Snowden’s Pardon Fantasy

NSA Complex, Fort Meade, MD.

September 22, 2016 | Posted in 4th Amendment, Al-Qaeda, Classified Information, Department of Defense, Director of National Intelligence, E.O. 12333, FISA, FISC, Intelligence, Leaks, NSA, President Obama, Russia, Snowden, Terrorism | By

In recent days, in the run-up to the release of an Oliver Stone helmed movie about him and his self-admitted theft of secrets from NSA and subsequent flight to China and then Russia, Edward Snowden has stated that he believes he deserves a presidential pardon for his crimes.

He bases this on a belief that, “If not for these disclosures, if not for these revelations, we would be worse off,” and goes on to say that a pardon would be appropriate, “…for the exceptions, for the things that may seem unlawful in letters on a page but when we look at them morally, when we look at them ethically, and when we look at the results, it seems obvious that these were necessary things,”. Both these quotes come from a CNN article that cites an interview in The Guardian.

Estimates reported by news outlets vary, but he allegedly stole approximately 1.5 million classified documents from NSA’s internal networks, far more material than anyone could have possibly needed to demonstrate alleged malfeasance and abuse by the government. According to NBC and Defense One, he did so by using computer passwords and credentials belonging to a civilian employee of NSA, a member of the military, and an NSA contractor to hide his criminal acts – in other words, he acted as a thief and con man to gain access to as much classified material as he could before he fled to China, and Russia – two great bastions of freedom and personal privacy.

Much has been made in various media outlets of the alleged impropriety, illegality, or unconstitutionality of NSA’s foreign intelligence efforts, both within the U.S. and abroad. However, after extensive public debate, the most controversial tools that concerned U.S. citizens remain in NSA’s toolbox, one of them, the ‘Section 215’ program, retooled by Congress and the Obama administration to ally the public’s concerns about potential overreach or misuse, but not halt it.

Moreover, NSA’s extensive efforts to preserve and protect the privacy rights of U.S. citizens is now documented the Director of National Intelligence’s ‘IC on the Record’ pages on Tubmlr. Thousands of now declassified documents that demonstrate how the government worked within the constitutional and complex legal framework set up to protect U.S. citizen privacy rights during the conduct of NSA’s SIGINT operations – controls that have been in place since at least 1980.

With regard to Mr. Snowden’s assertion that we “…look at the results…” of his actions to see that his pardon is warranted, we can do that. The report from the DoD Information Review Task Force-2 (IRTF-2) Initial assessment in December of 2013, titled ‘Impact Resulting from the Compromise of Classified material by a Former NSA Contractor’, said in its overall assessment that, “The IRTF-2 assesses with high confidence that the information compromise by a former NSA contractor….will have a GRAVE impact on U.S. national defense.”

In January 2015, Al-Qaeda created a YouTube video after the Snowden leaks teaching its operatives how to evade what the terrorists referred to somewhat erroneously as ‘FBI Secret Spying technology’. In May of 2015, the Henry Jackson Society, a conservative British think-tank published a 78-page report that drew heavily from the testimony from senior security sources outlining how terror groups had changed their communications methods and began more extensive use of encryption to hide terrorist operations from intelligence agencies. A July 2015 report in the New York Times also reported the Islamic State learning communications security from the Snowden leaks.

More recently, a Wall Street Journal article discussed how an Islamic State terrorist who led the November 13th terror attacks in Paris, evaded western intelligence agencies using better operational discipline and technical savvy in his communications. An awareness of which Mr. Snowden’s leaks undoubtedly raised, given the previous reporting.

The results of Mr. Snowden’s theft and leaks are pretty clear to my mind. Operating from a misguided sense of superiority and a flawed and incomplete understanding of the extensive U.S. person privacy protections in place within the intelligence community more broadly, and NSA in particular; he elected himself congressman, attorney general, and judge of a process and an oversight regime he initially tried to cheat his way into, and then barely had three months of experience in as a contractor (I’ll bet none of that is in the movie).

President Obama believes Snowden should stand trial, and so do I.

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USSID 18 & Your Privacy

NSA Complex, Fort Meade, MD.

July 27, 2014 | Posted in 4th Amendment, Department of Defense, Director of National Intelligence, E.O. 12333, FISA, FISC, Intelligence, Leaks, NSA, PPD-28, Privacy, Snowden, U.S. Code Title 50 | By

NSA Complex, Fort Meade, MD.

NSA Complex, Fort Meade, MD.

Over the last year, some media outlets have used the leaked classified material from Edward Snowden to write news stories that imply NSA has either: allegedly violated the privacy rights of ‘every American’ or exceeded its authorities.  In every one of these stories, what is usually missing is a SIGINT professional’s level of understanding on the part of the journalist, admittedly difficult to gain when SIGINT operational training is classified.

Signals intelligence, referred to as SIGINT, is both technically complex due to the nature of modern communications technologies, and legally complex, due to the heavy legal and Constitutional burdens placed on the professionals at NSA who conduct it.

