Fourth Amendment The Truth Shall Keep Us Free!!

I would be as outraged, as the author of this article purports to be, if NSA was intentionally collecting and analyzing the voice or email communications of US citizens with the intention of using the contents of those communications in some detrimental manner to those US citizens.

NSA began having the same sort of discussions, that are currently publicly occurring, many years ago. It was recognized by NSA in the eighties that with communications going digital, there was a greatly increased potential for the unintentional collection of the protected communications of US persons.

Once upon a time, it was a rare occurrence to accidentally collect the communications of a US person; but with the advent of digitized communications, where a communication may divided into multiple data packets, separated from the billing/identifying information of the persons involved, and each packet transmitted via a separate network route, surgical extraction of targeted communications became a near impossible task. NSA realized that they were going to have to trade in their spear gun for a seine net, and later sort out the wanted catch from the unwanted.

I remember the first email interception and analysis course that I attended, back in the late eighties. It was acknowledged that an IP address was not as easy to associate with a user as a telephone number once was, and that we were not going to always know the identity of the sender until a fair amount of collection and analysis had already occurred. Because of this, a streamlined system was established to report the unintentional collection of US communications. When you realized that you had a US citizen, you stopped collection and analysis, filled out the report form; and moved on to another target.

To deny NSA the ability to map the digital network, and that means collecting metadata, you might as well tell them to shut their doors, and say that we, as Americans, will take our chances with the terrorists. It isn't the 1940's, our enemies aren't wearing distinctive uniforms, and they aren't located across a protective ocean. They are right here, amongst us. They are living in our cities. They are using the US telecommunications system.

Our constitutional protections are precious to us. So are the lives of our friends and families. There isn't a perfect answer. Either we accept a close scrutiny of communications externals and patterns, or we have blanket interception of actual communications, or we decline to look for terrorist communications and accept the consequences. Those are our choices.

 

I agree with the need for appropriate oversight, and I know that the FISA court is not the perfect answer. I know that the system can be improved upon. I also know that the traditional search warrant procedure is hopelessly outdated, when it comes to addressing our digital telecommunications networks.

The author of this piece is intentionally vague in his descriptions of alleged wrong doing by government agencies, to the point that I'm not sure exactly what peccadilloes he is addressing. In general, he seems to be saying that politicians can't be trusted, and that the government is capable of telling falsehoods. This shouldn't be news to anyone. He talks about the right to be left alone, and that's a fine sentiment, and it works from a personal perspective, but not so much as a national policy; any more than did the isolationism favored by many in this country between the world wars. Henry Stimson, Secretary of State under Herbert Hoover, remarked that, "Gentlemen do not read each others mail." as he shut down the "Black Chamber," the forerunner of the National Security Agency; greatly limiting America's ability to defend itself against those who would do us harm.

I agree with the author that we are spending too much time talking about Snowden and his alleged motives. (I personally have a hard time embracing Snowden though as a freedom loving American patriot when he immediately ran to China and then to Russia, and now is seeking a more permanent residency in two other countries, which have abysmal records regarding the protection of personal freedoms of their citizens. I don't know why Snowden did what he did, and I'm not sure that he's completely clear on it himself.) There are certainly larger discussions to be having, but hopefully our position will be somewhat more sophisticated than, "Gentlemen do not read each others mail."

 

Secret-court judges upset at portrayal of ‘collaboration’ with government

EXCERPTS:
Recent leaks of classified documents have pointed to the role of a special court in enabling the government’s secret surveillance programs, but members of the court are chafing at the suggestion that they were collaborating with the executive branch.

A classified 2009 draft report by the National Security Agency’s inspector general relayed some details about the interaction between the court’s judges and the NSA, which sought approval for the Bush administration’s top-secret domestic surveillance programs.
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U.S. District Judge Colleen Kollar-Kotelly, the former chief judge of the Foreign Intelligence Surveillance Court, took the highly unusual step Friday of voicing open frustration at the account in the report and court’s inability to explain its decisions.
“In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” Kollar-Kotelly said in a statement to The Post. It was her first public comment describing her work on the intelligence court.

The inspector general’s draft report is among the many documents leaked by former NSA contractor Edward Snowden, touching off a roiling national debate about the proper balance between the government’s reach into Americans’ lives and the effort to protect the nation in the Internet age.

