ODNI Lawyer Bob Litt Says There's No NSA Data Sharing With Law Enforcement… If You Don't Count The FBI, DEA, Etc.

from the a-fine-guest-post-full-of-classic-debunkables dept

Just when we thought some surveillance reforms might stick, the administration announced it was expanding law enforcement access to NSA data hauls. This prompted expressions of disbelief and dismay, along with a letter from Congressional representatives demanding the NSA cease this expanded information sharing immediately.

This backlash prompted Office of the Director of National Intelligence General Counsel Robert Litt to make an unscheduled appearance at Just Security to explain how this was all a matter of everyone else getting everything wrong, rather than simply taking the administration at its word.

There has been a lot of speculation about the content of proposed procedures that are being drafted to authorize the sharing of unevaluated signals intelligence. While the procedures are not yet in final form, it would be helpful to clarify what they are and are not. In particular, these procedures are not about law enforcement, but about improving our intelligence capabilities.

As Litt explains it, everything about this is lawful and subject to a variety of policies and procedures.

These procedures will thus not authorize any additional collection of anyone’s communications, but will only provide a framework for the sharing of lawfully collected signals intelligence information between elements of the Intelligence Community. Critically, they will authorize sharing only with elements of the Intelligence Community, and only for authorized foreign intelligence and counterintelligence purposes; they will not authorize sharing for law enforcement purposes. They will require individual elements of the Intelligence Community to establish a justification for access to signals intelligence consistent with the foreign intelligence or counterintelligence mission of the element. And finally, they will require Intelligence Community elements, as a condition of receiving signals intelligence, to apply to signals intelligence information the kind of strong protections for privacy and civil liberties, and the kind of oversight, that the National Security Agency currently has.

So, this all sounds like it has nothing to do with law enforcement. Just intelligence “elements” from the community. Except that law enforcement and intelligence agencies are hardly separate entities. We already know the NSA is allowed to “tip” data to the FBI if it might be relevant to criminal investigations. There’s no clear dividing line between intelligence and law enforcement — not with law enforcement’s steady encroachment into national security territory. When Litt says “only intelligence agencies,” he’s actually referring to several law enforcement agencies, as Marcy Wheeler points out.

As a threshold matter, both FBI and DEA are elements of the intelligence community. Counterterrorism is considered part of FBI’s foreign intelligence function, and cyber investigations can be considered counterintelligence and foreign intelligence (the latter if done by a foreigner). International narcotics investigations have been considered a foreign intelligence purpose since EO 12333 was written.

In other words, this sharing would fall squarely in the area where eliminating the wall between intelligence and law enforcement in 2001-2002 also happened to erode fourth amendment protections for alleged Muslim (but not white supremacist) terrorists, drug dealers, and hackers.

So make no mistake, this will degrade the constitutional protections of a lot of people, who happen to be disproportionately communities of color.

And, to go back to Litt’s statement, the whole thing starts with a dodge:

These procedures will thus not authorize any additional collection of anyone’s communications…

This is something no one has actually claimed. What people are concerned about is the NSA using its massive collection abilities to become an extension of domestic law enforcement, rather than the foreign-focused entity it’s supposed to be.

And, as for Litt’s claims that everything is subject to clearly-defined rules on minimization, those are also false. First off, the expanded permissions originate under Executive Order 12333, which has been revised in secret on more than one occasion — all without the full participation of Congressional oversight. Not only that, but agencies that are recipients of unminimized data from the NSA are supposed to apply their own minimization procedures to better ensure “strong protections for privacy and civil liberties.” Wheeler notes that two recipients have yet to put any minimization procedures in place, despite having had years to do so.

I also suspect that Treasury will be a likely recipient of this data; as of February 10, Treasury still did not have written EO 12333 protections that were mandated 35 years ago (and DEA’s were still pending at that point).

The backdoor search loophole has yet to be closed (which gives the FBI access to unminimized data and communications obtained via Section 702) and these agencies — along with two consecutive, very compliant administrations — have been tearing down any walls between the NSA and law enforcement for several years now.

Litt’s reassurances are worthless. It namechecks all the stuff we know is mostly worthless: oversight, minimization procedures, the frankly laughable idea that the FBI cares more about privacy and civil liberties than making busts, etc. and asks us to believe that a tangled thicket of secretive agencies and even-more-secretive laws are all designed to protect us from government overreach.

Filed Under: , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “ODNI Lawyer Bob Litt Says There's No NSA Data Sharing With Law Enforcement… If You Don't Count The FBI, DEA, Etc.”