These professionals spend months and oftentimes years during a career training in the operational, technical, and legal aspects of conducting SIGINT – which includes training in the protection of U.S. person privacy.

For example, a recent Washington Post article on July 11th, ‘How 160,000 intercepted communications led to our latest NSA story’; written to amplify its July 5th story ‘Non-targets far outnumber targets in NSA data collection’, states that the rules for ‘minimization’ of U.S. person information are ‘opaque’ – in fact, they are not opaque at all.

The minimization rules come in two forms, both of which are written in black and white for anyone to read, now that they have been declassified.  They are contained in the Foreign Intelligence Surveillance Court’s minimization instructions as part of its numerous court rulings, and United States Signals Intelligence Directive 18 (USSID 18).   USSIDs provide implementation guidance and direction to NSA’s civilian and military workforce, ensuring our Constitutional principles, current laws, Executive Orders, and binding court orders are implemented and enforced within the entire United States SIGINT System.  For the purposes of this blog post, we’ll focus on USSID 18.

USSID 18 is titled, “Legal Compliance and U.S. Persons Minimization Procedures”, and is fifty-two pages long.  Naturally, portions of many paragraphs are blanked out as part of the declassification process, but the direction in, and intent of USSID 18 are very clear, and I can tell you from my experience in the intelligence community that it is binding and followed by all SIGINT professionals.

Discussing all the limits USSID 18 places on SIGINT operations would take several blog posts worth of space, but we can look at one instance where USSID 18 applies in the Washington Post’s July 5th story.

The Post’s story states that, in the sample of surveillance files it reviewed, ‘NSA analysts masked, or “minimized,” more than 65,000 [references to U.S. citizens or residents], but the Post found nearly 900 additional e-mail addresses, unmasked in the files, that could be strongly linked to U.S. citizens or U.S. residents.’  This line is clearly meant to bolster the implication that U.S. person identities or identifiers incidentally collected under the legally authorized, and court monitored FISA Amendments Act (the Patriot Act) Section 702 program are not properly minimized.

If this element of the Post’s story is accurate, that translates to a 98.7% accuracy rate (based on (900 / 65,900) x 100) of minimization, as required under USSID 18 – an operational standard that many U.S. corporations would envy.  The Post didn’t word it that way, but it is example of how the professionals at NSA take protection of U.S. person privacy seriously, rather than supporting the Post’s implication that NSA treats U.S. person data in a cavalier manner.

The Post’s explanatory piece on the 11th also expresses its concern about the volume and nature of incidental collection, the Director of National Intelligence’s assertion that it is unable to estimate how many Americans are affected, and that no outside watchdog – the Congress, courts, or the President’s Privacy and Civil Liberties Oversight Board have access to the content to judge for themselves.

The reason for this is obvious to a professional.  Although the Post could traipse at will through its purported pile of 160,000 intercepts (reviewing U.S. citizen’s private information under the comforting blanket of the 1st Amendment) – the government cannot legally look through incidental collection to identify and characterize it because laws, and both executive and court orders forbid it.  Laws and orders every American citizen, including those working at NSA, must obey.

At this stage of the debate, I had hoped to see stories covering how NSA adheres to law and policy to conduct their assigned foreign intelligence mission, using background interviews with NSA’s professionals and managers in a more transparent environment. Instead, we continue to see stories from some members of the media filled with a selected set of ‘facts’ provided by a man charged with theft and violations of the espionage act, filtered through well-intended, but only partially educated journalist guesswork, resulting in implications or insinuations of impropriety or illegality.  There is more to the story than just what Mr. Snowden, or the journalists who support him, would have you believe.

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Op-Ed in the Baltimore Sun

NSA Complex, Fort Meade, MD.

April 5, 2014 | Posted in 4th Amendment, Department of Defense, E.O. 12333, FISA, FISC, Leaks, NSA, PPD-28, U.S. Code Title 10, U.S. Code Title 18, U.S. Code Title 50 | By

NSA Complex, Fort Meade, MD.

NSA Complex, Fort Meade, MD.

When you get a chance, please read my Op-Ed in the Baltimore Sun.

NSA Has Better Things to Do Than Read Your E-Mail.

Please feel free to contact me with your comments using the e-mail address in the tag line at the end of the piece.  We live in a free society and I respect any point of view that you may have, so long as you express it in a civil manner.

Thanks to all who have already sent me comments.  I’ve enjoyed reading them, and I am doing my best to respond to all of them individually.  Also, I’d like to thank Tricia Bishop and the other members of the Sun’s Editorial Board who thought my Op-Ed was worth publishing.

 

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Obama’s Speech, Privacy Protections, and Bulk Data

White House Logo

January 18, 2014 | Posted in 4th Amendment, 9/11, E.O. 12333, Leaks, PPD-28, Snowden, U.S. Code Title 10, U.S. Code Title 50 | By

White House Logo

White House Logo

As I’m sure you’re aware, President Obama gave a speech Friday to describe the ‘reforms’ he was directing NSA to implement to restore the American public’s confidence in NSA’s activities, and reassure the citizens of our foreign partners and allies that NSA’s capabilities were not being used against them.

