Surveillance

One Final Expansion of the Surveillance State as Obama Heads for the Door

More federal employees will have access to raw intel data gathered without warrants.

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Obama
Michael Reynolds/EPA/Newscom

President Barack Obama's administration ending its eight-year rule by expanding the sharing of intercepted communications and data between federal agencies may feel a little bit like a final giant middle finger to the many critics of the massive, secretive surveillance state.

Attorney General Loretta Lynch just signed off on changes that will increase the ability of the National Security Agency (NSA) to share some raw intercepted data with other agencies before the process of filtering out private information from people unconnected to actual targets. The snooping itself is not changing, but more people will have access earlier in the process.

Specifically this is surveillance authorized by Executive Order 12333, the provisions that outline the conduct of intelligence agencies. These are rules separate from the Foreign Intelligence Surveillance Act (FISA), the PATRIOT Act, and the new USA Freedom Act. The 12333 rules are specifically intended to oversee surveillance of foreign targets and foreign countries. It has very little oversight outside of the executive branch.

Because of the intelligence community's attitude of "collect everything and sort it out later," the surveillance taking place through 12333 also ends up gathering all sorts of communications and data from domestic sources. What had been happening is that the NSA would filter out anything other agencies shouldn't be getting access to and then pass the info along. Under the new rules, these other agencies will be able to search through the raw information itself but would still be required to purge unrelated communications.

So the end result is not more surveillance, but more federal staffers will have greater access to the surveillance that's already happening. According to The New York Times, the NSA is aware of the increased risk of private data getting out and will grant requests that are partly based on how potentially damaging it could be if people's private data were "improperly used and disclosed."

The stated purpose for this shift, which has been in the works for years and is not some abrupt final act from Obama, is to help reduce the problem of potentially important intelligence not being adequately passed between agencies in the effort to track down possible terror plots.

But it clearly, obviously also could potentially lead to abuse. Patrick Toomey of the American Civil Liberties Union (a critic of the broadness of the 12333 data collection) tells The New York Times:

"Rather than dramatically expanding government access to so much personal data, we need much stronger rules to protect the privacy of Americans," Mr. Toomey said. "Seventeen different government agencies shouldn't be rooting through Americans' emails with family members, friends and colleagues, all without ever obtaining a warrant."

As the Times notes, though the rules severely restrict how the agencies may search data about Americans (only for the purposes of foreign intelligence investigations), it does allow the NSA to tip off the Justice Department if it stumbles across evidence of crimes.

The number of people who will potentially have access to this evidence collected without a warrant will increase, and as Wired explains, there will be increased opportunities for law enforcement agencies to use the concept of "parallel construction" to attempt to secretly collected information without having to reveal it to defendants. Under "parallel construction," law enforcement agencies act upon the information they've gotten without warrants but then look for additional evidence they wouldn't have known about without the surveillance information. The "additional" evidence is what gets submitted to the courts, and they keep their mouths shut about the existence of the data or communications they've accessed without court approval. The judge and the defense don't even know about the secret sources, and therefore cannot challenge the constitutionality of the data collection.

The Electronic Frontier Foundation has been ringing the alarm about the potential misuses of communications collected under 12333 for years, particularly in connection with Edward Snowden's domestic surveillance disclosures. Read about their concerns here.

And we already have examples of how surveillance authorities are already misused against Americans. There are thousands of incidences of privacy violations by NSA employees per year. Most are not intentional and are not done with any ill intent, allegedly. But there have been cases where NSA employees have engaged in inappropriate snooping for personal reasons. It is not unreasonable to think an increased number of people looking over raw data will lead to increased incidences of the data being misused.

For a different perspective, Susan Hennessey, a former NSA attorney who serves as the managing editor of Lawfare, told The Atlantic she believes carefully hammering out and implementing these rules will actually reduce the risk of reckless changes by Donald Trump's heavily pro-surveillance incoming administration. Read her argument here.

