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Posts tagged ‘United States Foreign Intelligence Surveillance Court’

Mukasey on NSA Report: Changes Will Hurt Ability to Monitor Threats.

Image: Mukasey on NSA Report: Changes Will Hurt Ability to Monitor Threats

By Melissa Clyne

Former U.S. Attorney General Michael Mukasey says the recommended changes to National Security Agency surveillance programs by a presidential commission are unnecessary and will only hinder the NSA’s ability to protect the nation.

The five-member panel made up of intelligence and legal experts appointed by President Barack Obama recommended last week that massive phone and internet records collected by the NSA should be held by a private consortium or with the companies from which the information was acquired. If the NSA felt compelled to access the data, it would be required to obtain a court order.

“In other words, if investigators want to check a telephone number they should be required to scurry around to each individual provider — AT&T, Verizon etc. — to run the check, possibly against data bases that are inconsistently arranged, with consequent loss of time and efficiency,” Mukasey writes in op-ed piece for The Wall Street Journal.

Calling it “an experiment,” that could seriously damage an important program designed to target terrorist communications and activities, he says there is simply no justification for it because the panel found no violations of privacy rights during its review.

“The panel’s investigation of the National Security Agency found — as the Foreign Intelligence Surveillance Court found before them — that the occasional unintentional violations of guidelines were stopped once they were detected,” he writes.

Mukasey also mocks critics of the NSA’s collection of phone and Internet communications who contend the agency could use the information to profile individuals or  or gather sensitive personal information.

“No evidence suggests that any such thing has been proposed or done, and indeed the 22 people at NSA who have access to the data are forbidden to use metadata in any fashion other than to run it against suspect telephone numbers,” he says.

Mukasey also takes issue with the recommendation that U.S. intelligence operations should not target non-U.S. persons outside of the United States based solely on their political or religious views. He says that could in some cases prevent the targeting of groups and individuals who declare as a “religious obligation to kill Americans.”

The president has yet to sign off on any of the recommendations contained in the commission’s report.

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© 2013 Newsmax. All rights reserved.

Judge Rules Phone Surveillance Program Is Likely Unlawful.

A federal judge ruled Monday that the National Security Agency’s bulk collection of phone records violates the Constitution’s ban on unreasonable searches, but put his decision on hold pending a near-certain government appeal.

U.S. District Court Judge Richard Leon granted a preliminary injunction sought by plaintiffs Larry Klayman and Charles Strange, concluding they were likely to prevail in their constitutional challenge. Leon, an appointee of former President George W. Bush, ruled Monday that the two men are likely to be able to show that their privacy interests outweigh the government’s interest in collecting the data. Leon says that means that massive collection program is an unreasonable search under the Constitution’s Fourth Amendment.

The collection program was disclosed by former NSA systems analyst Edward Snowden, provoking a heated debate over civil liberties. The Obama administration has defended the program as a crucial tool against terrorism.

But in his a 68-page, heavily footnoted opinion, Leon concluded that the government didn’t cite a single instance in which the program “actually stopped an imminent terrorist attack.”

“I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” he added.

He said was staying his ruling pending appeal “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues.”

© Copyright 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Mike Rogers: Let’s Fix ‘Terrorist Lottery Loophole’.

Lawmakers who oversee U.S. intelligence agencies are working to expand the government’s spying powers to allow it to continue electronically monitoring terror suspects who travel to the U.S. if they are already under surveillance overseas by the National Security Agency.

The proposal is intended to close what lawmakers describe as a brief surveillance gap that occasionally can occur because of varying legal standards between the NSA’s operations, directed principally overseas, and the FBI’s traditional role tracking suspects on U.S. soil. It would require changes, they said, in the Foreign Intelligence Surveillance Act.

The effort comes at an awkward time for the NSA, which has been the focus of public unease over the breadth of its spying powers as revealed by former systems analyst Edward Snowden. Court-ordered disclosures of past U.S. court rulings have also criticized the NSA for failing to comply with its own rules for collecting U.S. emails and phone records.

On Wednesday, four senators proposed a bill that would prohibit the NSA’s bulk collection of every Americans’ daily phone records and open up some of the actions of the FISA court, the secret federal court that reviews government surveillance requests. The government could still obtain records of anyone suspected of terrorism or espionage and of any individual in contact with a suspected terrorist or spy.

