Category Archives: Public Policy

What’s the Government Doing Targeting Civil Rights Leaders?

By Laura W. Murphy, Director, ACLU Washington Legislative Office

JULY 9, 2014 | 5:11 PM

 

The NSA and FBI are targeting prominent American Muslims, including civil rights activists, academics, and a former government official, we learned in a troubling report released last night.

Their emails have been stored, their movements have been monitored, and their relationships have been tracked. No detail has proved too remote for the prying eyes of the NSA and FBI.

None have been charged with any criminal or terrorist activity, and because of the excessive secrecy of the government’s surveillance laws, the government doesn’t have to explain itself. Anyone who reads the report can’t help but worry that the government is engaging in highly invasive and personal surveillance based on activism, religion, and political belief.

The story raises profound questions about the surveillance authorities of the government, including its ability to selectively target a political, ethnic, or religious group. In this case, it’s American Muslims.  But we already know that the FBI is engaging in a much more expansive racial and ethnic mapping program that should worry us all.

We’ve been here before. In the 1960s and 70s, civil rights organizations, activists, and minority communities were surveilled and monitored simply because their views differed from the government’s. Constitutionally protected activity had become a shibboleth. What’s going on today is reminiscent of that time.

Innocent American Muslims and South Asian Americans have been repeatedly scrutinized and stigmatized ever since the September 11, 2001 terrorist attack. And since that time, racial profiling at the borders, the airports and in the criminal justice system has gotten worse for Latinos, Asians, African Americans, and other people of color.

The Council for American Islamic Relations, for example, is the largest Muslim civil rights organization in the United States. Why is Nihad Awad, their executive director who was profiled in the report, being monitored and tracked?

Discriminatory surveillance chills free speech, the right to associate freely, and religious expression.

An ACLU-led coalition has sent a letter to the Obama Administration asking for a full accounting of the practices revealed in the report. The letter also highlights the need to strengthen the Department of Justice’s Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, so that profiling on the basis of religion, sexual orientation, gender identity, and national origin is conclusively prohibited.

The letter explains:

In an earlier era, during the 1960s and 1970s, civil rights leaders, activists and members of minority communities were subjected to unlawful and abusive government surveillance based not on what they had done, but what they believed and who they were. Despite reform efforts, abusive practices continue today. Federal, state, and local law enforcement are targeting entire communities—particularly American Muslims—for secret surveillance based on their race, religion, ethnicity or national origin.

The First Look report is troubling because it arises in this broader context of abuse. Documents obtained through an American Civil Liberties Union Freedom of Information Act request show that the FBI has been mapping a broad spectrum of communities, including American Muslim communities, the African American community and Latino American communities, without any basis for individualized suspicion. Under the guise of community outreach, the FBI targeted mosques and Muslim community organizations for intelligence gathering. It has pressured law-abiding American Muslims to become informants against their own communities, often in coercive circumstances. It has also stigmatized innocent Muslims by placing them on the No Fly List and other watch lists. In short, the government’s domestic counterterrorism policies treat entire minority communities as suspect, and American Muslims have borne the brunt of government suspicion, stigma and abuse.

These practices hurt not only American Muslims, but all communities that expect law enforcement to serve and protect America’s diverse population equally, without discrimination. They strike the bedrock of democracy: that no one should grow up fearful of law enforcement, scared to exercise the rights to freedom of speech, association and worship.

Learn more about government surveillance and other civil liberty issuesSign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

Glenn Greenwald: Why Privacy Matters

Glenn Greenwald was one of the first reporters to see — and write about — the Edward Snowden files, with their revelations about the United States’ extensive surveillance of private citizens. In this searing talk, Greenwald makes the case for why you need to care about privacy, even if you’re “not doing anything you need to hide.”

Revealed: How the FBI Coordinated the Crackdown on Occupy

New documents prove what was once dismissed as paranoid fantasy: totally integrated corporate-state repression of dissent

It was more sophisticated than we had imagined: new documents show that the violent crackdown on Occupy last fall – so mystifying at the time – was not just coordinated at the level of the FBI, the Department of Homeland Security, and local police. The crackdown, which involved, as you may recall, violent arrests, group disruption, canister missiles to the skulls of protesters, people held in handcuffs so tight they were injured, people held in bondage till they were forced to wet or soil themselves –was coordinated with the big banks themselves.

The Partnership for Civil Justice Fund, in a groundbreaking scoop that should once more shame major US media outlets (why are nonprofits now some of the only entities in America left breaking major civil liberties news?), filed this request. The document – reproduced here in an easily searchable format – shows a terrifying network of coordinated DHS, FBI, police, regional fusion center, and private-sector activity so completely merged into one another that the monstrous whole is, in fact, one entity: in some cases, bearing a single name, the Domestic Security Alliance Council. And it reveals this merged entity to have one centrally planned, locally executed mission. The documents, in short, show the cops and DHS working for and with banks to target, arrest, and politically disable peaceful American citizens.

