Government Denies That NSA Listens To Domestic Calls Without Legal Authorization | Hacker News Reader

Government Denies That NSA Listens To Domestic Calls Without Legal Authorization

techcrunch.com

51 pointscodex_irl24 comments

Given all the misleading statements so far when you hear a statement like this:

"the statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect"

They are basically meaningless unless you can ask a few follow up questions:

   - What exactly is incorrect in that statement?
   - Specifically which entities does this denial cover?
   - Can more than one analyst listen?
   - How about anyone else (i.e. a non-analyst)?
   - What exactly does "eavesdrop" include?
   - How is "domestic" defined?
   - What are "communications"?
   - What do you consider "proper legal authorization"?
   - Are you using any non-standard definitions for the words in your statement?

I don't think you can give these guys any benefit of a doubt.

Nobody has given a credible description of the surveillance capabilities/policy of NSA, FBI, CIA, etc. It's not possible for either citizens or lawmakers to reach an understanding from a handful of negative statements. We shouldn't be playing 20 Questions, we should demand the executive branch provide a positive description of its surveillance programs.

The phrasing "without legal authorization" is the superhighway-sized qualifier which lets anything through, here. Of course they consider everything they do to be 'legally authorized', under their own strained interpretations that are hidden from others' review and challenge, and which include things like provisional authorizations that don't require a warrant.

We know they consider any calls known to be 'foreign' already legally authorized. No warrant needed, little reporting, little oversight.

Then, anything else that they guess with 51% confidence is foreign, until they discover otherwise, is also authorized: they can start listening, before they have a warrant, and perhaps never needing one. Operating in secrecy, there are a number of ways they could have their fingers on the 51% scales, here: nudging a few extra algorithmic signals into the analysis until they hit the 51% threshold, or pretending not to hear any other indicators of domesticness. (A US citizen might want to answer all calls not with "hello" but instead "I am a US person", if you want them to stop listening... though from the myriad of reports, it's not certain that the enforcement is much stronger than an analyst-self-reported "honor system" and "oops, I'll try not to do that again".)

But then also, multiple reports seem to indicate they can start listening to previously-recorded believed US person calls with merely the intent to pursue a FISA warrant within the next 7 days. What if they start that and get more evidence to push the foreignness-confidence over 51%? Perhaps no warrant application is then necessary. What if they use their 6 days and 23 hours of listening and then decide, false lead? Does this "free look at anyone for any reason" have any cost for the analyst? (Was it this sort of temporary-unilateral-overreach that let an analyst access stored intercepts of former President Bill Clinton's email in 2009? [1])

If the internal controls are as good as they claim, they ought to be able to report exactly how many domestic calls/emails were heard/viewed, in the sort of 'inadvertent' and quickly-self-corrected errors many officials have already have described on-the-record.

[1] http://www.wired.com/threatlevel/2009/06/pinwale/

But then also, multiple reports seem to indicate they can start listening to previously-recorded believed US person calls with merely the intent to pursue a FISA warrant within the next 7 days. What if they start that and get more evidence to push the foreignness-confidence over 51%? Perhaps no warrant application is then necessary. What if they use their 6 days and 23 hours of listening and then decide, false lead? Does this "free look at anyone for any reason" have any cost for the analyst? (Was it this sort of temporary-unilateral-overreach that let an analyst access stored intercepts of former President Bill Clinton's email in 2009? [1])

No need to speculate. Do as I did today and read the law at http://www.law.cornell.edu/uscode/text/50/1881a.

The 7 day rule is in g.1.B, If the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2) and time does not permit the submission of a certification under this subsection prior to the implementation of an authorization under subsection (a), the Attorney General and the Director of National Intelligence shall submit to the Court a certification for such authorization as soon as practicable but in no event later than 7 days after such determination is made.

From this it is clear that, if they are following the law as written, they can start without a warrant, but they need to pursue the warrant. There are no exceptions in the law for "the user was foreign" or "we decided this is not a useful lead".

Whether or not they follow the law I leave to your imagination. I'm inclined to believe that, at present, they do. (Whether they will continue to do so is another story.)

As you say, "without legal authorization" is a very large qualifier.

So is "a single analyst." Gen. Hayden and the NYT's original 2005 report indicated the permission of two analysts -- a junior analyst and a "shift supervisor" -- was necessary under the NSA's pre-FAA program that has continued largely intact. https://www.fas.org/irp/news/2006/01/hayden012306.html http://www.nytimes.com/2006/01/01/politics/01spy.html?pagewa...

So taking the statement at face value, if a shift supervisor blessed the initial collection, that would be fine without a court order. Or if a single analyst has received "legal authorization," that would be fine too. What the DNI's statement doesn't do is reveal what the procedures really are.

> Then, anything else that they guess with 51% confidence is foreign, until they discover otherwise, is also authorized:

Slipper slope as usual. Up to the point that it seems the most work was done in terms how to write this law so broadly that we can do anything we want to, and still comply with it.

So in other words, knowing how Government works, its like this:

- we need intel on this guy

- okay let me check if he is a us citizen..

- okay 67% chances he is according to the system. we can't mine him...

- wait a second... but if you tweak this option and uncheck this box, will his USC probability fall down?

- yes sir, down to 47%.

- there you go, my man. so its not a citizen.. most likely.

- yes sir.

- fine! give me everything we got on him.

