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The phrasing "without legal authorization" is the superhighway-sized qualifier which lets anything through, here. Of course they consider everything they do to

by gojomo 13y ago

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/ http://www.wired.com/threatlevel/2009/06/pinwale/

joering2 13y ago
> 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.
btilly 13y ago
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 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.)
declan 13y ago
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 https://www.fas.org/irp/news/2006/01/hayden012306.html http://www.nytimes.com/2006/01/01/politics/01spy.html?pagewanted=print&_r=0 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.

by gojomo 13y ago

joering2 13y ago

> 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.

btilly 13y ago

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 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.)

declan 13y ago

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 https://www.fas.org/irp/news/2006/01/hayden012306.html http://www.nytimes.com/2006/01/01/politics/01spy.html?pagewanted=print&_r=0 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.