The documents, released after long delay in the week between Christmas and New Year, show a nationwide meta-plot unfolding in city after city in an Orwellian world: six American universities are sites where campus police funneled information about students involved with OWS to the FBI, with the administrations’ knowledge (p51); banks sat down with FBI officials to pool information about OWS protesters harvested by private security; plans to crush Occupy events, planned for a month down the road, were made by the FBI – and offered to the representatives of the same organizations that the protests would target; and even threats of the assassination of OWS leaders by sniper fire – by whom? Where? – now remain redacted and undisclosed to those American citizens in danger, contrary to standard FBI practice to inform the person concerned when there is a threat against a political leader (p61).
The stories you need to read, in one handy email
Read more
As Mara Verheyden-Hilliard, executive director of the PCJF, put it, the documents show that from the start, the FBI – though it acknowledges Occupy movement as being, in fact, a peaceful organization – nonetheless designated OWS repeatedly as a “terrorist threat”:

“FBI documents just obtained by the Partnership for Civil Justice Fund (PCJF) … reveal that from its inception, the FBI treated the Occupy movement as a potential criminal and terrorist threat … The PCJF has obtained heavily redacted documents showing that FBI offices and agents around the country were in high gear conducting surveillance against the movement even as early as August 2011, a month prior to the establishment of the OWS encampment in Zuccotti Park and other Occupy actions around the country.”

Verheyden-Hilliard points out the close partnering of banks, the New York Stock Exchange and at least one local Federal Reserve with the FBI and DHS, and calls it “police-statism”:

“This production [of documents], which we believe is just the tip of the iceberg, is a window into the nationwide scope of the FBI’s surveillance, monitoring, and reporting on peaceful protestors organizing with the Occupy movement … These documents also show these federal agencies functioning as a de facto intelligence arm of Wall Street and Corporate America.”

The documents show stunning range: in Denver, Colorado, that branch of the FBI and a “Bank Fraud Working Group” met in November 2011 – during the Occupy protests – to surveil the group. The Federal Reserve of Richmond, Virginia had its own private security surveilling Occupy Tampa and Tampa Veterans for Peace and passing privately-collected information on activists back to the Richmond FBI, which, in turn, categorized OWS activities under its “domestic terrorism” unit. The Anchorage, Alaska “terrorism task force” was watching Occupy Anchorage. The Jackson, Mississippi “joint terrorism task force” was issuing a “counterterrorism preparedness alert” about the ill-organized grandmas and college sophomores in Occupy there. Also in Jackson, Mississippi, the FBI and the “Bank Security Group” – multiple private banks – met to discuss the reaction to “National Bad Bank Sit-in Day” (the response was violent, as you may recall). The Virginia FBI sent that state’s Occupy members’ details to the Virginia terrorism fusion center. The Memphis FBI tracked OWS under its “joint terrorism task force” aegis, too. And so on, for over 100 pages.

Advertisement

Jason Leopold, at Truthout.org, who has sought similar documents for more than a year, reported that the FBI falsely asserted in response to his own FOIA requests that no documents related to its infiltration of Occupy Wall Street existed at all. But the release may be strategic: if you are an Occupy activist and see how your information is being sent to terrorism task forces and fusion centers, not to mention the “longterm plans” of some redacted group to shoot you, this document is quite the deterrent.

There is a new twist: the merger of the private sector, DHS and the FBI means that any of us can become WikiLeaks, a point that Julian Assange was trying to make in explaining the argument behind his recent book. The fusion of the tracking of money and the suppression of dissent means that a huge area of vulnerability in civil society – people’s income streams and financial records – is now firmly in the hands of the banks, which are, in turn, now in the business of tracking your dissent.

Remember that only 10% of the money donated to WikiLeaks can be processed – because of financial sector and DHS-sponsored targeting of PayPal data. With this merger, that crushing of one’s personal or business financial freedom can happen to any of us. How messy, criminalizing and prosecuting dissent. How simple, by contrast, just to label an entity a “terrorist organization” and choke off, disrupt or indict its sources of financing.

Why the huge push for counterterrorism “fusion centers”, the DHS militarizing of police departments, and so on? It was never really about “the terrorists”. It was not even about civil unrest. It was always about this moment, when vast crimes might be uncovered by citizens – it was always, that is to say, meant to be about you.

• This article originally referred to a joint terrorism task force in Jackson, Michigan. This was amended to Jackson, Mississippi at 4pm ET on 2 January 2012

Mass Surveillance: Implications on Privacy and Speech

This entertaining five minute video discusses the legality of the government’s current domestic mass surveillance program, making the case that it invades our privacy and places an unconstitutional chilling effect upon First Amendment speech and political association. Brought to you by Fight for the Future and Demand Progress.

Police Surveillance and Predictive Policing

Privacy today faces growing threats from a growing surveillance apparatus that is often justified in the name of crime prevention. This video short brought to you by AJ+ summarizes some of the highly intrusive technology which allows law enforcement to conduct targeted surveillance against individuals who are not suspected of engaging in any criminal activity.  Numerous law enforcement agencies—including the Federal Bureau of Investigation, private security contractors and state and local police departments—intrude upon the private communications of innocent citizens, amass vast databases of who we call and when, and catalog “suspicious activities” based on the vaguest of standards. The government’s collection of this sensitive information is itself an invasion of privacy. But its use of this data is also rife with abuse as innocuous data is fed into bloated watchlists, with severe consequences upon individuals who do not even realize why they have been targeted. History has repeatedly shown that powerful, state surveillance tools are most often abused for political ends which disproportionately target political dissidents and disfavored minorities.

Cops scan social media to help assess your ‘threat rating’

December 12, 2014

By Brent Skorup

A national spotlight is now focused on aggressive law enforcement tactics and the justice system. Today’s professional police forces — where officers in even one-stoplight towns might have body armor and mine-resistant vehicles — already raise concerns.