- roger that.

> (A US citizen might want to answer all calls not with "hello" but instead "I am a US person", if you want them to stop listening

I am sorry but you have to STOP thinking that they answer to someone, or that you have some sort of legal right to sue them. Okay, so it turned out you said you are a US citizen and they continued to listen to it. And what you gonna do about it? Are you gonna sue them? Have judge sign off subpoena for them to turn over their files? Give me a break! They are ABOVE the law! They can cover everything with "government privilege" rubber stamp and wrap a file with "top secret" ribbon. Not even judge can peek into it. You lost the case (month of your time and most of your lifetime savings) before it even started!

EDIT: bottom line, those are hard-core criminals that do not answer to anyone. You have an obligation, regardless of which country citizen you are, to protect yourself. use PGP, start encouraging your friends to get Bat email client with PGP widget, etc.

Of course they don't listen to the recordings. They convert them to text and read them on the toilet. Or even better run them through the world's most powerful scanning software and extract useful tidbits to be examined later. The government saying they don't sit there with an old rotary phone and listen in, like some kind of 30's FBI G-man, is rather insulting.

I see lots of careful word play in the official gov't statements.

I put no credibility at all to anything said by Robert Mueller, one because he's a technical incompetent; two because of his vested interest and past performance at truth-telling.

Crazy semi-relevant speculation: If the call or communication is ever routed outside the US that makes it international even if both parties are within the US. With cooperation from major telecom co's, calls or comms could be preferentially routed thusly in order to game what's left of the protection scheme.

Similarly, there's the alleged ECHELON cooperation with unencumbered ally intel services: "Uh-oh, this call recording has a 0% foreign content, so we're not allowed to listen. Can someone ask a Canadian or Australian to do it for us?"

I appreciate the editor trying to make it sound sinister by implying that it is a government cover-up, but the very person behind the story to begin with, Rep Jerrold Nadler, claims his words were misconstrued by CNet. In a statement today: "I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans’ phone calls without a specific warrant."

collecting and recording isn't listening. Reading an SMS isn't listening. And the content of a phone call is only part of the information gathered... you have metadata including cell phone tower location data, duration etc.

Ultimately, What I want to read isn't a congress person saying, "don't worry, it's cool." It's the EFF or ACLU saying it. I feel like I have to parse anything being said by public officials or government employees with maximum paranoia, just because they know that if they explained what was going on, we would object. Which is sad, because I'm an American, I love my country, and I want to trust my government.

The point wasn't that you should take a congressman at his word that "everything is cool," but when what the issue is (THIS issue - no conflation please) an interpretation of what that congressman said in the first place, then I think he has some authority in the matter so long as he isn't outright contradicting himself (but is in this case contradicting someone's interpretation).

I think you make a fair point, and thank you for calling me on some implied BS. I don't necessarily believe he is lying. I am sorry if I conflated his statements. I also think that it's better to have such statements then not to have them, assuming they are true.

However it seems apparent to me that his statement is intended to imply to the American public that the surveillance problem isn't problematic because it's legal.

Something can be legal, and still be wrong. Sometimes laws need to change, or interpretations need to be challenged.

When legal authorization isn't a meaningful restriction, when warrants aren't issued by a judge, or when judges rubberstamp even the broadest of warrants, that is problematic, in my opinion.

The issue for me isn't the legality, but the appropriateness/morality of such surveillance. I would like to think that such programs are unconstitutional, but I don't think we have to limit our laws to the constitution... we can make laws that are more restrictive on what the American government can do then the constitution is interpreted to allow. Because if the constitution's 4th amendment protections allow the government to siphon this massive quantity of data, then it isn't restrictive enough.

It also, for the record, isn't the number of incidents prevented by the current practices that justifies them, unless they can be meaningfully compared to incident prevention rates from more restrictive information gathering.

Nadler's statement this weekend is consistent with his statement last week. He's happy that the Obama administration is now saying (where? to whom? who said it? is this legally binding?) that they will obtain a specific warrant.

At this point it's hard to believe anything anyone says. Perhaps Nadler was threatened or blackmailed.

Or maybe I've been watching too much House of Cards.

That's exactly the problem, that the NSA has legal authorization to do this.

Jon Oliver had a perfect rebuttal to this statement the other night on "The Daily Show" which I will recite below:

"Mr. President, no one is saying you broke any laws. We're just saying it's a little bit weird you didn't have to." -Jon Oliver

Bear in mind that the President is sworn to execute the laws, not modify them. The appropriate target of people's ire is Congress.

Huh? For the record, I have not been bothered by these programs under either of the past two administrations, but if you don't like national security surveillance programs, you should be mad at the President. He could absolutely order any of them stopped tomorrow.

And short of cutting funding for intelligence agencies generally, it's not clear that Congress could order the executive to stop or start such a program, any more than they could order the President to fire the Chairman of the Joint Chiefs of Staff.

I don't know much about the US legal system, but can the president not veto any law he sees fit to?

He can veto a proposed law approved by the House and the Senate, but in turn, they can override the President's veto with a 2/3s majority vote.

Only at the time it is passed, not later; and a law passed with a 2/3 majority (such as the Patriot act) is veto-proof.

Why could he not veto the patriot act?

Because he doesn't have a time machine?

"The government was not made the exclusive or final judge of the extent of the powers delegated to itself." -Jefferson

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