Winter 2015 News

An E-3B Sentry AWACS is refueled.

December 20, 2015 | Posted in Air Force, Author, Blog, Classified, Classified Information, Congress, Cyber attack, Department of Defense, E.O. 12333, FISA, Intelligence, Law Enforcement, Leaks, NSA, PPD-28, President Obama, Privacy, Snowden, U.S. Code Title 10, U.S. Code Title 50, Writing | By

Hello Everyone,

I hope you’ve had a great summer and fall, and are enjoying the holiday season. I’d like to extend my thanks for being fans of my work, and wish you happy holidays and a bright new year.

I’ve been busy crafting my next novel, a project I’ve named ROGUE SENTINEL, and I will finish the manuscript shortly after the New Year. ROGUE SENTINEL will see Shane Mathews take on a solo mission to Jordan to find and capture an Islamic State mission planner known only as ‘Al-Amriki’ – The American.
Up next, I’ll be resuming work on SWIFT JUSTICE, the third and concluding novel of the ‘Aziz Trilogy’ that started with THE INHERITOR and AUTUMN FIRE, with main characters Shane Mathews and Emily Thompson.

During the year I’ve written a few Op-Eds on current issues that have been published in the Baltimore Sun and in The Hill’s Congress Blog. Here’s a list so you can look at them if you’re interested.

‘The NSA data collection program isn’t criminal; ending it is’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-nsa-data-20151203-story.html

‘Open Letter from a cyber terrorist’ – http://thehill.com/blogs/congress-blog/homeland-security/255370-open-letter-from-a-cyber-terrorist

‘Stand with our watchers’ – http://thehill.com/blogs/congress-blog/homeland-security/261237-stand-with-our-watchers

‘Access to encrypted communication, a balancing act’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-encryption-data-20151001-story.html

‘Clinton E-mails: Who else was involved?’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-clinton-emails-20150908-story.html

‘The country is vulnerable without CISPA’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-cispa-redux-20150209-story.html

Thanks again for being fans of my stories, and feel free make them presents for the fiction reader on your holiday list – they can be purchased from Amazon or Barnes & Nobel as e-books or hardcopies in trade paperback. You can even contact me via tom@tomwither.com for a signed copy if you like.
Take care and Happy Holidays!

Tom Wither

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Congress & FISA Modifications

NSA Complex, Fort Meade, MD.

November 23, 2014 | Posted in Congress, E.O. 12333, FISA, FISC, Intelligence, Leaks, NSA, PPD-28, Privacy, U.S. Code Title 50 | By

NSA Complex, Fort Meade, MD.

NSA Complex, Fort Meade, MD.

As the new Congress comes into session in January, it will have many issues to address. One of the most important will be changes and improvements to the Foreign Intelligence Surveillance Act, commonly known as FISA.  Some of its Patriot Act created provisions, like the better known Section 215 used to collect bulk phone records, and the less well known Section 702 authority compelling telecommunication providers to provide the government non-U.S. person communications have been hotly debated in Congressional committee hearings and by the general public during 2014.

The Senate recently failed to advance ‘USA Freedom Act’ to change FISA, ensuring that the debate will be rekindled in the next Congress early in 2015. Hopefully, the next version of the bill will address some of the concerns that Judge John Bates (a federal district judge who has served on the FISA Court) described – laid out about the concerns the FISA Court might have, and challenges it might face in its processes, if that version of the USA Freedom Act had become law.

Congress will work its will in passing a final set of changes to FISA from these bills, enhancing existing privacy protections in light of the rapid advances in modern communications and the public outcry over government access and storage of telephone and internet activity by ordinary citizens.

Once signed into law, I am certain the professionals within NSA, both military and civilian, will comply with the changes to the FISA statute, whatever their final form. That compliance is not only an integral part of their oaths to the Constitution, it is also completely consistent with the professional attitudes of the many men and women at NSA I have worked with over the years.

However, in light of this long debate, three ‘lessons learned’ are abundantly clear in this era of rapidly evolving modern telecommunications and the ‘internet of things’:

The public needs a better understanding of exactly what information they surrender when they use communications technology.  This is a difficult goal to attain given the technological complexity of modern personal communications devices and the limited time or desire someone may have to delve into the privacy related issues attendant to the device or service they use.  Do you know what personal information the operating system on your mobile device stores when you use an application?  During the INFOSEC 2014 conference in Orlando earlier this year, an iPhone demonstration proved that while the app you use may keep your personal information secure, the phone’s underlying operating system may be storing much of it in a very unsecure manner.

Next, Congress and local legislatures need to play a more active role in the oversight of law enforcement and intelligence activities where they involve modern telecommunications technology.  Law enforcement and intelligence organizations operate within the laws they are given, and the law must keep pace with advances in technology. As such, laws like FISA must continue to have yearly ‘sunset’ clauses built into them to force legislatures to engage regularly and keep pace with the leaps forward in technology. Police and intelligence services will leverage new technologies to conduct their missions, and they need laws adopted at a quicker pace, not just to constrain their actions within our Constitutional principles, but also properly enable them to bring criminals to trial or monitor agents and actions of a foreign adversary.