The chairwoman of the Senate Intelligence Committee, Sen. Dianne Feinstein, D-Calif., told The Associated Press that her committee is drafting a bill that would amend the law’s Section 702 provision, which authorizes targeting non-Americans outside the U.S., to allow uninterrupted spying on a suspect for “a limited period of time after the NSA learns the target has traveled to the United States, so the government may obtain a court order based on probable cause.”

“Logically, someone under NSA surveillance, such as a terrorist, may present more interest to the government if they are inside the United States,” but the surveillance can be temporarily stopped while the NSA or FBI builds its case to permit uninterrupted spying, Feinstein said.

A congressional aide said the proposed legislation would not specify whether the NSA would be the agency that continues its surveillance or the FBI would be the agency that picks up the target. The aide was not authorized to be identified publicly and spoke on condition of anonymity.

Proposed changes to FISA are the subject of a Senate Intelligence Committee hearing scheduled Thursday. The nation’s top intelligence officials, Director of National Intelligence James Clapper and Army Gen. Keith Alexander, the director of the NSA, were slated to testify.

The proposal seeking to close the surveillance gap has bipartisan support of the leaders of both House and Senate Intelligence committees.

“I call it the terrorist lottery loophole,” said Rep. Mike Rogers, D-Mich., the chairman of the House Intelligence Committee. “If you can find your way from a foreign country where we have reasonable suspicion that you are … a terrorist … and get to the United States, under a current rule, they need to turn it off and do a complicated handoff” to the FBI.

“Bottom line is, there is a gap,” said the ranking Democrat on the committee, Rep. C.A. Dutch Ruppersberger, D-Md.

“You have to get the evidence. The judge has to schedule a hearing and rule,” Ruppersberger said, drawing on his own time as an FBI prosecutor building such wiretap cases. “If in that gap period, and there’s an attack that kills Americans … shame on us all.”

Alexander has testified that there is no evidence of intentional wrongdoing in any of the NSA spying programs. Intelligence officials blame the thousands of errors the agency itself reported to the FISA court on a system so complex that, they have said, no single person at the NSA understood it. A compliance officer now tracks every keystroke the agency’s analysts make.

In a declassified internal report from 2012, NSA tracked 2,776 compliance incidents — meaning NSA analysts made errors in surveillance. But 2,065 of those incidents were cases of these “roamers” — suspects who had been under surveillance who managed to enter the U.S. legally, or illegally.

“It’s a foreign phone, it’s pinging off foreign networks,” Rogers said. “The suspect may turn it off. The suspect gets here. Now all of the sudden, the next thing they know, they (the NSA) are picking it up, but it’s in Brooklyn. … But they’ve been listening to it for two days. They have to turn it off, and then report it as an incident.”

The NSA’s mandate forbids it from spying on anyone inside the U.S., except in rare instances when the agency is allowed to spy on foreigners after making a case to a FISA court judge.

In most cases, it falls to the FBI to track such roaming suspects — and when the NSA calls to report a roamer, it has already stopped surveillance, and the clock has already started on the suspect’s opportunity to disappear inside the U.S.

“Detect, cease,” said one U.S. official, describing what the NSA does when it realizes its quarry is inside the States. The agency also has to throw out whatever it has collected — emails, phone calls or more — from the point it determines the suspect entered U.S. territory, the official said, speaking on condition of anonymity because the official was not authorized to speak publicly.

The FBI then has to decide quickly if the person is dangerous enough to start following electronically. If the suspect was, say, al-Qaida’s top bomb maker, the agents would scramble to build a case showing “probable cause” to follow him. The FBI can directly contact the attorney general to ask for emergency authority to follow the suspect for seven days. The agents then have to present the government’s case to the FISA court, for retroactive approval of the spying.

If the court rejects the case, the FBI has to throw out anything it’s collected in that emergency period. The court has rejected surveillance requests in 11 out of more than 33,000 times.

Under Feinstein’s proposal, FBI agents would not have to scramble to request permission to turn on surveillance. It would continue while the FBI built a case to present to the court.

“If the court order is not issued, all collection after the time the target is known to have entered the U.S. must be deleted,” she said.

The House lawmakers want to craft a similar exception that could allow the FBI in rare cases to seamlessly pick up surveillance, especially in cases of “imminent danger” in which the NSA and FBI believe the suspect is part of a plot to kill Americans.

The FBI has traditional law enforcement techniques it can use to track the suspect, but “electronic surveillance is the most effective way to track both their movements and their communications,” said another supporter of changing the law, Rep. Jim Langevin, D-R.I., a member of the House Intelligence Committee.