Yet new data-mining technologies can now provide police with vast amounts of surveillance information and could radically increase police power. Policing can be increasingly targeted at specific people and neighborhoods — with potentially serious inequitable effects.

One speaker at a recent national law enforcement conference compared future police work to Minority Report, the Tom Cruise film set in 2054 Washington, where a “PreCrime” unit has been set up to stop murders before they happen.

While PreCrime remains science-fiction, many technology advances are already involved with predictive policing — identifying risks and threats with the help of online information, powerful computers and Big Data.

New World Systems, for example, now offers software that allows dispatchers to enter in a person’s name to see if they’ve had contact with the police before.  Provided crime data, PredPol claims on its website that  its software “forecasts highest risk times and places for future crimes.” These and other technologies are supplanting and enhancing traditional police work.

Public safety organizations, using federal funding, are set to begin building a $7-billion nationwide first-responder wireless network, called FirstNet. Money is now being set aside. With this network, information-sharing capabilities and federal-state coordination will likely grow substantially. Some uses of FirstNet will improve traditional services like 911 dispatches. Other law enforcement uses aren’t as pedestrian, however.

One such application is Beware, sold to police departments since 2012 by a private company, Intrado. This mobile application crawls over billions of records in commercial and public databases for law enforcement needs. The application “mines criminal records, Internet chatter and other data to churn out … profiles in real time,” according to one article in an Illinois newspaper.

Here’s how the company describes it on their website:

Accessed through any browser (fixed or mobile) on any Internet-enabled device including tablets, smartphones, laptop and desktop computers, Beware® from Intrado searches, sorts and scores billions of commercial records in a matter of seconds-alerting responders to potentially deadly and dangerous situations while en route to, or at the location of a call.

Crunching all the database information in a matter of seconds, the Beware algorithm then assigns a score and “threat rating” to a person — green, yellow or red. It sends that rating to a requesting officer.

For example, working off a home address, Beware can send an officer basic information about who lives there, their cell phone numbers, whether they have past convictions and the cars registered to the address. Police have had access to this information before, but Beware makes it available immediately.

Yet it does far more — scanning the residents’ online comments, social media and recent purchases for warning signs. Commercial, criminal and social media information, including, as Intrado vice president Steve Reed said in an interview with urgentcomm.com, “any comments that could be construed as offensive,” all contribute to the threat score.

There are many troubling aspects to these programs. There are, of course, obvious risks in outsourcing traditional police work — determining who is a threat — to a proprietary algorithm. Deeming someone a public threat is a serious designation, and applications like Beware may encourage shortcuts and snap decisions.

It is also disconcerting that police would access and evaluate someone’s online presence. What types of comments online will increase a threat score? Will race be apparent?

These questions are impossible to answer because Intrado merely provides the tool — leaving individual police departments to craft specific standards for what information is available and relevant in a threat score. Local departments can fine-tune their own data collection, but then threat thresholds could vary by locale, making oversight nearly impossible.

Tradition holds that justice should be blind, to promote fairness in treatment and avoid prejudgment. With such algorithms, however, police can have significant background information about nearly everyone they pull over or visit at home. Police are time-constrained, and vulnerable populations – such as minorities living in troubled neighborhoods and the poor — may receive more scrutiny.

No one wants the police to remain behind a thick veil of ignorance, but invasive tools like Beware — if left unchecked — may amplify the current unfairness in the system, including racial disparities in arrests and selective enforcement.

Intrado representatives defend Beware’s perceived intrusiveness, pointing out that credit agencies have similar types of information. This data-mining program, however, goes beyond financial records to include social media, purchases and online comments when assigning a rating.

And no system is foolproof. Congress, for example, recognizes the sensitivity of the information that lenders and employers have, because errors can cause serious financial harm. The Fair Credit Reporting Act therefore gives consumers the right to access their credit reports and make corrections.

The risks to life and property, however, are far higher and more unpredictable in the law enforcement context. Yet there is no mechanism for people to see their threat “ratings” — much less why the algorithm scored it. You have no ability to correct errors if, say, someone with the same name has a violent criminal record.

Another effect is that these technologies give law enforcement the ability to routinely monitor obedience to regulatory minutiae and lawmaker whims. Police officers now boast, for example, that the Beware system allows the routine code enforcement of a nanny state — such as identifying homeowners so overgrown trees on a property can be trimmed.

Beware can also encourage fishing expeditions and indiscriminate surveillance in the hopes of finding offenders. Police used Beware recently at a Phish concert in Colorado, for example, checking up on concertgoers based on car license plates.

Perhaps the most serious issue is that such systems may be used as pretext in unconstitutional investigations. John Shiffman and Kristina Cooke reported for Reuters last year that a secretive Drug Enforcement Administration unit regularly funnels information to other law enforcement agencies in order to launch criminal investigations. This information is frequently acquired via intelligence intercepts, wiretaps and informants. As the FirstNet national wireless network rolls out, federal-state coordination will likely increase opportunities for police to receive sensitive information from powerful federal agencies.

Data-mining gives police significantly more information to create reasonable suspicion for suspects that federal agencies flag. Officers could receive a search or arrest warrant with the help of information gleaned from Beware and other databases, like those tracking license plates. If an arrest follows, data-mining helps provide the police with the legal pretext to engage in these fishing expeditions. Defendants will likely have no opportunity to challenge the legality of the original surveillance that led to their arrest.

