Things The Intelligence Community Is Cool With: Backdoor Searches, Skirting Reporting Requirements, Parallel Construction

from the it's-pretty-clear-the-FBI-needs-more-direct-oversight dept

More answers have been provided to Senate Intelligence Committee questions (most of those penned by the always-inquisitive Ron Wyden) by the Office of the Director of National Intelligence. Some, like how often the NSA "incidentally" collects domestic communications, remain unanswered. But the ODNI's answers [PDF] -- given to the Committee in July -- have finally been made public. There are a few things worth noting in this rare display of transparency. (By which I mean a lack of redactions, rather than expansive openness by the ODNI).

To begin with, the ODNI argues the new amicus position created by the USA Freedom Act is harmful to national security. Its theory? Any delays caused by the introduction of some semblance of an adversarial process only slows the NSA down.

The appointment of an amicus curiae is not without effect. Notably, it is likely to increase the time needed for the government to obtain the authorities it is seeking. For instance, in 2015 when the FISC appointed an amicus curiae in connection with its review of the Section 702 certifications, the Court ultimately extended the time for its consideration of the 2015 Section 702 certifications by 90 days, issuing an opinion and order approving those certifications more than two months alter the statute otherwise would have required. As the government noted at that time, such a delay could be harmful to national security under certain scenarios, for instance if the government were to submit an additional certification or make an important time sensitive change in the Section 702 targeting or minimization procedures.

This sounds a lot like law enforcement's continual annoyance at warrant requirements. Respecting things like the Fourth Amendment and the idea of checks and balances just takes too long -- even when it means spending a hour trying to talk someone into granting consent for a search, rather than phoning a judge to get a warrant sworn out. The ODNI's complaint is, basically, it doesn't want anyone arguing for the rights of Americans (who get swept up in collections and deliberately targeted by the FBI) or on behalf of the rest of the world the NSA views as little more than a prolific source of data.

Wyden also wanted to know who's allowed to unmask US persons in NSA collections. The ODNI answered "any authorized recipient" of NSA intelligence, which hardly answers the question. Drilling it down a little further, the ODNI noted it has 20 individuals in the NSA who can authorize unmasking. There are doubtless many more in the FBI, which can use 702-derived collections to search for evidence of nearly any criminal activity or just browse stuff if it can be argued the information is already "publicly available." The decision to unmask US persons in the FBI is left to "agents and analysts" conducting "fully predicated investigations."

As for its all-but-abandoned duties to inform defendants of the use of Section 702-derived evidence, the ODNI explained it will almost never have to do this because of parallel construction.

As we have publicly stated previously, the Department has concluded that in determining whether information is "derived from" FISA-authorized surveillance, including Section 702, the appropriate standards and analyses are similar to those applied in the context of surveillance conducted pursuant to the criminal Wiretap Act, Title of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2522. As such, the "derived from" standard incorporates a "fruit of the poisonous tree" analysis analogous to that conducted under the Fourth Amendment exclusionary rule context. The general question under a "fruits" analysis is whether the evidence was acquired as an indirect result of the surveillance, taking into account doctrines such as independent source, inevitable discovery, and attenuation.

In other words, if there's any way the government could have conceivably obtained this evidence -- rather than the way it actually did it -- the DOJ can bypass its notification obligations.

As for the number of times Intelligence Community components access purely domestic communications -- either directly or "incidentally" -- the ODNI is nowhere closer to providing the numbers explicitly requested by Sen. Wyden on multiple occasions or fulfilling the reporting requirements of USA Freedom Act.

The ODNI claims one recipient of 702 data (the CIA) "does not currently have the technical capability" to track these numbers. According to the ODNI, this capability won't be up and running until the end of 2018. The ODNI goes on to point out the FBI performs no internal tracking of its 702 searches/queries and makes no statement suggesting the agency is even looking into providing these numbers. The NSA, however, performed 30,355 "queries" on US persons' data, using 2,280 "approved" search terms.

The ODNI also explains the difference between a "query" and a "search" in reference to accessing unminimized domestic data and communications. A "query" flags relevant data in existing collections. A "search" actually looks at the contents of communications. In both cases, the ODNI says no warrant is needed. If the domestic communications are swept up lawfully (as part of a FISA-ordained collection), there's no Fourth Amendment violation when content is accessed by a "search." The legal rationale is that the Fourth Amendment is adhered to during the collection process, so it cannot possibly be violated when the collections are accessed by the FBI, NSA, CIA or other IC component.