These confidence building measures (I won’t call them reforms again) were well thought out, and articulated well.  Based on the news reports after the President’s speech, many commentators, pundits, politicians, and newspaper editors believe the President outlined some good ‘first steps’ but did not believe he went far enough.  It seems to me that Obama the President, as opposed to Obama the Candidate for President, has a much firmer grasp and understanding now, not just about what the U.S. Intelligence Community is capable of doing, and under which legal and other oversight authorities they do it, but also the extreme value of their intelligence products in the maintenance of national security, the development of foreign policy, and the conduct of diplomacy.  He also has a great appreciation and respect for the hard work and sacrifices of the intelligence professionals at NSA (none of the NSA’s leaders are political appointees) and throughout the intelligence community.

THE SPEECH

Let me highlight some of the lines from his speech and talk about them a little.

“…the folks at NSA and other intelligence agencies are our neighbors. They’re our friends and family.”  – Yes they are.  They are civilian employees and members of the United States military who have sworn their lives to defend our nation.  They are also people just like you and I, and they have taken the extra step of surrendering some of their personal privacy for the protection of their fellow citizens by permitting the government to conduct background checks to be sure they are people of good character.  The aren’t required to be perfect people, just people of good character, as are the majority of our fellow citizens.  Friends and colleagues were interviewed and vouched for them.  They were looked at to determine if they had criminal pasts or any associations with any foreign government or groups advocating the violent overthrow of the U.S. government.  Their citizenship, places of residence, and education were all verified.  For senior leaders, they have also exposed their personal financial situation to examination to be sure undue monetary influences, foreign or domestic were not present.  All of them are strapped to a polygraph machine on a recurring basis so their suitability for a position of trust could be confirmed.  How many of you would allow that kind of intrusive look at your lives?

“If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy.”  &  “…revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.” –  These two items speak to Mr. Snowden’s alleged criminal activities.  If you are hoping Mr. Snowden will be welcomed home a hero, or should be given credit for fomenting the debate in this country about personal privacy, I suggest you reconsider.   The President is obviously unimpressed with his actions, as are all of the Senators and Representatives I’ve heard speak on the issue.  Congressmen Rogers and Ruppersberger, the Chair and Minority Leader of the House Permanent Select Committee on Intelligence, both spoke last week about the serious damage Mr. Snowden has done to U.S. national security after reading the Defense Department’s initial damage assessment.  According to them, that assessment spoke to the tens of thousands of documents related to military operations and activities across all the services taken by Mr. Snowden and leaked to the media as well.  Congressman Rogers has also stated previously that Al-Qaeda affiliated terrorist organizations are changing their communications methods as a result of the leaks.  If you know someone who is, or have a family member serving in the armed forces at home or abroad, Mr. Snowden didn’t do them any favors.

“…nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.”  &  “…the men and women of the intelligence community, including the NSA, consistently follow protocols designed to protect the privacy of ordinary people.”  – These two statements clearly affirm that NSA is not a ‘rogue agency’ as some media outlets would prefer to characterize it, ‘spying on Americans’.  Moreover, members of both parties on the intelligence and judiciary committees in both houses of congress have taken great care to laud the professionalism and sacrifices of the men and women in the intelligence community during the hearings that have been held since the unauthorized disclosures began in June.  Additionally, since the declassification of USSID 18, we can clearly see that U.S. person privacy protections were in place since at least as early as 1993 within NSA, something Mr. Snowden, in his egotistical rush to steal what he could and run to China and then Russia (where privacy protections are so obviously the norm), chose to ignore.

BULK DATA & THE REST OF THE REVIEW GROUP’S RECOMMENDATIONS

The changes to bulk data collection the President proposes are modest, and the President has called on Congress to fulfill its role as the legislative authority.  The President obviously feels that the bulk data collection of telephone call records under FISA 215 is a tool he wants the intelligence community to have, but given the public’s concerns about the privacy implications, he has ordered that another FISA Court warrant will be needed to query the collected records, and that the Attorney General and Director of National Intelligence report back to him on a way to have the data held outside of the government, but still available.  (I’m sure they will examine the issue as the President has directed, but the phone companies don’t want to hold it, so we’ll need to see what happens.)   Also, the NSA will not be able to retrieve records from a query beyond two ‘hops’ from the seed telephone number.  This will limit the number of returned call records, and reduce the number of U.S. person phone records reviewed by a professional analyst.

Congress will now need to perform its role in debating and amending as they see fit the FISA law, and the composition/functioning of the FISA Court based not just on what they have heard in open testimony, but also what the intelligence community and NSA has shown them in a classified setting, where I suspect the individual member’s opinions are less influenced by the proximity of reporters and video cameras, and more on practical application of law and the real threats and adversaries in the world.

