“A lot of it is unrecognizable from a Fourth Amendment perspective,” said Orin Kerr, a former federal prosecutor and Georgetown University Law School expert on surveillance. “It’s not where the traditional Fourth Amendment law is.”
But, have no fear, the General Counsel of the Office of the Director of National Intelligence, Robert Litt, says there’s a reason for that, and it’s all technology’s fault. We’ve covered Litt and his somewhat nutty views on the 4th Amendment and surveillance in the past, so the following isn’t new. But Litt’s main defense of basically all of the NSA’s various abuses and mocking of the 4th Amendment is “it’s technology’s fault.” He’s quoted twice in the article, and both times, it’s all about the tech. First up, an argument that the traditional 4th Amendment doesn’t apply, because technology:
“Computerized scanning of communications in the same way that your email service provider scans looking for viruses – that should not be considered a search requiring a warrant for Fourth Amendment purposes,” said Litt.
Later he is mentioned as making a similar argument.
ODNI’s Litt wrote in a February Yale Law Review article that the new approach was appropriate, in part because so much personal data is willingly shared by consumers with technology companies. Litt advocated for courts to evaluate “reasonableness” by looking at the entirety of the government’s activity, including the degree of transparency.
Indeed, we’ve pointed to Litt making similar arguments many times in the past and it all comes down to “Well, people share this stuff with Facebook/Google/Yahoo, etc.,” so what’s the big deal?
The problem is that this argument is complete nonsense. People are making the decision to share such information with these services in exchange for the value that the service provides them. They have no such “user agreement” with the US government. In fact, the “user agreement” we have with the US government is the Constitution that has a neat clause (also known as the 4th Amendment) that such searches are not allowed. Don’t like it? Too bad. Those are the rules.
Litt’s comments are beyond dishonest. It’s one thing to compare the fact that people willingly give information to tech platforms, but that’s completely different than saying that people are then okay for everyone’s communications to be bulk scanned by the intelligence agencies “just in case” — and all done without a warrant. The fact that technology has changed doesn’t change the Constitution. Litt took an oath to protect the Constitution and he seems to, instead, be focused on doing exactly the opposite: coming up with sleazy rationalizations for why he’d give his stamp of approval on blatantly unconstitutional activity.
Preferred Citation: Robert S. Litt, The Fourth Amendment in the Information Age, 126YALE L.J. F. 8 (2016), http://www.yalelawjournal.org/forum/fourth-amendment-information-age.
To be fair, Litt never says we’re all wrong about the Fourth Amendment and the Third Party Doctrine. He only says Judge Leon is. Judge Leon was the single district court judge who found the bulk collection of phone metadata to be unconstitutional.
Technically, we’re not all wrong, but we may as well be, because no court has found the collection unconstitutional save Judge Leon’s and Litt doesn’t agree with it. Several paragraphs follow, but the crux of Litt’s argument is nothing new: it’s just 1979’s Smith v. Maryland decision all over again.
I do not think that Judge Leon’s efforts to distinguish Smith were successful. First, while Judge Leon is certainly right that metadata can be very revealing of personal activities, there is nothing new about that insight. Justice Stewart dissented from the decision in Smith itself in part because he recognized that metadata “easily could . . . reveal the most intimate details of a person’s life.” The point of Smith was not that metadata is innocuous, but that you have chosen to reveal it to a third party. To use an analogy, if you give a document to a third party, you have lost your expectation of privacy in that document, whether it is a laundry ticket or a confession of mortal sin. Moreover, the fact that cell phones today contain a lot of information beyond metadata does not seem relevant when the government did not actually search or collect any of that other information.
[I] find it hard to understand the alchemy by which information that you choose to disclose to a third party develops an expectation of privacy because you have chosen to disclose a lot of that information. That seems counter-intuitive to say the least. For all of these reasons, if you accept Smith’s holding that there was no expectation of privacy in the telephone metadata in that case because it had been voluntarily exposed to a third party, you can’t conclude there was an expectation of privacy in the metadata in this case.