Wyden's long-running question about incident collection of US persons communications remains unanswered. Questions about the FBI's prolific use of NSA data have been answered with a shrug. The DOJ has been given a pass on its evidence source obligations and IC components have multiple ways of search foreign-facing collections for US persons communications and data, all while supposedly upholding Fourth Amendment ideals. These are the powers the ODNI wants to see renewed for several years with zero changes to the status quo and, given the looks of surviving legislation, its wishes might come true.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    That Anonymous Coward (profile), 6 Dec 2017 @ 4:40am

    They hate us for our freedoms, that we've handed over to be safer.
    We have rights! but only those we are allowed by our secret laws, in secret courts, with secret evidence crafted from secret taps but not disclosed as such because we made it legal to invent evidence.

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

  • identicon
    Anonymous Coward, 6 Dec 2017 @ 5:40am

    I hate to be that guy but it's right there in the title. Here you can have an extra 'S' to fix Contruction...

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

  • identicon
    Anonymous Coward, 6 Dec 2017 @ 5:53am

    (Wyden's long-running question about incident collection of US persons communications remains unanswered.)


    Why does Wyden tolerate his question to go eternally unanswered?

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

    • identicon
      Anonymous Coward, 6 Dec 2017 @ 6:06am

      Re:

      "Why does Wyden tolerate his question to go eternally unanswered?"

      Maybe he thinks that waiting until the next administration takes over (usually) every eight years might yield results. If so, he's mistaken, as the Deep State operates in much the same way no matter if a Republican or Democrat is technically in charge.

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

    • identicon
      Anonymous Coward, 6 Dec 2017 @ 7:25am

      Re:

      Because how much power does he have if the rest of the Senate is okay with the question being unanswered?

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

      • icon
        JoeCool (profile), 6 Dec 2017 @ 9:51am

        Re: Re:

        If he was a peon, he'd be sitting in a jail cell until he agree to answer the question. Again, there's two laws being used here - one for "important" people, and one for the peons.

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

        • icon
          Bergman (profile), 6 Dec 2017 @ 8:50pm

          Re: Re: Re:

          This. Contempt of Congress is still in the law books. Refusing to answer a question asked by a member of Congress can result in indefinite confinement until you choose to answer.

          For the peons, anyway.

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

    • identicon
      Anonymous Coward, 6 Dec 2017 @ 5:38pm

      Re:

      Because those abusing this ability said they'd only answer over their dead bodies, before pointing out that anyone forcing them thus will be arrested for murder before they get a single word.

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

  • identicon
    DONT MAKE ME LAUGH, 6 Dec 2017 @ 6:02am

    well

    they are collecting a lot of penis porn no?

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

  • icon
    DannyB (profile), 6 Dec 2017 @ 6:06am

    Parallel Construction

    Parallel Construction is a euphemism for conspiracy between law enforcement and prosecution to commit perjury before the court about what evidence was used during the investigation in order to produce the evidence being presented in court. The ends justify the means.

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

  • icon
    unrulycow (profile), 6 Dec 2017 @ 8:48pm

    Parallel Construction

    So if I could have obtained something by buying it, it doesn't matter that I did obtain it by stealing it. I can get on board with that logic.

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

  • icon
    Bergman (profile), 6 Dec 2017 @ 8:51pm

    What's sauce for the goose...

    "In other words, if there's any way the government could have conceivably obtained this evidence -- rather than the way it actually did it -- the DOJ can bypass its notification obligations."

    If this is true, wouldn't it apply to classified information as well? You'd only be required to keep a secret if there is no conceivable way you could get ahold of the secret from non-government sources...

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

  • identicon
    Anonymous Coward, 7 Dec 2017 @ 4:15am

    Playpen, because the ends justify the means, and because we are above the law.

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

  • icon
    The Wanderer (profile), 7 Dec 2017 @ 7:40am

    Legal rationale

    The legal rationale is that the Fourth Amendment is adhered to during the collection process, so it cannot possibly be violated when the collections are accessed by the FBI, NSA, CIA or other IC component.

    But... I kind of thought the objection (or one of them) was that the Fourth Amendment is not being adhered to during the collection process.

    Also, how does this fit with the "your privacy is not violated until someone actually looks at the data" line of reasoning, which (IIRC) multiple surveillance defenders have presented? The position taken in that argument is that the collection of the data does not constitute a search, and only when someone looks at the data does a search occur, so as long as no one looks at any collected US-person communications without a warrant the Fourth Amendment is not violated.

    If the collection of the data is not a search, then the Fourth Amendment is not involved at that stage, so the Fourth Amendment's requirements cannot have been satisfied at that point; a warrant must be required at the "someone looks at it" stage.

    If the collection of the data is a search, then the Fourth Amendment's warrant requirement would seem to apply at the collection stage - and no warrant of sufficient particularity to be valid can possibly authorize bulk collection of the volume of data from the multiplicity of sources which is and are involved in practice.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Techdirt Logo Gear
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.