The document portrays the surveillance court as “amenable” to the government’s legal theory to “re-create” authority for the Internet metadata program that had initially been authorized by President George W. Bush without court or congressional approval. The program was shut down in March 2004 when acting Attorney General James B. Comey and senior leaders at the Justice Department threatened to resign over what they felt was an illegal program.

Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and Justice in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.

“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.”

The perception that the court works too closely with the government arises in large part from the tribunal’s “ex parte” nature, which means that unlike in a traditional court, there is no legal sparring between adversaries with the judge as arbiter. Instead, a Justice Department official makes the case for the government agency seeking permission to carry out surveillance inside the United States. No one speaks for the target of the surveillance or the company that is ordered to allow its networks to be tapped or to turn over its customers’ data.

Some critics say the court is a rubber stamp for government investigators because it almost never has turned down a warrant application. However, that high batting average doesn’t take into account changes the court requires in some requests and other applications that the government withdraws.
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The court historically has authorized in secret hearings classified warrants to wiretap the calls and monitor the movements of suspected criminals. After the terrorist attacks of Sept. 11, 2001, far-reaching programs to gather Internet and telephone content and metadata were launched under presidential authority, without congressional action or approval from the surveillance court.

The Internet metadata portion of that program had to be revamped after Comey and other Justice officials threatened to resign. Metadata are information indicating facts such as an e-mail’s sender and recipient and its time and date, but not its content.

In May 2004, the NSA briefed Kollar-Kotelly on the technical aspects of that program’s collection, according to the report. She also met with the NSA director, Lt. Gen. Michael V. Hayden, on two successive Saturdays during the summer of 2004 to discuss the issue, the report said.

“It was very professional,” Hayden said in an interview. “We of course had to explain to her what it was we had been doing, what it was we wanted to do, how we would do it, what kind of safeguards we felt able to put in. We left it to her judgment whether there was proportionality in terms of was this worth doing, in the balance between security and liberty.”

He said in response to her concerns, the agency made some technical adjustments so that “the odds were greater that you’d pick up fewer protected communications of U.S. persons.” Said Hayden: “She wasn’t in league with us. We were down there presenting what we thought was appropriate.”

On July 14, 2004, the surveillance court for the first time approved the gathering of information by the NSA, which created the equivalent of a digital vault to hold Internet metadata. Kollar-Kotelly’s order authorized the metadata program under a FISA provision known as the “pen register/trap and trace,” or PRTT.
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“The order essentially gave NSA the same authority to collect bulk Internet metadata that it had under the PSP,” the inspector general’s report said, with some minor caveats including reducing the number of people who could access the records.

On May 24, 2006, Kollar-Kotelly signed another order, this one authorizing the bulk collection of phone metadata from U.S. phone companies, under a FISA provision known as Section 215, or the ”business records provision,” of the USA Patriot Act.

As with the PRTT order, the Justice Department and NSA “collaboratively designed the application, prepared declarations and responded to questions from court advisers,” the inspector general’s report said. “Their previous experience in drafting the PRTT order made this process more efficient.”

The court also agreed in 2007 to permit the government to collect the content of e-mails and phone calls to and from the United States when “there is probable cause to believe” that one of the parties is a member of al-Qaeda or an associated terrorist group. That program, known today as PRISM and described in documents obtained by The Washington Post, eventually was authorized by Congress.

Kollar-Kotelly could be a stern taskmaster when she thought the NSA was overstepping its bounds. In 2004, she temporarily shut down the government’s surveillance program when she learned of a key NSA failure, The Post reported in 2006. The agency was not properly walling off information gained in warrantless surveillance and may have been using the information to obtain court warrants, which was forbidden.

In 2005, the problem resurfaced and she issued a strong warning to the government that it had to fix the problem or would face trouble obtaining court warrants.
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A former senior Justice Department official, who spoke on the condition of anonymity because of the subject’s sensitivity, said he believes the government should consider releasing declassified summaries of relevant opinions.

“I think it would help” quell the “furor” raised by the recent disclosures, he said. “In this current environment, you may have to lean forward a little more in declassifying stuff than you otherwise would. You might be able to prepare reasonable summaries that would be helpful to the American people.”
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Secret-court judges upset at portrayal of ‘collaboration’ with government - The Washington Post

 

Misinformation on classified NSA programs includes statements by senior U.S. officials

EXCERPTS:
Amid the cascading disclosures about National Security Agency surveillance programs, the top lawyer in the U.S. intelligence community opened his remarks at a rare public appearance last week with a lament about how much of the information being spilled was wrong.

