Documents: The Domestic Email Collection Program The NSA 'Killed' In 2011 Was Actually Just Offshored

from the the-underwater-dragnet dept

New documents obtained by Charlie Savage of the New York Times (as the result of a FOIA lawsuit) show that the NSA may have killed off its bulk collection of US persons’ emails back in 2011, but it quickly found another way to obtain these — a way that circumvented restrictions on domestic collections.

While that particular secret program stopped, newly disclosed documents show that the N.S.A. had found a way to create a functional equivalent. The shift has permitted the agency to continue analyzing social links revealed by Americans’ email patterns, but without collecting the data in bulk from American telecommunications companies — and with less oversight by the Foreign Intelligence Surveillance Court.

The new document is an Inspector General’s report detailing the NSA’s failure to follow the restrictions laid down by FISC Judge John Bates in his October 3, 2011 opinion. Bates felt the collection of US persons’ email content in this fashion amounted to an illegal wiretap. This would be the same collection the NSA defended (before it was given more power to collect domestic data without a warrant by the 2008 FISA Amendments Act) in the FISA court by claiming an email address was the same thing as a “facility,” because email addresses “facilitate” communications.

So, the reassurances — offered in response to the Snowden leaks — that the program had been shut down are essentially meaningless. The NSA halted a particular collection method, but did not halt the collection of domestic emails.

The report explained that there were two other legal ways to get such data. One was the collection of bulk data that had been gathered in other countries, where the N.S.A.’s activities are largely not subject to regulation by the Foreign Intelligence Surveillance Act and oversight by the intelligence court. Because of the way the Internet operates, domestic data is often found on fiber optic cables abroad.

As Marcy Wheeler points out, the killing of one domestic email collection and initiation of another meant some NSA personnel were very busy during the 2011 holiday season.

Given the length of the redacted date (it is one character longer than “9 December 2011”), we can say with some confidence that Keith Alexander approved the end and destruction of the dragnet between November 10 and 30 — during the same period the government was considering appealing Bates’ ruling, close to the day — November 22 — NSA submitted a motion arguing that Section 1809(a)(2)’s wiretapping rules don’t apply to it, and the day, a week later, it told John Bates it could not segregate the pre-October 31 dragnet data from post October 31 dragnet data.

Think how busy a time this already was for the legal and tech people, given the scramble to keep upstream 702 approved! And yet, at precisely the same time, they decided they should nuke the dragnet, and nuke it immediately, before the existing dragnet order expired, creating another headache for the legal and tech people. My apologies to the people who missed Thanksgiving dinner in 2011 dealing with both these headaches at once.

Not only did NSA nuke the dragnet, but they did it quickly. As I said, it appears Alexander approved nuking it November 10 or later. By December 9, it was gone.

As she goes on to detail, the program the Inspector General was looking for was indeed gone. But the collection itself wasn’t. As far as the IG could tell, the NSA was mostly in compliance. The IG’s report, however, notes its powers to assess the collection, storage and access to email data and content are very limited. As Wheeler puts it, the NSA “ate” its homework before the IG had a chance to assess its compliance.

As to the the intake side,those folks started destroying the dragnet before the IG could come by and check their before status:

“However, S3 had completed its purge before we had the opportunity to observe. As a result we were able to review the [data acquisition database] purge procedures only for reasonableness; we were not able to do the before and after comparisons that we did for the TD systems and databases disclosed to us.”

Poof! All gone, before the IG can even come over and take a look at what they actually had.

Importantly, the IG stresses that his team doesn’t have a way of proving the dragnet isn’t hidden somewhere in NSA’s servers.

“It is important to note that we lack the necessary system accesses and technical resources to search NSA’s networks to independently verify that only the disclosed repositories stored PR/TT metadata.”

The Inspector General’s office appears to have been steered to its conclusion by the NSA, which dumped the data from the places it expected the IG to look (“disclosed repositories”) and utilized a new collection method that wasn’t subject to FISA court restrictions or nearly as much IG oversight.

So, the NSA’s statements about shutting down the email program in 2011 are technically correct. It was shut down. The NSA, however, simply chose to siphon as much domestic data from its overseas collections as possible to ensure it never really had to end its warrantless collection of US persons’ emails.

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Comments on “Documents: The Domestic Email Collection Program The NSA 'Killed' In 2011 Was Actually Just Offshored”

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That One Guy (profile) says:

Ah the perks of working within the government...

Had anyone from the civilian sector tried a similar stunt, they’d be looking at criminal charges for obstruction of justice and destruction of evidence.