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77 responses to “One Final Expansion of the Surveillance State as Obama Heads for the Door

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  2. Christ, what an asshole.

    1. If he walks outside, could someone please toss his suitcase out and lock the door behind him?

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  3. Specifically this is surveillance authorized by Executive Order 12333,

    I’m glad the President found his pen and phone.

    1. Damn.

      I followed the link to the Federal Register and looked up Executive Order 666.

      There isn’t one.

      Sad!

      1. Must have been removed…by the Illuminati.

        1. Mathematically, it is 666.

          1 x 2 x 333 == 666.

          DAMIEN!!!!!!!!!1111!one!!! He’s The AntiChrist!

          *cue Ave Satani

          1. So that’s what that scar behind my left ear means. It seems I’ve found my life’s purpose.

          2. Thanks, Doc.

            I feel much better now

          3. And I feel like the use of double equals to denote equality tells us something about your programming background.

      2. Pretty sure that was used a long time ago to wipe out the Jedi.

  4. President Barack Obama’s administration … feel[s] a little bit like a final giant middle finger to [Americans]

    FTFY

  5. Obama is the most petulant crybaby Statist fuck we’ve had as President in the last 100 years.

    1. And I thought the Patriot Act was bad, ‘member when Obama didn’t like it either?

    2. I would say the same of Trump, but nobody expects anything else and Trump certainly doesn’t hold forth as the super serial, race healer Only Adult in the Room. Trump’s bravado is at worst irritating. No, Obama isn’t a petulant crybaby. He’s a wheedling, passive-aggressive self-important schmuck.

      1. Yeah, with Trump you at least know what you’re getting, he’s openly the loud-mouthed cunt you expect him to be, and you can at least get some amusement out of it (his response to Buzzfeed and CNN for example). Obama, on the other hand, plays the wolf in sheep’s clothing. He continuously tried to frame himself as some wise arbitrator and manager instead of the half-wit manchild with narcissistic tendencies that he is.

  6. ‘I did more than any for privacy rights than any other President. And I did it for you! YOU the people!’

  7. Scott, from the time I’ve spent on the Yahoo boards I believe the correct formatting on the alt-text should be:

    ‘Thanks, Obummer!’ also acceptable is, ‘Thanks, Obumbles!’.

    1. I think you mean Block Insane Yomamma

  8. It’s as if the spiteful little cunt wants to do as much damage as he can on the way out the door. Like somebody who shuts off the heat so the pipes freeze when he moves out of an apartment.

    1. I agree. This and moving troops into Poland in his final days as CIC is him just doing the most asshole damaging thing he could before being forced to leave office. Fuck this guy.

      1. And he has 6 days left! 6.

        EO 12333

        1 x 2 x 333 == 666!

        *cue Ave Satani

  9. The fact that they (the Obama Administration) aren’t doing everything in their power to limit the power of the presidency, before Trumputin takes over, tells you everything you need to know about how much they fear him being crazy or actually being a Russian stooge.

  10. You know who sucks?

    Tony.

    And Obama, and Trump, and Bush, and Woodrow fucking Wilson.

    1. And FDR and LBJ and Madonna and Sidney Crosby…

      1. I think Madonna pledged suck off everyone who voted for herself. Does she still have to do that, even though she lost?

        1. I don’t know. She did get a nike logo tattooed on her cooter for some reason.

          So there’s that.

          1. Stay Classy Madonna.

            1. It’s ok, the tattoo is not ON the cooter but just above. Frankly, her pubic area looks better than her swollen stone like face.

          2. Just Do It! Before you get any second thoughts.

      2. Sidney Crosby can suck a cancer dick. How bout Ovi for a 1000 points?

        1. He’s a beast. You couldn’t have scripted it better.

          I like Ovi the older he gets. His game is complete and he’s even more dangerous.

  11. Anyone else feel like they are trapped in a Groundhog’s Day like purgatory, where the 20th of January is never going to arrive?

