Trump Tower Claims Debunked, But Overbroad Surveillance Still Cause for Concern

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It has now been confirmed by FBI Director Jim Comey, both of Congress’s intelligence committees, and the Speaker of the House that President Trump did not have his “wires tapped” at Trump Tower by the Obama administration prior to the president’s election.

In fact, as Director Comey confirmed today, the FBI has a counter-intelligence investigation open into communications between the campaign and Russian agents.  And, given that that’s the case, it’s unclear to me why the White House would want to draw attention to the fact that the FBI was able to find some articulable basis for a full counterintelligence investigation, or, conceivably, the appropriate level of proof to support an investigative tool like a pen register, business records request, or communications intercept based on probable cause.

Director Comey’s testimony today has prompted many on the committee to decry the leaks that led to the ouster of Lt. Gen. Mike Flynn as national security advisor, and some are—though a little late to the game—noting the implications of these revelations for section 702 reform.  A lot of that is probably irrelevant, given that this sounds like a garden variety counter-intelligence investigation (with some decidedly non-garden variety targets).

That said, the conspiracy theory (see point six here) that may have led to the president’s initial Trump Tower tweets, which sparked this firestorm, does note one important change in surveillance policy that was implemented during the Obama administration’s last days, and that is worth noting in this context.  (It’s crucial to note that the change was not in any way prompted by a desire to surveil the Trump campaign; it had been in the works for years before Trump even stepped on the scene.)

Though probably not in play in the election investigation that was confirmed today, the new policy could lead to broad government-wide dissemination of sensitive intelligence.  If members of the House intelligence committee are serious about limiting the scope of foreign intelligence investigations, they should shine some of their spotlight on this policy shift.

That change in policy was memorialized in rules that give the National Security Agency new and broad authority to share “raw” signals intelligence (“SIGINT”) with other elements of the intelligence community (“IC”), like the CIA, the Defense Intelligence Agency, or the FBI’s and DEA’s national security units.  Lawfare and Emptywheel have great analyses of the procedures, so I’ve tried to avoid covering similar ground below.

But here are some thoughts about why, while the president’s wiretapping claims are without merit, we should still be concerned about how communications intercepted for foreign intelligence purposes can now be shared more broadly across the IC and thus possibly misused to target people in the United States who have nothing to do with spying or terrorism.  This is the small signal buried in the constant Twitter noise from the White House.

First, the background.  Prior to the new procedures, the intelligence “product”—literally a memo containing intercepted communications along with analysis—that the NSA disseminated to other elements of the IC removed material unrelated to the reason for the intercept and references to U.S. persons.  In the parlance of the IC, an NSA report that has been scrubbed in such a way has been “minimized,” and it’s a key privacy protection that prevents intercepted communications that have nothing to do with the reason for the surveillance from being used by other elements of the government for purposes beyond foreign intelligence.

In so doing, the NSA effectively acts as a gatekeeper in deciding what SIGINT needs to be shared with other elements of the IC, the military, or federal law enforcement.  Because the NSA’s interception capabilities are so vast, it’s key that the agency take that gatekeeper role with keen seriousness.

To take a concrete example, let’s say that the NSA intercepts an email from a Russian intelligence officer in Russia discussing Russian plans in eastern Ukraine, but that also includes gossip about a U.S. reporter, critical of the U.S. government, having an affair.  Under the old regime, the NSA would likely share a report about the Russian plans with other intelligence agencies and the military but would redact the name of the reporter (or other identifying information) before sharing.  There’s no way then that the tidbit about the affair could be used to, for instance, blackmail the reporter.

The new rules change all that.  Now, the NSA can share “raw” intelligence that hasn’t been scrubbed of this extraneous information with other IC elements, including parts of federal law enforcement.

Interestingly, under the new procedures, the NSA can affirmatively approach an element of the IC and suggest there might be something interesting in the raw intelligence (see § I.B of the new rule).  The element can also just make a request on its own initiative for access to the raw product.

The pool of intercepted communications and data is derived from the NSA’s broadest spying authority, Executive Order 12,333 (as amended), which governs signals intelligence overseas (or intercepts of international communications that flow over domestic switches).

Importantly, the IC does deserve some credit for including a few safeguards against abuse.  The IC element seeking access to the NSA intercepted communications must make an individual request for each raw intelligence dump, and must execute a memorandum of agreement that requires the recipient to minimize the material in a way similar to NSA procedures.  But the new procedures raise a number of serious concerns.

They are:

President Trump

Or, more precisely, President Trump’s picks for head of the CIA, Rep. Mike Pompeo (R-KS), and for attorney general, Sen. Jeff Sessions (R-AL).

Both Pompeo and Sessions have strongly hawkish records on foreign intelligence and domestic surveillance, and the new procedures will give both the CIA and the Department of Justice, which is home to several of the most sensitive and important elements of the IC, vast new access to raw intelligence, which could lead to criminal charges or additional snooping on individuals in the United States unsuspected of any wrongdoing.

