209: Confirmation Obama Spied on Americans

Chris Spangle, Greg Lenz, Harry Price, and Cat Anagnos discuss the FISA court’s spanking of the Obama administration’s illegal spying on Americans.

Show Notes

Obama Intel Agency Secretly Conducted Illegal Searches on Americans for Years

Summary: “To summarize, we have the communications of Americans inside the United States being incidentally intercepted, stored, sifted through, and in some instances analyzed, even though those Americans are not targets of foreign-intelligence collection.

The minimization procedures are supposed to prevent the worst potential abuses, particularly, the pretextual use of foreign-intelligence-collection authority in order to conduct domestic spying.

But even when complied with, there is a colorable argument that the minimization procedures do not eliminate the Fourth Amendment problem — i.e., they permit seizure and search without adequate cause. Now we know the minimization procedures have not been complied with.

The new scandal involves their flouting.”

While the activities of these Americans might have made them worthy foreign-intelligence targets, there are other ways to monitor them under FISA. Targeting them for section 702 searches increased the likelihood that wholly domestic communications between Americans would be collected. Thus, the minimization procedures were ratcheted up. The most significant change, as the FISA court opinion relates, was that the revised “Procedures categorically prohibited NSA analysts from using U.S.-person identifiers to query the results of upstream Internet collection” (emphasis added). This meant the NSA was not supposed to use an American’s phone number, e-mail address, or other “identifier” in running searches through its upstream database. It is this prohibition that the NSA routinely and extensively violated. Evidently, there was widespread use of American identifiers throughout the years after the 2011 revision of the minimization procedures. The violation was so broad that, at the time the Obama administration ended, its scope had still not been determined.

Clearly, this new scandal must be considered in context:

  • The NSA says it does not share raw upstream collection data with any other intelligence agency. But that data is refined into reports.
  • To the extent the data collected has increased the number of Americans whose activities make it into reports, it has simultaneously increased the opportunities for unmasking American identities.
  • Other reporting indicates that there was a significant uptick in unmasking incidents in the latter years of the Obama administration. More officials were given unmasking authority.
  • At the same time, President Obama loosened restrictions to allow wider access to raw intelligence collection and wider dissemination of intelligence reports.
  • This geometrically increased the likelihood that classified information would be leaked — as did the Obama administration’s encouragement to Congress to demand disclosure of intelligence related to the Trump campaign (the purported Trump–Russia connection).
  • And of course, there has been a stunning amount of leaking of classified information to the media.
  • Enabling of domestic spying, contemptuous disregard of court-ordered minimization procedures (procedures the Obama administration itself proposed, then violated), and unlawful disclosure of classified intelligence to feed a media campaign against political adversaries. Quite the Obama legacy.

NATIONAL REVIEW ANDREW MCCARTHY: During the Obama years, the National Security Agency intentionally and routinely intercepted and reviewed communications of American citizens in violation of the Constitution and of court-ordered guidelines implemented pursuant to federal law.

The unlawful surveillance appears to have been a massive abuse of the government’s foreign-intelligence-collection authority, carried out for the purpose of monitoring the communications of Americans in the United States.

While aware that it was going on for an extensive period of time, the administration failed to disclose its unlawful surveillance of Americans until late October 2016, when the administration was winding down and the NSA needed to meet a court deadline in order to renew various surveillance authorities under the Foreign Intelligence Surveillance Act (FISA).

The administration’s stonewalling about the scope of the violation induced an exasperated Foreign Intelligence Surveillance Court to accuse the NSA of “an institutional lack of candor” in connection with what the court described as “a very serious Fourth Amendment issue.”

The court is the federal tribunal created in 1978 by FISA; it is often referred to as a “secret court” because proceedings before it are classified and ex parte — meaning only the Justice Department appears before the court

upstream collection refers to the interception of communications “as they transit the facilities of an Internet backbone carrier.” These are the data routes between computer networks. The routes are hosted by government, academic, commercial, and similar high-capacity network centers, and they facilitate the global, international exchange of Internet traffic.

Upstream collection from the Internet’s “backbone,” which accounts for about 9 percent of the NSA’s collection haul (a massive amount of communications), is distinguished from interception of communications from more familiar Internet service providers.