The President chose not to address many of the remaining review group’s recommendations, ordering some for study, and ignoring (at least in the public speech) others.  For example, he did not address the personnel and computer security portions of the review group’s report, which will undoubtedly be actioned within the intelligence agencies, under the watchful eye of the DNI and Congress.  The detailed specifics will likely be left to classified briefings to Congress to ensure our adversaries don’t learn too much about the internal security mechanisms of our intelligence agencies.  They’ve obviously already learned more operational details than they could have ever hoped for.

PRIVACY PROTECTIONS FOR NON-U.S. CITIZENS

The last item to address then is the extension of privacy protections to foreign (i.e. non-U.S.) persons.  Let me say at the outset that in all my professional experience, which is consistent with the testimony heard before Congress over the last eight months and the statements the President has made:  the U.S. Intelligence Community is tasked, and therefore interested only in: collecting, analyzing, and disseminating foreign intelligence – just like every other nation on the face of the planet.

During all that testimony, and all those speeches, no one in the U.S. intelligence community ever stated that they cared about or were tasked to gather information on the general public of any country.  Moreover, given Congressman Rogers’ assertion during a hearing last fall that ‘the committee has access to all the classified tasking and resulting intelligence reports’, I would expect any number of members to object to any collection effort outside of valid foreign intelligence tasking, if it were in fact occurring.

The U.S. Intelligence Community performs their foreign intelligence mission based on requirements received by the President and the Combatant Commanders around the world.  While stated plainly in Executive Order 12333, President Obama’s Presidential Policy Directive PPD-28 re-affirms that and formalizes the ‘rules of the road’ for intelligence collection in the 21st Century.  With PPD-28, those rules now include a formal declaration and direction to the U.S. intelligence community to protect foreign citizen’s privacy as they would a U.S. person’s, and it is direction that I’m sure, based on my direct knowledge of the professionalism of the 100,000+ member intelligence community, will be adhered to.

In doing so, the professionals in the U.S. Intelligence Community (of which NSA is a large part) will be doing exactly what it has been doing since 9/11, conducting its operations within the law as it exists, under the oversight regime Congress has put in place, based on the direction and prioritization given to it by the President.  Which, by the way, is not a set of circumstances you will find in Russia or China.

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Worth Watching – NSA D/Dir at Penn Law

NSA Complex, Fort Meade, MD.

January 5, 2014 | Posted in 4th Amendment, E.O. 12333, FISA, FISC, NSA, Privacy, U.S. Code Title 10, U.S. Code Title 50 | By

NSA Complex, Fort Meade, MD.

NSA Complex, Fort Meade, MD.

This is a very informative and interesting session that occurred at Penn Law last November.  Not only is Mr. Inglis, the recently retired Deputy Director of NSA, giving a keynote address that provides an excellent insight into the technological environment NSA operates in, and the constraints it operates under; the Q&A session provides pretty direct answers to some of the questions many Americans may have since the Snowden Leaks.  I think it’s worth your time.

You Tube –  Chris Inglis Keynote and Q&A at Penn Law

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A New Year’s Prediction

White House Logo

January 2, 2014 | Posted in 4th Amendment, 9/11, E.O. 12333, FISA, FISC, Intelligence, NSA | By

White House Logo

White House Logo

President Obama is currently enjoying the sun, sand, water, and golfing to be found on his annual Hawaiian vacation.  I begrudge no President his time off.  The duties and responsibilities of the office are such that regular time off is a must.

Once he comes back from his vacation, he’ll be getting ready to act on the recommendations of the Presidential Review Group on Intelligence Capabilities and Technologies.  Mr. Michael Moore recently posted an Op-Ed in the Washington Post correcting the record on the Group’s recommendations as they were reported in many newspapers and websites.

Briefly, I think that when the President gives his speech later this month, he will announce, consistent with the current provisions of Executive Order 12333, DoD Regulation 5240.1-R, and USSID 18 that already provide U.S. person privacy protections:

  • Changes to the process the National Security Council uses to establish, vet, and levy intelligence tasking on NSA.
  • Creation of the position of Special Assistant to the President for Privacy, and improvements/changes to the charter and purview of the Privacy & Civil Liberties Oversight Board
  • The FISA 215 (Phone Records Collection Program) & FISA 702 programs will continue
  • NSA will continue to hold the FISA 215 & 702 records, but do so only for two to three years vice five (the phone companies want to charge $50 million a year – EACH to hold the FISA 215 records)
  • Additional transparency will be introduced by means of providing Congress additional details in a classified setting, and providing more general information to the public in unclassified form (e.g. counts of currently operative FISA warrants in use by NSA, number of FISA 215 phone numbers turned over to the FBI, etc.)
  • Request enabling legislation from Congress to:
    • Add a ‘Civil Liberties Counsel’ to participate in the proceedings of the FISA Court
    • Immediate improvements to the security clearance vetting processes, changing the ‘need-to-share’ culture post 9/11 back to a ‘need-to-know’ culture (call it work related if you like, that’s what it will be)
  • Direct immediate improvements to computer network security throughout the Intelligence Community to reduce and eliminate the potential for more Snowden-like actions

It will be two or three weeks, but I look forward to seeing how closely the President comes to meeting my predictions.

