Did unmasking reform clinch the deal for 702 reauthorization?

Episode 199 of the Cyberlaw Podcast

|The Volokh Conspiracy |

In this guestless episode, Michael Vatis, Markham Erickson, and Nick Weaver join me to explore the intense jockeying that led to passage of S. 139 and gave section 702 of FISA a new lease on life. The administration team responsible for shepherding the bill did well, weathering the President's tweets, providing a warrant process for backend searches that will likely be used once a year if that, and—almost without anyone noticing—pulling the unmasking reform provisions from the bill and substituting an ODNI rule. Why? My guess is that dropping unmasking from the bill was a bargaining chip that made it easier for Dems to vote yea; if so, it worked.

And just in time, as the days after passage brought new whiffs of scandal, from the four-page House Republican memo alleging improprieties in the FBI's application for a FISA wiretap on a Trump campaign hanger-on to two cases in which the FBI and NSA destroyed evidence they were supposed to be preserving. Michael Vatis and I cross sword over whether the FISA abuse memo is worth taking seriously or just partisan flak.

Nick and I delve into the gigabytes of hacked data mislaid by another player in the phone hacking game – Lebanese intelligence. Nick wonders if the data was obtained by EFF or Lookout violating the Computer Fraud and Abuse Act. I suspect it may have been, but that EFF ain't talking because it doesn't want to legitimize such hacking for those whose motives aren't Certified Pure by Civil Society (TM).

The first known death by SWAT-ing has yielded charges; the egregious SWAT-er for hire, SWauTistic, has been charged with involuntary manslaughter. Hard to argue with that.

Scariest news of the week? Electric system malware is getting remarkably sophisticated, and common.

The Microsoft Ireland case will be argued next month, and there are dozens of amici briefs, including one by our own Michael Vatis, who lays out his direct appeal to Justice Gorsuch's property-based view of the fourth amendment.

Matt Green (and Nick Weaver) have some questions for Apple about moving its China iCloud data to a third party Chinese cloud provider. I've got one too. If treating Taiwan as a separate country from China leads to humiliating penalties for Western companies, and it does, has China prohibited Apple from storing Taiwanese and Hong Kong user data outside China?

And, for once on the podcast: a sweet life-long love story, spelled out cryptographically.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

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  1. I’m going to guess the NSA not anonymously tipping off several Congressmen’s wives about their mistresses was the price of re authorization. Among other acts of blackmail.

    1. It’s not people being dumb, it’s an evil organization pulling the strings!


      1. No, the people were dumb to give the government the power to spy on everybody.

        Look, there are powers you Just Don’t Give The Government. Because nobody can be trusted to have them, they corrupt anybody given them.

        You know what’s dumb? Creating a monster like the NSA, and then expecting it to stay honest.

        1. You can be against our broad surveillance; that’s fine. I’m even on board with that – it’s past time our defensive fear-crouch post 9-11 ended.

          But that substantive policy position doesn’t mean speculating yourself into an NSF conspiracy makes any damn sense.

          1. You must have much more faith in human nature than I do. I don’t see it as remotely plausible that you could give a secret agency the power to spy on everybody, and they wouldn’t use it.

            We know from reports that the NSA spied on Americans even beyond the crazy degree to which Congress foolishly authorized. Has anybody gone to jail over it?

            Why is the NSA untouchable? I’m just drawing the logical conclusion. You’re just burying your head in the sand.

            1. It’s not that I’m optimistic, it’s who I’m pessimistic about and what I think they’re doing.

              I think status-quo maintaining risk aversion of being ‘soft on terror’ is both more probable and more logical than secret NSA blackmail.

              Reasons why I don’t think blackmail is very likely.
              1. It is against the law. Which remains a deterrent. Versus just being a congressman choosing not to make any decisions.
              2. Blackmail is risky and oftentimes fails. In the long-term widespread story you’re telling, there are lots of points of failure, and it only takes one pulling a Letterman. Or a staffer finding out.
              3. Conspiracies are hard to keep secret for long. You have many points of failure within the NSF, and it only takes one to pull a Snowden.
              4. There is zero evidence of this blackmail regime. It’s a story whose only support is that the NSA is abusing it’s jurisdiction and Congress isn’t slapping them down. There are lots of other ways to explain Congressional inaction.

              1. How long did that kid keep quiet about Hastert? 27 years? Are you saying the NSA can’t keep a secret better than a molestation victim?


            2. No, the conspiracy, like most conspiracies, really is implausible. If the NSA blackmailed the Congressmen, it puts the entire agency’s existence at risk that the Congressmen will simply go public with the blackmail attempt. The people responsible would be put in prison for a long time. One person going public would permanently doom 702. This requires us to believe that the agency is simultaneously an evil genius and yet so careless that it would bet its entire existence on the predictability of a cheating Congressmen. You can’t even blackmail Congressmen for cheating, because voters never care. Dead woman young boy, etc.

  2. “ODNI” rule?

    1. Office of the
      Director of National Intelligence


  3. You hopefully predict maybe one warrant a year?

    My understanding of the Obama administration and FISA warrants during 2016 was that Samantha Powers at the UN started slow but once she got the hang of it she unmasked over a hundred Republicans and Trump team members, before and after the election.

    1. You must be relieved that Donald Trump’s judgment and character are relevant now.

  4. Unmasking reform is kind of pointless. As long as the wires are being tapped, the product of the wiretapping is going to get used. If they can’t use it semi-openly, they’ll just use it more covertly.

    The problem is the wiretapping, not the unmasking. The people doing the original masking know what’s behind the mask, they can just privately relay anything that’s politically juicy.

    The problem is that we’ve allowed the intelligence services to turn American into the sort surveillance state any dictator could only dream of. And I don’t see the road back, because it’s a blackmail treasure trove, and our legislators are eminently blackmailable.

    It’s probably too late at this point, we let it go too far.

  5. It may have been the first swatting death but it only took days for the second one.


  6. Correct me if I’m wrong, but if the 702 authorization expired then the ability to collect SIGINT on non-US persons would in theory become unlimited since there are no Fourth Amendment protections for non-US persons? Of course, there would be the danger of accidentally collecting info of US persons.

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