NSA and FBI Duck Dive Dodge Accountabilty, Absolute Figures on Search

The blowback against the National Security Agency has long focused on the unpopular Patriot Act surveillance program that allows the NSA to vacuum up billions of US phone records each year. But after a rush of attention this week, some much deserved focus is back on the surveillance state’s other seemingly limitless program: the warrantless searches made possible by Section 702 of the Fisa Amendments Act, which allows the NSA to do all sorts of spying on Americans and people around the world – all for reasons that, in most cases, have nothing to do with terrorism.

The long awaited draft report from the independent Privacy and Civil Liberties Board (PCLOB) on this subject was finally released Tuesday night, and it gives Americans a fairly detailed look unclassified at how the NSA spies through its notorious Prism program – and how it snoops “upstream” (a euphemism for the agency’s direct access to entire internet streams at telecoms like AT&T). The board issued a scathing report on the Patriot Act surveillance months ago, but oddly they went the opposite route this time around.

While many of the details are interesting, the board’s new report recommends no systematic changes to the several disturbing privacy issues covered therein. The Electronic Frontier Foundation (my former employer) issued a scathing PCLOB review late Tuesday night, calling the report “legally flawed and factually incomplete” and saying it ignored the “essential privacy problem … that the government has access to or is acquiring nearly all communications that travel over the Internet.”

As usual, it’s the Edward Snowden revelations that give context to all the snooping – and provide the impetus to keep pushing for real reform. Some 36 hours before the latest PCLOB report was made public, the Washington Post’s Ellen Nakashima and Barton Gellman disclosed previously unreleased Snowden documents showing that true scope of “702”-style information sweeps:

Virtually no foreign government is off-limits for the National Security Agency, which has been authorized to intercept information from individuals ‘concerning’ all but four countries on Earth.

As the Post reports, the Foreign Intelligence Surveillance Court’s interpretation of the the Fisa Amendments Act is so broad, it “could allow for surveillance of academics, journalists and human-rights researchers.”

Fisa Amendments Act surveillance also includes scanning the emails of Americans never even accused of a crime. It’s the Snowden revelations that originally led the New York Times to report last year any conversation you’ve ever had with someone outside the country may be fair game under the act, as the NSA “is searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country who mention information about foreigners under surveillance.”

Perhaps in an attempt to pre-empt the PCLOB report, Director of National Intelligence James Clapper finally just released what he promised Sen Ron Wyden months ago: the number of warrantless searches by the US government on American communications in its vast databases of information collected under the Fisa Amendments Act. This is the second giant problem with 702 surveillance. Wyden refers to these as “backdoor” searches since they’re performed using data supposedly collected for “foreign intelligence” purposes – even though they still suck up huge amounts of purely US information. And it’s exactly the type of search the House overwhelmingly voted to ban in its surprise vote two weeks ago.

The NSA conducted “backdoor” searches 198 times in 2013 (and another 9,500 for internet metadata on Americans). Curiously, the CIA conducts far more warrantless searches of American information in the NSA databases than the NSA itself – almost 10 times more. But the FBI was the worst culprit, querying data on Americans so many times it couldn’t even count. The DNI left it at this: “the FBI believes the number of queries is substantial.”

The FBI has always been the NSA’s silent partner in all its surveillance and has long been suspected of doing the dirty work on Americans’ data after it’s been collected by NSA.

Wyden, who has for years repeatedly pushed for this information to be released to the public, responded:

When the FBI says it conducts a substantial number of searches and it has no idea of what the number is, it shows how flawed this system is and the consequences of inadequate oversight. This huge gap in oversight is a problem now, and will only grow as global communications systems become more interconnected.

The PCLOB also went on to reveal in its report that the FBI can search the vast Prism database for crimes that have nothing to do with terrorism, or even national security. Oh, and how many US persons have had their data collected through Prism and other 702 programs? That government has no idea.

Unfortunately, the PCLOB chickened out of making any real reform proposals, leading Politico’s Josh Gerstein to point out that the Republican-controlled House already endorsed more aggressive reforms than the civil liberties board. More bizarrely, one of the holdouts on the panel for calling for real reform is supposed to be a civil liberties advocate. The Center for Democracy and Technology’s vice president, James Dempsey, had the chance to side with two other, more liberal members on the five-person panel to recommend the FBI get court approval before rummaging through the NSA’s vast databases, but shamefully he didn’t.

Now, as the Senate takes up a weakened House bill along with the House’s strengthened backdoor-proof amendment, it’s time to put focus back on sweeping reform. And while the PCLOB may not have said much in the way of recommendations, now Congress will have to. To help, a coalition of groups (including my current employer, Freedom of the Press Foundation) have graded each and every representative in Washington on the NSA issue. The debate certainly isn’t going away – it’s just a question of whether the public will put enough pressure on Congress to change.

via Trevor Timm at TheGuardian.com