“A lie can get halfway around the world before the truth gets its boots on,” said Robert Litt, citing a line often attributed to Mark Twain. “Unfortunately, there’s been a lot of misinformation that’s come out about these programs.”

The remark by Litt, general counsel for the Office of the Director of National Intelligence, was aimed at news organizations. But details that have emerged from the exposure of hundreds of pages of previously classified NSA documents indicate that public assertions about these programs by senior U.S. officials have also often been misleading, erroneous or simply false.

The same day Litt spoke, the NSA quietly removed from its Web site a fact sheet about its collection activities because it contained inaccuracies discovered by lawmakers.

A week earlier, President Obama, in a television interview, asserted that oversight of the surveillance programs was “transparent” because of the involvement of a special court, even though that court’s sessions and decisions are sealed from the public. “It is transparent,” Obama said of the oversight process. “That’s why we set up the FISA court.”

A remark by Litt’s boss, Director of National Intelligence James R. Clapper Jr., has perhaps drawn the most attention. Asked during a congressional hearing in March whether the NSA collected data on millions of Americans, Clapper replied, “No, sir.”

U.S. officials have cited a variety of factors to explain the discrepancies, including the challenge of speaking publicly and definitively about programs that remain classified and involve procedures and technical systems that are highly complex.

Jane Harman, a former ranking Democrat on the House Intelligence Committee, said that speaking about secret programs can be a “minefield” for public officials.
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Acknowledging the “heated controversy” over his remark, Clapper sent a letter to the Senate Intelligence Committee on June 21 saying that he had misunderstood the question he had been asked.

“I have thought long and hard to re-create what went through my mind at the time,” Clapper said in the previously undisclosed letter. “My response was clearly erroneous — for which I apologize.”

Beyond inadvertent missteps, however, an examination of public statements over a period of years suggests that officials have often relied on legalistic parsing and carefully hedged characterizations in discussing the NSA’s collection of communications.

Obama’s assurances have hinged, for example, on a term — targeting — that has a specific meaning for U.S. spy agencies that would elude most ordinary citizens.

“What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls and the NSA cannot target your e-mails,” Obama said in his June 17 interview on PBS’s “Charlie Rose Show.”

But even if it is not allowed to target U.S. citizens, the NSA has significant latitude to collect and keep the contents of e-mails and other communications of U.S. citizens that are swept up as part of the agency’s court-approved monitoring of a target overseas.

The law allows the NSA to examine such messages and share them with other agencies if it determines that the information contained is evidence of a crime, conveys a serious threat or is necessary to understand foreign intelligence.

The threshold for scrutinizing other data not regarded as content but still potentially revealing is lower than it is for the contents of communications. A 2009 report by the NSA inspector general and obtained by The Washington Post indicates that the agency for years examined metadata on e-mails flowing into and out of the United States, including “the sender and recipient e-mail addresses.”

President George W. Bush at times engaged in similarly careful phrasing to defend surveillance programs in the years after the Sept. 11, 2001, attacks. In 2004, while calling for renewal of the Patriot Act, Bush sought to assuage critics by saying “the government can’t move on wiretaps or roving wiretaps without getting a court order.”

At the time, it had not yet been publicly disclosed that Bush had secretly authorized NSA surveillance of communications between U.S. residents and contacts overseas while bypassing the Foreign Intelligence Surveillance Court.

When the wiretapping operation was exposed in the news media two years later, Bush defended it as a program “that listens to a few numbers, called from outside of the United States, and of known al-Qaeda or affiliate people.” Subsequent revelations have made clear that the scope was far greater than his words would suggest.

News accounts of the NSA programs have also contained inaccuracies, in some cases because of the source materials. Classified NSA slides that were published by The Post indicated that the NSA was able to tap directly into the servers of Google, Microsoft, Apple and other technology companies. The companies denied that they allowed direct access to their equipment, although they did not dispute that they cooperated with the NSA.

Current and former U.S. officials have defended the programs, and some have called for greater transparency as a way of allaying concerns.

“I’m convinced, the more the American people know exactly what it is we are doing in this balance between privacy and security — the more they know, the more comfortable they will feel,” Michael V. Hayden, former director of the NSA and CIA, told “Face the Nation” on Sunday. “Frankly, I think we ought to be doing a bit more to explain what it is we’re doing, why, and the very tight safeguards under which we’re operating.”
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Misinformation on classified NSA programs includes statements by senior U.S. officials - The Washington Post