 

 

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Are we living in a surveillance state?

odni-circle

December 15, 2013 | Posted in 4th Amendment, Director of National Intelligence, E.O. 12333, FBI, FISA, FISC, Intelligence, Law Enforcement, NSA, Privacy, U.S. Code Title 10, U.S. Code Title 50 | By

Absolutely not.  A odni-circlenation where every move of every American citizen is recorded, cataloged and data based by the government runs counter to the privacy rights each citizen of the United States expects, and would be an abhorrent infringement upon one of the principle freedoms of our democracy.  Protecting those rights is something I swore to do as a member of the intelligence community, and was required to do as a civil servant and uniformed member of the armed forces.

In light of the ‘Snowden revelations’ and the plethora of news stories (few of those stories entirely accurate and not jaundiced by sensationalism), many Americans are concerned about invasions of their privacy by the government.  I share those concerns, but mine are tempered by the testimony offered before the House and Senate Intelligence and Judiciary committees, the declassified documents posted on the IConTheRecord tumbler site, and my own professional experiences within the intelligence community.

Much like the majority of the 100,000+ members of the intelligence community, I have a lifetime obligation to protect the classified material I’ve been exposed to.  I understand the valid reasons for that secrecy, and I respect them.  I was also made fully aware early in my career of the myriad of mechanisms in place to report perceived illegal or improper acts, from IG reporting through classified channels to include arranging closed door testimony before the relevant Congressional committees if needed.  For the record, in my more than twenty-five years in the intelligence community, I never encountered any instance of willful or intentional misuse of the tools, capabilities, or authorities any of my colleagues or I operated under, had access to, or could utilize.  Certainly honest errors were made, as they would be in any human endeavor, and those errors were reported through the proper mechanisms, and corrected.

At this point, let me point out some of the facts now available for every citizen to evaluate when deciding for themselves if the government is violating your privacy rights, and temper that with a few other thoughts.  Using just the FISA 215 program as an example, all of what follows is either from declassified documentation/information released by the ODNI, or provided as testimony on public session in front of the intelligence or judiciary committees by the senior leaders of the intelligence community.  See the ODNI’s IC on the Record website for the details on the FISA 702 program.

The FISA 215 Program

  • Gathers and centralizes at NSA, telephone call records from various U.S. telecommunications companies
  • The telephone companies are compelled to provide the information to the government by a FISA Court order
  • The FISA Court approves the orders based on the law and precedent (e.g. Smith v. Maryland, the FISA Law Congress passed twice, etc.) subsequent to receiving an application for the order by the government (usually the FBI, after coordination with the NSA, ODNI, and the National Security branch of the DoJ)
  • The FISA Court requires the government to store, access, and utilize the call records obtained under the order in a specific manner outlined by the Court, and report all deviations from those orders
  • The only records provided to the government by the telephone companies are:

               Calling Number

               Called Number

               Date & Time of the Call

               Duration of the Call

  • For example: Phone number 203-555-1212 called phone number 203-555-1414 at 0900 on the 10 Oct 2012 and the call lasted 10 minutes
  • No names, no addresses, or other identifying information is provided by the telephone companies under the FISA Court’s order
  • The content of conversations are not collected under this program – other warrants are required to collect content, and NSA says it currently has only 60 active warrants for content collection against U.S. persons
  • Searches of the call records under this authority can only be conducted with a ‘seed phone number’ that can be reasonably and articulately described, in writing, as being terrorism related
  • The written articulation must be signed off on by an NSA manager (an intelligence professional, not a political appointee) before a query is run against the records in the database
  • ALL queries of the database are recorded, tracked, and audited to ensure the FISA Court’s instructions are not violated
  • The returned call records meeting the intelligence need (i.e. not all of the returned records) are turned over to the FBI for any follow-up action
  • If the government wishes to wiretap any number based on the call records NSA provides, it must apply to the appropriate court for a warrant

Laws, Executive Orders, and Congressional Oversight

The United States intelligence community operates under several enabling laws, Executive Orders from the President, and Congressional Oversight.   These laws, orders, and oversight apply to every intelligence program conducted by the United States government. Some of the most notable of these are, USC Title 10, USC Title 50, Executive Order 12333, the Foreign Intelligence Surveillance Act of 1978 (as amended), and the oversight of the Senate Permanent Select Committee on Intelligence, the House Permanent Select Committee on Intelligence, and the Senate and House Committees on the Judiciary.  Within the SIGINT system specifically, the primary instruction for the protection of U.S. citizen’s 4th Amendment rights is outlined in USSID 18.