The thing is that while people may voluntarily agree to hand over certain information to service providers (and it’s safe to say the “agreement” is anything but “voluntary”), they do not naturally assume the service provider will share this — no questions asked or warrants demanded — with anyone else who comes asking for it. That’s where the reliance on Smith v. Maryland fails. “Choose to disclose” is much different than “forced to disclose.” And it’s not as if it can truly be said phone users relinquish all ownership of that data. It’s specifically tied to them and they “share” it with service providers — which if that’s how Litt wants to interpret the interaction, he should at least be honest and give both parties some sort of ownership, along with the privacy expectations that go with it.
A lot of the rest of it is given over to Litt’s displeasure that courts have even granted plaintiffs standing in bulk metadata program lawsuits. Whatever the Third Party Doctrine doesn’t shut down, the plaintiffs’ inability to claim anything more than theoretical rights violations by programs the government refused to discuss publicly should have seen the cases tossed immediately. He agrees the framework is there for massive violations of privacy but these actually damaging acts simply never occurred. But abuses did occur and were covered up by the NSA, nearly resulting in the program being shut down back in 2008 by FISC Judge Reggie Walton.
This fact undercuts Litt’s assertions in defense of the now-curtailed program.
For several years, and with judicial authorization, the NSA collected metadata in bulk about U.S. phone calls from telephone companies for counterterrorism purposes. The metadata was kept in secure databases. It could only be accessed by a few specially trained NSA analysts, and then only to identify telephone numbers in contact with so-called “seed” numbers as to which there was a reasonable and articulable suspicion of an association with terrorism—such as, for example, a number used by a suspected terrorist.
First off, the program was accessed by more than just a “few” specially trained analysts. It was a free-for-all until the FISA Court shut that down. Second, the reasonable, articulable suspicion standard wasn’t always applied to searches of the database. For a period of time, NSA analysts ran searches against an “Alert List” of numbers the FISA Court had never approved for use — i.e., no RAS declaration was made by the NSA to support additions to the list used for searches of the bulk data. Some of these numbers were added simply because they were two or three hops away from an RAS-supported number, meaning there was nothing supporting the use of these “connected” numbers as new “seeds” for database searches and contact chaining.
What Litt does get right is that the NSA has done itself no favors with its decades of opacity.
Where we fell short was on the third leg of the stool, transparency. There would have been less damage to the Intelligence Community from the disclosures of the last couple of years had we been more forthcoming about our activities before those leaks. Obviously, intelligence activities have to be conducted with some degree of secrecy, and the same is true of some law enforcement activities. Specific methods and targets of surveillance have to be protected. But if we don’t discuss what we are doing and how we are regulating it even in general terms, we cede the field to those who are hostile to intelligence activities.
And, perhaps inadvertently, Litt lets us know President Obama is just as big a fan of the NSA as his predecessor was.
A decision by Congress to authorize certain activities under certain controls, made after discussion and debate, should be a strong factor in support of the reasonableness of those activities. Congress is going to have a number of opportunities to address these issues. For example, Section 702 expires at the end of 2017, and there are continued efforts to modernize the Stored Communications Act. It may be too much to hope that in the current political environment, Congress could have a dispassionate and comprehensive discussion about such weighty issues, but the Executive Branch would welcome such a discussion.
Given the selection of presidential frontrunners, I have no reason to believe Litt’s assessment of the situation will be any less accurate by the time the Section 702 expiration date rolls around.
We already wrote about the Obama administration considering its options on how to handle the whole “going dark” debate concerning backdooring encryption. The key point in all of that is that there is no chance in hell that backdoors will be mandated by law. The administration recgonizes that’s a lost cause. However, within the Washington Post’s article that revealed this, there was also a somewhat disturbing argument from the losing side of this battle. The intelligence community seems to be gleefully awaiting the next terrorist event, knowing that it can then reintroduce its push for backdoors:
Although ?the legislative environment is very hostile today,? the intelligence community?s top lawyer, Robert S. Litt, said to colleagues in an August e-mail, which was obtained by The Post, ?it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.?
There is value, he said, in ?keeping our options open for such a situation.?