  12. Has there ever been a case put before the court that challenges the constitutionality of the NSA bulk collection of our data? Snowden shined a light on this years ago and as far as I know absolutely nothing has been done to stop or even curtail it.

    Thus whole program clearly violates the 4th amendment. Has it even been challenged?

    1. Can the defendant prove it happened and directly effected a legal outcome? No? You have no standing for a challenge then.

      Can’t prove it because it’s classified? Too bad, national security and whatnot.

      1. Between that and, “Sure is a nice service providing company you’ve got here. Look, we need to find a kidnapping victim who might be dying as we speak so give us access to your users data before anyone gets hurt.”

        IANAL but SCOTUS can at best ‘undo’ bulk collection piecemeal. Whole repeal will require an act of Congress.

        Telcos and service providers are becoming increasingly brazen with malfeasance and/or non-compliance and cottage industries that could be leveraged in demonstrating harm are cropping up. But all of that is just focus and MO shifting when it comes to the NSA rather than repeal.

      2. Seems like, thanks to this order, we’re closer to that becoming a reality. It’s going to be a little harder to hide behind national security when the government is using mass surveillance to catch tax cheats.

        1. That’s what parallel construction is for. A spying agency gives a law enforcement agency a tip, then the latter manufactures a “plausible” chain of evidence collection that lead them to prosecute. Voila, all the spying, none of the accountability.

  13. So the end result is not more surveillance, but more federal staffers will have greater access to the surveillance that’s already happening.

    No matter who wins the Federal Regulators vs. Ocean of Dick Picks game of chicken, we all lose.

    1. Ocean of Dick Picks

      Meh. They told sold out after their second album.

  14. OT –

    still testing out Opera browser.

    Its good stuff. significantly faster than FF for me. Has a lot of small built in features that are very helpful. (native adblock, vpn, clever media integration)

    everything seems more intuitive to me than Chrome/FF (*tho i think its mostly built from Chrome code). a lot of that could just be the way they integrate menu-structure. I think if you spent decades w/ windows machines, you like your menus on the left, a category/subject /folder/subfolder structure, etc. For whatever reason, when i look for things in Opera, i find them almost immediately. when i try digging into deep menu settings into other apps these days, i find myself dealing with more of an “Apple” interface, where everything launches it own ‘page’ with tabs/nested menus, and its not clear ‘where you are’ in the menu hierarchy at any given point. anyway. its probably a personal-preference thing, but it feels far more transparent and simple.

    it runs chrome extensions/plug-ins once you add a bridge app

    I ran Greasonable/Tampermonkey for a while to see if it was H&R friendly, but i had a few problems with the html comments. Reasonable runs fine w/ it now that it has the Chrome-extension bridge.

    i think its worth a try if you’re a chrome or FF user.

    1. Opera’s sweet but one word of caution from a privacy standpoint: the suggestions on your speed dial page (based on your prior viewing) don’t go away when you clear your cookies. Be careful with that.

      1. opera://flags/?search=speed

        allows you to turn it off entirely.

        I don’t use that stuff really. i keep a dozen quicklinks on my toolbar, and then set any new page to always go to my ighome (which is basically the Igoogle page kept alive via 3rd party)

        1. Thanks man, I’ll look into that when I get home.

  15. People are having conniptions over Trump’s impending “trade war” while Obama’s Justice Department is throwing VW executives in jail. What happens when some guy from Boeing or GE in Munich gets the proverbial knock at the door? Will we have a prisoner exchange in the shadow of the Brandenburg Gate?

    1. Shhh! Brooksie, you clearly don’t understand how this, “Pants Shitting,” thing works. Best leave such high functioning thinking to our betters in this here media.

  16. The justification for all this surveillance was supposed to be to protect Americans from terrorists affiliated first with Al Qaeda and then ISIS. I was trying to figure out how the NSA sharing our personal email with the DEA helps protect us from Al Qaeda, but then I read this quote at the New York Times link:

    “Mr. Toomey said. “Seventeen different government agencies shouldn’t be rooting through Americans’ emails with family members, friends and colleagues, all without ever obtaining a warrant”.