Rep. Pompeo, for his part, has called for reviving the bulk telephone metadata collection program ended by 2015’s USA Freedom Act.  Further, he’s called for melding that data with other publicly available “financial and lifestyle” information to create dossiers on, presumably, every American, which would then be “fully searchable” in an intelligence database.  He also called for the president to revoke Presidential Policy Directive-28 (“PPD-28”), which placed some additional limits on the collection of signals intelligence through the surveillance of people overseas, and on which much international trade between the United States and Europe effectively rests.

Sen. Sessions, a strong opponent of the USA Freedom Act, recently testified during his confirmation hearing that, while he would follow the law on the books, he would not say that USA Freedom barred reinstatement of bulk phone record collection in all instances.

In both cases, and in particular with Rep. Pompeo’s call for a new system of electronic dossiers on all Americans, including “lifestyle” and “financial” information, any expansion of the NSA’s ability to share “raw” intelligence, which includes sensitive information about individuals who are unsuspected of wrongdoing should warrant some pause.

Vague Guidance on When to Release Raw SIGINT

Under § I.C of the rule, the NSA director can designate a “high-level” official to consider requests for raw SIGINT from other IC elements.  (It is unclear how high “high-level” is, which may be a problem if relatively junior officials are authorizing sharing.)  The reviewing official is then responsible for determining the “reasonableness” of the request in “light of all the circumstances.”

Along with factors such as the stated need for the intelligence and the likelihood that the NSA has the relevant intelligence, the official is also supposed to determine the likelihood that the intelligence contains U.S. person information (“USPI,” which is defined as anything that can identify a U.S. person) and, importantly, the “potential for substantial harm, embarrassment, inconvenience, or unfairness to U.S. persons if the USPI is improperly used or disclosed.”

Unfortunately, the procedures do not elaborate on this important factor, which presents a number of questions.  One, what do terms like “unfairness” or “inconvenience” actually mean?  Two, what is “improper” use by the recipient IC element?  Is this a reference to, for instance, cases of something like “LOVEINT,” where analysts search intelligence for information on romantic partners?  Is the official meant to take that potential scenario into account when deciding whether to share?  If so, it’s unclear on the face of the procedures.

Additionally, the same set of factors says that “nothing in this paragraph should be construed to require NSA to review or evaluate the raw SIGINT that has been requested by the IC element when assessing the reasonableness of the request.”  This may result in the requesting IC element tailoring the written request to omit details about potential harm to U.S. persons.  Further, if the NSA does not have to review the intelligence before sharing, how can it make an informed decision about the propriety of the dissemination?

Incidentally, the appeals process is also a bit skewed, especially in the case of disagreements between the NSA and military IC elements.  There, the initial appeal by an element of the military seeking access to raw intelligence collected by the NSA goes to the director of the NSA, then to the Secretary of Defense (the NSA director’s boss), and then to the DNI.  There may be a political incentive for the Defense Secretary or the DNI to just accede to the request.

Weak Protection Against Political Intervention

The rules have a notable provision (§ 3.B.3) that bars sharing “for the purpose of affecting the political process in the United States.”  Read closely, this raises the question of whether the NSA can share raw intelligence even if it were likely that the dissemination would influence the political process, so long as the purpose of the sharing is something else.  For instance, to take an example from the 2016 election, what if the NSA uncovered evidence that the Russians had accessed Secretary Clinton’s private server?  That would have had a significant effect on the election, but sharing with the FBI for its open investigation would not be for the “purpose” of influencing the election.

Further, questions about whether sharing is “for the purpose” of affecting the political process are also ultimately resolved by either the general counsel of the Office of the Director of National Intelligence (“ODNI”) or the Defense Department.  Even absent the understandable fear today of foreign or domestic interference in the political process, such a weighty question should be resolved by some neutral and detached arbiter, and, if there is any doubt, the presumption should be to err on the side of caution.

Potential Targeting of Domestic Communications

One of the biggest issues in the expansion of surveillance authority following the 9/11 attacks is the blurring of the line between foreign intelligence and domestic surveillance.  With passage of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), Congress tried to distinguish between spy-hunting and domestic criminal investigations by requiring the former to go through a specialized secret court for wiretaps or other surveillance or searches.

Since then, however, the Snowden revelations disclosed that a large amount of U.S. person information unrelated to foreign intelligence can be picked up through FISA surveillance.  This is most notably true with respect to Section 702 of the FISA Amendments Act of 2007, which permits the NSA to target non-U.S. persons overseas for surveillance without a FISA warrant, even if those intercepts capture U.S. person communications.  These intercepts can then be searched by the FBI for criminal evidence, creating an end run around the Fourth Amendment.

The new rule could exacerbate this concern.  The procedures for how the requesting IC element identifies the SIGINT it wants contains a number of loopholes.  Section IV.B, for instance, only bars the requesting element from using a selection term (phone number, email address, networking information, etc.) that is “intended” to select domestic communications.  The implication is that the requestor may use a selector that is likely to capture domestic communications as long as the ostensible purpose is not to do so.