Lastly, a level of increased transparency is required.  The days of ‘No Such Agency’, borne from the Cold War era, are long over, and a new balance needs to be struck.  I believe law enforcement and intelligence organs must have and foster public trust, but intelligence organs cannot operate effectively if operational means and methods are exposed to the whole of the American public, and therefore, our adversaries. Adversaries would exploit such knowledge to kill our citizens, damage or destroy our critical national infrastructure, or win in battles with our military.  We have begun to see the first steps towards increased transparency with the release of unclassified versions of FISA Court opinions and reports of aggregate counts of FISA warrants and NSLs.  Among other things, greater transparency can be achieved by: providing unclassified titles for the closed door briefings to intelligence oversight committees; including in the aggregate counts of FISA warrants actively in use by each government agency; and releasing unclassified versions of all damage assessments produced as a result of unauthorized leaks of classified information. The government cannot claim damage due to leaks, without backing the claim in a credible manner in a public forum – something I believe can be done without exposing sources and methods or risking lives.

U.S. intelligence and law enforcement agencies exist and operate from the bedrock of public confidence.  More transparency, consistent with protecting sources, methods, operational intelligence, and our troops in the field, is achievable, and since the Snowden leaks and the misinformation that has stemmed from them, something I believe is now mandatory.

Tom Wither is the author of the military/intelligence thrillers: “The Inheritor” (Turner Publishing, June 2014) and “Autumn Fire” (Turner Publishing, September 2014). He is also a 25 year veteran of the intelligence community. The views and opinions expressed are his own and are not those of any organization or element of the intelligence community or Department of Defense. His email is Tom@TomWither.com.

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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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Congress is not Transparent Enough About its Intelligence Oversight

IMG_0187

July 10, 2014 | Posted in Congress, Director of National Intelligence, E.O. 12333, FISA, FISC, Intelligence, U.S. Code Title 50 | By

IMG_0187When you get a chance, please read my latest Op-Ed in the Baltimore Sun.

Congress is not transparent enough about its intelligence oversight

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 this Op-Ed was worth publishing.

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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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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’s Lawful Operations & Mr. Snowden

NSA Complex, Fort Meade, MD.

August 8, 2013 | Posted in Classified, E.O. 12333, FISA, FISC, Intelligence, Leaks, NSA, Terrorism, U.S. Code Title 50 | By

NSA Complex, Fort Meade, MD.

NSA Complex, Fort Meade, MD.

If you are skeptical about NSA operations and activities reported over the recent weeks, that’s certainly understandable, particularly since most Americans do not work within the intelligence community or understand the rigorous training, oversight (from the courts and Congress), and professionalism the men and women of the intelligence community bring to their work every day.

I’ll ask that you keep in mind a few things as you read news reporting from journalists that may have only incomplete or partial facts drawn from briefings or other documents outside of their proper context, and/or an incomplete understanding of the law, rules, and oversight in place.  Every civilian employee and military member in the U.S. Intelligence Community (I.C.), including those at NSA, are U.S. Citizens, just like you are.  They are highly trained professionals that take an oath to defend our nation and uphold the Constitution; not to any executive branch organization or institution.  In fact, many have spent their entire professional lives quietly and unobtrusively working without fanfare or acknowledgement outside of the close knit intelligence community to defend our nation, provide our policymakers with the information needed to make informed decisions, and protect our troops in battle when needs be.  To be allowed to serve, they have allowed themselves to be subjected to repeated background investigations, financial reviews, and polygraph examinations every few years to prove that they are responsible men and women of good character, worthy of being trusted with their nation’s most highly valued secrets.  These investigations, when done properly and thoroughly (as most are), are an invasive process that many of their fellow citizens might find unacceptable or intolerable with regards to their personal privacy.  These men and women are given their nation’s (actually every American citizen’s) trust, and are no more interested in violating the privacy or other constitutional rights of U.S. citizens than you are.  Remember, these men and women are citizens of this nation, just like YOU are.

Undoubtedly, more news reports about the size, scope, and capabilities of NSA’s activities will be appearing in print and electronic news sources, given Mr. Snowden’s admitted removal and provision of classified material to an activist/journalist like Mr. Greenwald, and Mr. Greenwald’s recent statements that ‘new revelations‘ are coming.  As you read these future stories, bear in mind that NSA’s activities are governed by Executive Order 12333, and constrained by the Foreign Intelligence Surveillance Act, and the Foreign Intelligence Surveillance Court, as well as regular oversight by Congress.  Moreover, publishing of more ‘sources and methods’ information by Mr. Greenwald and his contemporaries will serve primarily to give away any advantage we may have over our adversaries and result in exceptionally grave damage to U.S. national security.