    How far down the list of seventeen government agencies do you think we need to go before we get to an agency that has nothing to do with terrorism?

    Is the Fish and Wildlife Service on the list?

    1. DEA’s been doing the parallel construction stuff for a while with their own tools: Hemisphere

      DO NOT mention Hemisphere in any official reports or court documents.

  17. Susan Hennessey, a former NSA attorney… told The Atlantic she believes carefully hammering out and implementing these rules will actually reduce the risk of reckless changes by Donald Trump’s heavily pro-surveillance incoming administration.

    When the Donald surveills you, its reckless. When Obama does it, its because he cares.

    Its all so much an extended = “it can’t be that bad, because the other guy is so much worse!”

    When they were in rewrites, they were sort of vulnerable (to what?). There was the possibility that an incoming administration would say, “Hey! While you’re in the process of rewriting, let’s go ahead and adjust some of the domestic protections.” And I think a reasonable observer might assume that while the protections the Obama administration was interested in putting into place increased privacy protections?or at the very least did not reduce them?that the incoming administration has indicated that they are less inclined to be less protective of privacy and civil liberties. So I think it is a good sign that these procedures have been finalized, in part because it’s so hard to change procedures once they’re finalized.

    “by burning down this vietnamese village, we prevent the enemy from capturing it”

    No explanation offered for why Obama decided to wait until the last minute. If they were such great rule-making, why do it in a way to limit political fallout?

    1. All I’ve heard over the last few weeks is how reckless it is for the incoming president to be making negative remarks about our respected and much-vaunted intelligence community. Apparently the intelligence community making negative remarks about their incoming boss? Truth to power.

  18. He did have the most transparent administration ever, just not in the way that idea was originally presented to the US public. Too bad the fawning sycophants in the private propaganda organizations (e.g., the press) was willing to ever see the Emperor’s New Clothes.

    1. They all shop at the same store.

  19. And I think a reasonable observer partisan idiot might assume that while the protections the Obama administration was interested in putting into place increased privacy protections

  20. Hey, just curious… someone got really pissed when they found out the American People read their email… who was that again?

  21. And yet I’m sure Tony and Amsoc will solemnly tell us that we should regard Obama as the greatest protector of our civil liberties EVER.

    1. Well, He is isn’t He?

  22. Paving the way for more parallel reconstruction.

  23. Paving the way for more parallel reconstruction.

    “A little birdie told me.”

  24. I love the argument that Obama’s signing the executive order somehow made it harder for Trump to change it. That’s such a load of crap. Just because Obama is reasonable and methodical in implementing an executive order doesn’t mean Trump has to be. He could change that order whenever he wanted regardless of how much effort the administration before took.

    I think this is, in the end, the thing that best describes Obama. If he does it, then it is right and good. If other people do it then it is bad.

    1. If I understand how EOs work, Trump could literally roll back every EO Barry’s ever penned in a single EO of his own. State a date range or a start and end number for EOs, declared them all null and void, and it’s over, baby.

      Mind you, I probably don’t understand how EOs work . . .

  25. King Obama will leave his crown and his Royal Secret Kill List for The Donald

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  30. Sorry, but I have been asleep for a few years; wasn’t the patriot act supposed to combine all the spy guys into homeland security so there would be better coordination? So, like there should be one agency looking at all our stuff?
    Who set up the other 16?
    Oh, wait. democrat administration. I get it now.

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  35. So the end result is not more surveillance, but more federal staffers will have greater access to the surveillance that’s already happening. According to The New York Times, the NSA is aware of the increased risk of private data getting out and will grant requests that are partly based on how potentially damaging it could be if people’s private data were “improperly used and disclosed.”
    ????? ???? 2017
    ????? ?????
    The stated purpose for this shift, which has been in the works for years and is not some abrupt final act from Obama, is to help reduce the problem of potentially important intelligence not being adequately passed between agencies in the effort to track down possible terror plots.

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