The American Bear

› Fisa court oversight: a look inside a secret and empty process | Glenn Greenwald

The vast amount of discretion vested in NSA analysts is also demonstrated by the training and briefings given to them by the agency. In one such briefing from an official with the NSA’s general counsel’s office - a top secret transcript of which was obtained by the Guardian, dated 2008 and then updated for 2013 - NSA analysts are told how much the new Fisa law diluted the prior standards and how much discretion they now have in deciding whose communications to intercept:

“The court gets to look at procedures for saying that there is a reasonable belief for saying that a target is outside of the United States. Once again - a major change from the targeting under Fisa. Under Fisa you had to have probable cause to believe that the target was a foreign power or agent of a foreign power. Here all you need is a reasonable belief that the target is outside of the United States …

“Now, all kinds of information can be used to this end. There’s a list in the targeting procedures: phone directories, finished foreign intelligence, NSA technical analysis of selectors, lead information. Now, you don’t have to check a box in every one of those categories. But you have to look at everything you’ve got and make a judgment. Looking at everything, do you have a reasonable belief that your target is outside the United States? So, cast your search wide. But don’t feel as though you have to have something in every category. In the end, what matters is, ‘Does all that add up to a reasonable belief that your target is outside the United States?’”

So vast is this discretion that NSA analysts even have the authority to surveil communications between their targets and their lawyers, and that information can be not just stored but also disseminated. NSA procedures do not ban such interception, but rather set forth procedures to be followed in the event that the NSA analyst believes they should be “disseminated”.

The decisions about who has their emails and telephone calls intercepted by the NSA is made by the NSA itself, not by the Fisa court, except where the NSA itself concludes the person is a US citizen and/or the communication is exclusively domestic. But even in such cases, the NSA often ends up intercepting those communications of Americans without individualized warrants, and all of this is left to the discretion of the NSA analysts with no real judicial oversight.

› You Are Our Secret (2) | Tom Engelhardt

For this vast, restless, endless expansion of surveillance of every sort and at every level, for the nearly half-million or possibly far more private contractors, aka “digital Blackwater,” now in the government surveillance business — about 70% of the national intelligence budget reportedly goes to the private sector these days — and the nearly five million Americans with security clearances (1.4 million with top security clearances, more than a third of them private contractors), the official explanation is “terrorism.” It matters little that terrorism as a phenomenon is one of the lesser dangers Americans face in their daily lives and that, for some of the larger ones, ranging from food-borne illnesses to cars, guns, and what’s now called “extreme weather,” no one would think about building vast bureaucratic structures shrouded in secrecy, funded to the hilt, and offering Americans promises of ultimate safety.

Terrorism certainly rears its ugly head from time to time and there’s no question that the fear of some operation getting through the vast U.S. security net drives the employees of our global security state. As an explanation for the phenomenal growth of that state, however, it simply doesn’t hold water. In truth, compared to the previous century, U.S. enemies are remarkably scarce on this planet. So forget the official explanation and imagine our global-security-state-in-the-making in the grips of a kind of compulsive disorder in which the urge to go global, make the most private information of the citizen everywhere the property of the American state, and expand surveillance endlessly simply trumps any other way of doing things.

In other words, they can’t help themselves. The process, the phenomenon, has them by the throat, so much so that they can imagine no other way of being. In this mood, they are paving the way for a new global security — or rather insecurity — world. They are, for instance, hiking spending on “cybersecurity,” have already secretly launched the planet’s first cyberwar, are planning for more of them, intend to dominate the future cyber-landscape in a staggering fashion, continue to gather global data of every sort on a massive scale, and more generally are acting in ways that they would consider criminal if other countries engaged in them. [++]

› NSA Boss Asks Congress For Blanket Immunity For Companies That Help NSA Spy On Everyone | Techdirt

This will come as no surprise to anyone, but NSA boss General Keith Alexander is pestering Congress for a new law which would provide blanket immunity for companies helping the NSA collect data on everyone.

Gen. Keith Alexander has petitioned Capitol Hill for months to give Internet service providers and other firms new cover from lawsuits when they rely on government data to thwart emerging cyberthreats.

Basically, he’s arguing that if the NSA orders companies to do something illegal, the companies shouldn’t be liable for that. There’s some logic behind that, because when you get an order from the government, you often feel compelled to obey. But, of course, the reality is that this will give blanket cover for companies voluntarily violating all sorts of privacy laws in giving the NSA data. And, theoretically you could then sue the government over those violations, but we’ve seen in the past how well that goes over. First, the courts won’t give you “standing” if you can’t prove absolutely that your data was included. Then, if you get past that hurdle, the government will claim “national security” or sovereign immunity to try to get out of the case. And, even if it gets past all of that, and you win against the government, the feds shrug their shoulders and say “now what are you going to do?”

