Tag: national security agency

CISPA’s Vast Overreach

Last summer at an AEI-sponsored event on cybersecurity, NSA head General Keith Alexander made the case for information sharing legislation aimed at improving cybersecurity. His response to a question from Ellen Nakashima of the Washington Post (starting at 54:25 in the video at the link) was a pretty good articulation of how malware is identified and blocked using algorithmic signatures. In his longish answer, he made the pitch for access to key malware information for the purpose of producing real-time defenses.

What the antivirus world does is it maps that out and creates what’s called a signature. So let’s call that signature A. …. If signature A were to hit or try to get into the power grid, we need to know that signature A was trying to get into the power grid and came from IP address x, going to IP address y.

We don’t need to know what was in that email. We just need to know that it contained signature A, came from there, went to there, at this time.

[I]f we know it at network speed we can respond to it. And those are the authorities and rules and stuff that we’re working our way through.

[T]hat information sharing portion of the legislation is what the Internet service providers and those companies would be authorized to share back and forth with us at network speed. And it only says: signature A, IP address, IP address. So, that is far different than that email that was on it coming.

Now it’s intersting to note, I think—you know, I’m not a lawyer but you could see this—it’s interesting to note that a bad guy sent that attack in there. Now the issue is what about all the good people that are sending their information in there, are you reading all those. And the answer is we don’t need to see any of those. Only the ones that had the malware on it. Everything else — and only the fact that that malware was there — so you didn’t have to see any of the original emails. And only the ones that had the malware on it did you need to know that something was going on.

It might be interesting to get information about who sent malware, but General Alexander said he wanted to know attack signatures, originating IP address, and destination. That’s it.

Now take a look at what CISPA, the Cybersecurity Information Sharing and Protection Act (H.R. 624), allows companies to share with the government provided they can’t be proven to have acted in bad faith:

information directly pertaining to—

(i) a vulnerability of a system or network of a government or private entity or utility;

(ii) a threat to the integrity, confidentiality, or availability of a system or network of a government or private entity or utility or any information stored on, processed on, or transiting such a system or network;

(iii) efforts to deny access to or degrade, disrupt, or destroy a system or network of a government or private entity or utility; or

(iv) efforts to gain unauthorized access to a system or network of a government or private entity or utility, including to gain such unauthorized access for the purpose of exfiltrating information stored on, processed on, or transiting a system or network of a government or private entity or utility.

That’s an incredible variety of subjects. It can include vast swaths of data about Internet users, their communications, and the files they upload. In no sense is it limited to attack signatures and relevant IP addresses.

What is going on here? Why has General Alexander’s claim to need attack signatures and IP addresses resulted in legislation that authorizes wholesale information sharing and that immunizes companies who violate privacy in the process? One could only speculate. What we know is that CISPA is a vast overreach relative to the problem General Alexander articulated. The House is debating CISPA Wednesday and Thursday this week.

Mass Tragedy Boilerplate and Rebuttal

On the road last week, and allergic to getting too heavily involved in the issue de l’heure, I only today saw Holman Jenkins’ Wall Street Journal commentary: “Can Data Mining Stop the Killing?

After the Aurora theater massacre, it might be fair to ask what kinds of things the NSA has programmed its algorithms to look for. Did it, or could it have, picked up on Mr. Holmes’s activities? And if not, what exactly are we getting for the money we spend on data mining?

Other than to collect it in a great mass along with data about all of us, the NSA could not have “picked up on” Mr. Holmes’s activities. As I wrote earlier this year about data mining’s potential for averting school shootings:

“[D]ata mining doesn’t have the capacity to predict rare events like terrorism or school shootings. The precursors of such events are not consistent the way, say, credit card fraud is. Data mining for campus violence would produce many false leads while missing real events. The costs in dollars and privacy would not be rewarded by gains in security and safety.

Jeff Jonas and I wrote about this in our 2006 Cato Policy Analysis, “Effective Counterterrorism and the Limited Role of Predictive Data Mining.”

If the NSA has data about the pathetic loser, Mr. Holmes, and if it were to let us know about it, all that would do is provide lenses for some pundit’s 20/20 hindsight. Data about past events always points to the future that occurred. But there is not enough commonality among rare and sporadic mass shootings to use their characteristics as predictors of future shootings.

Jenkins doesn’t drive hard toward concluding that data mining would have helped, but his inquiry is mass tragedy boilerplate. It’s been rebutted by me and others many times.

Congress Has No Idea What the NSA Is Doing

Didja think that the legislative branch oversees the executive branch? Think again! Congress has no idea what the National Security Agency (NSA) is doing.

