Why The NSA And President Bush Got The FISA Court To Reinterpret The Law In Order To Collect Tons Of Data

from the a-bit-more-revealing dept

Over the weekend, the Washington Post published yet another revelation about the NSA's surveillance capabilities, including some details of various "code named" data collection projects like MAINWAY, MARINA and NUCLEON. NUCLEON is the program for intercepting telephone calls (the actual content), though that's apparently limited. MAINWAY and MARINA are focused on all the data about communications (what everyone's been referring to as metadata), but not the actual content.

But what struck me as most interesting about the report is that it reveals some of the details of why the FISA court reinterpreted a key part of the Patriot Act to allow the NSA to do bulk collection of data -- contrary to its plain wording -- and how that interpretation has been used by the government. We've discussed in the past that the telcos had a habit of voluntarily handing over a ton of information (i.e., nearly everything) to the government on no legal basis at all. However, when the NY Times broke the story back in 2006 about the Bush administration's warrantless wiretapping, the telcos freaked out. As was widely covered, that led to passing a law that gave the telcos retroactive immunity for breaking the law (which they did). However, apparently, the telcos (with the help of the administration) sought to have the FISA court reinterpret the patriot act such that the limitation on "relevant" business records in Section 215 would now mean "all of them." The law was written such that the FISA court is only supposed to allow for the collection of "tangible" things (including records) if it can be shown to the court that the specific thing being collected is relevant to an investigation. The FISA Court apparently believes that means anything -- and that's the crux of the secret interpretation from the FISA Court which it and the DOJ have been refusing to reveal.
When the New York Times revealed the warrantless surveillance of voice calls, in December 2005, the telephone companies got nervous. One of them, unnamed in the report, approached the NSA with a request. Rather than volunteer the data, at a price, the “provider preferred to be compelled to do so by a court order,” the report said. Other companies followed suit. The surveillance court order that recast the meaning of business records “essentially gave NSA the same authority to collect bulk telephony metadata from business records that it had” under Bush’s asserted authority alone.
The article also highlights an even bigger mess around the collection of internet data. Bush had ordered it to be done, covering email data and Skype calls, from the siphoning they were doing directly off the network from the telcos. Cheney's lawyer wrote up the order. Then there was the somewhat infamous story of a bunch of top DOJ officials, including FBI boss Robert Mueller and his expected replacement James Comey, who apparently threatened to resign, pointing out that this was not actually legal. NSA boss Michael Hayden, apparently has no scruples at all, and said he was fine with keeping the program going, even if the Attorney General wouldn't sign the order. Lawyers for the NSA also tried out a ridiculous interpretation of the law that said they could collect everything, but they didn't technically "acquire" anything until they looked at it. While the report claims this interpretation is no longer used by the NSA, it certainly seems like officials have argued that data is not "collected" until they look at it. Either way, the FISA court stepped in to "make it legal" to do such bulk data collection:
Three months later, on July 15, the secret surveillance court allowed the NSA to resume bulk collection under the court’s own authority. The opinion, which remains highly classified, was based on a provision of electronic surveillance law, known as “pen register, trap and trace,” that was written to allow law enforcement officers to obtain the phone numbers of incoming and outgoing calls from a single telephone line.
Basically, when data collection runs up against the limits of the law, the FISA court steps in with a secret reinterpretation of the law to let intelligence officials do what they want. There are no adversarial hearings with anyone arguing the other side, and since the rulings are secret, the judges never even have to be worried about criticism. Hence the infamous rubber stamp of the court.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Jun 17th, 2013 @ 3:39am

    Interesting

    So it's as many of us suspected; the government does what it wants with our data and if it can help it covers everything up.

    I've said it before and I'm sure I will again Americas is the largest rogue nation in existence.

    Oh it doesn't get said enough but thanks Mike for talking about this stuff.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 6:47am

      Re: Interesting

      Right on with the right on, on both points. I would only add that the US is not only rogue it is terroristic.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Jun 17th, 2013 @ 6:48am

        Re: Re: Interesting

        also terroristic

         

        reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Jun 17th, 2013 @ 10:11am

        Re: Re: Interesting

        So you're saying Obama is a terrorist? Is Holder a terrorist too?

        This thread is the Cuckoo for Cocoa Puffs view of the world, because Iran, China and Russia are NOT worse than the US in this loony-toons geopolitical version.