In other words, Litt admits that his side has lost this battle, but he doesn’t want the administration to come out totally against legislation, because, you know, if there’s an attack, then maybe the idiots in the public will finally accept the intelligence community shoving backdoors down their throat. After all, such a plan worked out pretty well with the PATRIOT Act, which took a bunch of bad and rejected ideas and rushed them into law. In fact, it’s almost amazing that the law enforcement community didn’t get backdooring encryption into the PATRIOT Act back in 2001 in the first place…
Either way, given this, it really looks like Litt is hoping for another attack to get through, just so he can better spy on people. Why are these people in positions of power again?
By now, one hopes, you’ve seen this video of James Clapper lying to Senator Ron Wyden and the American public while testifying before Congress in early 2013:
Here’s the key transcript:
Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
Clapper: No sir.
Wyden: It does not?
Clapper: Not wittingly. There are cases where they could, inadvertently perhaps, collect?but not wittingly.
This was a lie. Many people believed it was a lie at the time, but that was confirmed thanks to the documents leaked by Ed Snowden, who later claimed that seeing that bit of testimony helped convince him that he needed to go through with his plan to leak this information.
James Clapper, of course, is the Director of National Intelligence, and the heads of the various intelligence agencies basically report in to him. He’s still in that job, which many people argue is a complete travesty. He flat out lied to Congress and got away with it.
What’s been really odd is that the story as to why Clapper lied seems to keep changing. When questioned about this, Clapper’s initial response was that he thought that Wyden was asking about collection of email information, which is clearly not the case if you just listen to the actual question. Wyden, pretty clearly, says “any type of data at all.” About a week later, Clapper changed his story, saying that he believed the question was an unfair “loaded question” (he compared it to the “when did you stop beating your wife” type of question — even though it’s not that at all) and then said that he gave “the least untruthful answer.”
This didn’t make much sense either — and it made even less sense when Senator Wyden revealed that he didn’t just spring this question on Clapper, but had sent it to Clapper’s office a day ahead so he could review the question and be aware of what he was to be asked. On top of that, Wyden revealed that after Clapper’s answer — which Wyden knew was false — Wyden staffers sent a letter to Clapper asking him if he wanted to amend his answer, and Clapper’s office refused to do so.
Finally, about a month later, Clapper finally admitted that he lied, now claiming that it was all a “mistake.”
“mistakes will happen, and when I make one, I correct it.”
Except… he had been given the chance to correct it and he didn’t. It was only after it was publicly revealed (via Snowden and Glenn Greenwald) that Clapper was outright lying that he claimed he made “a mistake.” But, even then, it only came after pretending he misheard the question, then claiming that it was a loaded question (when it was not). And then, of course, months later, Clapper could pretend, with the benefit of hindsight, that he should have been more forthright about the program, but that’s difficult to believe. And none of it matters, because the DOJ refuses to investigate Clapper for lying.
And yet, Clapper’s story continues to keep changing. Late last year, he tried to rewrite the story, suggesting that he was sandbagged and caught off-guard, rather than lying:
?When I got accused of lying to congress because of a mistake … I had to answer on the spot about a specific classified program in a general, unsecure setting.?
?This was not an untruth or a falsehood. This was just a mistake on his part,? Robert Litt, the general counsel for the Office of the Director of National Intelligence, said during a panel discussion hosted by the Advisory Committee on Transparency on Friday.
?We all make mistakes.?
Litt on Friday said that Clapper merely did not have a chance to prepare an answer for Wyden and forgot about the phone records program when asked about it on the spot.
?We were notified the day before that Sen. Wyden was going to ask this question and the director of national intelligence did not get a chance to review it,? Litt said.
?He was hit unaware by the question,? Litt added. ?After this hearing I went to him and I said, ?Gee, you were wrong on this.? And it was perfectly clear that he had absolutely forgotten the existence of the 215 program.?
Instead, Litt said, Clapper had been thinking about separate programs authorized under Section 702 of the Foreign Intelligence Surveillance Act, which the NSA has used to collect massive amounts of foreigners? Internet data. The law explicitly prohibits the government from gathering the same kind of data about Americans, unless t is ?incidental.?
?If you read his answer it is perfectly clear that he was thinking about the 702 program,? Litt said. ?When he is talking about not wittingly collecting, he is talking about incidental collection.?
Litt, he said, also erred after the hearing by not sending a letter to the panel to correct the mistake.
