Thursday, March 23, 2017

Nunes, Trump, Obama and Who Watches the Watchers?

I've made this separate entry from the update to my earlier discussion FISA, EO 12333, Bulk Collection, and All That. I believe the Nunes revelations from yesterday support my contention that the Trump team intercepts are largely "incidental" collections (e.g., bulk collections using tapped fiber, etc.) under 12333, and the existence of many (leaked) intel reports featuring these intercepts is likely a consequence of Obama's relaxation of the rules governing access to this bulk data. At least, the large number of possible leakers helps hide the identities of the actual leakers!

EO12333 + Obama OKs unprecedented sharing of this info as he leaves office = recent leaks? Note the use of the term "incidentally" and the wide dissemination (thanks to Obama policy change as he left office).
WSJ: ... “I recently confirmed that on numerous occasions the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition,” Mr. Nunes said, reading a brief statement to reporters on Capitol Hill on Wednesday afternoon. “Details about U.S. persons associated with the incoming administration—details with little or no apparent foreign intelligence value—were widely disseminated in intelligence community reporting.”

... Mr. Nunes added that it was “possible” the president himself had some of his communication intercepted, and has asked the Federal Bureau of Investigation, National Security Agency and other intelligence agencies for more information.
The change put in place as Obama left office is probably behind the large number of circulating reports that feature "incidentally" captured communications of the Trump team. The NYTimes article below is from February.
NYTimes: ... Until now, National Security Agency analysts have filtered the surveillance information for the rest of the government. They search and evaluate the information and pass only the portions of phone calls or email that they decide is pertinent on to colleagues at the Central Intelligence Agency, the Federal Bureau of Investigation and other agencies. And before doing so, the N.S.A. takes steps to mask the names and any irrelevant information about innocent Americans.

[ So FBI is only getting access to this data for the first time. It is interesting that Nunes said that NSA would comply with his request for more information but that FBI has not complied. It seems possible that FBI does not yet have good internal controls over how its agents use these new privileges. ]

The new system would permit analysts at other intelligence agencies to obtain direct access to raw information from the N.S.A.’s surveillance to evaluate for themselves. If they pull out phone calls or email to use for their own agency’s work, they would apply the privacy protections masking innocent Americans’ information — a process known as “minimization” — at that stage, Mr. Litt said.

... FISA covers a narrow band of surveillance: the collection of domestic or international communications from a wire on American soil, leaving most of what the N.S.A. does uncovered. In the absence of statutory regulation, the agency’s other surveillance programs are governed by rules the White House sets under a Reagan-era directive called Executive Order 12333.

... [it is unclear what] rules say about searching the raw data using names or keywords intended to bring up Americans’ phone calls or email that the security agency gathered “incidentally” under the 12333 surveillance programs ...
It appears that the number of individuals allowed to search bulk, incidentally collected data has been enlarged significantly. Who watches these watchers? (There must now be many thousands...)
Sophos: Obama administration signs off on wider data-sharing for NSA ... Patrick Toomey, a lawyer for the American Civil Liberties Union (ACLU), put it in an interview with the New York Times, 17 intelligence agencies are now going to be “rooting… through Americans’ emails with family members, friends and colleagues, all without ever obtaining a warrant”.

The new rules mean that the FBI, the CIA, the DEA, and intelligence agencies of the US military’s branches and more, will be able to search through raw signals intelligence (SIGINT): intercepted signals that include all manner of people’s communications, be it via satellite transmissions, phone calls and emails that cross network switches abroad, as well as messages between people abroad that cross domestic network switches.
AddedQuick and dirty summary of new rules governing access to raw SIGINT. Note, lots of room for abuse in what I quote below:
Section III: ... NSA may make raw SIGINT available through its own systems, through a shared IC or other government capability (like a cloud environment), or by transferring the information to the IC element's information systems.

Section V: ... Communications solely between U.S. persons “inadvertently retrieved during the selection of foreign communications” will be destroyed except if they contain significant foreign intelligence or counterintelligence as determined by the IC element.

Section VI: ... An IC element may disseminate U.S. person information "derived solely from raw SIGINT" under these procedures ... if ... the information is “necessary to understand the foreign intelligence or counterintelligence information,”
Here are the entities who now have access (thanks Obama!) to raw SIGINT, and seem to have the discretionary power to "unmask" US citizens appearing in the data.
IC elements are defined under 3.5(h) of E.O. 12333 as: (1) The Office of the Director of National Intelligence; (2) The Central Intelligence Agency; (3) The National Security Agency; (4) The Defense Intelligence Agency; (5) The National Geospatial-Intelligence Agency; (6) The National Reconnaissance Office; (7) The other offices within the Department of Defense for the collection of specialized national foreign intelligence through reconnaissance programs; (8) The intelligence and counterintelligence elements of the Army, the Navy, the Air Force, and the Marine Corps; (9) The intelligence elements of the Federal Bureau of Investigation; (10) The Office of National Security Intelligence of the Drug Enforcement Administration; (11) The Office of Intelligence and Counterintelligence of the Department of Energy; (12) The Bureau of Intelligence and Research of the Department of State; (13) The Office of Intelligence and Analysis of the Department of the Treasury; (14) The Office of Intelligence and Analysis of the Department of Homeland Security; (15) The intelligence and counterintelligence elements of the Coast Guard; and (16) Such other elements of any department or agency as may be designated by the President, or designated jointly by the Director and the head of the department or agency concerned, as an element of the Intelligence Community.

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