Also of note, the fact that they were able to get away with such an action, and the IG basically just went with it, shows just how much power, authority, and most importantly oversight the IG actually has, and that amount would seem to be ‘effectively none’.

Anonymous Coward says:

Re: Re: Re: Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

“only so much that can be done to fix things.”

That is a defeatist attitude.

Anything and everything can be done, we just need to ask ourselves, do we have the constitution to see to it?

The real problem is this, are we going to actively fight it, or are we just going to let it fester until the old resolution to the problem is the one steeped in blood?

Ninja (profile) says:

Re: Re: Re:2 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

Actually he has a point. What he is saying is that voting alone loses its power once politics get contaminated by corruption and money on a systemic level. I’d say it’s not a defeatist attitude, it’s rather a sensible warning that we need to go for a multi pronged strategy. Voting alone does not work anymore.

Zero says:

Re: Re: Re:3 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

Agree. Voting is critical, however, it cannot be the sole method or “fix all” as those would say, given the extent it has been compromised. Not anymore. A new strategy should be considered that includes voting where it can be effective.

This is not the government, repeat, not the government we want or voted for as it does not represent us anymore, so those comments that say we have the government we want or deserve are largely in error. Scrutinize yourself first before applying that to everyone else

That One Guy (profile) says:

Re: Re: Re:3 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

Yeah, that was pretty much the point I was trying to make. When the system itself is corrupted, the idea that voting means people ‘get what they want’ is absurd.

Last I checked most people probably didn’t check a little box on the last few ballots that said ‘YES, I would like my government to spy on me and do everything in it’s power to make me less safe!’ And yet, here we are.

Anonymous Coward says:

Re: Re: Re:4 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

So if your contention is that the voting process is now defunct and not workable that only leaves one alternative.

We have to being to assemble against the government, and when you cannot trust that they will do as they say, that assembly is likely not going to be peaceful.

Anonymous Anonymous Coward says:

Re: Re: Re:5 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

There will need to be much surreptitious planning before that happens, because as soon as some do assemble, those currently drunk with power will call out all their resources to go after those that show up. To be stronger than the armed forces AND the police (both power drunk in some ways themselves) is going to take some doing, and will be absolutely necessary.

Zero says:

Re: Re: Re:5 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

I would caution you on that as the government is ultra sensitive to such language, despite the obligation citizens have to change their government when it no longer works for them. Sadly, that has come under fire as being non patriotic or subversive.

There are multiple alternatives instead of just the one, however, the general sentiment seems to advocate it. Perhaps that is due to a country founded on rebellion, but at the rate things are progressing, we’ll see.

Anonymous Coward says:

Re: Re: Re:6 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

I actually think we can resolve it through the election process if we could stop letting the whole dem vs rep problem we have get in the way.

You cannot get two steps in any election without bigotry flying from either side.

I don’t care who is elected provided they will stop the invasion of the nation by illegals and work on deporting them, discontinuing the whole refugee shit, fighting against the police state, fighting crap like tpp and the whole oligarchy that seems to be running all over capital hill… and last but damn sure not least the complete dismantling of the DHS/TSA and the Spy Job being foisted on America under the guise of fighting a foreign enemy.

The list is long and many, but I think after a couple of election cycles we could make a dent.

Klaus says:

Re: Re: Re:6 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

I’m getting the sense that people think that challenging authority is fraught with danger. Government has a serious handicap; it has to balance it’s policies against the tolerance of the people, and they can really only go so far. You can see this in… …and this was Britain. I’m told Thatcher was scared shitless.

I think what is lacking in opposing increasingly authoritarian government is leadership. Not political leadership as we know it, as political opposition that we can vote for, but leadership of the Mahatma Gandhi, Martin Luther King variety. People outside regular politics. People who can frame an argument and who can stir people.

John Thacker (profile) says:

Re: Re: Re:4 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

most people probably didn’t check a little box on the last few ballots that said ‘YES, I would like my government to spy on me and do everything in it’s power to make me less safe!’

Correct. But most people do believe that “YES, I would like my government to spy on THEM,” where THEM is defined as refugees, criminals, white supremacists, blacks, gun owners, small business owners, large companies, lawyers, terrorists, people who carry around lots of cash, drug users, people on watch lists, unions, high school students, foreigners, or any one of a number of groups that are people unlike them.

The “compromise” is then to spy on everybody, especially because it’s quite difficult to spy on just some people without intercepting all communications and then going through later to filter them. Modern packet switched communications means that getting everything from one person is a lot different than just tapping one phone line.

