all while being twisted, obscured, confused and compartmentalized. I'm sure the NSA and their executive branch partners have been working very hard to conceal and destroy evidence, or otherwise obstruct courts from threatening their programs, but I fail to see how that means we should just stop paying attention or give up. Their army of lawyers may be masters at playing this game, but the only way defenders of civil liberties can hope to fight back is to continue poking at the little holes in their armor (like this case) and pulling on the little threads revealed by whistle-blowers. If you have a better suggestion, I'm all ears.

You say you've read some books about the NSA, and perhaps you can give me some valuable recommendations. I've read the Jewel v. NSA summary of evidence submitted by the plaintiffs to the court in 2012 and I thought it was an excellent compilation of what has been going on behind the scenes. I would urge anyone interested in this topic to take an hour and read it in its entirety (It's only fifty-some pages, although it is dense with references and footnotes). I have summarized their summary, in an effort to distill what I find is the most compelling evidence for legal action against the NSA and their cohorts.

The summary begins with an outline of the programs in question, then details various threads of evidence as it has been slowly leaked to the public:

    Shortly after the September 11, 2001 terrorist attacks, President George W. Bush authorized the National Security Agency to conduct a variety of surveillance activities, including the warrantless surveillance of telephone and Internet communications of persons within the United States. The OIG PSP Report termed these surveillance activities the “President’s Surveillance Program” (hereafter, “the Program”). The Program is broader than the narrow subset of surveillance activities that, in 2005, the Bush Administration decided to label the “Terrorist Surveillance Program” (hereafter “TSP”).

    A secret presidential order (the “Program Order”), signed on October 4, 2001, expanded the authority of the NSA “to conduct electronic surveillance within the United States without an order from the [Foreign Intelligence Surveillance Court (FISC)].” The Program began on October 6, 2001, prior to any comprehensive legal review by the Department of Justice. The Program Order permitted the NSA to carry out a variety of new intelligence activities within the United States.

    The entire Program remained secret until newspaper reports – a series of December 2005 New York Times articles, a December 2005 Los Angeles Times article, and a May 2006 USA Today article – revealed two discrete aspects of the Program: the warrantless surveillance of Internet and telephone communications and the government’s acquisition of domestic call-detail records from major telecommunications carriers. While the precise scope of the surveillance activities and the legal arguments used to support the Program have fluctuated over time, to date, the Program remains in operation, largely unchanged from its original form. [Emphasis mine]

To categorically assume that all evidence has been destroyed, belies the reality of the situation as I see it, where some of the evidence of illegal behavior has been publicly exposed, or kept classified.

    The government conducts communications surveillance under the Program in several stages, starting with acquisition of the communications passing through major telecommunications switches. Government officials confirmed to the New York Times that the NSA obtained “backdoor access to streams of domestic and international communications” via arrangements with “some of the nation’s largest telecommunications companies.” Those agreements provided the NSA “access to major telecommunications switches on American soil.”

    Plaintiffs’ eyewitness evidence confirms that Program surveillance begins with wholesale acquisition of communications – both international and domestic – from domestic telecommunications switches. In January 2006, a former AT&T employee named Mark Klein provided detailed eyewitness testimony and documentary evidence showing how the government, in partnership with AT&T, acquires access to the streams of international and domestic communications. (As part of the Program, “[telecommunications] companies have granted the NSA access to their all-important switches, the hubs through which colossal volumes of voice calls and data transmissions move every second…. [T]he NSA appears to be vacuuming up all data, generally without a particular phone line, name, or e-mail address as a target.”)

    Klein’s job at AT&T was “to oversee the WorldNet Internet room” at AT&T’s Folsom Street facility in San Francisco. Communications carried by AT&T’s WorldNet Internet service pass through that room to be directed to or from customers of AT&T and other service providers. The WorldNet Internet Room is designed to process vast amounts of electronic communications traffic “peered” by AT&T between its Common Backbone (“CBB”) Internet network and other carriers’ networks. The Folsom Street Facility also handles millions of telephone communications.

    The Klein evidence describes how the government initially intercepts Internet communications, which are carried as light signals on fiber-optic cables. To divert the stream of communications to the government, AT&T connected the fiber-optic cables entering its WorldNet Internet room to a “splitter cabinet.”