Spencer Ackerman at Wired’s Danger Room blog reports on a letter the inspector general of the intelligence community sent earlier this month to Senators Ron Wyden (D-OR) and Mark Udall (D-CO). They had asked how many people in the United States have had their communications collected or reviewed by the NSA.

The letter repeated the NSA IG’s conclusion that estimating this number was “beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission.” Not only that, figuring out the number of people in the United States that the NSA has snooped on “would itself violate the privacy of U.S. persons.”

A federal agency can write a tart, dry non-response like this because Congress is utterly supine before the security bureaucracy. The tough-talking politicians in both parties have no idea what is happening in the agencies they routinely defend as essential. And Congress still hasn’t approved nominations for the Privacy and Civil Liberties Oversight Board, weak sauce that it is, nearly five years since it was reconstituted with greater independence and subpoena power.

The letter concludes with a hopeful note: “I will continue to work with you and the Committee to identify ways that we can enhance our ability to conduct effective oversight.” That also serves as a confession: We have no idea what the NSA is doing.

The Country’s Biggest Spy Center

Under insufficiently sharp questioning, the head of the National Security Agency, Keith Alexander, has denied the substance of a Wired report on the agency’s massive new computer facility and the capabilities the government has to monitor our communications—even heavily encrypted communications.

If you want a sense of how Congress, still panicked by 9/11, has abdicated its responsibilities and permitted the construction of a “turnkey totalitarian state,” read the whole thing.

Top NSA Mathematician: ‘I should apologize to the American people. It’s violated everyone’s rights.’

If you’re a telecommunications firm that helped the National Security Agency illegally spy on your customers without a court order, Sen. Barack Obama will happily vote for legislation he once promised to filibuster in order to secure retroactive immunity. If you’re implicated in the use of torture as an interrogation tactic, you can breathe easy knowing President Barack Obama thinks it’s in the country’s best interests to “look forward, not back.”  But if you were a government official spurred by conscience to blow the whistle on government malfeasance or ineptitude in the war on terror?  As Jane Mayer details in a must-read New Yorker article, you’d better watch out! This administration is shattering records for highly selective prosecutions under the espionage act—and the primary criteria seems to be, not whether national security was harmed in any discernible way by your disclosures, but by the degree of embarrassment they caused the government.

The whole thing is fascinating, but I’m especially interested in the discussion of how electronic surveillance tools that came with built-in privacy controls were tossed in favor of more indiscriminate programs that, by the way, didn’t work and generated huge cost overruns. The most striking quotations come from disillusioned Republican intelligence officials. Here’s Bill Binney, a top NSA mathematician and analyst, on the uses to which his work was put:

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the “little program” that he invented to track enemies outside the U.S., “got twisted,” and was used for both foreign and domestic spying: “I should apologize to the American people. It’s violated everyone’s rights. It can be used to eavesdrop on the whole world.”

One GOP staffer on the House Intelligence Committee recounted an exchange with then-NSA head Michael Hayden:

[Diane] Roark, who had substantial influence over N.S.A. budget appropriations, was an early champion of Binney’s ThinThread project. She was dismayed, she says, to hear that it had evolved into a means of domestic surveillance, and felt personally responsible. Her oversight committee had been created after Watergate specifically to curb such abuses. “It was my duty to oppose it,” she told me. “That is why oversight existed, so that these things didn’t happen again. I’m not an attorney, but I thought that there was no way it was constitutional.” [….] She asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.”

Remember, these aren’t hippies from The Nation,, or ACLU attorneys, or even (ahem) wild-eyed Cato libertarians. They’re registered Republicans appalled by the corruption of the intelligence mission to which they’d devoted their professional lives.

A Surveillance State Coda

The program of warrantless NSA wiretapping (and data mining) authorized by President George W. Bush shortly after the 9/11 attacks prompted a flurry of intense debate over its legality when it was disclosed by The New York Times back in 2005. Those arguments have, by now, been so thoroughly rehearsed that there’s not a whole lot new to say about it.

But like Monty Python’s Black Knight, some of those old arguments keep popping up — as evidenced by John Eastman’s contribution to the Cato Unbound roundtable on the digital surveillance state we held last month. So while the roundtable’s over, I thought it would be convenient to round up a compact version of the main arguments in one place, for the convenience of folks who might not want to slog through the many law review articles that have been written on the subject.