First of all, while Litt at least is admitting that Wyden had sent the question in beforehand, he leaves out the part about Wyden asking Clapper’s office the next day if it wanted to amend Clapper’s answer. If it’s true that Litt immediately told him that Clapper was wrong, then you would think when asked by Wyden if he wanted to amend his answer, he would have done so. He did not. So either Litt told Clapper he was wrong and Clapper said, “Hey, let’s let that lie stand,” or Litt is not being truthful here either. It wasn’t just them not sending a letter correcting the mistake, but it was directly rejecting Wyden’s staff specifically asking them if they wanted to correct the record. That shows that any claim that Clapper just “forgot” or even “misspoke” has to be a flat out lie, since he had a clear opportunity to correct the mistake and was even asked to do so, and consciously chose not to do so.
But much more importantly, considering just how much Clapper and others have been prattling on for years about how “crucial” and “important” the bulk phone records collection is in protecting the American public, it is simply unbelievable to argue that Clapper would “forget” about the program. Either that means the program is not important at all… or that someone is lying.
The fact that Clapper’s story on this keeps changing suggests he still can’t come to admit the obvious answer: he didn’t want to reveal his beloved secret program, and so he lied. He just flat out lied. And he’s still lying in failing to admit that.
The Guardian is running a fascinating excerpt from Luke Harding’s upcoming book, entitled The Snowden Files: The Inside Story of the World’s Most Wanted Man. The excerpt is entitled How Edward Snowden went from loyal NSA contractor to whistleblower, but that’s not entirely accurate. Most of that story has already been told, and what’s repeated of Snowden’s thought process isn’t particularly new or enlightening. What is much more interesting are some of the details in the immediate run up and aftermath to the Guardian publishing that first story on a Wednesday evening. First, there’s the way the US government tried to pressure the Guardian not to run the story:
Events were moving at speed. MacAskill had tapped out a four-word text from Hong Kong: “The Guinness is good.” This code phrase meant he was now convinced Snowden was genuine. Gibson decided to give the NSA a four-hour window to comment, so the agency had an opportunity to disavow the story. By British standards, the deadline was fair: long enough to make a few calls, agree a line. But for Washington, where journalist-administration relations sometimes resemble a country club, this was nothing short of outrageous. In London, the Guardian’s editor-in-chief, Alan Rusbridger, headed for the airport for the next available New York flight.
The White House sent in its top guns for a conference call with the Guardian. The team included FBI deputy director Sean M Joyce, a Boston native with an action-man resume – investigator against Colombian narcotics, counter-terrorism officer, legal attache in Prague. Also patched in was Chris Inglis, the NSA’s deputy director. He was a man who interacted with journalists so rarely, he was considered by many to be a mythical entity. Then there was Robert S Litt, the general counsel to the Office of the Director of National Intelligence. Litt was clever, likable, voluble, dramatic, lawyerly and prone to rhetorical flourishes. On the Guardian side were Gibson and Millar, sitting in Gibson’s small office, with its cheap sofa and unimpressive view of Broadway.
By fielding heavyweights, the White House had perhaps reckoned it could flatter, and if necessary bully, the Guardian into delaying publication. Gibson explained that the editor-in-chief – in the air halfway across the Atlantic – was unavailable. She said: “I’m the final decision-maker.” After 20 minutes, the White House was frustrated. The conversation was going in circles. Finally, one of the team could take no more. Losing his temper, he shouted, “You don’t need to publish this! No serious news organisation would publish this!” Gibson replied, “With the greatest respect, we will take the decisions about what we publish.”
“Gibson” is Janine Gibson, the Guardian US’s editor. But the really scary part of the story is what came next, which, as far as I know, hadn’t been reported anywhere else until now:
That evening, diggers arrived and tore up the sidewalk immediately in front of the Guardian’s US office, a mysterious activity for a Wednesday night. With smooth efficiency, they replaced it. More diggers arrived outside Gibson’s home in Brooklyn. Soon, every member of the Snowden team was able to recount similar unusual moments: “taxi drivers” who didn’t know the way or the fare; “window cleaners” who lingered next to the editor’s office. “Very quickly, we had to get better at spycraft,” Gibson says.