    The “splitter cabinet” splits the light signals from the WorldNet Internet service in two, making two identical copies of the data carried on the light signal. The splitter cabinet directs one copy of the light signal through fiber optic cables into a secret room built on AT&T premises, but controlled by the NSA, while allowing the other copy to travel its normal course to its intended destination. The split cables carry both domestic and international communications of AT&T customers, as well as communications from users of other non-AT&T networks that pass through the Folsom Street Facility. The use of the splitter cabinet to create an identical copy results in the wholesale acquisition by the government of AT&T customers’ Internet communications. . . . In particular, [a plaintiff expert witness] Marcus explains that the location of the fiber split in AT&T’s network was not designed to capture only international traffic, but to intercept purely domestic communications as well.

Evidence indicates (and supported by expert witness testimony) that similar "splitter cabinets" were employed at other switching locations, including Seattle, San Jose, Los Angeles and San Diego, giving the government unrestricted access to both domestic and international communications. The testimony concerning these points of access are corroborated by oblique statements of involved officials, such as Gen. Michael Hayden. Also contained in the motion is evidence concerning what the Government did with those communications after it had collected them:

    Once the communications are acquired, the Program involves “comb[ing] through large volumes of phone and internet traffic” in a “large data-mining operation.” As former Homeland Security Secretary Michael B. Chertoff confirmed in a January 2006 interview, the Program involves “‘data-mining’ – collecting vast amounts of international communications data, running it through computers to spot key words and honing in on potential terrorists.”

There is a description of the “‘mechanical surveillance’ that is taking place before U.S. citizens and residents are ‘subject to human surveillance.’” Collected communications were directed to a secure room operated by the NSA:

    The AT&T documents presented by Mr. Klein show that a Narus STA 6400 was installed in NSA’s secure room inside of AT&T’s Folsom Street facility. As plaintiffs’ expert J. Scott Marcus explains, the Narus machine is a “semantic traffic analyzer” – a device “designed to capture data directly from a network, apply a structured series of tests against the data, and respond appropriately.” The Narus machine has the capability “to process huge volumes of data, including user content, in real time.” Thus, the configuration deployed in the secure room is “well suited to the capture and analysis of large volumes of data for surveillance purposes.”

Those familiar with domestic surveillance might be aware of the term "minimization" which refers to the “procedures for reviewing, handling, and, as appropriate, destroying, information about U.S. persons, depending on whether or not the information constitutes foreign intelligence information.” The document also covers evidence relating the NSA's minimization policies. According to testimony to the Senate Committee on the Judiciary, statements made by McConnell, the DNI, indicate that "immediately after acquisition 'there is no human that is aware of it. So you wouldn't know that [communications without foreign intelligence value were there] until you went into the database.'"

    McConnell further admitted that the communications are acquired and placed in a database before minimization. In response to a question on the number of Americans whose communications had been intercepted, he testified [in a house committee]:

    MR. MCCONNELL: I am not even sure we keep information in that form. It would probably take us some time to get the answer. The reason is, you’re collecting information. It is in a file. It will roll off in a period of time. You may not even know it is in the database. That is one of the reason we are so careful about who has access to that database. . . .

    REP. BERMAN: . . . How do you minimize without knowing?

    MR. MCCONNELL: If you look at it, then you know.

    REP. BERMAN: So all you do is minimize the ones you happen to look at.

    MR. MCCONNELL: Right. If there is something in there that — it doesn’t come up for some reason, you just wouldn’t know. …

Here in another similar exhange from a Senate committe:

    FEINSTEIN: . . . Do the minimization procedures prevent NSA from retaining communications that do not contain foreign intelligence information?

    MCCONNELL: If recognized, the minimization would require them to expunge it from the database. . . .

    FEINSTEIN: So what is the minimization process? And how does it function? And what happens with that collection?

    MCCONNELL: The – first of all, you may not even realize it’s in the database, because you do lots of collection, you have to have a reason to look.

    The inference from former DNI McConnell’s statement is that communications between U.S. persons and records of such communications are in the database – and remain in the database – available for human intelligence analysts to review. Because there are “billions of things going on” in the database, McConnell explained, information without foreign intelligence value will remain stored for some period of time if it “hasn’t been examined." Indeed, former Attorney General Alberto Gonzales suggested in sworn testimony before Congress that, once collected, the information is kept indefinitely, even if the subject of the surveillance is an ordinary American: “In terms of what is actually done with that information, . . . information is collected, information is retained and information is disseminated . . . .”

The summary of the NSA's minimization procedures seem fairly damning to me as a layman:

    Under the Program, on the occasions where the government follows procedures established to protect Americans’ privacy (obtaining a warrant or conducting minimization by purging the record from the database), it does so only after both acquisition and analyst review. If a government analyst reviewed the communications and determined that “it was a U.S. person inside the United States . . . that would stimulate the system to get a warrant. And that is how the process would work,” [said McConnell]. In sum, the evidence shows that the NSA seeks a warrant only after the communication is (1) initially acquired and analyzed by computers according to algorithms designed by humans; (2) placed in a government database; and (3) reviewed by an analyst.