The touchstone for modern analysis of executive war powers is, by general consensus, the tripartite schema elaborated by Justice Jackson in his concurrence in the Youngstown steel seizure case :

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power…

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain…

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter… Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Using this as our starting point, it becomes clear that an analysis of the NSA program entails answering a series of distinct (though related) questions. First, we need to determine which level of the Youngstown schema applies. If we’re in Youngstown’s Category I, then the NSA program was illegal only if it exceeded the constitutional constraints on government surveillance established by the Fourth Amendment. If, on the other hand, we’re in Category III, a constitutionally permissible surveillance program might nevertheless be illegal. So I’ll consider three questions in turn: Did the NSA program violate federal statute? If so, does the statute trump whatever inherent power the president might enjoy as commander in chief in this context? Finally, does the program, as it’s been publicly described, violate the Fourth Amendment? An affirmative answer to either the first pair of questions or the third will entail that the NSA program was illegal.

The AUMF

The statutory question may seem like something of a no-brainer: The Foreign Intelligence Surveillance Act of 1978 states explicitly that its procedures establish the “exclusive means” for domestic electronic surveillance for foreign intelligence purposes. In this case, the obvious answer is the right one. But the Justice Department has attempted to claim that Congress cleverly managed to repeal the “exclusive means” language without telling anyone about it back in 2001, when it passed the Authorization for the Use of Military Force against the perpetrators of the 9/11 attacks. Probably the most decisive demolition of that argument was offered by David Kris, who currently heads the National Security Division at the Department of Justice, but it’s worth reviewing briefly why this argument is so implausible.

The central problem with reliance on the AUMF is that FISA itself contains a provision providing a 15-day surveillance grace period following a declaration of war. As the legislative conference report explains, this was intended to provide time for Congress to consider whether any wartime modifications to the FISA structure were necessary. Plainly, then, Congress did not imagine or intend that a declaration of war (or “authorization of force”) would in itself implicitly loosen FISA’s fetters beyond that grace period.

Moreover, Congress has repeatedly amended FISA since the 9/11 attacks, both in the PATRIOT Act passed almost simultaneously with the AUMF, and in subsequent legislation over a period of years. As Glenn Greenwald recounted in his lead essay for the Cato roundtable, Congress has expanded government surveillance powers in a variety of ways, but none of these prior to the Protect America Act of 2007 (superseded by the FISA Amendments Act of 2008) approached the breadth of the NSA program, and even these establish at least a modicum of judicial oversight, however inadequate. Again, this history sits uneasily with the premise that Congress understood itself to have authorized such broad domestic surveillance when it passed the AUMF.

Indeed, as former Senate Majority Leader Tom Daschle explained in a Washington Post op-ed shortly after the revelation of the warrantless wiretap program, the Senate explicitly rejected language sought by the White House that would have extended the authorization to actions within the United States. Then–attorney general Alberto Gonzales has publicly acknowledged that the Bush administration contemplated asking for a more specific amendment to FISA authorizing something like the NSA program, but concluded that it would be “difficult, if not impossible” to get such an amendment adopted. We are being asked to believe, in other words, that Congress intended to implicitly grant authority that the administration was certain would be refused had it been requested overtly. It is, as Justice Frankfurter put it in Youngstown, “quite impossible … to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld.”

Basic principles of statutory construction disfavor inferring implicit repeal of specific statutory language from more general authorizations, except in the face of “overwhelming evidence” of congressional intent — and the Court has accordingly rejected parallel arguments in several recent War on Terror cases, as in Hamdan v. Rumsfeld, where the court found “nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization” for military commissions spelled out in the Uniform Code of Military Justice.

The evidence here is indeed overwhelming, and it uniformly cuts against the fanciful proposition that Congress somehow enacted a kind of sub silentio repeal of FISA. I’m inclined to assume this argument was offered primarily because of an understandable reluctance to rely entirely on a radical theory of inherent and preclusive executive powers, to which I turn next.

The President’s Inherent Authority

The first thing to observe with respect to claims of inherent executive authority is that if we exclude non-binding dicta, the evidence for a constitutional power to conduct warrantless domestic surveillance for foreign intelligence purposes is almost wholly negative. That is to say, it turns on inferences from questions the Supreme Court has declined to directly address rather than on its affirmative holdings. As we’ll see, this is a thin reed on which to hang ambitious claims.

Consider, for instance, the so-called Keith case. In addressing the scope of presidential power to authorize warrantless surveillance against domestic national security threats, the majority noted that they had “not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.” But in that very case, the unanimous majority held that a warrant was required in cases involving domestic national security threats, resolving a lacuna expressed in very similar language in a footnote to a previous ruling involving wiretaps:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

The arguments deployed against unchecked executive discretion in Keith clearly have substantial cross-application to the War on Terror, which in many respects bears as much resemblance to those domestic threats as it does to traditional nation state–sponsored espionage and warfare. It will suffice to note, however, that declining to foreclose a power because the fact pattern under consideration provided no occasion to consider the distinct issues involved, as the Court did in both Katz and Keith, is not at all the same as affirmatively asserting it, let alone defining its scope — a point to which I’ll return in the next section.

