EFF Asks Court To Declare NSA's 'Internet Backbone' Collections Unconstitutional

from the what-part-of-the-Fourth-says-'collect-it-all?' dept

Snowden’s leaks continue to help build the EFF’s case against the NSA. Its lawsuit against the intelligence agency (filed on behalf of several plaintiffs, Carolyn Jewel being named first) was filed in 2008, but has gained significant traction over the past twelve months.

This case is also at the center of the DOJ’s on-again, off-again metadata destruction plans, which ultimately resulted in the FISA court backing up the district court’s preservation order preventing the destruction of relevant aged-off Section 702 data. The DOJ said one thing and did another, in the end destroying evidence and claiming the NSA’s was “too complex” to separate relevant data from the rest of the collection.

The recent leaks provided more evidence that the NSA routinely collected not only metadata but communications of American citizens, and has lead the EFF to file a motion for summary judgement declaring that the NSA’s “internet backbone” surveillance programs are unconstitutional.

This motion is based almost entirely on the government’s formal, acknowledged admissions. This is because a Motion for Partial “Summary Judgment,” such as this one, cannot be decided if the parties disagree about material facts. It is a common litigation strategy to make a motion based upon the undisputed facts so that the court can rule on an important legal issue, even if there are other facts that are not yet agreed upon.

In essence, we are saying that even if you accept the government’s own descriptions of its internet backbone spying, the spying is still unconstitutional.

In the motion, the EFF details how the NSA’s untargeted collections violate the Fourth Amendment and could not possibly be covered by any issued warrant.

First, the government unconstitutionally seizes plaintiffs’ Internet communications. Technology at plaintiffs’ Internet service provider, AT&T, automatically creates and delivers to the government a copy of plaintiffs’ online activities, along with those of millions of other innocent Americans—including email, live chat, reading and interacting with websites, Internet searching, and social networking.

Second, the government unconstitutionally searches the content of much of the communications stream it has seized. The government admits that it searches the content of the online communications that it has seized if it believes there is some indication that the origin or destination of the communication is outside the United States.

Seizing the communications of American citizens can only be done with a warrant — one that specifies the target, time period and other limitations. This is how government agencies stay compliant with the Fourth Amendment. In the NSA’s case, all of that is thrown out. There is no targeting to speak of. Everything is collected and sorted through for relevant information after the fact. Because no warrant would reasonably cover the massive amount of data and communications collected, the NSA operates without one. As the EFF points out, FISA court orders are not warrants and the collection of metadata authorized by these are governed by a generous reading of the Third Party Doctrine. What the NSA pulls off the internet backbone are actual communications — all without a warrant or any associated restrictions other than some belatedly (and arbitrarily) applied minimization procedures.

All of this adds up to a very clear violation of the Fourth Amendment.

In truth, no valid warrant could authorize the government’s admitted practices here. The government’s targeting and minimization procedures are no substitute for the fundamental protections that the Constitution guarantees to all Americans. The ongoing dragnet seizure and search of innocent Americans’ Internet activities violates the Fourth Amendment.

The EFF’s filing also includes the following infographic (created by Hugh D’Andrade) that shows how the NSA’s backbone collection works.

A crucial part of the Fourth Amendment that often gets overlooked is the protection against unconstitutional seizures. As the EFF points out, when the NSA grabs everything from AT&T’s backbone, this constitutes a seizure. The NSA may not consider it to be a “collection” (or run searches) until three steps later, but it grabs communications in bulk before applying any minimization or targeting.

The utilization of a warrant (also a key factor to constitutionality) would require the NSA to determine what it was searching for well before it could move ahead with the seizure. It would also require the agency to specify what it’s seizing. Other agencies have asked for bulk, non-specific seizures of electronic data/communications (and permission is sometimes granted), but this process at least allows another party to act as a check against overreach. The NSA operates without warrants, bypassing any external checks against abuse, and simply clones communications traveling these internet backbones.

As is noted several times (and with several citations), these claims are established facts, most of which the government itself has confirmed via statements issued in response to leaks as well as in the many hearings held in the wake of the Snowden leaks. There’s really no room for argument, although it’s virtually assured the government will find something to justify its bypassing of the Fourth Amendment. The EFF speculates that this argument will revolve around the NSA’s very slippery and self-serving definition of “collection.”