There are also descriptions by two whistle blowers, David Faulk and Adrienne Kinne, where minimization techniques were simply not used, even in cases where it was apparent they should be, when the NSA was collecting communications by aid organizations, or sharing salacious communications among analysts.

Beyond the evidence of IP communication surveillance, there are also details about the phone metadata surveillance, and the difficult legal justification for it. A phone company, Qwest, made some interesting statements about it:

    Qwest has unequivocally confirmed requests by the government for “private telephone records of Qwest customers,” which Qwest refused after learning that it would not be provided with any lawful authority permitting such access." According to Joseph Nacchio, the former “Chairman and CEO of Qwest [who] was serving pursuant to the President’s appointment as the Chairman of the National Security Telecommunications Advisory Committee,” Qwest’s refusal to comply was based on a “disinclination on the part of the authorities to use any legal process” in support of the request.

Furthermore, there is evidence that the NSA uses the phone metadata collection "to analyze the communications patterns of Americans in order to locate and target suspects for further surveillance and investigation." It's worth noting that the military uses similar metadata analysis of foreign calls to target drone strikes.

    The database of call-detail records provides NSA with a window into the “existence, timing, and frequency of communications between persons” within the United States. Indeed, for the NSA, “a person’s associations and the persistence of that association with other persons” is often “of greater relevance to a determination” that a person should be a target of investigative interest than “the actual words used in a series of communications.”

Additionally, there is some interesting analysis of the Program's evolution, because, like you say, this has been going on for quite a while:

    The Program reflects a goal of the NSA presented to the incoming Bush administration in December 2000. According to the NSA, “[t]he volumes and routing of data make finding and processing nuggets of intelligence information more difficult. To perform both its offensive and defensive mission, NSA must ‘live on the network.’” . . .

    But FISA stood as an obstacle to accomplishing this goal. In 2000, the NSA acknowledged that the “applicable legal standards for the collection, retention, or dissemination of information concerning U.S. persons reflect a careful balancing between the needs of the government for such intelligence and the protection of the rights of U.S. persons,” and FISA “codified this balancing.” However, shortly after the attacks of September 11, “FISA ceased to be an operative concern” for the NSA. Consequently, President Bush authorized the NSA to “conduct electronic surveillance within the United States without an order from the FISC[.]”

DNI McConnell even gave testimony in 2007, saying “[T]he original program that the President was operating” was unlawful in “the framework of FISA,” while reserving judgment on the Article II argument, and Gen. Hayden said it “is a more . . .‘aggressive’ program than would be traditionally available under FISA.”

    Even in the absence of judicial authorization, neither the President nor Attorney General approved the specific interceptions; rather, the decision to listen or read particular communications was made by intelligence analysts. . . The only review process is authorization by an NSA “shift supervisor” before directly reviewing a particular individuals’ communication

Between 2001 and 2004 the Program Orders were simply certified as to their "form and legality" by the Attorney General which gave the program a sense of legitimacy and encouraged private partners to cooperate. There are some curious details about AG Ashcroft's awareness of the full extent of the Program, culminating in a confrontation in Ashcroft's hospital room in March of 2004, which precipitated a shift in how the administration justified the Program. It's difficult to read these accounts and not get the sense that something fundamentally wrong was occurring.

I'm curious what your response is to all of this, Kleinbl00; Obviously the Protect America Act of 2007 and the FISA Amendments Act of 2008 brought some of the surveillance back under the FISC, but officials in the intelligence community still seem to maintain that the AUMF and Article II of the constitution allows the President to authorize mass domestic surveillance without warrants or judicial oversight. I don't think you could argue with a straight face that Obama has suddenly reversed course here. Considering the degree to which the legislative and executive branches are in the pocket of the intelligence community, not to mention both major political parties, the judiciary looks like the best opening to attack (legally speaking, of course) the surveillance apparatus.

For all the flak Snowden receives for "not being successful enough" in his leaks against the NSA, they have given some ammunition to plaintiffs and has undermined the state secrets privilege which they've relied on in the past. There will be no grand reveal of all the skeletons in the closet here, all we can see are just a handful of puzzle pieces. Just because the NSA is busy hiding and throwing away some pieces to the puzzle, doesn't mean we shouldn't try to put together the pieces we already have. Sorry for writing a book here, but I just wasn't really impressed with your response, to be honest.

kleinbl00  ·  3634 days ago  ·  link  ·    ·  

Don't lecture me, young man. You're spewing forth quotes as if I hadn't heard them, as if I don't know about them, and if I was making any statement about them. Read what I said again:

    I think it's safe to say that anything of any real note has been expunged, purged, destroyed, erased, forgotten, circular-filed, binned and otherwise annihilated.