Nevertheless, let’s suppose arguendo that there is some such inherent power, whether broad or narrow. Eastman and other defenders of the NSA program still err in conflating inherent power with preclusive or indefeasible power. As a simple conceptual matter, this cannot be right, or else the third Youngstown category would collapse into the second: If all “inherent” presidential powers were per se immune to Congressional limitation, Category III would be superfluous, since it would never yield a result different from analysis under Category II.

Fortunately, we need not restrict ourselves to conceptual analysis, because precedent and practice both speak directly to the question, and both support robust legislative power to constrain even those presidential powers grounded in Article II. The legislature has, from the founding era on, assumed that its Article I power to make “rules for the government of the land and naval forces” enabled it to cabin the discretion of the commander in chief, often in frankly picayune ways, by establishing general rules limiting the conduct of a conflict. Prior to the Truman administration there was little indication that presidents saw this as encroaching upon sacrosanct executive prerogatives. Even Lincoln — probably the most obvious early example of a wartime president acting without or contrary to statutory authority — did not claim some general constitutional power to defy Congress. Rather, he argued that when hostilities commenced during a congressional recess, he had acted as he thought necessary given the impracticality of securing advance approval, while acknowledging that it fell to the legislature to ratify or overrule his judgment once it reconvened.

In the few cases where the Supreme Court has had occasion to rule on the scope of executive power at “lowest ebb,” it has repeatedly confirmed that federal law binds the president even in war. In Little v. Barreme, during a conflict with France, the Court found that a specific congressional authorization for the seizure of ships bound to French ports rendered invalid an executive order that also permitted seizure of ships bound from those ports. And this was so, the Court noted, even though the president’s own commander-in-chief powers would have permitted him this discretion had Congress not spoken. Since the inauguration of the War on Terror, the Court has reaffirmed the validity of such statutory limits on executive discretion, as in Hamdan. Bush’s own Office of Legal Counsel ultimately repudiated a series of memos, penned by John Yoo, that had relied on a more expansive conception of executive power to justify the administration’s War on Terror programs, concluding that they were “not supported by convincing reasoning.”

There is, by general consensus, some “preclusive core” to the executive’s commander-in-chief authority. This includes, at the least, a prerogative of “superintendence”: Congress could not appoint Nancy Pelosi commander of U.S. forces in Afghanistan and forbid the president to remove her. Most commentators see it as similarly foreclosing efforts to achieve the same end by a series of micromanagerial statutes commanding specific tactics be employed at particular times. But the notion that this preclusive core encompasses discretion to unilaterally disregard a general statutory framework governing protracted electronic surveillance of U.S. persons on American soil is simply insupportable in the face of both history and precedent. The argument is, if anything, more absurd when it comes to the government’s illegal acquisition of the statutorily protected calling records of tens of millions of Americans, the vast majority of whom obviously have no ties to terrorism or Al Qaeda. Attempts to stitch together a countervailing line from desultory snatches of language about the president’s role as “sole organ” in foreign affairs are entertaining as a sort of exercise in experimental Burroughsian cut-up narrative, but as legal analysis they seem pretty desperate.

The Fourth Amendment

Finally, we turn to the Fourth Amendment. I will, for the most part, consider how the Fourth Amendment applies to the NSA surveillance program prior to the 2008 passage of the FISA Amendments Act.

As Eastman notes, while in most contexts the prohibition on “unreasonable searches and seizures” requires surveillance to be authorized by a probable cause warrant based on individualized suspicion, there are a variety of circumstances in which warrantless searches may nevertheless be reasonable. While this is not the place to conduct a detailed survey of such “special needs” exemptions, such exceptions tend to involve cases in which the subjects of the search are already understood to enjoy a diminished expectation of privacy (students in school), where the searches are standardized and minimally intrusive, where the targets are in a position to raise challenges before a neutral magistrate if necessary, and where prior court authorization would be highly impractical. No exception that I am aware of can plausibly be stretched so far as to permit sustained, discretionary, warrantless electronic surveillance of members of the general population — a method recognized to be so intrusive that in the criminal context, federal statute requires investigators to meet a higher standard than applies to ordinary physical search warrants.