As we try to make clear in the motion, especially at footnote 13, the government uses a very different definition of “collect” or “acquire” than most people do, limiting “collection” or “acquisition” to stage 4, when the communications are actually stored in the government’s database. An easy place to see this is in DNI Clapper’s explanation for denying to Senator Wyden that the U.S. government is “collecting” data on millions or hundreds of millions of Americans.

It’s up to the court to decide whether or not the NSA’s collection is a collection when the NSA says it is — or when it’s actually collected.

The government can also be expected to re-deploy its “special needs” argument, which posits that the good of the few (the NSA) outweighs the good of the many (the American public). The hunt for terrorists should outweigh the public’s expectation of privacy, whatever minimal amount is left after the government’s exploitation of the Third Party Doctrine. The EFF warns the court about this expected argument, noting that the government’s “needs” don’t outweigh its obligation to honor its citizens’ civil liberties.

Although “the government’s interest in preventing terrorism . . . is extremely high,” the importance of that interest “is no excuse for the dispensing altogether with domestic persons’ constitutional rights.” Al Haramain Islamic Foundation, 686 F.3d at 993; see also Keith, 407 U.S. at 316-21 (rejecting government’s argument that national security required dispensing with the warrant requirement in domestic security surveillance cases). “Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. . . . [¶] . . . [E]ven the war power does not remove constitutional limitations safeguarding essential liberties.” Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 425-26 (1934). Allowing even legitimate national security concerns to override the most fundamental of Fourth Amendment protections—the prohibition on the modern-day equivalent of the despised “general warrant”—would turn the Constitution on its head and destroy the basic civil liberties that the Founders fought to protect.

The bulk metadata collection (Section 215/501) has already had its Constitutionality challenged by one judge. The EFF is seeking a similar decision on the NSA’s Section 702 program with this filing. The extra attention of the Snowden-imposed daylight has led to concessions on Section 215 by the NSA. With any luck, Section 702 is in line for similar discussion and modification.

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Comments on “EFF Asks Court To Declare NSA's 'Internet Backbone' Collections Unconstitutional”

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Cowardly Anonymous says:

Re: Re: Re:

Precisely. If I seize your arm, I haven’t deprived you of your arm. If I seize the day, I haven’t deprived anyone else of that same day. Theft requires deprivation, as you say, and “to seize something is to take it regardless of whether you deprive the previous holder of it or not.” Totally different concepts. The government, by seizing data believed to be private and inviolate, are obtaining something they didn’t have prior to doing so.

Anonymous Coward says:

Re: Re:

seize /sēz/ verb
verb: seize; 3rd person present: seizes; past tense: seized; past participle: seized; gerund or present participle: seizing; verb: seise; 3rd person present: seises; past tense: seised; past participle: seised; gerund or present participle: seising
1. take hold of suddenly and forcibly.
“she jumped up and seized his arm”
synonyms: grab, grasp, snatch, take hold of, get one’s hands on;
grip, clutch;
“she seized the microphone”
antonyms: let go of

take forcible possession of.
“army rebels seized an air force base”
synonyms: capture, take, overrun, occupy, conquer, take over
“rebels seized the air base”
antonyms: relinquish, liberate
(of the police or another authority) take possession of (something) by warrant or legal right; confiscate; impound.
“police have seized 726 lb of cocaine”
synonyms: confiscate, impound, commandeer, requisition, appropriate, expropriate, take away;
“the drugs were seized by customs”
antonyms: release
take (an opportunity or initiative) eagerly and decisively.
“he seized his chance to attack as Delaney hesitated”
(of a feeling or pain) affect (someone) suddenly or acutely.
“he was seized by the most dreadful fear”
strongly appeal to or attract (the imagination or attention).
“the story of the king’s escape seized the public imagination”
understand (something) quickly or clearly.
“he always strains to seize the most somber truths

Anonymous Coward says:

is it really seizure?

I’m no fan of the NSA, but it does not seem totally straightforward to describe their cloning of backbone traffic as “seizure.” It’s a bit like the copyright “infringement” versus “theft” discussion. What they are doing is not equivalent to bursting into my house and confiscating my computer. If nothing else, I still have all of the data they mirror — just like a copyright holder still has their movie after it is spun up onto the Pirate Bay. One could say the NSA is “infringing,” not “seizing” my data. And, for a three-letter agency justifying mass spying, this is an important distinction that allows them to follow the letter of the Fourth Amendment while ignoring its spirit.