You can get as legal as you want: the fact of the matter is we're talking about a secret organization for whom data destruction is 2nd nature. As I was saying, they've had eleven years to sanitize the subject under question: allegations made public in 2003. Yeah, the NSA has done all sorts of nefarious shit since and shall continue to do so, but the fact of the matter is, the EFF is in a position to use what they know, not what they can discover.

And what they know is hopelessly out of date. You don't think a whole bunch changed after Snowden?

That's why your phone and my phone matters: what we know about what the NSA is doing dates back to a time when Blackberries were king. Sure, you can inject some Snowden in there but again, every time we get a glimpse up the NSA's skirt they can change their panties without us even knowing.

    Sorry for writing a book here, but I just wasn't really impressed with your response, to be honest.

That's because you didn't read it. Go bark at someone else. You want to have this argument with someone but it sure as fuck isn't me.

crafty  ·  3634 days ago  ·  link  ·  

Yes sir. Sorry to lecture.

Edit: Apparently you muted me as well, just for good measure. I assure you, I will never lecture my elders in the future, but please don't bother unmuting me.

kleinbl00  ·  3634 days ago  ·  link  ·  

Hadn't had my coffee yet. Sorry for over-reacting.

I wrote a 550-page novel involving the NSA. I've done a podcast on here involving the NSA. I've been rather vocal about the NSA on Hubski. Let's start over again: if you promise to ask questions rather than deliver snide indictments, I'll resist the temptation to put you on blast for using my comments to grandstand.

crafty  ·  3634 days ago  ·  link  ·  

No, no, you're totally forgiven Kleinbloo! We all overreact sometimes, that's part of what makes us human, so I harbor no hard feelings there. Please accept my apology for the snide indictments, I was hesitant about sounding flippant in my introduction, and I'm sorry if my last line left you feeling defensive.

I've looked through past hubski posts about surveillance, spying, NSA and such topics, and came across several of your interesting, insightful and valuable comments, so I know you're knowledgeable about the topic, and I certainly didn't intend to grandstand on your reply to my comment. I suppose I was mainly confused by your original sentiments, which felt dismissively defensive towards the NSA. When you say:

    I think it's safe to say that anything of any real note has been expunged, purged, destroyed, erased, forgotten, circular-filed, binned and otherwise annihilated.
Are you saying that the evidence in this case isn't of note, or otherwise not worth examining in a courtroom? I understand that today's surveillance apparatus is still largely secret and changing fast which means this case will never deliver some dagger to the heart, but perhaps this is just a chink in their knee armor? Isn't this the best we've got, as far as court cases go? There seems to be some evidence here, but if litigation isn't a good offensive strategy against the surveillance apparatus, then what is?
kleinbl00  ·  3634 days ago  ·  link  ·  

    I've looked through past hubski posts about surveillance, spying, NSA and such topics and come across several of your interesting, insightful and valuable comments, so I know you're knowledgeable about the topic,

Less smokeblowing, more snark. I'm a blowhard, not an unapologetic narcissist. ;-)

It isn't "dismissively defensive" it's "sardonically pessimistic." It's like this:

- in 2003 you find out that Ned S. Anderson had been fishing your credit card numbers for the past four years, probably with an illegal card reader. Unfortunately, Ned keeps everything he owns in a giant bank vault. Equally unfortunately, nobody has any ability to compel Ned to open the vault.

- In 2005 you lawyer up and demand that Ned stop fishing credit card numbers. Ned says he isn't and disputes whether he ever was, despite obvious evidence to the contrary. Your lawyer says "we know you have that thing in your vault" and Ned says "there is no vault." It's obvious there is, but since nobody can get into the vault, it doesn't matter.

- In 2008 Ned motions that since there is no vault, your suit has no merit. The judge agrees as legally, whatever Ned says is true thanks to legislation passed to make Ned's job easier.

- In 2011 you present new evidence as to Ned's malfeasance without any mention of the vault. The judge agrees that since your argument is now vaultless, Ned has to answer - but Ned can still argue that you're asking to see inside the vault.

- In 2013 Ned's student Ed bails to russia with a bunch of photographs of the inside of the vault. Ned argues that Ed is a threat to the world and the world generally feels that Ned is shady...