As they craft the exception to bridge the gap, Langevin said they would also be working to include “a process with checks and balances in there so that this authority could not be abused.”

The NSA, FBI and Justice Department would not comment on the proposals.


© Copyright 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


Court: Phone Companies Have Never Challenged NSA Record Collection.

The secret court that determined it was legal for the National Security Agency to collect and store nearly all the phone records of the U.S. public has revealed that no telecommunications company has ever challenged the government’s order to turn over records to the agency.

The Foreign Intelligence Surveillance Court also explained its judgment that Fourth Amendment protections against unreasonable search and seizure do not apply to business records, such as phone-call logs. It references a 1979 Supreme Court decision which found there is no expectation of privacy with regard to phone records, The Wall Street Journal reports.

“The opinion affirms that the bulk telephony metadata collection is both lawful and constitutional,” said Director of National Intelligence James Clapper in a statement, according to the Journal. “The release of this opinion is consistent with the president’s call for more transparency on these valuable intelligence programs.”

The decision by phone companies not to challenge government orders for records stands in contrast to numerous complaints from Internet companies about government demands for personal data and the secrecy surrounding the surveillance efforts.

Judge Claire Eagan, who sits on the court, was behind the decision to release the August 29 opinion upholding the program, arguing its release is in the public interest. The move appears to be a first for the court, suggesting a level of independence from the executive branch, though civil libertarians continue to argue otherwise, the Journal reports.

The NSA’s phone surveillance program was developed under a provision of the Patriot Act that authorized the agency to collect phone records as part of its terrorism investigations. The agency determined that nearly all phone records were relevant because it needed to review all calls to determine with whom suspects were communicating.

The content of calls is not captured, but the records, called “metadata,” include phone numbers people dialed and where they were calling from.

© 2013 Newsmax. All rights reserved.
By Melanie Batley

NSA Phone-Records Spying Said to Violate Court Orders for Years.

The U.S. National Security Agency violated rules on surveillance of telephone records for almost three years and misled a secret court, raising fresh concerns that spy programs lack adequate controls to protect Americans’ privacy.

The latest revelations show NSA spying was broader, violated restrictions on domestic surveillance more often, and may have targeted innocent Americans to a greater degree than previously known. They are contained in documents released yesterday by Director of National Intelligence James Clapper in response to privacy groups’ lawsuits.

The agency ran a select list of phone numbers against databases of millions of call records between May 2006 and January 2009 without having reason to suspect some of the numbers’ owners of terrorist ties, according to the records.

“The court entrusted NSA with extraordinary authority, and with it came the highest responsibility for compliance and protection of privacy rights,” NSA Director Keith Alexander wrote in one of the declassified documents. “In several instances, NSA implemented its authority in a manner inconsistent with the orders, and some of these inconsistencies were not recognized for more than two and a half years.”

The Electronic Frontier Foundation, a privacy-rights group in San Francisco, sued the NSA to obtain the documents that had been issued by a secret intelligence court.

“It’s pretty damning,” said Trevor Timm, a digital rights analyst with EFF. “This shows a larger pattern that a lot of times the NSA doesn’t alert the court to serious privacy violations, whether they are intentional or unintentional, for years down the road.”

Court Rules

The violations involved checks on as many as 16,000 phone numbers, including some based in the U.S., said two senior intelligence officials with direct knowledge of how the program operated. They asked not to be identified in order to speak about sensitive matters.

Intelligence officials notified the Foreign Intelligence Surveillance Court, which oversees intelligence gathering on Americans, of the violations on Jan. 15, 2009, five days before President Barack Obama was sworn in.

Among other violations, a “significant” number of domestic telephone numbers were added to lists for heightened scrutiny without proper review, according to an Aug. 17, 2009 filing by the NSA with the court. The agency said it had remedied the violations through better training and technological fixes.

‘Deeply Troubled’

Between March 2009 and September 2009 the court required the NSA to get approval for each number it wanted to query. In September of that year the court approved revised procedures that allowed the program to continue, the official said.

Within three weeks, the NSA reported that unauthorized personnel had been given access to some of the records. U.S. District Judge Reggie Walton, serving on the surveillance court, wrote of being “deeply troubled by the incidents.” He ordered the parties to appear at a hearing to assess whether to shut the surveillance program down. He didn’t take that step.

The NSA collects bulk phone records, such as numbers and call durations, from companies including Verizon Communications Inc. under Section 215 of the USA Patriot Act.

Under the law, the agency must have “reasonable, articulable suspicion” that a phone number may be connected to a terrorist plot to query it against the larger database of records.

