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.

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

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Anonymous Coward says:


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.

John Fenderson (profile) says:

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.

Anonymous Coward says:

Re: Re: Re:2 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…

Anonymous Howard (profile) says:

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.

The Groove Tiger (profile) says:

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.

That Anonymous Coward (profile) says:

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.

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.)

Anonymous Coward says:

Re: 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?

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

Re: 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”.

Anonymous Coward says:

Re: 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?.

Anonymous Coward says:

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

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. )

Anonymous Coward says:

Re: Just to be clear...

? still send me Birthday greetings securely as long as its by post?

?Lindsey Graham: ?If I thought censoring the mail was necessary, I would suggest it??, by Chris Moody, Yahoo!, June 11, 2013

Sen. Lindsey Graham would propose censoring Americans’ “snail” mail if he thought it would help protect national security, the South Carolina Republican said Tuesday. But for now, he says he doesn’t think it’s necessary.


Anonymous Coward says:

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!!!

Some Other AC (profile) says:

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.

Anonymous Coward says:

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.

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