Some of those may be coincidences. When you think the world is out to get you, plenty of ordinary activity may look extra suspicious. Of course, on the flip side, as the saying goes: just because you’re paranoid doesn’t mean they’re not out to get you. The story of having diggers tearing up the sidewalk that night, both in front of the Guardian’s office and in front of Gibson’s home, are the ones that seem extra suspicious and extra troubling. Remember, this came right about the same time that the DOJ was getting shellacked for targeting journalists, and was in the middle of promising that it wasn’t going to do that any more. But, what are promises when you have an angry surveillance state coming down on you, knowing that a bunch of their most stupid programs were about to be exposed?
The ODNI’s head counsel, Robert Litt, had made statements over the past few months that seem to hint that he’s actually some sort of android, rather than a living, breathing human being. Maybe this is what happens to anyone who spends too long on the inside of the intelligence panopticon. When delivered in the real world, arguments that sounded plausible in the echo chamber give off the eerie tone of a not-quite-human “being” badly in need of an empathy chip upgrade.
“Why is it that people are willing to expose large quantities of information to private parties but don’t want the Government to have the same information?”
It almost sounds reasonable until you consider what’s being asked. “Why do people voluntarily give up information in exchange for services they find appealing/ useful but remain opposed to involuntarily having their data harvested by a secretive government agency?” There’s a huge difference between the two, but Litt’s cyborg mind fails to spot the gap. Data is data, he argues. If you’re already sharing, why not let the government have a taste? [Of course, the whole argument is largely moot as the government already has access to this data anyway.]
2. November 5th – While meeting with the Privacy and Civil Liberties Oversight Board, Litt makes this claim:
In theory, storing the data with the companies, instead of at the NSA, would allow the telcos to serve as a kind of privacy watchdog. They’d be in a position to examine the government’s requests for information about their customers and possibly to object to them in court.
But the intelligence lawyers warned that Americans’ would be subject to even greater privacy incursions if their personal information were stripped from NSA’s control.
In short, storing metadata at a neutral site would somehow result in more privacy violations than it would in the [LOL] careful stewardship of the NSA. Limited access to metadata, according to robotic-overlord-in-waiting Robert Litt, is more harmful to Americans’ privacy than potentially unlimited access to data stores onsite.
Robert Litt, the general counsel for the Office of the Director of National Intelligence, and Bradford Wiegmann, deputy assistant attorney general, told the Committee on Privacy, Technology and the Law today that it would have a “privacy diminishing effect” if intelligence officials were forced to review every piece of data vacuumed up under its internet and phone surveillance programs…
“Attempting to make this determination [identify the number of US persons whose data has been “inadvertently” swept up by various NSA collections] would require the intelligence community to research and review personally identifying information solely for the purpose of complying with the reporting requirements, even if the information has not been determined to contain foreign intelligence,” they argued. “Such an effort would conflict with our efforts to protect privacy…”
Litt, while addressing the panel, added that such a requirement “would perversely” undermine privacy.
There’s a hole in Litt’s argument you could drive a truckload of logic through. Kevin Bankston steps up and takes the wheel.
“The privacy has already been violated,” he said.
Litt must be an adherent of the Rogers Theorem, which states that privacy violations don’t actually occur until they’re noticed. That’s the only way he could make such an argument with a straight face (although being not quite human probably helps).
The ODNI’s arguments are beginning to resemble the outer limits of quantum mechanics, in which privacy violations are caused not by the wholesale amassing of pterabytes of data, but by NSA analysts checking to see if anything American has been inadvertently snagged in the NSA’s enormous baleen. [ALL METAPHORS ARE GO.]
No mention is made of maybe putting some effort into refining its programs or dialing back its collections. Nope, to do so is to subject America to somewhere between 0 and 54 terrorist attacks over the next dozen years. This much we can be sure of because… well, just believe the nice “man” in suit, OK? The NSA’s defenders have worked very hard to come up with dozens of tenuous justifications for its data dragnet and they don’t need the very violated American public casting aspersion on the agency’s lack of finesse.
This is what happens when the talking points begin suffering routine catastrophic failure. The NSA’s defenders are reduced to responding like quarreling schoolchildren: “No, you’re violating privacy!” How pathetic.