Alert List

Between May 2006 and January 2009, NSA analysts would query the database with thousands of numbers on an “alert list,” the intelligence officials said. Those numbers didn’t meet the necessary legal standard for ongoing searches, the officials said.

The alert list grew from 3,980 in 2006 to 17,835 in 2009, one of the officials said. About 2,000 numbers on the list in 2009 met the necessary standard, the official said, meaning almost 16,000 didn’t. The alert list was shut down on Jan. 24, 2009, according to one of the declassified documents.

The NSA misled the surveillance court during those years by certifying the legal standard was met for all numbers queried, the official said.

Alexander described to the court in a Feb. 13, 2009, filing how mistakes were made in using the alert list. Four days later, the Justice Department submitted a memorandum to the court saying declarations made by Alexander were inaccurate and that the government didn’t have the authority to use the list in the manner it did.

Compliance Remedies

Remedies put in place “should significantly improve compliance with the court’s orders,” Alexander said. He added that “no corrective measures are infallible.” Remedies include software that prevents queries about numbers not on an approved list, Alexander said.

It wasn’t the first time the NSA has acknowledged violating surveillance rules or misleading the court.

The NSA said last month that, in a handful of cases, some employees or contractors deliberately spied on people of interest to them, including for romantic motivations.

Separately, a legal opinion declassified Aug. 21 revealed that the NSA intercepted as many as 56,000 electronic communications a year of Americans who weren’t suspected of having links to terrorism, before the secret court that oversees surveillance found the operation unconstitutional in 2011.

In a declassified legal opinion from October 2011, the court said the agency misrepresented the scope of surveillance operations three times in less than three years.

Government Audit

A May 2012 internal government audit found more than 2,700 violations involving NSA surveillance of Americans and foreigners over a one-year period. The audit was reported Aug. 16 by the Washington Post, citing documents provided by former NSA contractor Edward Snowden.

The extent of the phone metadata program was exposed in June by Snowden, who’s now in Russia under temporary asylum. He revealed a classified legal order compelling Verizon to turn over the phone records of millions of customers to the NSA.

The administration acknowledged that the phone metadata program involves multiple telecommunications carriers in an Aug. 9 description of how the program works, without naming other participating companies.

Yesterday’s disclosures were made in response to a judge’s order in a freedom of information lawsuit brought by the Electronic Frontier Foundation.

The group sued after the government didn’t respond to its requests to turn over documents describing its collection and surveillance efforts. In November the government asked U.S. District Judge Yvonne Gonzalez Rogers in Oakland, California, to toss the case, saying the EFF sought documents that were exempt from disclosure to protect national security.

‘Flawed Interpretation’

The Justice Department said in a Sept. 5 court filing that it would release hundreds of pages to EFF, including orders and opinions of the surveillance court from January 2004 to June 2011 and other documents about the court’s work.

The government has collected “the details of every call made by every American” in violation of the Patriot Act, said Republican Representative Jim Sensenbrenner of Wisconsin, who helped write the 2001 law.

“The implications of this flawed interpretation are staggering,” Sensenbrenner wrote in a Sept. 6 letter to Attorney General Eric Holder. “The logic the administration uses for bulk collection would seem to support bulk collection of other personal data.”

The case is Electronic Frontier Foundation v. Department of Justice, 11-05221, U.S. District Court, Northern District of California (Oakland).

© Copyright 2013 Bloomberg News. All rights reserved.


Report: NSA Routinely Violated Privacy Rules.

Government officials for nearly three years accessed data on thousands of domestic phone numbers they shouldn’t have and then misrepresented their actions to a secret spy court to reauthorize the government’s surveillance program, documents released Tuesday show.

The Obama administration had earlier conceded that its surveillance program scooped up more domestic phone calls and emails than authorized. But until Tuesday, the depths of the program’s abuse were unknown.

According to the documents released by the administration, a spy court judge in 2009 was so fed up with the government’s overreaching that he threatened to shutter the surveillance program designed to fight terrorism. Judge Reggie Walton said in March 2009 that he had “lost confidence” in officials’ ability to legally operate the surveillance program.

The NSA told the Foreign Intelligence Surveillance Court that month that “from a technical standpoint, there was no single person who had a complete technical understanding” of how the program’s computer system worked.

Walton issued his blistering opinion after discovering government officials had been accessing domestic phone records for nearly three years without “reasonable, articulate suspicion” that they were connected to terrorism. For instance, he noted that only 1,935 phone numbers out of 17,835 on a list investigators were working with in early 2009 met that standard.

