Church: Obama, NSA, Verizon

Ruminations on the FISA Court and the Bush Administration’s “Terrorist Surveillance Program”
Orin Kerr • June 7, 2013 12:40 am

[This post is sheer speculation; I may be way off. Read accordingly.] Longtime readers will recall the dispute in 2005-2006 over the legality of the Bush Administration’s warrantless wiretapping program, aka the “Terrorist Surveillance Program,” which was revealed in December 2005 by the New York Times. Recall that several DOJ officials threatened to resign over the program as unlawful in 2004, but then changes to the program were made to satisfy them that the program was lawful. As best I can recall — it has been a few years — the leading theory for what changes were made to make the program legal was that program was changed to be based on the AUMF instead of the President’s Article II power. I thought of that dispute when I read this passage in today’s Post story on PRISM:

Between 2004 and 2007, Bush administration lawyers persuaded federal FISA judges to issue surveillance orders in a fundamentally new form. Until then the government had to show probable cause that a particular “target” and “facility” were both connected to terrorism or espionage.

In four new orders, which remain classified, the court defined massive data sets as “facilities” and agreed to certify periodically that the government had reasonable procedures in place to minimize collection of “U.S. persons” data without a warrant.

I’m probably way off on this, but I wonder: Is that what changed and allowed the TSP to continue? The timing would be right, as the changes from Goldsmith/Comey et. al. started in 2004 and the Protect America Act came around to formally approve the TSP program (at least in some form) in 2007. And recall yesterday’s post on the NSA call records program, and in particular the legal ambiguity that led to FISA court orders allowing it:

Section 1861 says that the “things” that are collected must be relevant to a national security investigation or threat assessment, but it says nothing about the scope of the things obtained. When dealing with a physical object, we naturally treat relevance on an object-by-object basis. Sets of records are different. If Verizon has a database containing records of billions of phone calls made by millions of customers, is that database a single thing, millions of things, or billions of things? Is relevance measured by each record, each customer, or the relevance of the entire database as a whole? If the entire massive database has a single record that is relevant, does that make the entire database relevant, too? The statute doesn’t directly answer that, it seems to me. But certainly it’s surprising — and troubling — if the Section 1861 relevance standard is being interpreted at the database-by-database level.

Maybe I’m just misreading the two paragraphs from today’s Post story, but it sounds like there was a similarly broad reinterpretation of FISA in 2004. By reading a massive data set as a “facility,” the government could get FISA court orders allowing massive-scale surveillance from the 2004-07 period.

Did that authorize the TSP, at least formally? Maybe. Although maybe I’m way off. Think about it: If that authorized the TSP, it would mean that the Bush Administration’s TSP actually did have a warrant — it’s just that it was a single warrant for the entire program. It seems hard to believe that the Bush Administration wouldn’t have let on about that if there were such an order from the FISA court. But then the order was and still is classified, so I suppose it’s possible that they didn’t acknowledge the existence of the warrant even though it existed.

Anyway, just some uninformed speculation on my part. I’m curious what readers think.

 

<blockquote class="twitter-tweet"><p>It's gone from "we are the ones we've been waiting for" to "we are the ones we were warning you about."</p>&mdash; Ben Howe (@BenHowe) <a href="https://twitter.com/BenHowe/status/342985624774668289">June 7, 2013</a></blockquote>
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WaPost backtracks on claim tech companies ‘participate knowingly’ in PRISM data collection

[rquoter]The Washington Post published an investigative report uncovering the government-run PRISM program, which allegedly monitored US citizen’s Internet activity illegally, but now the paper is stepping away from its initial claim that nine tech firms knowingly provided data to the government.

Early reports of PRISM left two key allegations unanswered: Did the US government illegally monitor its citizens online, and did the tech companies involved work with authorities complicity. Predictably the government denied the first question. For the second, the initial answer seemed to be yes.

The Post previously claimed that Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL and Apple ”participate knowingly”. The phrase that stood out in the report (it has been repurposed by numerous tech blogs and news sites across the Web) since it suggested that US firms willingly agreed to a process that — at best — could violate the rights of millions in the US if their data is accidentally monitored by the NSA.

Hours after the news broke, and every company bar PalTalk and AOL denied any knowledge of the program and allegations of their involvement, the Post has changed its stance. The phrase ”participate knowingly” has been removed from the article, a new passage suggests the firms were unaware of PRISM:

It is possible that the conflict between the PRISM slides and the company spokesmen is the result of imprecision on the part of the NSA author. In another classified report obtained by The Post, the arrangement is described as allowing “collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations,” rather than directly to company servers.​

This new text, added to the denials from Google, Apple, Microsoft, Yahoo and others, suggests that the NSA did not have direct access to the data systems. That initial suggestion was an assumption that the Post made based on the contents of the leaked slides.

Nonetheless, the paper’s new stance is a huge admission. For one thing, it adds to the growing claim that the agency instead accessed the information indirectly. In such a case, the most likely method would be via ISPs or mobile operators, but that remains unconfirmed.

Coming hot on the heels of another leak, showing that the NSA collected phone records belonging to Verizon customers, it would cast US service providers in a very poor light.

The move is an embarrassing one for the Post, particularly given that its new update appears driven by the responses of the companies, the very same companies that it says it got responses from before publishing its story.

The Post story says that “several companies [that it] contacted” denied knowledge of the program, and “asserted that they responded only to targeted requests for information”, but it cites only quotes from Google and Facebook.

TNW, like other media, received responses from seven companies, each of which was quick to respond after the initial reports went live. If the Post’s update is driven by the companies, questions must asked as to why it made the direct accusation against the companies in the first place.[/rquoter]

http://thenextweb.com/us/2013/06/07...ection/?utm_source=dlvr.it&utm_medium=twitter

 

Jim Sensenbrenner: NSA violated law

[rquoter]Rep. Jim Sensenbrenner, the Republican author of the Patriot Act, sent a letter to Attorney General Eric Holder that says he is “extremely disturbed” by reports that the National Security Agency collected phone records from Verizon customers and insists it violates the law.
“These reports are deeply concerning and raise questions about whether our constitutional rights are secure,” the Wisconsin Republican said in the letter, sent Thursday.

Sensenbrenner, who chaired the Judiciary Committee, cited testimony from the Department of Justice from 2011, in which an assistant attorney general said they obtain so-called business records fewer than 40 times each year.
(PHOTOS: Pols, pundits weigh in on NSA report)
“I do not believe the released FISA order is consistent with the requirement of the Patriot Act,” Sensenbrenner wrote. “How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?”
[/rquoter]

Read more: http://www.politico.com/story/2013/06/jim-sensenbrenner-nsa-violated-law-92348.html#ixzz2VY4bzLBu