The NSA’s bulk record collections is facing plenty of legislative opposition as a result of Snowden’s leaks. Its own carelessness and abuse nearly cost the agency its metadata collections back in 2009 and it’s apparently unwilling to consider any limitations being placed on this program going forward. Dianne Feinstein has pitched in with an attempt to codify the collection into law, something that will make it a bit more politically unassailable, but in the meantime, multiple pieces of legislation have been introduced to control the NSA’s metadata dragnet.
The NSA has previously argued that it was allowed by section 215 of the Patriot Act to store millions of phone records of Americans in order to find potential terrorists and their connections inside the United States. A court found that NSA could hold onto the data on the grounds that it was relevant to terrorism inquiries. In theory, storing the data with the companies, instead of at the NSA, would allow the telcos to serve as a kind of privacy watchdog. They’d be in a position to examine the government’s requests for information about their customers and possibly to object to them in court.
But the intelligence lawyers warned that Americans’ would be subject to even greater privacy incursions if their personal information were stripped from NSA’s control.
You heard the man. Allowing telcos to store the collections onsite would cause greater harm to Americans’ privacy than allowing the NSA to store them in its databases where it can peruse them at its leisure. Putting telcos in control would mean additional legwork for the NSA, mainly because it would be limited to obtaining data actually relevant to its investigations, rather than just grabbing it all and hoping everything collected becomes “relevant” at an undetermined point in the future.
This would seem to give Americans a bit more privacy protection, but the ODNI doesn’t see it that way. The FBI’s general counsel backed up Litt’s theory with some speculation of his own.
Patrick Kelley, the acting general counsel of the FBI, said the phone company data could be made available to “other levels of law enforcement enforcement from local, state and federal who want it for whatever law enforcement purposes they’re authorized to obtain it.” He also raised a frightening prospect: “Civil litigation could also seek to obtain it for such things as relatively mundane as divorce actions,” he said. “Who’s calling who with your spouse … So if the data is kept only by the companies than I think the privacy considerations certainly warrants scrutiny.”
If Kelley believes this sort of scary “data sharing” would only be a possibility if telcos control the databases, then he’s obviously been ignoring the developments of the last few months. Not only does the NSA share data with agencies like the DEA, but it also encourages them to falsify how they acquired the information. So, this privacy “concern” of Kelley’s is already a reality — and all the more reason to limit access to collected metadata. And that doesn’t even touch the amount of data sharing it does with foreign countries, often in unminimized form. Furthermore, law enforcement can already access phone records as they’re covered by the Third Party Doctrine, the same doctrine both the NSA and the FBI have been taking advantage of for years.
Second, even if it would increase the amount of civil litigation, that still would offer greater overall protection for Americans’ phone data. How? Very simply. Litigation is targeted and data requests would be limited to those authorized by discovery. As it stands now, the NSA gets everything and is only limited by controls the NSA itself implements — and those internal checks on abuse are only as strong as the NSA’s statements to the FISA court claim they are.
And this fear of unfaithful partners’ phone records being “outed” by litigants is easily mitigated, as FP’s John Hudson points out.
Any act of Congress modifying the phone records database could include provisions prohibiting the use of telephone metadata for purposes not related to national security. And if lawmakers wanted to keep the information out of the hands of local police or civil attorneys, they could write a provision preserving its exclusive use by the NSA and the intelligence agencies.
This faux concern for the privacy of Americans is just another intelligence community dodge. Protecting privacy is only a concern when it’s politically advantageous or can be twisted into a defense of embattled collection programs. Litt and Kelley’s arguments are completely weightless. Worse, they both seem entirely unaware of the fact that recent revelations completely undercut their arguments. And yet, they approach an oversight board presumably familiar with these facts and make the arguments anyway.
This is just more evidence that the intelligence community is insular and self-absorbed, the result of many, many years of operating in complete secrecy. Its spokesmen and legal reps seem to be aware of nothing more recent than the latest talking points. These agencies are ultimately disinterested in protecting the privacy of Americans if it means scaling back their existing programs. Since they can’t have it both ways (protect privacy, keep programs intact), they will always opt for the latter.