Changing technology has created a whole new category of “seizure” that the Fourth Amendment doesn’t comfortably cover.

AJ says:

Re: is it really seizure?

When they people “seizing” or “cloning” my information have the ability to come to my house driving a tank and machine gun me down in my driveway should they not like what they clone or seize …..well at that point I don’t really care what you call it, its a bad idea….

I don’t think its a good idea to give anyone that much power. The abuse or “mistakes” that become possible terrify me more than any terrorists….

Anonymous Coward says:

Re: is it really seizure?

This is basically the same thing as the NSA breaking into your house with a copy of your key they got from the lock manufacturer, stealing all your papers, photocopying them, then putting them back where they belong and relocking your door and leaving before you get home to notice.

The fact that the digital age has allowed them to streamline the process until it takes a few milliseconds instead of a few hours should not matter. The moment your packets enter their splitter for duplication, they have seized your packet as surely as if they’d taken your bank statement off your desk for photocopying.

Anonymous Coward says:

Re: Re: is it really seizure?

Fortunately, per NSA parlance, they don’t infringe the copyright until the moment the analyst looks at it. Once they do, their infringement is justified by the national security purpose served by infringing the copyright or justified on the basis of official immunity.

That One Guy (profile) says:

Re: Re: Re:2 is it really seizure?

‘Your honor, while my client may have downloaded 42 albums worth of music off of the file-sharing site, as computer logs clearly show, at the time the lawsuit was filed against him he had yet to listen to a single track. As such, he clearly cannot be held to have infringed up the copyrights of the songs in question, as until a track is listened to, it cannot be said to have been ‘gathered’ under the law.’

Anonymous Coward says:

Re: is it really seizure?

It is not at all similar. Seizure CAN be theft but isn’t necessarily. There is absolutely nothing in the definition of the word that pertains to the deprivation of the previous holder of the item acted on. Seizure is merely the act of taking by force regardless. Theft on the other hand required deprivation. And before you go there, file sharing isn’t seizure either as it is freely given by the previous holder so it is not taken by force either. You may say that the telcos freely give the information to the government but it is only under a coercive request which would result in negative consequences should that request be refused (see: Lavabit) which satisfies the condition of force to meet the definition.

John Fenderson (profile) says:

Re: is it really seizure?

From http://www.nolo.com/dictionary/search-and-seizure-term.html:

In criminal law, the phrase that describes law enforcement’s gathering of evidence of a crime. Under the Fourth and Fourteenth Amendments to the U.S. Constitution, any search of a person or his premises (including a vehicle), and any seizure of tangible evidence, must be reasonable.

Under this definition, making a copy of data is indeed a seizure (it is gathering evidence of a crime).

Anonymous Coward says:

Re: Re: is it really seizure?

Shouldn’t matter, though, since United States vs U.S. District Court did make telecommunication wiretapping illegal and even if it is further automated, the same principle should apply to data. The problem is how to recieve only relevant data if filtering of raw data is illegal? I would guess practical considerations like the form of the data, how it can be stored separated in chunks at a reasonable cost and if the data has redundance with other surveillance will be a significant part of this case. I don’t see the specific wording being that relevant for the outcome.

Whatever (profile) says:

Re: is it really seizure?

As the EFF points out, when the NSA grabs everything from AT&T’s backbone, this constitutes a seizure.

I think that Tim Cushing finds himself in a bit of an uncomfortable place with this one. It’s another one of those “angry at NSA” posts, but it has huge implications for many of the pillars of Techdirt, namely that piracy is not theft, but only infringement. Read on to understand more:

In a legal sense, seizure of something means to take sole control or ownership. You seize drugs, you seize assets, you seize the wheel.

EFF’s argument is that a copy is a seizure, property that has been obtained without a warrant.

Now the point the Techdirt staff would not like you to consider is what EFF’s argument would mean in relation to piracy. If for purposes of the 4th amendment obtaining a copy of digital information is a seizure, you have to accept that (a) the original information was property that could be seized, and that (b) that the copy made has been “seized” and thus is property, not just a copy. If this is the case, then every pirated copy of a movie, song, or software is property, and the whole concept of theft of property comes back into play.