As predictive policing investment ramps up, and local police and federal agencies increasingly coordinate, more secrecy becomes more valuable. Local police and prosecutors often refuse to disclose how they gain information about defendants because federal agencies prohibit them from discussing these technologies. In Baltimore, for example, police recently dropped evidence against a defendant rather than reveal information about cellphone tracking that the FBI did not want disclosed in court.

Yet police might not acquire some of this equipment if the local community is made fully aware of its use. Consider, the city council of Bellingham, Wash., recently rejected a proposed purchase of Beware. The police department had applied for, and received, a one-time $25,000 federal grant to cover some of the $36,000 annual cost of Beware. At a mandatory hearing about the purchase, Bellingham citizens discovered how Beware worked and opposed the purchase because of both the cost and the privacy implications. The funds were subsequently redirected.

This rejection demonstrates that many modern policing techniques — and the accompanying secrecy — can antagonize the average citizen. The occasional appearance of sniper rifles and military vehicles only stokes that sentiment. Local police forces increasingly receive military surplus equipment and federal lucre from an alphabet soup of U.S. agencies and opportunistic contractors. Now police are using, typically without residents’ knowledge, powerful databases, along with cellphone and license-plate trackers.

Police need guidance about under which circumstances these sophisticated databases can be used. An inaccurate threat level for a residence, after all, can change how police approach a situation. Failure to update who lives at a particular residence, for example, could transform a green rating into a red rating — turning a midday knock on the front door into a nighttime SWAT raid.

Exclusive: U.S. Directs Agents to Cover Up Program Used to Investigate Americans

US | Mon Aug 5, 2013 3:25pm EDT

WASHINGTON |

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

“I have never heard of anything like this at all,” said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

“It is one thing to create special rules for national security,” Gertner said. “Ordinary crime is entirely different. It sounds like they are phonying up investigations.”

THE SPECIAL OPERATIONS DIVISION

The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.

Today, much of the SOD’s work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked “Law Enforcement Sensitive,” a government categorization that is meant to keep them confidential.

“Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.”

A spokesman with the Department of Justice, which oversees the DEA, declined to comment.

But two senior DEA officials defended the program, and said trying to “recreate” an investigative trail is not only legal but a technique that is used almost daily.

A former federal agent in the northeastern United States who received such tips from SOD described the process. “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it,” the agent said.

“PARALLEL CONSTRUCTION”

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.”

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

“It’s just like laundering money – you work it backwards to make it clean,” said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.

Some defense lawyers and former prosecutors said that using “parallel construction” may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants.

A QUESTION OF CONSTITUTIONALITY

“That’s outrageous,” said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. “It strikes me as indefensible.”

Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin “would not only be alarming but pretty blatantly unconstitutional.”

Lustberg and others said the government’s use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant’s identity or classified evidence, to determine whether the information is relevant to the defense.

“You can’t game the system,” said former federal prosecutor Henry E. Hockeimer Jr. “You can’t create this subterfuge. These are drug crimes, not national security cases. If you don’t draw the line here, where do you draw it?”

Some lawyers say there can be legitimate reasons for not revealing sources. Robert Spelke, a former prosecutor who spent seven years as a senior DEA lawyer, said some sources are classified. But he also said there are few reasons why unclassified evidence should be concealed at trial.

“It’s a balancing act, and they’ve doing it this way for years,” Spelke said. “Do I think it’s a good way to do it? No, because now that I’m a defense lawyer, I see how difficult it is to challenge.”

CONCEALING A TIP

One current federal prosecutor learned how agents were using SOD tips after a drug agent misled him, the prosecutor told Reuters. In a Florida drug case he was handling, the prosecutor said, a DEA agent told him the investigation of a U.S. citizen began with a tip from an informant. When the prosecutor pressed for more information, he said, a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept.

“I was pissed,” the prosecutor said. “Lying about where the information came from is a bad start if you’re trying to comply with the law because it can lead to all kinds of problems with discovery and candor to the court.” The prosecutor never filed charges in the case because he lost confidence in the investigation, he said.

A senior DEA official said he was not aware of the case but said the agent should not have misled the prosecutor. How often such misdirection occurs is unknown, even to the government; the DEA official said the agency does not track what happens with tips after the SOD sends them to agents in the field.

The SOD’s role providing information to agents isn’t itself a secret. It is briefly mentioned by the DEA in budget documents, albeit without any reference to how that information is used or represented when cases go to court.

The DEA has long publicly touted the SOD’s role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don’t accidentally try to arrest each other.

SOD’S BIG SUCCESSES

The unit also played a major role in a 2008 DEA sting in Thailand against Russian arms dealer Viktor Bout; he was sentenced in 2011 to 25 years in prison on charges of conspiring to sell weapons to the Colombian rebel group FARC. The SOD also recently coordinated Project Synergy, a crackdown against manufacturers, wholesalers and retailers of synthetic designer drugs that spanned 35 states and resulted in 227 arrests.

Since its inception, the SOD’s mandate has expanded to include narco-terrorism, organized crime and gangs. A DEA spokesman declined to comment on the unit’s annual budget. A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.

Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE.

The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said.

About 10,000 federal, state and local law enforcement agents have access to the DICE database, records show. They can query it to try to link otherwise disparate clues. Recently, one of the DEA officials said, DICE linked a man who tried to smuggle $100,000 over the U.S. southwest border to a major drug case on the East Coast.

“We use it to connect the dots,” the official said.