Additionally, in the following section (IV.C), the procedures make clear that the requestor can use a selector that is meant to identify a particular person.  The IC element, however, need only take “all reasonable measures” to ensure that the selector is not associated with a U.S. person.

Moreover, the IC element may use a selector that it knows identifies a U.S. person in the raw SIGINT under the following conditions.

First, under § IV.C.1, it can do so if the person is an active target of a foreign intelligence surveillance or search order (but not a pen register or trap and trace order, or a business records order under Section 215).

This is fine so far as it goes.  If the individual is an active target of an investigation, the government can get a FISA warrant on a showing of probable cause, which permits the interception of communications to and from the target.  The rules, however, permit searching for and sharing communications “about” a target, which sweeps too broadly and risks many more false positives than “to” or “from” communications.  To take a concrete example, you could have two members of the Clinton campaign in the U.S. sharing an article about suspected Russian interference and that would be fair game for a search and share.

Second, under § IV.C.2.a, the attorney general can permit searches of the raw SIGINT for U.S. person information if the person is an officer, employee, or agent of a foreign power; if the purpose is to acquire significant foreign intelligence or counterintelligence information; and for two reasons that are unhelpfully redacted.  This procedure writes the FISA Court out of its role in protecting U.S. persons:  the Attorney General would decide whether the target was a foreign power or an agent of a foreign power, not the FISA Court.  The AG approval is limited to 90 days.

Third, under § IV.C.2.b, the director of the NSA or another IC element head (or a high-level designee) can permit U.S. person searches if the person consented, if the person is reasonably believed to be held captive by a foreign power or terrorist group, for three redacted reasons, and for entities that are “openly acknowledged to be directed or controlled by a foreign power.”  (One must wonder if this includes the RT television network, which has ties to the Russian government?)

Finally, though the section does contain an express minimization requirement, the requesting IC element can use a content-based selector in all cases, including cases where it may result in the retrieval of communications to or from a U.S. person, if there is “reason to believe that foreign intelligence or counterintelligence will be obtained.”

Metadata

Most bets are off with respect to metadata.  Communications metadata retrieved from the 12,333 SIGINT may be searched, and mined through contact chaining (who communicated with whom, and who communicated with that person), without any of the protections noted above.

Further Dissemination

The recipient can further disseminate U.S. person information in a few cases.  Most troubling is if the recipient needs the information to understand foreign intelligence or counterintelligence (with a long litany of non-exclusive examples meeting that test).

Additionally, although the rules do not permit the IC element to search the 12,333 SIGINT in the investigation of a crime it suspects may have been committed by a U.S. person, it may further disseminate U.S. person information to law enforcement agencies if it becomes apparent that it is evidence of a crime.

Also, as Marcy Wheeler pointed out (see comments on paragraph 6 here), the labeling requirements under § III.B.7 are quite lax, and there is no requirement that the NSA review the raw intelligence before sharing.  Accordingly, criminal evidence may be gleaned from shared SIGINT, used to build a case, and then not shared properly with the defense or court.

The procedures also permit dissemination to foreign governments and government-sponsored international entities subject to the approval of the director of the NSA, or a designee, including a designee at another IC element.  The procedures state that the sharing must be “consistent with applicable international agreements and foreign disclosure policy and directives, including those requiring analysis of potential harm to any individual.  Although it’s unclear whether this applies to the raw SIGINT, it nevertheless raises concerns about sharing with countries with human rights or civil liberties issues.

Finally, and helpfully, the procedures do appear to make clear that the actual raw intelligence may not be further disseminated unless the NSA makes an independent determination that the further sharing comports with the procedures applicable to NSA.

Departures from the Procedures

Section IX.D expressly permits the sharing of raw intelligence in violation of the procedures if approved by the ODNI and NSA general counsels and the head of DOJ’s national security division.  In emergencies, the head of an IC element or a senior representative may approve a departure from the procedures.  The IC head must notify the NSA general counsel as soon as possible, and then must notify other principals in writing.

Conclusion

The NSA has exclusive authority to conduct signals intelligence for the U.S. government.  This is how it should be.  The NSA is subject to legal checks (which are not nearly strong enough, but they exist).  But the very sensitivity of what the NSA does—eavesdrops through technical means on vast, hugely intimate pools of global communications, usually without any judicial authorization and for the purpose of collecting broadly-defined “foreign intelligence information”—led to appropriate limits on the sharing of the fruits of that eavesdropping, including “minimizing” communications to limit the potential for abuse by recipients of SIGINT.

These procedures eliminate many of those checks, and give the recipients broad authority to use the raw SIGINT in ways that may be deeply corrosive to civil liberties and privacy.  Truly, the rule of thumb for a civil libertarian is to assume the worst.  While most in the intelligence community and the NSA operate with integrity, the danger of a “bad apple” or a few “bad apples” is amplified when checks like minimization are eliminated.  Today of all days, that fear must stay top of mind for us all.

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