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          John Fenderson (profile), Jun 17th, 2013 @ 10:36am

          Re: Re: Re: Interesting

          The behavior of the US meets every definition the US government has given of a "terrorist organization," so it's not so looney to propose that the US government (especially Congress) qualifies as one. Whether or not any given individual is a terrorist is difficult to know. An investigation is required to figure that out.

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Jun 17th, 2013 @ 11:31am

            Re: Re: Re: Re: Interesting

            John Fenderson is a hypocrite to the Nth degree...

            Mr. Big Govt "...if we had to choose between those two Bigs (and I don't think we do), then I choose Big Government. It's easier to fix the government (who is us) than major corporations (whose behavior we have little to no say in.)…"
            Quote reference: John Fenderson “It's easier to fix the government…".

            Ironically, the DOJ is Stifling corporations from telling the public what info BIG Govt has requested from them...

            Now you're saying the Govt is a bunch of Terrorists? After you defended Big Govt??

            How do you plan on fixing this?? Maybe you'll get arrested and have your DNA taken, charged as an enemy combatant, held indefinably without representation and tried in secret because you attempted to stand up and fix this...

            You are a wet noodle...a sad, sad little wet noodle...

             

            reply to this | link to this | view in chronology ]

            •  
              icon
              John Fenderson (profile), Jun 17th, 2013 @ 12:40pm

              Re: Re: Re: Re: Re: Interesting

              Your inability to understand English is pretty hilarious. My two comments are not even remotely at odds with each other.

               

              reply to this | link to this | view in chronology ]

            •  
              identicon
              Anonymous Coward, Jun 17th, 2013 @ 12:57pm

              Re: Re: Re: Re: Re: Interesting

              He's a wet noodle? How do you figure? BOTH are bad, according to him. Better yet, how do YOU plan on fixing this?

              Hint: Armed revolution is an option.

               

              reply to this | link to this | view in chronology ]

  •  
    icon
    Zakida Paul (profile), Jun 17th, 2013 @ 4:05am

    Proof

    Both Republicans and Democrats are bad for the US, just like both Labour and Tories are bad for the UK.

    Will it make any difference in the next election?

    Nope. The turkeys will continue to vote for Christmas.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      turkey voter, Jun 17th, 2013 @ 4:22am

      Re: Proof

      This turkey votes for Thanksgiving.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      Anonymous Howard (profile), Jun 17th, 2013 @ 4:22am

      Re: Proof

      It's a typical prisoner's dilemma:
      A lot of people think none of the 2 parties are good, but dislike one better then the other. So instead of voting for a smaller party that they like, they vote for the one bigger they mistrust less in fear of the other winning.

      They know it would be more beneficial to vote someone else, but they don't dare in fear for the other camp not doing the same.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      Uriel-238 (profile), Jun 17th, 2013 @ 2:09pm

      I think it would make a great revolution motto:

      ...Same as the old boss.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Androgynous Cowherd, Jun 17th, 2013 @ 4:09am

    Why am I reminded of ...

    Trade Federation Viceroy Nute Gunray: "Is that leeeegal?"

    Chancellor Palpatine: "I will make it legal!"

    Where's Luke Skywalker when we need him?!

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 5:17am

      Re: Why am I reminded of ...

      Maybe in the next generation. So far, you got your Anakin, as a dude who professed good intentions and went all over the Dark Side of the Force. So, would that make G. W. Bush the count Dooku?

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        The Groove Tiger (profile), Jun 17th, 2013 @ 7:52am

        Re: Re: Why am I reminded of ...

        Aide: Mr. President, we still haven't found any weapons of mass destruction.
        Dubya: *waves hand* You HAVE found weapons of mass destruction.
        Aide: Uhh... hi. We haven't.
        Dubya: You HAVE.
        Aide: *sighs* I don't know what you're doing.
        Dubya: Bring me a taco.
        Aide: Yes, sir.
        Dubya: Heh, heh, heh... Tacos rule.

         

        reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 7:34am

      Re: Why am I reminded of ...

      Luke is dead, Luke is dead babe.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Jun 17th, 2013 @ 4:33am

    Perhaps the people of the US should corrupt the data being collected by using buzzwords in every conversation as a protest.

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    That Anonymous Coward (profile), Jun 17th, 2013 @ 4:51am

    sigh... today in talking head news...
    NSA ONLY used the scooped data 300 times and totally stopped "real" terrorist acts here and aboard (not like the last time they claimed how well it worked and lied last week).

    So they are collecting data on "tens of millions" of people for a positive result of 300.