- but you're still in a position of proving that Ned had a machine in his non-existent bank vault that he used to lift your credit cards in 2003. Everything that has happened since then isn't a part of your lawsuit except to demonstrate Ned's nasty tendencies to lift credit card numbers...

...and Ned has had eleven years to rearrange the vault, clear out the vault, build the vault, expand the vault, put a beer fridge in the vault, air-condition the vault and otherwise do whatever the fuck he wants to do inside the vault because "the vault" is an object that you aren't allowed to ask about by law.

Here's the thing: We don't even know how much money the NSA has. The "black budget" is opaque to anyone who isn't on the Security Council. We're talking about an organization that is fundamentally immune to congressional oversight - they don't give a flying fuck as to what the Judicial Branch says.

In order to get the NSA to toe the line, they need to be accountable to congress, and congress needs to be accountable to the voters. They aren't. At all. So a civil action involving warrantless wiretapping from before the Invasion of Iraq is theater of the highest order - the NSA pretends to fight it but regardless of the legal precedent set, there is absolutely no enforcement mechanism whatsoever to compel them to abide by any ruling.

I give money to the EFF. I'd love to see the NSA held to the same standards as the FBI. But I live in a world where it's common knowledge the CIA shapes elections in AUSTRALIA, I don't conflate desires for probabilities.

crafty  ·  3634 days ago  ·  link  ·  

You're great at bringing out the internal pessimist in myself, and reading your response, I see that. I agree, fighting the NSA and the deep government it's attached to is certainly a David versus Goliath battle, comically one sided to be sure. You call the litigation "theater of the highest order", and I suppose I agree with that to a degree but my question in response would be, what part of the government isn't theater? Or atleast, what aspects of "US democracy" are the least covered in theater curtains, giving an opening to motivated individuals to advocate for change? Is the entire federal government "lost," so-to-speak, in your view? Are the best avenues of opposition at the local level, or perhaps through independent activism/media? I don't really like the idea that the Stasi is already here and there is absolutely nothing that can or should be done about it, even if it is true. It seems like that idea just plays right into their hands.

You say Congress needs to be accountable to the voters, and the NSA needs to be accountable to Congress, which seems like a good prescription, although I take it you don't think that will or could happen? I'm somewhat cognizant of American history, and I know struggles like these have played out in American politics before, between empowered groups and the disenfranchised. I'm curious, given your knowledge, where do you think we're headed? Do you really think the current trajectory of American democracy is tenable over the coming century or can outside forces cause fundamental shifts in the existing power structures?

kleinbl00  ·  3634 days ago  ·  link  ·  

I would say it's more of a windshield vs. bug battle. That's the real problem: in thinking that there's a possibility for something resembling a "battle" (as opposed to more or less roadkill) we overvalue frontal confrontation while simultaneously missing any opportunity for lateral action.

The government is far from worthless. It took two years between the Bush administration relaxing pollution controls and the AMA recommending pregnant women stop eating tuna. Four years after Obamacare and our uninsured have dropped by a factor of two. Two years after the Halloween Massacre and we completely miss the fall of the Shah. I recognize that most of these examples are negative, but perhaps that's better: if a Stansfield Turner were appointed to the NSA, the NSA would be crippled within weeks.

And that's the take-away: when you're dealing with an organization that operates by appointment, you need appointments that do what you want, rather than what they want. Henry Stimson shut the Black Chamber down with one signature. The NSA doesn't need to be shut down - that would be ridiculous. But it certainly needs to be brought to heel. The problem is that the NSA doesn't do what they do because they're evil, they do it because it's easier than doing it right. And without a compulsion to do it right, they'll do it easy every time.

Is the Stasi here? Please. There are flagrant examples of things going horribly wrong for liberty but there are flagrant examples of people getting really upset about that. Remember: the NSA has been spying flagrantly since the inception of the NSA. What's changed is that people are (A) aware (B) pissed off.

Really, we're better off than we were.

crafty  ·  3634 days ago  ·  link  ·  

I think you're right, the appointments really are key. That's what I find so interesting, or perhaps frustrating, in all the hand wringing and finger pointing over Obama's culpability. On one hand he is just one person, hoisted on top of the vast executive bureaucracy, how can he be responsible for all of their varied and long-running machinations, but on the other hand, he is ultimately responsible for those appointments (with congressional approval) which could drastically change things. In 2008 I really thought Obama could clean house, but it doesn't seem like he did. If that's the solution you're waiting around for, I'll join you in your pessimism. Then again, the one thing about the future is that it's unpredictable, so who knows.

I don't seriously think the Stasi is here either. What we have is certainly different, but I've seen people make comparisons.