Just see right now where the Democrats in the US are perfectly willing to defend the stupid watch list (which people get put on for no good reason and can’t get themselves off) if that means that they can use it to keep people from getting guns.

tqk (profile) says:

Re: Re: Re:4 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

We basically broke ties with Britain, the French Beheaded Folks!!

In the first case, we wind up with The Empire of the USA teaching its people geography by invading other countries willy nilly. In the latter case, they wound up with an Emperor, Napoleon, who tried to invade Russia. Kinda, sorta the same result.

It seems both of those are losing (or pointless) strategies. However, at least Mr. Guillotine was entertaining (and the French “upper classes” certainly deserved their comeuppance). It also kept the French out of the British’ hair for a bit, which I suppose was good.

Wendy Cockcroft says:

Re: Re: Re:3 Do you want to be shot in the left leg, or the right leg? 'Not being shot' is not an option

That would result in a bloodbath and even more repression due to the fact that a good chunk of the population have little information to work with and live in echo chambers marked “Kodos” and “Kang.”

What you actually need to do is organise in terms of getting information out there and building consensus on how to effect change. If the Tea Party can hack the system to get their hands on the levers of power, so can we. It’s less shoot-y and bang-y but a lot more effective.

Anonymous Coward says:

Re: Re: Re: Ah the perks of working within the government...

The Intelligence community is pulling the strings for both parties. They collected enough blackmail during domestic spying to allow them to control whoever ends up in Power. See the Senator OBama calls for change versus the president Obama Increase of Department Of Homeland Security budget and power.
NSA is supposed to spy on other nations AND keep other nations from spying on us. They are only doing half of their job, since they are in a perfect position to renegotiate the terms.

Anonymous Coward says:


1) In 2011 they admitted they abused their power and agreed to “shut down” the program

2) Now we see it’s still up, therefore they have continued to abuse that power.

Is Obama still going to say “there have been no abuses” now? And are we finally going to punish them for these abuses or we’ll just let them relocate and rehash the program once again?

Anonymous Coward says:

> Not only did NSA nuke the dragnet, but they did it quickly. As I said, it appears Alexander approved nuking it November 10 or later. By December 9, it was gone.

AHA! So they CAN shut down these programs when told to. I remember in one of the lawsuits against NSA, DOJ whined that it simply “can’t shut it down” to the judge. Unfortunately, judges keep believing their lies.

Anonymous Coward says:


Offshoring is the new favorite method for government agents to avoid any legal restrictions, thanks to courts ruling that legal restrictions do not apply outside US borders. They can “arrest and transport” anyone, based mere accusations. By simply “transporting” them out of the country they are then legally free to do whatever they want to them from that point on. Torture, execution, whatever. It’s all OK.

This is what America has come to.
(thanks largely to the courts)

GEMont (profile) says:

Re: Um... if this data is offshore...

What’s the chances that it is stored in plaintext and accessible to every other national or industrial spy that wants a peek?

Its probably minimally encrypted, because then “every other national or industrial spy that wants a peek”, needs to pay the CIAF BIN SADOJ’s transfer charges for their desired data packs.

They are doing this for the money after all – any money.

Since they’re obviously unconcerned about terrorists, criminals and other spy agencies as far as being bad guys needing justice, then these other entities are most likely just customers needing data.

Its a matter of “Ka-ching”, rather than one of “catching” any crooks.

Coyne Tibbets (profile) says:

The most dangerous enemy

Foreign terrorists are not NSA’s primary concern. Oh, maybe they watch them, too; just for giggles.

But all of their legal efforts, all of the laws they’ve sought, all their reinterpretations of the law that exists, all of the arguments they’ve made, their strategies for concealing their data sources, and now their outsourcing of data collection to other countries; these all demonstrate the same thing: the NSA’s primary concern is U. S. citizens. Ordinary, everyday, U. S. citizens.

I think NSA doesn’t care about foreign nationals, because U. S. citizens are the most dangerous enemy, in their view.

Allen (profile) says:

Re: The most dangerous enemy

I think you’re suffering from an availability bias.

No one talks about the NSA surveilling us foreigners anymore because we’re fair game. All recent debate has been over US domestic surveillance because well, that’s un-American and Constitution!

Don’t worry the NSA is still monitoring foreigners it’s just that no one talks about it anymore.

Allen (profile) says:

How does this off shoring work?

If they are still tapping the fibers within the US then what they are doing is still domestic surveillance. It doesn’t matter where they store the data.