“AN AMAZING TOOL”

Wiretap tips forwarded by the SOD usually come from foreign governments, U.S. intelligence agencies or court-authorized domestic phone recordings. Because warrantless eavesdropping on Americans is illegal, tips from intelligence agencies are generally not forwarded to the SOD until a caller’s citizenship can be verified, according to one senior law enforcement official and one former U.S. military intelligence analyst.

“They do a pretty good job of screening, but it can be a struggle to know for sure whether the person on a wiretap is American,” the senior law enforcement official said.

Tips from domestic wiretaps typically occur when agents use information gleaned from a court-ordered wiretap in one case to start a second investigation.

As a practical matter, law enforcement agents said they usually don’t worry that SOD’s involvement will be exposed in court. That’s because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.

Current and former federal agents said SOD tips aren’t always helpful – one estimated their accuracy at 60 percent. But current and former agents said tips have enabled them to catch drug smugglers who might have gotten away.

“It was an amazing tool,” said one recently retired federal agent. “Our big fear was that it wouldn’t stay secret.”

DEA officials said that the SOD process has been reviewed internally. They declined to provide Reuters with a copy of their most recent review.

(Edited by Blake Morrison)

Greenwald Meets Bernstein: From Watergate to Snowden

Glenn Greenwald and Carl Bernstein discuss how NSA surveillance has affected contemporary investigative journalism with  journalist, Fredrik Laurin, of Swedish Radio. Greenwald and Bernstien discuss the U.S. Government’s history of placing journalists, activists and whistleblowers under surveillance. Greenwald discusses how the Snowden revelations have affected the precautions investigative journalists must take  to protect their sources (and themselves), as well as the current practice of prosecuting whistleblowers under the Obama administration.  Bernstein explores how institutional secrecy has increased since Watergate and suggests that there is much less oversight of intelligence abuses than in the past.

NSA Program Stopped No Terror Attacks, Says White House Panel Member

by

A member of the White House review panel on NSA surveillance said he was “absolutely” surprised when he discovered the agency’s lack of evidence that the bulk collection of telephone call records had thwarted any terrorist attacks.

“It was, ‘Huh, hello? What are we doing here?’” said Geoffrey Stone, a University of Chicago law professor, in an interview with NBC News. “The results were very thin.”

While Stone said the mass collection of telephone call records was a “logical program” from the NSA’s perspective, one question the White House panel was seeking to answer was whether it had actually stopped “any [terror attacks] that might have been really big.”

“We found none,” said Stone.

Under the NSA program, first revealed by ex-contractor Edward Snowden, the agency collects in bulk the records of the time and duration of phone calls made by persons inside the United States.

Stone was one of five members of the White House review panel – and the only one without any intelligence community experience – that this week produced a sweeping report recommending that the NSA’s collection of phone call records be terminated to protect Americans’ privacy rights.

The panel made that recommendation after concluding that the program was “not essential in preventing attacks.”

“That was stunning. That was the ballgame,” said one congressional intelligence official, who asked not to be publicly identified. “It flies in the face of everything that they have tossed at us.”

Despite the panel’s conclusions, Stone strongly rejected the idea they justified Snowden’s actions in leaking the NSA documents about the phone collection. “Suppose someone decides we need gun control and they go out and kill 15 kids and then a state enacts gun control?” Stone said, using an analogy he acknowledged was “somewhat inflammatory.” What Snowden did, Stone said, was put the country “at risk.”

“My emphatic view,” he said, “is that a person who has access to classified information — the revelation of which could damage national security — should never take it upon himself to reveal that information.”

Stone added, however, that he would not necessarily reject granting an amnesty to Snowden in exchange for the return of all his documents, as was recently suggested by a top NSA official. “It’s a hostage situation,” said Stone. Deciding whether to negotiate with him to get all his documents back was a “pragmatic judgment. I see no principled reason not to do that.”

The conclusions of the panel’s reports were at direct odds with public statements by President Barack Obama and U.S. intelligence officials. “Lives have been saved,” Obama told reporters last June, referring to the bulk collection program and another program that intercepts communications overseas. “We know of at least 50 threats that have been averted because of this information.”

But in one little-noticed footnote in its report, the White House panel said the telephone records collection program – known as Section 215, based on the provision of the U.S. Patriot Act that provided the legal basis for it – had made “only a modest contribution to the nation’s security.” The report said that “there has been no instance in which NSA could say with confidence that the outcome [of a terror investigation] would have been any different” without the program.

The panel’s findings echoed that of U.S. Judge Richard Leon, who in a ruling this week found the bulk collection program to be unconstitutional. Leon said that government officials were unable to cite “a single instance in which analysis of the NSA’s bulk collection metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

Stone declined to comment on the accuracy of public statements by U.S. intelligence officials about the telephone collection program, but said that when they referred to successes they seemed to be mixing the results of domestic metadata collection with the intelligence derived from the separate, and less controversial, NSA program, known as 702, to intercept communications overseas.

The comparison between 702 overseas interceptions and 215 bulk metadata collection was “night and day,” said Stone. “With 702, the record is very impressive. It’s no doubt the nation is safer and spared potential attacks because of 702. There was nothing like that for 215. We asked the question and they [the NSA] gave us the data. They were very straight about it.”

He also said one reason the telephone records program is not effective is because, contrary to the claims of critics, it actually does not collect a record of every American’s phone call. Although the NSA does collect metadata from major telecommunications carriers such as Verizon and AT&T, there are many smaller carriers from which it collects nothing. Asked if the NSA was collecting the records of 75 percent of phone calls, an estimate that has been used in briefings to Congress , Stone said the real number was classified but “not anything close to that” and far lower.