USSID 18

The recently declassified United States SIGINT Intelligence Directive (USSID) 18, Legal Compliance and U.S. Persons Minimization Procedures, dated 25 January 2011, describes the U.S. person privacy protections all elements of the NSA are obligated and required to follow.  Paragraphs 1.1 – 1.4 show that U.S. person privacy protections required by the 4th Amendment were in place long before Mr. Snowden’s massive leaks of classified material made the subject of U.S. person privacy a daily staple of newspaper front pages and legitimate public concern.  USSID 18 has been in existence since at least 1993.  In addition, the ODNI has made the training materials used by NSA to teach their analysts what is allowed and what is not allowed when dealing with FISA 215 data available for you to see.

Corporate America is ‘Spying’ on You All the Time – And you let them

Every time you make a purchase at a store, they know what you buy, and how often.  That frequent shoppers card you use at the checkout ties you to every item on your shopping list – vegetables, meats, shampoos, bakery products, gluten free items, condoms, feminine hygiene items, etc.  How many, which brands, how often, and which charge card you used.  Think about the ‘pattern of life’ information that offers the company that owns that store about you and your family.  You even surrendered it willingly.    Companies use the information to target advertising, sending you e-mails and paper circulars featuring the products you buy most often using a process called data mining.  You may not mind that, but what else are they using it for?  Reporting to the FDA about how much red meat a family consumes in a year?  How far you travel to get to the store?  How many times a week you go?  At what times of day?  If you have children and how old they are?  Are you under a doctor’s care or do you have an annoying hemorrhoid problem?   The list is practically endless.

Your credit card company shares your purchasing habits with marketing companies.  They may offer you the option to opt out, but I recently received a notice from one of my credit card companies telling me that they shared my personal information and purchase history with eight other companies, only offering me the opportunity to ‘opt out’ of the sharing with two of those companies.

How many video or still cameras did you appear on today as you went about your ‘private’ business?   Did you even notice them?  Did you notice the ones in every store you walk into, each ATM you passed, and the cell phone everyone you passed on the street was carrying?  How many of those cell phone captured videos or still images were forwarded to a friend, lover, relative, or business colleague by the shutterbug/videographer?  Do you know that there is a copy of that video or image on the telecommunication’s company’s servers or systems?  Do you know how long it stays there or what is done with it?  Are they kept for hours or years?  By whom?  How and where are they stored?  Are they ever deleted?  How can you be sure?

Oh, and those private phone calls you make, or e-mails you send?  The telecommunications companies can mine those records as needed to improve their infrastructure, determine what services to market, or even re-direct your communications through the network.  In doing so, do to the technical sophistication of today’s communications networks, the e-mail from your wife or husband in Cleveland, OH, just may have been routed through Vladivostok, Russia, where a copy was left on a server in Russia.  Are the Russian security services scanning that e-mail for information it might find of interest?  Do you honestly think they care about your privacy as a U.S. citizen?  Maybe they think that picture of your significant other in her new Victoria’s Secret undies is pretty hot and keep a few copies.

Internal to these companies, what are the company’s restrictions or policies on which employees can access, review or share that information?  Do those employees go through any kind of background check before they are hired?  What kind of oversight is there on the use or access to the data?

Just Who Might be Invading Your Privacy – The U.S. Government, a Corporation, or a Foreign Government?

Should we be reasonably concerned about U.S. Government overreach and invasion of privacy?  Yes.  It’s our government and we should keep an eye on it.  But I’m less concerned about the U.S. intelligence community’s activities than I am about a telecommunications provider (especially a foreign one) or foreign government’s respect for ‘privacy’ as we perceive it.

In the U.S., the intelligence community’s motivations, codified in both law and executive order, and overseen by Congress and the Courts, is at least grounded in a desire to preserve, protect, and defend the Constitution and the nation.  The professionals in that community undergo deep background checks, polygraph examinations, and in many cases, submit to financial disclosure requirements and psychiatric examinations before being exposed to intelligence operations or activities that may impact a U.S. person’s privacy in the modern digital age.  Moreover, they seem, based on the information released by the ODNI, to be rigorously trained to protect the 4th Amendment rights of U.S. persons, and there is at least one directive in place at NSA that requires that U.S. person privacy is protected.

Corporations (U.S. or foreign) are motivated by a desire to make a profit for their shareholders, and they never have to go to a judge for a warrant to see data that might invade someone’s privacy.  They also don’t have Congress and the Courts looking over their shoulder to be sure they aren’t using ‘private’ data to profile a person’s life, purchasing habits, or travel.

Foreign governments may not care at all about your privacy.  France just passed a surveillance law that, according to the story in the NYT, “…defines the conditions under which intelligence agencies may gain access to or record telephone conversations, emails, Internet activity, personal location data and other electronic communications.  The law provides for no judicial oversight and allows electronic surveillance for a broad range of purposes, including “national security,” the protection of France’s “scientific and economic potential” and prevention of “terrorism” or “criminality.””

Mr. Inglis, Deputy Director of NSA, made a statement during a Q&A session at Penn Law’s Center for Ethics and the Rule of Law Conference that I think is very relevant.  He based it on the number of NSA employees and affiliates who have died since 9/11 and the twelve internally reported ‘willful abuses’ during the conduct of its SIGINT operations – “… it’s three times more likely that you’ll die for your country if you work for NSA than you are to abuse the [U.S. SIGINT] system.”