For the most part, following the fallout from the NSA surveillance leaks, the Director of National Intelligence, James Clapper, and the head of the NSA, Keith Alexander, have seemed almost interchangeable. While Clapper technically ranks above Alexander in the administration pecking order, both have basically presented the same (dubious) arguments in favor of the NSA’s activities, and their statements have been in such lockstep that you could exchange quotes from one for the other without noticing much, if any, difference. However, in a recent Washington Post profile of Clapper, it appears that there may at least be some cracking of the facade of unity. While it’s not a major part of the Clapper profile, the article, by David Ignatius, does note that when that important 2011 FISA court ruling was declassified a couple of months ago, the NSA wanted to redact large parts of the decision, and Clapper actually pushed back, demanding greater transparency, before having his own top lawyer redo the redactions, so that much less ended up being redacted:
One example is Clapper’s pressure on the NSA to disclose more about its surveillance programs. The NSA initially wanted to “redact” (a fancy word for censor) far more of a 2011 ruling by the Foreign Intelligence Surveillance Court that the agency had engaged in illegally broad surveillance. Clapper thought NSA lawyers were suppressing too much, so he instructed his general counsel, Robert Litt, to go back through the document and make public more information. Clapper ignored NSA and Justice Department protests, including to the White House, and backed Litt’s less-redacted version.
Of course, this story leaves out the part about how pretty much everyone, including Clapper, initially fought against having any part of this decision released until they were forced to do so by the EFF in a lawsuit.
That said, it’s still interesting to see that, when it comes to that situation, Clapper is at least willing to go against the NSA behind closed doors, even if he’s in lock-step with them publicly.
Last month, we wrote about the revelation of the infamous backdoor search loophole that allowed the NSA to run searches on the communications of Americans without a warrant, just so long as they collected them under another program — the so-called 702 program of the FISA Amendments Act, which sucks up a large amount of communications, based on some very broad definitions of words like “target” and “relevance.” We noted that this was due to a “rule change” in 2011, but the details of that change weren’t entirely clear… until now.
The Washington Post has the story (along with the recently released — though heavily redacted — FISA Court ruling about the NSA lying to the court) that shows that back in 2008, the FISC had banned any such searches at the request of the Bush administration, but in 2011 the Obama administration reversed course, and asked the FISA Court to allow such backdoor warrantless searches, and the court did what it was told, issuing a ruling allowing them, despite the fact that it’s almost certainly a major 4th Amendment violation. The Obama administration’s reasoning? As noted below, a chief administration lawyer explains: “We wanted to be able to do it.” The “it” there, for clarification, is run warrantless searches on tons of communications (not just metadata) collected from Americans.
What’s a little surprising is that I’m pretty sure I called some of this back in June, the day after the first Snowden leak came out, when I pointed out that the NSA likely defines “target” not to mean just the person that they’re targeting, but rather the entire investigation. So as long as the goal of the collection was to “target” a particular non-American situation, anything can be collected, and then it can be searched at will without a warrant. Apparently, this includes somewhere on the order of 250 million communications per year.
What’s astounding is that Robert Litt, the general counsel for the Office of the Director of National Intelligence, seems kind of proud of the fact that they got this backdoor loophole:
The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.
But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.
Um. “We wanted to be able to do it” is not exactly a valid reason for violating the clear language of the 4th Amendment. I’m sure plenty of government officials “wanted to be able to do” all sorts of illegal things like throw political foes in jail for dissent, or shut down newspapers for writing things they don’t like. But we don’t allow it because the Constitution says you can’t do that.
But Litt just can’t help himself, he’s so proud of violating the 4th Amendment.
“If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”
The duplicity here is incredible. First, they redefine “target” to allow them suck up American’s communications without a warrant, despite the fact that this is expressly prohibited. Then, to ignore the official minimization rules that bar them from looking at any communications that involve Americans, they have a court say “oh fine” and overturn a clear rule that says they can’t look at those communications, and Litt doesn’t see the problem? Most people would argue (a) the original collection was not, in fact lawful and (b) even if it was lawful to collect, over and over again for the past few months, government officials have insisted that they are careful to make sure searches on Americans don’t happen. Yet, now he nonchalantly waves off the issue as being “of course” they search that information because he thinks it’s “lawfully collected” despite being almost directly against the plain language of both the law and the Constitution? Wow.