When panel members asked NSA officials why they didn’t expand the program to include smaller carriers, the answer they gave was “money,” Stone said. “They were setting financial priorities,” said Stone, and that was “really revealing” about how useful the bulk collection of telephone calls really was.

An NSA spokeswoman declined to comment on any aspect of the panel’s report, saying the agency was deferring to the White House. Asked Wednesday about the surveillance panel’s conclusions about telephone record collection, White House press secretary Jay Carney said that “the president does still believe and knows that this program is an important piece of the overall efforts that we engage in to combat threats against the lives of American citizens and threats to our overall national security.”

Related:

In NSA-Intercepted Data, Those Not Targeted Far Outnumber the Foreigners Who Are

Files provided by Snowden show extent to which ordinary Web users are caught in the net

July 5, 2014

Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency from U.S. digital networks, according to a four-month investigation by The Washington Post.

Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to The Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.

Many of them were Americans. Nearly half of the surveillance files, a strikingly high proportion, contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents. NSA analysts masked, or “minimized,” more than 65,000 such references to protect Americans’ privacy, but The Post found nearly 900 additional e-mail addresses, unmasked in the files, that could be strongly linked to U.S. citizens or U.S.residents.

Related Story: Communication Breakdown (How 160,000 intercepted conversations led to The Post’s latest NSA story)

The surveillance files highlight a policy dilemma that has been aired only abstractly in public. There are discoveries of considerable intelligence value in the intercepted messages — and collateral harm to privacy on a scale that the Obama administration has not been willing to address.

Among the most valuable contents — which The Post will not describe in detail, to avoid interfering with ongoing operations — are fresh revelations about a secret overseas nuclear project, double-dealing by an ostensible ally, a military calamity that befell an unfriendly power, and the identities of aggressive intruders into U.S. computer networks.

Months of tracking communications across more than 50 alias accounts, the files show, led directly to the 2011 capture in Abbottabad of Muhammad Tahir Shahzad, a Pakistan-based bomb builder, and Umar Patek, a suspect in a 2002 terrorist bombing on the Indonesian island of Bali. At the request of CIA officials, The Post is withholding other examples that officials said would compromise ongoing operations.

Many other files, described as useless by the analysts but nonetheless retained, have a startlingly intimate, even voyeuristic quality. They tell stories of love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions, financial anxieties and disappointed hopes. The daily lives of more than 10,000 account holders who were not targeted are catalogued and recorded nevertheless.

In order to allow time for analysis and outside reporting, neither Snowden nor The Post has disclosed until now that he obtained and shared the content of intercepted communications. The cache Snowden provided came from domestic NSA operations under the broad authority granted by Congress in 2008 with amendments to the Foreign Intelligence Surveillance Act. FISA content is generally stored in closely controlled data repositories, and for more than a year, senior government officials have depicted it as beyond Snowden’s reach.

The Post reviewed roughly 160,000 intercepted e-mail and instant-message conversations, some of them hundreds of pages long, and 7,900 documents taken from more than 11,000 online accounts.

The material spans President Obama’s first term, from 2009 to 2012, a period of exponential growth for the NSA’s domestic collection.

A composite image of two of the more than 5,000 private photos among data collected by the National Security Agency from online accounts and network links in the United States. The images were included in a large cache of NSA intercepts provided by former agency contractor Edward Snowden. (Images obtained by The Washington Post)

Taken together, the files offer an unprecedented vantage point on the changes wrought by Section 702 of the FISA amendments, which enabled the NSA to make freer use of methods that for 30 years had required probable cause and a warrant from a judge. One program, code-named PRISM, extracts content stored in user accounts at Yahoo, Microsoft, Facebook, Google and five other leading Internet companies. Another, known inside the NSA as Upstream, intercepts data on the move as it crosses the U.S. junctions of global voice and data networks.

No government oversight body, including the Justice Department, the Foreign Intelligence Surveillance Court, intelligence committees in Congress or the president’s Privacy and Civil Liberties Oversight Board, has delved into a comparably large sample of what the NSA actually collects — not only from its targets but also from people who may cross a target’s path.

Among the latter are medical records sent from one family member to another, résumés from job hunters and academic transcripts of schoolchildren. In one photo, a young girl in religious dress beams at a camera outside a mosque.

Scores of pictures show infants and toddlers in bathtubs, on swings, sprawled on their backs and kissed by their mothers. In some photos, men show off their physiques. In others, women model lingerie, leaning suggestively into a webcam or striking risque poses in shorts and bikini tops.

“None of the hits that were received were relevant,” two Navy cryptologic technicians write in one of many summaries of nonproductive surveillance. “No additional information,” writes a civilian analyst. Another makes fun of a suspected kidnapper, newly arrived in Syria before the current civil war, who begs for employment as a janitor and makes wide-eyed observations about the state of undress displayed by women on local beaches.

By law, the NSA may “target” only foreign nationals located overseas unless it obtains a warrant based on probable cause from a special surveillance court. For collection under PRISM and Upstream rules, analysts must state a reasonable belief that the target has information of value about a foreign government, a terrorist organization or the spread of nonconventional weapons.

Most of the people caught up in those programs are not the targets and would not lawfully qualify as such. “Incidental collection” of third-party communications is inevitable in many forms of surveillance, but in other contexts the U.S. government works harder to limit and discard irrelevant data. In criminal wiretaps, for example, the FBI is supposed to stop listening to a call if a suspect’s wife or child is using the phone.