For myself, while I accept that there is always room to improve a process, law, and oversight; I put more trust in the professionals in the U.S. intelligence community, the laws and policies that govern their activities, the internal controls, and the oversight mechanisms in place in the courts and congress when it comes to protecting my 4th Amendment rights.

 

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NSA, Privacy, and Mr. Snowden

NSA Complex, Fort Meade, MD.

November 3, 2013 | Posted in 4th Amendment, Director of National Intelligence, E.O. 12333, FISA, FISC, Intelligence, Leaks, NSA | By

NSA Complex, Fort Meade, MD.

NSA Complex, Fort Meade, MD.

Over the last week, Mr. James Clapper (US Air Force, Lieutenant General, Retired) Director of National Intelligence, General Alexander, Director of NSA and Commander of US Cyber Command, Mr. Chris Inglis, Deputy Director of the NSA, and Mr. James Cole, Deputy Attorney General, DOJ testified before the House Permanent Select Committee on Intelligence, as more news stories about NSA, GCHQ, and foreign partner intelligence operations were reported by the media, and Mr. Snowden asked for clemency and the opportunity to testify before Congress.

First of all, I urge you to watch the past week’s testimony on C-Span’s website.  In my opinion, it’s informative and straightforward, and far better than any of the news reporting I saw about it.

On Sunday, the White House, and the chairs of the Senate Select Committee on Intelligence, and the HPSCI all agreed that there would be no clemency for Mr. Snowden.   I will point out that Mr. Snowden’s request does seem to indicate that he is guilty of the crimes he is charged with, since you wouldn’t ask for clemency to avoid or mitigate a criminal penalty unless you felt you would be found guilty.

Let’s talk about privacy for a minute.  Privacy is a right that every U.S. citizen expects, as do most people in modern nations with educated populaces operating in a modern telecommunications environment.  The testimony last Tuesday re-affirmed that the mission of the NSA is the production of foreign intelligence from SIGINT, which does not include the invasion of U.S. citizen’s privacy without a court order or warrant.  It also highlighted that NSA’s mission (like all the other U.S. intelligence agencies) is driven by foreign intelligence requirements issued from the White House and the President’s national security staff in the form of the National Intelligence Priorities Framework (NIPF).  Further, that the NSA’s mission is conducted in accordance with US law, and where U.S citizen’s privacy rights are concerned, with the added protections of oversight by the Office of the Director of National Intelligence, the Department of Justice, and the FISA Court.

In case you think I don’t know what I’m talking about, you can find out for yourself.  Do a little research of your own into the legal authorities for the missions of the intelligence community.  Read Executive Order 12333, and USC Title 50, Chapters 36 (FISA), 45 (Intelligence Community Authorities), 46 (CIA), 47 (NSA), and the Intelligence Community Directives (ICD) available on the Director of National Intelligence’s website.  All of these require adherence to the U.S. Constitution’s Fourth Amendment protections against unreasonable search and seizure.

As for the on-going concerns expressed in the media of gross intentional violations of U.S. citizen’s privacy, I believe they are unfounded, based on the NSA’s now declassified internal reporting and the declassified legal opinions now available on the FISA Court and ICONTHERECORD web sites.  For those that harbor concerns about the telephone metadata collection, read the posted court opinions and other material yourself.  As you do so, remember two things: the call records were provided to NSA under a series of court orders applied for by the DOJ, under a law repeatedly approved by Congress.   We also know now that those orders cited long standing Supreme Court precedent and placed specific controls on how the call data can be accessed and used.  Those controls were developed and directed by the FISA Court, across multiple judges’ tenures, based on the knowledge of the professionals at NSA and the experience of honest error that occurs in any process humans engage in.

General Alexander also made some remarks in Baltimore last week where he took the media to task for continuing to write articles from the classified material Mr. Snowden took, and for writing stories that were inaccurate and/or mischaracterized what they were reading in the material.   Personally, I wouldn’t want a journalist, not trained as a medical professional, looking at a set of power point slides or other internal hospital documents and then drawing a conclusion that every heart surgeon in that hospital was using improper technique and placing patient’s lives at risk – they just aren’t qualified to understand what they are looking at.  Intelligence activities operate (in the U.S.) under the U.S. Constitution, U.S. law, and all the policies and procedures each agency derives from them.  It is a complex professional environment that took me years during my career to truly master, and I assure you Mr. Snowden’s understanding of them, based on his statements and his alleged criminal acts, is sadly lacking.