Subscribe: RSS Leave a comment
Anonymous Coward says:

Re: Re: Erosion of Rights

If you think that something like a “violent revolution” is even possible then you should read the news. Right at this moment there are drones flying above the US. Good luck against those and if you think you can even manage to start a group of people thinking the same like you then well… you are a terrorist.
And as we all know it is OK to kill US citizens without a trial if their father was a terrorist on the chance that the son might become one in the future. So guess what will happen to you, your family, your friends and people you spoke too.

Coyne Tibbets (profile) says:


The intelligence agencies are not “foreign-facing.” Their pretensions otherwise are necessary to achieve their domestic aims.

It is obvious that the exemptions written in law, all those “re-interpretations” of the law, all the NSLs, and the FISC interception orders aren’t about foreigner nationals or foreign lands, because neither are subject to Constitutional protections: seeking exemptions is a waste of time and effort.

When intelligence agencies expend time and effort to seek an exemption from the law or Constitution, it is to accomplish surveillance of citizens who are (were) protected.

Anonymous Coward says:

To get a clue if you don’t already, all you have to do is look at what happened when OWS fired up. A completely peaceful protest suddenly feels like a serious threat to the elites of banking and Wall Street.

The cops are out taking photos of everyone, the FBI gets involved, Fusion centers are used, the DHS is involved, and then so everyone can gang bang on it, they are labeled terrorists to be able to drag in the rest of the security branches.

Since it was peaceful and continually stressed to be this, someone had to rig the thing where the cops could do something besides just stand around and watch. After all if it is peaceful then there is no call for the cops to be involved. So the mysterious anarchists show up who break a few store windows, the cops of Oakland are telling the homeless, especially the ones that are mentally unstable that there is free food at the protest, and on it goes.

Today a protest is a call for all hands as far as the government is concerned. The only thing they can seem to used to allow all hands is the label of terrorist.

Would that terrorists be so gentle I don’t think we’d need all this security.

Self-Reflexive Code says:

Ol' Barry just finishing what "W" started...

There’s has been little to no substantial difference between the two administrations. If you don’t recognize or believe that the US is a police/surveillance state then you’re an absolute moron.

I do appreciate the Obama administration for waking me up to the fact that it doesn’t really matter who is President. Every four years we participate in a ceremony of swapping out old cogs for new ones and the machine keeps rolling along.

I feel ashamed to have allowed myself to be hoodwinked by buying into the rhetoric of Obama the Senator. Take note Trump and Bernie supporters: there will be no substantiative changes under them. Book it. I for one will not be fooled again.

Anonymous Coward says:

“the administration announced it was expanding law enforcement access to NSA data hauls”

We can not let this info get out in the wild, otherwise the future of the IOT will suffer.

Why would anyone connect their appliances to the internet in the first place, but after having been make aware of the potential consequences this becomes even more amazing. Are people really this ignorant?

Anonymous Coward says:

Re: Re:

Are people really this ignorant?

A lot of people believe that if you have nothing to hide then you have nothing to fear from the government. What they do not realize is that any opposition to the government of the day is something that will get their lives crawled over in detail for any material that can be used to harass them, and justify placing them on various lists..

Anonymous Coward says:

Gov dict

As long as there is a secret interpretation of the English language all those ABC agencies should not exist or be very silent.

My personal favorite: imminent
Meaning to the public: soon
Meaning to the gov: any time in the future

In sentence
Iran is an imminent threat.
Public: Omg, Iran will nuke us in a month!
Gov: Iran might be able to nuke the US in 100 years.

That One Guy (profile) says:

Freudian slip?

So if they want to claim that they’re not sharing the data with ‘law enforcement’ agencies, but they are sharing it with a multitude of government agencies, it seems the only way that could make sense is if none of those agencies are in any way involved in law enforcement.

Given the various actions by those agencies, who seem to have only a passing familiarity with those ‘law’ things such a claim would seem to be accurate, though I don’t imagine said agencies would be too keen to admit it.

Anonymous Coward says:

So exactly what kind of Chinese wall is the FBI expected to implement?

The key word here is “unevaluated”. This puts the responsibility for distinguishing between jurisdictions in the hands of the FBI. And that pretty much guarantees more parallel construction.

Probably a better approach would be to use a model similar to forward air controllers. There should be an liason officer working for the FBI, at the NSA’s facility whose duty is to fetch data relevant to state actors. That way the respective reports can be easily audited, and everybody experiences less friendly fire.

Of course the FBI doesn’t want that. Once data is inside the beltway it is going to be disseminated to everybody and their mother. So the current way certainly creates more plausible deniability if there are just big blocks of compressed files flying around.

However it also creates exactly the environment required to allow the NSA to use the FBI as a cats paw. The FBI becomes a potential unwitting participant in domestic intelligence operations, up to, and potentially including a coupe de’ tete, just by feeding the FBI bogus data.

And THAT is why you don’t do this. Everything else is small potatoes.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...