There are many ways to be swept up incidentally in surveillance aimed at a valid foreign target. Some of those in the Snowden archive were monitored because they interacted directly with a target, but others had more-tenuous links.

If a target entered an online chat room, the NSA collected the words and identities of every person who posted there, regardless of subject, as well as every person who simply “lurked,” reading passively what other people wrote.

“1 target, 38 others on there,” one analyst wrote. She collected data on them all.

In other cases, the NSA designated as its target the Internet protocol, or IP, address of a computer server used by hundreds of people.

The NSA treats all content intercepted incidentally from third parties as permissible to retain, store, search and distribute to its government customers. Raj De, the agency’s general counsel, has testified that the NSA does not generally attempt to remove irrelevant personal content, because it is difficult for one analyst to know what might become relevant to another.

The Obama administration declines to discuss the scale of incidental collection. The NSA, backed by Director of National Intelligence James R. Clapper Jr., has asserted that it is unable to make any estimate, even in classified form, of the number of Americans swept in. It is not obvious why the NSA could not offer at least a partial count, given that its analysts routinely pick out “U.S. persons” and mask their identities, in most cases, before distributing intelligence reports.

If Snowden’s sample is representative, the population under scrutiny in the PRISM and Upstream programs is far larger than the government has suggested. In a June 26 “transparency report,” the Office of the Director of National Intelligence disclosed that 89,138 people were targets of last year’s collection under FISA Section 702. At the 9-to-1 ratio of incidental collection in Snowden’s sample, the office’s figure would correspond to nearly 900,000 accounts, targeted or not, under surveillance.

‘He didn’t get this data’
U.S. intelligence officials declined to confirm or deny in general terms the authenticity of the intercepted content provided by Snowden, but they made off-the-record requests to withhold specific details that they said would alert the targets of ongoing surveillance. Some officials, who declined to be quoted by name, described Snowden’s handling of the sensitive files as reckless.

In an interview, Snowden said “primary documents” offered the only path to a concrete debate about the costs and benefits of Section 702 surveillance. He did not favor public release of the full archive, he said, but he did not think a reporter could understand the programs “without being able to review some of that surveillance, both the justified and unjustified.”

“While people may disagree about where to draw the line on publication, I know that you and The Post have enough sense of civic duty to consult with the government to ensure that the reporting on and handling of this material causes no harm,” he said.

In Snowden’s view, the PRISM and Upstream programs have “crossed the line of proportionality.”

“Even if one could conceivably justify the initial, inadvertent interception of baby pictures and love letters of innocent bystanders,” he added, “their continued storage in government databases is both troubling and dangerous. Who knows how that information will be used in the future?”

For close to a year, NSA and other government officials have appeared to deny, in congressional testimony and public statements, that Snowden had any access to the material.

As recently as May, shortly after he retired as NSA director, Gen. Keith Alexander denied that Snowden could have passed FISA content to journalists.

“He didn’t get this data,” Alexander told a New Yorker reporter. “They didn’t touch —”

“The operational data?” the reporter asked.

“They didn’t touch the FISA data,” Alexander replied. He added, “That database, he didn’t have access to.”

Robert S. Litt, the general counsel for the Office of the Director of National Intelligence, said in a prepared statement that Alexander and other officials were speaking only about “raw” intelligence, the term for intercepted content that has not yet been evaluated, stamped with classification markings or minimized to mask U.S. identities.

“We have talked about the very strict controls on raw traffic, the training that people have to have, the technological lockdowns on access,” Litt said. “Nothing that you have given us indicates that Snowden was able to circumvent that in any way.”

In the interview, Snowden said he did not need to circumvent those controls, because his final position as a contractor for Booz Allen at the NSA’s Hawaii operations center gave him “unusually broad, unescorted access to raw SIGINT [signals intelligence] under a special ‘Dual Authorities’ role,” a reference to Section 702 for domestic collection and Executive Order 12333 for collection overseas. Those credentials, he said, allowed him to search stored content — and “task” new collection — without prior approval of his search terms.

“If I had wanted to pull a copy of a judge’s or a senator’s e-mail, all I had to do was enter that selector into XKEYSCORE,” one of the NSA’s main query systems, he said.

The NSA has released an e-mail exchange acknowledging that Snowden took the required training classes for access to those systems.

‘Minimized U.S. president’
At one level, the NSA shows scrupulous care in protecting the privacy of U.S. nationals and, by policy, those of its four closest intelligence allies — Britain, Australia, Canada and New Zealand.

More than 1,000 distinct “minimization” terms appear in the files, attempting to mask the identities of “possible,” “potential” and “probable” U.S. persons, along with the names of U.S. beverage companies, universities, fast-food chains and Web-mail hosts.

Some of them border on the absurd, using titles that could apply to only one man. A “minimized U.S. president-elect” begins to appear in the files in early 2009, and references to the current “minimized U.S. president” appear 1,227 times in the following four years.

Even so, unmasked identities remain in the NSA’s files, and the agency’s policy is to hold on to “incidentally” collected U.S. content, even if it does not appear to contain foreign intelligence.

In one exchange captured in the files, a young American asks a Pakistani friend in late 2009 what he thinks of the war in Afghanistan. The Pakistani replies that it is a religious struggle against 44 enemy states.

Startled, the American says “they, ah, they arent heavily participating . . . its like . . . in a football game, the other team is the enemy, not the other teams waterboy and cheerleaders.”

