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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  • icon
    That One Guy (profile), 23 Nov 2015 @ 4:24am

    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'.

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

    • identicon
      Anonymous Coward, 23 Nov 2015 @ 6:23am

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

      We keep voting in the turds that gave these fucks their power.

      The People have the government they want!

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

      • icon
        That One Guy (profile), 23 Nov 2015 @ 6:30am

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

        When your choice is 'Corrupt person A' or 'Corrupt person B', and oh by the way the people in the system who you can't elect or vote out are also corrupt, only so much that can be done to fix things.

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

        • identicon
          Anonymous Coward, 23 Nov 2015 @ 6:52am

          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?

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

          • icon
            Ninja (profile), 23 Nov 2015 @ 7:26am

            Re: Re: 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.

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

            • identicon
              Zero, 23 Nov 2015 @ 7:50am

              Re: Re: Re: 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

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

            • icon
              That One Guy (profile), 23 Nov 2015 @ 8:06am

              Re: Re: Re: 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.

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

              • identicon
                Anonymous Coward, 23 Nov 2015 @ 8:16am

                Re: Re: Re: Re: 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.

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

                • identicon
                  Anonymous Anonymous Coward, 23 Nov 2015 @ 8:24am

                  Re: Re: Re: Re: Re: 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.

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

                • identicon
                  Zero, 23 Nov 2015 @ 8:33am

                  Re: Re: Re: Re: Re: 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.

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

                • icon
                  Ninja (profile), 23 Nov 2015 @ 9:09am

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

                  This is one of the possibilities. I wonder if it will be the only one that works... But there are other venues people are trying before reaching this extreme.

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

                  • identicon
                    Anonymous Coward, 23 Nov 2015 @ 9:28am

                    Re: Re: Re: Re: Re: Re: 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.

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

                  • identicon
                    Klaus, 24 Nov 2015 @ 2:33am

                    Re: Re: Re: Re: Re: Re: 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... https://en.wikipedia.org/wiki/Poll_Tax_Riots ...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.

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

              • identicon
                John Thacker, 24 Nov 2015 @ 6:55am

                Re: Re: Re: Re: 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.

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

          • identicon
            Anonymous Coward, 23 Nov 2015 @ 12:31pm

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

            revolution or civil war is the question

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

            • identicon
              Digitari, 23 Nov 2015 @ 12:54pm

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

              More accurately, American revolution or French; We basically broke ties with Britain, the French Beheaded Folks!!

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

              • icon
                tqk (profile), 23 Nov 2015 @ 4:22pm

                Re: Re: Re: Re: 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.

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

            • identicon
              Wendy Cockcroft, 26 Nov 2015 @ 2:57am

              Re: Re: Re: 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.

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

        • identicon
          Anonymous Anonymous Coward, 23 Nov 2015 @ 7:03am

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

          Dem britches is too big for dem bitches. Nuff NSA, Nuke em!

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

      • identicon
        Anonymous Coward, 23 Nov 2015 @ 6:32am

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

        Doesn't matter who you vote in power on this subject. The fucks have dirt on every turd...

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

        • identicon
          Anonymous Coward, 23 Nov 2015 @ 6:38am

          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.

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

    • identicon
      gezzerx, 23 Nov 2015 @ 2:24pm

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

      Unaccountable power is absolute power, & is absolutely corrupt !

      Tyranny is defined as that which is legal for the government but illegal for the citizenry."
      Thomas Jefferson.

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

  • identicon
    Anonymous Coward, 23 Nov 2015 @ 6:31am

    Time to start paying for email, or setting up your own server. At least you get the choice of naming your own poison. Please be very vigilant when utilizing anything you believe to be free. Liberty and justice for all? No, just for the 1%, they can afford it.

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

  • identicon
    Anonymous Coward, 23 Nov 2015 @ 7:00am

    Add a little fiber optic loop that crosses the border

    and voila! The data is now coming from a *foreign* source.

    That little loop is what was *really* going on in Room 641A.

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

  • identicon
    AC42, 23 Nov 2015 @ 7:59am

    "and with less oversight by the Foreign Intelligence Surveillance Court."

    Is this even possible?

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

  • identicon
    Anonymous Coward, 23 Nov 2015 @ 8:17am

    So

    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?

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

  • identicon
    David, 23 Nov 2015 @ 8:27am

    If you cannot fix it...

    It does not seem like it would be feasible to stop the illegal activities of the NSA.

    Since the NSA is apparently not salvageable to keep it operating within constitutional boundaries, there is really no alternative to dismantling it. The longer one waits, the more they will expand their criminal operations.

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

  • icon
    John Fenderson (profile), 23 Nov 2015 @ 8:33am

    Say it ain't so!

    An agency with such a sterling reputation for honesty and benevolence turns out to be a big fat liar? Who would have seen that coming? /sarc

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

  • identicon
    Anonymous Coward, 23 Nov 2015 @ 9:45am

    > 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.

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

  • identicon
    Anonymous Coward, 23 Nov 2015 @ 12:28pm

    What a shock. Instead of discontinuing their illegal actions they just said they would and continued to break the laws.

    Yet no one goes to jail over it and the message is sent pay lip service to the courts and do whatever the hell you want.

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

  • identicon
    Anonymous Coward, 23 Nov 2015 @ 12:50pm

    Offshoring

    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)

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

  • icon
    Uriel-238 (profile), 23 Nov 2015 @ 2:12pm

    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?

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

    • icon
      GEMont (profile), 25 Nov 2015 @ 12:40pm

      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.

      ---

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

  • icon
    Coyne Tibbets (profile), 23 Nov 2015 @ 2:56pm

    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.

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

    • icon
      Allen (profile), 23 Nov 2015 @ 3:58pm

      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.

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

  • icon
    Allen (profile), 23 Nov 2015 @ 3:41pm

    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?

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

  • identicon
    Anonymous Coward, 23 Nov 2015 @ 10:58pm

    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.

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

    • icon
      GEMont (profile), 24 Nov 2015 @ 4:26pm

      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.

      ---

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

  • icon
    GEMont (profile), 24 Nov 2015 @ 12:19pm

    I cannot believe that there is anyone alive who did not see this coming.

    Remove one head and two more will take its place.

    Hail Hydra!!!

    ----

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

  • identicon
    Anonymous Coward, 24 Nov 2015 @ 2:25pm

    When the fuck did they ever think they had the right

    Imperialistic idealogies guarantees blowback, one is the manufacturer of the other.......while peer pressure gives the false sense of OUR goodness in our actions, without actually thinking about them

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


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