Oh, and as a “bonus” they appear to have tossed in the ability for the NSA to keep Americans’ communications for six years, rather than five. Note, of course, that over the past few months, the NSA and its defenders have continued to trot out the five year claim, even though this ruling makes it clear that the timeline had actually been extended to six. So, yet another lie to top it all off.
And, while most of the outrage should be directed at the Obama administration, mainly in the form of Litt and James Clapper who pushed for this, some of it also should be directed at the chief judge of the FISA Court at the time, John Bates, who signed off on this “rule change.” Once again, it seems that the administration and the NSA’s defenders keep claiming one thing, and only later, as it’s pointed out that the opposite is true, do they say something like “oh, yeah, well of course we do that…”
“Why is it that people are willing to expose large quantities of information to private parties but don’t want the Government to have the same information?”
It’s a valid question, but not when asked by the overseer of government intelligence agencies. Daniel Stuckey at Motherboard points out that there’s a big difference between voluntary and involuntary “exposure.”
Now, I’d hate to answer Litt’s question so simply by saying that consumers are extorted by their love of what they consume, but it’s part of it. And trust in companies that give us free things, that advance self-expression is an inalienable consumer right. If the government, theoretically, already knows everything there is to know—when we didn’t directly volunteer our information—it then provides momentum for a rally cry. The shame and disgust when Edward Snowden pulled back the curtain reverberates that government by virtue is supposed to be more clear, more holistic, and an idealized reflection of ourselves.
It’s a false equivalent. Thousands of people expose tons of information every day using social media platforms, but they do so with the implicit understanding that the free service is deriving some sort of benefit from their interactions. When the government scoops up the same data, there’s no perceived benefit, not even the supposed “targeting” of terrorists.
Furthermore, as Stuckey states, we want to believe our government is above snooping on our “private” interactions. (Private in the sense that they’re between individuals, no matter how many others can view or interact with the conversations.) If we initiate the exchange, we don’t feel victimized by the lack of privacy.
Beyond that, every social media service has some sort of privacy settings built in that limit what others can see. Most of these have only limited effectiveness, but the fact is that users have the option to exclude others. The underlying platform is the facilitator and therefore, has “earned” the “right” to mine data and can never truly be excluded, and we (for the most part) accept this. There is no “exclude government” option, other than Litt’s implicit suggestion: if you don’t want the government to see it, don’t post it in public arenas.
But the most troubling part of Litt’s question is this.
It’s great that the U.S. government behaves better than corporations on privacy—too bad it trusts/subcontracts corporations to deal with that privacy—but it’s an uncomfortable thing to even be in a position of having to compare the two. This is the point Litt misses, and it’s not a fine one.
This is the crux of the issue. When someone asks why we don’t value our privacy more, in terms of social networking, they have a point. When someone asks why we’re willing to give Facebook plenty of data but resent the government doing the same thing, the point is no longer valid. Handing data to advertisers is a lot easier to stomach than the impression that the government is reading over your shoulder.
Ultimately, though, we should never have gotten to the point where the government’s thirst for data on American citizens exceeds the demands of corporations. We expect corporations to act in self-interest. We expect our government to be a lot more selfless and its intelligence agencies more willing to sacrifice some effectiveness in order to protect the rights of American citizens.
If Litt honestly feels people don’t have privacy expectations in regards to data shared with a third party, he should put some manpower into launching Facebook.gov (or whatever) and see how many people are willing to sign up. Facebook vs. government isn’t a fair comparison and Litt knows it. He’s just using the question to prop up the third party exception that enables the NSA to acquire vast amounts of data. What he’s doing is making a convenient presumption that these users are aware of the protections they lose by sharing information with a third party — and, consequently, the government. Part of the “expectation of privacy” is the “expectation,” something the Supreme Court has noted, and it’s safe to say that many Facebook/Google/Twitter users don’t expect the government to be accessing their data.
Finally, there’s also the utilitarian aspect. As the New Jersey Supreme Court pointed out earlier, no one uses a cell phone simply to provide location data for law enforcement and investigative agencies. And no one utilizes social media in order to provide the government with a treasure trove of personal information.