The issue is that if the copy of the data is property for seizure, it then defines any copy of data as property owned and controlled by whoever created it. If you can seize data as property for the fourth amendment, then copies of any data would be property in the most basic of legal senses. It would as a result be a very easy legal argument to claim that a pirated copy of a movie is direct theft, as property has been obtained illegally.

You guys better hope like heck that EFF loses this one. They are opening a huge can of worms that could potentially do more harm to the net than any net neutrality deal.

Anonymous Coward says:

Re: Re: is it really seizure?

You’re arguing the Feds can open people’s letters at the US Post Office without a warrant. Make a copy of their letter on a Xerox photocopier. Stuff the original letter back into the envelope, tape it up and send it on it’s way.

The EFF is arguing this constitutes a warrentless seizure, or at the very least a general warrant covering AT&T’s backbone network. AT&T’s “post office” in none technical terms.

Whatever (profile) says:

Re: Re: Re: is it really seizure?

You’re arguing the Feds can open people’s letters at the US Post Office without a warrant. Make a copy of their letter on a Xerox photocopier. Stuff the original letter back into the envelope, tape it up and send it on it’s way.

Far from it. To use your analogy, they are taking pictures of all of the main going through a sorting machine at the post office. Post cards get their full information copied, the closed envelopes only display their to and from addresses (encrypted content) and fully encrypted stuff gives them nothing but a random collection of 1s and 0s.

I don’t see them opening any mail.

Eldakka (profile) says:

Re: Re: Re:2 is it really seizure?

I don’t see them opening any mail.

Because they don’t have a warrant to do so.

The NSA backbone search is not limited to metadata, which is the equivalent of taking pictures of the outside of envelopes. The searches are searching the content of the email for their keywords, which is the equivalent of opening the letters, copying the contents, then resealing them again and sending them on.

NSA say that they also ‘seize’ (in their definition of seize) emails about targeted persons.

You cannot tell if an email is about a third party unless you “open the mail and read its contents”.

In fact, you cannot even tell the subject, or the To: or From: an email without “opening” it. The IP header of an email contains only meta data about the packet itself, from IP, to IP, checksum, size of header, size of payload etc. It doesn’t contain any information on an email such as To:, From: Subject: . In a letter analogy, all it really contains is the from and to street addresses, maybe some waybill information: weight, size. No names of people, no subject, nothing else.

The payload of an IP packet itself contains another envelope (TCP, UDP, RTP etc) who’s header/meta-data information doesn’t even contain the email From:, To: Subject: let alone body of an email. The headers of these envelopes contain more detailed meta-data, but again no To:, From:, Subject: or Body: data. In a TCP header it’d be from port, to port, sequence number, window size etc. In a letter analogy, this would be equivalent to an apartment number (the IP packet header had the street address), how many separate envelopes were sent, the number within that which this is (1st, 2nd, 3rd …).

You’d have to delve into the payload, “open the letter”, of the TCP packet to find out information such as To: From:, Subject:. And since, as far as the TCP packet is concerned, the payload is just a long string, you have to open the entire packet, have access to the entire payload including the body to get the From:, To:, Subject: information. Email headers are not separate from the Body data stream, unlike an IP or TCP packet header is. There is no fixed location email header field that says “the first 80 bytes are headers, the rest is body, so just get the first 80 bytes and all you’ll have is header information, From:, To:, Subject: fields”.

In the letter analogy, to copy the From:, To:, Subject: “meta-data”, this is like opening the letter, grabbing the page and copying the standard (formal writing style) From: information on the top right-hand side of the page, the To: information on the left side but a bit lower down than the From information, then the Subject line immediately below that, and then promising to not copy the rest of the first page, honest, you can believe me. I give you my word I won’t copy the whole page, or any of the other pages, really.

But Oops, if I am permitted to get mail about a target then I have to copy and read ALL the pages to determine whether it’s about one of my targets.

Not to mention that, since I’m also allowed to keep encrypted email (because, you know, using encryption is suspicious), I have to “Open the email and read it” in order to determine if it’s encrypted.

Anonymous Coward says:

Re: Re: Re:3 is it really seizure?

