Surveillance

The FISA Court Didn't Even Know NSA Was Collecting Some Domestic Communications

FISA Court memo release shows the overseeing agency didn't know all the details of how surveillance actually worked

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This all totally would have come out without Snowden, right?
ODNI Logo

The Office of the Director of National Intelligence (ODNI) provided another redacted information data dump today, which ends the Electronic Frontier Foundation's legal battle with them over a Freedom of Information Act request.

At the heart of the matter was a Foreign Intelligence Surveillance Court decision from 2011 that determined that the National Security Agency and the FBI were somehow violating the Fourth Amendment with its surveillance methods. The details were unknown because the report was classified. EFF sued and won, and today the 85-page document was released.

Hilariously, ODNI arranged for a background media call to take questions from reporters, but they did it before the documents were released so nobody could ask any directly relevant questions from what the documents actually said. (Somebody posted the press call online on Soundcloud if you're feeling particularly masochistic)

EFF posted the memo here (pdf) and ODNI has posted a couple of additional documents on their brand new Tumblr page, part of that new transparency the agency was talking about.

The report is highly technical and significantly redacted, but here's a number of discoveries from the memo:

  • The NSA's collection of "upstream" data, that is data gathered without the cooperation of Internet service providers, includes the acquisition of tens of thousands of Internet transactions annually involving Americans within the United States who are not connected to any sort of legitimate investigation.
  • The NSA does not have the technology to avoid collecting domestic Internet transactions by the thousands in its upstream data collection. They are swept up automatically as part of the process and they have no way to exclude them before hand or even know whether they're going to snag protected communications in advance.
  • Until 2011, the Foreign Intelligence Surveillance Court, charged with judicial oversight to make sure laws weren't being broken, did not know that this was happening. And this was not the first time the Court felt that it was being misled. From a footnote:

The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.

  • The footnote goes on to explain that in 2009, the court discovered it had been misled about how a business records data program worked from the very inception of the program in 2006. The bottom third of the footnote is entirely redacted, so it's not clear whether they might be discussing the other example of being misled.
  • The NSA acquires more than 250 million Internet communications each year, but only 9 percent arrive from this upstream collection method. The other 91 percent are provided directly to the NSA by Internet service providers. The problematic records the report refers to only come from the upstream collection.

In the end, though, the FISA court accepted that the NSA needed to keep the upstream collection method operating in order to gather intelligence, but ordered them to improve its process of minimizing potential access, exposure and distribution of domestic information. NSA agreed to further segregate any such transactions and purgie them from their systems in two years, rather than the five years as previously ordered.

Ultimately, that means this domestic data collection is still happening, it's just (allegedly) being protected from view more carefully and (allegedly) being destroyed more quickly.

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  1. Well surPRIIIIIIIIIIse, surprise!

    /no surprise

  2. and (allegedly) being destroyed more quickly

    You know what’s DEFINITELY being destroyed very quickly?

    What’s left of US citizen’s vanishing rights. It was a pretty good ride while it lasted!

    See you in hell!

  3. Whatever and whomever’s data they are collecting, storage isn’t cheap. The obvious attacks against this are (a) to overwhelm them with raw data and (b) to overwhelm them with data they feel a need to further investigate.

    1. Tell me how the weather is in Guantanamo.

      1. I bet it’s pretty awesome.

    2. Like their shrouded budgets are in any danger.

    3. Actually storage is really cheap. Google stores more information than the NSA, I would imagine. And they just buy tons of servers with tons of hard drives in them. Hard drives, especially SATA drives, are dirt cheap.

      1. Storage is cheap, but so are processors and bandwidth.

        Go rent time on a foreign server, and send poorly encrypted keywords back and forth to a server in the US. You could fill a lot of harddrives that way.

  4. The NSA does not have the technology to avoid collecting domestic Internet transactions by the thousands in its upstream data collection. They are swept up automatically as part of the process and they have no way to exclude them before hand or even know whether they’re going to snag protected communications in advance.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Unless, of course, the NSA doesn’t have the technology to filter out domestic effects while collecting intelligence.