Walton said the government’s excuse that analysis believed his order applied only to archived phone records “strained credulity,” and he ordered the National Security Agency to conduct an “end-to-end” review of its processes and policies while also ordering closer monitoring of its activities.

Later in 2009, a Justice Department lawyer reported to the spy court a “likely violation” of NSA surveillance rules. The lawyer said that in some cases, it appeared the NSA was distributing sensitive phone records by email to as many as 189 analysts, but only 53 were approved by the court to see them.

Walton wrote that he was “deeply troubled by the incidents,” which he said occurred just weeks after the NSA had performed a major review of its internal practices because of the initial problems reported earlier in the year.

The judge said in November 2009 that on the same day that the NSA counterterrorism office reminded employees they were not allowed to indiscriminately share phone records with co-workers — and one day after a similar reminder from the agency’s lawyers — an NSA analyst improperly shared information with colleagues who were not approved to see it.

Walton also noted that sometimes a U.S. phone number would be reassigned by phone companies, and in such cases the NSA would scrutinize the records of an innocent customer. Walton called such cases “a source of concern by the court.” He noted that, months earlier, the court ordered the NSA to explain more fully how it chooses which phone numbers to search and to delete any information that was improperly collected.

“This report was not sufficiently detailed to allay the court’s concerns,” Walton wrote. He ordered the NSA going forward to regularly tell the court the number of phone records searched, the time period they could be searched and details about how the NSA analysts were conducting searches suggested by results from other searches.

The hundreds of previously classified documents federal officials released Tuesday came in response to a lawsuit filed by the Electronic Frontier Foundation.

The Obama administration has been facing mounting pressure to reveal more details about the government’s domestic surveillance program since a former intelligence contractor released documents showing massive National Security Agency trawling of domestic data.

The information included domestic telephone numbers, calling patterns and the agency’s collection of Americans’ Internet user names, IP addresses and other metadata swept up in surveillance of foreign terror suspects.

The Obama administration’s decision to release the documents comes just two weeks after it declassified three secret Foreign Intelligence Surveillance Court opinions — including one in response to a separate EFF lawsuit in federal court in Washington. In that October 2011 opinion, Judge John D. Bates said he was troubled by at least three incidents over three years where government officials admitted to mistaken collection of domestic data.

The NSA’s huge surveillance machine proved unwieldy even for the experts inside the agency. In a long report to the surveillance court in August 2009, the Obama administration blamed its mistakes on the complexity of the system and “a lack of shared understanding among the key stakeholders” about the scope of the surveillance.

Complexity has been a theme since the NSA leaks began this summer. Though Obama said Congress was briefed on the programs, members of Congress said they were surprised to learn how vast and intrusive the surveillance was. Even Rep. James Sensenbrenner, who sponsored the Patriot Act, said he never knew it would be used to sweep up phone records of every American.

© Copyright 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


NSA Powers Restored after Obama Request to Secret Court.

The power used by the National Security Agency to spy on Americans‘ phone calls and e-mails was actually blocked during the Bush administration but overturned after Barack Obama took office through a secret court order, the Washington Post reports.

The Obama administration won permission in 2011 from the Foreign Intelligence Surveillance Court to spy on Americans without a warrant and to keep the information it collected for six years, according to interviews and declassified documents obtained by the Post.

The NSA has been intercepting more than 250 million Internet communications a year, 91 percent of which came from U.S. companies like Google and Yahoo.

The spying operation was exposed by Edward Snowden, who has since sought asylum in Russia to avoid prosecution for the leak.

Robert S. Litt, general counsel of the Office of the Director of National Intelligence, confirmed to the newspaper that the Obama administration asked the court to lift the ban so the government could more quickly learn about terrorist plots.

“We wanted to be able to do it,” Litt said, referring to the searching of Americans’ communications without a warrant.

The court ruling also appears to be the basis of cryptic criticism from within Obama’s own party on Capitol Hill that the federal government had found a “back-door search loophole” to spy on Americans.

Chief among those critics were Democratic Sens. Ron Wyden of Oregon and Mark Udall of Colorado, who also tried unsuccessfully to pass legislation prohibiting the searches of Americans’ communications without a court warrant.

“Our founders laid out a roadmap where Americans’ privacy rights are protected before their communications are seized or searched — not after the fact,” Udall said in a statement to the paper.

© 2013 Newsmax. All rights reserved.

By Audrey Hudson

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