It’s far more problematic than you describe. The fact that the feds have access to the data stream itself means they have full access to the message and the metadata. That’s the problem. You can’t separate the two without using encryption because packets are just encapsulated layers smooshed together. The problem with Whatever’s argument is that the NSA has an x-ray machine capable of reading and copying the mail as it goes through the sorter without even touching the letter. And they make copies of all letters. That’s why it’s unconstitutional.

Whatever (profile) says:

Re: Re: Re:3 is it really seizure?

I have to “Open the email and read it” in order to determine if it’s encrypted.

if there is enough to read to know if it’s encrypted or not, then not all of it is actually encrypted. That email has the subject written on the outside of the envelope and not the inside is purely technical.

For totally unencrypted mail, it’s like sending information on postcards. No effort is required to see the raw data, it’s right there.

The point is this: If the copy is seizable, then it’s property. Then are other forms of digital data property? If so, then are copies of movies property?

Whatever (profile) says:

Re: Re: Re: is it really seizure?

I think you miss the point.

If they say the data needs a warrant because it’s a seizure, the it is defacto property, IE something that belongs to someone. It will open the door to the argument that digital downloads are property as well, and can be obtained (seized) illegally by pirates. So no longer do you have just a civil case, but a case of theft of property even though it’s a copy.

Otherwise, the copy of data is just that, a copy, and the original data was no seized, only replicated as it went by.

Anonymous Coward says:

Re: Re: Re:2 is it really seizure?

Is that the legal definition? Legal definitions are precise. I don’t remember the term ‘seize’ being used in any of the ‘infringement’ or ‘piracy’ cases. I feel pretty certain that you are using the term ‘seize’ in a vaguely general sense rather than its strictly legal and procedural sense.

Anonymous Coward says:

Re: Re: Re:2 is it really seizure?

As I said earlier, seizure is taking by force. File sharing is not taking by force. To illustrate this further, if I were to voluntarily walk into a police station and hand them evidence that I had committed a crime that they then in turn used to prosecute me, there is no 4th amendment violation. There is no seizure as they did not force me to hand it over to them and did not search to find it. They took it but only because I gave it freely. People who engage in file sharing freely give copies of the data they possess to other people. There is no seizure. Your comparison fails on this point.

Anonymous Coward says:

Re: Re: Piracy

Again, words matter. File sharing isn’t seizure and really shouldn’t be called piracy either. Again these are willful conflations of terms in an attempt to convey negative attributes on actions that do not have those attributes in an attempt to manipulate the public.

Piracy is a violent seizure of property taken on the high seas. File sharing isn’t anywhere close to being the same thing. File sharing isn’t even a seizure much less theft. It is a willful sharing of a copy data that a person possesses. Seizure is taking by force or under threat of force.

There are reasons we have different words for different things.

Anonymous Coward says:

Re: Re: Re: Piracy

In the future I plan to at least attempt to refrain from using the term piracy for copyright infringement as that is also a disingenuous conflation of terms. Digital copyright infringement is not violent, it is not theft, it does not involve the use of force or even the threat of force. True piracy has all of these.

Anonymous Coward says:

Re: Re: Re:3 Piracy

Hacker is another good example. The word means something other than what many people think it means. Ignorance, which is what this is, is a battle that we cannot afford to lose and must continue to fight regardless of how futile fighting it may seem. This is why people continuously need to be corrected when they use the language incorrectly.

John Fenderson (profile) says:

Re: Re: Re:4 Piracy

In my own speech, I try to distinguish between “hacker” and “cracker”. That said…

“This is why people continuously need to be corrected when they use the language incorrectly.”

I more or less disagree with this. Language changes, and a very good argument can be made for both the terms “hacker” and “piracy” that the language has already changed. People using those terms in their modern sense aren’t using the language incorrectly at all. They’re using contemporary language correctly.

That’s what I mean by the battle is already lost. The meanings have changed, and the modern usage is not incorrect — that us old farts wish it had not doesn’t change the truth.

Anonymous Coward says:

Re: Re: Re:5 Piracy

Fine then. Language changes and these terms have adopted new meanings, although I would argue that in these cases they have still retained their original meanings as well. What people need to be educated on then is the disingenuous nature by which those new meanings came into being.