If they have fallen back on taps on international cables and or whatever the 5 eyes share, then they can’t be capturing much communication between parties located within the US. Practically all communications has got to involve at least one party located in foreign parts, where there is no longer any debate: foreigners are not protected by US law.

So how does it work?

Anonymous Anonymous Coward says:

Re: How does this off shoring work?

The four eyes that are not the US do the collection and then ‘share’ what they collect with the US.

The question I get out of that is, ‘is the data ever shipped back to the US for analysis’, and is THAT legal? I have the feeling they are just playing semantic games so they don’t get bothered too much.

John Thacker (profile) says:

Re: How does this off shoring work?

How is works is that they have what they call “minimization procedures.” See US Code Title 50 Paragraph 1801 (especially paragraph h) for the definitions and Title 50 Paragraph 1881a> for an example of how it works.

It is technically impossible, with modern packet-switched communication networks, to only capture data from a particular person of interest, or from only non US persons. Data from everyone is all mixed together; it’s not like tapping an analog phone line with clear addressing and phone numbers. One way to deal with that would be to not intercept it at all. The NSA (and other intelligence organizations around the world) does not take that approach.

Instead, they intercept all the data, and then (supposedly) go throw it and discard all the stuff that they’re not allowed to keep, such as that from US persons. They have a time limit in which they’re supposed to do this, legally.

The intelligence community does not consider it “targeting” or “collecting” to intercept a bunch of mass communications. They only consider data “collected” once it has been processed and they’ve discarded (or “minimized”) the US person data and the other stuff that they’re not interested in but collected incidental to their targets.

Feel free to consider all of this ridiculous and a twisting of law and terminology, but that’s how it works.

John Thacker (profile) says:

Re: Re: How does this off shoring work?

You can note that the law makes it illegal to collect inside the US. It is legal to collect outside the United States (defined as in Title 50 Paragraph 1801) so long as US persons are not targeted (without a FISA warrant) and the “minimization procedures” are followed; i.e., stuff is analyzed to discard US person communications within a time limit and before further analysis is done.

Anonymous Anonymous Coward says:

Re: Re: Re: How does this off shoring work?

When performing the 5 eye shuffle while playing semantic games, rules are unimportant. If one player gets too close to a rule, or rules get changed on a player’s home turf, they just pass the ball. It gets quite frenetic, watching five players juggling a few trillion data points while trying to look like they are actually searching haystacks for needles when the are actually charged with looking for terrorists, oh, and avoiding those pesky irrelevant rules thingys. Meanwhile the goal of collect it all is collectively achieved.

Anonymous Coward says:

Corruption is the problem, Not government.

Going after ‘the government’ per se is going after the wrong target. We should be going after the corruption and the corrupters in order to gain back democratic control of our government. It is OUR government. We are the sovereign of ourselves through our government. It is the Oligarchy who has usurped our sovereignty and who needs to be brought to heel. One person one vote, no more or less. Money is not speech. That is the issue to attack.

GEMont (profile) says:

Re: Corruption is the problem, Not government.

We should be going after the corruption and the corrupters in order to gain back democratic control of our government.

I think the vast majority of Americans would be with you on that, if….

– they had someone, some agency to turn to, who could legally do all the things you listed – but its hard to convince or force those who are corrupted – the government officials in charge of doing these things – to punish those who are corrupting them with gifts of yachts, cocaine and bimbos – the government’s corporate owners and directors.

– they had even a smallest bit of trust/faith in the vote process, which, as had been said before, if it were effective in procuring good government, would be illegal. Not to mention that the people running for office are; almost without exception, criminals running for office specifically because of the corruption available for personal gain and who have no intention of shooting the goose that lays golden eggs at their feet.

– they could imagine some possible legal means of making those profiting from the chaos and insanity, stop manufacturing the chaos and insanity.

For instance, how does one go about removing an oligarchy, when that entity is not even officially recognized as existing, and whose existence is indeed denied by all the officials who are supposed to be in charge of preventing exactly that sort of thing from occurring?

While I agree that once you understand the problem, the solutions become clear, I also have to point out that those standard solutions – remove the corruptors – are almost impossible to institute when the very structure of the legal system has been infiltrated and altered from within by the very people you wish to remove.

You cannot attack an issue without the right sort of weapon, or those for whom the issues equate to profit and power, will simply put you away, legally, and through their control of the media, make you look like the bad guy.

ie. Snowden.

Offer some actual solutions for debate and methinks the public will happily follow, if they appear to be doable solutions.

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