    See? It’s okay.

    1. Where in the language of the 4th is there a green light to search without a warrant?

      When you take the 4th and construe it in harmony with the 9th, its checkmate, game over. No person, without his express, unambiguous consent, is subject to any search or seizure, without a duly authorized and procured warrant.

      Of course, in a free society, A has no right to search or seize anything belonging to B without B’s consent, warrant or no warrant, particularly if it is urged that failure to allow A to so search and seize would result in chaos or injustice.

      1. “When you take the 4th and construe it in harmony with the 9th, its checkmate, game over.”

        But when you finally realize that the Bill of Rights is a dead letter, you still lose.

        1. Actually, you lose whether or not you make this obvious realization.

          1. Top. Men. With. Guns.

  5. Until 2011, the Foreign Intelligence Surveillance Court, charged with judicial oversight to make sure laws weren’t being broken, did not know that this was happening.

    Oops! Oversight, bitches!

    Ultimately, that means this domestic data collection is still happening, it’s just (allegedly) being protected from view more carefully and (allegedly) being destroyed more quickly.

    Well of course. You don’t think they’re going to stop, do you?

  6. I wonder if they’re using the Sam Goldwyn method – delete these, but make copies, lol

    lotsofamusinganecdotesaskmemore.com

  7. 1) I’m actually kind of surprised that the document wasn’t 100% redacted.

    2) That emblem looks like a puckered anus.

    1. It appears they have accidentally implied the intelligence community is a bunch of assholes who are full of shit.

      1. Maybe they have been cursed with self-awareness and they had to find someway to express their self-loathing.

        1. He gazed up at the enormous cheeks. Forty years it had taken him to learn what kind of sphincter was hidden beneath the dark crack hair. O cruel, needless misunderstanding! O stubborn, self-willed exile from the loving starfish! Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He gave rim jobs to Big Brother.

          1. That’s worse than SugarFree’s musings.

    2. E pluribus anus

      1. “We earned the right to pick on Greendale by going there every day. Our school may be a toilet but it’s our toilet. Nobody craps in it but us.”

    3. 2) That emblem looks like a puckered anus.

      *

    4. i remember one of the ones the EFF got was 100 percent redacted minus page numbers and headers -_- What a waste of probably 2-3 million dollars to get 15 pages of blanks -_-

  8. Can we get Tony in here for commentary? He shows up to fleck spittle all over more general topics of libertarian philosophy or political movements, but seems mysteriously absent when the beneficiaries of his power fellatio slip off the mask.

    1. Good ol’ Tony’s been quite conspicuous by his absence of late. In my mind’s eye I picture him being absent because he’s walking along the beach with pictures of his political heroes, crying because they lied to him…

      Ah, who am I kidding. He’s probably in the john. He’ll be back soon enough, spewing completely contradictory and evidence free assertions while dodging any rebuttal that features thought or any hint of logic, just like always.

  9. See, checks and balances require someone to do the checking and the balancing.

    I want some fucking heads to roll over all of this. Great big heads. And I don’t mean Shatner.

  10. There are times when I wonder if it would be better if the ruling class stopped pretending they were anything but a vulgar aristocracy.

    If they continue behaving like this, I insist they start wearing powdered wigs, breeches, frilly shirts, and speak in high-pitched Elizabethan accents.

    1. Hmm, if they were aristocracy, they might at least practice some noblesse oblige and give us some of their money.

      1. When have aristocrats ever lived on anything other than (whatever the law might have to say about it) OPM?

  11. “This all would have come out with Snowden, right?”

    I don’t know whether Snowden had access to that particular FISA ruling.

    I am fairly sure, however, this would not have been disclosed if Snowden had not communicated his material to Greenwald.

    1. Oops. That was supposed to say “without”

  12. “….. the government has disclosed a substantial misrepresentation…”

    I hate cryptic language or language meant to finesse something. It is bullshit. Call it what it is. I wish someone in front of a camera, upon hearing this would say ” Oh, you mean they fucking lied?”.

  13. But the NEXT time we claim something is or isn’t true, you can believe us!

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