    0.003%
    Billions of dollars spent. Privacy shredded. Constitution read with secret interpretations.

    And by their own numbers it works 0.003% of the time.

    (This number might be lower, they implied 10's of millions of peoples data being scooped and this is the percentage of 300 out of 10,000,000.)

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 4:57am

      Re:

      sigh... today in talking head news..


      Supposably, this was in a letter from the NSA delivered to the Senate Intelligence Committee on Saturday. Either NSA or the committee reportedly cleared this letter for release. According to some news outlets, the letter was distributed among government and press prior to the Sunday morning talking heads programs.

      But… this letter does not appear to be published on the Senate Intelligence Committee website. Nor does this letter appear among the ODNI press releases on their website.

      Has anyone actually seen the text of this reputed letter? Is there a url for it?

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Jun 17th, 2013 @ 5:03am

        Re: Re:

        Supposably, this was in a letter from the NSA delivered to the Senate Intelligence Committee…


        Here's one source for that, which I happen to have handy right now:

        Officials: NSA Doesn't Collect Cellphone-Location Records”, by Siobhan Gorman and Julian E. Barnes, Wall Street Journal, June 16, 2013
        In the weekend statement, which was provided to Congress and released by the Senate Intelligence Committee, officials described other aspects of the surveillance programs in narrow terms.

        In 2012, for example, fewer than 300 phone records of Americans were reviewed, and that review was confined to information that was "associated with specific foreign terrorist organizations," the statement said.

        Other stories published over the weekend by various media outlets give further details.

         

        reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Jun 17th, 2013 @ 5:14am

        Re: Re:

        Has anyone actually seen the text of this reputed letter?


        According to CNN, the document, or letter, or statement, is three (3) pages long.

        Details on NSA-thwarted plots coming, lawmaker says” by Ed Payne, CNN, June 17, 2013
        Over the weekend a three-page document on the NSA programs was released to congressional intelligence committees and states…

        Well, perhaps I'm just inferring that this three (3) page document is the same "letter" or "statement" that other stories allege has been "made public".

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Jun 17th, 2013 @ 5:32am

          Re: Re: Re:

          … that other stories allege has been "made public".


          The AP alleges the info has been “made public”.

          Officials: NSA programs broke plots in 20 nations”, By Kimberly Dozier, AP, June 15, 2013
          … Last year, fewer than 300 phone numbers were checked against the database of millions of U.S. phone records gathered daily by the NSA in one of the programs, the intelligence officials said in arguing that the programs are far less sweeping than their detractors allege.

          No other new details about the plots or the countries involved were part of the newly declassified information released to Congress on Saturday and made public by the Senate Intelligence Committee.…

          Curiously enough, I found this AP story by following a link in a story by another media outlet (ok—well, it was a CNet story, but I didn't say that). That “other media outlet” story additionally cited and linked to a Reuters report that supposably also talked about this "letter" or "statement" or "document". But when I followed the link to the Reuters report, that source did not appear to corroborate the facts recited in the story by the “other media outlet”.

           

          reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Jun 17th, 2013 @ 1:34pm

        Three page fact sheet? [was Re: Re: ]

        Has anyone actually seen the text of this reputed letter? Is there a url for it?


        The Washington Post links to a three-page PDF that may be the document provided by the NSA to the Senate Intelligence Committee.

        The link is contained in the story, “Call records of fewer than 300 people were searched in 2012, U.S. says”, By Ellen Nakashima, The Washington Post, (undated) (web page metadata: Modified: 17 Jun 2013)
        The government last year searched for the phone records of fewer than 300 people in a database containing tens of millions of Americans’ phone records, intelligence officials said Saturday in a statement to Congress. . . .

        Does this look like the "letter" or "document" or "statement" that's been reported? Some of the phrasing in this "fact sheet" seems to match quotes I've seen in stories from other media outlets.

        ( H/T Foreign Policy / Elias Groll, which besides linking to the Washington Post, also links to a copy on Scribd. )

         

        reply to this | link to this | view in chronology ]

  •  
    identicon
    dcameron, Jun 17th, 2013 @ 5:37am

    Just to be clear...

    my terrorist pals can still send me Birthday greetings securely as long as its by post?