And, of course, rather than narrowly target this immunity, it appears that Alexander would like it as broad as possible.

One former White House aide told POLITICO that Alexander has been asking members of Congress for some time to adopt bill language on countermeasures that’s “as ill-defined as possible” — with the goal of giving the Pentagon great flexibility in taking action alongside Internet providers. Telecom companies, the former aide said, also have been asking Alexander for those very legal protections.

Given the revelations of the past few weeks, this seems like the exact wrong direction for Congress to be heading. We should want companies to push back against overaggressive demands from the government for information. Giving them blanket immunity would be a huge mistake and only enable greater privacy violations.

› You Are Our Secret | Tom Engelhardt

Corporately speaking, globalization has been ballyhooed since at least the 1990s, but in governmental terms only in the twenty-first century has that globalizing urge fully infected the workings of the American state itself. It’s become common since 9/11 to speak of a “national security state.” But if a week of ongoing revelations about NSA surveillance practices has revealed anything, it’s that the term is already grossly outdated. Based on what we now know, we should be talking about an American global security state.

Much attention has, understandably enough, been lavished on the phone and other metadata about American citizens that the NSA is now sweeping up and about the ways in which such activities may be abrogating the First and Fourth Amendments of the U.S. Constitution. Far less attention has been paid to the ways in which the NSA (and other U.S. intelligence outfits) are sweeping up global data in part via the just-revealed Prism and other surveillance programs.

Sometimes, naming practices are revealing in themselves, and the National Security Agency’s key data mining tool, capable in March 2013 of gathering “97 billion pieces of intelligence from computer networks worldwide,” has been named “boundless informant.” If you want a sense of where the U.S. Intelligence Community imagines itself going, you couldn’t ask for a better hint than that word “boundless.” It seems that for our spooks, there are, conceptually speaking, no limits left on this planet.

Today, that “community” seeks to put not just the U.S., but the world fully under its penetrating gaze. By now, the first “heat map” has been published showing where such information is being sucked up from monthly: Iran tops the list (14 billion pieces of intelligence); then come Pakistan (13.5 billion), Jordan (12.7 billion), Egypt (7.6 billion), and India (6.3 billion). Whether you realize this or not, even for a superpower that has unprecedented numbers of military bases scattered across the planet and has divided the world into six military commands, this represents something new under the sun. The only question is what?

The twentieth century was the century of “totalitarianisms.” We don’t yet have a name, a term, for the surveillance structures Washington is building in this century, but there can be no question that, whatever the present constraints on the system, “total” has something to do with it and that we are being ushered into a new world. Despite the recent leaks, we still undoubtedly have a very limited picture of just what the present American surveillance world really looks like and what it plans for our future. One thing is clear, however: the ambitions behind it are staggering and global. [continue]

› Spygate Leaks Imperil State-Secrets Defense | Threat Level

First it was the President George W. Bush administration and then the President Barack Obama administration, which for years have been arguing in court that the state-secrets privilege shields the government from lawsuits accusing it of siphoning Americans’ electronic communications to the National Security Agency without warrants.

But with the recent Spygate leaks, including one that all calling metadata of Verizon customers is being forwarded to the NSA, the government is hard-pressed to maintain that line with a straight face.

“By contrast, the recent disclosures have greatly undermined the factual and legal basis for the government defendants’ separate and distinct state secrets motion,” the Electronic Frontier Foundation wrote in a recent court filing.

The EFF’s lawsuit, which has had a tortured history through the courts, is based in part on allegations of internal AT&T documents, first published by Wired, that outline a secret room in an AT&T San Francisco office and others which allegedly route internet traffic to the NSA.

A decision from U.S. District Jeffrey White in San Francisco is pending on whether to dismiss the long-running case, based on the government’s state secrets assertion. The state secrets doctrine was first recognized by the Supreme Court in the McCarthy era, and is asserted when the government claims litigation threatens to expose national security secrets. Judges routinely dismiss cases on that assertion alone.

But because of the leak appearing in the Guardian two weeks ago, the Obama administration wants the court to delay, perhaps indefinitely, a decision on the EFF lawsuit.