Upstream collection is a tool for gathering intelligence against foreign threats to the United States. It is, of course, on foreign intelligence targets — non-U.S. persons situated outside the U.S. — that the NSA and CIA are supposed to focus.

Foreign agents operating inside the U.S. are mainly the purview of the FBI, which conducts surveillance of their communications through warrants from the FISA court — individualized warrants based on probable cause that a specific person is acting as an agent of a foreign power.

The NSA conducts vacuum intelligence-collection under a different section of FISA — section 702. It is inevitable that these section 702 surveillance authorities will incidentally intercept the communications of Americans inside the United States if those Americans are communicating with the foreign target. This does not raise serious Fourth Amendment concerns; after all, non-targeted Americans are intercepted all the time in traditional criminal wiretaps because they call, or are called by, the target.

But FISA surveillance is more controversial than criminal surveillance because the government does not have to show probable cause of a crime — and when the targets are foreigners outside the U.S., the government does not have to make any showing; it may target if it has a legitimate foreign-intelligence purpose, which is really not much of a hurdle at all.

FISA section 702 provides some privacy protection for Americans: The FISA court orders “minimization” procedures, which require any incidentally intercepted American’s identity to be “masked.” That is, the NSA must sanitize the raw data by concealing the identity of the American. Only the “masked” version of the communication is provided to other U.S. intelligence agencies for purposes of generating reports and analyses. As I have previously explained, however, this system relies on the good faith of government officials in respecting privacy: There are gaping loopholes that permit American identities to be unmasked if, for example, the NSA or some other intelligence official decides doing so is necessary to understand the intelligence value of the communication. While that kind of incidental collection raises the concerns of privacy advocates, it is a small problem compared to upstream collection, the technology of which poses profound Fourth Amendment challenges.


In a nutshell, it is not possible to capture a single e-mail related to a single target as it transits the backbone routes (or “switches”) that connect networks. The NSA must instead capture packets of e-mail data — which include lots of e-mails beside the targeted e-mail.

It sifts through these packets, finds and assembles the components of the email it was looking for, and then discards the rest. (A New York Times report by Charlie Savage earlier this week, in connection with a different FISA issue, provides a good explanation of this process.

By contrast, the relevant discussion in the FISA court opinion of “multiple communications transactions,” or MCTs, is brief and heavily redacted — see the opinion at 15–16.) Even if the NSA does exactly what it is supposed to do (i.e., sift and discard), this means American communications are being seized and subjected to an inspection — however cursory — in the absence of any warrant, probable cause, or foreign-intelligence relevance.

Now, couple this problem with the way the NSA targets. The upstream communications it collects end up in databases. When the NSA has a target about whom it seeks intelligence, it runs a search through the databases using what is variously called an “identifier,” a “selection term,” or a “selector” — some e-mail address, phone number, or other identifying information related to the target. For years, U.S. intelligence agencies have not just sought any communications to or from this target; they have also sought any communications about this target — e.g., when the target merely appears to have been referred to.

This means the communications of people, including Americans inside the United States, are far more likely to be accessed and analyzed — even though, again, there is no warrant or probable cause, there may be no direct communication with a proper intelligence target, and the Americans’ communications may be of no foreign-intelligence value.

Read more at: http://www.nationalreview.com/article/447973/nsa-illegal-surveillance-americans-obama-administration-abuse-fisa-court-response

  • Circa News Original Reporter:
    • The National Security Agency under former President Barack Obama routinely violated American privacy protections while scouring through overseas intercepts and failed to disclose the extent of the problems until the final days before Donald Trump was elected president last fall, according to once top-secret documents that chronicle some of the most serious constitutional abuses to date by the U.S. intelligence community.
    • More than 5 percent, or one out of every 20 searches seeking upstream Internet data on Americans inside the NSA’s so-called Section 702 database violated the safeguards Obama and his intelligence chiefs vowed to follow in 2011, according to one classified internal report reviewed by Circa.
    • The Obama administration self-disclosed the problems at a closed-door hearing Oct. 26 before the Foreign Intelligence Surveillance Court that set off alarm. Trump was elected less than two weeks later.
    • The normally supportive court censured administration officials, saying the failure to disclose the extent of the violations earlier amounted to an “institutional lack of candor” and that the improper searches constituted a “very serious Fourth Amendment issue,” according to a recently unsealed court document dated April 26, 2017. (The admitted violations undercut one of the primary defenses that the intelligence community and Obama officials have used in recent weeks to justify their snooping into incidental NSA intercepts about Americans.)
    • Circa has reported that there was a three-fold increase in NSA data searches about Americans and a rise in the unmasking of U.S. person’s identities in intelligence reports after Obama loosened the privacy rules in 2011.
    • Officials like former National Security Adviser Susan Rice have argued their activities were legal under the so-called minimization rule changes Obama made, and that the intelligence agencies were strictly monitored to avoid abuses.
    • The intelligence court and the NSA’s own internal watchdog found that not to be true:

“Since 2011, NSA’s minimization procedures have prohibited use of U.S.-person identifiers to query the results of upstream Internet collections under Section 702,” the unsealed court ruling declared.

“The Oct. 26, 2016 notice informed the court that NSA analysts had been conducting such queries inviolation of that prohibition, with much greater frequency than had been previously disclosed to the Court.”

    • The American Civil Liberties Union said the newly disclosed violations are some of the most serious to ever be documented and strongly call into question the U.S. intelligence community’s ability to police itself and safeguard American’s privacy as guaranteed by the Constitution’s Fourth Amendment protections against unlawful search and seizure.

      “I think what this emphasizes is the shocking lack of oversight of these programs,” said Neema Singh Guliani, the ACLU’s legislative counsel in Washington.

 

  • The NSA acknowledged it self-disclosed the mass violations to the court last fall and that in April it took the extraordinary step of suspending the type of searches that were violating the rules, even deleting prior collected data on Americans to avoid any further violations.“NSA will no longer collect certain internet communications that merely mention a foreign intelligence target,” the agency said in the statement that was dated April 28 and placed on its Web site without capturing much media or congressional attention.

 

 

  • In question is the collection of what is known as upstream “about data”about an American that is collected even though they were not directly in contact with a foreigner that the NSA was legally allowed to intercept.The NSA said it doesn’t have the ability to stop collecting ‘about’ information on Americans, “without losing some other important data. ” It, however, said it would stop the practice to “reduce the chance that it would acquire communication of U.S. persons or others who are not in direct contact with a foreign intelligence target.”

 

 

  • The NSA said it also plans to “delete the vast majority of its upstream internet data to further protect the privacy of U.S. person communications.”Agency officials called the violations “inadvertent compliance lapses.” But the court and IG documents suggest the NSA had not developed a technological way to comply with the rules they had submitted to the court in 2011.

 

    • Officials “explained that NSA query compliance is largely maintained through a series of manual checks” and had not “included the proper limiters” to prevent unlawful searches, the NSA internal watchdog reported in a top secret report in January that was just declassified. A new system is being developed now, officials said.
    • The NSA conducts thousand of searches a year on data involving Americans and the actual numbers of violations were redacted from the documents Circa reviewed.
    • But a chart in the report showed there three types of violations, the most frequent being 5.2 percent of the time when NSA Section 702 upstream data on U.S. persons was searched.
    • The inspector general also found  noncompliance between 0.7 percent and 1.4 percent of the time involving NSA activities in which there was a court order to target an American for spying  but the rules were still not followed. Those activities are known as Section 704 and Section 705 spying.
    • The IG report spared few words for the NSA’s efforts before the disclosure to ensure it was complying with practices, some that date to rules issued in 2008 in the final days of the Bush administration and others that Obama put into effect in 2011.

      “We found that the Agency controls for monitoring query compliance have not been completely developed,” the inspector general reported, citing problems ranging from missing requirements for documentation to the failure to complete controls that would ensure “query compliance.”

      The NSA’s Signal Intelligence Directorate, the nation’s main foreign surveillance arm, wrote a letter back to the IG saying it agreed with the findings and that “corrective action plans” are in the works.

“More than one in 20 internet searches conducted by the National Security Agency, involving Americans, during the Obama administration violated constitutional privacy protections,” announced Fox News’ Bret Baier near the top of Special Report. “And that practice went on for years. Not only that. But the Obama administration was harshly rebuked by the FISA court for doing it.”

Thank you for listening to all of the We Are Libertarians podcasts.