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Jun 17th, 2013 @ 6:59am

    so, the answer seems to be that we throw away all laws, dissolve all courts because the laws will be used and interpreted in the ways they shouldn't be, and get rid of all governments and the lackeys surrounding them

    what the hell is the point of having any laws at all if those that are meant to uphold them and ensure they are not abused, do what the hell they like with those laws so as to be able to do what ever the hell they like? those that have been doing this, under what ever court for what ever reasons, need to be on the receiving ends of the peoples laws! perhaps then they would not fuck with them in any way, shape or form! how is anyone supposed to be able to adhere to the law if it changes as and when certain people decide they dont like it how it is? add to this the way certain industry heads have changed the laws and had new laws added in, just to suit themselves and their respective industries and then ask why the hell NO ONE TRUST THE GOVERNMENT!!! the answer is right there in front of your face, as long as you dont change it, that is!!!

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Leftist Nerd Watch, Jun 17th, 2013 @ 7:03am

    Blame Bush

    but not Clinton who passed DMCA and other Soviet like legislation,
    or Obama who passed 2012 NDAA

    Liberals will be tied up with the ropes they handed to their rulers

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Some Other AC (profile), Jun 17th, 2013 @ 7:25am

      Re: Blame Bush

      Blame everyone:

      I lean slightly liberal in my opinions and views. I see good ideas on both sides. However, while none of the last handful of Presidents have been great, good or even so so in performance, they each have positive things they have done. I am at a complete loss to find any of the good that W. did, but I am sure there is something. Thanks to the parties at fault for the Sept. 11th attacks, we as a country were thrust into a 2 front war in Iraq and Afghanistan. While Afghanistan was a necessary target due to Osama Bin Laden, Iraq was a needless cost in terms of lives and resources. It has been proven that the intel/data handed to Bush was false and he bought it hook, line and sinker. Depending on your sources, he may have even been culpable in the gathering and dissemination of this info. W. Bush will have an ongoing legacy as a war monger. Unfortunately, by not following on his promises to end the conflict and just get the hell out of the Middle East, Obama is following suit. Additionally, the originator of this particular flavor of stomping over our rights and freedoms is the Bush Administration. Again, Obama is defending this and continuing it, so he becomes guilty in his own right.
      Blaming one side or the other completely is stupid, pointless and plays to the Partisan Bullshit you are being force fed on a daily basis by most aspects of our News and Political machines.
      Read all, I repeat, all versions of a news story or policy idea both from major outlets and from newer start ups. Then you will likely have enough information to form an intelligent and educated decision.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        Anonymous Howard (profile), Jun 17th, 2013 @ 7:43am

        Re: Re: Blame Bush

        "Afghanistan was a necessary target due to Osama Bin Laden"

        Necessary? No.
        Handy, convenient? Yes.

         

        reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Jun 17th, 2013 @ 11:36am

        Re: Re: Blame Bush

        Media(aka Dem's Polit Bureau) talking point #1 -

        "A noun, a verb and Blame Bush/Republicans."

        Vilify to deflect from incompetence and criminal activity.

         

        reply to this | link to this | view in chronology ]

    •  
      icon
      Zakida Paul (profile), Jun 17th, 2013 @ 7:55am

      Re: Blame Bush

      I blame them all.

      Your's sincerely

      A Leftist Liberal

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      John Fenderson (profile), Jun 17th, 2013 @ 9:06am

      Re: Blame Bush

      I dunno. I blame Clinton and Obama for a lot of things too, including the ones you mentioned. I'm not sure what liberal vs conservative has to do with it, though. Neither of those Presidents are exactly "liberal".

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 9:12am

      Re: Blame Bush

      How about we blame Washington. It's not partisan, it's that the people we send to office over and over again have been in Washington DC so damn long they have completely lost all sense of reality. They refer to themselves as the "ruling class." That should tell you about the mindset at work. This country wasn't founded to have a "ruling class" it was founded to be ruled by, of, and for the people. We've lost our way as a society. The only way to get back on track is to remove EVERYONE from office and start over.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    TurboKitty, Jun 17th, 2013 @ 8:49am

    FISA

    ... and to prevent the Bush Administration from being sued by various cell phone carriers, who were being sued by their subascribers ... ex post facto law violated!

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Jun 17th, 2013 @ 9:05am

    When are the class action suits against the telcos going to start. I'd like to add my name to the list.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Jun 17th, 2013 @ 9:38pm

    Ramifications of the Schrodinger interpretation of law

    > but they didn't technically "acquire" anything until they looked at it.

    This, if actually used and accepted, would make enforcing copyright law practically impossible. Along with a lot of other law, actually...

     

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This