“In light of these developments, the Government Defendants request that the Court defer further consideration of the pending motions and grant the Government time to consider the effect on the pending motions of the Government’s decision to declassify certain information, and to consult with plaintiffs concerning the matter,” the government wrote in a recent filing. (.pdf)

The EFF countered: (.pdf)

“The government defendants’ request for an open-ended stay lacks merit. It is only the latest step in the government’s so-far entirely successful effort over the past seven years to evade any adjudication of the legality of the electronic surveillance it has been engaging in since October 2001.”

The Guardian newspaper was leaked a secret court order requiring Verizon Business Solutions to provide the NSA with the phone numbers of both parties involved in all calls, the International Mobile Subscriber Identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls.

The Guardian and Washington Post were leaked material detailing a program called PRISM, which described a system whereby nine internet companies, including Google, Yahoo and Facebook had special equipment installed in their facilities that allowed NSA analysts sitting at their desks to query the data directly. The internet companies said they did not provide the government direct access to their servers.

Meanwhile, following the leaks, at least two new lawsuits with similar spying allegations have surfaced. The government has not publicly responded to those yet.

› Seeing Through the Blizzard to Utah: How Much Space Does Metadata Need | Rayne

In the blizzard of half-truths, dissembling, and prevarications about the nature of the National Security Agency’s surveillance programs, it’s easy to lose sight of the obvious. In this case, the obvious is about one million square feet in size.

› The War on Metadata | Binoy Kampmark

Ideas are fashioned weapons. When applied to the right spot, their result can be immediate, overwhelming, collapsing. The pressing need for populations across countries to revolt against the revolting, to assert sovereignty over themselves, their information, their very sense of being human, is now greater than ever.

The metadata authoritarians, the wet dreamers of information, habituated paranoids, must be challenged. Their activities must themselves be subject to surveillance. Franz Kafka’s nightmarish world, with its sinister bureaucratic pitfalls, potholes of arbitrary acts by state, must be inverted, its legacy reversed. Their actions must themselves be countenanced by judicial scrutiny. The law, in short, must be given its sight again.

The sinister nature of the modern information regime lies in its seemingly benign quality. Big Brother is a celebrity show, not a vicious, maniacal controller of human behaviour, a murderous pestilence against people’s dignity. The dystopia we are readying ourselves for will be all the more hideous because it demands complicity, that need to be protected against ourselves by those who claim they know best.

This is a social contract of a different sort, one signed in a somnambulist state. It demands a surrender of information to social media outlets because we demand to sup with the devils of the virtual world. It demands a reduced privacy regime because controlling privacy is much like controlling air in a vacuum – it doesn’t ‘exist’. It entails that governments are entitled, indeed mandated, to gather huge pools of data to dip into, constructing personalities, trends and tendencies. “We know you before you know yourselves.”

The issue of gathering information to protect state security is a symbolic justification. It is rarely a genuine one. Policing and security can be the business of the shadows, but it should never be an unaccountable one. One doesn’t convict an entire population for the crimes of one member, but the premise of the metadata state reverses that assumption. We are all pre-emptively guilty of something, according to that worldview.

› Edward Snowden Q and A: NSA whistleblower answers your questions | guardian.co.uk

Q: 1) Define in as much detail as you can what “direct access” means.
2) Can analysts listen to content of domestic calls without a warrant?

A: 1) More detail on how direct NSA’s accesses are is coming, but in general, the reality is this: if an NSA, FBI, CIA, DIA, etc analyst has access to query raw SIGINT databases, they can enter and get results for anything they want. Phone number, email, user id, cell phone handset id (IMEI), and so on - it’s all the same. The restrictions against this are policy based, not technically based, and can change at any time. Additionally, audits are cursory, incomplete, and easily fooled by fake justifications. For at least GCHQ, the number of audited queries is only 5% of those performed.

2) NSA likes to use “domestic” as a weasel word here for a number of reasons. The reality is that due to the FISA Amendments Act and its section 702 authorities, Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as “incidental” collection, but at the end of the day, someone at NSA still has the content of your communications. Even in the event of “warranted” intercept, it’s important to understand the intelligence community doesn’t always deal with what you would consider a “real” warrant like a Police department would have to, the “warrant” is more of a templated form they fill out and send to a reliable judge with a rubber stamp.

Glenn Greenwald follow up: When you say “someone at NSA still has the content of your communications” - what do you mean? Do you mean they have a record of it, or the actual content?

Both. If I target for example an email address, for example under FAA 702, and that email address sent something to you, Joe America, the analyst gets it. All of it. IPs, raw data, content, headers, attachments, everything. And it gets saved for a very long time - and can be extended further with waivers rather than warrants.