And the term cracker isn’t even necessarily related to criminal activity.

John Fenderson (profile) says:

Re: Re: Re:6 Piracy

“I would argue that in these cases they have still retained their original meanings as well”

I agree.

“the term cracker isn’t even necessarily related to criminal activity”

Well, yes and no. The term “cracker” was a conscious attempt to invent a different term for criminal activity so that people would stop using “hacker” for that. The intention was for it to be necessarily related to such activity. It failed, in part because it kindof sucks for that purpose.

Anonymous Coward says:

Re: Re: Re:7 Piracy

My understanding was a cracker was a little more specific of a term in that it meant breaking into something in the same way that a person may “crack” open a safe whereas a hacker merely attempts to understand something by attempting to take it apart and/or modify how it works. In the same way that a locksmith opening a your lock for you wouldn’t be criminal, the actions of a cracker wouldn’t necessarily be criminal.

Anonymous Coward says:

Re: Re: Re:5 Piracy

Also these are not examples of a natural evolution of language. These are deliberate attempts to skew the meanings of words and hijack the language. In the same way that these attempts to skew language through techniques of propaganda (and I intend no negative connotation in the use of the word as it originally did not convey any) similar techniques can be utilized to correct that course. However it will take effort.

Anonymous Coward says:

Devil's advocate

I don’t really advocate what I’m about to put forth, but I can imagine an argument asking if it’s really a seizure, if it’s only making a copy. When a cop seizes your car, you no longer have the car. In this case, no data is being taken – only copied.

I would hope there’s already analog precedent that already trashes this argument (cops photographing or xeroxing documents, without taking the originals). But then again, it’s harder to split the hair of seizure and search in the analog world, so maybe there’s no clear precedent. Anyone know?

saulgoode (profile) says:

Re: Devil's advocate

If you read the court’s ruling in Berger v New York, it is apparent that eavesdropping upon a telephone call was treated as a “seizure” when addressing 4th Amendment concerns (e.g., “Likewise the statute’s failure to describe with particularity the conversations sought gives the officer a roving commission to ‘seize’ any and all conversations“).

There may be later Supreme Court rulings that supersede Berger’s ruling (I didn’t search for one) but on the face of it, it seems that the deprivation of property is not a requirement within the legal definition of “seizure”.

jdc (profile) says:

My main issue is ...

fairly simple. Yes, one can get into a lot of technicalities as to what is copying and such. And frankly, the copying of data in order to see if it meets the collection criteria is a technical necessity. The real question is
“Is the data being examined stored for an unreasonable length of time?” With unreasonable being pretty much anything over a couple of seconds MAX. So NSA would be permitted to sniff all the traffic over the backbone and filter it for legal material and store that legal material. But anything else is forgotten within seconds. And such a method would fit the diagram done by the EFF presentation. But unfortunately, the NSA isn’t doing that. What it looks like the NSA is doing is intercepting the data and storing it for an indeterminate length of time for future queries. And THAT is unacceptable.

rapnel (profile) says:

Re: My main issue is ...

The real question is
“Is the data being examined stored for an unreasonable length of time?”

That is not the real question! That’s what they want you to think is a valid question. It is not even a valid question.

They are seizing and searching and whatever else comes next – without a warrant. That is not legal. It is the mother of all illegal law enforcement wiretaps, like stingrays for your local police force, only bigger, stronger, venomous and clearly, it is the “real question”, the biggest question of my lifetime anyway. Do we hold to the Constitution or do we huddle in senseless, sightless masses to appease those who choose to wield “legality” as they see fit?

If there is no 4th then there is no future.

KRA says:


I still can’t get past the fact that these agencies were given the names of the Boston Marathon bombers and warned ahead of time by the Russians, and they did nothing. The father of the underwear bomber reported to authorities that his son was likely a terrorist and these agencies let him board a US-bound plane, while the rest of us are forced to get cyber-naked at the airports. Security agencies had enough intelligence ahead of time to possibly prevent 9-11 and they did nothing.

Putting aside the, you know, Constitution, how do these agencies reconcile their inability to act on specific information when it’s handed to them with their desire to collect even more information?

I’ll concede that US security is threatened by a lack of intelligence, but it’s not the kind of intelligence the NSA is talking about.

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