The Dangers of Secret Law

Last week, the Department of Justice released 18 new FISC opinions related to Section 702 as part of an EFF FOIA lawsuit. (Of course, they don’t mention EFF or the lawsuit. They make it sound as if it was their idea.) There’s probably a lot in these opinions. In one Kafkaesque ruling, a defendant was denied access to the previous…

Last week, the Department of Justice released 18 new FISC opinions related to Section 702 as part of an EFF FOIA lawsuit. (Of course, they don't mention EFF or the lawsuit. They make it sound as if it was their idea.)

There's probably a lot in these opinions. In one Kafkaesque ruling, a defendant was denied access to the previous court rulings that were used by the court to decide against it:

...in 2014, the Foreign Intelligence Surveillance Court (FISC) rejected a service provider's request to obtain other FISC opinions that government attorneys had cited and relied on in court filings seeking to compel the provider's cooperation.

[...]

The provider's request came up amid legal briefing by both it and the DOJ concerning its challenge to a 702 order. After the DOJ cited two earlier FISC opinions that were not public at the time -- one from 2014 and another from 2008­ -- the provider asked the court for access to those rulings.

The provider argued that without being able to review the previous FISC rulings, it could not fully understand the court's earlier decisions, much less effectively respond to DOJ's argument. The provider also argued that because attorneys with Top Secret security clearances represented it, they could review the rulings without posing a risk to national security.

The court disagreed in several respects. It found that the court's rules and Section 702 prohibited the documents release. It also rejected the provider's claim that the Constitution's Due Process Clause entitled it to the documents.

This kind of government secrecy is toxic to democracy. National security is important, but we will not survive if we become a country of secret court orders based on secret interpretations of secret law.

from https://www.schneier.com/blog/

NSA Abandons "About" Searches

Earlier this month, the NSA said that it would no longer conduct "about" searches of bulk communications data. This was the practice of collecting the communications of Americans based on keywords and phrases in the contents of the messages, not based on who they were from or to. The NSA’s own words: After considerable evaluation of the program and available…

Earlier this month, the NSA said that it would no longer conduct "about" searches of bulk communications data. This was the practice of collecting the communications of Americans based on keywords and phrases in the contents of the messages, not based on who they were from or to.

The NSA's own words:

After considerable evaluation of the program and available technology, NSA has decided that its Section 702 foreign intelligence surveillance activities will no longer include any upstream internet communications that are solely "about" a foreign intelligence target. Instead, this surveillance will now be limited to only those communications that are directly "to" or "from" a foreign intelligence target. These changes are designed to retain the upstream collection that provides the greatest value to national security while reducing the likelihood that NSA will acquire communications of U.S. persons or others who are not in direct contact with one of the Agency's foreign intelligence targets.

In addition, as part of this curtailment, NSA will delete the vast majority of previously acquired upstream internet communications as soon as practicable.

[...]

After reviewing amended Section 702 certifications and NSA procedures that implement these changes, the FISC recently issued an opinion and order, approving the renewal certifications and use of procedures, which authorize this narrowed form of Section 702 upstream internet collection. A declassification review of the FISC's opinion and order, and the related targeting and minimization procedures, is underway.

A quick review: under Section 702 of the Patriot Act, the NSA seizes a copy of all communications moving through a telco -- think e-mail and such -- and searches it for particular senders, receivers, and -- until recently -- key words. This pretty clearly violates the Fourth Amendment, and groups like the EFF have been fighting the NSA in court about this for years. The NSA has also had problems in the FISA court about these searches, and cites "inadvertent compliance incidents" related to this.

We might learn more about this change. Again, from the NSA's statement:

After reviewing amended Section 702 certifications and NSA procedures that implement these changes, the FISC recently issued an opinion and order, approving the renewal certifications and use of procedures, which authorize this narrowed form of Section 702 upstream internet collection. A declassification review of the FISC's opinion and order, and the related targeting and minimization procedures, is underway.

And the EFF is still fighting for more NSA surveillance reforms.

from https://www.schneier.com/blog/

NSA Given More Ability to Share Raw Intelligence Data

President Obama has changed the rules regarding raw intelligence, allowing the NSA to share raw data with the US’s other 16 intelligence agencies. The new rules significantly relax longstanding limits on what the N.S.A. may do with the information gathered by its most powerful surveillance operations, which are largely unregulated by American wiretapping laws. These include collecting satellite transmissions, phone…

President Obama has changed the rules regarding raw intelligence, allowing the NSA to share raw data with the US's other 16 intelligence agencies.

The new rules significantly relax longstanding limits on what the N.S.A. may do with the information gathered by its most powerful surveillance operations, which are largely unregulated by American wiretapping laws. These include collecting satellite transmissions, phone calls and emails that cross network switches abroad, and messages between people abroad that cross domestic network switches.

The change means that far more officials will be searching through raw data. Essentially, the government is reducing the risk that the N.S.A. will fail to recognize that a piece of information would be valuable to another agency, but increasing the risk that officials will see private information about innocent people.

Here are the new procedures.

This rule change has been in the works for a while. Here are two blog posts from April discussing the then-proposed changes.

From a privacy perspective, this feels like a really bad idea to me.

from https://www.schneier.com/blog/

Yahoo Scanned Everyone’s E-mails for the NSA

News here and here. Other companies have been quick to deny that they did the same thing, but I generally don’t believe those carefully worded statements about what they have and haven’t done. We do know that the NSA uses bribery, coercion, threat, legal compulsion, and outright theft to get what they want. We just don’t know which one they…

News here and here.

Other companies have been quick to deny that they did the same thing, but I generally don't believe those carefully worded statements about what they have and haven't done. We do know that the NSA uses bribery, coercion, threat, legal compulsion, and outright theft to get what they want. We just don't know which one they use in which case.

EDITED TO ADD (10/7): More news. This and this, too.

from https://www.schneier.com/blog/