It’s worth noting in passing that the existence of the statutory FISA framework is at least arguably relevant to the Fourth Amendment analysis here. What measures are “reasonable” will often depend on context, and upon the available alternatives: The use of lethal force in self-defense might be found reasonable as a last resort, but not when the victim has an easy avenue of escape or a taser handy. Similarly, if the only alternative to conventional criminal courts were warrantless surveillance — if Congress had made no provision for a highly secretive court to consider classified applications under secure conditions, with ample flexibility in cases of emergency — one might be more inclined to sympathize with some degree of executive improvisation. In light of the elaborate mechanisms Congress has provided, an appeal to impracticality is considerably less compelling.

But let’s bracket that for the moment, and again suppose for the sake of argument that the president has some inherent authority to conduct warrantless domestic wartime surveillance. Let’s further assume away any statutory problems. Can the NSA program be squared with the Fourth Amendment injunction that searches be reasonable, based on what little we know of it? It seems highly unlikely.

Multiple accounts suggest that the NSA program involved algorithmic selection of surveillance targets, possibly triggered by keywords within the communications themselves, almost certainly based on pattern analysis of calling records or other transactional data. The result, according to the Bush administration, was that the international communications of approximately 500 persons within the United States were being intercepted at any given time. Since the program operated for several years, both before and after being disclosed, a conservative estimate would place the total number of persons subject to surveillance in the thousands, and most likely in the tens of thousands.

What did all this spying yield? In 2006, under the headline “Surveillance Net Yields Few Suspects,” the Washington Post reported:

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well.

Nearly all the “leads” produced by the program appear to have been dead ends. Indeed, despite the assurances of the Bush administration that the NSA program had saved thousands of lives, a postmortem review by the intelligence community’s inspectors general found that officials they spoke to “had difficulty citing specific instances where [NSA program] reporting had directly contributed to counterterrorism successes,” though a classified version of the report apparently cites a handful of instances in which the program “may have contributed.”

As a point of reference, the government’s reporting suggests that under criminal wiretap orders, about 30 percent of intercepted communications contain incriminating content. Since “minimization” of innocent communications is necessarily imperfect, and since even the most hardened criminals presumably spend most of their time conversing about more mundane matters, the number of targets engaged in at least some incriminating communication is clearly far higher. That’s what one would expect when evidence establishing “probable cause” must justify surveillance — and Bush officials have claimed the NSA program’s targeting met the same standards. The evidence suggests otherwise.

I’m happy to grant that we should accept a somewhat lower “hit rate” when interception is geared toward protecting the nation from major terror attacks. But if the requirement that searches be “reasonable” is not to be rendered completely vacuous or totally severed from even a diluted standard of “probable cause,” then there must be some substantive test of whether such highly intrusive techniques are actually in service of that vital state interest. It cannot possibly be enough to simply observe that the president has uttered the magical incantation “War on Terror.” And it cannot possibly be enough that a program involving interception of the private conversations of thousands or tens of thousands of U.S. persons “may have contributed” to a handful of successful investigations. The question is closer with respect to post-FISAAA programs of interception, which are at least subject to some modicum of independent oversight, but unless we have gotten vastly better at sifting the guilty from the innocent, grave constitutional doubts should remain.

‘Perfect Citizen’: Congress’ Perfect Failure

Reliable national security reporter Siobhan Gorman at the Wall Street Journal has broken a story about an Internet surveillance program called “Perfect Citizen” to be managed by the National Security Agency.

Reading about it is frustrating, and for me blame quickly settles on Congress. Our legislature is utterly supine before the national security bureaucracy, which exaggerates cybersecurity threats and consistently uses the secrecy trump card to defy oversight.

If there is to be a federal government role in securing the Internet from cyberattacks, there is no good reason why its main components should not be publicly known and openly debated. Small parts, like threat signatures and such—the unique characteristics of new attacks—might be appropriately kept secret, but no favor is done to any potential attackers by revealing that there is a system for detecting their activities.

A cybersecurity effort that is not tested by public oversight will be weaker than ones that are scrutinized by private-sector experts, academics, security vendors, and watchdog groups.

Benign intentions do not control future results, and governmental surveillance of the Internet for “cybersecurity” purposes may warp over time to surveillance for ideological and political purposes.

These abstract criticisms of “Project Citizen” are all that publicly available information allows. Far better would come from me and others more qualified if Congress were to do its job.

Congress owes it to us, the United States’ true citizens, to have public hearings on “Perfect Citizen.” Congress should reject broad assertions of secrecy so that the whole body politic can participate in securing our country from all threats.

Congressional and public oversight—searching oversight that tests assumptions and asks hard questions—would strengthen any government cybersecurity effort we find warranted. It would also ameliorate the threat of such programs to our civil liberties, democratic processes, and privacy.