I place much more weight on the statements of people like General Alexander, Mr. Inglis, and Mr. Cole; as well as people like Representative Rogers, Senator Feinstein, and many others on the relevant committees, particularly when they all resoundingly castigate Mr. Snowden for his apparent crimes, and demonstrate understanding and predominate agreement with these senior members of the intelligence community.  Mr. Cole alone effectively recused himself, as the Snowden matter is an on-going investigation/item of litigation and he cannot comment under the requirements of professional ethics.  As with any human endeavor, I’m sure there may be improvements to be made in the conduct of all intelligence operations, but those changes need to come from more Senators and Congressmen and women doing their ‘homework’ as Mr. Rogers put it during the hearing this week, not from a public debate on sources and methods that gives our nation’s adversaries the means to avoid U.S. intelligence scrutiny and places U.S. citizens, military members, diplomats, and our allies’ citizens in danger at home and abroad.

Moreover, I think you should keep something else in mind.  According to the official statements, there are more than 100,000 men and women in the intelligence community of the United States, and more than 30,000 men and women working for NSA.  Only one lone man, a systems administrator with no intelligence training to speak of, with an apparent surfeit of ego and naïveté, decided to steal and leak tens of thousands of classified documents to the media because he alone felt that illegal acts were being committed.  I find it difficult to believe, based on my own extensive experience working with the dedicated, trained professionals at NSA and the rest of the intelligence community that ANY of those people would be shy about speaking up if anything they were asked to do was outside the law or their assigned intelligence mission.

I am also sure they would use the proper channels to reach out to the NSA Inspector General, the National Security Division of the Department of Justice, and the relevant committees in Congress where their concerns would have been given fair hearing and extreme scrutiny, rather than risk the lives of American citizens, military members, and innocent people abroad by exposing classified sources and methods information.

As Congress debates changes to the FISA law, the need for increased transparency to assure an understandably concerned public, and some its members reexamine the vigor with which they make themselves aware of the on-going intelligence operations of the U.S. government, I have no doubt that whatever direction the President issues or oversight requirements or changes in law Congress puts in place will be obeyed faithfully by the intelligence community – just as they have over the years since 9/11.

Finally, I’m sure that certain elements of the press will continue to publish articles from the classified material Mr. Snowden provided them, just as I’m sure our Russian friends are doing their level best to learn everything they can from Mr. Snowden about his brief time in the U.S. intelligence community.  Remember, he can only stay in Russia for a year, and the extension of his stay is a very big carrot (and stick) to encourage him to talk.  Otherwise, he might find himself on the next plane out of Russia – to a courtroom in the United States in the company of some U.S. Marshals.

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The Stingray & the 4th Amendment

September 22, 2011 | Posted in 4th Amendment, Law Enforcement | By

There is a very interesting article today in the WSJ on the Stingray and the implications of its use against U.S. citizens.

The Stingray is basically a small suite of equipment and antennas that are used to create a vehicle borne mobile cell phone tower.  FBI agents or other law enforcement personnel can utilize the Stingray to track a cell phone that is powered on, whether the phone is in use (making a call or sending a text) or not.

Here’s the short version of how without all the geek-speak.   First of all, you need to remember that your cell phone is a radio (actually as many as six different radios, but that gets too geeky to explain).   In order for the cell phone you have in your pocket, purse, or hanging on your belt to work properly, it needs to know which cell tower is closest to it.  Knowing that, the phone can communicate, via the built in radio, with the tower giving it the strongest signal.  As you walk or drive, the phone switches from the tower you were using that is now getting farther away, to the next closest tower as the signal from it gets stronger.  When the phone talks to the tower, it uses its unique (in the whole world) electronic identity to identify itself to the tower (actually, to the telephone network the tower connects your phone to).  The tower (and the telephone network behind it) knows how many phones it can reach, and ‘talk’ to, to allow you to make calls, send text messages, surf the web, etc.

This is where the Stingray comes in.  If a law enforcement agency can determine the electronic identifier your phone has assigned to it, they can go to a judge, apply for a search warrant, and then use the Stingray to find, and if needs be, track you.

They (law enforcement) load your phone’s unique electronic identifier into the Stingray, then drive around in the vicinity of where they suspect you are, waiting for your phone to ‘talk’ to the Stingray.  Why would your phone talk to the Stingray instead of the cell tower nearby?  Because the Stingray broadcasts the same beacon a cell tower does, but because it’s closer to your phone than the tower is, the signal appears stronger to the phone, and the phone is designed and programmed to lock on to the strongest signal.  After your phone is ‘hooked’ by the Stingray, then it’s just a matter of old fashioned direction finding to track you and your phone.

(For those of you more technically inclined, yes I omitted a large amount of technical and procedural detail on purpose.)

I think the technology is very impressive and presents a number of advantages for law enforcement and other applications.  Having said that, it does create a 4th Amendment search and seizure issue for the courts, which will undoubtedly take time to resolve and yet again proves that the creation and interpretation of technology law lags behind the speed of technology.

It’s illegal to wiretap someone’s conversations without a court order.  Is it illegal to use what could be argued as the ‘publicly available functions’ of your phone to track you, particularly once you are outside your home, walking around in public?   Do you have a right to privacy if your phone is powered on, no matter where it (and you) are?

This technology, much like the similar controversy over law enforcement attaching GPS devices to suspect’s vehicles to track their movements, will be a debate within the legal system worth watching.

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