“No,” the Pakistani shoots back. “The ther teams water boy is also an enemy. it is law of our religion.”

“haha, sorry thats kind of funny,” the American replies.

When NSA and allied analysts really want to target an account, their concern for U.S. privacy diminishes. The rationales they use to judge foreignness sometimes stretch legal rules or well-known technical facts to the breaking point.

In their classified internal communications, colleagues and supervisors often remind the analysts that PRISM and Upstream collection have a “lower threshold for foreignness ‘standard of proof’ ” than a traditional surveillance warrant from a FISA judge, requiring only a “reasonable belief” and not probable cause.

One analyst rests her claim that a target is foreign on the fact that his e-mails are written in a foreign language, a quality shared by tens of millions of Americans. Others are allowed to presume that anyone on the chat “buddy list” of a known foreign national is also foreign.

In many other cases, analysts seek and obtain approval to treat an account as “foreign” if someone connects to it from a computer address that seems to be overseas. “The best foreignness explanations have the selector being accessed via a foreign IP address,” an NSA supervisor instructs an allied analyst in Australia.

Apart from the fact that tens of millions of Americans live and travel overseas, additional millions use simple tools called proxies to redirect their data traffic around the world, for business or pleasure. World Cup fans this month have been using a browser extension called Hola to watch live-streamed games that are unavailable from their own countries. The same trick is routinely used by Americans who want to watch BBC video. The NSA also relies routinely on locations embedded in Yahoo tracking cookies, which are widely regarded by online advertisers as unreliable.

In an ordinary FISA surveillance application, the judge grants a warrant and requires a fresh review of probable cause — and the content of collected surveillance — every 90 days. When renewal fails, NSA and allied analysts sometimes switch to the more lenient standards of PRISM and Upstream.

“These selectors were previously under FISA warrant but the warrants have expired,” one analyst writes, requesting that surveillance resume under the looser standards of Section 702. The request was granted.

‘I don’t like people knowing’
She was 29 and shattered by divorce, converting to Islam in search of comfort and love. He was three years younger, rugged and restless. His parents had fled Kabul and raised him in Australia, but he dreamed of returning to Afghanistan.

One day when she was sick in bed, he brought her tea. Their faith forbade what happened next, and later she recalled it with shame.

“what we did was evil and cursed and may allah swt MOST merciful forgive us for giving in to our nafs [desires]”

Still, a romance grew. They fought. They spoke of marriage. They fought again.

All of this was in the files because, around the same time, he went looking for the Taliban.

He found an e-mail address on its English-language Web site and wrote repeatedly, professing loyalty to the one true faith, offering to “come help my brothers” and join the fight against the unbelievers.

On May 30, 2012, without a word to her, he boarded a plane to begin a journey to Kandahar. He left word that he would not see her again.

If that had been the end of it, there would not be more than 800 pages of anguished correspondence between them in the archives of the NSA and its counterpart, the Australian Signals Directorate.

He had made himself a target. She was the collateral damage, placed under a microscope as she tried to adjust to the loss.

Three weeks after he landed in Kandahar, she found him on Facebook.

“Im putting all my pride aside just to say that i will miss you dearly and your the only person that i really allowed myself to get close to after losing my ex husband, my dad and my brother.. Im glad it was so easy for you to move on and put what we had aside and for me well Im just soo happy i met you. You will always remain in my heart. I know you left for a purpose it hurts like hell sometimes not because Im needy but because i wish i could have been with you.”

His replies were cool, then insulting, and gradually became demanding. He would marry her but there were conditions. She must submit to his will, move in with his parents and wait for him in Australia. She must hand him control of her Facebook account — he did not approve of the photos posted there.

She refused. He insisted:

“look in islam husband doesnt touch girl financial earnings unless she agrees but as far as privacy goes there is no room….i need to have all ur details everything u do its what im supposed to know that will guide u whether its right or wrong got it”

Later, she came to understand the irony of her reply:

“I don’t like people knowing my private life.”

Months of negotiations followed, with each of them declaring an end to the romance a dozen times or more. He claimed he had found someone else and planned to marry that day, then admitted it was a lie. She responded:

“No more games. You come home. You won’t last with an afghan girl.”

She begged him to give up his dangerous path. Finally, in September, she broke off contact for good, informing him that she was engaged to another man.

“When you come back they will send you to jail,” she warned.

They almost did.

In interviews with The Post, conducted by telephone and Facebook, she said he flew home to Australia last summer, after failing to find members of the Taliban who would take him seriously. Australian National Police met him at the airport and questioned him in custody. They questioned her, too, politely, in her home. They showed her transcripts of their failed romance. When a Post reporter called, she already knew what the two governments had collected about her.

Eventually, she said, Australian authorities decided not to charge her failed suitor with a crime. Police spokeswoman Emilie Lovatt declined to comment on the case.

Looking back, the young woman said she understands why her intimate correspondence was recorded and parsed by men and women she did not know.

“Do I feel violated?” she asked. “Yes. I’m not against the fact that my privacy was violated in this instance, because he was stupid. He wasn’t thinking straight. I don’t agree with what he was doing.”

What she does not understand, she said, is why after all this time, with the case long closed and her own job with the Australian government secure, the NSA does not discard what it no longer needs.

 

Jennifer Jenkins and Carol D. Leonnig contributed to this report.

Barton Gellman writes for the national staff. He has contributed to three Pulitzer Prizes for The Washington Post, most recently the 2014 Pulitzer Prize for Public Service.