We citizens are reliant upon our members of Congress to provide proper and regular oversight of the I.C. elements.  To date, Congress has held three hearings (House Intel  Senate Judiciary  House Judiciary ) addressing the legitimate concerns voiced by the public and some members of Congress about the programs and activities Mr. Snowden and his enabler Mr. Greenwald have shared.  The law often fails to keep up with the rapid pace technology changes, and some members of Congress are not likely giving the activities of the intelligence community regular scrutiny due to time constraints, current committee assignments, or just simply because their activities aren’t the ‘hot button’ issue of the day.  I do believe that the majority of members on the House and Senate Intelligence Committees have it right.  The programs exposed thus far are legal, in that they are operating under the FISA law as enacted, and they are Constitutional, given the strict oversight and compliance requirements outlined by the Foreign Intelligence Surveillance Court, and the process and procedures NSA put in place to adhere to those requirements, as outlined in the public testimony and statements (Mr. Litt from ODNI).  Having said that, given that Congress is paying more attention now, certain senior members like Senators Chambliss and Feinstein, and Congressmen Rogers and Ruppersberger have offered not only endorsement but in some cases reasonable improvements to the programs and oversight regime (note that they do not advocate stopping it, nor does the administration).  Should Congress change the law or oversight requirements, I am certain that the Attorney General, FBI, and the NSA will abide by those changes.

Encourage your member of Congress and Senators to pay closer attention if you have concerns, and choose to take their word or not when they tell you an agency is doing what is supposed to under the law and Constitution.  Fortunately, it’s YOUR choice, because we live in America; not Russia or China; but get all the facts, not just the ones a particular journalist may offer as you evaluate what you’ve been told.

As to whether Mr. Snowden is a ‘whistle blower’ / leaker, or a traitor, I’ll say this.  In my view, a whistle blower sees illegality or unconstitutional acts and reports them to competent legal (the FBI or Attorney General) or agency authorities (a supervisor, a senior manager, an inspector general, an internal counsel) first, then to Congress and the media if the existing process fails.  Along the way that person may suffer the loss of a job, the travails of our legal process including: possible pre-trial confinement, and a trial for his or her belief in the truth or ‘rightness’ of their actions, consistent with our Constitution and laws.  In the end, they will either be vindicated, not only in court, but in the court of public opinion, or convicted under the law.  Moreover, if this whistle blower is working in a classified information environment, that person uses the processes established to ‘blow the whistle’ in a way that does not expose the sources and methods of intelligence operations to our nation’s adversaries, endangering the lives of our men and women in uniform, our diplomats overseas, and our citizens (and those of our allies and friends) at home and abroad.

A traitor takes whatever classified information he can, boards a plane to a foreign country beyond the reach of U.S. law enforcement, and barters that information for notoriety, monetary gain, or presumed safety in the hands of one or more foreign governments.  Mr. Snowden is not a whistle blower.  People like Bunnatine ‘Bunny’ Greenhouse are whistle blowers.

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Executive Order 12333 Amended

July 31, 2008 | Posted in CIA, DIA, Director of National Intelligence, E.O. 12333, EO 12333, Intelligence, NSA, U.S. Code Title 10, U.S. Code Title 50 | By

1357163342_6957_whitehouse-logoPresident Bush issued Executive Order 13470 yesterday. This order alters Executive Order 12333, UNITED STATES INTELLIGENCE ACTIVITIES.

EO 12333 is one of the documents used within the U.S. Intelligence Community (IC) to set policy, along with U.S. Law, the Constitution of the United States, and the Bill of Rights.

It sets out the President’s guidance for the management of the community, affirms the roles and responsibilities of various IC elements, and prescribes some specific prohibitions the IC and its employees must respect.

So what was changed? (The changes listed below do not reflect typographical, grammatical, or consistency related changes within the EO.)

Part 1 – “Goals, Directions, Duties, & Responsibilities with Respect to U.S. Intelligence Efforts” was completely re-written. The major effect of the re-write of Part I is to insert the Director of National Intelligence (DNI) into a position of more direct control over the IC. This re-write helps to codify the DNI’s authority and will hopefully cut down on any, “Yes you will.” “No I won’t.” situations between the DNI and the heads of the IC elements.

Part 2 – “Conduct of Intelligence Activities” was altered to include:

  • Changing Section 2.2 to include gathering foreign intelligence regarding “the spread of weapons of mass destruction.”
  • Changing Section 2.3 to ensure that signals intelligence (SIGINT) is only “disseminated or made available to Intelligence Community elements in accordance with procedures established by the Director in coordination with the Secretary of Defense and approved by the Attorney General.”
  • Changing Section 2.3.e to permit the collection, retention, and dissemination of information needed to protect foreign intelligence or counterintelligence activities.
  • Changing Section 2.5 to limit the delegation of the approval of the IC’s monitoring of a U.S. Person to that outlined in the FISA of 1978, as amended.
  • Adding a new section, 2.13, which states that, “No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.”

Part 3 was altered to include:

  • Affirming the Attorney General’s (AG) Role in Approving Procedures Established by IC Element Heads that Implement the Procedures in Section 2 – Any Dispute Between the AG and the IC Element Head will be Resolved by the National Security Council
  • Providing current definitions of Counterintelligence, Covert Action, Electronic Surveillance, Employee, Foreign Intelligence, Intelligence, Intelligence Activities, the members of the IC, National Intelligence & Intelligence Related to National Security, and the National Intelligence Program

The prohibition against assassination remains in place, as well as the ban on human experimentation outside of the guidelines provided by the Department of Health and Human Services where the subject’s informed consent has been documented.

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